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B 924,854
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1889
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GENERAL LIBRARY
OF
UNIVERSITY OF MICHIGAN.
PRESENTED BY
Sicy of State of U. Dakota
Apr. 25. 1893.
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OFFICIAL REPORT
OF THE
PROCEEDINGS AND DEBATES
4:
OF THE
FIRST CONSTITUTIONAL CONVENTION
A
OF NORTH DAKOTA,
ASSEMBLED IN THE CITY OF BISMARCK,
JULY 4th TO AUG. 17th, 1889.
R. M. TUTTLE, OFFICIAL STENOGRAPHER.
BISMARCK, NORTH DAKOTA.:
TRIBUNE, STATE PRINTERS AND BINDers.
1889.
MEMBERS AND OFFICERS
OF THE
NORTH DAKOTA CONSTITUTIONAL CONVENTION
1889.

NAME.
ALLIN, ROGER, †……….
ALMEN, JOHN MAGNUS, r…….
APPLETON, ALBERT FRANCIS, d..
BEAN, THEROW W., r....
BELL, JAMES, d....
BENNETT, RICHARD, r…...
BARTLETT, LORENZO D., d..
• •
Grand Forks,
Eddy,
Cass,
Ward,
Walsh,
Bartlett, David, ~……..
BEST, WILLIAM D., ď..
BROWN, CHARLES V., g
d...
BLEWETT, ANDREW, d.
BUDGE, WILLIAM, ”……………
....
CAMP, EDGAR WHITTLESEY, r………
CHAFFEE, EBEN WHITNEY, r
CARLAND, JOIN EMMET, d..
Carothers, CHARLES, 7…..
CLARK, HORACE M., r.
CLAPP, WILLIAM J., r.
COLTON, JOSEPH L., r..
.. •
DOUGLAS, JAMES A., d……..
County.
Postoffice.
Occupat❜n,
Born.
Walsh,
Grafton,
Farmer, Dec. 18, 1818
Walsh,
Grafton,
Farmer,
Apl. 13, 1850
Pembina,
Crystal,
Farmer,
Jan.
14, 1850
Nelson,
Michigan City
Lawyer,
Oct.
17, 1859
Walsh,
Minto,
Farmer,
Aug. 24, 1850
Grand Forks,
Grand Forks,
Lawyer,
Dec.
4, 1851
Dickey,
Griggs,
Pembina,
Ellendale,
Cooperstown,
Bay Centre,
Farmer, Oct.
19, 1829
23, 1855
Wells,
Nov. 28, 1839
Stutsman,
Grand Forks,
Stutsman,
Cass,
Burleigh,
Sykeston,
Jamestown,
Grand Forks,
Jamestown,
Amenia,
Aug. 23, 1853
Lawyer, Oct,
Farmer,
Publisher,
Merchant, Sept. 13, 1857
Oct.
Merchant,
11, 1852
Lawyer, Feb. 27, 1860
Farmer, Jan. 19, 1821
Lawyer, Dec. 11, 1851
Farmer,
Bismarck,
Emerado,
New Rockf'd,
Tower City,
Burlington,
Park River,
Aug. 22, 1863
Farmer,
Sept. 6, 1850
ELLIOTT, ELMER E., r.
Barnes,
FANCHER, FREDERICK B., 7
Stutsman,
Sanborn,
Jamestown,
Lawyer,
Merchant,
Feb.
Farmer,
13, 1847
Dec.
Merchant,
25, 1861
Farmer, Apl. 2, 1852
Nov. 28, 1857
Mar. 24, 1810
FAY, GEORGE H., 7....
McIntosh,
Ashlev,
Lawyer, Feb. 24, 1842
FLEMINGTON, ALEXANDER D., r
Dickey,
Ellendale,
Lawyer, Apl. 7, 1856
GAYTON, JAMES BENNETT, ”…….
Emmons,
Hampton,
Farmer, Nov. 10, 1833
GLICK, BENJAMIN RUSH, d.
Cavalier,
Langdon,
GRAY, ENOS, d....
Cass,
Embden,
་
GRIGGS, ALEXANDER, d..
Grand Forks,
Grand Forks,
HAUGEN, ARNE P., r..
Grand Forks,
HEGGE, MARTHINUS F., d….
HOLMES, HERBERT L., Y
Traill,
Pembina,
Reynolds,
Hatton,
Neche,
HARRIS, HARVEY, 7.
Burleigh,
Bismarck,
HOYT, ALBERT W., 7.
Morton,
Mandan,
·
JOHNSON, MARTIN N., r.
Nelson,
Lakota,
LAUDER, WILLIAM S., 7
Richland,
Wahpeton,
LEECH, ADDISON, r.
Cass,
Davenport,
· •
LOWELL, JACOB, d.
Cass,
LINWELL, MARTIN V., r
LOHNES, EDWARD H., 7″
• •
MARRINAN, MICHAEL KENYON, d..
Frand Forks,
Walsh,
Fargo,
Northwood,
Ramsey,
Devils Lake,
Grafton,
Merchant,
Mar. 29, 1856
Mar.
Farmer, Feb. £, 1829
Banker, Oct. 27, 1838
Farmer, June 7, 1845
Merchant, Νον. 27, 1856
Banker,
May 29, 1853
R'l Estate, Dec. 12, 1852
R'l Estate, July
5, 1846
3, 1850
Lawyer, Feb. 9, 1856
Farmer, Feb. 20, 1824
Lawyer, Mar.
Lawyer, May 7, 1843
Lawyer, Apl. 2, 1857
Farmer,
Apl. 22, 1844
Lawyer, Nov. 4, 1853
4
DEBATES OF THE CONVENTION.
MEMBERS AND OFFICERS-Continued.
NAME.
County.
Postoffice.
Occupat❜n.
Born.
MATHEWS, J. H., r...
MEACHAM, OLNEY G., 1….
MCBRIDE, JOHN, d....
Grand Forks,
Foster,
Cavalier,
Larimore,
Carrington,
Alma,
Farmer, Oct. 10, 1846
Banker,
Apl. 12, 1847
Farmer,
May 22, 1850
• •
MILLER, HENRY FOSTER, Y.
MOER, SAMUEL H., r....
MCKENZIE, JAMES D., r....
MCHUGH, Patrick, y
NOBLE, VIRGIL B., d...
NOMLAND, KNUD J., r
O'BRIEN, JAMES F., d..
PARSONS, CURTIS P., 7.
·
Cass,
La Moure,
Fargo,
Lawyer,
Sept. 13, 1846
LaMoure,
Lawyer,
June 21, 1856
Sargent,
Milnor,
Doctor,
Mar.
28, 1810
Cavalier,
Langdon,
Banker,
Sept. 23, 1846
Bottineau,
Bottineau,
Traill,
Caledonia,
Ramsey,
Devils Lake,
Rolette,
Rolla,
·
PARSONS, ALBERT SAMUEL, 7..
PAULSON, ENGEBRET M., r..
Morton, '
Mandan,
Lawyer, Dec. 7, 1859
Farmer, Oct. 16, 1852
Lawver, July 6, 1853
Publisher, May 6, 1853
Railroad'g Aug. 16, 1856
Traill,
Mayville,
PETERSON, HENRY M., 7
Cass,
Horace,
POLLOCK, ROBERT M., 7.
...
Cass,
Casselton,
Lawyer,
POWERS, JOHN, đ……….
Sargent,
Havana,
Farmer,
Farmer, May 15, 1855
Farmer, July 11, 1857
Dec. 16, 1854
Nov. 4, 1852
POWLES, JOSEPH, 7...
Cavalier,
Milton,
Farmer, Dec. 6, 1850
PURCELL, WILLIAM E., d..
Richland,
Wahpeton,
•
RAY, WILLIAM, d...
Stark,
Dickinson,
Lawyer,
R'l Estate,
Aug. 3, 1858
Sept.
-, 1852
RICHARDSON, ROBERT B., r...
Pembina,
Drayton,
Farmer,
Apl.
20, 1810
ROBERTSON, ALEXANDER D., 7.
Walsh,
Minto,
Merchant, July 27, 1833
ROLFE, EUGENE STRONG, r.
Benson,
Minnewaukan,
Lawyer, Dec.
15, 1854
ROWE, WILLIAM H., 7.
Sandager, Andrew, r
SHUMAN, JOHN, Y
·
SCOTT, JOHN W., r...
•
Dickey,
Monango,
Merchant, Oct.
26, 1853
Ransom,
Sargent,
Lisbon,
Rutland,
Merchant, Oct.
31, 1862
SELBY, JOHN F., r....
Barnes,
Traill,
Valley City,
Farmer, July
Lawyer,
13, 1836
Mar. 13, 1858
Hillsboro,
SLOTTEN, ANDREW, r..
Richland,
Wahpeton,
Lawyer, Dec. 21, 1849
Farmer, Sept. 16, 1840
•
SPALDING, BURLEIGH FOLSOM, r..
Cass,
Fargo,
Lawyer,
Dec. 3, 1853
STEVENS, REUBEN N., r.......
Ransom,
Lisbon,
Lawyer,
Aug. 10, 1853
TURNER, EZRA, 1………….
WALLACE, ELMER D., r.
WHIPPLE, ABRAM OLIN, 7.
WELLWOOD, JAY, r
WILLIAMS, ERASTUS A., r.
.. •
Bottineau,
Steele,
Ramsey,
Bottineau,
Hope,
Devils Lake,
Farmer, Dec. 17, 1835
Farmer, July 5, 1811
Banker,
Apl. 1, 1815
•
Barnes,
Burleigh,
Minnie Lake,
Bismarck,
Farmer,
Nov. 11, 1858
Lawyer,
Oct. 13, 1851
r Republican; d Democrat.
OFFICERS.
NAME.
F. B. FANCHER
J. G. HAMILTON…….
C. C. BowSFIELD..
FRED FALLEY…….
J. S. WEISER.
Office.
County,
Postoffice.
President,
Chief Clerk,
Grand Forks,
..
Enrolling and Engrossing Clerk,
Sergeant-at-Arms,
Watchman,
Stutsman,
Dickey,
Richland,
Barnes,
Jamestown.
Grand Forks.
Ellendale.
Wahpeton.
Valley City.
E. W. KNIGHT.
GEO. KLINE..
R. M. TUTTLE..
• J
Messenger,
Chaplain,
Official Stenographer,
Cass,
Burleigh,
Morton,
Fargo.
Bismarck.
Mandan.
POLITICAL COMPLEXION AND NATIVITY.
Republicans, 56; Democrats, 19. Born in United States, 52-Wisconsin, 13; New York, 10;
Iowa, 5; Ohio, 4; Maine, 3; Pennsylvania, 3; Illinois, 2; Connecticut, 2; Indiana, 2; Minnesota, 2;
Vermont, 2; Massachusetts, 1; New Hampshire, 1; New Jersey, 1; Michigan, 1. Born in other
countries, 23--Canada, 9; Norway and Sweden, 5; England, 3; Scotland, 3; Ireland, 2; New Bruns-
wick, 1. Ancestry-American, 22; English, 15; Irish, 12; Norwegian, Scandinavian and Swede, 10;
Scotch, 6; Irish and Scotch, 3; Scotch-American, 2; Scotch and Danish, 1; English-German, 1;
Dutch, 1; German-Irish, 1; Irish and Welsh, 1.
THE ENABLING ACT.
AN ACT, To Provide for the Division of Dakota into Two States, and to En-
able the People of North Dakota, South Dakota, Montana and Washing-
ton to Form Constitutions and State Governments, and to be Admitted
into the Union on au Equal Footing with the Original States, and to Make
Donations of Public Lands to Such States.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the inhab-
itants of all that part of the area of the United States now consti-
tuting the territories of Dakota, Montana and Washington, as at
present described, may become the states of North Dakota, South
Dakota, Montana and Washington respectively, as hereinafter
provided.
SEC. 2. The area comprising the Territory of Dakota shall, for
the purposes of this act, be divided on the line of the seventh
standard parallel produced due west to the western boundary of
said territory; and the delegates elected as hereinafter provided
to the Constitutional Convention in districts north of said parallel
shall assemble in convention, at the time prescribed in this act, at
the City of Bismarck; and the delegates elected in districts south
of said parallel shall, at the same time, assemble in convention at
the City of Sioux Falls.
SEC. 3. That all persons who are qualified by the laws of said
territories to vote for representatives to the legislative assemblies
thereof, are hereby authorized to vote for and choose delegates to
form conventions in said proposed states; and the qualifications
for delegates to such conventions shall be such as by the laws of
said territories, respectively, persons are required to possess to be
eligible to the legislative assemblies thereof; and the aforesaid
delegates to form said conventions shall be apportioned within the
limits of the proposed states in such districts as may be estab-
lished as herein provided, in proportion to the population in
each of said counties and districts, as near as may be, to be
6
DEBATES OF THE CONVENTION.
ascertained at the time of making said apportionments by the
persons hereinafter authorized to make the same, from the best
information obtainable, in each of which districts three delegates.
shall be elected, but no elector shall vote for more than two per-
sons for delegates to such conventions; that said apportionments
shall be made by the governor, the chief justice and the secretary
of said territories; and the governors of said territories shall, by
proclamation, order an election of the delegates aforesaid in each
of said proposed states, to be held on the Tuesday after the second
Monday in May, 1889, which proclamation shall be issued on the
15th day of April, 1889; and such election shall be conducted, the
returns ma le, the result ascertained and the certificates to per-
sons elected to such convention issued in the same manner as is
prescribed by the laws of the said territories regulating elections
therein for delegates to congress; and the number of votes cast
for delegates in each precinct shall also be returned. The number
of delegates to said conventions respectively, shall be seventy-five;
and all persons resident in said proposed states who are qualified
voters of said territories as herein provided shall be entitled to
vote upon the election of delegates, and under such rules and
regulations as said conventions may prescribe not in conflict with
this act, upon the ratification or rejection of the constitutions.
SEC. 4. That the delegates to the conventions elected as pro-
vided for in this act shall meet at the seat of government of each of
said territories, except the delegates elected in South Dakota, who
shall meet at the city of Sioux Falls, on the Fourth day of July,
1889, and, after organization, shall declare on behalf of the people
of said proposed states that they adopt the constitution of the
United States; whereupon the said conventions shall be, and are
hereby, authorized to form constitutions and state governments
for said proposed states, respectively. The constitutions shall be
republican in form, and make no distinction in civil or political
rights on account of race or color, except as to Indians not taxed,
and not to be repugnant to the constitution of the United States
and the principles of the Declaration of Independence. And said
conventions shall provide by ordinances irrevocable without the
consent of the United States and the people of said states:
First. That perfect toleration of religious sentiment shall be
secured, and that no inhabitant of said states shall ever be mo-
lested in person or property on account of his or her mode of re-
ligious worship.
DEBATES OF THE CONVENTION.
7
Second. That the people inhabiting said proposed states do
agree and declare that they forever disclaim all right and title to
the unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits owned or held by
any Indian or Indian tribes; and that until the title thereto shall
have been extinguished by the United States, the same shall be
and remain subject to the disposition of the United States, and
said Indian lands shall remain under the absolute jurisdiction and
control of the Congress of the United States; that the lands belong-
ing to citizens of the United States residing without the said
states shall never be taxed at a higher rate than the lands belonging
to residents thereof; that no taxes shall be imposed by the states
on lands or property therein belonging to or which may hereafter
be purchased by the United States or reserved for its use. But
nothing herein, or in the ordinances herein provided for, shall pre-
clude the said states from taxing as other lands are taxed any lands
owned or held by any Indian who has severed his tribal relations,
and has obtained from the United States or from any person a
title thereto by patent or other grant, save and except such lands.
as have been or may be granted to any Indian or Indians under
any act of Congress containing a provision exempting the lands
thus granted from taxation; but said ordinances shall provide that
all such lands shall be exempt from taxation by said states so long
and to such extent as such act of Congress may prescribe.
Third. That the debts and liabilities of said territories shall be
assumed and paid by said states respectively.
Fourth. That provision shall be made for the establishment
and maintenance of systems of public schools, which shall be open
to all the children of said states, and free from sectarian control.
SEC. 5. That the Convention which shall assemble at Bismarck
shall form a constitution and state government for a state to be
known as North Dakota, and the Convention which shall assemble
at Sioux Falls shall form a constitution and state government for
a state to be known as South Dakota; Provided, That at the elec-
tion for delegates to the Constitutional Convention in South Da-
kota, as hereinbefore provided, each elector may have written or
printed on his ballot, the words, "For the Sioux Falls Constitu-
tion," or the words, “Against the Sioux Falls Constitution," and the
votes on this question shall be returned and canvassed in the same
manner as for the election provided for in section three of this act;
and if a majority of all votes cast on this question shall be "For
8
DEBATES OF THE CONVENTION.
the Sioux Falls Constitution" it shall be the duty of the Convention
which may assemble at Sioux Falls, as herein provided, to resub-
mit to the people of South Dakota, for ratification or rejection at
the election hereinafter provided for in this act, the Constitution
framed at Sioux Falls, and adopted November 3, 1885, and also
the articles and propositions separately submitted at that elec-
tion, including the question of locating the temporary seat of gov-
ernment, with such changes only as relate to the name and boun-
dary of the proposed state, to the reapportionment of the judicial
and legislative districts, and such amendments as may be necessary
in order to comply with the provisions of this act; and if a major-
ity of the votes cast on the ratification or rejection of the Constitu-
tion shall be for the Constitution irrespective of the articles
separately submitted, the State of South Dakota shall be admitted
as a state in the Union under said Constitution as hereinafter
provided, but the archives, records and books of the Territory of
Dakota shall remain at Bismarck, the Capital of North Dakota,
until an agreement in reference thereto is reached by said states.
But if at the election for delegates to the Constitutional Conven-
tion in South Dakota a majority of all the votes cast at that elec-
tion shall be "Against the Sioux Falls Constitution," then, and in
that event, it shall be the duty of the Convention which will as-
semble at the City of Sioux Falls on the fourth day of July, 1889,
to proceed to form a Constitution and state government as pro-
vided in this act the same as if that question had not beem sub-
mitted to a vote of the people of South Dakota.
SEC. 6. It shall be the duty of the Constitutional Conventions of
North Dakota and South Dakota to appoint a joint commission,
to be composed of not less than three members of each conven-
tion, whose duty it shall be to assemble at Bismarck, the present
seat of government of said territory, and agree upon an equitable
division of all property belonging to the Territory of Dakota, the
disposition of all public records and also adjust and agree upon
the amount of the debts and liabilities of the territory, which
shall be assumed and paid by each of the proposed States of North
Dakota and South Dakota; and the agreement reached respecting
the territorial debts and liabilities shall be incorporated in the re-
spective Constitutions, and each of said states shall obligate itself
to pay its proportion of such debts and liabilities the same as if
they had been created by such states respectively.
SEC. 7. If the Constitutions formed for both North Dakota and
DEBATES OF THE CONVENTION.
9
!
South Dakota shall be rejected by the people at the elections for
the ratification or rejection of their respective Constitutions as
provided for in this act, the territorial government of Dakota
shall continue in existence the same as if this act had not been
passed. But if the Constitution formed for either North Dakota
or South Dakota shall be rejected by the people, that part of the
territory so rejecting its proposed Constitution shall continue
under the territorial government of the present Territory of Da-
kota, but shall, after the state adopting its Constitution is admitted
into the Union, be called by the name of the Territory of North
Dakota or South Dakota, as the case may be; Provided, That if
either of the proposed states provided for in this act shall reject
the Constitution which may be submitted for ratification or re-
jection at the election provided therefor, the Governor of the terri-
tory in which such proposed Constitution was rejected shall issue
his proclamation reconvening the delegates elected to the Conven-
tion which formed such rejected Constitution, fixing the time and
place at which said delegates shall assemble; and when so assem-
bled they shall proceed to form another Constitution or to amend
the rejected Constitution, and shall submit such new Constitution
or amended Constitution to the people of the proposed state for
ratification or rejection, at such time as said Convention may
determine; and all the provisions of this act, so far as applicable,
shall apply to such Convention so reassembled and to the Con-
stitution which may be formed, its ratification or rejection, and to
the admission of the proposed state.
SEC. 8. That the Constitutional Convention which may assem-
ble in South Dakota shall provide by ordinance for resubmitting
the Sioux Falls Constitution of 1885, after having amended the
same as provided in section five of this act, to the people of South
Dakota for ratification or rejection at an election to be held
therein on the first Tuesday in October, 1889; but if said Consti-
tutional Convention is authorized and required to form a new
Constitution for South Dakota it shall provide for submitting the
same in like manner to the people of South Dakota for ratification
or rejection at an election to be held in said proposed state on the
said first Tuesday in October. And the Constitutional Conven-
tions which may assemble in North Dakota, Montana and Wash-
ington, shall provide in like manner for submitting the Constitu-
tions formed by them to the people of said proposed states
respectively, for ratification or rejection, at elections to be held in
10
DEBATES OF THE CONVENTION.
said proposed states on the said first Tuesday in October. At the
elections provided for in this section the qualified voters of said
proposed states shall vote directly for or against the proposed
Constitutions, and for or against any articles or propositions
separately submitted. The returns of said elections shall be made
to the Secretary of each of said territories, who, with the Governor
and Chief Justice thereof, or any two of them, shall canvass the
same; and if a majority of the legal votes cast shall be for the
Constitution, the Governor shall certify the result to the President.
of the United States, together with a statement of the votes cast
thereon and upon separate articles or propositions, and a copy of
said Constitution, articles, propositions and ordinances. And if
the Constitutions and governments of said proposed states are
republican in form, and if all the provisions of this act have been
complied with in the formation thereof, it shall be the duty of
the President of the United States to issue his proclamation
announcing the result of the election in each, and thereupon the
proposed states which have adopted Constitutions and formed
state governments, as herein provided, shall be deemed admitted
by Congress into the Union, under and by virtue of this act, on
an equal footing with the original states from and after the date
of said proclamation.
SEC. 9. That until the next general census, or until otherwise
provided by law, said states shall be entitled to one Representative
in the House of Representatives of the United States, except South
Dakota, which shall be entitled to two; and the Representatives to
the Fifty-first Congress, together with the Governors and other
officers provided for in said Constitutions, may be elected on the
same day of the election for the ratification or rejection of the Con-
stitutions; and until said state officers are elected and qualified
under the provisions of each Constitution and the states, respect-
ively, are admitted into the Union, the territo rial officers shall
continue to discharge the duties of their respective offices in each
of said territories.
SEC. 10. That upon the admission of each of said states into
the Union sections numbered 16 and 36 in every township of said
proposed states, and where such sections or any parts thereof have
been sold or otherwise disposed of by or under the authority of
any act of Congress, other lands equivalent thereto, in legal sub-
divisions of not less than one-quarter section, and as contiguous
as may be to the section in lieu of which the same is taken, are
DEBATES OF THE CONVENTION.
11
hereby granted to said states for the support of common schools,
such indemnity lands to be selected within said states in such man-
ner as the Legislature may provide, with the approval of the Secre-
tary of the Interior; Provided, That the sixteenth and thirty-sixth
sections embraced in permanent reservations for national purposes
shall not, at any time, be subject to the grants nor to the indemnity
provisions of this act, nor shall any lands embraced in Indian,
military or other reservations of any character, be subject to the
grants or to the indemnity provisions of this act until the reserva-
tion shall have been extinguished and such lands be restored to,
and become a part of, the public domain.
SEC. 11. That all lands herein granted for educational pur-
poses shall be disposed of only at public sale, and at a price not
less than $10 per acre, the proceeds to constitute a permanent
school fund, the interest of which only shall be expended in the
support of said schools. But said lands may, under such regula-
tions as the Legislature shall prescribe, be leased for periods of not
more than five years, in quantities not exceeding one section to
any one person or company; and such land shall not be subject to
pre-emption, homestead entry, or any other entry under the land
laws of the United States, whether surveyed or unsurveyed, but
shall be reserved for school purposes only.
SEC. 12. That upon the admission of each of said states into
the Union, in accordance with the provisions of this act, fifty sec-
tions of the unappropriated public lands within said states, to be
selected and located in legal subdivisions as provided in section
ten of this act, shall be, and are hereby, granted to said states for
the purpose of erecting public buildings at the capital of said
states for legislative, executive and judicial purposes.
SEC. 13. That five per centum of the proceeds of the sales of
public lands lying within said states which shall be sold by the
United States subsequent to the admission of said states into the
Union, after deducting all the expenses incident to the same, shall
be paid to the said states, to be used as a permanent fund, the inter-
est of which only shall be expended for the support of common
schools within said states, respectively.
SEC. 14. That the lands granted to the Territories of Dakota
and Montana by the act of February 18, 1881, entitled "An Act to
Grant Lands to Dakota, Montana, Arizona, Idaho and Wyoming
for University Purposes," are hereby vested in the states of South
Dakota, North Dakota and Montana, respectively, if such states
G
DEBATES OF THE CONVENTION.
12
are admitted into the Union as provided in this act, to the extent
of the full quantity of seventy-two sections to each of said states,
and any portion of said lands that may not have been selected by
either of said Territories of Dakota or Montana may be selected
by the respective states aforesaid; but said act of February 18,
1881, shall be so amended as to provide that none of said lands
shall be sold for less than $10 per acre, and the proceeds shall con-
stitute a permanent fund to be safely invested and held by said.
states severally, and the income thereof be used exclusively for
university purposes. And such quantity of the lands authorized by
the fourth section of the act of July 17, 1854, to be reserved for uni-
versity purposes in the Territory of Washington, as, together with
the lands confirmed to the vendees of the territory by the act of
March 14, 1864, will make the full quantity of seventy-two entire
sections, are hereby granted in the like manner to the State of Wash-
ington for the purposes of a university in said state. None of the
lands granted in this section shall be sold at less than $10 per
acre; but said lands may be leased in the same manner as provided
in section eleven of this act. The schools, colleges and universi-
ties provided for in this act shall forever remain under the ex-
clusive control of the said states, respectively, and no part of the
proceeds arising from the sale or disposal of any lands herein
granted for educational purposes shall be used for the support of
any sectarian or denominational school, college or university. The
section of land granted by the act of June 16, 1880, to the Terri-
tory of Dakota, for an asylum for the insane, shall upon the
admission of said state of South Dakota into the Union, become
the property of said state.
SEC. 15. That so much of the lands belonging to the United
States as have been acquired and set apart for the purpose men-
tioned in "An act appropriating money for the erection of a
penitentiary in the Territory of Dakota," approved March 2, 1881,
together with the buildings thereon, be, and the same is hereby
granted, together with any unexpended balances of the moneys
appropriated therefor by said act, to said State of South Dakota,
for the purposes therein designated, and the States of North
Dakota and Washington shall, respectively, have like grants for
the same purpose, and subject to like terms and conditions as
provided in said act of March 2, 1881, for the Territory of Dakota,
The penitentiary at Deer Lodge City, Montana, and all lands
DEBATES OF THE CONVENTION.
13
connected therewith and set apart and reserved therefor, are
hereby granted to the State of Montana.
SEC. 16. That 90,000 acres of land to be selected and located
as provided in section ten of this act, are hereby granted to each
of said states except to the State of South Dakota, to which
120,000 acres are granted for the use and support of agricultural
colleges in said states, as provided in the acts of Congress mak-
ing donations of lands for such purpose.
SEC. 17. That in lieu of the grant of land for purposes of in-
ternal improvement made to new states by the eighth section of
the act of September 4, 1841, which act is hereby repealed as to
the states provided for by this act, and in lieu of any claim or
demand by the said states, or either of them, under the act of
September 28, 1850, and section 2479 of the Revised Statutes,
making a grant of swamp and overflowed lands to certain states,
which grant it is hereby declared is not extended to the states
provided for in this act, and in lieu of any grant of saline lands to
said states, the following grants of land are hereby made, to-wit;
To the State of South Dakota: For the School of Mines, 40,000
acres; for the Reform school, 40,000 acres; for the Deaf and Dumb
asylum, 40,000 acres; for the Agricultural College, 40,000 acres;
for the University, 40,000 acres; for State Normal schools, 80,000
acres; for public buildings at the Capital of said state, 50,000
acres, and for such other educational and charitable purposes as
the Legislature of said state may determine, 170,000 acres; in all,
500,000 acres.
To the State of North Dakota a like quantity of land as is in
this section granted to the State of South Dakota, and to be for
like purposes, and in like proportion as far as practicable.
To the State of Montana: For the establishment and main-
tenance of a School of Mines, 100,000 acres; for State Normal
schools, 100,000 acres; for Agricultural Colleges, in addition to
the grant herein before made for that purpose, 50,000 acres; for
the establishment of a State Reform school, 50,000 acres; for the
establishment of a Deaf and Dumb asylum, 50,000 acres; for public
buildings at the Capital of the state in addition to the grant here-
inbefore made for that purpose, 150,000 acres.
To the State of Washington: For the establishment and main-
tenance of a Scientific school, 100,000 acres; for State Normal
schools, 100,000 acres; for public buildings at the State Capital in
addition to the grant hereinbefore made for that purpose, 100,000
14
DEBATES OF THE CONVENTION.
acres; for state charitable, educational, penal and reformatory
institutions, 200,000 acres.
That the states provided for in this act shall not be entitled to
any further or other grants of land for any purpose than as ex-
pressly provided in this act. And the lands granted by this
section shall be held, appropriated and disposed of exclusively for
the purposes herein mentioned, in such manner as the Legislatures
of the respective states may severally provide.
SEC. 18. That all mineral lands shall be exempted from the
grants made by this act. But if sections 16 and 36, or any sub-
division or portion of any smallest subdivision thereof in any
township shall be found by the Department of the Interior to be
mineral lands, said states are hereby authorized and empowered to
select, in legal subdivisions, an equal quantity of other unappro-
priated lands in said states, in lieu thereof, for the use and the
benefit of the common schools of said states.
SEC. 19. That all lands granted in quantity or as indemnity
by this act shall be selected, under the direction of the Secretary
of the Interior, from the surveyed, unreserved and unappro-
priated public lands of the United States within the limits of the
respective states entitled thereto. And there shall be deducted
from the number of acres of land donated by this act for specific
objects to said states the number of acres in each heretofore
donated by Congress to said territories for similar objects.
SEC. 20. That the sum of $20,000, or so much thereof as may
be necessary, is hereby appropriated, out of any money in the
Treasury not otherwise appropriated, to each of said territories
for defraying the expenses of the said Conventions, except to Da-
kota, for which the sum of $40,000 is so appropriated, $20,000 each
for South Dakota and North Dakota, and for the payment of the
members thereof, under the same rules and regulations and at the
same rates as are now provided by law for the payment of the Ter-
ritorial Legislatures. Any money hereby appropriated not neces-
sary for such purpose shall be covered into the Treasury of the
United States.
SEC. 21. That each of said states when admitted as aforesaid
shall constitute one judicial district, the names thereof to be the
same as the names of the states, respectively; and the Circuit and
District Courts therefor shall be held at the Capital of such state
for the time being, and each of said districts shall, for judicial
purposes, until otherwise provided, be attached to the Eighth ju-
DEBATES OF THE CONVENTION.
15
dicial circuit, except Washington and Montana, which shall be
attached to the Ninth judicial circuit. There shall be appointed
for each of said districts one District Judge, one United States At-
torney and one United States Marshal. The Judge of each of
said districts shall receive a yearly salary of $3,500, payable in
four equal installments, on the first days of January, April, July
and October of each year, and shall reside in the district. There
shall be appointed clerks of said courts in each district, who
shall keep their offices at the Capital of said state. The regular
terms of said courts shall be held in each district, at the place
aforesaid, on the first Monday in April and the first Monday in
November of each year, and only one grand jury and one petit
jury shall be summoned in both said Circuit and District Courts.
The Circuit and District Courts for each of said districts and the
judges thereof, respectively, shall possess the same powers and
jurisdiction, and perform the same duties required to be
performed by the other Circuit and District Courts and
judges of the United States, and shall be governed by
the same laws and regulations. The Marshal, District At-
torney and clerks of the Circuit and District Courts of
each of said districts, and all other officers and persons per-
forming duties in the administration of justice therein, shall sev-
erally possess the powers and perform the duties lawfully pos-
sessed and required to be performed by similar officers in other
districts of the United States; and shall, for the services they
may perform, receive the fees and compensation allowed by law to
other similar officers and persons performing similar duties in the
State of Nebraska.
SEC. 22. That all cases of appeal or writ of error heretofore
prosecuted and now pending in the Supreme Court of the United
States upon any record from the Supreme Court of either of the
territories mentioned in this act, or that may hereafter lawfully
be prosecuted upon any record from either of said courts, may be
heard and determined by said Supreme Court of the United States.
And the mandate of execution or of further proceedings shall be
directed by the Supreme Court of the United States to the Circuit
or District Court hereby established within the state succeeding
the territory from which such record is or may be pending, or to
the Supreme Court of such state, as the nature of the case may re-
quire; Provided, That the mandate of execution or of further
proceedings shall, in cases arising in the Territory of Dakota, be
16
DEBATES OF THE CONVENTION.
directed by the Supreme Court of the United States to the Circuit
or District Court of the district of South Dakota, or to the Supreme
Court of the State of South Dakota, or to the Circuit or District
Court of the District of North Dakota, or to the Supreme Court of
the State of North Dakota, or to the Supreme Court of the Ter-
ritory of North Dakota, as the nature of the case may require.
And each of the Circuit, District and State Courts, herein named,
shall, respectively, be the successor of the Supreme court of the
territory, as to all such cases arising within the limits embraced
within the jurisdiction of such courts respectively, with full power
to proceed with the same, and award mesne or final process therein;
and that from all judgments and decrees of the Supreme Court of
either of the territories mentioned in this act, in any case arising
within the limits of any of the proposed states prior to admission,
the parties to such judgment shall have the same right to prosecute
appeals and writs of error to the Supreme Court of the United
States as they shall have had by law prior to the admission of
said state into the Union.
SEC. 23. That in respect to all cases, proceedings and matters.
now pending in the Supreme or District Courts of either of the
territories mentioned in this act at the time of the admission into
the Union of either of the states mentioned in this act, and arising
within the limits of any such state, whereof the Circuit or District
Courts by this act established might have had jurisdiction under
the laws of the United States had such courts existed at the time
of the commencement of such cases, the said Circuit and District
Courts, respectively, shall be the successors of said Supreme and
District Courts of said territory; and in respect to all other cases,
proceedings and matters pending in the Supreme or District
Courts of any of the territories mentioned in this act at the time
of the admission of such territory into the Union, arising within
the limits of said proposed state, the courts established by such
state shall, respectively, be the successors of said Supreme and
District Territorial Courts; and all the files, records, indictments
and proceedings relating to any such cases, shall be transferred
to such Circuit, District and State Courts, respectively, and the
same shall be proceeded with therein in due course of law; but no
writ, action, indictment, cause or proceeding now pending, or that
prior to the admission of any of the states mentioned in this act,
shall be pending in any territorial court in any of the territories
mentioned in this act shall abate by the admission of any such
DEBATES OF THE CONVENTION.
17
state into the Uuion, but the same shall be transferred and pro-
ceeded within the proper United States Circuit, District or State
Court, as the case may be; Provided, however, That in all civil
actions, causes and proceedings, in which the United States
is not a party, transfers shall not be made to the Circuit, and
District Courts of the United States except upon written re-
quest of one of the parties to such action or proceeding filed in
the proper court; and in the absence of such request, such cases
shall be proceeded with within the proper State Courts.
SEC. 24. That the Constitutional Conventions may, by ordi-
nance, provide for the election of officers for full state governments,
including members of the Legislatures and Representatives in the
Fifty-first Congress; but said state governments shall remain in
abeyance until the states shall be admitted into the Union, re-
spectively, as provided in this act. In case the Constitution of
any of said proposed states shall be ratified by the people, but
not otherwise, the Legislature thereof may assemble, organize and
elect two Senators of the United States; and the Governor and
Secretary of State of such proposed state shall certify the election
of the Senators and Representatives in the manner required by
law; and when such state is admitted into the Union, the Senators
and Representatives shall be entitled to be admitted to seats in
Congress, and to all the rights and privileges of Senators and
Representatives of other states in the Congress of the United
States; and the officers of the state governments formed in pursu--
ance of said constitutions, as provided by the Constitutional
Conventions, shall proceed to exercise all the functions of such
state officers; and all laws in force made by said territories, at the
time of their admission into the Union, shall be in force in said
states, except as modified or changed by this act, or by the con-
stitutions of the states, respectively.
SEC. 25. That all acts or parts of acts in conflict with the pro-
visions of this act, whether passed by the Legislatures of said
territories or by Congress, are hereby repealed.
Approved February 22, 1889.
2
;
DEBATES AND PROCEEDINGS
OF THE
NORTH DAKOTA CONSTITUTIONAL CONVENTION
BISMARCK, Thursday, July 4, 1889.
The members elected on May 14, 1889, to frame a Constitution
for the State of North Dakota, assembled this day at 12 o'clock,
noon, in the hall of the House of Representatives in the Territo-
rial Capitol in the City of Bismarck, under and by virtue of the
provisions of the Enabling Act of Congress.
TEMPORARY ORGANIZATION.
Secretary of the Territory, Mr. RICHARDSON. The Conven-
tion will come to order and listen to prayer by the Rev. Mr. An-
derson of Bismarck.
Prayer was then offered by Mr. Anderson.
Secretary RICHARDSON then said: GENTLEMEN OF THE CON-
VENTION. I shall not detain you with any very extended remarks,
but I desire to say that you have met to perform the highest duty
possible to devolve on an American citizen. You have come to-
gether to form the organic law for the great sovereign State of
North Dakota, about to be admitted into the Union with an inde-
pendent municipal government. I need not remind you of the
fundamental principals of a wise government which I conceive to
be economy and purity. This, gentlemen, is distinctively an agri-
cultural state, and this is an industry to be fostered. Your laws.
should be so adjusted that the producer will be protected and en-
couraged to build up the country. It is not the purpose of wisdom
to foster dissension between the agricultural producers and the
transportation companies, but to so adjust things, that each shall
receive equal justice and bear their just part of all public burdens.
20
DEBATES OF THE CONVENTION.
*
It is important that there shall be peace and not war between
them. The country cannot prosper without railroads, neither can
the farmer prosper without justice. Let this matter be amicably
discussed and you will have performed a service to the people of
this State which you are about to build, and which will ever be
remembered with gratitude by a grateful people. Gentlemen,
what is the pleasure of this Convention?
Mr. PARSONS of Morton. Inasmuch as a record of the pro-
ceedings is necessary, I make a motion that the Honorable JoнN
A. REA be made the temporary Secretary.
Adopted.
Mr. HARRIS.
The delibertions of this Convention should be
taken down, and I therefore move that R. M. TUTTLE of Mandan,
be made temporary Stenographer.
Seconded and adopted.
Mr. PARSONS of Morton. Mr. SECRETARY; I would move
that we proceed to the election of a permanent Chairman of this
Convention.
Seconded by Mr. COLTON.
Mr. WILLIAMS. I would inquire if the roll has been pre-
pared. It would be proper to call the roll before we proceed to
the election of a permanent Chairman.
Secretary RICHARDSON. There has been no roll call pre-
pared by the Secretary. It would seem to devolve upon the Con-
vention to take such action as it sees fit in regard to the calling
of the roll.
Mr. WILLIAMS. I move to amend the motion to read that
we proceed to elect a Chairman pro tem.
Amendment was seconded.
Secretary RICHADSON. The Chair understands that there
was a motion before the House that has not been acted upon.
Mr. PURCELL. Mr. CHAIRMAN: As I understand it Mr.
WILLIAMS has moved an amendment to the motion of Mr. PARSONS.
Mr. WILLIAMS. I should think that the gentleman from
Morton would accept my amendment.
Mr. PARSONS of Morton. I object to the amendment, but if
desired I will withdraw my motion and move that the Secretary
appoint a committee of three on Credentials to report. Otherwise
I object to the amendment.
Mr. WILLIAMS. Let us vote on the amendment.
DEBATES OF THE CONVENTION.
21
Secretary RICHARDSON. Are there any further remarks?
You have heard the amendment.
The amendment was then put to a vote and carried.
The original motion as amended was then put and carried.
Mr. MOER moved that F. B. FANCHER be elected temporary
Chairman.
Seconded by Mr. LAUDER, and carried unanimously.
Mr. WILLIAMS and Mr. JOHNSON were appointed as a committee
to escort Mr. FANCHER to the Chair.
Mr. FANCHER. GENTLEMEN OF THE CONVENTION: I thank
you heartily for conferring upon me the honor of this tempo-
rary chairmanship. What is the further pleasure of the Con-
vention?
Mr. SCOTT. I think it would now be in order for the Chair
to appoint a Committee on Credentials. I make a motion to that
effect--a committee of three.
Seconded by Mr. HARRIS and carried.
Mr. STEVENS. I move that there be a committee of five ap-
pointed on Rules and Permanent Organization.
Mr. PARSONS of Morton.
I second the motion.
Mr. MOER amended the motion to read ten instead of five, and
the amendment was accepted.
The Committee on Credentials was appointed as follows:
Messrs. ROWE of Dickey, MILLER of Cass and MEACHAM of
Foster.
The Committee on Rules was appointed as follows: Messrs.
STEVENS of Ransom, COLTON of Ward, SCOTT of Barnes, BENNETT
of Grand Forks, TURNER of Bottineau, CAMP of Stutsman, SLOTTEN
of Richland, ALLIN of Walsh, CLARK of Eddy and APPLETON of
Pembina.
Adjourned until 10 o'clock a. m., July 5th.
22
DEBATES OF THE CONVENTION.
SECOND DAY.
BISMARCK, Friday, July 5, 1889.
Convention called to order at 10 a. m. by President pro tem
FANCHER.
Prayer was offered by the Rev. Mr. KLINE of Bismarck.
Mr. JOHNSON in the Chair.
CONGRATULATORY TELEGRAMS.
The following telegrams were read:
SIOUX FALLS, S. DAK., July 4, 1889.
To the President of the Constitutional Convention:
The South Dakota Constitutional Convention sends greeting to North
Dakota Constitutional Convention.
A. J. EDGERTON, President.
OLYMPIA, WASH. TER., July 4, 1889.
To F. B. Fancher, President North Dakota Convention:
The Constitutional Convention of Washington appreciates your patriotic
greeting. We shall endeavor, that of the four new stars emblazoned on our
National flag, the one bearing the honored name of Washington shall not be
less brilliant by reason of our labors. May the garden lands of Dakota fulfill
all the bright expectations of their friends and wear the chaplet of citizenship
with distinction and honor.
JAMES F. MOORE.
Chairman JOHNSON. In the absence of any order of business
the Chair would entertain the report from the Committee on Cre-
dentials.
Mr. MILLER. Mr. CHAIRMAN: I think that Committee is not
quite ready to report yet.
Mr. HARRIS. I move you this resolution:
Resolved, That the privileges of the floor be extended to ex-Governor
Gilbert A. Pierce and ex-Governor N. G. Ordway during the sessions of this
Convention.
Seconded by Mr. SCOTT.
Mr. WALLACE. If it is not too late I would like to amend so
that the resolution will read that all ex-federal appointees that
DEBATES OF THE CONVENTION.
23
have been connected with our territorial organization be granted
the privileges of the floor.
Mr. MILLER. I would amend by moving that all ex-territorial
officers who have been elected by the people be entitled to the
same privilege. I see no reason why federal appointees alone
should have this privilege.
Seconded, and the original resolution with the varied amend-
ments was adopted.
Mr. SPALDING. I move that the Auditor of the Territory be
requested by the President of this Convention to furnish the Con-
vention for its use, a statement of the cost of construction and re-
pairs of all public institutions within the Territory.
Seconded by Mr. FANCHER.
Mr. STEVENS. We have no business of this kind until we are
permanently organized. The Committee on Credentials have not
yet reported, and no resolution of this kind can be passed until
we know who are entitled to seats in this body.
Mr. PARSONS of Morton. I move that we take an informal
recess and await the report of the Committee on Credentials.
Mr. SPALDING's motion was withdrawn, and a recess taken.
Seats were drawn for, and the report was read from the Com-
mittee on Credentials after the recess.
The Committee on Credentials reported the following as entitled
to seats in the Convention, which report was adopted:
First District-H. L. Holmes, R. B. Richardson, W. D. Best.
Second District-Joseph Powles, John McBride, A. F. Apple-
ton.
Third District-C. P. Parsons, P. McHugh, B. R. Glick.
Fourth District-V. B. Noble, J. L. Colton, Ezra Turner.
Fifth District-E. A. Williams, Harvey Harris, John E. Car-
land.
Sixth District-A. W. Hoyt, A. S. Parsons, Wm. Ray.
Seventh District-J. B. Gayton, G. H. Fay, C. V. Brown.
Eighth District-W. H. Rowe, A. D. Flemington, L. D. Bartlett.
Ninth District-S. H. Moer, R. N. Stevens, Andrew Sandager.
Tenth District-John Shuman, J. D. McKenzie, John Powers.
Eleventh District-W. S. Lauder, Andrew Slotten, W. E. Pur-
cell.
Twelfth District—H. F. Miller, B. F. Spalding, J. Lowell.
Thirteenth District-Addison Leach, R. M. Pollock, H. M. Pe
terson.
24.
DEBATES OF THE CONVENTION.
Fourteenth District-E. W. Chaffee, Wm. J. Clapp, Enos Gray,
Fifteenth District-Elmer E. Elliott, J. W. Scott, J. Wellwood.
Sixteenth District-E. W. Camp, F. B. Fancher, Andrew
Blewett.
Seventeenth District-E. S. Rolfe, H. M. Clark, O. G. Meacham.
Eighteenth District-David Bartlett, E. D. Wallace, E. M.
Paulson.
Nineteenth District-J. F. Selby, M. F. Hegge, Knud J. Nom-
land.
Twentieth District-Wm. Budge, Richard Bennett, Alexander
Griggs.
Twenty-first District-A. P. Haugen, J. H. Mathews, Chas.
Carothers.
Twenty-second District-M. N. Johnson, M. V. Linwell, T. W.
Bean.
Twenty-third District—A. O. Whipple, Edward H. Lohnes, J.
F. O'Brien.
Twenty-fourth District-A. D. Robertson, M. K. Marrinan,
James Bell.
Twenty-fifth District-Roger Allin, John M. Almen, James A.
Douglas.
PERMANENT ORGANIZATION.
Mr. WILLIAMS. I move that we now proceed to the election
of a permanent President.
Seconded and adopted.
Mr. CAMP. Mr. PRESIDENT: I nominate Mr. F. B. FANCHER
of Stutsman, for permanent President of this Convention.
Seconded.
Mr. PURCELL. Mr. PRESIDENT: It might be well in making
this selection of presiding officer of this Convention, to look about
and see who it is that possesses those qualifications which are
necessary for the proper discharge of those duties. This is an
important Convention for the people of this Territory, because of
the supposed benefits to result therefrom. The duties are such
that they require those qualities in a man which can only be
acquired by experience. It seems to me, Mr. PRESIDENT, that we
have a man here who is fully competent to discharge those
duties—a man who is not a stranger to public office—one who has
occupied the position of United States Attorney in this Territory,
and
one who having faithfully performed the duties of that
DEBATES OF THE CONVENTION.
25
position was called to a higher position—namely, to be Judge of
the Fourth District of this Territory. There is no man living
who can point the finger of scorn at him and say that he has ever
done anything but what was best and right. He has by virtue of
his experience necessarily acquired knowledge which will be of
benefit in the deliberations of this assembly. The presiding
officer of this body needs such knowledge, that when matters are
presented for the consideration of this Convention he will be able
to see at once whether or not they conflict with the Constitution
of the United States. It is supposed that no law, or method or
resolution will be enacted here that is in conflict with that docu-
ment. I nominate the Honorable JOHN E. CARLAND for perma-
nent President of this body,
Mr. NOBLE seconded the nomination of Mr. CARLAND.
Mr. LAUDER. I move the roll be called and each delegate
answer to his name as it is called.
Seconded.
Mr. MCHUGH. Would it not be well for the members to be
sworn in before they proceed to the election of a President?
Mr. CARLAND. I understand that one of the Justices of the
Supreme Court of this Territory has been invited here to adminis-
ter this oath. As a matter of law, I don't suppose there is any
law requiring us to take an oath, but it has been the usual custom,
and I think it is a very proper proceeding, and as we have invited
Judge Rose here to administer this oath, I think it should be done
as soon as possible.
The oath was then administered by the Hon. Roderick Rose,
Judge of the Sixth Judicial District.
The voting then took place on the matter of permanent Presi-
dent, with the following result:
Those voting for Mr. FANCHER were—
Messrs. Allin, Almen, Bartlett of Dickey, Bartlett of Griggs,
Bean, Bennett, Brown, Budge, Camp, Carland, Carothers, Chaffee,
Clapp, Clark, Colton, Elliott, Flemington, Gayton, Harris, Haugen,
Holmes, Hoyt, Johnson, Lauder, Leach, Linwell, Mathews, Mc-
Hugh, McKenzie, Meacham, Miller, Moer, Nomland, Parsons of
Morton, Parsons of Rolette, Paulson, Peterson, Powles, Pollock,
Richardson, Robertson, Rolfe, Rowe, Sandager, Scott, Selby,
Shuman, Slotten, Spaulding, Stevens, Turner Wallace, Wellwood,
Williams-54.
Those voting for Mr. CARLAND were—
26
DEBATES OF THE CONVENTION.
1
Messrs. Appleton, Bell, Best, Blewett, Douglas, Fancher, Glick,
Gray, Griggs, Lowell, Marrinan, McBride, Noble, O'Brien, Powers,
Purcell-16.
Absent and not voting-
Messrs. Fay, Lohens, Hegge and Whipple-4.
Mr. JOHNSON. GENTLEMEN OF THE CONVENTION: I have
the honor to present to you your permanent President.
•
Mr. FANCHER. GENTLEMEN OF THE CONVENTION: I hardly
know how to find words in which to express my thanks for the
honor you have conferred on me, in electing me the President of
this magnificent Convention. When I look around I see so many
abler men, who could certainly preside over your deliberations much
more brilliantly; nevertheless, for some considerable time we are
told man has earned his bread by the sweat of his brow, and I
have some reason to believe this. Certainly I do not expect to
enjoy the distinction and advantage to be derived from presiding
over this Convention, without endeavoring by all legitimate
means to promote and advance its usefulness and efficiency. As
a presiding officer I cannot promise you much. I am not very
well versed in parliamentary rules, but I think I will venture to
promise to do my best to please you, to endeavor to carry out your
wishes, and to assist you to embody in this Constitution for North
Dakota, the sound judgment and the level-headedness of the whole
people of North Dakota, and not to foster the interests of any
man or particular class of men. My experience as a presiding
officer has been exceedingly limited, and I therefore pray your pa-
tience and kind indulgence during the first days of the session.
The expert parliamentarians on the floor will remember that there
was a time when they, too, were fresh and green in the knowledge
of parliamentary forms. If, after some experience, I shall succeed
in meeting your approval, the end attained will have justified you
in your action here to-day. If I shall be so unfortunate as to fail,
I do most solemly assure you it shall not have been my fault but
my misfortune, for I will make the effort. And now gentlemen,
not according to custom and due form, but in simple truth and
sincerity, again I thank you.
Mr. WILLIAMS moved that a committee of seven be ap-
pointed on rules.
Seconded by Mr. LAUDER, and carried.
The committee was appointed as follows: WILLIAMS of Bur-
leigh, PARSONS of Morton, TURNER of Bottineau, CARLAND of Bur-
DEBATES OF THE CONVENTION.
27
leigh, ALLIN of Walsh, STEVENS of Ransom and JOHNSON of
Nelson.
Adjourned to 2 o'clock p. m., July 6th.
THIRD DAY.
BISMARCK, Saturday, July 6, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
A QUESTION OF PRIVILEGE.
Mr. JOHNSON said: Mr. PRESIDENT AND GENTLEMEN OF THE
CONVENTION. Yesterday we extended the privileges of the floor
of this House to the representatives of the press. Certain repre-
sentatives of the press availed themselves of that privilege to
appear on this floor and lay copies of their papers before every
member of the Convention. I hold in my hand a paper called the
Devils Lake Capital, published in Devils Lake. It is on the table
of every member here. This paper is published by one Marshall
McClure. Turning to the editorial page, the first article in the
first column casts a slur on the PRESIDENT of this body, and on
other persons connected and unconnected with this Convention.
Now gentlemen, we owe something to the dignity of the State of
North Dakota. It was a great privilege—something to be treated
with proper respect-the invitation to the floor of this House.
That article laid before our faces is not in accordance with my
idea of proper courtesy. I hold that the press should be perfectly
free and untramelled, and I hold that representatives of the press.
on this floor have the privilege of writing and sending to their
papers and publishing anything which their judgment dictates as
proper. We should not wince under the lash of proper criticism.
I have been criticised many times, and I have been flattered also
by the press. I cannot say that I have ever derived any benefit
from the flattery I have received, but I can think of a great many
instances where I was benefitted by criticism, for criticisms have
28
DEBATES OF THE CONVENTION.
usually some foundation of truth. Almost always the criticism.
of the newspapers of the political party opposed to that to which
I belong, has been true and I have endeavored with proper
humility to study the weaknesses pointed out and improve upon
them. But when it comes to abusing the courtesy which we have
extended to the press, by members of the press coming before
the Convention and laying on the desk of every member an article
which is unkind and false, reflecting upon a member of this House,
I say that it is a blow at the dignity and respect which this Con-
vention should maintain. There was no excuse at the time it was
laid before us. The elevation of Mr. FANCHER to the Chair should
place him beyond such criticism. He was entitled then to respect.
My own bitter disappointment should entitle me to silence and
sympathy. As to the charge about my brother, I have a brother
in Fargo who is an honor to the Republican party and the profes-
sion of law. A report went out some time ago when they were
engaged in one of their bitter factional fights, to the St. Paul
Globe, characterizing my brother as an anarchist. In the mean-
time he wrote to the proprietors of the paper and demanded first
a retraction of the article, or second the name of the correspon-
dent or third to stand a libel suit. As fast as the mails could
carry it the name of the author of the article came that of Major
Edwards. My brother thought that the probabilities of getting a
judgment were good, but the probabilities of realizing on it were
not worth the paper on which it would be written, and he dropped
the matter there. I have prepared this resolution, and I move
its adoption:
Resolved, That the privileges of the floor heretofore extended to all repre-
sentatives of the press be withdrawn from one Marshall McClure.
Mr. McHUGH. I move that the resolution be laid on the
table. This paper is dated July 2d and the criticism came before
the Convention was organized.
Mr. WALLACE seconded Mr. JOHNSON's resolution, and Mr. MOER
seconded Mr. MCHUGH'S.
The motion to lay on the table was carried.
Mr. TURNER. I move that we do now adopt the Constitution
of the United States.
Seconded.
Mr. PURCELL. Before we do that we want a proper organiza-
tion. I think it is proper first to proceed to the election of officers.
DEBATES OF THE CONVENTION.
29
Decided by the Chair that the point of order raised by Mr. Pur-
CELL was well taken.
THE RULES OF THE HOUSE.
Mr. CARLAND. I am directed by the Committee on Rules to
submit the report of that committee.
The rules were read.
Mr. WALLACE. It seems to me that we should adopt that
part of the rules which refers to committees, so that the President
may appoint his committees. It will save time if nothing else for
us to do that. I move that the report be adopted so far as it re-
fers to the committees.
Motion seconded by Mr. POLLOCK.
Mr. SCOTT. It seems to me that the amendment should not
prevail. The report is lenghty and we shall need to give it a good
deal of attention. I see no reason for adopting the most impor-
tant part of the report-a part which will require more considera-
tion of the individual members of the convention than any other
part.
Mr. WILLIAMS. It seems to me that it would be proper to
lay the report over till Monday and act on it as a whole.
Mr. PURCELL. I think that we might adopt that part of the
report which refers to the officers of this body. A certain part of
the rules refers to officers that we shall have. It must be apparent
to all present that we must have these officers and we can act in
regard to this matter now. If it would be in order I would move
that that portion of the rules which refers to officers be adopted.
Seconded.
Mr. PARSONS of Morton. Mr. PRESIDENT: I hope that both
the amendments will prevail. A good deal more than these am-
endments include might be adopted without doing any harm.
Perhaps three-fourths of the matter in these proposed rules is
unobjectionable, and if the Secretary will read the report over rule
by rule, and if any one objects to any rule it can be marked and held
over for discussion, and what is not objected to can be adopted.
If there are rules here that there is no objection to, why not
expedite matters by settling them now?
Mr. CAMP called for a division of the question.
Mr. WALLACE. There is a certain element here who are wil-
ling to go before the people as obstructionists. If they can see
any good reason why we should delay our business in order that a
30
DEBATES OF THE CONVENTION.
certain faction may inaugurate what, as regards the interests of
that faction, I regard as very insignificant, I cannot. Can the
Convention do this with propriety and dignity? We have been
confronted with an attempt by some to delay matters a half day.
By a motion made yesterday we have lost this morning's session.
By a motion now before the house we are in danger of loosing still
more time, and if this course of procedure goes on we shall see
snow flying before we get out of business. I think it is time to
call a halt in this business.
Mr. MILLER. I am just as anxious to get through with this
work as anyone else can be. But I can't carry in my mind that
lenghty report and know if I want to vote for it. I shall undoubt-
edly be glad to vote for a large portion of it. But I cannot carry
it in my mind. We will have ten times the delay during this ses-
sion if we don't print that report before it is acted on.
It is a
saving of time to have it printed before we act on it. I dislike to
see it passed in fragments. We want to know what the rules and
the committees are, and we can do that more expeditiously and
save time if the amendments are lost.
•
Mr. SPALDING. In regard to the adoption of any part of
the report it seems to me that the foundation of our work is the
committees. The work of the Constitutional Conventions in the
past has been done by the committees. In some there have been
twenty or thirty or forty committees and we must scan these con-
stitutions and determine what committees are wanted. It is true
that the committee that has handed in this report has done so, but
it is our duty to do it likewise. We may decide that it is not
policy to have a committee on a certain subject and the only time
to discuss that is when the committees are to be decided upon. I
should be in favor of taking this up committee by committee and
thus lay the foundation for the work that is before us. These
committees and their character will determine our work, and it is
most important that the foundation should be well laid. There
should not be two committees on the same subject which will con-
flict with each other.
Mr. PARSONS of Morton. I heartily agree with the gentle-
man from Cass, and the only difference between us is the question
as to the time when we shall discuss these committees. I don't
know that it would take any longer to discuss this this afternoon.
than on Monday or Tuesday. The Secretary can read out each
committee, one at a time, and if you have any objection to the
DEBATES OF THE CONVENTION.
31
committee, vote it down. Let us have just as full a consideration
of this matter now as we can have at any other time. I don't
think there is a gentleman here but can understand one commit.
tee at a time, and I can't see how anyone can be misled. The
President of the Convention then can be working on the commit-
tees and we can get to work much sooner.
Mr. CLAPP. I would suggest that the gentleman who has just
spoken has the advantage of the majority of us, but if as he has just
suggested we take the committees one by one, we might allow one
committee to pass and forget that it had been provided for. Un-
less we have them before us we can't remember what has gone
before.
Mr. STEVENS. As one of the members of the Committee on
Rules it would be gratifying to me at least, if this Convention
would adopt the original resolution. First, so that each member
might have an opportunity to thoroughly study each rule and all
the committes provided for. The committee, while it has pro-
vided for certain officers of this Convention, has not provided
for any clerkships of committees. The Convention after having
studied the rules may deem it necessary to do so, and it might be
put into the report and adopted at the same time with the balance,
and it would be a part of the question to be considered.
The original resolution was adopted with the amendment that
that part of the report be adopted which refers to officers of the
Convention.
Adjourned until 2 o'clock p. m., July 8th.
32
DEBATES OF THE CONVENTION.
FIFTH DAY.
BISMARCK, Monday, July 8, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. WILLIAMS. I move that we proceed to the perfection of
the permanent organization by the election of officers.
Seconded by Mr. STEVENS, and carried.
The officers were then elected as follows:
Chief Clerk-J. G. HAMILTON.
Sargeant-at-Arms-FRED FALLEY.
Enrolling and Engrossing Clerk-C. C. Bowsfield.
Messenger-E. W. KNIGHT.
Door Keeper-GEORGE WENTZ.
Watchman-J. S. WEISER.
Stenographer-R. M. TUTTLE.
Chaplain-GEORGE KLINE.
Pages ARTHUR LINN, HARRY G. WARD, CHARLES W. CONROY
and CHARLES LAUDER.
Mr. SELBY. I wish to introduce the following resolution.
WHEREAS, The organization of the Constitutional Convention duly assem-
bled for the purpose of framing a Constitution for the proposed State of North
Dakota is now perfected, therefore
Resolved, That we, the delegates of said Convention, for and on behalf of
the people of said proposed State of North Dakota do hereby declare that we
hereby adopt the Constitution of the United States.
Seconded and adopted.
JOINT COMMISSION.
Mr. SPALDING. In view of the fact that South Dakota has
provided for a Joint Commission of seven on their part to meet
with a like committee from North Dakota, which committee I
understand is now on the way here, I move that when the commit-
tee is appointed as provided for in the Enabling Act to meet with
DEBATES OF THE CONVENTION.
33
the South Dakota committee, it consist of seven members, and
that they be instructed to employ such clerical assistance as is
necessary.
Seconded and carried.
Mr. CARLAND. Do I understand that the resolution just
passed fixed the number of the committee?
Mr. PRESIDENT. Yes, sir.
Mr. CARLAND. Then I offer the following resolution:
Resolved, That the President of this Convention appoint seven members
to act as members of the Joint Commission to be appointed by the Constitu-
tional Conventions of North and South Dakota for the purpose of making an
equitable division of the property belonging to the Territory of Dakota, and to
agree on the debts and liabilities of the said territory which shall be assumed
and paid by the said States of North and South Dakota.
Seconded by Mr. BUDGE and carried.
Mr. MILLER called to the Chair.
Mr. WILLIAMS. I move that we proceed to consider the
report of the Committee on Rules.
Seconded and carried.
The Convention then resolved itself into a Committee of the
Whole for the purpose of considering the motion.
Mr. SCOTT called to the Chair.
Mr. FANCHER. I would like that some gentleman of the
committee explain to the Convention why it should be required
that not less than ten must rise before the previous question can
be put.
Mr. CARLAND. I don't know that there is any particular
reason why the number ten should be inserted in the rule. It was
thought that that would be a sufficient number of delegates with-
out whom the previous question should not be called, so that the
business of the Convention should not be interrupted continually
by persons calling the previous question. The committee thought
that fixing the number at ten would about answer the purpose
of this body.
The rules were adopted.
Mr. MILLER. May I ask the Chair about how long the Pres-
ident will take to make up the committees?
Mr. FANCHER. The President desires to take as much time
as may be necessary to make good committees, and while I hope
to be able to announce the committees within a couple of days, it
may take a little longer.
3
34
DEBATES OF THE CONVENTION.
Mr. MILLER. I move that when this Convention adjourn this
afternoon it adjourns till next Thursday afternoon. I do this for
the reason that I think there is nothing to be accomplished dur-
ing the interval when the committees are being made up. Of
course we might introduce proposed clauses into the Constitution,
but they would have to be laid on the table because there would
be no committees to refer them to. I move that when this Con-
vention adjourns it adjourns to next Thursday at 2 p. m.
Seconded and carried.
On invitation HENRY B. BLACKWELL of Boston, then addressed
the Convention as follows:
GENTLEMEN OF THE CONVENTION: I thank you very much for your invita-
tion to address you on a matter of the greatest importance to the people of
this new State. I should not venture to do so if I did not come credited as the
Secretary of the Woman Suffrage Association of the United States, and besides
that I bring with me letters from distinguished statesmen whom you all res-
pect, written for the purpose of presenting the matter to this Convention. I
have with me letters introducing me to your consideration from Senator Davis
of Minnesota, and United States Senator Hoar of Massachussetts. I bring
with me letters which I will lay before you in printed form when you re-assem-
ble, from the Governor of Wyoming, and the United States Delegate of Wy-
oming. You are all aware that Wyoming has had full Woman Suffrage for
twenty years, and these gentlemen, Governor Warren who has been reap-
pointed Governor, and has grown up with the Territory, and is not a man im-
ported from the east for political purposes, but a man who is identified with the
Territory-and Judge Cary, who was the Representative in Congress for a
number of years-certify that Woman Suffrage, full Woman Suffrage, exist-
ing for twenty years in the Territory of Wyoming, has commended itself to the
favor of both parties. When the Territory of Wyoming presents its Constitu-
tion to Congress, the Convention for framing that Constitution being called for
next September, it will present a Woman Suffrage Constitution and ask to be
admitted as a Woman Suffrage State. I have with me letters that I will lay
before you, letters from the Governor of Kansas, from the Attorney General
of Kansas, and from the three Supreme Court Judges of the State, certifying
to the good results of three years of Woman Suffrage in Kansas-to its ap-
proval by men of both parties, and to their belief that public sentiment has
ripened for the extension of full suffrage to women as a result of three years
experience of partial suffrage. I will place before you a letter expressing the
earnest wish of Governor Ames of Massachuessetts, based on the voting of
women in the municipal elections, that the suffrage will be extended there. I
have also a letter from United States Senator Hoar expressing his
earnest hope that if public opinion is ripe these four Territories
will insert a provision in their Constitutions, each and all guaranteing
impartial suffrage without regard to sex, or that if public sentiment is not thus
ripe, that at least they will provide that the Legislature may hereafter at its
discretion extend the suffrage to all citizens without regard to sex, so that the
DEBATES OF THE CONVENTION.
35
female citizens of North Dakota may not be deprived in your new Constitution
of the right which they have possessed hitherto to appeal to the Legislature
for their right to equal political representation with men. I have also a letter
from the son of the great anti-slavery leader of the United States-the man
who originated and led to victory that great movement which emancipated
millions of slaves-William Lloyd Garrison-expressing the earnest hope that
these new territories would give woman the right to vote.
I am not here to advocate a movement which is either new or strange. We
have been urging this movement for fifty years. As a result of this agitation,
fifteen states to-day have extended school suffrage to women on terms more or
less restricted. Your own territory has given women a school suffrage. As a
result of our agitation we have obtained full municipal suffrage in Kansas, and
municipal suffrage in Kansas means in all towns containing over two hundred
inhabitants. So you see there has already been a movement in the shape of
actual legislation. Not only so, but you know that in the Territory of Utah and
Washington, women have had full suffrage. In Utah a large majority of the
women were Mormons, and believed in polygamy as a religious rite. For the
purpose of crippling polygamy a bill was introduced in Congress repealing or
prohibiting woman suffrage in that territory. It was an exceptional case of
woman suffrage extinguished by Congress in that territory. But it was pro-
hibited not because the women had failed to give satisfaction as voters to the
community in which they lived, but because they voted in the direction that
Congress regarded as being a pernicious religious doctrine. Governor Ames
in his letter refers to the recent municipal election in Boston where twenty
thousand women went up, paid their poll tax to qualify themselves, and then
voted in the worst storm of last winter. A large proportion of the men
stayed away from the polls, but 95 per cent. of the 20,000 women that registered
went to the polls and voted, and received the utmost respect in every
polling place in the city. Then when we cross the border we find women,
unmarried women and widows, in the Canadian provinces-unmarried women
and widows alone who have been enfranchised in school matters and in all mu-
nicipal matters, in the Territories of New Brunswick, Ontario and Manitoba,
and one other of the British territories. In England women have had munici-
pal suffrage since 1869, and we have the testimony of the leaders of both po-
litical parties that it has been a great public benefit. Mr. Gladstone says
women have exercised the franchise with great advantage. Mr. Disraeli was
the hearty supporter of woman suffrage, and Lord Salisbury testifies that he
hopes the day will soon come when the full parliamentary suffrage will extend
to the women of Great Britain. It is not a mere theory that I am here to ad-
vocate. Here are four great territories extending from the Missouri river to
the Pacific ocean, about to come in as states. Then there are two other terri-
tories preparing. It is going to be a great revolution in the political and so-
cial affairs of the country, and it seems to the friends of universal suffrage that
it is a crisis in which it is desirable that you should give your most careful
consideration to this question-whether it is possible for you to make a Con-
stitution in accordance with the principles of the Declaration of Independ-
ence without giving women a vote. We argue that it is right under the Decla-
ration of Independence for women to be voters. "We hold these truths to be
self-evident, that all men are created equal; that they are endowed by their
36
DEBATES OF THE CONVENTION.
Creator with certain inalienable rights; that among these are life, liberty and
the pursuit of happiness; that to secure these rights governments are insti-
tuted by men, deriving their just powers from the consent of the governed."
Is there anyone here who will doubt that a woman has the same right to life,
liberty and the pursuit of happiness as a man? But, said our fathers, to se-
cure those rights, the rights of women equally with men, governments are in-
stituted, which derive their just rights from the governed. One-half of the
governed citizens are women, and it seems to me that the principles of the Dec-
laration of Independence are not fully complied with so long as women are ex-
cluded from political representation.
But it may be said that women have not been represented under this dec-
laration. I grant it. There have been otl er exceptions too. Look with me at
the history of suffrage in this country. In the beginning of political society,
which is a state of barbarism, we find no such thing as voting. The strongest
man or the wisest woman, as has often happened, is recognized as the sole
source of political power, and the whole community obey the laws and regula-
tions made by the sovereign power, the one man power. But it was found very
early in history that human nature is not to be trusted with unlimited power,
and so the despot, instead of becoming the protector, tends to become the op-
pressor of the people. Very soon in the history of civilization, in order to
guard against that, a class of educated men come forward and are given some
political power rs a counterpoise to the one man power, or the second stage
has been to supplant the absolute monarch of one by an aristocracy of birth.
Any form of government is better than none, for order is heaven's first law, and
despotism is better than barbarism. Under the aristocracy of birth the move-
ment of society goes on, and gradually the political circle widens, and the
aristocracy of birth gives place to the aristocracy of wealth. That is to say,
a political society where a great many rich men do all the work and the rest of
the men have nothing to do, but obey. The foremost nations of the world had
only got along as far as the aristocracy of wealth. England and Holland were
aristocracies of wealth-rich men's governments, and you know that we are the
creatures of habit and because we have not seen a thing we think it is not
practicable. But when our fathers took up arms it was because they found
they were oppressed by the British parliament. In the beginning the great
monarchies claimed to own this country, and they divided it out among their
own retainers, and they intended to build up here an aristocracy of wealth and
birth just as they had at home. But fortunately for the world, this country
was so destined that its rich nobility could not make it profitable to hold
it, and it rapidly passed into the hands of men who cultivated it, and
for the first time in American history the soil came into the possession
of the farmers, and when these farmers, accustomed to self government
independent, knowing their own land and homes, when they found the British
Government hostile to the interests of this country, they set up a standard of
revolution and demanded independence, and put forth this Declaration of In-
dependence as the principle upon which their government should be founded.
I have already stated that principle. Those who obey the laws should have a
voice in their enactment. Those who pay taxes should have a voice in stating
what the amount of the taxes shall be. But when the war of the revolution
ended, and they undertook to organize their State Governments, they did not
DEBATES OF THE CONVENTION.
37
carry out the principles of the Declaration of Independence, and they organ-
ized their State Governments on the basis of excluding from political power
the great body of men through whom their independence had been obtained.
A majority of the men who had fought the battles found themselves deprived
of political power, but scarc-ly had the guns of the revolution ceased firing
when the old Democratic party demanded suffrage for every white man under
the Declaration of Independence. They said that a man may be poor, but
honest, and intelligent and virtuous. He has a right, and it is for his interest
to have the ballot. The Federal party which had carried the war to a conclu-
sion, said “No; suffrage is for gentlemen, scholars, college graduates. The
hard-handed sons of toil have no right to it," and so the battle raged. Old
Benjamin Franklin took a hearts interest in property qualification in voting.
The fine sense of justice in the minds of the people rallied to the Democratic
party, and when the war of slavery broke out, only two states in the Union re-
tained this property qualification-the State of South Carolina and the State
of Rhode Island, and within the past year the State of Rhode Island has wiped
it out.
Our fathers said that this was a white man's government. Why? Because
in every state but one negroes were held as slaves, and it is impossible that a
slave should be a voter, for he is property himself; but scarcely had the ballot
been put in the hands of every white man, when good men began to work for
the emancipation of slaves, and the South, taking alarm at what they conceived
to be a blow at the rights of property, set up the standard of rebellion. The
Democratic party obtained the control of the government, because it
had the sagacity to put the ballot in the hands of the workingmen,
but they sided with the south. Then the great Republican party came forward
within the recollection of many of the older men of this Convention. They
undertook to extend freedom to the negroes. The Republican party fought
out the battle of the Union, emancipated the slaves and wrought into the Con-
stitution a provision that hereafter no man shall be deprived of his ballot on
account of race or color or previous condition of servitude. So they put the
ballot in the hands of 800,000 emancipated slaves. They did it as a necessity,
for they were the only class of citizens in the south who were loyal to the flag.
First we were a monarchy governed by George; then an aristocracy of wealth
under the old Federal party; then an aristocracy of race under the old Dem-
ocratic party, and in your own recollection we have taken another step, and
become an aristocracy of sex, where every man is a man, and every woman a sub-
ject. You North Dakota men know by your own hard experience that we have
not yet attained to a perfect political condition-that there are wrongs to be
remedied and rights to be secured, and I believe you will agree with me that
no government can be considered perfectly Republican or Democratic so long
as one-half of its citizens are governed without their consent in violation of
the principles of the Declaration of Independence. I deem suffrage for
women as their right, and I appeal to these new Territories, just going into
the sisterhood of States, to have the courage of their convictions and set the
example and lead the way in the political progress of this country. I want to
say to you, in the words of Johnson, "that in all time and through all human
story, the path of justice is the way to glory.” If you put into your Cotstitu-
tion suffrage for all citizens of sound mind and mature age, and not convicted
38
DEBATES OF THE CONVENTION.
of crime, without regard to sex, a hundred thousand intelligent citizens will
come here who will select your State in place of South Dakota-in place of every
other State, because they know you respect women. When I say this I say
what I think I know, for all over the eastern States we have a large number of
male and female citizens who are looking to your action with the most earnest
solicitude, and in whose behalf I am addressing you. They are waiting to see
which of these new States will have the courage and the wisdom to plant itself
on the principle of true democracy, and put the ballot into the hands of all of
its educated and intelligent men and women.
But, gentlemen, it is the highest argument in the world, that it is right.
Political justice always pays. I remind you that in the great future, as has
been well said, you have to watch the movements of these great corporations,
not with hostility, but with caution, and I want to remind you that the power
of money is a great and terrible danger to American politics. I want to remind
you that it is a fact in history that the power of money in elections has been in
proportion to the limitation of the suffrage. Two generations ago in England
only rich men could vote, and the maxim of Sir Richard Walpole was that
every man has his price. Thank God that in this country, with the widely ex-
tended suffrage which we owe to the two great parties of the country, it is no
longer true that a man can only occupy his seat in our Legislative halls by
buying the electors. I don't believe that there is a man in this hall who has
used one dollar corruptly, but there will be struggles here as elsewhere where
money can be corruptly used, and if you want to guard against that you should
extend the franchise to women, for they are the class who are the most
secluded from the corrupt influences of the politicians. They are in your
homes, not subject to the influences of professional and corrupt agencies, and
they will strengthen your power to get the highest expression of the sentiment
of the community. You never can get that fully and thoroughly unless you
have the votes of women as well as men. Woman Suffrage does not mean to
antagonize the sexes-God forbid. It does not mean to make women masculine.
Woman Suffrage means the co-operation of the good man and woman for the
highest interests of both and of all. It means full representation of the home-
the virtuous American home-in politics and in the councils of the nation, and
we never can have that and a full and adequate representation of the
people's will until you have the united suffrage of men and women.
But some want to be sure that it is safe-they want to know if the
bad women won't vote? Women and men are made by God unlike
in character and in social position for wise and good purposes, and
they cannot act and do not act alike in any relation. The woman will repre-
sent the woman's view-the view that a woman naturally takes as a wife, of the
matter; the man will represent the man's view and the two will together have the
full view. Women have a better instinctive view of character. They are better
judges of character on the average than men, and the Bible says that when the
righteous rule the people rejoice. I have the testimony of the Supreme Court
Judges of Kansas that the women have aided the men in selecting the best
candidates for office in that State.
I want to prove to you that Woman's Suffrage is not only right but safe, and
it is a great political reform. It is a fact known to all political students that
every class that votes makes itself felt in the government. For instance, a cer-
DEBATES OF THE CONVENTION.
39
tain district in New York City sent to Congress the honorable John Morrissey.
He was a gambler and a prize fighter. He was sent to Congress for that reason.
He was the representative of the male roughs who were like himself and who
lived in that district. He was there to see to it that Congress made and en-
forced no law against gambling. Even gamblers make themselves felt in the
government. When I was in Cincinnati in business, I used to travel in the
Wabash valley-then the frontier of civilization, and I found that horse steal-
ing was a fashionable vice. The horse thieves had united, combined and con-
trived to elect the judge and sheriff and pack the jury, and when the honest
farmer caught a rascal in the act of stealing his horse, nine times out of ten the
jailor forgot to lock the door of the jail. Sometimes the thief would be brought
before the court, and the judge would charge upon some technicality in favor
of the prisoner, and the jury would bring in a verdict of not guilty. There
was no justice for the farmers, and they were forced to organize bands of regu-
lators and hang horse thieves in order to put down the fashionable vice of
horse stealing. I am not here to advocate the giving of suffrage to gamblers
and horse thieves. They have it already, and they vote early and often if they
have a chance. I am here to advocate the extension of suffrage to the women of
the country. What are the peculiarities in which women differ from men? You
have a masculine government, and it possesses all the virtues and qualities
that are masculine. You have none of the distinctively feminine qualities in
that government. In the first place the women are more peaceable than men;
of course there are quarrelsome women and peaceable men. Do you wonder
that there are wars between nations-that there is a bitterness of strife between
political parties? You have brought into your government only the masculine
element. Woman Suffrage means peace, for the women are the peace-loving
members of the community. They are more temperate than men. I am not
here to discuss high-license or prohibition-I am not here to advocate either.
I don't care what your views are on this subject. Every good man is in favor
of temperance-every good man desires such a policy as is calculated to di-
minish intemperance. When you remember that only one woman in fifty
drinks, and every other man drinks more or less, you will see that you cannot
have good, sensible, honest laws on this matter, unless you bring in the tem-
perate class which comprise the women of the land. I found in Massachusetts
a strict prohibitory law. I had not been in Boston a month when I found
liquor sold in every street in the city. The Chief of Police was making a for-
tune-the police were notoriously bribed until the scandal became repug-
nant, and the people established a license law. That law provided for a great
many restrictions; it said that no saloon must keep open on a Sunday; the
screens shall not be up; the liquor shall not be sold to minors; and yet every
one of these provisions is violated to-day, and the license law is no more fully
or faithfully enforced than the old prohibition law was. So in Massachu-
setts prohibition did not prohibit, and restriction does not restrict. It is to
the interest of the authorities to wink at the violation of the law. I am like
General Grant in this-I believe that the best way to secure the repeal of a
bad law is to enforce it. Put the women behind the temperance laws, no mat-
ter what they are. If the law does not work well repeal it or change it until
you find what is the best way to handle it. You will never do away with the
40
DEBATES OF THE CONVENTION.
terrible vice of intemperance that degrades our homes until the woman has a
vote as well as the man.
The highest argument in their favor is that women are law-abiding citi-
zens. I quote the figures from the police records of the United States, north
and south, east and west, when I say that you will find on examination that
more than nine out of ten of the convictions that are had for the violation of
law are the convictions of men, and less than one out of ten are women. These
are undisputed facts. If you have Woman Suffrage you will bring into the
government that class of voters who are instinctively on the side of good gov-
ernment, and when I have said that I have said the greatest thing that can
be said for Woman Suffrage. Women are more peaceable, more temperate,
more just, more economical and more law-abiding than men. Talk about the
economy of men-see what privation and suffering the women have endured,
coming to Dakota with small means, living on these bleak prairies-how they
have kept their children and their homes together, and helped to build up this
State to be great and prosperous hereafter. Is it possible that the men of Da-
kota who have had women by their sides during the frontier period of their
lives will go back on the women to-day-put them below the negro, by saying
that every man shall be the political superior of the noblest and most intelli-
gent women? I won't believe it until I see it. I come here believing fully
that you will put in this Constitution this provision-that the people of North
Dakota-that citizens of sound mind and mature age, not convicted of crime,
without regard to sex, shall be the voters of this commonwealth, and when you
have done it you will have differentiated yourselves from South Dakota-per-
haps from the other territories that may not do it; and if you do it will bring
into your borders the very class of people which you desire and need, to make
this wilderness blossom as the rose. It is a great opportunity—it comes only
once. You will never go back into a territorial condition; you will become a
state forever, and in building up this commonwealth, for the sake of all hu-
manity build it on the principles of the Declaration of Independence, and give
the ballot to women. I trust that North Dakota may come into the Union
leading Wyoming, so that Wyoming may not be the first Woman Suffrage
State, as it is bound to be if you don't anticipate her. Wyoming has lived for
twenty years on the glory and prominence she has gained in this matter. She
would have died out before this if it had not been for this feature of her gov-
ernment.
I have talked to you too long. I desire that if there are any difficulties or
objections which are in your minds, that you will ask me any question that you
may wish, and give me a chance to explain. In a great subject like this there
is always a great deal that I forget to say, and that I have not time to say. I
desire to express a hope that you will not submit this as a separate measure to
be voted upon. You will probably submit a prohibition amendment. Now
these are two distinct matters, and I don't want them to be submitted together.
If you put the word "male" into the Constitution and then submit it to the
voters, it is very likely to be voted down. It will not receive that consideration
which its importance demands. If you do not want to put full female suffrage
in the Constitution, put in as much as Kansas has-put in municipal suffrage
for women, and at least put in a provision empowering the Legislature here-
after at its discretion to extend the suffrage without regard to sex. Three years
DEBATES OF THE CONVENTION.
41
ago the Legislature of Dakota passed a woman suffrage law, carrying it through
both houses, but it was vetoed by Governor Pierce. He was appointed to exer-
cise his judgment and conscience, and doubtless he did what he thought was
right. Give us Woman Suffrage in the body of the Constitution or a clause
empowering the Legislature to take that step when the judgement of the public
will sustain it. I thank you for the honor of addressing this historic assembly
on this historic occasion, and I trust you will give Woman Suffrage candid and
earnest and enthusiastic support. When we have organized on these great
plains the leading communities of America, we can all exclaim with Longfellow
in his apostrophe to the Union:
Thou, too, sail on, O Ship of State!
Sail on O UNION, strong and great!
Humanity with all its fears,
With all the hopes of future years,
Is hanging breathless on thy fate!
We know what Master laid thy keel,
What Workmen wrought thy ribs of steel,
Who made each mast, and sail, and rope,
What anvils rang, what hammers beat,
In what a forge and what a heat
Were shaped the anchors of thy hope!
Fear not each sudden sound and shock,
"Tis of the wave and not the rock;
"Tis but the flapping of the sail,
And not a rent made by the gale!
In spite of rock and tempest's roar,
In spite of false lights on the shore,
Sail on, nor fear to breast the sea!
Our hearts, our hopes, are all with thee,
Our hearts, our hopes, our prayers, our tears,
Our faith triumphant o'er our fears,
Are all with thee—are all with thee!
Mr. STEVENS. I move to adjourn.
The motion prevailed and the Convention adjourned.
EIGHTH DAY.
BISMARCK, Thursday, July 11, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. PRESIDENT announced the committees which he had ap-
pointed, as follows:
Printing-Roger Allin, chairman, Walsh; C. P. Parsons, Rolette; C. V.
Brown, Wells; J. B. Gayton, Emmons; W. J. Clapp, Cass.
42
DEBATES OF THE CONVENTION.
Reporting and Publication-J. F. Selby, chairman, Traill; Andrew Blew-
ett, Stutsman; J. Wellwood, Barnes; O. G. Meacham, Foster, A. S. Parsons,
Morton.
Accounts and Expenses-O. G. Meacham, chairman, Foster; E. W. Paul-
son, Traill; A. W. Hoyt, Morton; B. R. Glick, Cavalier; M. F. Hege, Traill;
Edward Lohnes, Ramsey; Elmer Elliott, Barnes.
Preamble and Bill of Rights-R. N. Stevens, chairman, Ransom; Elmer
Elliott, Barnes; A. D. Flemington, Dickey; S. H. Moer, LaMoure; Joseph
Powles, Cavalier: M. V. Linwell, Nelson; J. E. Carland, Burleigh; E. W.
Chaffee, Cass; Ezra Turner, Bottineau.
Legislative Department-E. A. Williams, chairman, Burleigh; Roger
Allin, Walsh; W. E. Purcell, Richland; Addison Leach, Cass; E. S. Rolfe,
Benson; R. B. Richardson, Pembina; R. N. Stevens, Ransom; Andrew Slotten,
Richland; J. W. Scott, Barnes; Knud Nomland, Traill; A. F. Appleton, Pem-
bina; William Budge, Grand Forks; W. H. Rowe, Dickey.
Executive-W. H. Rowe, chairman, Dickey; John Shuman, Sargent; J. H.
Mathews, Grand Forks; H. F. Miller, Cass; Alexander Griggs, Grand Forks;
David Bartlett, Griggs; J. A. Douglass, Walsh; J. L. Colton, Ward; William
Ray, Stark.
Judicial Department-John E. Carland, chairman, Burleigh; W. S.
Lauder, Richland; David Bartlett, Griggs; J. F. Selby, Traill; R. M. Pollock,
Cass; J. F. O'Brien, Ramsey; B. F. Spalding, Cass; M. K. Marrinan, Walsh;
Richard Bennett, Grand Forks; S. H. Moer, LaMoure; V. B. Noble, Bottineau;
R. N. Stevens, Ransom; A. D. Robertson, Walsh; M. N. Johnson, Nelson; W.
H. Rowe, Dickey.
Elective Franchise-A. S. Parsons, chairman, Morton; Charles Carothers,
Grand Forks; Ezra Turner, Bottineau; R. M. Pollock, Cass; H. M. Clark,
Eddy; James Bell, Walsh; J. Wellwood, Barnes; G. H. Fay, McIntosh; M. F.
Hegge, Traill; O. G. Meacham, Foster; W. B. Best, Pembina; William Ray,
Stark; V. B. Noble, Bottineau.
Education—J. D. McKenzie, chairman, Sargent; H. M. Clark, Eddy; W.
J. Clapp, Cass; Elmer Elliott, Barnes; Charles Carothers, Grand Forks; J.
McBride, Cavalier; J. A. Douglas, Walsh.
Public Institutions and Buildings—H. F. Miller, chairman, Cass; A. O.
Whipple, Ramsey; Richard Bennett, Grand Forks; Joseph Powers, Sargent;
M. K. Marrinan, Walsh; J. W. Scott, Barnes; E. A. Williams, Burleigh; E. W.
Camp, Stutsman; A. W. Hoyt, Morton.
Public Debt and Public Works-E. D. Wallace, chairman, Steele; T. W.
Bean, Nelson; Knud Nomland, Traill; J. Lowell, Cass; H. L. Holmes, Pem-
bina; Alexander Griggs, Grand Forks; B. R. Glick, Cavalier; J. Powers, Sar-
gent; G. H. Fay, McIntosh.
Militia-P. McHugh, chairman, Cavalier; G. H. Fay, McIntosh; John
Almen, Walsh; Andrew Blewett, Stutsman; J. H. Mathews, Grand Forks.
County and Township Organizations—A. F. Appleton, chairman; Pem-
bina; T. W. Bean, Nelson; Enos Gray, Cass; E. S. Rolfe, Benson; J. McBride,
Cavalier; A. Sandager, Ransom; John Shuman, Sargent; E. W. Chaffee, Cass;
M. V. Linwell, Grand Forks.
Apportionment and Representation-Andrew Slotten, chairman, Rich-
land; H. L. Holmes, Pembina; A. F. Appleton, Pembina; P. McHugh, Cay-
DEBATES OF THE CONVENTION.
43
alier; J. L. Colton, Ward; Harvey Harris, Burleigh; A. S. Parsons, Morton; C.
V. Brown, Wells; L. D. Bartlett, Dickey; A. Sandager, Ransom; John Shuman,
Sargent; H. F. Miller, Cass; H. M. Peterson, Cass; W. J. Clapp, Cass; J.
Wellwood, Barnes; Andrew Blewett, Stutsman; E. S. Rolfe, Benson; E. D.
Wallace, Steele; Knud Nomland, Traill; William Budge, Grand Forks; J. H.
Mathews, Grand Forks; M. N. Johnson, Nelson; Edward Lohnes, Ramsey;
James Bell, Walsh; John Almen, Walsh.
Revenue and Taxation—J. L. Colton, chairman. Ward; W. S. Lauder,
Richland; M. F. Hegge, Traill; E. D. Wallace, Steele; Enos Gray, Cass; Har-
vey Harris, Burleigh; W. B. Best, Pembina; A. D. Robertson, Walsh; J. Mc-
Bride, Cavalier; E. M. Paulson, Traill; S. H. Moer, LaMoure; H. M. Peterson,
Cass; Joseph Powles, Cavalier; David Bartlett, Griggs; A. O. Whipple, Ram-
sey.
Municipal Corporations-Richard Bennett, chairman, Grand Forks; J.
Lowell, Cass; J. F. O'Brien, Ramsey; C. P. Parsons, Rolette; A. D. Fleming-
ton, Dickey; John Powers, Sargent; Addison Leach, Cass; J. F. Selby, Traill;
P. McHugh, Cavalier.
Corporations Other than Municipal—M. N. Johnson, chairman, Nelson;
W. E. Purcell, Richland; E. D. Wallace, Steele; Jacob Lowell, Cass; L. D.
Bartlett, Dickey; S. H. Moer, LaMoure; James Bell, Walsh; J. L. Colton,
Ward; A. S. Parsons, Morton.
Miscellaneous Subjects-W. E. Purcell, chairman, Richland; J. E. Car-
land, Burleigh; A. W. Hoyt, Morton; C. V. Brown, Wells; E. W. Chaffee,
Cass; A. P. Haugen, Grand Forks; M. K. Marrinan, Walsh.
Schedule-W. S. Lauder, chairman, Richland; H. F. Miller, Cass; J. B.
Gayton, Emmons; John Almen, Walsh; V. B. Noble, Bottineau; E. A. Wil-
liams, Burleigh; J. D. McKenzie, Sargent.
School and Public Lands—H. M. Clark, chairman, Eddy; B. F. Spald-
ing, Cass; T. W. Bean, Nelson; William Budge, Grand Forks; W. B. Best,
Pembina; William Ray, Stark; J. A. Douglas, Walsh; R. B. Richardson, Pem-
bina; Addison Leach, Cass; A. D. Robertson, Walsh; J. D. McKenzie, Sargent;
Roger Allin, Walsh; L. D. Bartlett, Dickey.
Temperance—A. P. Haugen, chairman, Grand Forks; L. D. Bartlett,
Dickey; R. M. Pollock, Cass; A. Blewett, Stutsman; Ezra Turner, Bottineau.
Revision and Adjustment-David Bartlett, chairman, Griggs; O. G.
Meacham, Foster; J. E. Carland, Burleigh; E. W. Camp, Stutsman; V. B.
Noble, Bottineau.
Impeachment and Removal from Office-Ezra Turner, chairman, Bot-
tineau; M. V. Linwell, Nelson; R. B. Richardson, Pembina; E. W. Paulson,
Traill; A. D. Flemington, Dickey; C. V. Brown, Wells; J. F. O'Brien, Ramsey.
Mr. WILLIAMS. I cannot see as that there is anything likely
to come up under our order of business this afternoon, and it seems
to me that it would be the proper thing for us to recognize that
Dakota has a Governor. Thus far we have not recognized our
territorial executive at all, and while he comes from South Dakota
I believe the people of North Dakota have the highest respect for
44
DEBATES OF THE CONVENTION.
$
him, and therefore I move that Governor Mellette be requested
to address us at this time.
Seconded by Mr. BARTLETT of Dickey, and carried.
A committee consisting of Messrs. ROBERTSON, STEVENS and
MOER was appointed to notify Governor MELLETTE of the resolu-
tion.
THE GOVERNOR'S REMARKS.
On Governor MELLETTE's arrival, President FANCHER said: A
pleasant duty devolves upon me. I have the pleasure of present-
ing to you the gentleman who enjoys undoubtedly the distinction
of being the last Governor of united Dakota. He needs no eulogy
from me.
I have simply to mention his name-the Honorable
A. C. MELLETTE of Watertown.
Governor MELLETTE said:
MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION: I assure you that
I esteem it an honor to be invited to appear before you upon this occasion. I
regret exceedingly that I have not some communication to make to you that
might possibly aid you in your labors. To be called upon at a moment's notice
to appear before a body of gentlemen of this character, is to me embarrassing.
The business of a legislator is under any circumstances, the most honorable duty
to which a citizen can be called, especially in a republican form of government
where the laws are made absolutely by the legislators. But the duty of creating
the fundamental law of the state-the law which is not easily set aside which
is to be the basis of all legislation in the future, until it is changed by the peo-
ple, is a high honor indeed, and that is the work which you, gentlemen of this
Convention, have to perform. Being called forth from the body of the various
constituencies which you represent, you are engaged in the work of establish-
ing a municipal government. It is your prerogative to lay the foundations of
future legislation of the state, and after it shall have been ratified by the
people it will be the law of the state until again changed by a similar body,
or by the people themselves. It is as you have doubtless considered
before this time, an important trust. Your work is not to be set aside
by each succeeding Legislature. The people alone can undo it after
they have once sanctioned your work. Your work will probably be sanctioned.
That fact adds to the importance of your duties. The short time that will be
left for investigation of your work, and the fact that your constituents are anx-
ious to assume the duties of citizens of the State of North Dakota, will render
it almost certain that your work will be adopted as the organic law of your
State. Hence the importance of making it what you will desire to have it after
you go home, and what your people desire, in order that they may remember
you with pleasure in the future, and that you may be satisfied with the work
that you now have to do. You have in this body, doubtless, representatives of
all political bodies and political ideas. While I will admit that at times I may
be blinded to the necessity of political assistance outside of my own ideas and
beliefs, yet there is one body, and that the one which you comprise, in which it
is proper and absolutely necessary that all the different ideas on the subject of
DEBATES OF THE CONVENTION.
45
Legislation should be embraced. Here you meet and present your different
ideas. You will, while discussing them find them almost as varied as are the
men in this Convention. You will be astonished to find when you assert a
proposition, how few will endorse it clear through. During your discusssions
you will find out the reasons for the differences which exist among the people
upon political questions. These discussions may perhaps tend to weaken your
confidence in your own opinions. If you are men of breadth and listen to all the
gentlemen who oppose you, after the discussions are over you will determine
what is the proper thing to do upon the questions that have been discussed. I
feel, gentlemen, that there are two distinct policies to be pursued by you in the
formation of your Constitution. The one is to embody in it as little legislation
as possible; to embody nothing but fundamental principles, glittering general-
ities, declaring the law of the land on the different propositions which are to
be legislated on in future. That was the original idea and theory of what a
constitution should contain in our early states. But as years have gone by; as
the interests of the people have become more and more complex; as our com-
mercial relations have extended and the entire government has assumed that
wonderful complexity which is a wonder to ourselves and an astonishment to
the world; as it becomes more complicated and our legislation more difficult in
every direction, the states have adopted the idea of embracing in their funda-
mental law as much legislation as they can with safety, instead of as little as
they can. And still you will say that it is better to err on the side of general-
ities than on the side of legislation, because once embodyed therein it is very
difficult to get rid of it and effect a change. But if it is right, if you know
what is the proper thing to embrace in your legislation, the more there is in the
constitution the better for the people. One of the greatest evils is excessive
legislation-the constant change every two years of the laws, and the squab-
bles and debates over the different questions that constantly arise. It is wise
in my judgment, after the people have decided in which direction their interests
lie, to embody them in the fundamental law of the land and make it permanent.
Here is one of the great evils from which we have suffered as a territory.
Every Legislature had the power to undo what all the Legislatures had done
before. It seemed that they enjoyed the privilege during the many years that
have passed. They attempted to do as much of it as possible, and they suc-
ceeded in obtaining for us a great confusion in our laws. You will see as you
coine to study the question and study the history of constitutional legislation,
that the modern tendency is to embrace in the Constitution as much of the
necessary legislation of the State as can be done with perfect safety. That has
been the tendency for many years. Many of the old states have had much dif-
ficulty in this matter, and have found it impossible to have peace and harmony
in their borders until they have settled many questions in this way. The ques-
tion of taxation, or corporate power, and the question of the method of exer-
cising the franchise and all those similar very important questions are em-
bodied in this schedule. I need not advise you, for you are intelligent gentle-
men, and have lived in this country until you know its wants and necessities-
and you have given your thoughts to the subject of legislation, or you would
not have been selected to come to this important body.
There is one question which in my mind should receive special attention,
and that is the question of securing the purity of the franchise. I know not
46
DEBATES OF THE CONVENTION.
what may be the best thing to secure this desirable result. It is to my mind a
query as to the proper method to be adopted in order to purify the ballot-
whether the secret ballot or an entirely open ballot is the best. Both have been
tried. There is one point on which we are all agreed, and that is that the ballot
of America needs purification, and unless it is purified this great government
on which it rests will sink away in the near future, and we shall cease to be a
self governing nation. I do not pretend to say to you, gentlemen, what the
necessary and proper requisties of safety are that should be drawn around the
ballot box, but there is one fact to which we cannot shut our eyes-and that is
that the world moves forward. There have been important advances made in
this department of experience of Legislative wisdom, and in my judgment what
this country will have to adopt will be the secret ballot. It perhaps has its
evils, but the evils which are to be overcome we are certain can be removed to
a large extent in that way-that is to say, the evils which arise largely from the
open ballot. The man who can deliberately walk up to the ballot box and de-
posit a ballot which has been purchased and paid for, either as a citizen at the
polls in his precinct or in the Legislative halls, should never be allowed to ex-
ercise the prerogative of an American citizen in casting another ballot. It
occurs to me that that would be a wise provision to start out with, and I
should propose the same penalty on the man purchased as on the man who
offered to purchase. Of course it is difficult to enforce such a penalty;
so it is dificult to enforce any penalty under our penal code,
but that appears to me to be simple justice. If a man does not regard
his ballot of more value than to sell it, take it away from him. Let
those only have it who regard it as being of more consequence. It has been
suggested in one of the public prints of your state, recently, that the cost of
this new system of voting is more than you can afford that it will cost several
thousands of dollars extra to adopt the system of secret voting that has been
adopted by some other countries and found satisfactory. In my judgment
the purity of the ballot cannot be obtained at too high a price. You cannot
pay too much for it. If in your judgment you can by this method place re-
straint about the ballot which will make it more sacred; which will preserve it
in its purity, you should not stop to count the cost, for the purity of the ballot
is everything to this country. During the war the question arose whether or
not a million dollars a day should be expended to maintain the nation. It
was necessary to make this great expenditure in order to save the whole; and
so it is on the question of the ballot. If you can secure it, it will not be
obtained at too high a cost. In this country, it is in the new states
that the ideas are being formed which may be necessary in order to the success
of our government. It is here that these ideas are being originated. I believe
that the people of the Mississippi valley are to become in the future the arbi-
trators of this nation, and the great questions that will arise. They are neither
in the east or the west, the north or the south. They are in the centre of the
country, occupying and lying on the great artery from which the pulsations go
out to the entire nation. It will be your duty to judge and settle the questions
that may arise among the different sections of this country, and determine
them with justice. You can observe that spirit in our political conventions;
you can observe it in all politics of the day. You are a homogeneous people,
and your judgment will naturally be supposed to be righteous Mr. President
DEBATES OF THE CONVENTION.
47
and gentlemen of the Convention, I thank you again for the honor you have
conferred on me in inviting me to address you. Any assistance that I can give
you, or suggestions that I can make in your deliberations I shall gladly furn-
ish. I must say on this occasion that while I feel and recognize the fact that I
am a foreigner among you, especially at this particular time when there is con-
siderable political activity going on in our country, I want to be considered as
such so far as your political questions proper are concerned among individ-
uals; still there are questions which I think we can all discuss together with
profit-questions which affect our general welfare and future as citizens of
the Northwest and Dakota. I wish, gentlemen, through you, to return my
thanks to the people of North Dakota for the extreme courtesy that has been
shown to me through the very difficult task which I have assumed of closing
up the territorial department of our government. It has been to me a very
embarrassing task, and I can only say that the people of North Dakota have
more than surprised me in the generosity and charity which they have shown
to me in my efforts. They perhaps did not expect very many favors from me,
and I perhaps did not expect to grant them very many of a personal character,
but the very fact of their kindness and magnanimity has caused me to reach
as far in their direction as possible, and what I have done in this way has been
an exceeding pleasure in every way. Our relations will soon cease, but the
past history of our territory cannot be forgotten by those who have partici-
pated in it. Our interests will lean common in the future as two states, point-
ing in the same direction both in a national and local sense. There should be
no clashing. I shall expect our delegations in Congress in both the upper and
the lower houses, to harmonize on the general questions of the day which
will arise. I thank you again, gentlemen, for your courtesy.
A BOUNDARY DISCREPANCY.
Mr. PURCELL. It has been rumored that there is some dis-
crepancy in the location of the line dividing North and South Da-
kota. It is liable to give rise to a good deal of trouble to those
counties bordering on the line. I understand that this matter has
been called to the attention of the Convention in South Dakota. I
therefore move the following:
Resolved, That the delegates appointed by this Convention to form a part
of the Joint Commission to settle and adjust the indebtedness and divide the
property, be also empowered to settle and adjust the boundary line between
North and South Dakota, and that the line so fixed by the Commission be the
dividing line between said States until changed by the Legislatures thereof.
Mr. CAMP. Mr. PRESIDENT: This is a very important matter,
and before passing upon it, would it not be well for the Conven-
tion to consider whether we shall not be exceeding our powers in
doing so? The Omnibus Bill provides that the southern boun-
dary of North Dakota shall be the Seventh Standard Parallel.
That parallel must be fixed by the general government. I don't
know how we or the Joint Commission can fix that parallel.
48
DEBATES OF THE CONVENTION.
Mr. PURCELL. It is true that the Omnibus Bill provides that
the Seventh Standard Parallel shall be the dividing line, but that
parallel is in dispute. The people adjoining the line in Richland
county, Sargent and Dickey claim that it is located at a certain
point, and the counties south claim that it is located a mile and a
half further north. I do not state that this committee has the power
to do this, but for the purpose of saving litigation and of agreeing
where the line shall be, I have offered this resolution so that this
Commission appointed from North Dakota may agree with the
Commission from South Dakota where the line shall be declared
to be temporarily. If we were to set out to determine now just
where the Seventh Standard Parallel is it might take more of our
time than it would take to make a Constitution. If some agree-
ment can be arrived at it will save a good deal of litigation to
these counties.
Mr. STEVENS. I am satisfied from reading the Organic and
the Enabling Acts that we would be exceeding our authority to
pass this resolution, but in order that we may be thoroughly satis-
fied on this point I believe it would be best to defer action on this
resolution till to-morrow when we would be better prepared to vote
one way or the other on it. I move that action on the resolution
now pending be deferred till to-morrow's session.
By agreement the resolution was made a special order for to-
morrow's session.
An address was then delivered by the Rev. R. C. Wiley of Indi-
ana, as follows:
CIVIL AND RELIGIOUS RIGHTS.
The Rev. R. C. Wiley of Indiana, of the National Reform Asso-
ciation, was invited to address the Convention. He said:
MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION: I heartily thank
you for the favor you have granted me in allowing me to address you on what
we deem a very important subject. I would not venture to appear before you
and address you were it not for the importance of the principles and the aims
of the association that I represent an association composed of learned men,
judges, lawyers and statesmen from all parts of the American Union. The
association discusses the prevailing questions of political science without being
partisan. It aims to maintain the christian features of our political life with-
out the union of church and state. Allow me, then, briefly to mention the
principles of a fundamental character which we believe should be engrafted in
the constitution of a state as a basis for legislation. We hold first of all that
there are certain principles with which we have to do in public life. It will
not do for us to say about any question that comes up, that because it is a moral
DEBATES OF THE CONVENTION.
49
one, therefore we will have nothing to do with it in politics. There are some
questions that are moral on the one side and political on the other. Our associa-
tion aims for example to maintain what we may call a civil Sabbath, and we
hold that there should be a basis for legislation on that question, and we there-
fore propose that in the bill of rights there be something like this-"The
right of all the people to one day in seven, free from any labor, for the
purpose of rest and worship shall forever be maintained in the laws of this
commonwealth." It may be said by some that the Sabbath question is a purely
religious one. But I observe that last Saturday you adjourned till Monday.
You did not say how your members should spend the Sabbath, but you said in
substance that it would not be proper for them to meet in convention. You
gave every one an opportunity to attend public worship without conflicting
with their rights as members of this convention. I suppose you will
continue in that line throughout your sessions. Every legislative
assembly and every department of government will come face to
face in this practicable manner with the Sabbath question, and I pre-
sume will settle it for itself in the same way, substantially. But in
addition to this all the people have a right to one day in seven. As
civil government is retained for the purpose of protecting us in our rights,
here is a right which it ought to protect us in just as well as in the enjoyment
of other rights. It is as much a right as our right to our property, but there are
two millions of our American citizens who labor every Sabbath day. They
practically have no Sabbath. The most of them would not work were it not
that there is a sort of a compulsion. They know that they would have to give
up their positions if they were to refuse to labor on the Sabbath. Now in be-
half of our laboring classes-on behalf of these two millions of citizens, and.
North Dakota's quota of those two millions-we want to see something done-
that will protect them in their rights to a day of rest. We hold that any state-
can make a law that will require none to perform an irreligious act. We main-.
tain that there should be some law that will secure them in their right to a day
of rest. There should be a provision made for it in the fundamental law of the
commonwealth.
It is proposed, again, that there be some such action as this taken in the
legislative department. The Legislature should also regulate marriage and
divorce by laws not inconsistent with Christian morality. It would be impos-
sible for us to over-estimate the importance of the family relation in the civil
government. Where the family relation is pure, there you will find a strong
people. Where it is impure you will find a people that will rapidly decay.
The glory of our Anglo-Saxon race has consisted largely in this-whatever its
other vices might be it has guarded safely the martial relation. But we find to-
day that we are on the down grade. Even the American Congress has been
impelled to appoint a committee to investigate the divorce question, and the re-
port has been recently submitted, and we find this statement made that
during the last twenty years divorce has increased in this country 156 per
cent., while our population has increased only 60 per cent. Divorce has multi-
plied nearly three times as fast as our population has increased. When we
look at certain typical states
states and
and cities in
in our Union, we find
that in some states there is one divorce for
every twelve mar-
riages-in another, one for every ten, and in
in Chicago one for
4
50
DEBATES OF THE CONVENTION.
every nine. In Denver there is one divorce for every four marriages. When we
look at our statute laws we shall not be at a loss to know the reason why. In
Massachusetts we will find five or six causes for divorce, and in some other
States ten or twelve. Sometimes the statutes in the different states, after
enumerating some three or four reasons will go on and say: "Divorce may be
granted for these or any other reason that may be deemed sufficient by the
court."
We hold that there should be a tightning up in regard to this matter. Here
is where the very foundation of our national life is contaminated. Citizens going
from such families are not the ones to make citizens to carry on the govern-
ment of a free country like this. We hold that there should be some provision
made so that the Legislature, when it comes to enact laws on this subject will
regard the moral sentiment of the people of this great State. Then again the
Legislature will have to deal with the school question, and this Convention will
be required to deal with the school question. While there should be no secta-
riau instruction in the public schools-while the Enabling Act states that-
there should be some provision like this--that the Legislature shall establish and
maintain a system of public schools in which instruction shall be given to all the
children between the age of six and sixteen or eighteen, in the common branches
of knowledge, and in the principles of virtue and Christian morality, but no
sectarian instruction shall be given, and the public funds shall never be appro-
priated to any sectarian purpose. In Cincinnati the Bible was put out of the
schools because there was no provision made in the Constitution that the court
would deem sufficient to retain the Bible in the schools. I have been informed
that they have attempted to substitute something for the Bible-Shakespeare,
etc., but they found the experiment an utter failure. Every day moral questions
will come up in the school room-in the definition of words-in the teaching of
history. Let there be some provision made that will serve as a basis for Leg-
islation on questions like this. We desire that there shall be in the preamble a
recognition of Almighty God as the source of authority; of the Lord Jesus Christ
as the rightful ruler of nations, and of His will as the supreme authority on all
those moral issues that arise in the political sphere. I presume that you will recog-
nize Almighty God in the preamble. Nearly every state in the Union does that,
and I think you will belong to the majority side in doing that. It is important
to observe that without the idea of God there can be no government. Even
Voltaire said that if there were no God it would be necessary to invent one.
There can be no civil government without the idea of a divine government en-
lightening it. The anarchists of this and every other country are mostly
atheists. You will never find a believer in a divine government who is an
anarchist.
Should there be any recognition of the Lord Jesus Christ in the Constitu-
tion? The first constitution of Rhode Island recognized Him as the rightful
king of nations. Through our late civil war the Congress of the United States
passed resolutions in the darkest days of that war calling on the President to
appoint a fast day for the confession of national sin and to seek forgiveness.
Lincoln did so, recognizing the fact, too, in that proclamation, not only that
God but that the Son of God, is the ruler of nations. Then in our legislative
halls we have chaplains appointed who offer prayer in the name of Christ, be-
cause it is through Him that national blessings come as well as individual
DEBATES OF THE CONVENTION.
51
blessings. And now, just one word further in favor of the points I have pre-
sented. We are certainly, historically a Christian nation. We are known as
one of the great nations of the earth. Our civilization is christian—our
customs are Christian. We have annual thanksgiving days appointed by the
President and the state Governors. We have prayers offered in Congress and
all Legislative Assemblies, chaplains in our army and navy, reform schools and
penal institutions, and all these grow out of our christian ideas. Certainly we
are a Christian people. Our civilization is not heathen Mohammedan or Athe-
istic. It is christian or it is nothing. This being the case, why should not
there be an expression of the fact in the fundamental law of this common-
wealth? In one sense the Constitution of North Dakota is already made.
There is an unwritten Constitution of North Dakota in the minds of the peo-
ple, and you are the officers, representing the people, charged with the duty
of putting the Constitution into form. When it goes to the people
to vote on they will say yes or no to the question as to whether or
not you have correctly interpreted their ideas on this matter of gov-
ernment. And, inasmuch as our civilization is Christian, this part of the
unwritten Constitution is all ready. Suppose it should be said that this would
not be fair to those who are not in harmony with the idea of Christianity.
But my friends, those who are not regarded as being altogether orthodox from
the standpoint of the Christian church, certainly realize the fact that our civili-
zation is Christian-our customs and usages are Christian, and if the fact does
them no harm, the expression of the fact would not do them any harm either.
Now see what our great statesmen have said in regard to this. Daniel Web-
ster declares that our ancestors founded their government on morality and re-
ligious sentiment. They were brought here by their high veneration of the
Christian religion; they journeyed in its light and labored in its home; they
sought to incorporate it with the elements of their society and to diffuse its influ-
ences through all their institutions, civil, political, social and educational. It has
even been declared by very high authorities that Christianity is a part of the
common law of our land, and we cite especially the decision of the Supreme
Court of Pennsylvania, in a certain very important case, in which the whole
court agreed that Christianity, general Christianity, has always been a part of
the common law of Pennsylvania
We presume that the people of this territory have the same ancestors, the
same historic past as the people of other commonwealths, and we presume
that its common law embraces the same Christian principles and moral ideas.
We have one moral standard-that recognized by Christianity, and we main-
tain that there should be something that will bind us to regulate our conduct
in compliance with this high moral standard. For these reasons, and a great
many others that I will not take time to enumerate, the National Reform Asso-
ciation desires to see incorporated in every constitution, the recognition of di-
vine authority, of divine law, because when we make constitutions we have no
authority except what comes to us from God. We say that power inheres in
the people. They do not create it; it is a gift bestowed on them by the sov-
ereign ruler. While we recognize the authority of the people, let us recognize
the divine source from which that authority comes, and the Divine Ruler with
whom we have to do, and the supreme law that is over us. You dare not vio-
late the Enabling Act, but there is another enabling act which comes to us
52
DEBATES OF THE CONVENTION.
from the throne of God, Himself. I thank you for your kindness and your
patience.
Mr. WILLIAMS. I move the Convention adjourn.
The motion prevailed, and the Convention adjourned.
NINTH DAY.
BISMARCK, Friday, July 12, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
THE BOUNDARY QUESTION.
The resolution of Mr. PURCELL which was made the special
order for the day was then read as follows, slightly amended:
Resolved, That the delegates appointed by this Convention to form a part
of the Joint Commission to settle and adjust the indebtedness and divide the
property, be also empowered to temporarily settle and fix what shall be the
seventh standard parallel, until such time as the true line shall be ascertained.
Mr. LAUDER. I would ask for information whether or not a
Commission has not been appointed by the South Dakota Consti-
tutional Convention to confer with us on this matter of the bound-
ary of the two states? I am of the opinion that a committee for
that purpose has been appointed. If this is so, it seems to me
that the Convention should appoint a committee to meet them,
and this matter should not be referred to the Commission for the
division of property.
Mr. PRESIDENT. The Chair has no information of any such
committee. The Secretary says he understands that the matter
has been referred to the Commission of seven.
Mr. LAUDER. I have no definite information on the subject,
but I thought I saw that there was a separate and distinct com-
mittee.
Mr. ROLFE. Is it a fact that in the mind of the general gov-
ernment there is no dispute in regard to where this Seventh Stand-
ard Parallel runs? Is it not a fact that in the land department
the United States Government knows where this line runs?
If
DEBATES OF THE CONVENTION.
53
not, must there not be considerable confusion in the department
itself in regard to the adjustment of section lines that are sup-
posed to run on this seventh standard parallel?
Mr. HARRIS. If I understand the situation it is this: Be-
fore Dakota was surveyed by the United States authorities the
Sisseton reservation had been surveyed without reference to the
regular surveys. The survey of that reservation placed this par-
allel about four and a half miles north of what the regular survey
of the land department placed it. The seventh standard parallel
is produced due west by the land department surveys, beginning
at a point on the Minnesota line outside of the Sisseton reserva-
tion west, clear through Dakota. The only question is in regard
to that point of the Sisseton reservation which runs across this
line. There is no question, as I understand it in regard to any
other part, except that which runs through this reservation, a dis-
tance of about twenty-four miles.
Mr. LAUDER. That is as I understand the matter, but we
have no information as to when the Sisseton reservation will be
opened for settlement, or when the line will be established. The
people living along that line should know in which state they live
and where they are to pay their taxes. That matter is now, and
has been for some time in confusion. In view of the fact that we
don't know when the survey will be made, it seems to me that the
Convention should take some action that will settle that line.
Mr. PURCELL. I understand that the line is also in dispute
between the counties of Sargent and Marshall-in fact, clear
through to the Missouri river. My intention in introducing this
resolution was that some committee might be appointed that
could, in conjunction with a committee appointed by the South
Dakota Convention, come to some temporary understanding.
They might for the time being fix the line which would for the
time be recognized as the line between the two states. There is a
a mile and a half in dispute. The people living in Roberts county
claim that we have a mile and a half of land that belongs to them,
and the people in that vicinity are undecided where they live-
whether in North or South Dakota. It is giving considerable
trouble, and for the purpose of getting out of all this trouble and
vexation I have introduced this resolution.
The substitute motion was carried.
54
DEBATES OF THE CONVENTION.
A QUESTION OF PRINTING.
A number of resolutions and articles were introduced and
Mr. PURCELL said: It seems to me that it is unnecessary to
print these resolutions till they are reported by the committee.
The appropriation being limited, it seems to me that a great deal
of it will be eaten up by printing. I would move that no resolu-
tion be printed till it is reported by the committee.
Mr. WILLIAMS. It seems to me that that would hardly be a
wise provision. Every member would like to be posted as to what
articles are pending, and how are we to know the substance of
those articles unless they are printed? I think every member of
the Convention should have a knowledge of the provisions that
are pending in committee before they are reported.
Mr. STEVENS. If we were not to print these, but were simply
to act in accordance with the resolution that is offered, it would be
unnecessary to have these articles offered at all. We might bet-
ter adopt a rule at once that when any member has any resolution
or article to offer, he should hand it to a committee. The object
of introducing them in the Convention is that the members may
know the subject that is to be acted on by the committee, and then
after having seen the different resolutions that have been handed
in, they will be better posted as to whether or no they are what
they want. Otherwise, the members not having given the various.
matters the attention that the committees have, they would be
likely to at once adopt a committee's report, when it would not, if
proper attention had been given to the subjects, be the desire of a
majority of the members. If the resolutions are printed, each
'member will be permitted to study and decide upon which of
these measures he would rather adopt when it comes to final action.
I think it would be the best course as a means of education of
the members to allow all resolutions that are offered here to be
printed, that they may study them over at their leisure.
Mr. PURCELL. When I made this motion I was under the
impression that every resolution that is offered here goes into the
Journal, and when the Journal is distributed it contains a copy of
the resolutions offered on that day. If that is true it seems to me
to be unnecessary for us to have printed these resolution on a
separate piece of paper, for this matter of printing is going to
amount to a good deal of money. But if the Journal contains
every resolution offered, that would be sufficient information for
the members of this Convention.
DEBATES OF THE CONVENTION.
55
į
Mr. PRESIDENT. The Chief Clerk says that the Journal
will necessarily contain all resolutions proposed for adoption in
the Constitution.
Mr. PURCELL. Then I will ask that my motion simply refer
to resolutions and does not include articles of the Constitution.
Mr. STEVENS. I move that the Journal shall also in addition
to the resolutions include articles proposed for the Constitution.
Mr. STEVENS' amendment was adopted.
COUNTY OFFICERS.
Mr. RICHARDSON moved that this Convention do order that
all county officers now holding office in the proposed State of
North Dakota remain in office and draw their salary until the enl
of the term for which they were elected, and that their bonds hold
good for the same period.
Mr. SCOTT. I move that the matter be referred to the Com-
mittee on Schedule.
Mr. ROLFE. I move that the article be referred to the Com-
mittee on County and Township Organization. The Committee
on Schedule does not appertain necessarily to counties and town-
ships, and can have nothing to do with this subject.
Mr. SCOTT. If it is not the purpose of the Committee on
Schedule to deal with such a resolution as this, then I would like
to know what the Committee on Schedule is for. We have to de-.
cide whether or not we shall have a general election this fall, or
whether for the purpose of changing our form of government
from that of a territory to that of a state we shall allow the officers
now elected to hold over. All the provisions for their holding
over, if we decide to make such provisions, will, I suppose, be con-
tained in the Schedule. We cannot put it in and have it a part of
the permanent Constitution. All matters of a merely temporary
nature go into the Schedule.
Mr. SPALDING. It seems to me that we should instruct the
Committee on Schedule to incorporate such an article in their re-
port.
Mr. LAUDER. The report of the Committee on Schedule may
be amended if it does not contain this provision.
Referred to the Committee on Schedule.
Mr. CARLAND. I move to adjourn.
The motion prevailed and the Convention adjourned.
56
DEBATES OF THE CONVENTION.
+
TENTH DAY.
BISMARCK, Saturday, July 13, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. PURCELL. The members of the South Dakota Commis-
sion are here, and I move that the privilege of the floor be ex-
tended to them.
Seconded and carried.
A QUESTION OF METHOD.
Mr. STEVENS offered the following:
Resolved, That all matter to be incorporated in the Constitution shall be
first introduced in the Convention by resolution, be read a first time and on
second reading shall be referred to the appropriate committee without debate,
and no matter shall be incorporated in the Constitution until the subject to
which it relates shall have first been considered and reported upon by the
Committee of the Whole. Each article or resolution so introduced shall be
printed, giving its consecutive number of introduction, and a copy thereof
furnished to each member before its second reading.
This resolution was seconded by Mr. TURNER of Bottineau.
Mr. CARLAND. I understand that this resolution will pro-
hibit any standing committee from originating articles for the
Constitution. Anything to get into this Constitution has got to be
introduced here first and then referred to a committee before it
can get into the Constitution.
Mr. STEVENS. I don't understand it to be so at all. I under-
stand that if the committee see fit to originate anything, after they
have originated it, it shall be first brought here, read, printed and
distributed, so that the members may know what original matter
has been originated by the committee, as well as the original mat-
ter that may have originated with any member. It would take ex-
actly the same course as matter that came from a member, and
does not in any way interfere with the right of any committee to
DEBATES OF THE CONVENTION.
57
originate matter. This resolution is simply for the purpose of
apprising every member of this Convention as to all the matter
which it desires to have incorporated in this Constitution. It is
that each member may be able to turn to his files when a question
comes up on the report of the committee, and there determine
whether he is in favor of the report of the committee or not, or
whether he would prefer some resolution on the same subject that
has been introduced by some member. This is my first experience
in a legislative body, and that resolution was drawn largely from
the information I received from the honorable gentleman from
Burleigh, than whom there is none more capable of instructing me
in these matters. On reflecting over what he said to me I came
to the conclusion that persons who are not particularly conversant
with these matters would find it impossible to determine on the
best thing to do without having before them all the matter that is
to be considered by this Convention. We have been sent here by
our constituents, not to consider and act upon the matters which
may originate with the particular committees to which we may in-
dividually belong, but also to pass our judgment on the report
of every committee, and unless these matters are printed and dis-
tributed among the members, so that they may at their leisure be
enabled to consider what is best to be adopted, they will be at sea
when it comes to the question of the consideration of the report.
A report is made by a committee and referred to the Com-
mittee of the Whole. When the question comes up in the
Committee of the whole nothing is before the member but the
report of the committee, and the person who might disagree with
the report has got to explain to each member his standing, and
why his resolution is better than the report. But if these reports
are published in conformity with this resolution, it will allow each
and every member when he is not employed in committee work to
consider what matter he would prefer to have incorporated rather
than the report of the committee. It will also aid the committee
in this each committee when it shall have reported will have had
these matters before them and it may be that some resolution will
be offered that would assist the committee as well as the members,
and for these reasons and for the purpose of expediting the busi-
ness I have offered, and now urge the passage of this resolution. I
believe that if these matters are published so that we can consider
them at our leisure, many of us will be engaged only about half
the time at our committee work, and we will have leisure to devote
58
DEBATES OF THE CONVENTION.
to these resolutions. It would be a farce to say that a man who
has to build a foundation for his house shall not have all the
access to knowledge that a man has who has to build the super-
structure. In a legislative body this is the invariable course for
them to pursue.
Mr. CARLAND. If I understand the first few lines of the
resolution, it would prevent the introduction of any matter into
this Convention that was not in the first place introduced and re-
ferred to a committee. I would like to have the resolution read
again.
The resolution was again read by the Chief Clerk.
Mr. STEVENS. It is the intention of the resolution to
prevent a committee from coming in here and making a
report, incorporating new matter and matter that has not
been before this body without first having had it printed.
A report might be made which might be entirely new.
If a committee desires to incorporate new matter or originate a
new and independent theory it should report it by a resolution and
let it take the same course as others, and we will then have the
same opportunity to consider the reports of committees as we
have to consider the resolutions of members. Otherwise a com-
mittee will be given a great advantage over members.
Mr. PARSONS of Morton. I heartily agree with the gentle-
man from Burleigh in his remarks on the resolution before the
House, and it seems to me that were it to pass as it now stands we
had better dispose of all committees and go into a Committee of
the Whole. With pleasure would I support an amendment or an-
other resolution subjecting every report of a committee to the
Printing Committee's hands. Let it be printed before it is offered
here, but that any committee in their report should be obliged to
first come before this house and have every little trival change
printed, seems to me to be the height of folly. It would be im-
possible to do any committee work except to simply collect the
resolutions that had been offered here, and arrange them as we see
fit and report them back. We could put no new matter in, nor
could we amend anything, for such an amendment would be new
matter. It seems to me that a resolution would be right which
required that all matter brought before this House in the shape of
a resolution should be printed, and submitted. Then any matter
which the committees report upon should be referred to the Print-
ing Committee and copies printed before it is brought up for dis-
1:
DEBATES OF THE CONVENTION.
59
cussion, or before the Committee of the Whole consider the mat-
ter. It seems to me that if it is arranged that way it will be all
right, but as the resolution now stands it will kill the usefulness
of any committee in the House. Let it read so that any resolution
shall be printed first and then referred to the committee, and that
its report shall be printed before we go into the Committee of the
Whole on the report of the committee. In that way there will be
no muzzle placed upon any committee, and each will have an op-
portunity to work for the best.
Mr. JOHNSON. I would ask the gentleman from Ransom if
he would have any objection to striking out the words "by resolu-
tion." It must be evident to the gentleman from Ransom that it
will often be awkward and useless to introduce these articles or
new matter in the shape of a resolution. We are not particular
about the form. Many of the articles will be copied verbatim from
other constitutions.
Mr. STEVENS. Mr. HARRIS has suggested an amendment
which I think will be an advantage.
Mr. HARRIS. I move an amendment to be added to the reso-
lution as follows:
Providing, That nothing in this resolution shall prevent a committee from
presenting original matter as a proposition, and let it take the same course as
other resolutions.
Mr. SPALDING. We have now had this resolution read three
times and yet there are some of us who do not understand it. It is
a matter of great importance, and I don't know but what it will
swamp us in printing, and I would therefore move that in order
that we may all understand it, that it lie over till Monday and be
made a special order for 3 o'clock on that day and be printed
in the meantime.
Seconded and adopted.
Mr. STEVENS. I move that the Committee on Printing be in-
structed to ascertain what will be the cost of carrying out the
provisions of the resolution if adopted.
Mr. PURCELL. Would not that be a very difficult matter,
considering that no one knows how much matter will be intro-
duced here?
Mr. FANCHER. I think that all the articles introduced here
would not embody more than ten or twelve of the largest bills
introduced by the Legislature.
60
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DEBATES OF THE CONVENTIONсо
Mr. STEVENS. The reason for making this motion is that I
have had a talk with some of the printers and they proved to my
satisfaction that the cost will be very little. We cannot tell how
many resolutions will be offered it is true, but we know about how
many subjects are to be considered, and from looking at other
constitutions we may be able to arrive at a reasonably fair idea
as to what will probably be proposed here, so that we can get a
reasonable view of the expense. I move this because I have be-
come satisfied that the expense will be a matter that will not be
taken into consideration when the report of that committee shall
have been made.
Mr. LAUDER moved that a select committee of five be ap-
pointed by the President, to whom all matters shall be referred
on the question of the seat of government.
Mr. JOHNSON. When the Committee on Rules made its re-
port the intention was to provide a committee for each of the
great subjects that we knew had to come before this Convention
for consideration. The Convention committed itself to the
course laid down by the committee by adopting its report. There
was an attempt made to add three other committees, and after-
wards it was decided that the subject matter which it was proposed
to be diverted from the regular standing committees should not be
so diverted. The same argument applies in this case. We have
a committee here on Public Buildings and Institutions, which evi-
dently was intended to have charge of the work planned for this
new committee. If this work be taken from the committee which
has already been made, a good part of its occupation will be gone.
There is no question coming before that committee so important,
which will attract so much public attention as the location of the
seat of government. I am not on that committee, but I say what
I do as I would in justice to any committee from which it was
proposed to take the work for which it was mainly created. If
you create another committee, as proposed, you will give an advan-
tage, or place at a disadvantage, this institution over other insti-
tutions, and therefore I hope the delegates will be consistent, and
vote on this subject the same way they did when it was proposed
to create a Committee on Railroads, thus dividing the subject of
railroads from the Committee on Corporations other than Mu-
nicipal.
Mr. HARRIS. I agree with the gentleman from Nelson. If
we are going to have a select committee for this purpose, why
DEBATES OF THE CONVENTION.
61
may we not have a select committee for each institution in the
Territory? If we doubt the ability of the Committee on Public.
Buildings and Institutions to handle this subject, are we able to
form another committee that can do it in any better manner? If
we are to have another on this subject, why not another on the
Jamestown Asylum, one on the Bismarck Penitentiary, one on the
University at Grand Forks and every public building we have
got or that we are to have? I think that the Committee on Pub-
lic Buildings and Institutions is perfectly competent to handle
this question, and I hope the delegates in this Convention will
look on this question in the same light that I do.
Mr. MOER. It seems to me that the position of the gentleman
from Nelson is well taken. We have a Committee on Public Build-
ings and Institutions. Certainly the seat of government is a public
institution, and comes within the province of this committee, and
I can see no good reason why a select committee of five or any
other number should be appointed on this question. I therefore
move that the consideration of the motion be indifinately post-
poned.
Seconded by Mr. PARSONS of Morton.
Mr. LAUDER. In offering this resolution I had no intention
whatever of reflecting upon the integrity or the ability of the
Committee on Public Institutions and Buildings. But in all con-
stitutions that I have examined I find a separate article covering this
question, and it seems to me only fit that inasmuch as there is to
be a separate article on that question in our Constitution, there
should be a separate committee for the purpose of formulating that
article. It strikes me that there might be a vast difference between
the work which would naturally be assigned to this committee, and
the work which naturally would come to the Committee on Public
Institutions and Buildings. It seems to me that there is nothing
in the character of the Committee on Public Institutions, either
its name or designation, to which would naturally be referred the
question of the location of the Capital of this State. The Com-
mittee on Public Buildings and Institutions does not locate any in-
stitution. They simply provide those which shall exist, and per-
haps the manner in which they shall be supported, but I don't
understand this committee has the power to locate any building.
The motion to indefinitely postpone was carried.
Mr. SELBY. I move to adjourn.
The motion prevailed, and the Convention adjourned.
62
DEBATES OF THE CONVENTION.
TWELFTH DAY.
BISMARCK, Monday, July 15, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. STEVENS. After the action on my resolution had been
postponed till to-day, the Committee on Printing made a report
which was adopted, and it covers all the matter contained in that
resolution. Therefore I withdraw the resolution.
Adjourned.
THIRTEENTH DAY.
BISMARCK, Tuesday, July 16, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
THE PRINTING QUESTION.
A discussion arose on the question of the adoption of the report
of the Committee on Printing. Mr. CLAPP moved to reconsider
the report.
Mr. STEVENS was in favor of the report.
Mr. CLAPP said: It was claimed that the Files and the Jour-
nals would be set in the same type, and that the extra cost of
having the two would be very slight. I see that they are set in
different type, and the Committee on Printing desire to be relieved
of responsibility in the premises. The expense will be twice as
DEBATES OF THE CONVENTION.
63
much as it was intimated it would be when this matter was dis-
cussed before.
Mr. PARSONS of Morton. I move that all matters submitted
under the several heads of order of business, which matter is
printed in the Files, be referred to in the Journal by File and
name only.
Mr. STEVENS. If the work of this Convention is to be per-
petuated-if we are to get a record of the transactions of this
Convention, it is of more importance that it appear in the Journal
than that the members have the Files. This Constitution has got
to be adopted by the people and the people want to know, not only
what is going into the Constitution, but what propositions are be-
ing made to go into that Constitution. They want to consider
whether that Constitution is such as it should be, and in order to
properly consider that subject they must have all the matter in
the Journal, which will be distributed at least twenty times as
much throughout the Territory as if it is simply printed in the
Files. The Files are of no use to anybody except for our conven-
ience in debating in this Convention. But the Journal is of use,
not only to us here but to the voters of the Territory, in the con-
sideration of this Constitution; and also for the guidance of the
people who may be called on hereafter to form another Constitu-
tion here or elsewhere. We want to know ourselves, and we want
that the public should know, all that is done in this Convention,
and the Journal is the place to look for the information. If we
must dispense with anything let us dispense with the Files. If
the members are afraid that they won't receive their full $4 a day,
and desire to cut off expense in order that they may receive their
full pay-if that is what they desire, let us cut it off from the
Files and not from that part of the proceedings which are to per-
petuate the work of this Convention.
Mr. PARSONS of Morton. I don't know why the gentleman
from Ransom should think that we are afraid the amount set aside
for our expenses would run short. It may be the motive of some,
but I think it is a slight on any member here. I don't think that
there is any member here who has this consideration in his mind
at all. It seems to me to be folly to have the matter contained in
these Files printed twice and then submitted twice to the Conven-
tion. I don't wish to be too economical, neither do I wish to be
extravagant.
Mr. STEVENS. Under the resolution under which these Jour-
64
DEBATES OF THE CONVENTION.
nals are printed it provides for the saving of a certain number of
copies for the purpose of binding and distribution, and if the plan
of the gentlemen who have been speaking here, is carried out,
they will no longer be printed in the Journal. This Journal is
now being printed for the purpose of final distribution under the
resolution that was formerly adopted.
Mr. JOHNSON. I would like some information, and there are
other delegates who would also like some. The delegate from
Morton evidently thinks that after the Convention has adjourned
the Journal would be made up and printed. The gentlemen from
Ransom has the idea that the Journal is now being made up from
day to day and a certain number are being laid aside. It would
make a good deal of difference which is correct-whether the
Journal is now printed from day to day, or whether there will be
an opportunity to correct that Journal later.
Mr. HARRIS. The Journal as now being printed is the of
ficial record of this Convention. We are correcting and adopt-
ing it day by day. No one has any authority after this Conven-
tion adjourns to insert one word in it, or take one word out. This
Journal is made up from day to day as the records of this Conven-
tion, and as such is the only official record, and the bound volumes
that are made up will be of this Journal.
Mr. PARSONS of Morton. The supposition was that these
Files would be incorporated at the close of the volume. But I
would say here if it was the desire to destroy the Files and have
only the record of the minutes of the Convention I would with-
draw my motion, for I believe the Files are essential to their
thorough understanding here, and for the convenience of debate.
Mr. PARSONS withdrew his motion, and the report of the
committee authorizing the Bismarck Tribune to do the printing
for the Convention prevailed.
Mr. FLEMINGTON. I move to adjourn.
The motion prevailed, and the Convention adjourned.
=
DEBATES OF THE CONVENTION.
65
FOURTEENTH DAY.
BISMARCK, Wednesday, July 17, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. CAMP. Inasmuch as the Honorable Judge Cooley is with
us to-day, and several members of this Convention have known
him at Ann Arbor, and a much larger number have been readers
and admirers of his books, and all are interested in his special
work, I move that the Convention take a recess in order that the
members of this Convention may have an opportunity of meeting
him. As one of those appointed to confer with Judge Cooley, I
would say that he kindly consents to address us at some time when
this Convention desires.
Recess was taken.
JUDGE COOLEY'S ADDRESS.
After the recess President FANCHER said. GENTLEMEN OF THE
CONVENTION: It affords me much pleasure to introduce to you a
gentleman who by reputation at least, is well known to all of you
-Judge Thomas M. Cocley of Michigan, Chairman of the Inter-
state Commerce Commission.
Judge Cooley said:
MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION: We have heard in
the east that sometimes when a man gets lost on the boundless praries of the
west, he is liable to be called on to stand and deliver, but I think that when
that happens, as a general thing, they are more careful in the selection of the
victims than you have been to-day, to make sure that he has something to de-
liver. I am glad to meet you here. I am glad to look out on a body of repre-
sentative men of the new settled State of North Dakota. I always feel, in the
presence of such a Convention, the dignity of the great work in which you are
engaged the making of a Commonwealth; the marking out of the landmarks
that are to be the guiding landmarks of that Commonwealth probably for all
time. There rise up before me, at such times, the names of men of old, of
whom we have heard-the builders of Grecian and Roman states-the Solons
5
66
DEBATES OF THE CONVENTION.
and Lycurguses, who made themselves a name for all time, because to them
was committed a similar work. And yet, after all, the work, in its magnitude
and in its intricacy in those prominent states was nothing in comparison to the
work you have here to-day, for the building of the laws of the Commonwealth
that was founded two thousand years ago was simple as compared with your
work. As civilization has advanced—as the wants of mankind have increased,
as the methods of transacting business have multiplied; as men have invented
new ways, not only whereby they may transact business, but circumvent others,
the intricacy of Constitution-building has gone on in proportion—perhaps
even more than in proportion-and it becomes necessary to do many things
now that were not important then, that would even have been irrelevant. Gen-
tlemen, the men who created the Constitution of the United States-that charter
of government which has no parallel in the history of mankind-would find
many new problems with which to deal to-day, if they were called on to create
a Constitution for North Dakota.
Well, the Anglo-Saxon is a natural constitution-builder. He is born to the
business. In many of the articles which have been read before us to-day,
there are a great many things of vital importance, in respect to which there
would not arise among you here to-day a single word of controversy, because
in your very blood from your ancestors you have come to take correct opinions
in regard to such things. There is no one here to-day who proposes to dis-
pense with the executive, or who proposes that the executive and legislative
powers shall be united, or that there shall be no judiciary, or that any one of
these shall be dependent on the other. In regard to these things we have in-
stinctively determined; we put them aside as matters that no longer are sub-
jects of controversy. But there are other matters that are in controversy.
The vital things; the most important things-the great land-marks are decided
instantly settled before the Convention meets, but there are a thousand mat-
ters of detail that it becomes necessary to deal with. In respect to a great
many, it will be found that they are matters which come now almost for the
first time before a deliberative body like this.
I take up your proposed Article on Corporations. Even there you find
many things on the subject, upon which I would hardly anticipate there would
be any controversy. You all agree that you shall no longer grant charters as
special favors. Corporations have the right to corporate powers only under
proper restrictions. But as to what corporations may be empowered to do-as
to the restrictions that shall be put on them, as to what shall constitute a for-
feiture of the corporate power-these things are problems that are altogether
new, and which a Hamilton and a Jefferson would have been as unable to
grapple with even more unable than are any of the members of this Conven-
tion, for they had not the experience which showed the necessity for imposing
these restraints. But, gentlemen, it is entirely out of the question that I should
undertake to be your advisor in regard to these matters. My present duties call
me aside from all labors of this kind, but if I were to drop a single word of ad-
vice-although I scarcely feel that it is within my province to do that—it
would be simply this: In your Constitution-making remember that times
change, that men change, that new things are invented, new devices, new
schemes, new plans, new uses of corporate power. And that thing is going to
go on hereafter for all time, and if that period should ever come which we
DEBATES OF THE CONVENTION.
67
speak of as the millenium, I still expect that the same thing will continue to go
on there, and even in the millenium people will be studying ways whereby,
by means of corporate power, they can circumvent their neighbors. Don't, in
your constitution-making, legislate too much. In your Constitution you are
tying the hands of the people. Don't do that to any such extent as to prevent
the Legislature hereafter from meeting all evils that may be within the reach
of proper legislation. Leave something for them. Take care to put proper re-
strictions upon them, but at the same time leave what properly belongs to the
field of legislation, to the Legislature of the future. You have got to trust
somebody in the future and it is right and proper that each department of gov-
ernment should be trusted to perform its legitimate function. [Applause.]
The Convention resolved itself into Committee of the Whole
with Mr. CARLAND in the Chair.
File No. 64 was under discussion as a report of the Committee
on Judiciary.
COMPACT WITH THE UNITED STATES.
Mr. JOHNSON said: Mr. CHAIRMAN, AND GENTLEMEN OF THE
COMMITTEE OF THE WHOLE. As the Chairman of the committee
that reported this File-Compact with the United States-is in the
Chair, it may be proper for me as for any other member of this
committee to open the discussion on this article, from the fact that
I drew the original article and submitted it to the Convention, for
which this is a substitute. If members will turn to the Enabling
Act, copies of which in pamphlet form have been laid on their
desks, on page two we read: "And said conventions shall provide
by ordinances irrevocable," etc. If they read on they will find
that the provisions of this article are matters in which we have
no discretion. They are just and reasonable provisions that are
laid down by the Enabling Act as absolutely essential to our ad-
mission into the Union. The only choice we have is as to the
form of the article-the words, language, punctuation and matters
of that kind. As to the reason why a substitute was drawn by the
committee, I think I can say without taking any great amount of
credit to myself, that in the shuffle of the bills the Clerk separated
them, and the first two pages of my article went to the Committee
on Corporations, and when the mutilated article came before the
committee they had no means of knowing where the other two
pages were.
The new article is, I think, word for word like the
article introduced by me, until you get to near page three of the
pamphlet, namely, where it speaks of the debts and liabilities of
said territories. The article as worded in the substitute is more
happily and concisely expressed than in the original. In section
68
DEBATES OF THE CONVENTION.
four of the original the following occurs: "There shall be estab-
lished and maintained a system of public schools in this state
which shall be open to all the children of this state and free from
sectarian control." That is omitted in the article reported from
the Judiciary Committee for the reason that the general statement
that the school system should be maintained would be insignifi-
cant when compared with the fuller article on free public schools
which we expect to have reported from the Committee on Educa-
tion. It is absolulely necessary in order that this Constitution
should be approved by the President of the United States, that
such a system will be provided for in our Constitution, but it is
hoped the Committee on Education will provide such an article
in a series of sections. With this explanation I thank you for
your attention.
Mr. MILLER. I move that we adopt the report of the com-
mittee which has just been read.
Carried.
THE STENOGRAPHER.
The report of the Committee on Reporting and Publication, as
to the pay of the Stenographer was read as follows:
We have had under consideration the following resolutions:
Resolved, That the compensation of the official stenographer of this Con-
vention for reporting the debates and proceedings in full, be, and the same is
hereby, fixed at $8 per diem during the session thereof. Said Official
Stenographer shall also furnish to the Convention, a transcribed, fairly written
and legible printer's copy of said debates and proceedings, for which he shall
receive an additional compensation of 10 cents per folio; the compensation
hereby provided, including the cost of all stationery and other material used
by said Stenographer in making said stenographic report and transcribing
the same. And said Official Stenographer is hereby made responsible for the
proper execution of said work.
Resolved, That no petitions, letters, memorials or remonstrances, re-
sponses from any of the departments or other sources to resolutions of inquiry
by the Convention, shall be included in said reporting or transcribed printer's
copy, unles by special order of the Convention; nor shall discussions on ques-
tions of order or adjournment be included therein.
We recommend their adoption with the amendment that the pay
of the Stenographer be fixed at $10 per day and 15 cents per folio
for transcribing.
Mr. MILLER. I move that the report be amended to read $10
a day, and 10 cents per folio for transcribing. I do this in the
belief that the compensation fixed at that rate is a very liberal
DEBATES OF THE CONVENTION.
69
compensation, and anything in excess of that would be extrava-
gant on the part of this body.
Seconded by Mr. LAUDER.
Mr. BARTLETT of Dickey. I would like to know how much
the Stenographer now makes per day. I think the members of
this Convention don't know what he makes per day now. I want
to pay liberally, but I don't want to be extravagant.
Mr. PARSONS of Morton. Mr. CHAIRMAN: As one of the
members of the committee I took the trouble to speak to two
stenographers, one of whom is a resident of this city, and the
other is from Sioux Falls, with the members of the South Dakota
Commission. I have two certificates from these gentlemen-that
from Mr. La Wall states that he receives $10 a day and 15 cents
per folio for transcribing his notes as court reporter in this dis-
trict. Mr. Goodner states that as stenographer for the South
Dakota Convention he receives $10 a day and 25 cents per hundred
words for transcribing his notes. It is a rare time that a person
possessing the necessary talent for this work, is called on to use it
straight through. In the South Dakota Convention they have two
stenographers, but our Stenographer is doing all the work, thus
saving the pay of one man. I don't think that there is any man
in this Convention that will earn his money any better than the
Stenographer. If we want an expert man we must expect to pay
the price that such experts usually get.
Mr. BARTLETT of Dickey. There are a great many strange
things in this life, but I won't admit but that $10 a day is enough
for any man. We want to pay liberally for the work we have done,
but we don't want to pay an exorbitant price. I am informed
that the gentleman is now making $18 a day. Where is the man
in this hall that is making that amount? I say that that is liberal
pay.
Mr. BLEWETT. The Stenographer will not get his pay till
the Legislature meets, and that is one reason why the committee
put the price at the figure they did.
Mr. WALLACE. I would concur in the remarks of the gentle-
man from Dickey. Some of the gentlemen here want us to draw
the inference that because some one else does something therefore
we must follow them. I believe in fair compensation for the work
to be done by the Stenographer. It seems to me that the figures
named by the gentleman from Cass are very liberal, and I don't
see that anyone else is making that money, and I don't see why we
70
DEBATES OF THE CONVENTION.
should be extravagant in paying our employes. This money does
not come out of the United States but out of the State.
Mr. STEVENS. It seems to me that a good many members as
well as myself would be governed in this matter somewhat by how
much the Stenographer makes per day. I don't think anyone
questions that he should be paid $10 a day, and I think there is
some mistake on the part of those who think he is able to trans-
cribe the records of this Convention as he goes along. Our Stenog-
rapher is here, is one of the officers of this Convention, and I think
it is only fair and right that he should explain how much he is
making. I would suggest that Mr. Tuttle be requested to state
for our information what he is making.
On invitation from the President the Stenographer stated:
If $10 per day is what I am to be paid, then it is $10 a day
that I am making. So far I have not been able to transcribe any
of my report, for the reason that I have received no instructions
as to what is wanted. I see no reason why I should be paid less
for this work than the figure that is usually paid to stenograpers
for similar work.
Mr. POLLOCK, As I understand it this matter has been be-
fore the proper committee, and their report is unanimous, as I
understand it. They have looked into the matter as thoroughly
as we can. It seems to me that their report is one that should be
accepted. There seems to be a regular rule as to the pay of ex-
pert stenographic work, and I don't think that this Convention
should change it. I think that we should accept the report of
this committee.
The report of the committee was amended to read $10 a day,
and 10 cents per folio for transcribing the report, and so adopted.
Mr. STEVENS. I move to adjourn.
The motion prevailed, and the Convention adjourned.
DEBATES OF THE CONVENTION.
71
FIFTEENTH DAY.
BISMARCK, Thursday, July 18, 1889.
The Convention met pursuant to adjournment, with President
pro tem JOHNSON in the Chair.
Prayer was offered by the Rev. Mr. TURNER.
Mr. CAMP introduced the following resolution :
THE COMMITTEE ON REVISION.
Resolved, When the Committee of the Whole shall have recommended that
any proposition or article be made a part of the Constitution, such proposition
or article shall be referred to the Committee on Revision and Adjustment whose
duty it shall be to arrange in order and revise all such propositions, so that no
part of the Constitution shall conflict with any other, and to report a Constitu-
tion embracing all propositions and articles so referred, as so revised and ad-
justed, for final adoption as a whole by this Convention.
Mr. PARSONS of Morton. I would like to ask for informa-
tion. Does this resolution refer everything to the Committee on
Revision and Adjustment before its adoption or after?
Mr. CAMP. I would say that I understand it is the usual
course of a Constitutional Convention that after they have de-
cided that a certain article shall be a part of the Constitution,
they don't take final action on that, but refer all the articles to a
Committee on Revision and Adjustment. That committee takes
all these articles, arranges them in proper order, inserts the proper
titles, inserts the proper sections and subdivisions, and reports a
Constitution embracing all these articles with such verbal changes
as are made necessary from the original, and the Convention then
acts upon that. Under this plan we shall not be liable to adopt
two articles on two different days that conflict.
Mr. STEVENS. I would like to ask if it is referred to the
Committee of the Whole before adoption, may it not be amended
and new matter inserted on the report of the Committee on
Revision ?
Mr. CAMP. Certainly.
DEBATES OF THE CONVENTION.
72
Mr. PARSONS of Morton. I would like to ask once more—I
may be unpardonably ignorant-whether there is anything in this
resolution designed to prevent a roll call on every section or any
part of the Constitution on its adoption. If it does not prevent
that I should be in favor of it.
Mr. CAMP. There is nothing in the resolution to prevent the
Convention from acting in regard to the roll call as it sees fit.
They can take up the Constitution section by section, or article
by article or as a whole. The report of the Committee on Revis-
ion brings before this body in compact form the whole of what
the Committee on Revision has recommended.
Mr. ROLFE. What would be in the way of reporting the
report of the Committee on Revision and Adjustment back to the
same committee for their revision and adjustment after action of
the Convention in Committee of the Whole? In other words,
what is the necessity of this further committee that is suggested-
what would its office be-what would its office be which the Com-
mittee on Revision and Adjustment could not accomplish? If the
Constitution is acted. on by the Committee of the Whole, if it
should be necessary to refer that to another committee for further
revision, why not refer it to the committee that we now have?
The resolution was read again, whereupon
Mr. ROLFE said: I understand now-I thought before that
the resolution contemplated an additional committee.
Mr. MILLER. It seems to me that that resolution is eminently
just and proper. I know of no way that we can throw this Con-
stitution together unless it is by referring it to some proper com-
mittee. The Committee on Revision and Adjustment is that
proper committee. I don't see any other way to get at it, except
as that resolution provides.
Mr. STEVENS. I have no objection to the reference; the only
question is as to the time when it shall be referred. This motion
contemplates that it shall be referred previous to its adoption; it
provides that when it is recommended by the Committee of the
Whole it shall then be referred. It would save a great deal of
time if we referred this to the Committee on Revision from the
Committee of the Whole. New propositions may be made,
amendments offered, and a good deal of discussion might take
place which would have been proper to have taken place when it
came up originally from the Committee of the Whole as a single
resolution. I am opposed to the reference as proposed in the res-
DEBATES OF THE CONVENTION.
73
olution, because the time of reference is not the proper time to
save time to this Convention. It would be better to refer it after
it has been passed on and adopted, and then, if perchance we
should adopt two sections which are antagonistic, by a proper ex-
planation to this Convention, they can suspend the rules and re-
consider the proposition if desired.
Mr. LAUDER. It seems to me that after the Constitution has
been formed, and after it has been adopted, it is too late to then
refer it to any committee. The work of the Convention is then
done. Then, again, it will take the Committee on Revision more
time to do their work. If the work which that committee has to
do is delayed until all the articles are prepared and have been
adopted in the Committee of the Whole, then the Convention will
have nothing to do but to wait for the Revision Committee to do
its work. Then the Constitution will not be adopted as a whole
until after the Revision Committee as well as the other commit-
tees have entirely completed their work. The adoption of the
Constitution by the Convention will be the last work for this Con-
vention to do.
Mr. STEVENS. I don't mean that it is proper to wait before
referring articles to this Revision Committee till every article has
been adopted, but each should be referred immediately after they
have been adopted by the Convention. I move as an amendment
to the resolution that the articles shall be referred immediately
on their third reading by this Convention.
Mr. CAMP. It seems to me to be a very strange proceeding-
to adopt an article and then refer it to a committee. When you
have adopted it you have made it a part of the Constitution.
That is the reason why I drew the resolution as I did.
Mr. PARSONS of Morton. I may misunderstand the scope
of the Revision Committee, but it seems to me that we have the
power in our own hands, having passed any resolution or adopted
any article to reconsider such a resolution or article.
It seems
to me in the history of parliamentary bodies generally, that that
power has been used. Because we adopt something, it does not
necessarily preclude us from again reconsidering it. When the
Revision Committee looks over these articles that have already
been adopted, and report back to this House that two articles con-
flict in certain particulars, it seems to be fitting and right and
proper that they should at once reconsider their previous action.
It appears to me that what I have indicated is the scope of the
74
DEBATES OF THE CONVENTION.
committee, and I heartily concur in the amendment of the gentle-
man from Ransom.
Mr. CAMP. The thing we have to adopt here is a Constitu-
tion-not a lot of separate articles and sections, but a Constitu-
tion. I don't believe that this Convention wants to adopt any-
thing else. It should not take official action on any part of the
Constitution until it is ready to act on the whole Constitution and
pass on and adopt it as a whole.
Mr. ROLFE. I would suggest that the amendment be made
to cover these points that the article when considered in the
Committee of the Whole be first adopted only for the purpose of
referring it to the Committee of Revision and Adjustment; that
the consideration by the Committee of the Whole should not be
considered final adoption, but that it be considered adoption
simply for the purpose of reference to this committee. Then
when that committee has made its final report, then the Constitu-
tion be taken up for final adoption by the Committee of the Whole.
Mr. CARLAND. It seems to me that the notion of the gentle-
man from Stutsman simply changes the mode of adoption of the
Constitution from adopting it section by section and piece-meal,
until it shall become a perfect instrument. Then it shall be taken
up section by section and the Convention shall act upon it, either
to adopt it or reject it. That is to say, this resolution prescribes
that when this Convention in the Committee of the Whole have
recommended that a certain article or section should be made part
of the Constitution, that section or article should be then referred
to the Committee on Revision and Adjustment. If the Committee
of the Whole adopts the section or article it will be adopted by
the Convention, for the same gentlemen who compose the com-
mittee compose the Convention. Then it goes to the committee
and they report it back to the Convention when the Constitution
is completed. It seems to me that the resolution would be en-
tirely proper, because in the meantime the Committee on Adjust-
ment and Revision would have an opportunity to perform their
labors with less hurry than if these articles are retained and
referred to the committee at the close of the Convention. Then
it would take them some time probably to make their report. Of
course the action of referring the article to the Revision Com-
mittee does not bind the committee. They have still to act on it.
If the article is referred by the Committee of the Whole and re-
ported back with the recommendation that it be passed, and it is
DEBATES OF THE CONVENTION.
75
passed, then the Committee on Revision and Adjustment would
be utterly powerless to change its phraseology or to change a
word in it; while at the same time it might conflict materially
with another section, and make one section in the Constitution
repugnant to another.
Mr. HARRIS. In regard to the question of the gentleman
from Morton as to whether or not we can reconsider a question at
any time, I would quote rule 19 which reads as follows:
No motion for reconsideration shall be permitted unless made and seconded
by delegates who were in the majority on the vote on the original question,
and within six days of actual session after the decision.
Mr. STEVENS. I judge from the remarks of the gentlemen
from Burleigh that the Committee on Revision and Adjustment
have not only the right to arrange, but to change the phraseology;
change the wording of an article that has been adopted by this
Convention when sitting in Committee of the Whole. I under-
stand that they have such a right. If they have, then why not
ask them to make their report first, for if they are to make the
phraseology on this Constitution, we had better find out what their
phraseology is before we act on it.
Mr. CARLAND. What is the Committee on Revision and Ad-
justment for do you suppose?
Mr. STEVENS. Where two propositions are antagonistic to
one another the committee should report that fact, and the Conven-
tion should act on the report, and say which proposition or article
they will have.
Mr. CAMP. There are several articles already introduced here
using the words General Assembly; others use the word Legisla-
ture. That is a specimen of the work of the Committee on Re-
vision and Adjustment. When these articles come to this commit-
tee they will adopt one phraseology. There are scores of such
details which will need revision by this committee, and that com-
mittee is for the purpose of making such revision and reporting
its action. Of course this Committee does not possess any final
power. All they can do is to report a change and recommend that
it be adopted.
Mr. CLAPP. As I understand it, the report of the Committee
of the Whole does not appear on the Journal.
Mr. BEAN.. If we adopt this amendment it will practically
bind the Convention to six days for reconsideration, unless we can
go back by common consent. Under ordinary circumstancas we
76
DEBATES OF THE CONVENTION.
can take up an article by common consent. When two or three
articles conflict it looks to be proper for the committee to arrange
the whole matter themselves. They can only change the articles
so that none will conflict, and the whole thing practically lies with
their action on the articles. It makes no practical difference, only
that if we adopt this amendment we will bind ourselves so that we
can discuss the articles again only by common censent if the six
days have expired.
The amendment was put and lost.
The original resolution of Mr. CAMP was then carried.
THE DEBATES AND PROCEEDINGS.
The following resolution, which had been introduced by Mr.
SELBY, was then discussed:
Resolved, That 500 copies of the transcribed stenographic report of the de-
bates and proceedings of this Convention be printed and published in bound
volume form for distribution among the members, and exchange with other
state and territorial libraries, and that the Legislature of the State at its first
session make an appropriation for the payment of such printing and publica-
tion, as certified to by the proper committee, unless such expense is paid out
of the Congressional appropriation to defray the expenses of this Convention.
Mr. STEVENS. I move as an amendment that the words eight
hundred be substituted for five hundred.
Seconded by Mr. ROLFE.
Mr. SCOTT. I would like to inquire what the expense of pub-
lishing 500 copies of the debates will be, and what will be the
difference between the cost of 500 and 800.
Mr. STEVENS. I would say that of course this is problematic
how large the volume would be, but at government rates, for the
volume such as we would have, the additional expense of 300
would probably not exceed $250.
Mr. SCOTT. It seems to me that if that is all the difference
we ought to have a thousand. Most of the gentlemen would like
to have their debates in circulation, and if we have any printed at
all, we should have a thousand.
Mr. STEVENS. I make this amendment for this reason:
When they are distributed among the various state libraries and
public institutions that will want them, there will not be to ex-
ceed two or three for each member. I think each member should
receive four or five, or six copies for distribution among his con-
stituents. If you distribute them among the public institutions
DEBATES OF THE CONVENTION.
77
:
in the United States it will take about all the 500 copies, without
any going to the inhabitants of North Dakota.
The amendment was carried.
Mr. CARLAND. I would move that the resolution of the
gentleman from Traill be amended by striking out the following
portion: "And that the Legislature of the State at its first ses-
sion make an appropriation for the payment of such printing and
publication, as certified to by the proper committee, unless such
expense is paid out of the congressional appropriation to defray
the expenses of this Convention." In support of my amendment,
I would say that I am of the opinion that the language in the
resolution would be inoperative, for this reason-that the only
way this Constitutional Convention can in any way pledge the
faith of the future State would be by a provision in the Schedule
of the Constitution, and that will be operative when the people
have voted upon it. A mere resolution of this Convention to the
effect that the future State shall pay for this printing is entirely
inoperative from the fact that this Convention has not the power
to bond the State or pledge its faith by resolution. I therefore
move that it should be so amended so that it will read:
Resolved, That 1,000 copies of the transcribed stenographic report of
the debates and proceedings of this Convention be printed and published in
bound volume form by the public printer for distribution among the members,
and exchange with other State and Territorial libraries.
And leave the expense part of the matter to be fixed by the
Schedule.
Mr. SELBY. Mr. PRESIDENT: My object in incorporating in
this motion the latter part which the gentleman from Burleigh
desires to have stricken out, was for the purpose of getting the
Convention to commit itself on the question of publishing the
debates if it desired to have them published. Then if it is the
sense of this Convention that the debates should be printed, a sub-
sequent Legislature will make the appropriation. If this resolu-
tion is adopted the Committee on Schedule will incorporate it in
their report.
Mr. CARLAND's amendment was adopted.
Mr. STEVENS. I move the adoption of the resolution as
amended.
Mr. SPALDING. I move that the resolution be so amended
as to include the distribution of six copies of the debates to each
member of the Convention, and one copy to each employe, and
DEBATES OF THE CONVENTION.
78
one copy to each State and Territorial library in the United States,
a copy to the Congressional Library and one copy to each of the
first State officers elected.
The amendment was carried.
Mr. STEVENS.
I move that the committee rise and recom-
mend to the Convention that the resolution as amended be adopted.
Seconded and carried.
The Committee then rose, and the Convention convened.
Mr. POLLOCK. I move the adoption of the report of the
Committee of the Whole.
Mr. SCOTT. If we figure out on a basis of a thousand copies,
six for each member will be 450 copies. If each State library is
only entitled to one and one to each Territory, and the Congress-
ional library one, and each employe one, that would only make
about 550. What are we going to do with the balance?
The report of the Committee of the Whole was adopted.
Mr. BLEWETT. I move to adjourn.
The motion prevailed, and the Convention adjourned.
SIXTEENTH DAY.
BISMARCK, Friday, July 19, 1889.
The Convention met pursuant to adjournment, with President
pro tem. JOHNSON in the Chair.
THE REVISION QUESTION.
Mr. LAUDER. There seems to be some misunderstanding as
to the exact meaning of the resolution offered by Mr. CAMP yester-
day. I desire that the resolution be reconsidered. My idea in
voting for it yesterday was that it would expedite business and I
did not carefully examine the language of the resolution. I was
well satisfied with its general import. The resolution reads as
follows:
Resolved, When the Committee of the Whole shall have recommended that
any proposition or article be made a part of the Constitution, such proposition
or article shall be referred to the Committee on Revision and Adjustment,
DEBATES OF THE CONVENTION.
79
whose duty it shall be to arrange in order and revise all such propositions so
that no part of the Constitution shall conflict with any other, and to report a
Constitution embracing all propositions and articles so referred, as so provided
and adjusted, for final adoption as a whole by this Convention.
It seems to me that there is a desire on the part of the members
of this Convention that when the Committee on Revision and Ad-
justment shall have reported, then the Convention as a whole shall
have an opportunity, not to vote on the Constitution as a whole,
but to vote on the adoption of each article separately. It would
appear from the reading of this resolution that the only thing the
Convention could do after hearing the report of the Committee on
Revision, would be to vote on the Constitution as a whole. The
Convention may desire to amend some articles after they have been
reported. I therefore move that the vote by which the resolution
was adopted, be reconsidered.
Seconded.
Mr. MILLER. I think that the last line of the resolution is
susceptible of two constructions. I know it to be the fact that the
mover of the resolution intended that the Constitution should be
reported here as a whole, and that it should then be voted on sec-
tion by section, and amended if this body saw fit. I have no ob-
jection to change that last line. The mover of the resolution did
not intend that we should be compelled to adopt the Constitution.
as a whole.
Mr. LAUDER. I understood the resolution the same as did
the gentleman from Cass. But I think it would be more satisfac-
tory to the members if it were so expressed in the resolution, and
that is the only object I have in moving a reconsideration of the
vote.
Motion to reconsider carried.
Mr. LAUDER. I move that the last line read "for final adop-
tion section by section by this Convention.”
Mr. BARTLETT of Griggs. I am opposed to the amendment
as well as the resolution. It seems to me that when the Com-
mittee of the Whole rises and reports to this Convention, that is
the time that report should be acted upon. I don't know why we
should defer the acceptance of that report till the Committee on
Revision has reported.
Mr. MILLER. I understand that the report of the Committee
of the Whole on any proposition stands in about the same
position as the report of any other committee. If the gentleman
80
DEBATES OF THE CONVENTION.
is correct, and we are to act after the committee rises and accept
any particular clause of this Constitution, that becomes a part of
the Constitution, and we may as well send these disjointed parts.
to the printer and let his devil set them up as to send them to the
Committee on Revision because they would have no opportunity
to change their phraseology or punctuation. For example, there
is one article introduced here that may become a part of the
Constitution which provides that any qualified elector of the State of
North Dakota is eligible to any office in the State. There are other
provisions introduced that may become a part of the Constitution
to the effect that a Judge of the Supreme Court must necessarily
have been a resident of the State of North Dakota for five or six
years. The Committee on Revision and Adjustment might add to
the first quoted article the words: "Unless otherwise provided,"
and make the one article conform to the other. If we act on
these articles and definitely decide to put certain articles in the
Constitution, before the Committee on Revision has had them
referred to them, the work of the committee is gone-there is
nothing for them to do. But if we refer the report of the Com-
mittee of the Whole to the Committee on Revision and they put
it together in logical and proper form, we can get our work prop-
erly and systematically done, and we cannot do it in any other
way. It is a straightforward proceeding-to refer the articles
from the Committee of the Whole to the Committee on Revision
and Adjustment, and I hope the motion of the gentleman from
Richland will prevail.
Mr. BARTLETT of Griggs. As Chairman of the Committee
on Revision and Adjustment, I may be mistaken as to its duties,
but I understand after this is adopted and referred to that com-
mittee, if we find there are sections that conflict we refer them
back and the Committee of the Whole then amend the work.
The Committee on Revision will have no power to change the Con-
stitution in any respect, except so far as there are gramatical er-
rors, and if there are any places where articles conflict those we
must refer back to the Convention for amendment.
Mr. STEVENS. I have nothing further to say that is different
from what I said yesterday. While I would not for a moment wish
to question the motives of either the mover or any other sup-
porter of this motion, I can see in my mind's eye that it is subject
to this objection-we are here not, perhaps, to legislate, but in a
sense to legislate, for various interests. Those interests are to be
DEBATES OF THE CONVENTION.
81
considered when they come up, and those interests have no right
to be apprised of what we are about to do in relation to them.
As for instance, the corporations have no right to know what this
body has passed upon as to effect their interests long enough to
interfere with the operations of this Convention. If this resolu-
tion is passed as it is presented here, every corporation will know,
and every interest will know, when passed upon by the Committee
of the Whole, and will have a right to swarm this town with a
lobby if they see fit, and attempt to entirely change the work of
the Committee of the Whole. I say that when it is adopted it
should be adopted as it comes from the Committee of the Whole,
and after that it will take two-thirds majority to rectify any mis-
take we have made. I know that at least two-thirds of the
members of this Convention are at all times and under all circum-
stances willing to suspend the rules and correct an error, if it is
shown to them. It will obviate the necessity of examining as
closely as we would have to do the report of the Committee on
Revision and Adjustment. If the plan is adopted that is pro-
posed in this resolution, it will make this Committee on Revision
practically the Committee of the Convention. Every word will
have to be scanned to see whether or not the propositions that
have been passed by the Committee of the Whole have been em-
bodied in the report, and for that reason, and for the strongest of
reasons to my mind, that no one interest should have notice a week
ahead of what this Convention proposed to do in this Consti-
tution there is objection to this propositions.
Mr. LAUDER. I fail to see the force of the arguments of the
gentleman from Ransom. We sit here with open doors. I sup-
posed it was the policy of this Constitutional Convention, as of all
such conventions, to give as great publicity as possible to its pro-
ceedings. I cannot see the force of his argument that corpora-
tions or special interests will know what we are about to do. The
Journal is supposed to contain everything we do, and it is public
property. I have too high a regard for the members of this Con-
vention to believe for a moment any such argument as has just
been made by the gentleman here. It seems to me that it is a
reflection on the members of this Convention to talk about flood-
ing this town with railroad lobbies or any other lobbies.
It seems
to me that the resolution here that I have offered presents the
best and the simplest way to proceed in this matter, and it seems
to me that the explanations offered by the gentleman from Cass are
6
82
DEBATES OF THE CONVENTION.
satisfactory and should be regarded as such. When an article is
recommended by the Committee of the Whole to become a part
of the Constitution, it is then referred to the Committee on
Revision and Adjustment. When they have finished their labors
that instrument is brought back to the Convention and becomes.
the property of the Convention. It can be taken up, examined
section by section, adopted, so every member of the Convention
will have an opportunity to go on record on every proposition
contained in the Constitution. It was, Mr. PRESIDENT, for the
purpose of giving every member an opportunity of placing him-
self on record on every proposition that I offered this amendment.
It was for the purpose of giving the fullest debate, the widest
discussion, the most extended consideration of each and every
article in the Constitution-and it seems to me that this is the
proper way that I have introduced this motion.
Mr. ROLFE. I am opposed to any course of proceeding which
will defer final action on any article until the Committee on Revis-
ion and Adjustment are able to report an entire Constitution. For
various reasons-one because our action on certain articles would
depend largely on the action of the Convention on other articles. As
an illustration—the Committee of the Whole can take no action on
apportionment until the Convention has previously acted on the
question of the number of members the Legislature is to be com-
posed of. The idea that we are none of us to know anything as to
what the Convention will finally do as to specific articles until the
entire Constitution is ready to be passed on is out of the question.
It seems to me that it is the natural and logical course to pursue,
that when the Committee of the Whole have reported on a pro-
posed article that the Convention should then pass that article or
reject it, and then it can be referred to the Committee on Revision
and Adjustment, and that should be done from day to day as the
Committee of the Whole may pass on the several proposed articles.
We can thus limit the action which we will allow the Committee
on Revision and Adjustment to take, so that their duties shall be
simply clerical-so that their duties shall not embrace much of
any work beyond making certain grammatical changes or the like.
We can by resolution limit that committee so that it shall not be
an important committee further than its obvious duties are con-
cerned-simply that of revision and adjustment. I am opposed
first and last and all the time to this continued deferring of our
work to some distant point in the future.
DEBATES OF THE CONVENTION.
83
Mr. STEVENS. I rise to a question of personal privilege. If
my remarks were susceptible of the construction that the gentle-
man from Richland put upon them, I assure you it was the furthest
from my mind to express such a sentiment. I did not understand
that what I said was capable of such a construction. I believe
that every man in this Convention is as honorable, at least as my-
self, and I believe that every man in this Convention will be as far
from being influenced by a lobby as I would myself. I shall believe
that till I see to the contrary, but at the same time I do believe
that a lobby in this town attempting to get engrafted into this
Constitution any article, would impede our business and be an in-
jury to the Constitution, honest though we may be.
Mr. BEAN. There is a motion before the House to amend this
resolution. Yesterday we spent half or three-quarters of an
hour going over this same ground. Now the same persons are
going over the same ground again, expressing the same ideas
that they had yesterday. But now the question is not on the res-
olution but simply on the amendment offered by the gentlemen
from Richland, and I don't believe that there are half a dozen
persons here who are opposed to the amendment itself.
The amendment was then put and carried.
Mr. WALLACE. There seems to be an impression prevailing
that this Committee on Revision have the authority and the
power to take up the various articles and disturb the ideas that
are there engrafted. I take it that the duty of the committee
consists in putting these articles in symmetrical order and arrang-
ing the substance of the matter, but in no way to make any
change that will change their intent. If we send to the Com-
mittee on Revision and Adjustment this Constitution before we
have adopted it, it places it in their hands in such a way that
they can change the phraseology so as to seriously impair the
meaning of the various articles that have come before them. It
seems to me that the proper course would be when the Committee
of the Whole rises it should report to the Convention what it has
done, and then the articles go to the Committee on Revision and
Adjustment, and they simply correct grammatical errors. It seems
to me that in case they have the right to insert here and change
there, without specifying what they have done, we will finally
have to go over our work again and examine it word by word, to
see that we have got what we passed upon.
Mr. SPALDING. I concur in the remarks of the gentleman
84
DEBATES OF THE CONVENTION.
from Steele in regard to the work of this committee; also with the
remarks of the gentleman from Richland that under this resolu-
tion we propose to take it out of the hands of the Committee on
Revision and Adjustment, so that they cannot, if by any reason
they do make an amendment to the Constitution which would ef-
fect the intent-so that they can't tie our hands and prevent us
from changing it back to its original intent. If it first is reported
to the Committee on Revision and Adjustment, and then they
make a change, the Convention still has it in its hands to reject
or amend, or do what they please. It seems to me that the thing
for us to do is to pass this resolution.
Mr. MOER. I understand that the amendment does not pro-
vide for adopting the Constitution as a whole at all. There should
be an adoption of it as a whole after the adoption by sections. I
move to amend by adding the words: "And to be then adopted
as a whole.”
Motion to reconsider was carried.
Mr. WILLIAMS. There seems to be quite a division on this
proposition. I cannot see any reason for forcing this through at
this early day. I am really in favor of further consideration, and
I move that the resolution be laid over till Monday and then come
up under the head of unfinished business.
Mr. NOBLE. This resolution has already been before this
Convention once, and was then considered pretty thoroughly, and
the motion to reconsider is simply to get in a small amendment.
I don't see the necessity of delaying this matter till Monday, and
then going over all this ground again. The resolution itself has
been considered thoroughly.
Mr. WILLIAMS. It has been suggested to me that Tuesday
would suit some of the members better. Therefore, with the con-
sent of my second, I will make it Tuesday—under the head of
unfinished business. I will say that the resolution has been re-
considered and is now before the Convention. It is before us for
action.
Mr. ROLFE. I may be wrong, but it occurs to me that possibly
many members of this Convention have in their minds the idea
that action of the Committee of the Whole is action of this Con-
vention.
The Chair ruled that the question to postpone to a day certai n
was not debatable, and the motion of Mr. WILLIAMS was then put
DEBATES OF THE CONVENTION.
85
and lost. The resolution as amended by Messrs. LAUDER and
MOER was then adopted.
Mr. PARSONS of Morton, introduced the following resolu-
tion:
Resolved, That the Committee on Revision and Adjustment be instructed
to report to this Convention every change made in the text of matter referred
to it.
Seconded.
Mr. MOER. It seems to me that this resolution is useless, as
the Committee on Revision and Adjustment must refer these
articles back to the Convention, and certainly the Convention will
take notice of any change. It seems to me that it is useless to
call on them to make such a report.
Mr. WALLACE. I take it that it would enable the members of
this Convention to see much more easily what corrections had
been made if they were pointed out as this resolution calls for. It
would be a good deal like looking for a needle in a hay stack, and
I think it is proper that we call on them to point out exactly what
changes they have made. We may find their changes after a very
careful hunt and we may not.
Mr. BARTLETT of Griggs. I hope that this resolution will
pass. If by any accident a change of one word should change the
phraseology or the meaning of any section, and this Convention
did not notice it, I don't want it said afterwards that I purposely
did it, and I hope that the committee will be compelled to note
every change made.
The resolution carried.
COUNTY AND TOWNSHIP ORGANIZATION.
In Committee of the Whole section one of the report of the
Committee on County and Township Organization was read as
follows:
SECTION 1. The several counties of the territory of Dakota lying north of
the seventh standard parallel, as they now exist, are hereby declared to be
counties of the State of North Dakota.
Moved and seconded that it be adopted.
Mr. SCOTT. I move that the word "organized" be inserted in
the first line before the word "counties."
Mr. COLTON. I should like to know what state or territory
we will put the unorganized counties in? We have some little
country that is not organized.
86
DEBATES OF THE CONVENTION.
*
Mr. SCOTT. It seems to me that if we let this article go as it
is without the amendment that I have proposed, the boundaries of
the counties, whether the counties are organized or not, must re-
main as they are to-day.
Mr. ROLFE. Under section two no such thing as that sug-
gested would take place. That provides for the changing of
county lines, whether organized or unorganized, by the Legisla-
ture, under a general law to be passed. As one of the members
of the Committee on Township Organization, I would say that it
was the design of the committee that that should simply establish
or fix the boundaries of the counties which should come into the
new state. It does not necessarily fix them forever, but now.
Mr. SCOTT. I withdraw my amendment.
The section was adopted.
Section two was then read as follows:
SEC. 2. The Legislature shall provide by general law for organizing new
counties, locating the county seats thereof temporarily and changing county
lines; but no new county shall be organized nor shall any organized county be
so reduced as to include an area of less than twenty-four congressional town-
ships, and containing a population of less than 1,000 bona fide inhabitants.
And in the organization of new counties and in changing the lines of organized
counties the boundaries of congressional townships and natural boundaries
shall be observed as nearly as may be.
Mr. CLAPP moved to amend by striking out the words "twenty-
four," and inserting "sixteen." He said: If this were a Legisla-
ture it might be all right to leave it as it is, but as it is a conven-
tion making a constitution for all time, to say no county shall be
formed less than twenty-four by thirty-six miles is going too far.
Mr. POLLOCK seconded the amendment.
Mr. McHUGH moved as a substitute that the word "twenty"
be inserted instead of "twenty-four."
Seconded by Mr. ELLIOTT.
The substitute was lost.
Mr. WALLACE. Is seems to me that if counties are made
only with sixteen townships they are pretty small. In the county
from which I come there are twenty townships, and it is plenty
small enough. I would not be in favor of making it any less than
twenty.
Mr. CLAPP'S amendment lost and section adopted as it came
from the committee.
Section three was then read as follows:
}
DEBATES OF THE CONVENTION.
87
SEC. 3. All changes in county boundaries in counties already organized,
before taking effect shall be submitted to the electors of the county or counties
to be affected thereby, at the next general election thereafter, and be adopted by
a majority of the legal votes cast in each county at such election; and in case
any portion of an organized county is so stricken off and added to another, the
county to which such portion is added shall assume and be holden for such
portions, part and proportion of the indebtedness of the county or counties
from which it was so stricken.
Mr. MOER moved its adoption. Seconded.
Mr. BARTLETT of Griggs. I shall have to ask for informa-
tion before I can vote on this. The last three lines are indefinite.
What proportion are they to assume? If one-half, are they to pay
one-half? If one-third, then one-third? It seems to me that
there should be a proportion fixed, and the just rate would be the
proportion of the assessable property cut off. I should like some
explanation as to what proportion they propose to pay.
Mr. MILLER. I am in the same fix. I don't understand this
section. It reads as follows: "All changes in county boundaries
* * * * at the next general election thereafter." Thereafter
what? What does it refer to? There certainly can't be any
changes in the boundaries until the election has taken place. I
don't know how that could be construed, or if it is susceptible of
two or three constructions. Going a little further, I am of the
opinion that all the balance of this File No. 63 after section No. 2
is a matter more properly pretaining to legislation and to be con-
sidered by the Legislature, rather than by us here. We have es-
tablished in sections one and two the counties and the conditions on
which counties can be made, and that is all that is neces-
sary for us to do. All the other matter is there to forestall some
action of the Legislature. I deem it inadvisable and improper
for us to do this. If the other members of the Convention differ
with me I should like to have that section three construed so that
I can understand it.
Mr. MOER. The point raised by the gentleman from Cass on
the word "thereafter" while possibly it may be well taken-it
seems to me that that word refers directly back to section two,
which provides that the Legislature shall provide by general law,
etc. The Legislature shall do this, and it seems to me the only
construction would be that after the Legislature had provided for
an election at the next general election thereafter the vote should
be taken. I am strongly in favor of the opinion expressed by the
gentleman from Cass as to all the article after section three. I
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DEBATES OF THE CONVENTION.
}
move that the section be adopted merely to get it before the com-
mittee. I believe that this is absolute legislation, and if we are
to go on in this way we are going to have a Constitution twice as
long as the Sioux Falls Constitution, which I regard as utterly
useless. I believe that all of this section should be stricken out.
Mr. MILLER. In relation to File No. 63, which we are now
discussing, I move to amend the motion of the gentleman from
Dickey by moving to refer it back to the Committee on County
and Township Organization, from whence it came, with the opin-
ion that the balance of the entire bill is not for action of this
Convention but for the Legislature.
Seconded.
Mr. MILLER. I desire to call the attention of this body to
section nine of this article, which reads as follows:
SEC. 9. In each organized civil township there shall be elected, at the
first general election, for such terms as the Legislature may by law prescribe,
three township supervisors, one of whom shall be designated Chairman, and
the chairmen of the several boards of township supervisors shall together con-
stitute the county board of their respective counties.
That clause would leave much of the new State of North Dakota
entirely unrepresented on the county boards. I will refer in the
first instance to the effect it would have, for instance, on Morton
county. If the townships were organized, there would be from
eighty to ninety members of the county board-a body larger
than this body here. It would be an exorbitant expense and en-
tirely useless and unwieldly. In the next place take Cass county.
We have forty-nine organized townships. That would make our
county board consist of forty-nine members as this bill now stands.
The city of Fargo has about half the population of the county-
not quite that, but that city would have no representation on the
county board as allowed by this bill. In other words about one-
half the voters in Cass county would be disfranchised so far as
representation on the county board was concerned. The board
alone would consist of forty-nine members, and no representation
from the cities of Fargo and Casselton, which two cities have a
large proportion of the population of the county. In case that
this bill is so amended as to give these cities representation,
it would increase the membership of that board to over sixty
members, and with their clerks and attaches would make a con-
vention for the board of county commissioners as large as this
Convention that has assembled here for the purpose of forming a
DEBATES OF THE CONVENTION.
89
Constitution for the whole of North Dakota. These men could
not work for less than $3 a day each, and they would travel
upon an estimate, at least twenty miles each to reach the county
seat to hold their sessions. This would make $180 a day fees for
their per diem, and their mileage would be forty miles each-
twenty going and twenty returning-which would give them $4
each or a total of $240 more to be added to each session. It has
been urged that the township should pay its member for his at-
tendance on the Board of County Commissioners. But it is as
broad as it is long. If the township pays it must tax, but if the
county pays it must tax too, and then the expense would be spread
over the entire county. It seems to me that this is a serious ob-
jection to the bill. I should be in favor of the Legislature pass-
ing a law which would give counties an opportunity of trying this
plan, but to make this innovation, and make these large Boards of
County Commissioners as a part of this Constitution, which it will
be impossible to change for many years, I deem unwise and un-
safe-something that we should not do. Many of the gentlemen
who favor this class of township representation on the Board of
County Commissioners, have lived in states where that system is
in vogue. I lived in the State of Wisconsin, but the counties
there are very small, composed of but few townships, and the
boards vary there from nine to twelve and fifteen members. In
this Territory the counties are composed of from forty to eighty
and ninety townships, thus giving you as large a membership to
the Boards of County Commissioners as you have in both houses
of the Territorial Legislature. I don't know but that I should
vote for this bill if this were a Legislature instead of a Constitu-
tional Convention. The experiment might be worth trying, and I
am in favor of leaving it to the Legislature to be tried, if by vote
the counties see fit to try it. There are some other objections to
all the articles of this bill, and I hope the motion will prevail and
this bill be re-referred to the committee with the recommenda-
tions that I have suggested.
Mr. GRAY. I would like to ask the gentleman where he gets
his authority for saying that the new boards would want so much
per day. Is there anything of the sort prescribed in the bill? Is
not that a matter for the Legislature to regulate? I don't under-
stand what right he has to say that the members would be paid $1
or $4 or $5 a day. There are men, good men, in our town who
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DEBATES OF THE CONVENTION.
are willing to work for $1.50 a day, and there is no reason for say-
ing that $3 a day would be the price.
Mr. MILLER. The statement as to $3 a day was entirely pre-
sumption on my part. I assumed that any person who was quali-
fied to sit as a member of the board could not be expected to sit
for less than $3 a day. His hotel bills would be $2, and he should
have some compensation in addition to that, and the Legislature
in providing compensation for the service would at least pay them
for their time and service what their actual expenses would be.
Mr. GRAY. We find plenty of men who are ready to serve
their townships at $1.50 a day, and we think we could find some
more who would be ready to serve them for $2 a day at least.
Mr. MOER. There are other as objectionable features. Section
four for example-this is purely Legislative. Section five, too;
section four reads as follows:
SEC. 4. In counties already organized, where the county seat has not been
located by a vote of the people, it shall be the duty of the County Board to
submit the location of the county seat to the electors of said county at the first
general election after the admission of the State of North Dakota into the
Union, and the place receiving a majority of all votes cast at said election
shall be the county seat of said county. If, at said election, no place receive a
majority of all the votes cast, it shall be the duty of the County Board of said
county to re-submit the location of the county seat to the electors of said
county at the next general election thereafter; and the electors at said election
shall vote for one of the two places receiving the highest number of votes at
the preceding election. The place receiving the majority of all the votes cast
for county seat at said second election shall be the county seat of said county.
It seems to me that this is purely legislative, and that if we
are to go on the theory as embraced in the File submitted by the
Committee on County and Township Organization, it seems to me
that we will legislate on every subject that it is possible to
bring in.
We shall have enough legislation, do the best we
can, and it seems to me that the whole thing should be stricken
out. It is a matter for the Legislature to say how we shall change
county seats. Section six is perhaps wise. It reads as follows:
SEC. 6. The Legislature shall have no power to remove the county seat of
any organized county.
We don't want to go on and tell the Legislature just exactly what
they will have to do to change county seats, or in the organization
of boards of supervisors. In my county the mileage alone would
cost our county $150 every session, and in view of the fact that we
have a great many very large counties, it seems absurd for us to
DEBATES OF THE CONVENTION.
91
attempt to inaugurate a general supervisor system. The only men
who favor it, it seems to me, must be the men who come from
states where it is in vogue and where there are nothing but little
counties. I am heartily in favor of referring this to the committee
again.
Mr. SPALDING. I would amend the amendment by including
as desirable for us to adopt all of sections six, seven and ten, except
the word "other" in the tenth section. These are not matters of
legislation, but are limitations on the Legislature, and I believe
they would be proper sections for this article, and that they don't
come within the objections made by the gentlemen who have just
spoken.
Mr. MILLER. With the consent of my second I will accept
that as part of my amendment.
Mr. STEVENS. I am heartily in favor of re-referring this
report to the committee, but I am opposed to instructing them that
we won't have county township organization, and I will ask for a
division of the question. I desire to vote on the question sepa-
rately. I am opposed to doing away with the county township
system, either that, or such as the committee may recommend. I
have lived under it, and in counties where the county seats are
located anywhere near the centre of the counties, the mileage is
not very heavy.
The CHAIRMAN. How shall the question be divided?
Mr. STEVENS. First whether it shall be referred, and second
whether the recommendation shall be given to the committee.
Mr. SCOTT. I think that we can make better progress if we
take up this report section by section. There are some sections
that I favor, and some that I am opposed to. I don't believe that
we should adopt three, four or five, but I think six is all right, and
I am not so sure but some of the remaining sections are perfectly
proper. At all events if this report is going to be re-referred to
the committee it should be informed as to what our wishes are in
the matter, and we should decide whether we are in favor of town-
ship organization going into it or not. Then the committee will
know what to do with it. Take section seven-I am not clear that
section seven is not all right, and so with eight, and with section.
six I think there is nothing the matter with it.
Mr. ROLFE. I suppose that we shall, before we get through
with our work here, listen to the cry of proposed legislation a
good many times. If the cry is listened to, our Constitution will
92
DEBATES OF THE CONVENTION.
probably be a very small and comparatively unimportant docu-
ment. I undertake to say that pretty nearly every member, if not
every member, has suffered at the hands of the Legislature in one
respect or another to a sufficient extent to make him suspicious of
Legislatures. If the real and honest intent of this Convention is
not to introduce some wholesome legislation into the Constitution,
then we had better go home at once. In regard to section three,
it does not seem to strike the gentleman from Cass as being par-
ticularly objectionable, except that it is legislation. But he
undertakes to throw a cloud on section three by attacking section
nine. He undertakes to blot out all respect for three by insisting
that section nine is in our present condition a ridiculous system
to introduce. Now, let section three stand on its own merits if it
has any. Let us settle this report of this committee section by
section. If section three is not a wholesome restriction on the
Legislature, let us blot it out. But don't get a new report on sec-
tion three because section nine is bad. I apprehend that there
are many here who are in the same position that I am in-who
have suffered from abuses that have arisen from a system that
has been in vogue, and which system section three will correct.
In the county from which I come, we were obliged to vote for the
candidate for Delegate to Congress last fall that we did not want.
a man who belonged to a different party, because it was the
only way in which we could preserve our county intact.
made a trade; the party to which I belonged was obliged to make
a trade with the opposite party, and we voted for their candidate
for Delegate to Congress and they in return voted for our candi-
date for the Council who was pledged to oppose and defeat, if
possible, any measure looking to the cutting up of our county.
We sacrificed our political principles in many respects for the
purpose of preserving our county life. Now I apprehend that
there are a good many here whose experience has been similar.
They will agree with me that there is some merit in section three.
Therefore I am very much in favor of considering this section
alone.
We
Mr. MILLER. The gentleman suggests that he has suffered at
the hands of the Legislature. That may be admitted, but the
suffering may be remedied after two years; the suffering that will
be occasioned to the people of this Territory if these sections are
adopted will be universal and will last for more than ten years
before this Constitution can be amended. There is not an indi-
DEBATES OF THE CONVENTION.
93
vidual taxpayer who won't feel it. I have no doubt but that legis-
latures sometimes trample on the toes of people and localities who
try to organize counties. Their financial interests are trampled
on, and as Judge Cooley very wisely said, we have to trust some-
body in the future, and the Legislature seems to be the only tri-
bunal that we can trust in these matters.
Mr. WALLACE. It seems to me that the best thing we can do
is to take up this matter section by section.
Mr. NOBLE. I move that the committee do rise, report pro-
gress and ask leave to sit again.
The question was put and lost.
Mr. MILLER. My motion is that section three be re-referred
to the committee with the opinion of this body that it is proper
subject for legislstion, but should not become a part of this Con-
stitution.
Mr. APPLETON. As one of the committee that submitted
this report, I would say that we were of the opinion that section
three was not legislation. It seems to me that there is nothing
wrong in this Convention saying that all changes in county bound-
aries shall be submitted to a vote of the people. We are simply
saying that before a change is made in any county the people shall
have a voice in the matter. We say that where the people vote to
be set off and be made a new county, they shall assume their por-
tion of the debt of the county. It did not seem to me that there
was anything unfair about the proposition that before any of the
boundaries or lines of the counties shall be changed, the people
shall have a chance to vote upon it. I move that section three be
adopted.
Seconded by Mr. COLTON.
The Chair ruled that a motion to refer back is not capable of
being amended.
Mr. O'BRIEN. As I understand it the motion of the gentle-
man from Cass would be practically of no effect at all. If this
motion prevails, then section three goes back to the committee.
But for what purpose? What are they to do with it? Are they
to change it and bring it back to us again in the shape of another
report? It seems to me that a better plan would be for us to take
this up and discuss it in Committee of the Whole, and if we ar-
rive at the conclusion that it is legislation, of which I am some-
what of the opinion, we can settle it right here without burdening
the committee again with it. I think it would be a great deal
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DEBATES OF THE CONVENTION.
better for us to settle it here. There will probably be a great
many other subjects that will come up in the same way and if
they are to be referred back after half an hour or an hour's dis-
cussion, the committee may make another report like the first and
we will never reach the end of our discussions. But if after a
full and free discussion of this matter we are of the opinion that
it is not proper subject to be incorporated in the Constitution, that
settles it, and we can proceed to something else. For that reason
I oppose the motion of the gentleman from Cass.
Mr. COLTON moved that section three be adopted.
Mr. BARTLETT of Dickey. Whether this is legislation or
constitution I cannot say, but of one thing I am certain—it is
good, wholesome law. I know that it should be in the Constitution,
and that is why I am in favor of it. I have listened with great
pleasure to the arguments of the gentlemen in whom I have
confidence as lawyers, but that section suits me mighty well.
Mr. HARRIS. I move to amend section three by adding
after the last word the following: "As the assessed valuation of
the part so stricken off shall bear to the total assessment of said
county or counties."
Mr. COLTON. I would accept the amendment and I would
have put it in, but I saw that there are so many who want to leave
the Legislature something to do, and I thought it would be well
to leave that to them. I believe at the same time that in the mat-
ter of the dividing of counties it is well to let the people have a
voice, and that is why I am in favor of having this article adopted
as part of the Constitution. I have seen the effects of there
being no restrictions on the Legislature; I have seen cases where
the Legislature has, without consulting the people, taken part of
one county and added it to another, and made the county that
took the piece, pay what they had a mind to. It is not right to
leave it so that a Legislature can make one county take a piece
from another whether they want to do so or not.
Mr. MOER. I move to strike out all of section three after the
word "thereby" in the third line.
The amendment was declared to be out of order, and it was then.
moved as a substitute.
Mr. ROLFE. In the minds of the committee there was a good
reason for every word in that section, and I would like the mem-
bers of this Convention to analyze it carefully. It provides that
changes in counties shall not be absolute when passed by the Leg-
DEBATES OF THE CONVENTION.
95
islature. I believe that there is no question as to the wisdom of
that. But further, we wish to bind the Legislature to provide for
two or three items that are of importance to the voters in each
county. First, that they shall not be cut up without a chance to
say something about it at the polls. Second, that the county shall
not be cut up unless the entire county has something to say, and
third, the county shall not have a portion put on it without hav-
ing something to say about it. Fourth, that the section of the
county that is to be cut off shall not have the entire say in the
matter. It is manifestly unfair that a portion be stricken from a
county to be added to another unless the entire voting population
in the two counties so affected, or three or four counties, as the
case may be, without having a voice in the matter.
I have seen
the most fertile portion of the county which I represent taken
away from the rest of the county, simply on the vote of the part
which it was proposed to cut off-a small part containing not more
than a hundred votes. The oldest settled portion of the county
-the best portion-cut off simply by the votes of the parties liv-
ing in the other part. There was no provision that the part so cut
off should bear any part of the indebtedness already existing, but
both counties subjected to the change made by the votes of those
few people in the territory cut off. It seemed to this committee
that that was manifestly unfair. In regard to the latter part of
the section, it is provided that the county receiving the part cut
off shall assume the proportion of the debt properly belonging to
the portion so cut off, and it was thought that if the Legislature
would pass a bill, any bill so changing a county, then in order that
the measure might be popular it would be necessary for the Leg-
islature in the same act to provide for an equitable adjustment of
the debt, and provide the details for the assumption by one county
of the debt. Remember, it was the design of the committee to
embody the principle simply in this section and leave the details
to the Legislature.
Mr. MOER. I want to call attention to the fact that all that
has been urged in regard to section three has been that under it
the Legislature would not be able of itself to cut a county to
pieces. Now the first three lines of the section are sufficient for
that purpose. Those three lines make it necessary for the Legis-
lature to submit the question to all the electors of the county or
counties affected. Let us take it for granted that the Legislature
will give us a little decent legislation, and let us not put it all in
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DEBATES OF THE CONVENTION.
the Constitution. Let us presume that the Legislature will pro-
vide that the portion set off with the county or counties it is at-
tached to, shall bear its portion of the existing indebtedness.
What is the use of having it all in here? By adopting these three
lines, we give all the protection to the counties that seems to me
to be necessary.
Mr. WALLACE. The gentleman seems to fear that we shall
not leave the Legislature anything to do. He seems to think that
if we leave it to them they will go on and do what we have here
sought to compel them to do. I don't see why this article is not
just what we want. I think the gentleman from Burleigh has
struck the right thing with his amendment.
Mr. APPLETON. I agree with the gentleman from LaMoure
that the first three lines of this section are the most important,
admitting with him that those lines should go into the Constitu-
tion, and I would ask if there is anything inconsistent in saying
that a majority vote shall be required? Further, I would ask if
there is anything wrong or inconsistent in saying that any portion
of the county cut off shall bear its part of the existing indebt-
edness? If this is good legislation, why not put it into the Con-
stitution? Why leave to the Legislature something to do which
the gentleman admits is right?
Mr. MOER. I admit that a great many things are right; I ad-
mit that this is right, but I believe that the Legislature could en-
act it. We might as well say that because murder should be pun-
ished, we should say how it should be punished. That is the only
point I make against it.
The substitute motion was then put to a vote and lost by 32 for
and 34 against.
Mr. JOHNSON. If there is an argument in favor of that
amendment I don't see it. It occurs to me that the principle of
the amendment is wrong. That is not the just method of deter-
mining the liability of each portion of the county. I think we
have a very striking example now in the Joint Commission as to
how debts should be divided when territories separate. I think
the committee has prepared the article just as it should be with-
out any amendment. The amendment would require you to divide
the debt, not with reference to the benefits that had been received;
not with reference to the causes for which the debts were created,
but simply with reference to the future ability to pay. Suppose
the portion stricken from the county had within its territory the
DEBATES OF THE CONVENTION.
97
value received for this debt; suppose the bridges for which the
debt was incurred were all in that portion; suppose the public
buildings or improvements were all located in the portion to be
stricken off; would it be fair and just then in saying who shall pay
that debt, to figure up simply the present property valuation, and
make that part of the county which derived no benefit, pay as much
as that part which derived all the benefit? Leave the article just
as it was reported by the committee that prepared it, and then the
Legislature can provide that the debt shall be divided equitably
between the different portions, or if no provision is made the
courts will settle it equitably. The article as it comes from the
committee provides that the portion so set off shall with the county
to which it is added, assume and be holden for such part and pro-
portion of the indebtedness of the county from which the piece
has been taken. That would leave it an open question to be
decided in a court of equity-as to what proportion each county
shall bear. A commission could be arranged for to take evidence
as to what was the cause of the indebtedness, and to repay it.
Therefore I am decidedly opposed to the amendment offered by
the gentleman from Burleigh.
&
Mr. HARRIS. As I understand section three without the
amendment, in case a portion of an organized county is stricken
off and detached from one county and added to another, the
county that gets the addition only assumes that part of the in-
debtedness which the area of the part so stricken off bears to the
whole area of the county. It says: "In case any portion of an
organized county is so stricken off and added to another, the
county to which said portion is added, shall assume and be holden
for such portions, part and proportion of the indebtedness of
the county or counties from which it is stricken." My amend-
ment was intended to cover the proportion which the part stricken
off should assume; without that amendment, in case, for illustra-
tion, the township in which the City of Bismarck is situated
should wish to be stricken off and attached to Morton county, the
amount of indebtedness which Morton county would assume
would only be the part which the area of this township bears to
the whole of Burleigh county. This would not be just. If they
are to take the amount of property that we have here, they should
certainly assume the amount of debts which that would carry
with it, and my amendment was intended to provide that the pro-
7
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DEBATES OF THE CONVENTION.
portion assumed should be a just proportion, and should be in
proportion to the total assessed value of the whole county.
A vote on the amendment of Mr. HARRIS was taken with the
result that it was adopted by a vote of 42 to 6.
Mr. COLTON pressed his motion that section three be adopted
as amended.
Mr. SCOTT. There is a misunderstanding as to the import of
this article. In section two we have provided everything that is
necessary for the Constitution. We find there that the Legisla-
ture shall provide by general law for organization of new counties,
for the location of county seats temporarily, and likewise by gen-
eral law for changing county lines. Now then, we have given the
Legislature all the power in that respect that we can give them,
and then we propose to go and take away certain of their powers
by section three. We form half a law, and say that the Legisla-
ture when it makes this general law shall put in it certain provis-
ions, one of which is that the question shall be submitted to the
votes of the electors of the county. It would be a peculiar Legis-
lature that would make a law regulating these affairs that would
not submit it to a vote of the people after this. If they make a
general law, they would require in it that these matters be sub-
mitted to a vote. Section three provides that it shall be approved
by a majority. The Legislature cannot require anything less than
that. When we require in section two that the Legislature shall
pass a general law, it does not look right for us in section three to
make half a law ourselves. I move as a substitute that the whole
of section three be stricken out.
Substitute lost by 35 to 28.
Section three was then voted on with amendment of Mr. Harris,
and carried by 41 to 25.
Mr. PARSONS of Morton. I move to adjourn.
The motion prevailed, and the Convention adjourned.
!
DEBATES OF THE CONVENTION.
99
SEVENTEENTH DAY.
BISMARCK, Saturday, July 20, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
The Convention adjourned without transacting any business.
NINETEENTH DAY.
BISMARCK, Monday, July 22, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. BOLLINGER.
Mr. PURCELL. In view of the fact that many of the delegates
present are anxious to be relieved of duty as fast as possible, and
in view of the fact that to-day is the last day for the presentation
of articles, I move that all standing committees be required to
make their reports by Thursday of this week.
Seconded and carried.
SOUTH DAKOTA CONSTITUTION.
Mr. PARSONS of Morton moved the following resolution:
"
Resolved, That the Constitution of South Dakota as appears in Long's
Legislative Hand Book, (a copy of which is upon the desk of each member) be
considered as introucded for adoption by this Convention, without being
printed in the Files or Journal.
Mr. WALLACE. I should like to know if it is intended to
print the Constitution either in the Journal or in the Files.
Uor M
100
DEBATES OF THE CONVENTION.
T
Mr. PARSONS of Morton. I supposed that the resolution.
was clear enough. The only printing that we have done is in the
Journal and the Files, and my resolution specially says that the
Constitution of South Dakota shall not be printed. I introduced
the resolution simply that we might have the Constitution before
us as an assistance in future debate. The Constitution is right
here and we can refer to it. There are several matters coming be-
fore us which are brought out in this Constitution, and I think it
would be wise for us to have the privilege to refer to it if we want
to.
REBUKING A COMMITTEE.
An article introduced by Mr. RICHARDSON, known as File No. 46,
was referred back to the Convention by the Committee on Revenue
and Taxation, with the statement that as the matter was covered
by other articles, the committee had no further use for it.
•
Mr. RICHARDSON said:
I rise in protest of the way these
Files are handled by the committees. It appears that there have
been several propositions or proposed articles handed in to the
committees covering the same ground. For instance, the pre-
amble or the prohibition question, and in fact there is hardly any
matter that is not covered by two or more proposed articles. I
don't see why one particular article should be taken out from the
numerous articles and flung back at the parties bringing it in, un-
less it is an established rule that every article which the commit-
tee does not see fit to adopt is to be sent back in this way. I sup-
posed that the proposed articles went before their respective com-
mittees, and that the committee acted on them and from their own
ingenuity they selected or made out a report, and that report, if
accepted and adopted by the Convention, became one of the art-
icles of the Constitution. It seems, however, in this case, that
one or two articles are brought out separately and thrown out,
while there are other cases where several articles are handed to
the committees that are all alike, and these are retained in the
hands of the committees that are all alike, and these are retained
in the hands of the committees. Mr. PRESIDENT, it seems to me
that this Convention has no right justly to say that one proposed
article shall not remain with the committee until their final report
any more than that all shall. I would move that this article be
referred back to the committee.
Mr. WILLIAMS. It seems to me that the remarks of the
DEBATES OF THE CONVENTION.
101
gentleman are fair. If the committee wishes to adopt a substi-
tute for this article they can report the article back when they
report the substitute. It seems to me that it is hardly proper to
select one or two articles to return to the Convention in this way.
Let the File be recommitted, and if the committee has something
better let it report a substitute.
File No. 46 was recommitted to the committee.
Mr. LAUDER. I am a member of the committee, and I desire
to say to the gentleman from Pembina that there was no disrespect
to the gentleman from Pembina, or his proposed article intended,
but when we came to look over the articles we found that we had
half a dozen or so covering the same ground, and if the commit-
tee returned only this one, it was because we had not got through
with the balance.
Mr. PARSONS. Would it not be well to have a resolution
passed providing that all Files or articles referred should not be
reported back until the final report of the committee, except such
articles as are recommended to be referred to another committee.
Mr. RICHARDSON'S motion was carried.
Mr. PARSONS of Morton. I move that all articles submitted
to committees be not reported back to the house until the com-
mittees send their full report, except such articles as they may
send with the recommendation that they be referred to some other
committee.
The motion was seconded.
Mr. WILLIAMS. I think it would be better to leave this to
the discretion of the committees. After this informal discussion
that we have had I think the committees will understand what is
expected of them. I think it would be better not to adopt this
resolution, and thus tie up the hands of the committees.
Mr. STEVENS. I move as a substitute motion that all matters
reported from any committee shall immediately be referred to the
Committee of the Whole, and be taken up at the time the report
of the committee is discussed.
Mr. PARSONS of Mortion. I withdraw my motion.
Mr. STEVENS. I withdraw my substitute.
Mr. MOER. I move that the vote by which File No. 44 was
indefinitely postponed be reconsidered.
Seconded and carried.
Mr. MOER. I move that File No. 44 be referred back to the
Committee on Revenue and Taxation.
DEBATES OF THE CONVENTION.
102
The motion carried.
Mr. ROBERTSON. I move that the several standing commit-
tees hereafter report back to the Convention no articles unless the
same be deemed of use for other committees.
The motion was seconded.
Mr. MOER. I don't wish to offer any discourtesy to the gen-
tleman, but it seems to me that this would give a committee won-
derful power. It simply allows a committee to say, out of all that
is introduced, what shall go back, and we have no power to pass on
anything that is introduced here that the committee does not see
fit to report back. It makes the committee absolute judge of what
shall go before this Convention. I move that the resolution be
laid on the table.
The motion was seconded and carried.
Mr. ROLFE. I move that the resolution by which the commit-
tees were required to report by Thursday be reconsidered. I voted
in the affirmative. I do this for the purpose of moving an amend-
ment which will read: "Except the Committee on Apportionment
and Representation." That committee can make no report what-
ever until the Committee on Legislative Department has reported
upon the number of houses, and the number of members of which
the Legislature shall be composed, and that report has been
adopted by the Convention, or at least by the Committee of the
Whole.
Seconded.
Mr. WILLIAMS. It would seem unnecessary to pass this. We
are not going to ask any committee to do that which they cannot
do. If one of the standing committees cannot report, all they
have got to do is to stand up in this House and say they can't
report for lack of action on the part of other committees. It does
not seem to me that it is necessary to do more than this.
Mr. STEVENS. I would say that the resolution that was
passed relative to the reports of committees does not say that
they shall finally report, but that they shall report, and they can
easily do that. The resolution is simply that they shall report.
They may report progress under the resolution.
Motion to reconsider was lost.
The following resolution, known as File No. 25, was taken up
for discussion in Committee of the Whole.
Resolved, That the Constitution provide that the Legislative authority of
this State shall rest in a single body, to be called the "Legislative Assem bly,”
DEBATES OF THE CONVENTION.
103
•
which shall consist of not less than one hundred members, to be elected by
the people; Provided, The Legislative Assembly may from time to time in-
crease the number of members, as necessity may require.
Mr. LAUDER. I move that the speeches be limited to twenty
minutes.
Mr. WILLIAMS. I hope this motion will not prevail. I
think the Committee of the Whole should allow the members as
much time as they desire to take to discuss these questions. It
is fair and just that they should say as much on this question as
they want to say.
Mr. LAUDER. I have no desire to deprive any man of time,
but it seems to me that we are spending a good deal of valuable
time here without doing much. But I withdraw my motion.
THE SINGLE HOUSE QUESTION.
Mr. STEVENS. Mr. CHAIRMAN AND GENTLEMEN OF THE COM-
MITTEE OF THE WHOLE: In introducing this proposition to have
our Legislature consist of a single house, I assure you I have not
been influenced by an ambitious desire to depart from the beaten
path trod by constitutional conventions heretofore held, merely as
an experiment. Neither have I been influenced by a morbid curi-
osity to ascertain what support the proposition might receive. I
take unto myself no credit for having originated the idea or the
resolution under consideration. As far back as 1850 the Hon. D.
A. Robertson urged its adoption in the great State of Ohio, and
in North Dakota its adoption has been ably urged by the Bismarck
Tribune, and endorsed editorially by some of the leading papers
of the Northwest. No meeting of its advocates has, so far as I am
aware, been held to consider what course is best to pursue in urg-
ing its adoption, but it comes before you as a simple proposition
for your earnest consideration. And had I the powers and ability
that would allow me to make a plain statement of the necessities
of its adoption unembelished by oratorical display, I would have
attained my highest ambition in its advocacy.
In the formation by this Convention of a constitution we are
led to consider not only its permanency, but also its adaptibility
to the wants and the necessities of the people. What might be
appropriate in the great manufacturing states of Massachusetts
and Pennsylvania, the great mining states of California and Col-
orado need not of necessity be applicable to the wants of the
great agricultural State of North Dakota. The members of the
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DEBATES OF THE CONVENTION.
Constitutional Convention that formed our greatest of National
Constitutions took into consideration, not only the necessities of
the times and the circumstances of the people, but also attempted
in a measure to adopt a plan as near analogous to the form of
government under which the people had been governed as the
blood-bought liberties of the people would admit, and that among
other things was one of the causes that led to the dual complexion
of our National Government. In imitation of the British Par-
liament the two branches of Congress were formed, one to pro-
tect the rights of the people and the other to protect landed in-
terests. Different modes of election and qualification were pre-
scribed for Senators and Representatives so that no conflict might
ever arise as to their election. The one and only argument to-day
in favor of the perpetuation of our National Senate is the pro-
tection it affords to independent sovereignties which compose our
Federal Union-a branch of the government where the little state
of Delaware and the great empire state of New York shall meet
on equal terms and have equal representation. Can any such
argument be urged in favor of a Senate for North Dakota?
Surely not unless you agree that every county is entitled to a
member of the Senate. If the Senators are to be elected from
the same districts as Representatives, then every argument in its
favor is but a drop of sand, and the boasted protection to the
rights of the people it is supposed to afford becomes but a sound-
ing brass and a tinkling cymbal. The House of Lords, in imita-
tion of which our National Senate was originally created, is but
a remnant of that old feudal system which the enlightenment of
time has relegated to the dead past, and to-day the House of Lords
is only perpetuated to mark that aristocratic distinction so absol-
utely necessary to a monarchical form of government, and sits idly
by trembling at the very frown of the House of Commons.
The argument used to show the necessity of a United States
Senate is that it gives each of the different sovereignties equal
representation. No such method has ever yet been adopted in the
formation of a state. You say each district shall elect three mem-
bers of the House and one Senator. Why this distinction? Why
make one equal to three? Both branches have the same legislative
powers; each can originate measures for consideration. The check
upon the Senate is as necessary as upon the House, and both are
necessary. Would the electors send a representative to one branch
of the Legislature under the belief that he would disagree with
DEBATES OF THE CONVENTION.
105
the member of the other House because he belonged to a different
branch of the same body? Surely not. True it is that measures
have passed the House that were improper and have failed in the
Senate, but in nearly every case they have only passed the House
to be used as trading stock in the Senate, and had there been no
co-ordinate branch they would have failed in the first instance.
What measure of great injury or inconvenience to the people has
ever passed the House and failed because of the conservatism of
the Council during our territorial existence? What evils have
our Territorial Council prevented; what rights protected; what
benefits bestowed upon the people? I call upon the champions of
co-ordinate branches to cite them, and failing to do so they must
admit that thus far our Territorial Council has been an ulcer upon
our body politic that could well have been dispensed with.
""
Historical observation has taught us that when great emergen-
cies arise and co-ordinate brancnes of the government disagree,
the one branch is swept from power, and as was said by Mr. Sny-
der of Illinois, in speaking of our Constitutional Congress: "The
old, wornout habilaments of medieval monarchy were cast aside
or forgotten, and the grandest and most illustrious of all legisla-
tive bodies ever known to a people accomplished its work with un-
paralleled ability, scouting not only the trammels of an executive
vote, but also the dilatory stumbling block of a co-ordinate body.'
We are not here to form a constitution for the past, but for the
future. The history of the past is spread out before us for our
instruction, nor should we follow blindly the precedents set by
other states in deciding what is best for our success. Look around
you and see what has been accomplished by bodies acting without
co-ordinate branches in the past. The Athenian democracy to
whose wisdom and sagacity we to this day pay the highest tribute
of respect; the Phenician republic which swept away more than
2,000 years failures of other forms of government; that grand
body of men who presided with so much marked ability over the
destinies of Genoa; the Swiss confederation and the Kingdom of
Norway and Sweden of the present day; and in our own country,
for more than six long and bloody years, a single body carried on
with consummate wisdom to a successful termination our own
revolution, which established for all time the liberties of a people
and the justice of our cause; that promulgated that immortal
document, our Declaration of Independence, which has stood, and
ever will stand, as a beacon light promulgating the doctrines of
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DEBATES OF THE CONVENTION.
our Republic to the oppressed of every land. It was a single
body that framed that Constitution we have just adopted, and
which after more than a century of time has required fewer
amendments than we have been days in session, and whose work
was not even submitted to popular vote for its adoption, and the
justice of whose provisions has attracted to our shores the wooden-
shoed peasant of staid Germany and sunny France, England's
sturdy toilers, the hardy mountaineer and miner of Norway, the
brawny and genial son of Erin's isle and Scotland's noble sons,
until to-day not a sail whitens either ocean but bears pilgrims
coming to worship at the shrine of that document promulgated
by a single house.
The constitutions of every state in this Union have been formed
without a co-ordinate house. The great City of New York with.
its two million souls, and the City of Chicago with its millions,
and the ramification of whose industries and interests are more
varied than that of almost any state in the Union, are governed
by single councils elected from year to year. Their growth in
wealth, population and importance have had no parallel in modern
times. True, I will be confronted by Tweed's reign in New York.
So, too, originated in the co-ordinate branch of our own govern-
ment from the pernicious doctrine of state's rights, the greatest
rebellion the world has ever known, and which caused the deep-
toned war dogs to bay death from their black and horrid throats
for more than four years, and from the effects of which more than
half a million of America's noblest sons bit the dust, the evil in-
fluences of which will pass away only with the great generations
of that day. That great corporation, the Northern Pacific rail-
road, whose steel threads span our land from lake to ocean and
under whose management its patrons are conveyed with speed
and safety across our broad prairies, scaling the rockies and
bringing the traveler to view with wonder and admiration the
snow-capped billows of the Pacific; that has so materially aided
in making that country that twenty-five years ago was supposed
to be a barren waste, to blossom like the rose-is controlled by
and governed by a single board of directors.
With these illustrations before us of what has been accomplished
by single bodies, why may we not say we will leave the old rut of
precedent, set in the formation of our states, and guided by the
splendid examples before us provide for a single Legislative body.
Congress has provided that this Constitutional Convention consist
DEBATES OF THE CONVENTION.
107
of a single house. Surely the permanency and importance of our
work is greater than can be the work of any Legislative Assembly.
I am here met with the objection that before it becomes operative
it must be ratified by the people. Yes, as a whole it must, but
without power in the people to rectify or amend, and I have some-
times thought it would be better if the work of the Legislature
as a whole, before its laws become operative, were ratified by the
people. Unjust discrimination, jobs, schemes, and corrupt prac-
tices would disappear from our Legislative halls. The governing
power ought to have no right to inflict penalties until the governed
have had ample opportunity to know what laws they are expected
to obey. Some will say I would like to see this resolution in
force, but am afraid of experiments.
First, It is not an experiment. It has been demonstrated to be
a success in every instance in which it has been tried. Second,
had Newton when the apple fell, or Galileo when with measured
beat the pendulum marked the present, past, or Franklin when he
gathered the lightning from the clouds, stopped before following
their observations to their legitimate conclusions-had they not by
experiment and demonstration shown the wisdom of their observa-
tions, the world might still be groping in ignorance of the great
discoveries they made. Had Columbus, when he sailed upon his
voyage of discovery followed in the path mariners had followed
for centuries before him, our own fair America might to-day be
uninhabited save by the untutored savage, who sees God in the
clouds, and hears Him in the winds, and Columbia, our fair god-
dess, never have presided over the world's greatest republic.
When our Constitution shall have been adopted and our Legisla-
ture shall have prescribed a code of laws for our government, we
shall need very little legislation until changes in our condition
shall require it. One of the evils of the times is the tendency to
make too many laws-to legislate on too many subjects. We have
no great subsidies to protect-no great industries save that of
agriculture to foster. The greatest problem we will have to solve
will be economic problems, and which can as readily and safely be
solved by a single House. Let us, then, study well the problem
before us, and see how well it suits our circumstances and condi-
tions. It has been urged that, should this resolution be adopted,
we would stand alone in the galaxy of stars with such a provision.
The firmanent of heaven is thickly studded with brilliant stars, but
the man lost on the open prairie or in the tangled wood; the weary
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DEBATES OF THE CONVENTION.
mariner when lost upon the trackless ocean intuitively looks to the
north star alone, and from it takes his bearings to guide him to a
place of rest or a harbor of safety. Let North Dakota set an
example by the adoption of this resolution and he who shall at the
end of a quarter of a century turn his eyes to the northern bound-
ary of our Union will see not only a united, happy and prosperous
people whose flocks and herds graze on a thousand hills, and whose
millions of acres of golden grain wave in the breezes of heaven,
but he will also see on the pages of this day's history a reform that
will stand out in bold relief as if the Angel Gabriel had dipped
his fingers in the sunbeams and painted it in letters of living light
across the vaulted arch of heaven.
Mr. WILLIAMS. If there are no others who wish to speak
I move that the committee rise.
Mr. TURNER. I would like to second the adoption of the
resolution if it has not been seconded. In seconding this resolu-
tion that North Dakota have one legislative house instead of two,
I do so because I think it is a matter of very great importance to
this country that we should establish a legislature with one house
instead of following the usual routine which has been followed
in all other states of having two houses. As has already been
stated by the speaker who has addressed you on this resolution,
the objection is raised against one house that the one house plan
has not been tried and found to be a success. This objection I
claim is not well grounded. We have the experience of the
British House of Commons for nearly two hundred years-the
House of Commons, that with all its varied interests, extends not
only over the united lands of England, Ireland and Scotland, but
over more than fifty-one dependencies which are connected with
the British crown. All the legislation for about two hundred
years which has been enacted for that great empire has been
passed by the House of Commons, and has been the act of one
legislature and one legislature alone. The House of Commons
was called into existence in 1264 by the noted Simon B. Mont-
fort, to aid the barons in the rebellion against Henry III.
Since that date the march of progress has been marked with re-
spect to the powers of that one house, always encroaching on, and
doing away with, the powers of the upper house. No sovereign
in England for nearly two hundred years has ever vetoed an act
of that House. All acts that have been of a progressive character
have emanated from the House of Commons. We have the
DEBATES OF THE CONVENTION.
109
Catholic Emancipation act, the Reform Bill of 1832, the Dis-
establishment of the Irish church which the House of Lords
tried to prevent, but which the Commons assured them that if they
did prevent it it would be the death of the House of Lords. We
say that the wisdom
wisdom manifested in the legislation of
one house is sufficiently manifested in one of the greatest
nations that wields the scepter in Europe. If we come
to the colonies of Great Britain in North America,
we find that while the Dominion of Canada has two
houses, the upper house is rather an incubus than a help in the
great work of legislation, and the most of the advanced thinkers
in Canada, and the most acute politicians, all hold that it would
be better for Canada to do away with it to-day if it had only one
legislature-the House of Commons simply. If we take the va-
rious provinces we find that there is only one of these provinces
that has to-day or ever has had, more than one house of represen-
tatives. Nova Scotia, New Brunswick, Ontario and Manitoba each
has only one house of representatives. Quebec is the onlv
province that has two houses. It is confessed on all hands tha
the legislation in Quebec, in importance and value, is behind that
of the other provinces which have but one house. I might refer
you to the legislation which we have had here, in Dakota, and say
that two houses of the Legislature in the past has not proved that
two houses are especially conducive to wise legislation. It is a
fact that on the statute books of Dakota there are acts which have
been passed, which have received the sanction of both houses, and
yet they are contradictory the one to the other, so that even the
Attorney-General, who occupies the highest legal position in this
Territory, has been unable to say just what the law means on
these subjects. I say with respect to the legislation of Ontario,
with which I am most familiar, that their acts have been very
much more clear, very much more distinct, very much more easily
understood than the acts of the two houses of the Territory of
Dakota, and so correct has their legislation been that while the
Dominion Houses of Parliament have sought to veto the action
of the Legislature of Ontario, and have done so in some thirteen
cases, there has not been one single act that has been vetoed by
the Dominion Parliament but which, when carried to the highest
court, has been sustained, and when carried to the Privy Council
of England has been invariably sustained by the highest judicial
authority in the whole Empire of Great Britain. These facts
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DEBATES OF THE CONVENTION.
should impress on our minds the great fact that the one-house
plan is not wanting in success, and that it bears favorable com-
parison with any double houses of legislation that have existed
anywhere. Bearing these facts in mind, would it not be well and
wise for us to pass out of the old-traveled ruts and try among the
states of this Union to establish a single legislature to prove to
other states that one house can do the work of this people as well
and more economically than two houses have hitherto done?
Mr. PARSONS of Morton. I would like to say, Mr. CHAIRMAN
and gentlemen of the Committee, that my understanding of the
matter was that this matter should come up to-morrow, and there-
fore I made no preparation whatever on the subject; but there is
one matter which seems not to have been touched upon here, and
which seems proper to be considered at this time. The remarks
made to us a few days ago by one of the ablest jurists of the day
contained the statement to the effect that if Thomas Jefferson was
here to-day as one of the delegates to frame a Constitution for
North Dakota he would not be as well quailfied to act and deter-
mine on the questions of to-day as any delegate on the floor.
There are questions for us to consider to-day which have not come
before the people, and which it has been impossible to bring before
the people in their true light. I would guarantee that the great
mass of the people who compose the inhabitants of North Dakota
are far more intelligent than the inhabitants as a mass of any State
in the Union. Go back if you please to any state in the most en-
lightened, the most populous, the most powerful, and out of the
line of traffic, away from the business and commercial centres,
and you will find that the people are not one-tenth as well posted
as they are in Dakota. Now, then, Mr. CHAIRMAN, there is one fact
that we have to consider here-it is a fact that precedent is very
strong in one direction, but although the one house plan has been
tried by two Territorial governments in these United States and
finally discarded, and although all State governments to-day have
two houses, yet we have the problem before us which must be
solved in some way. If the one house system offers the solution
to the problem, it seems to me that we should accept that. I am
not prepared to state that the one house plan will solve the great
problem that is before us. That problem is briefly this—in the
days of yore, we were accustomed to see men engage in business,
and two or three would combine together in enterprises. But
to-day we have to meet with the combined capital of thousands of
DEBATES OF THE CONVENTION.
111
our citizens in one enterprise. A man will say-I don't feel like
embarking all I have in this enterprise, but I will contribute a few
hundred dollars and take so much stock. By that means we have
developed this great Northwest, and the principal portion of the
United States, and it has placed us in the foremost rank of the
countries of the world. But with characteristic American style
we have gone in a free handed manner-whole hog or none-and
placed no restraints on this tendency. To-day the toiling masses
of the people of this country who earn their living by the sweat
of their brow-and that description takes in the farmer as well as
the laborer-have come to the conclusion that there must be a
line drawn-something done to stop the rapid centralization of
capital, or this country will soon be in the condition of those
across the water, where he who toils for his living is rivited in
chains stronger than those forged by any blacksmith. It has
been suggested that these matters are legislation-can all be de-
termined by the Legislature, and that they can be dealt with by
the same system as prevails in the other states of the Union. It
is lamentably true that we have tested the matter here in the ter-
ritories, and we are confronted with this humiliating spectacle,
that after being granted an organic act and as territories conduct-
ing our business here, our legislators have conducted themselves
in such a way that it is brought to the ears of the national gov-
ernment, and they have been obliged to pass laws restraining
them. However humiliating it may be to the citizens of Dakota
or the other territories, it is nevertheless true, and what guarantee
have we in the future that simply because we have met here in
Constitutional Convention and adopted a Constitution-have taken
the reins in our own hands, that the course in the future will be
different from that of the past? Now, Mr. CHAIRMAN, the one
point comes before us-where two houses have the power of
determining in regard to our legislation, the argument urged for
the upper house has been that it acts as a wholesome check
on legislation. That seems to have been the argument in our
national government, and accepted as such in state governments
without, perhaps, fully considering the matter. If it has been
fully considered, we must admit that we have met with great evils
here in our own territory. Men have arisen on this floor, and I
will guarantee there are many more who will rise to testify to the
wrecks of property and just claims that have followed in the
tracks of legislation in this territory. The question becomes one
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DEBATES OF THE CONVENTION.
3
ky+
like this-shall we have that system of legislation which will
permit one-eighth or one-sixth of the ligislators to obstruct and
prevent legislation? It is a notable fact that all the capital
united in the corporations or trust companies pay no attention.
whatever to the lower house of our national government, or to the
lower houses of our state governments, except when they need
some positive legislation. As a rule all corporate influence
simply asks the absence of legislation. They wish to restrain.
legislation, and the influence here, if it is exercised, will be felt
in the restraining of members of this Convention to incorporate
more in that constitution than they wish to see there. In the
past, as I have said, the rule has been for the corporations to
direct their influence towards the upper house. It is much easier
to control a small majority in that house than to control a major-
ity in the lower house, and having a majority there they can
check any legislation that they regard as being injurious to them.
Now Mr. CHAIRMAN, it seems to me that as a safeguard to the
people it would be harder for any influence to control a majority
where the legislature met in a general assembly of one house, and
it seems almost impossible that a corporation should be able to
control a majority there, where they are elected directly from the
people, and where it would be necessary to have fifty or over in
the State of North Dakota. What object can be attained, what
safeguard can we have, what benefit can be derived, from two houses
so long as they are both apportioned on the number of voters and
they come from each district? I have not considered this matter
fully, and I hope that a final vote will not be taken on it to-day.
It seems to me that some measure some plan must be formulated
for reform in these things, if we wish to see prosperity and peace.
and happiness fill the homes of our people. It is perhaps one of
the most important subjects that will come before us, and while
we have precedent of every other state in the Union before us of
two houses, we must consider the influences that work here differ
in a great degree from those there. We are largely dependent on
corporations. Corporations in North Dakota will always have a
stronger influence than they have elsewhere. With all due justice
to them—we wish to encourage them-we wish to help them-but
we must beware of the day when they will shackle us and
control our people. In the interest of this measure I would ask
that it be further discussed at some future day. I would like to
hear from other members-have a full talk, for it is evident at
DEBATES OF THE CONVENTION.
113
present that if we have two houses of legislation based on the
apportionment as heretofore existing, the same evils will exist in
the future that have existed in the past, and it has not been
argued here that we should have two houses of the Legislature
with a Senator from every county. I should like to have this
matter discussed and if the parties who defend the one house
theory can show that it will be a panacea for the ills under which
we now labor, let us have it. If not, then let us have some change
that will bring about a different state of things from that which
we have had in the past.
Mr. CARLAND. I move that the committee do now rise, re-
port progress and ask leave to sit again.
The motion was seconded and carried.
Mr. McHUGH. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTIETH DAY.
BISMARCK, Tuesday, July 23, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
File No. 63-report of the Committee on County and Township
Organization-was considered.
Mr. STEVENS. If I recollect rightly the question of a single
or duplicate house was made a special order for yesterday, and
being continued to to-day I think it would retain its order.
Mr. MOER. I move that the consideration of the one house
bill be taken up.
The motion was seconded and carried.
Mr. MILLER. In regard to the consideration of the report of
the Committee on County and Township Organization, I move
that it be postponed till Thursday. There are several gentlemen
absent who are interested in it, and I should prefer to have them
here. All of them do not agree with me on the points to be dis-
8
114
DEBATES OF THE CONVENTION.
cussed, and that is one reason why I should like to have them
present.
Mr. LAUDER. It seems to me that if the business in this
Convention is to be dictated on the principles suggested by the
gentleman from Cass, we shall be here next January making a
Constitution. I have no disposition to take the matter up and
discuss it in the absence of gentlemen who want to be here, or to
take advantage of the absence of anyone, but we have been here
nearly three weeks, and it does seem to me that we have not made
the progress that we should have made, and this has resulted in a
large measure from deferring to the wishes of gentlemen who find
their private business of more consequence than their duties as
members of this Convention. I am opposed to the postponement
of the consideration of any of these matters for the convenience
of men who find their private business stands in the way of their
doing the work they were sent here to perform. My business at
home is just as important, perhaps, as that of the other members.
But I have stayed here every day at an inconvenience to myself, for
the purpose of getting through with this work, and I hope that
members of this Convention will take up these reports and dis-
pose of them, and make some progress.
Mr. MILLER. I did not make my motion for the purpose of
securing delay, but I understood that there were several gentle-
men who propose to address this Convention on the one house
plan, and in moving to postpone what I did till Thursday, it was
to let some other measure take the place of the report of the
Committee on County and Township Organization.
Mr. LAUDER. If the time of the Convention is entirely taken
up in the discussion of the one house plan, there will be no neces-
sity of the motion of the gentleman from Cass.
The motion was put and lost.
THE SINGLE HOUSE QUESTION.
File No. 25 was before the Convention.
Mr. McHUGH. I move that the consideration of File No. 25
be indefinitely postponed.
The motion was seconded.
Mr. STEVENS. The matter is before the committee. They
have reported and ask leave to sit again. I don't understand
that this motion is in order.
DEBATES OF THE CONVENTION.
115
Mr. PARSONS of Morton. I move that we go into Committee
of the Whole for the consideration of File No. 25.
The motion was seconded.
Mr. STEVENS. I hope that this motion will prevail for this
reason—those who have been in favor of the one house plan have
had their day, and I think it is no more than fair and just that those
who have prepared speeches to be delivered in this Convention on
the other side have an opportunity to convince this Convention
that they are right. I am very much in favor of hearing the
arguments in favor of this resolution not being passed. If I am
wrong and if those who are with me in this proposition are wrong
we would be pleased to know it, and hear the discussion on that
point. I am informed that some of the gentlemen are ready to
discuss this question before the Committee of the Whole, and I
do hope that though it is against the proposition I have intro-
duced, these arguments will be allowed to be presented to this
Convention.
Mr. McHUGH. My purpose in moving the resolution I did
was to bring this matter up for discussion, and if desired I will
withdraw my motion.
The motion of Mr. PARSONS was carried.
Mr. O'BRIEN called to the Chair. Committee of the Whole.
Mr. CARLAND. It is perhaps, not necessary that I should ad-
dress this Convention on the subject of the adoption of the pro-
posed article known as File No. 25, providing for vesting the leg-
islative power of the proposed State of North Dakota in a single
body; but it has been asserted in the public prints and by gentle-
men who have urged the adoption of the resolution of the gentle-
man from Ransom, that the minds of gentlemen who resist its
adoption are tied down and bound by slavish devotion to prece-
dent. Such being the case, it is not more than right that at this
time and before the Committee of the Whole I state a few propo-
sitions which have led me to believe that this resolution should
not be adopted. It has been said that it is a dangerous thing for
a nation to forget its past, and the more those words are consid-
ered in the light of the experience of constitutional government
in the United States of America, the more force can be drawn
from them. It has been said that we ought to try this new exper-
iment that we ought not to be bound down hy precedent-that
because the other states of the Union have adopted the principle
of vesting their legislative power in two houses is no reason why
116
DEBATES OF THE CONVENTION.
as
it.
we should do the same. Now, I don't care to weary the committee
by any long or extended remarks, but I desire to call your atten-
tion to a few facts which are historical and known of men who
have studied in any degree the history of constitutional govern-
ment SO far as it affects the American States. So far
as this proposition of one house is concerned-so far
its being a novel question-it is the furthest from
It has been tried for years and years in this
American Union, and has been found utterly inadequate for the
purposes of the exercise of legislative power, and after that trial
it has been thrown aside, and so far from being a novel question
it is to-day in constitutional law, so far as the American Union is
concerned, obsolete. A few references to the history of this country
will show this. It is known of all men that the American colonies,
when dependent on the crown before the declaration of indepen-
dence that the legislative power of these colonies was vested in
a single house. Some of those colonies existed for a hundred
years in that way, but when those colonies came together to adopt
the Constitution for the United States government, there was only
one colony in the Union that voted for placing the national legis-
lative power in one body, and that was Pennsylvania. A glance
at the early Constitutions of some of the States of the United
States show the following facts-the Constitution of the State of
Vermont of 1777, provided that the supreme legislative power
should be vested in the House of Representatives of the freemen
or Commonwealth or State of Vermont. That was the first Con-
stitution she formed. She acted under that Constitution till the
year 1836, when a special Constitutional Convention was called for
the purpose of vesting the legislative power of that State in two
bodies. There was a trial of the one house proposition, and it was
discarded by the State. Under the form of government prepared
by William Penn for the government of Pennsylvania that was the
regulation there, that it should be in one house, and Pennsylvania
when she came into the Union made a Constitution vesting the
legislative power in one body. The Constitution of 1776 provided
that the supreme legislative power should be vested in one house.
Did she continue it? Had the experience under colonial govern-
ment-had the experience between 1776 and 1790 led her
to believe that was the best way to exercise legisla-
tive power? Not at all. In 1790 she adopted a Con-
stitution with this provision: "The legislative power
DEBATES OF THE CONVENTION.
117
of this commonwealth shall be vested in the General Assembly
which shall consist of the Senate and the House of Representa-
tives." Again, Georgia, when she adopted her Constitution,
vested the legislative power in one house; so did South Carolina,
but they all changed, until to-day there is not a State in the
American Union which has that system of the exercise of the leg-
islative power. The Congress which governed the colonies of
America thought that the most prominent defect in the whole
Articles of Federation was the vesting the power of Congress in a
single body, and they decided that they would not try the experi-
ment again. The history of this country shows that this is an old
question that it has been tried, and the people have decided that
it was not the proper way and that it was not a safe way to exer-
cise the legislative power. I cannot conceive that such is the
case, but there may be communities so small in population or
geographical extent, or of habits so simple that a single body
might exercise the legislative power without harm, but I can say
it without contradiction that there is no political power on the
face of the earth to-day possessing the legislative power that the
State of North Dakota will possess after it has been admitted into
the Union, but that exercises the legislative power through two
houses. All the examples that have been given of the Swiss
Republic, Norway and of Ontario are to be looked at under the
conditions of things which exist in those countries. In Ontario
there is the supervisory power in the Crown, or the Privy Council,
that may be exercised at any time to veto a law passed by the leg-
islative body, and so in Switzerland. They are little bodies in
the cantons, but there is a check and balance on the whole busi-
ness by the adoption of laws providing for the Central Legisla-
ture. It has been argued that because corporations by boards of
directors have governed their property with success that conse-
quently a legislative power vested in one house in this
State could and ought to exercise the legislative power with
discretion and for the welfare of the people. In considering this
question this important principle must not be forgotten--it must
be admitted, or it may be admitted for the sake of argument that
the majority of men are good, that they are honest, that they are
benevolent, but when you admit that, you must also admit that
their goodness or their honesty or their benevolence is always
first exercised at home-first to the near relative, then to the dis-
tant relative, then it goes out of the family to the town, the county
DEBATES OF THE CONVENTION.
118
and the state. When that truth is admitted it decides this whole
question, because in the Legislature consisting of a single body,
men will go there with a knowledge of the wants of their con-
stituency as regards their particular locality, and they go to secure
certain things; and you will find that a body consisting of a num-
ber of men to be called a Senate, who should be elected for a
longer term, will act as a check against the exercise of ill digested
legislation on the part of the people. It must be admitted that
the people themselves sometimes make mistakes. The people have
their flatterers as well as kings, but it may be as well admitted
right here that the people make mistakes, and are often led away
by passion, prejudice, self interest-by thinking of the interest of
the state last, and history has shown that wherever the legislative
power has been vested in a single body they have been carried
away by passion, and their proceedings have been so irregular as
to cause an inadversion of mankind upon their proceedings. No
sadder example is presented in history than the fall and ruin of
the Italian republics, who bad the system of exercising the legis-
lative power vested in one body. It has been argued that the
Constitutional Convention that framed the Constitution of the
United States was only a single body, and that it framed a remark-
able document. It did, but the action of that convention had to
be ratified by the states-two-thirds of the states-and the action
of this Convention will have to be ratified by the people of North
Dakota. If you will give us a legislative body who shall exercise
legislative power by simply proposing as we do, the law, and send-
ing it to the people for their adoption or rejection, there would
be no trouble about vesting it in one body, but when there is but
one body, and nothing to stop or check their action, no judge but
themselves as to how far they will go in transcending their pow-
ers, or jeopardizing the rights of the citizens-I say the liberties
of the citizens are in danger and no man will ever consent when
taking a practical view of the matter to vest the legislative power
in one body. The arguments in favor of one house have always
been made by enthusiasts, by gentlemen of studious habits but
of impractical mind. It was advocated in favor of the congress.
or the assembly that ruled the French government during the
French revolution in 1791; it was advocated by no less a states-
man than Benjamin Franklin in our own country; but there is not
a sadder example of the folly and foolishness of vesting legisla-
tive power in one body than that very assembly. In conclusion I
DEBATES OF THE CONVENTION.
119
would say that the history of this country, so far as constitu-
tional government is concerned, and so far as I have been able to
judge, in the short time that I have looked at it, shows conclu-
sively that this vesting of the legislative power in one body has
been denied by the universal consent of the people inhabiting the
United States. And I don't agree with the gentleman who dis-
cussed the proposition on the other side, that if we are to adopt
this proposition and vest the legislative power in one body that
we would be the north star of the republic, and that all eyes
would be turned to us as such as soon as we had made this con-
stitution. I think on the other hand that the boundaries of the
United States government so far as North Dakota would be con-
cerned, would be changed, and limited on the north by the north-
ern boundary of South Dakota, and that the mind in looking at
the map or upon the situation of the country would think that
we had gotten into her Majesty's dominions, or into Manitoba,
subject to the rule of the imperial cabinet.
Mr. JOHNSON. I was very glad that the vote on this ques-
tion was not taken yesterday. We heard the argument for the one
house presented then with great force and eloquence, and there
was a feeling on the part of the side that has been represented
here to-day that they were strong in numbers and that argument
was unnecessary, and thus it was feared that argument would be
dispensed with. I am very happy that this Convention has as-
serted its dignity; assumed its proper position as a deliberative
assembly, an assembly that will hear argument and deliberate on
such questions. I am happy to believe that this Convention is
composed of men who have come here, and who are here to-day
unbiased and unprejudiced, and free to decide according to the ar-
gument and the reason that is produced here. I am glad, too, that
the prevailing constitutional provisions-the prevailing institu-
tions in the country, have been so happy as to have an advocate of
the ability, the experience and the learning in constitutional law
and history that they have had in their advocacy on the floor of
this Convention. I take it for granted that that side has been pre-
sented with all the learning, with all the ability, with all the force
and reason of which that side is capable. No other conclusion
can be drawn but this, that if the argument just made is incon-
clusive, it is so, not from lack of ability and force on the part of
its advocates, but from inherent weakness in its structure.
It was
said that the reason for the two houses was simply one of fashion,
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DEBATES OF THE CONVENTION.
one of tradition-that in this country we had fallen into certain
ruts which we are following after the reason for these ruts had
vanished. Another argument was that one house would be a
check on the other. I leave it to you to say if that is not a fair
representation of the arguments just made. Does it include any
other points than the ones I have made? If those points can be
answered, then we are entitled to your votes. I don't come here
as a special advocate of this cause. The thought never entered
my head, I confess it with some humiliation, but it is a fact that in
the few hours that I had for a preliminary study of the questions
to come before us, I did not think of this. I dare say that the
same is true of many of you-of the many things you studied
this important matter escaped you as it did me. My opinions on
the question have been entirely formed by the discussions that I
have read in the papers; by the arguments on this floor and by my
own reflection. The time has come when I am prepared to take a
decided stand.
Is it not true that the argument presented here for two houses
is one strongly of precedent? That we should follow the tradi-
tions and fashions that we see around us? Is not that one-half
of the strongest arguments that are brought? Is it not more
than one-half? I am reminded of the way they have in China of
cookery. They have a curious way of preparing roast pig in
China. Many centuries ago there was a stable burned down. In
the stable there was a litter of small pigs. In raking over the
embers the carcasses were found. They were very delicious and
from that day to this the same custom has been followed and
handed down from generation to generation and from century to
century, and the fashionable and stylish way to prepare roast pig
is to corral them in a stable, burn the stable, rake out the embers
and put the pig on the table. That is the Chinese method. Is
that the Anglo-Saxon method? If we are to be bound by such
fashions we are not true to the progressive mind of which our
race is a part. We are not followers of Alfred the Great, of
Cromwell and Washington. Coming nearer to our own times and
the political heart of the gentleman who has just taken his seat,
there was a Democratic convention once, and one of the young
delegates rose and moved that there be inserted in the platform a
plank something like this: "Resolved, That the Democratic party
of this county is unalterably opposed to corruption, peculation
and dishonesty, and is in favor of the rigid accountability of the
DEBATES OF THE CONVENTION.
121
officials, and public economy." An old gentleman-an old wheel-
horse-one of the moss-backs, died-in-the-wool, arose and made a
speech something like this: "Gentlemen, I am decidedly opposed
to introducing any new-fangled theories into the platform of the
Democratic party.” Let me tell you that the fault of the old man
was that his horizon was not wide enough. He had drawn his con-
clusions from the practices he had seen laid down in his own ward,
township or county. If he had studied the history of his own
party, had studied Jefferson and Tilden, statesmen of that rank, he
would have known that instead of being against the teaching of
the leaders of the party, honesty, economy and reform were the
watch words of the Democracy. The same is true of this doctrine.
Instead of the one house plan being a new fangled notion and
untried, it is as the gentleman has well said, a long tried theory,
but my conclusion is entirely different from his. In my judgment
the experience is not one of failure, but one of success. I read
history differently from the gentleman who spoke on the other
side. Let us go back to the nation that has furnished us the oldest
history-take the National Assembly of the Jews. After the days.
of the theocracy-for the last four hundred years before the birth
of Christ, the National Assembly called the Sanhedrin was but
one assembly. It was composed of three classes-of the priests,
the elders of the people, and the scribes. But those three classes
met in one hall, discussed public matters, passed resolutions and
made the supreme law of the land for 400 years, anyhow.
Take the Senate of Rome that sat at the Eternal City, and from
its throne ruled the world for over 1,000 years.
ernment of Rome pursued the single policy of accretion and ag-
gression and power, and glory and greatness. For 475 years of
that period during the proudest period of its existence, when the
people were free, when art and learning flourished and literature.
rose and built their splendid monuments, as Horace says, “more
enduring than brass, more lasting than bronze and higher than
the royal pyramids," Rome was managed by one house-the Roman
Senate. Such a thing as two houses was never known till the
Thirteenth Century. If we shall stand for 1,000 years, if
our arms shall march under the call as the Roman legions marched
for 1,000 years, we shall walk in the path, not of uncertainty,
not of danger, but as the life of nations goes, in the light of
safety and strength and glory. Take the Republic of Carthage—
one of the great powers that long withstood the power of
The gov-
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DEBATES OF THE CONVENTION.
Rome the nation that sent Hannibal across the Mediterranean,
scaled the Alps
Alps and for
and for eighteen
eighteen years thundered at
the gates of Rome-the Republic of Carthage was governed
by a single house-the Senate of Carthage. That was the only
government in the great continent of Africa that ever attained a
great and lofty position. Take the great republics every one-
where they were not pure democracies, and where they were rep-
resentative in any measure as in Athens and Corinth and Sparta,
they had single legislative assemblies. Who is there that does
not point with pride to the spot in southern Europe-where a
handful of men stood bravely on the battle field of Thermopylae-
where genius and art flourished, where literature abounded, where
there was at one time in the city of Athens 30,000 marble
statues--a city governed by a single house. Let us come down.
later to our own times. The gentleman who has just taken his
seat refers to the first National Assembly 100 years ago. We are
willing to stand or fall by that. When the monarchy was driven
from France; when the revolution was precipitated; when the
hierarchy of Rome was driven from that country, and the king
and queen beheaded, the National Assembly that was called on to
take charge of the government was called on to take charge of a
mob of anarchists. Never was such a trying time presented to
any body of men. Human nature and human sentiments were
stirred to the depths, and never before was such a task given to
any National Assembly as that which was called on to secure the
fruits of that uprising of the French revolution. Are we ashamed
of the records of that assembly-of that single house? Indeed.
Just as soon as matters had settled-just as soon as that
assembly had an opportunity to assert itself, it planned and ex-
ecuted for the country a career of power, and glory, and splendor,
and intellectual development such as had never before been
equalled in Rome, and though every nation in Europe combined
to crush the French republic, they trusted their ship of state
to one National Assembly; their cannon wheels plowed the fields
of Europe, they fought and defeated every army on the conti-
nent and spread the name and fame of their people as no monarch
except perhaps, Louis XIV, had done. They planted the seeds
of liberty, equality and fraternity when every power in Europe was
combined against them. Have we lost the fruits of the French
revolution? Never. Not to the remotest day and time will the
real fruits of the French revolution be lost to liberty. Take the
not.
DEBATES OF THE CONVENTION.
123
cantons of Switzerland, or take Norway. The speaker who pre-
ceded me says that there is not a state in Europe on the face of
the earth that wields the power that North Dakota will wield that
is governed by one house. Is it nothing that the cantons of
Switzerland, in their numerical weakness have stood 500 years
between nations that had the most intense hatred of each other,
and have maintained a government for 500 years in their corner
of Europe, through the changing times, through the wars that
have many times changed the face of Europe that these brave
people in their cantons with their single house have maintained
their political existence and their integrity and their power-is
not all this something to their credit? You take Norway for
instance-Norway is significant when compared with North Da-
kota. We shall probably have more people here, but we never
shall have the history. I doubt if we ever shall have the genius,
the art, the poetic instincts and the moral and intellectual power
that reside in that people. Just think of a million and a half of
people that have maintained themselves among the people of
Europe for 2,000 years unconquered. When Napoleon went over
to Europe he did not go as far north as Norway. Alexander never
touched those shores; Julius Cæsar, when he and his legions
swept over Germany, never landed a soldier in Norway. They are
the only people in Europe who can say that they never bowed
their neck to any foreign conqueror. You may take them under
their present Constitution which was adopted in the year 1814,
when they decided upon a single house, and I have this to say—
you can nowhere find on the face of the earth a million and a half
of people who have commenced with the poverty and the ignorance
they had to commence with, when they were freed from the oppres-
sion, of Denmark-when there was not a printing press in the coun-
try, nor had there been a printing press or a high school allowed
there for 300 years-and now see what they have done in
seventy-five years. See what they owe to such a government
as we propose to adopt here. Read the accounts from the ex-
position at Paris, and you will learn that in the art exhibit, when
a comparison is made between the United States and the little
kingdom of Norway, Norway appears to the better advantage.
Think of the possibilities of a million and a half of people—as
many as there are in Minnesota, who make a display in the art
department of an exposition that is equivalent to that made by this
nation with its sixty millions of people. Think of a nation that
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DEBATES OF THE CONVENTION.
begun seventy-five years ago with the poor resources that they
had a sterile soil and severe climate, and in three-quarters of a
century they show a record like this. Whereas in Dakota we
have only three per cent. of our population who cannot read, they
have not one per cent. who cannot read-a country where every
man, woman and child who is not an idiot is able to read. Are
we afraid to follow in the footsteps of such a country as this?
There are many people in this state from that country, and you
may rest assured that they will not condemn you for following
in their lead in establishing a system of government under which
their country has become happy and prosperous. We have the
example of the states north of us-our immediate neighbors--all
of whom, with one exception, are governed with one house.
There are men on this floor who have watched the plan and who
speak well of it. There are thousands of our fellow citizens who
were born and bred under that system, and they know that it is
safe and for the best interests of the people. Are you afraid to
go back and meet those citizens who would feel complimented,
safe and happy over the adoption of this resolution?
Mr. PURCELL. I move that the committee rise and report
that this resolution do not pass.
Mr. LAUDER. I do not intend to take up the time of the Con-
vention with any extended remarks on this question. I have made.
no preparation to speak on this subject, but I have some convic-
tions upon it. I am satisfied from what I know of the Conven-
tion that my convictions will not be adopted, but I feel it to be
my duty to express them, and I will do so briefly. It seems to me
that the friends or advocates of a two-house Legislature are en-
deavoring to put the friends of a one-house Legislature in a
wrong position-in other words, they are attempting to shift the
burden of proof. I think that I can safely proceed with the as-
sumption that all things being equal and other things being
equal, one house being simpler and less expensive, is preferable.
Starting out with that assumption, it follows as a necessary con-
clusion that the burden of showing which is preferable rests upon
those who represent the two-house plan, because the two houses
are more expensive and complicated. Hence, we stand in the po-
sition of simply answering their argument. They must convince
the Convention that two houses are preferable. I shall attempt
to answer some of the arguments that have been made in favor of
two houses, and shall devote but very little time in adducing ar-
DEBATES OF THE CONVENTION.
125
guments in support of one house. The gentleman from Burleigh
starts out with the idea in the first place that the Constitution of
the United States is the perfection of all wisdom, and that inas-
much as that provides for two houses of the Legislature-provides
that the legislative power shall be vested in two houses--it fol-
lows that the states should adopt that plan. If that were true I
would say that it would have great weight, because our sys-
tem of government should harmonize, should be symmetrical, and
if the legislative power is vested in two houses in the National
Legislature, unless for some special reason, the states should fol-
low it. But what was the reason that induced the Convention
which framed the Constitution of the United States to provide
that the legislative power should be vested in two houses? What
was the reason? It was no reason that has been assigned on this
floor. In the short time that I have had an opportunity to devote
to the debates of that Convention, I don't find a word uttered
with reference to one house being a check on the other. No
claim was made that one house could not be trusted to legis-
late for the nation, but the fact was the enactment which
provided for two houses in the legislative department was
the legitimate offspring of states rights. It was the fear
of those men who were imbued with the idea of states
rights that unless there was some power in the legislative depart-
ment which should watch over and guard the sovereign power of
the states, their sovereign power would be destroyed, and they
would be merged in the national government. That was the ar-
gument in favor of two houses used in that convention. Is the
House of Lords a part of the legislative department of Great
Britain because of the fear of the people to trust the power of
making the laws for their nation to the House of Commons? No,
it had its origin in the condition of things then existing in Great
Britain when it was established the House of Lords was not
adopted as a check on anybody, but as a representative of a dis-
tinct race or class in the nation, just as the Senate of the United
States was started as a representative of the sovereignty of states.
Now, I say that in these two cases the legislative power was vested
in two houses for the special reasons that I have given, and if it
had not been for these reasons it is safe to conclude that no na-
tion would ever have thought of vesting their legislative power in
two bodies any more than their executive power-one to watch the
other. If there were classes here as there are in Great Britain;
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DEBATES OF THE CONVENTION.
special interests to be subserved or promoted; antagonisms be-
tween distinct classes, it might be well that all of these classes be
represented in the power which legislates. But that condition of
things does not exist here. Senators and representatives are
elected alike; they are actuated by the same motives, influenced
by the same considerations, and we have no reason to suppose that
a man who is elected to one house will act any differently than if
he had been elected to another house. In other words, a county,
assuming that that is the integer, would not be apt to elect two
senators to watch four representatives, but would elect two sena-
tors and four representatives because they would each have capac-
ity for the places to which they were elected. There would be six
members. Does not that idea destroy all idea of a check?
The gentleman who first spoke says that a nation should never
forget its past. That is true, but it should remember its past only
that it may legislate more wisely for the future. The legistators
of to-day should remember the past in order that they may under-
stand the mistakes of their ancestors, and guard against them.
All the way from the time that our barbarous ancestor hunted for
the snake in the hollow log, to the civilization of the Nineteenth
Century, there has been one continuous innovation. If we
are not to adopt this because it is an innovation, then we
should say that we have arrived at the perfection of wisdom, and
there is no further opportunity to advance. In answer to the gen-
tleman who says that if we adopt the one house system the people
may put the north line of the United States at the south line of
our State, and conclude that we have gone over to Manitoba, I
would say that if it had not been for the deference which our an-
cestors played to the same British empire, we never would have
had, perhaps, two houses of the Legislature in this country, but it
was when following the British example that we incorporated the
idea into our government in which the gentlemen takes so much
delight.
Mr. HARRIS. I am not here to make a speech, but I want to
say in advocacy of the two house idea that I believe in the survival
of the fittest; and the gentlemen who have taken the other side
have not shown us one instance in modern times where the one
house idea has been a success, unless it has been the gentleman
from Nelson who has told us about Norway. France under the
one house plan has gone into oblivion. The gentleman who has
just taken his seat says we should look to the past only that we
DEBATES OF THE CONVENTION.
127
may avoid the mistakes that have been made. He says nothing
about the states in the Union that have tried the one house plan, and
have discarded it as impracticable and not up with the times.
don't think that we need go back of the Nineteenth Century for
advocates and examples of the two house idea. The United States
to-day, if we had no other example of it—not collectively but as
individual states-in their prosperity, in their civilization, in their
intelligence, and in the height to which they have raised themselves
in every element of prosperity and intelligence, are examples
enough for us. I am not afraid of the old ruts. When we get
our railroad train started on the track, we are not afraid of the
two lines that lead to success, while we know that it is a practicable
railway. I am not going to take the time of this Convention, but
I want to say that I believe in the survival of the fittest, and the
history of this nation, and the states of this nation have proved
that the two house idea is the practicable way of doing our legis-
lative business, and for that reason I am in favor of two houses.
Mr. SCOTT. I would suggest an amendment to the motion.
It was moved that the committee do now rise and report this res-
olution back. I would amend it in this way, that when the com-
mittee rise it report the resolution back with the recommendation
that it be postponed.
Inasmuch as
The amendment was accepted.
Mr. PARSONS of Morton.
I have been
quoted as supporting one house, I would like to say
that my
choice and preference would be two houses
of the legislature, with the upper house containing
one Representative from each county, irrespective of the
number of inhabitants. But if it were to be between two
houses of the legislature as we have had them in the past, and
one house, I should most emphatically vote for one house. It
seems to me that in this discussion the questions of the day have
been ignored. We have argued this question simply on the
ground of precedent and what has been. If there are no issues
in the present day-if the same state of affairs exist to-day
which existed a hundred years ago, then I have made the greatest
blunder in speaking about the matter at all. But I believe there are
evils to be corrected and there are measures which have failed in
the past, and I don't believe that the people have had their will
in the past. These things have not been considered, and it was
only on that ground that yesterday I spoke as I did. I have this
128
DEBATES OF THE CONVENTION.
to say, and I wish it to go on record to this effect that if the
prospect in future of the legislation of North Dakota with two
houses is not better than that of the past, then I would go on
record in favor of one house.
The motion as amended was carried.
COUNTY AND TOWNSHIP ORGANIZATION.
Mr. BEAN moved that the committee recommend that section
four of File No. 63 be stricken out.
The motion was Carried.
Mr. SELBY. I move that when the committee rise it recom-
mend that in section five, in the third line, the words "specifying
the place to which it is to be changed" be stricken out.
Seconded by Mr. LAUDER.
Mr. BARTLETT of Griggs. If that is carried, I would like
to know how the county board can specify to the people. It
seems to me that if we adopt that we kill the whole section.
Mr. SELBY. The section now reads as follows:
SEC. 5. Whenever a majority of all the legal voters of any organized
county shall petition the county board to change the location of the county
seat which has once been located by a vote of the people specifying the place
to which it is to be changed, said county board shall submit the question to
the voters of said county at the next general election, and if the proposition
to so change the county seat be ratified by two-thirds of all the votes cast at
said election then the county seat shall be so changed, otherwise not. A prop-
osition to change the location of the county seat of any organized county shall
not be submitted oftener than once in six years.
The simple propositition of presenting the petition with the
proof that it is signed by a majority of the legal voters of the
county, sets the wheels in motion, and it is unnecessary to state in
the petition the particular place in which it shall be located.
Mr. MILLER. I move that section six of the article as em-
braced in File No. 106 be substituted for section five of this File
No. 63.
Seconded by Mr. MATHEWS.
Mr. MILLER. With the consent of my second I desire to
amend my substitute, and make my substitute sections six and
seven of File No. 106.
Mr. APPLETON. The committee in drafting their report took
the stand that any county that had never voted on the subject of
the location of the county seat should have a vote if they desired.
Now it seems to me that we are not here in this Convention to
DEBATES OF THE CONVENTION.
129
draft a constitution for the county of Cass. We are here to draft
a Constitution for the counties of the State of North Dakota.
The Committee took the broad stand that the people should be
heard on the question of county seats, and we made the proposi-
tion like this-that in any county where the county seat had not
been located by a vote of the people they should have a vote
on that question. After voting on that question and deciding it
by a majority vote, afterwards the question, if it came up again,
should require a two-thirds vote to change it. It seems to me, Mr.
CHAIRMAN and gentlemen, that this is a fair proposition. It would
be absurd for us to strike out the words "by a vote of the people,'
for every county seat has been fixed somehow. There is not a
county seat that has not been fixed by individual wire-pullers, and
some are located in out-of-the-way corners in the interests of some
particular set of men. They are all fixed. If we make the change
proposed we can't move a county seat in the Territory, because
they are all fixed.
,,
I move that in the substitute offered by the gentleman from
Cass, after the word "fixed," we put the words "by a majority vote
of the people."
The substitute was seconded and carried.
Mr. CAMP. I move as an amendment to the substitute that the
words "hereafter organized" be inserted after the word "county"
in the second line.
Mr. MOER. I move that the substitute and the amendment be
both laid on the table.
Mr. PARSONS of Morton. It seems to me very strange that
after voting with a rising vote on this question, that its whole
purport should be sought to be changed immediately by the gen-
tleman from Stutsman.
Mr. CAMP. Yes, the two words that I have sought by my
amendment to get in here, do change the entire meaning of the
section. My reason for introducing it is this-there are a large
number of counties that have been organized for a large number
of years. Under the power of the legislature the county seats
were fixed. The county seats have always remained there, and it
would tend to cause considerable trouble in many of the older
counties if this were made to apply to any county already organ-
ized where the county seat has not been fixed by a majority vote
of the people. There may be some few counties in which it is
desirable to have the county seat question voted on hereafter. If
9
130
DEBATES OF THE CONVENTION.
there are any such I am unaware of the fact, but it is proper that
this section apply to unorganized counties hereafter to be organ-
ized. While I am on my feet I may say that I hope the whole
substitute will be reported with the recommendation that it do
not pass, and that section five will be reported with the recom-
mendation that it be stricken out, for the reason that in the legis-
lative department there will be an article, I suppose, providing
that the Legislature shall pass no special law fixing county seats
or organizing counties, and there will be in the Schedule a pro-
vision that the present laws of Dakota shall apply to the new
state as far as practicable. That will leave us with a good and
complete system for the fixing of county seats, and these two
sections, four and five, are absolutely useless in this Constitution.
They will be lumber in it in my opinion.
Mr. MILLER. With the consent of my second I withdraw
the motion substituting these two sections.
Mr. MOER. In what condition is section five now ?
The CHAIRMAN. There was a motion by the gentleman from
Morton, that the committee when it rise report back the section
with the recommendation that it be adopted. The gentleman
from Traill offered an amendment to that striking out the words.
"specifying the place to which it is to be changed."
Mr. SELBY's amendment was carried.
Mr. SELBY. I wish to offer an amendment to this effect: At
the end of the section these words be added. "Providing, That
in counties where the county seat has been located prior to the
the construction of the line of railroad in the county, and which
remains more than five miles distant from the line of railroad,
and more than five miles distant from the geographical center of
the county, that it can be then submitted and relocated by a
majority vote."
Mr. SELBY. In explanation of this amendment I wish to
say first that I don't believe that there should be anything incor-
porated in this Constitution relative to the removal of county seats.
I think that all these questions should be left to the legislature to
adapt the legislation to conform to the interests of the people. I
am particularly opposed to establishing it on the basis of a two-
thirds vote, having it a constitutional provision so that in the
future counties like mine, suffering under the inconvenience we
are suffering from, will have practically no remedy. I live in a
county with 12,000 inhabitants. We have three lines of railroad
DEBATES OF THE CONVENTION.
131
with the county seat more than twelve miles distant from any one
of them and on the extreme edge of the county. There are three
towns in our county that are located on the railroads, that are
populous, and each one is looking for the county seat. If we have
only a two-thirds vote to work on I think the county seat must
remain where it is. The people want it removed. The objection
that this would be special legislation, simply to cover my case is
not true in fact. While it may be so to-day, when the expanse of
the western portion of this Territory is opened up and counties.
are organized-counties that to-day have no railroads-they may
be placed in precisely the same position that my people are in to-
day. Are we to say to them that under a constitutional provision
you must remain in that condition? It is unfair for you to say
this, not only to my county but to counties that in the future may
be placed in a similar situation.
Mr. MCBRIDE. What is the reason for the latter part of the
amendment, "Five miles from any railroad?"
Mr. SELBY. I presume that ordinarily the people prefer to
have their county seats near a railroad. It is immaterial whether
you say one mile or five or ten—our position is the same. But I
thought it was reasonable to say five.
Mr. APPLETON. I move that all after the word "or" in the
amendment be stricken out.
Mr. BLEWETT. I move that this committee do now rise and
recommend that all of section five with its amendments be struck
out.
Mr. CAMP. I second the motion, and I hope that it will carry.
It will then leave the matter to the Legislature. Our Constitution
will provide that no special legislation can be enacted, and the
whole matter will be left to the Legislature to enact a general
system for the removal of county seats. This article is useless in
my opinion, and just so much lumber.
Mr. PARSONS of Morton. I hope sincerely that the motion
will not prevail. It seems to me that it would be too bad to make
it possible in the future for the Legislature or a faction, to have
a club to wield over any member and say-if you don't vote so
and so we will remove your county seat.
The motion to rise was lost.
Mr. BEAN. The question as it now stands is that in all counties
that have had their county seats located by a majority vote—in
those counties it can be resubmitted, and simply a majority vote
132
DEBATES OF THE CONVENTION.
can carry it instead of two-thirds. If you make it a majority vote
you give a preference over the plurality. Why not make it
read that in all counties where the county seat has been located
by a plurality vote? I should say that in counties where the
county seats had been located by a plurality vote they should be
allowed to vote on the question and a majority vote should carry.
Mr. SELBY. I have no objection to the amendment of the
gentleman from Nelson.
The amendment of Mr. BEAN was carried.
The amendment of Mr. SELBY was carried.
Mr. SCOTT. I move that when the committee do rise they
recommend that section five be stricken out as amended.
The motion was seconded and carried.
Mr. BLEWETT. I move that when the committee do rise
they recommend that section six be adopted.
The motion was seconded.
Mr. CAMP. I wish to move an amendment, and I wish to state
my reason. There are several prosperous counties of North Da-
kota now existing without township organization. They find it far
more advantageous than some of their neighbors who exist under
township organization. The township system has proved an ex-
pensive and wasteful experiment, and there are many counties.
that don't wish to be forced into it. I certainly have no objection
to any county which desires township organization, adopting it,
but I do object to having the township organization system forced
on us, and therefore I move as an amendment that the Legislature
may provide by a general law for township organization, which
any county, may adopt on a vote of the people.
Mr. FANCHER. I second the amendment. Stutsman county
is now working under the commissioner system, and it is very sat-
isfactory to us. We have sixty-four townships in our county, and
if we were compelled to adopt the supervisor system it would be
very expensive and our people don't desire it for that reason.
second it.
I
Mr. SCOTT. I think the Legislature should provide for or-
ganizing counties into townships. I think it should be compul-
sory on the Legislature, but I don't think it should be compulsory
on the counties to adopt that system unless by a majority vote. I
think each county should have the privilege of adopting the sys-
tem or not.
Mr. CAMP. The use of the word "shall" in this Constitution
DEBATES OF THE CONVENTION.
133
will apply to the Legislature. This Constitution can say what the
Legislature cannot do, but it cannot compel future Legislatures
to do anything. When we use the word "shall," in my opinion
we are doing a useless thing. We say the Legislature shall pro-
vide a township system. Suppose the Legislature does not do
this, is there any power to compel them? When we use such
language we are not making a fundamental law, but giving the
Legislature some advice. We don't want anything here which a
court of law cannot enforce. If I am mistaken in this view I
hope I shall be corrected, for it will be very important in future
deliberations of this body to know just what we can do. If we
can compel the Legislature we want to know it, and if we can't
we don't want to attempt it.
Mr. CARLAND. The criticism of the gentleman from Stuts-
man in regard to the use of the word "shall" seems to be in part
correct, but he has argued as an amendment that the word “may”
should be put in. Of course the Legislature possesses all the
legislative power there is. They can do anything that the Con-
stitution does not prohibit. So to say that they may do anything
is to say they may do something without the Constitution. I don't
see how the amendment of the gentleman to say that the Legisla-
ture may do something helps us at all.
Mr. CAMP. I understand the proposition of the gentleman
from Burleigh as being entirely correct, and the only reason I
made the amendment was to get in the requirement of consent on
the part of the county.
Mr. STEVENS. I am in favor of a provision which will, after
the Legislature has provided a system under which townships
may be organized-a system that will give the counties an oppor-
tunity to vote on the question-then where the people vote in the
majority for township organization it shall go into effect. In
those counties where they vote against it, the county commis-
sioner system shall remain in effect. But I don't believe that the
amendment offered reaches that point. I believe that there is no
election provided for, or how it shall be submitted. In my opinion
it should be by a provision of the Legislature submitted to each
county, and on a majority vote of each county, they would deter-
mine whether or not they desire to adopt the plan.
Mr. FLEMINGTON. I move that the committee do now rise.
The motion was seconded and carried.
134
DEBATES OF THE CONVENTION.
THE DEBATES.
Mr. CAMP. I desire to offer an amendment to a resolution that
was adopted here some time ago, and I move that the debates that
occur in the Convention be published, and not those that occur in
the Committee of the Whole.
Mr. STEVENS. Under the resolution that was previously
passed here, this motion is out of order.
Mr. CAMP. I move that we reconsider the resolution intro-
duced by Mr. SELBY, and passed July 18th. It reads that the
debates of the Convention shall be published. The purpose of
my motion to reconsider is to make a construction of the words
"debates of the Convention," and I wish to limit the publication
to the debates of the Convention proper, and not to have the
debates of the Committee of the Whole published.
Mr. STEVENS. The same objection might be stated here.
The same matter that would have been voted on before would be
voted on if this motion is put. The object is to cut out the de-
bates of the Constitutional Convention. All the debates, or prac-
tically all of the debates, will be made in the Committee of the
Whole. In all probability when we have gone into debate in the
Convention, after the Committee of the Whole has passed upon
these questions, the five minute rule will be established, partic-
ularly as we are nearing the close of the session. If the debates
that are to be published are to be of any benefit, it is that we may
see how and know all that was done in this Convention. By the
adoption of this resolution you practically cut out of the debates
all the most important matter that will come before us. If the
debates are not published the people can never know what the
views of the Convention were on the subject. If the debates of
the Committee of the Whole are published in full everything
that has gone on before this Convention will be there for review.
For that reason I am opposed to the reconsideration.
Mr. CAMP. Some object to the publication of all the debates
on account of the expense. We don't realize how rapidly we are
speaking when speaking here. We have already made at least
one large volume of debates in the Committee of the Whole, and
we have hardly begun. The debates of the Constitutional Con-
vention of Pennsylvania comprise from eight to ten volumes.
The debates of other Constitutional Conventions which published
their proceedings in full comprise numbers of volumes. Our
DEBATES OF THE CONVENTION.
135
debates, if published in full, will hardly be found within five or eight
volumes. It seems to me that the enormous expense attending
such a publication should make us willing to forego the great
pleasure and honor that we would derive from seeing our names
printed as we would speak in the Committee of the Whole. If
any gentleman is desirous of putting himself on record, he can
make his little motion or his small amendment in the Convention
and put himself square with his constituents.
Mr. STEVENS. How long was the Convention in session in
Pennsylvania?
Mr. CAMP. One year.
Mr. LAUDER. It seems to me that in estimating the extent
of the record the gentleman from Stutsman anticipates that this
Convention will be in session a very long time--much longer than
I hope it will. I know not what the proceedings may be in the
future, but so far as we have gone, the remarks that have taken
place in the Committee of the Whole have been really the only
important debates of any value that we have had. I am not am-
bitious, Mr. PRESIDENT, to have anything that I may say incorpor-
ated in this report. That is not the purpose of my speaking on
this question. But it seems to me that unless the debates that
take place in the Committee of the Whole are recorded, the
record will very imperfectly record the proceedings of this body.
For instance, there have been a number of speeches made here
upon this one house question by members-the gentleman from
Burleigh county, the gentleman from Ransom, the gentlemen
from Nelson and Morton. Some of them were prepared, no
doubt, evidently with some care. Some labor was bestowed upon
them in their preparation-must necessarily have been--and it
seems to me that debates of that kind should be recorded and
perpetuated. In view of what to me seems to have been in some
cases hardly a justifiable expense, it is raising the economy cry
in a very bad place, to undertake to prevent the publication of
these debates that take place in the Committee of the Whole, on
the ground of expense. It seems to me that we had better put
the expense in there and lop it off somewhere else.
Mr. BARTLETT of Dickey. I am heartily in favor of recon-
sideration, and I will vote for having nothing reported from the
Committee of the Whole. If we proceed as we have done in the
past two or three days in discussing county and township matters,
we shall be here a year. If debates are to be reported here our
1
136
DEBATES OF THE CONVENTION.
Convention will be lengthened out just twice as long as other-
wise. I am opposed to having this Convention made a school by
which political speeches made for effect shall be printed at the ex-
pense of the state. I say that there will be a great many
speeches made here if they are reported and printed which would
not be made and many long speeches made which would not be
made, and I think our constituents would rather that we get
through with our work.
Mr. HARRIS. If there is any gentleman here who thinks that
his constituents are going to read his speeches, he is very much
mistaken. The debates of this body are the foundation of the
interpretation of this Constitution, and if we are going to print
anything about this Constitutional Convention we want the whole.
business.
Mr. LAUDER. I am not advocating the reporting of the
speeches that are made in the Committee of the Whole for the pur-
pose of giving any member of this Convention an opportunity for
display. If I thought that the Committee of the Whole was to
be used here simply as an electioneering platform, as has been in-
timated, I should be opposed to having the speeches reported, but
I don't believe this. I believe that the speeches are to be reported
for the purpose of preserving a record of this Convention for the
purpose of the public good, and I don't believe that the privileges
of the members to talk here will be abused.
Mr. MOER. I think that the point made by the gentleman
from Burleigh was exceedingly well taken in this matter. I believe
with the other gentlemen that we want to keep the expense down,
but it seems to me that it is very desirable that we should have all
the debates so that those who come after us can find out just what
the Convention actually meant. The debates would help in this,
and I know of no Convention but what has had its debates reported,
and it does not seem to me that they would be very extensive.
The motion to re-consider was carried.
Mr. CAMP. I move that the motion of the gentleman from
Traill be amended by inserting after the word "Convention" the
words "but not the proceedings or debates of the Committee of
the Whole hereafter had."
The motion was seconded.
Mr. SCOTT. I am not in favor of this motion. I don't think
any gentleman in this Convention will accuse me of being a
speaker or intimate that I desire to have my debates or any
DEBATES OF THE CONVENTION.
137
speeches that I may make recorded. So I feel a little freer to
speak on this matter, probably, than some of the gentlemen who
have already given us some of their efforts. It does not appear to
me that there is any use of employing a Sten ographer and paying
him $10 a day unless we employ him to some purpose. It is well
known to all of us that most of our discussions where we will ar-
rive at our decisions on any of the articles which are to be
incorporated in the Constitution, will be in the Committee of the
Whole. It will be very seldom indeed that after the Committee
of the Whole has reported that the arguments will be brought be-
fore the Convention. We have our Journal, which contains about
all that the Stenographer's report will contain unless we have a
transcript of the proceedings of the Committee of the Whole. As
the gentleman from Burleigh remarked, it is important that we
have the debates printed with the arguments adduced pro and con
on any measure, so that in the future it will be known what the
reason was and what the object was of any particular paragraph.
For that reason I think it is proper-I think it is right-that the
debates which occur in the Committee of the Whole should be
taken by the Stenographer and be printed with the published de-
bates as well as those which occur in the Convention. I don't see
that this resolution will help matters anyway, for if a gentleman
is going to make an oration he will make it in the Convention in
place of the Committee of the Whole. As the Committee of the
Whole has more of an informal way of discussing matters, I think
it is preferable that the debates there should be printed rather
than those which are more stately.
Mr. CLAPP. I hope that the amendment of Mr. CAMP will
not pass. This Convention has already determined by its vote
that when anything has gone through the Committee of the
Whole and is recommended, it shall then go to the Committee on
Revision, and shall then be declared to become part of the Con-
stitution. If it is not to be recorded how the members talked
and voted on a certain proposition, we won't know where they
stand. I think the amendment should not pass.
Mr. WALLACE. I have thought over this matter, and I have
come to the conclusion that I was wrong before. I think we want
to have a record of what our delegates have said. The yeas and
nays are not called in the Committee of the Whole, and we shall
have no other record of how the members stand in the committee
but the report as prepared by the Stenographer.
138
DEBATES OF THE CONVENTION.
Mr. SPALDING. Mr. PRESIDENT: The remarks of the gen-
tleman from Steele have brought to my mind one objection which
has not been raised to the publication of the debates, and that is
we are not all born orators, and it puts us at a disadvantage when
compared with the orators. In the Committee of the Whole there
can be no roll call, and the only way a man can get himself on
record as the gentleman from Steele has indicated, is by making a
speech in the Committee of the Whole. This leaves all of us
who cannot speak, out in the cold. We cannot go before our con-
stituents and say what we have done and how we voted, and point
to the record, because there is no roll call and no record. We
have had simply a rising vote, and we cannot show them what our
action was on the different questions that came before us. This
places us at a disadvantage, and prejudices us in the eyes of the
people of the Territory, and for that reason, considering it on the
basis of the gentleman from Steele, I am opposed to it. If I
were the orator that the gentleman from Steele is, or the gentle-
man from Ransom it would be different.
Mr. STEVENS. I appreciate a compliment when it is well in-
tended, and a pun when well driven. I can see very well what the
gentleman means by referring to me. He is attempting to have
this Convention believe that I am in favor of having the debates
all published because I desire my speeches recorded. I will say
that I will be perfectly willing that the reporter should not record
one word of what I say. Probably I would stand better with my
constituents, but I would very much like to hear the gentleman
from Cass in some of his consistencies in debate on the floor of
this Convention. I desire, at least, in this Convention to be con-
sistent. I desire at least, if I cannot be eloquent-if I cannot
make my hearers understand the meaning of my words—I desire
at least to go on record as being consistent, and the gentleman who
voted in favor of the adoption of this resolution that has already
passed this Convention, as the gentleman from Cass did, cannot
claim consistency if he afterwards goes and seeks to amend it by
cutting out all of that part which will be of any benefit. He is
inconsistent in his conduct, and should be so recorded in the
records. Were I to say what the gentleman does, that he cannot
make an eloquent speech, I would be saying that which the facts
would not justify me in saying. He is one of the most logical
speakers in this Convention, but be he logical or eloquent or not,
the generations that are to come after us—the Constitutional Con-
DEBATES OF THE CONVENTION.
139
ventions that shall be held in this or other halls—are entitled to
the wisdom that he shall display in argument in the Committee of
the Whole of this body, and I hope they will receive it.
Mr. CAMP. When the gentleman from Cass referred to the
gentleman from Ransom, I supposed he referred to the colleague
of the gentleman who has just taken his seat, but the speech he
has just made has convinced me that this supposition of mine was
unfounded.
The amendment of Mr. CAMP was then carried.
Mr. LOHNES. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTY-FIRST DAY.
BISMARCK, Wednesday, July 24, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
THE JUDICIARY REPORT.
Mr. CARLAND. In presenting the report of the Judiciary
Department I desire to say that there is one feature of it which
was not universally concurred in by the committee, and it was
understood that until the minority report was made on that pro-
vision, action on the report would be deferred. I understand that
the report of the minority will be made to-morrow.
Mr. MILLER. I move in relation to File No. 106 that the
further consideration be postponed till Saturday of this week. I
do that for the reason that as it is a Constitution entirely of itself,
it would seem to be showing not quite due consideration to the
various committees of this House who have drafted several clauses
for the Constitution, to take this up before they have had an op-
portunity to submit their reports. Their reports will be all in by
to-morrow, and can be considered in advance of this. I hardly
140
DEBATES OF THE CONVENTION.
think it right that the gentleman from Burleigh should urge the
consideration of his measure till all the committees have reported.
Seconded by Mr. LAUDER and carried.
Mr. BARTLETT of Griggs. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTY-SECOND DAY.
BISMARCK, Thursday, July 25, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. BARKER, of Fargo.
COMMITTEES REPORTING.
Mr. MILLER. It is evident that quite a number of the com-
mittees will not be able to report to-day, and under the resolution
adopted several days ago, this is the last day for them to present
their reports. The Committee on Public Buildings and Institu-
tions have not yet been able to have a meeting, owing to the fact
that the members are on several other important committees, and
no meeting has been held except one at which only a few mem-
bers were able to be present. I move that the resolution fixing
this as the day for the sending of final reports, be reconsidered.
There are many other committees in the same position as the one
I refer to particularly.
Mr. BARTLETT of Dickey seconded the motion.
Mr. PURCELL. Inasmuch as the resolution which it is pro-
posed to reconsider was offered by me, I feel called upon to say
something in support of it. I would have no objection in sup-
porting the motion of the gentleman from Cass provided in it, he
stated some specific time within which his committee would report.
If this resolution is put out of the way, other committees can run
on indefinitely, and it will be at their pleasure that they will make
their reports. I submit that we have spent sufficient time to have
accomplished something here, and unless the gentleman will specify
DEBATES OF THE CONVENTION.
141
a time within which he will make his report I shall oppose the
motion.
Mr. SCOTT. There are several committees who find it impos-
sible to report to-day. For example, there is the Committee on
Apportionment and Representation. They cannot get to work
till the report of the Legislative Committee is dealt with. The
report of the Committee on Schedule-there will be additions,
they will have to make their reports after most of the other com-
mittees have reported. Take the Committee on Revision and Ad-
justment-it will be impossible for it to report yet, and a general
resolution covering the time for all the committees to report
would not be proper.
Mr. PURCELL. Of course the original resolution was not in-
tended to apply to the committees which in the very nature of
things can't report yet. But my idea is that most of the commit-
tees might be compelled to get together and report their actions to
this Convention as soon as possible. If there is a committee which
cannot get its report in because of waiting for other reports, it
can be exempt from the operations of this resolution. But it
seems to me that we shall save time for us to fix a date within
which these committees will be compelled to report progress to
this Convention.
Mr. PRESIDENT. It would seem under this resolution that
the idea to be conveyed was that the committees should report
progress. That would be a proper thing for them to do under
this resolution.
Mr. BARTLETT of Griggs. If it is the understanding of the
Convention that that resolution simply meant to report progress I
am in favor of reconsidering it and inserting the words "final re-
port." If these reports cannot be made to-day, have them to-
morrow. I understand that there is another committee that has
only had one meeting, and the Apportionment Committee is wait-
ing for another committee to report.
I don't think there is any
absolute necessity for so much delay.
The motion to reconsider was lost.
Mr. WILLIAMS. I move that the reading of the reports of
the standing committees to-day be dispensed with.
The motion was seconded.
Mr. PURCELL. There is a report of the Committee on the
Judiciary Department. I understand that there was time granted
for a minority report. I have been informed by the gentlemen of
142
DEBATES OF THE CONVENTION.
the minority that there is no objection to a consideration of the
majority report. It seems to me that we ought to do something
to-day. It seems to me that the reports which are in shape to be
read should be read.
Mr. LAUDER. I am certainly as anxious as any member of
this Convention to expedite the work, but inasmuch as the gentle-
man from Burleigh who is Chairman of the Judiciary Committee
is absent to-day, it seems to me that it is proper that we should
defer it.
Mr. TURNER. I think there are some of these reports that
might be very well taken up to-day. I would suggest that the
report of the Committee on Temperance, and the report of the
Committee on Impeachment be taken up.
Mr. WILLIAMS accepted the suggestion of Mr. TURNER as an
amendment to his motion.
The motion was carried.
THE LEGISLATIVE DEPARTMENT.
Mr. ROLFE. If it is proper to make this motion, I would
move that the rules be suspended and the Convention do now
resolve itself into a Committee of the Whole to consider that por-
tion of the report of the Committee on Legislative Department
that relates to the number of which the Legislature shall be com-
posed. I make this motion for the purpose of expediting the de-
termination on that point, so that the Committee on Apportionment
may have something to work on in the preparation of its report.
Mr. PRESIDENT. It is not necessary to have a suspension of
the rules.
Mr. ROLFE. It seems to me that if we are not to consider the
report of the Committee on the Judiciary Department we have
nothing before us. I believe we can determine as to the number
of which the Legislature shall be composed as well now as at any
time.
The motion was carried.
Mr. ROLFE. My motion simply referred to that portion of
the report of the committee which referred to the number of
which the Legislature should be composed in either house. That
was all that I thought we should discuss in the report this after-
noon.
Section 8 of the report providing that the House of Representa-
tives shall number not less than 60 nor more than 140 was adopted.
DEBATES OF THE CONVENTION.
143
The Clerk read that part of the report in section two which
provides that "the Senate shall be composed of not less than thirty
nor more than fifty members.
""
Moved by Mr. WILLIAMS that the section be adopted.
Mr. PURCELL. I move as an amendment that it shall read
so that there shall never be more senators than one-third the num-
ber of representatives.
The amendment was seconded by Mr. BARTLETT of Griggs.
Mr. ROLFE. I move to amend the amendment by providing
that the number of senators be never less than one-third or more
than one-half.
The amendment to the amendment was seconded.
Mr. PURCELL. At the time the report of this committee was
offered it was accompanied by a statement from the CHAIRMAN that
some of the members desired to make a minority report. As one
of those members who desired to make a minority report, my
report was intended to cover this question exactly. In other words
I desire to make a report as a minority covering the repressntation
in the two houses in the Legislature. There have been some meas-
ures introduced which have been referred to the committee touch-
ing the question of minority representation, and it was my desire,
and was understood between us, that before this matter should be
discussed we were to have it so that the Convention could take the
majority report into consideration in conjunction with the minority
report. I would ask that the question now under consideration
with reference to the number of members of the next Senate, shall
be postponed till the minority report is before the Convention.
Mr. WILLIAMS. It seems to me but just that the request of
the gentleman be acceded to. That was the understanding in the
committee. Owing to the order made requiring that we report to-
day, the report of this committee was made up hastily, and last
night it was generally understood and agreed to among the mem-
bers of the committee that the gentleman from Richland should
have the right to make a minority report on that particular article,
and it seems to be but just and right for the Convention to post-
pone further consideration of this question till he has had an
opportunity to submit his minority report.
Mr. ROLFE. Do I understand the gentlaman from Richland
to say that the consideration of his report touching minority rep-
resentation should necessarily precede our discussion of the num-
ber of members of which the Legislature should be composed?
144
DEBATES OF THE CONVENTION.
-
Mr. PURCELL. That will in a great measure depend on the
number they fix. If they fix the number of Senators so large
after having fixed the number of the lower house--if they fix a
greater number in the upper house than one-third, it certainly
would make my measure inapplicable. At least it might become
So. If they saw fit to adopt my measure, the upper house would.
only consist, possibly, of one-third the number of the lower.
They might make the number in excess of that if they consider
it now.
Mr. ROLFE. The proposition before us is simply to fix the
maximum and the minimum in both houses. The proposition is
not to definitely fix the number of each house of the first Legis-
lature, but to determine the boundaries within which the Legisla-
ture may at any time in the future fix the number. There must
be a further report from the Committee on Apportionment fixing
the number of which the first House will be composed, and that
will come before the House for consideration. We are here set-
ting boundary lines within which future Legislatures must work.
So that I cannot understand how it touches the question of minor-
ity representation, if I understand the question at all, that is
proposed by the gentleman from Richland. I have no wish to be
discourteous to him, first because that would not be fair, and
second because I like the gentleman.
Mr. PARSONS of Morton. It seems to me that our action
thus far will not interfere with the gentleman from Richland.
But in deference to the gentleman's wishes, I think we should
allow the matter to lie over till the minority report is handed in.
Mr. ROLFE. The matter to be settled here is simply on the
question of the maximum and minimum of which both houses
shall be composed. No other question as to representation
comes in here. It simply fixes the limit that is all.
Mr. WILLIAMS. I would move that when the committee rise
it recommends that the further consideration of the question be
postponed till to-morrow. The report of the Legislative Com-
mittee would not have been made to-day without the consent of
the gentleman from Richland, and we owe this to him.
The motion was seconded and carried.
Mr. TURNER. I move that the report of the Committee on
Temperance be read a second time.
The motion was carried.
DEBATES OF THE CONVENTION.
145
TEMPERANCE.
The report was read.
Mr. POLLOCK. I move that the Convention now resolve
itself into the Committee of the Whole for the purpose of con-
sidering the report of the Committee on Temperance.
The motion was carried.
Mr. FLEMINGTON. I move that the committee when it rise,
do recommend that that portion of the report of the committee
which provides for a separate subdivision be stricken out, so that
the prohibitory part of the report will go straight into the Con-
stitution.
The motion was seconded by Mr. RowE.
Mr. POLLOCK. I sincerely hope that this amendment will
not prevail, for the reason that the people of this Territory, and
in our State desire, as I view it, to settle this matter for them-
selves, and not to have this Convention here assembled determine
the matter. The delegates have not been selected on that issue, and
they didn't come here, as I understand it, for the purpose of decid-
ing this question, and there was no intimation that they would so
decide it. The people only ask that they may be privileged to
determine this question for themselves, and they ask that it may
be submitted for that purpose. It may as well be conceded that.
no advantage would be gained by our putting this in the Constitu-.
tion unless a majority of the people are in favor of it, for the in-.
corporation of a prohibitory clause in the Constitution, if we do
not have a majority of the people in favor of it, would be useless.
For that reason I hope the amendment will not prevail.
Mr. BARTLETT of Dickey. I agree with the last speaker.
It is well known that there are but few men who feel more deeply
than I do on this temperance question, but for that reason I want
prohibition to go through on its merits. I don't want it to ride
through on the Constitution, nor do I want it to be an impediment
to the Constitution. I want it to go through on its own merits,
and I hope the amendment will be voted down.
Mr. MILLER. I might add that it was the expressed wish by
resolution of the convention held in our county, and of a good
many other conventions held in other counties that this matter
should be submitted to the people separately. The temperance
people in different parts of North Dakota have expressed by
resolution a good many times that they wished this matter sub-
mitted as a separate issue.
10
146
DEBATES OF THE CONVENTION.
Mr. MATHEWS. A resolution adopted in Grand Forks,
signed by the liquor men and by the prohibitionists was in favor
of having this matter submitted to the people separately.
Mr. FANCHER. The people of Stutsman county, like the
people of Grand Forks county and Cass, are of the same opinion,
and I trust that the amendment will not prevail.
Mr. MCKENZIE. My people in Sargent county are also opposed
to having it put in the Constitution, as is contemplated by the
amendment.
Mr. WALLACE. Of course we represent our various constit-
uencies. A majority of the people in the state are in favor of the
submission of this clause as a separate measure. I speak for
the people of Steele county. They are in favor of putting it into
the body of the Constitution. I recognize the signs of the times
which say it shall be submitted as a separate clause, but I wish
to indicate what is the prevailing sentiment in my county.
Mr. PARSONS of Morton. I hope the amendment will not
prevail, for it will have one effect-that of arraying every one who
is opposed to prohibition against the Constitution adopted in this
Convention. It is a question that should be voted on separately
irrespective of the Constitution, so that every voter may have a
chance and opportunity to express himself on the Constitution
and on the question of prohibition. I believe the people of the
West Missouri country are in favor of a separate submission.
Mr. ROWE. I will say in representing the constituency of
Dickey county that the people of that county take a more ad-
vanced ground on this temperance question than some, and believe
that it should be incorporated right in the body of the Constitu-
tion. We represent the banner temperance county of the Terri-
tory of Dakota, and Dickey county in casting her vote the sec-
ond time for local option gave a majority of 500 in favor of local
option, and local option is a thriving success in that county. We
believe that this prohibition amendment or section should be in-
corporated right in the body of the Constitution, that it may go
along with the other movement towards statehood without being
subjected to individual attack by the corporations or the interests
that may be in favor of the license system. When we come into
statehood we wish to come over the threshold with an article in
our Constitution that is in favor of free homes, free speech and a
free press, and against the freedom of the rum power.
Mr. BARTLETT of Dickey. I, too, have the honor of repre-
DEBATES OF THE CONVENTION.
147
senting Dickey county, but I will say that I was instructed by
the Democratic party of my county to have it submitted sepa-
rately. I say here that I firmly believe that if this clause were
incorporated in the Constitution it would result in the defeat of
the Constitution. I believe that; I believe there is such a large
element of people who are opposed to having it engrafted into
the Constitution that it would be the means of defeating the Con-
stitution. There are many here who know me, and I will say that
if I thought it would be for the best, and if I thought the people
would open a warfare against intoxicating drinks and defeat the
liquor interests, I would feel all right. But you know how it was
when we first had local option. It was not effective, simply be-
cause they said it was not the sentiment of the people, and that
it went through on a side issue. But when we had it as a plain
issue a second time, local option became the law on its own mer-
its. It was a great deal more effective then, and if this amend-
ment would carry it would take all the zeal and all the hope out
of a great many honest men.
The amendment of Mr. FLEMINGTON was lost.
Mr. NOBLE. As I understand it, this report has not yet been
printed. There seems to me very little question as to the submis-
sion, but there may be a question as to whether all is in this report
which should be there, and I would move that the committee rise
and report the report back, recommending that it lie over until it is
printed.
Mr. NOBLE's motion was lost.
The report of the committee was then adopted unanimously.
Moved by Mr. BLEWETT that the article on Militia be taken
up and given a second reading.
Mr, PARSONS of Morton. Everything in the report of the
Committee on Militia may be all right and proper, but it does seem
to me to be a little hasty to consider these things when the mem-
bers have no copies of them on their desks. I could not tell
six words in that report from hearing it read. If there is nothing
to do on it but vote, why can't we wait?
The article on Militia was given its second reading.
Mr. TURNER. I move that we now consider the report of the
Committee on Impeachment.
Mr. FLEMINGTON. It does not seem to me that we should
consider these reports before they are printed and on the desks of
the members. I am not in favor of further consideration of
148
DEBATES OF THE CONVENTION.
reports of standing committees until they are printed, and until
we all have had an opportunity to read them. I think we have
been acting on some reports concerning which only the members
of the committees have been informed as to what they contained,
except what we have been able to gather from the reading of the
clerk. It seems to me that the consideration of these matters under
such' circumstances is immature. We at least should have a
chance to read them carefully before we vote.
The motion of Mr. TURNER was lost.
Mr. PARSONS of Rolette. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTY-THIRD DAY.
BISMARCK, Friday, July 26, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
4
Mr. MOER. I would like to ask that the consideration of the
report of the Committee on Revenue and Taxation be laid over
for consideration till Tuesday. I do so for this reason—it seems
to me now that there will be a minority report submitted and
three members of the committee, who I understand desire to put
in a minority report, are absent, and will not return till Tuesday.
It is possible that there will be no minority report, but I am in-
formed that in all likelihood there will be one.
Mr. MCHUGH. I move that the Convention now go into a
Committee of the Whole for the consideration of File No. 121.
Mr. MILLER. I see that we have quite a lengthy minority
report on that File. I have not the slightest objection to consid-
ering the File, but we must consider the minority report with it,
and that is not printed yet, and there are no copies to be had.
Mr. BARTLETT of Griggs. I hope that the motion of the
gentleman from Cavalier will not prevail until we have the min-
ority report in the hands of the delegates.
DEBATES OF THE CONVENTION.
149
The motion of Mr. McHUGH was lost.
Mr. PARSONS of Morton. I have been requested to make the
following motion, that when we adjourn we take a recess until next
Tuesday. I make this motion for the following reasons:
A great
many delegates here are farmers, and they claim that the situation
of affairs at home demands their presence. It is time that they
should make preparations for harvesting their crop. Time and
tide wait for no man, and in deference to their wishes and interests
I think that this recess should be taken. Personally I should
prefer to continue at work here, but in deference to the wishes of
the gentlemen who asked me to make the motion, I have said what
I have, and I hope the motion will prevail.
The motion was seconded.
Mr. MOER. I am surprised that the gentleman from Morton
county should, or any other man, make this motion, and still more
surprised that the gentleman from Steele should second it. The
gentleman from Steele has objected strenuously to all delays in
the work of this Convention, and he has insisted that we should
get through with our work as speedily as possible. By this motion
we are put in a position where we lose two days. If there are any
farmers or lawyers who want to go home they can be excused as
has been the custom without adjourning this Convention. The
business of this Convention has been delayed from day to day, and
it now looks as though we might have to sit here for the next
thirty days, and I fail to see any warrant or excuse for this ad-
journment.
Mr. BARTLETT of Griggs. I believe that I am one of those
who has, so far, opposed all delays, but I believe now that it would
be to the advantage of this Convention, and would expedite busi-
ness to adjourn till Tuesday. One reason why I desire this is
because we can see now, I think, almost all of the questions we
shall soon have to vote upon in this Convention. I don't think that
I embrace all the wisdom of my district, and there are many
questions that I shall be required to vote on next week that I am
at a loss to know their views upon, and I think it is so with a good
many delegates here. As far as I am concerned I should like to
consult with them on some of these matters, and therefore I am
in favor of the motion.
Mr. SCOTT. As I understand the gentleman, he wants this
Convention to adjourn in order that he may be able to go home
and see a number of his constituents, and see how he shall vote.
150
DEBATES OF THE CONVENTION.
If I know anything about the gentleman from Griggs I think I
may say that he has made up his mind on most of these ques-
tions already, and has decided opinions, and if he does consult
his constitutents they won't make any material change in his
views. We have any quantity of work before this Convention.
Here are six reports of committees which we can take up any
moment. If there is any gentleman who desires a leave of ab-
sence for a day or two it can be granted. It has been granted
before, but the fact that the gentleman wants a leave of absence
is no reason why we should all adjourn and thus lose two day's
work.
Mr. WALLACE. I am not at all surprised that there are some
gentlemen who don't appreciate the situation. The facts are as
have been stated-the business affairs of some of the members
are in such a condition that they desire to go home for a short
time. There are a good many who will be compelled to leave
to-night. A week ago an attempt was made to adjourn over from
Friday to Tuesday, but it failed, but so many went home that we
did not do any business, and I anticipate that the same thing will
occur in the present case.
Mr. LAUDER. I have no doubt that there are many gentle-
men who have business that it would be well if they might have
an opportunity to look after it. If that is so, they can be excused
and can go and attend to their business. But it seems to me that
it would be unjust to tie up the hands of the rest of the members
in order to accommodate a few. I am so fortunate or unfortunate
as to have some grain of my own, and probably it is as necessary
that it should receive my attention as the grain of the gentleman
from Steele requires his. But we came here to do a certain work.
It has been delayed too long now, and I believe that there will be
enough delegates left here to transact business and go right on
with the work after we have excused all those who have business
at home which requires their attention. I hope this motion will
not prevail.
Mr. BARTLETT of Dickey. I am a good deal of the opinion
of the last gentleman who spoke. I have not heard a gentleman ask
to be excused who has not been promptly excused. I don't suppose
there are five men here who have not business at home that they
would like to look after. When we stop work for two days it
makes a big hole in the appropriation, and I think we had better
go slow about adjourning in this way. Let us stay here and
DEBATES OF THE CONVENTION.
151
attend to our work, and those who wish to be excused can be ex-
cused.
Mr. WILLIAMS. I hope the motion will not prevail. As far
as I am concerned I shall be willing to excuse any gentleman
who has business away that must take him. But it does not seem
to me that public business should be delayed in order that mem-
bers may look after their personal affairs. We have an abund-
ance of business before this Convention. Reports have been made
and are now on our desks, and it seems to me there is no reason
why we should not proceed to the consideration of these reports.
I can see no just excuse in adjourning this Convention over for
two days to subserve the interests of a few members. I am per-
fectly willing to excuse any member who desires a leave of absence.
Mr. PARSONS of Morton. I desire to repeat the remark I
made at the first-this motion was put before the House by re-
quest. Were I to consult my own wishes I should vote no, but I
was the witness to a motion last week of a similar nature, and it
is amazing to me—the change of tune on the part of some. I
don't believe that the public interest will suffer from now till
Tuesday. It seems to me that one of the principal dangers we
have to guard against is that of voting on questions without giv-
ing them sufficient consideration, and here are before us reports.
which it seems to me need considerable consideration before we
vote on them. I don't stand here as the champion of this motion,
but it seems to me that in view of the fact that there are so many
who want to go away, and the further fact that we can be study-
ing the committee reports, there will be no time lost by the ad-
journment.
Mr. MOER. I don't know to whom the gentleman from Mor-
ton refers when he speaks of a change of front on this question.
Certainly it does not apply to me, as I have been consistent in
this matter, for I have voted against every and all adjournments.
In view of the fact that the appropriation from the United States
Government is about exhausted, or entirely so, I think we should
hesitate before we put the Territory to an expense of $500 or $600
a day. The State has got to pay it after this, and it seems to me
it is unwise to adjourn just to suit the convenience of the gentle-
men who want to go home and look after their farms or law bus-
iness.
The motion to take a recess until Tuesday was lost.
152
DEBATES OF THE CONVENTION.
EDUCATION.
File No. 124 was taken under consideration in Committee of
the Whole.
It reads as follows:
SECTION 1. A high degree of intelligence, patriotism, integrity and mor-
ality on the part of every voter in a government by the people, being necessary
in order to insure the continuance of that government and the prosperity and
happiness of the people, the Legislature shall make provision for the estab-
lishment and maintenance of a system of public schools, which shall be open
to all children of the State of North Dakota, and free from sectarian control.
This legislative requirement shall be irrevocable without the consent of the
United States and the people of North Dakota.
Mr. McHUGH moved that the committee recommend its adop-
tion.
Mr. CAMP. I would like to compare this with the compact
with the United States which we have adopted. What reason is
there for the last two lines of this article: "This legislative re-
quirement shall be irrevocable without the consent of the United
States?"
Mr. SCOTT. That refers to section fourteen of the Enabling
Act.
Mr. CLAPP. The original File proposed, which is File No. 3,
contains words which are in this report, but the committee re-
ferred that part to the Committee on Education, and we embodied
the language which is printed as the fourth part of section four
of the Omnibus Bill, in this section. It seemed to make it neces-
sary that the sentiment and the particular language should be
made part of this article.
Mr. CAMP. I move you that the first three lines of the article
down to the word "people"-as follows: "A high degree of intel-
ligence, patriotism, integrity and morality on the part of every
voter in a government by the people, being necessary in order
to insure the continuance of that government and the prosperity
and happiness of the people," be stricken out.
The motion was seconded and lost.
The first section was adopted.
Mr. McHUGH. Imove that the words "a uniform" be stricken
out, and the words "an independent district" be inserted in the
place. The section was read:
SEC. 2. The Legislature shall provide at their first session after the adop-
tion of this Constitution for a uniform system of free public schools throughout
DEBATES OF THE CONVENTION.
153
the State, beginning with the primary and extending through all grades up to
and including the normal and collegiate course.
The amendment was lost.
Mr. ROLFE.
I move that all of section two after the word
"State" be stricken out.
The motion was seconded.
Mr. HARRIS. I hope this amendment will not prevail. If
our educational system in the State of North Dakota is ever going
to be a perfect system, and amount to anything, we want a head,
and we want to build right up through the primary classes to our
university. We want a complete system of education that will
begin in the primary department, and end in the university. For
that reason I am in favor of leaving in this section the words
"beginning with the primary, and extending through all grades
up to and including the normal and collegiate course."
Mr. ROLFE. I made the motion because it did not seem to me
that the words "primary," "normal" and "collegiate" had any such
distinct significance as to make it definite enough for the Legisla-
ture to proceed upon. These words may vary in their significance
according to the various understanding which the several and
separate members of the Legislature might have of the words,
and unless this section goes further-to such an extent as to
define carefully the particular significance, the intent and the
scope of these words, it seems to me they should be struck out.
Mr. ELLIOTT. I hope the amendment of the gentleman from
Benson will not prevail. The committee that drew up this report
did not presume to incorporate in it merely their own words and
ideas. The principal part of it was taken from the report that was
submitted to them from some of the principal educators of the
State of North Dakota that met about two weeks ago at Fargo.
The very words which the gentleman from Benson wants to strike
out were drafted by no less a personage than Professor Sprague
of Grand Forks. If these words are vague and out of place it is
not the fault of the committee. We presumed that they were all
right, and for my part I think they are. Every one knows, and
there is no dispute, what a primary course is, and what a normal
and collegiate course is. It was the intention of the committee
who drafted this report that it should be made compulsory on the
Legislature to begin at the primary and build up to the head—the
college-as the gentleman from Burleigh has stated.
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DEBATES OF THE CONVENTION.
Mr. ROLFE's amendment was lost and sections two and three
approved.
Mr. ROLFE. Section 4-It is always to be presumed that any
report presented by a committee has been carefully considered in
all its parts. In this section I suppose there was deemed to be
good reason for adopting the word "gubernatorial" instead of the
word "general." The section now reads:
SEC. 4. A State Superintendent of Public Instruction shall be elected by the
qualified electors of the State at each gubernatorial election after the adoption
of this Constitution, whose qualifications, powers, duties and compensation
shall be prescribed by law.
But it does not appear clear to me why this word "gubernato-
rial" was used.
Mr. ELLIOTT. The idea was simply this. The first set of
State officers must be elected for one year, or three years, so that
our general elections may fall in with the presidential elections.
That has been conceded by every one. The first term must be for
one or three years. If we proceed to elect a State Superintendent
of Public Instruction, it is necessary that we should have one at
once in order that our school system may become what it should
be, and be set on a firm footing. It is necessary that we should
have a State Superintendent of Public Instruction at once.
If we
put the word "general" in where we have "gubernatorial" we
should have to wait a year for a superintendent.
Mr. ROWE. This section is covered in the Executive report.
Mr. ELLIOTT. As this is a fact, I move that this section be
stricken out. But I would first ask if this Convention has adopted
section twelve of the Executive report?
The CHAIRMAN. No.
Mr. ELLIOTT. Then I don't see why section four of File No.
124 should be struck out.
Mr. ROLFE. It would seem to me that it is fairly well under-
stood in the Convention that the Committee on Schedule and Or-
dinance will take pains to provide for the election of all officers
that shall be decided upon by the Convention, so as to bring the
election of general officers, hereafter, at general elections. If I
understand the position correctly there will be no general election
till the year 1890, and I still cannot see the occasion for the use
of the word "gubernatorial" instead of "general."
Mr. MCKENZIE. If section four is out of place, or is covered
by some other part of the Constitution, we have a Committee on
DEBATES OF THE CONVENTION.
155
Revision and Adjustment whose duty it will be to take the vari-
ous sections and put them together, leaving out those that con-
flict. I think that we are wasting time in discussing this matter,
but should leave it to that committee.
Mr. ROLFE. I move as an amendment to section four that the
words "at an election for the adoption of this Constitution, and at
each general election thereafter" take the place of the words "at
each gubernatorial election after the adoption of this Constitu-
tion."
The amendment was seconded and lost.
Sections five, six and seven were approved.
IMPEACHMENT.
File No. 126 was then taken up. Section one was adopted and
section two was read as follows:
SEC. 2. All impeachments shall be tried by the Senate. When sitting for
that purpose the Senate shall be upon oath or affirmation to do justice accord-
ing to law and evidence. No person shall be convicted without the concur-
rence of two-thirds of the members elected. When the Governor or Lieuten-
ant-Governor is on trial, the presiding Judge of the Supreme Court shall pre-
side.
Mr. LAUDER. I would like to inquire if it is intended that
when the Presiding Judge of the Supreme Court shall preside
whether or not he shall be considered a member of the tribunal,
and have a vote in the deliberations of the assembly.
Section two was adopted.
Section three was read as follows:
SEC. 3. The Governor and other State and Judicial officers, except county
or probate judges, justices of the peace and police magistrates, shall be liable
to impeachment for habitual drunkenness, crimes, corrupt conduct or malfeas-
ance or misdemeanor in office, but judgment in such cases shall not extend
further than removal from office and disqualification to hold any office of trust
or profit under the State. The person accused, whether convicted or acquitted,
shall, nevertheless, be liable to indictment, trial, judgment and punishment
according to law.
Mr. POLLOCK. I would like to inquire why the word
"crimes" is included in the third line after the enumeration of
drunkenness, and so forth?
We
Mr. O'BRIEN. That word "crimes" was put in for the purpose
of giving the Legislature the fullest scope over the matter.
have included certain specific crimes, and if the Legislature
thinks that it will be well to provide that other acts shall be in-
DEBATES OF THE CONVENTION.
156
cluded in the list of offenses worthy of impeachment, they can so
include them.
Mr. WALLACE. I fail to see any reason for the use of the
word "habitual" in this section. If a man who is Governor of
this State gets drunk he should be impeached.
Mr. O'BRIEN. The committee gave this matter some little
consideration, and they made up their minds that if a man were
unfortunate enough in one instance to become under the control
of strong drink, he should not be liable for that to be removed
from office. They thought that they should simply cover cases
where a man by the habitual use of intoxicating drinks, rendered
himself unfit to perform the duties of his office. The idea of com-
pelling an impeaching board to go to the trouble of taking up
every single case where a man was unfortunate enough to become
drunk on one occasion, did not commend itself to us. We thought
that the Constitution should simply provide that if a man is habitu-
ally guilty of such an act, it should be ground enough for removal
from office. I hope the gentleman's motion to strike out the word
"habitual" will not prevail.
Mr. WALLACE. It seems to me that the gentleman is assum-
ing a state of affairs that there is no reason for assuming. I un-
derstand very well that a man might possibly become too much in-
fluenced by liquor to present a very creditable appearance on the
street, and if he should happen to have done that once, I don't
think there would be any desire to impeach him, provided it was
known that he was not liable to do it a great number of times.
When it is made necessary to have a man an habitual drunkard
before you can impeach him, he is liable to be pretty far gone.
You might put in the section a clause something like this: “He
shall be guilty of repeated acts of drunkenness," but a man has
got to be very far gone to be an habitual drunkard. If it is an
accidental thing I don't think there will be any desire to impeach
him.
Mr. POWLES. I move that the word "habitual” be struck
out and the words "repeated acts of " inserted.
The motion was seconded.
Mr. WALLACE accepted Mr. PowLES' amendment.
Mr. JOHNSON. It occurs to me that the committee adopted a
fair and reasonable rule-certainly a rule that has always pre-
vailed in this country. It is well known-it is the experience of
mankind-that sometimes the very best of citizens, in a com-
DEBATES OF THE CONVENTION.
157
munity, may fall in this matter. They may become jubilant and
enthusiastic and their good qualities of heart and sympathy may
draw them into company to such an extent that they may
become intoxicated. But they should be given a chance to repent
and return to good society. We have not yet in our progress in
temperance reform reached that stage where drunkenness—a
single instance of it-is regarded as intolerable, and the gates
and the avenues of decent society should not be barred for ever
against a man for an act of this sort. You will doubtless see very
good men in your community in election times, if their party has
carried the election, who will be beside themselves for a while.
I heard one of the most temperate men say last fall—he is an
honored public official-"If we carry this election "-he said it
in a public meeting "I am going on a big drunk, or I am going
to give $25 worth of wood to the poor people in my neighbor-
hood." That was not an unreasonable alternative. It was a sen-
timent that called forth the applause of his hearers. They would
have been equally divided as to which they should expect. Many
good citizens have gone on a big drunk. That may be deplored,
but under the conditions of temperance as they now prevail, the
report of the committee is fair and reasonable, and unless a
person
is an habitual drunkard-unless he shows such a state of
mind and character that his neighbors cannot trust him, he should
be allowed to hold his office and draw the emoluments and enjoy
the honors attatched to it. I am opposed to the amendment, and
I hope it will not carry.
Mr. ROLFE. In addition to that which has just been said, it
occurs to me that the object of the article in our Constitution on
impeachment and removal from office, is not to provide for the
punishment of delinquencies of this kind, but to protect the
public from acts of officers who have become incapacitated by
reason of their unfortunate habits for the transaction of such busi-
ness as would come before them. Our present beautiful code
provides punishment for offenses such as those specified here; if
we wish to punish individuals, either official or otherwise, we have
provisions enough for it. I understand the object of this is to
protect the public against acts of officers who become incapac-
itated. Officers would not be incapacitated for the transaction of
the business of their offices by simple occasional drunkenness,
but by habitual drunkenness. I don't believe that our courts
should be lumbered up with proceedings for removal from office
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DEBATES OF THE CONVENTION.
in case of occasional drunkenness, and I also believe that proceed-
ings looking to the punishment of officials for drunkenness should
be taken in other than the Court of Impeachment. I like the
word "habitual" there. I think it agrees with the precedents set
in other states.
Mr. BARTLETT of Dickey. That word "habitual" covers a
great deal. How many gentlemen are there here to-day that have
not seen some police Justice sitting up with a red nose adjudicat-
ing on the rights of the people in the cities of the United States?
When you try to convict these men of drunkenness so that they
may be thrown out of office, you call witnesses and these witnesses
universally favor the old bloat. These are facts that are a terror
to every thoughtful man. I like the amendment. Then you can
count out one, two, three, four, five times, and spot the officer.
The witnesses can testify to the number of times, and I say that a
man who adjuticates on the rights of an individual should not set
an example of drunkenness before the people. I, for one, am proud
to stand up here and say that any man who would be guilty of
intemperance should never have the privilege of passing sentence
on a human being.
Mr. O'BRIEN. I don't see what good it would do for us to say
here in this Constitution that any man who gets drunk two or
three times should be removed from office. We have provided
sufficient ground for removal from office, and it is left so that the
Legislature can fix the number of times that a man must get drunk
to constitute habitual drunkenness. We are sufficiently protected
now. We desire to have men in office who will do the duties of
their office properly, and if they do not, we desire to have them
impeached and removed. If a man happens to take a drink occa-
sionally, and perhaps if he got drunk on one occasion, what does
that matter to the public so long as he performs the duties of his
office to which he has been elected? If the gentlemen who are
supporting the amendment want to have the Legislature fix the
number of times that constitutes habitual drunkenness, let them
apply to the Legislature. But we have enough in here to cover
all they want.
The amendment was lost, and the rest of the article was adopted
without further discussion.
SCHOOL LAND.
File No. 130 was then taken up for discussion.
DEBATES OF THE CONVENTION.
159
Section one was adopted.
Mr. CLAPP. I move that in line two of section two the words
"Proceeds of all fines for violation of State laws" be stricken out.
The section now reads as follows:
* * * *
SEC. 2. The interest and income of this fund together with
all other sums which may be added thereto by law, shall be faithfully used and
applied each year for the benefit of the common schools of the State, and shall
be for this purpose apportioned among and between all the several common
school corporations of the State in proportion to the number of children in
each of school age as may be fixed by law; and no part of the fund shall ever
be diverted even temporarily from this purpose or used for any other purpose
whatever than 'the maintenance of common schools for the equal benefit of all
the people of the State; Provided however, That if any portion of the
interest or income aforesaid be not expended during any year, said portion shall
be added to, and become a part of the school fund.
Mr. POLLOCK. If this conflicts with the provisions made by
the reports of other committees, the whole matter will come be-
fore the Committee on Revision and Adjustment. It seems to me
however, that considering this upon its merits, the place for the
fines paid for the violation of any of the State laws, is here. This
would be a source of revenue that would be of great value to this
fund, and it would then be placed where it will do the most good.
Mr. CARLAND. I think the language used in this section is
the proper expression, for there may be fines for the violation of
city ordinances, and fines of that kind would not go into the
school fund.
The amendment was lost.
Section two was approved.
Section three was read as follows:
SEC. 3. After one year from the assembling of the first Legislature, the
lands granted to the State from the United States for the support of the com-
mon schools may be sold upon the following conditions, and no other: No
more than one-fourth of all such lands shall be sold within the first five years
after the same become saleable by virtue of this section. No more than one-
half of the remainder within ten years after the same become saleable as afore-
said. The residue may be sold as soon as the same becomes saleable at not
less than ten dollars per acre. The Legislature shall provide for the sale of
all school lands subject to the provisions of this article.
Mr. JOHNSON. It occurs to me that this is a subject that
should not be passed over entirely without discussion. It is cer-
tainly a matter for consideration whether these lands should be
sold at all or not. There are a good many people in this State
who are anxious that these lands should not be sold. Before we
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DEBATES OF THE CONVENTION.
vote for this section it certainly is due the members of this Con-
vention who are not on that committee, that the reasons that were
urged in the committee, and on which it acted, should be given to
the Convention. In order to give them an opportunity to be
heard, I propose to offer the following amendment and move its
adoption—as a substitute:
No lands granted to the State from the United States for the support of
the common schools shall ever be sold, but the same may be leased from time
to time as provided by law, and the rents thereof be applied to the support of
the "common schools."
Seconded by Mr. LAUDER.
Mr. JOHNSON. More fortunes have been made in the United
States out of holding lands, than out of all othor causes combined.
You may take our western farmers that have grown wealthy, and
almost in every instance you will find they took land when they
were poor-pehaps government land-went into debt for it, or they
were laboring men or tenants, and went into debt for their land.
They managed to make a living and supported their families, and
in course of time, perhaps ten, fifteen, twenty or thirty years, they
found themselves wealthy; not on account of what they had earned.
by their labor, but on account of the rise in the value of their
land. We live in a country where landed property has gone.
steadily up in value for the past hundred years. We live in a
country where these values will go forward as steadily and much
more rapidly in the next hundred years. Large fortunes were made
before our present homestead laws went into effect. Speculators
who went into the western states-notably into Illinois, Wisconsin,
Iowa and Minnesota-and invested their money in lands and held
them for a rise, made large fortunes. An individual who has but
the short period of an ordinary business lifetime to count on, is
in a poor condition to speculate in lands as compared with the
state or corporation. The individuals that went into these west-
ern states, say at the close of the Mexican war, they knew those
lands would rise in value, but they could only hope to reap the
fruits of that rise in values if they could hold on to them for
twenty or thirty years. A state has a longer life than that. North
Dakota will be younger in all its activities and ambitions and pos-
sibilities a hundred years from now than it is to-day. If it is feas-
ible, practical and sensible for a farmer to buy a piece of land and
hold it for a rise; if it is possible for a speculator to buy and sell
out and enjoy the fruits of his speculation within his lifetime-
?
DEBATES OF THE CONVENTION.
161
to invest his money in western lands and hold them for a rise and
make money-it certainly is much more so for a state, because the
state is endowed with the possibilities of eternal life. A thousand
years from now North Dakota will be here with children to edu-
cate, while we shall have passed away within a century. You
can lease these lands, and within our lifetime you can get just as
much out of them as you could by selling them, and then the
lands will have increased in value tenfold-perhaps a hundred.
fold in value. How often land is leased for ninety-nine years.
You can lease a lot in town for ninety-nine years for practically the
same as you can sell it. They will build large brick and granite-
blocks on lots that are so leased. Railroad companies will lease a.
line for ninety-nine years or 100 years, and invest as much in them for
permanent improvements as if they were buying the property for
ever. Now then, if we sell these lands, there will be a great
danger that the money will be scattered. There will be, at the
least calculation, as we are forbidden to sell them for less than
$10 per acre, probably from $13,000,000 to $15,000,000 realized.
You will find that all the safeguards you can throw around that
trust fund-that all the safeguards the Legislature and honest
state officials are able to throw around it-will not be sufficient to
prevent the formation of the greatest ring you have ever seen in
North Dakota to steal the proceeds of the sale of these lands.
In order to save the proceeds we must put them in good security.
Bonds of the state will be good security. But where are we to
put the rest? Companies in the East that have millions of
money are seeking an opportunity to invest their money in west-
ern securities-mortgages on western lands. We would be
obliged, in order to have this fund secure, to seek real estate se-
curity-the very security we have now, and we would find that
the interest of that fund would grow less and less as time went on.
We have found since we have been in Dakota that the value of
money is growing less and less every year, and the same is likely
to continue. The per cent. is getting less and less, so that as we
advance in population and our schools become more and more ex-
pensive and we have more children to educate, more need for
money, we shall find if we sell these lands and trust to loaning
out the money, that in all probability, instead of our having more
money each year, we shall have less. On the other hand, if we
keep the lands, their rental value would increase, and as popula-
tion increased and schools increased the rental would keep on in-
11
162
DEBATES OF THE CONVENTION.
creasing, and we should still have the lands rapidly increasing in
value.
Mr. BARTLETT of Dickey. I have been delighted to hear the
last gentleman talk, but I can't think it possible that he has read
the bill. If he had he would not have spoken of having so much
money on hand. This bill provides that there can be only one-
fifth of the purchase money paid down. It also provides that there
shall be a given amount sold, so that the country cannot be flooded
with money. It further provides that we can only rent the lands for
five years at a time-the Omnibus Bill provides that. Every man
here who runs a farm knows that when he can get land for only five
years, that is not a very long time, and he won't pay very much for
it. The Omnibus Bill provides that we can only rent the lands for
pasturage and only five years for that. The gentleman spoke of
renting them for ninety-nine years. I would state, as a member
of that committee, that if the law would allow us to rent
these lands for ninety-nine years I would not favor the
selling of a dollar's worth. But we connot. We are cramped,
and therefore we have to do the best we can with it.
Mr. PURCELL. It seems to me that the substitute offered by
the gentleman from Nelson is not practicable, for in starting out
to statehood the school funds are low. The schools must neces-
sarily be maintained, and it simply resolves itself into a question
as to whether the people of the present generation are to continue
to pay taxes for the support of the public schools and allow their
lands to remain unsold, or whether they are to sell their lands and
realize what the Omnibus Bill provides shall be a reasonable price
therefor, and as the bill provides, invest that money and use the
interest in support of the public schools. If the gentleman from
Nelson had read the Omnibus Bill he would have seen that only
the interest on the school funds could be used for the support of
the public schools. I take it that every man in this Convention
knows that at least one-third to one-half of the ordinary taxes of
to-day are those which he has to pay in support of the public
schools. It is all very nice in theory to argue that by holding our
lands we should become rich in the future. That is very nice for
future generations, but for us who are here now and who have to
bear the burden of maintaining our public schools it is not logical.
The argument would be all right if the schools could be main-
tained other than by taxes collected from the tax-payers. But we
are not in a condition to do as has been suggested, for as I say, the
DEBATES OF THE CONVENTION.
163
majority of the taxes paid to-day are exacted from us for the schools.
This bill provides in section six that only one-fifth of the value of
the lands is paid in cash. The balance is to be paid for at a
future time. The bill, in section ten, provides that all monies
realized from the sale of these lands are to be invested in govern-
ment bonds, school bonds or the bonds of the State of North
Dakota. I don't think that there is any danger of a ring
being formed to take this money. I feel that the fund will be
just as safe in the hands of those who will take hold of the helm
of government as the funds of any other resources that might
come to the Treasurer of the State. There should be no question
but what every man under the new state regime will be held to a
strict account for every dollar he handles. This argument as to the
funds being squandered falls without any weight, for there is no
distinction between the fund realized from the school lands and
that realized from some other source. It seems to me that the
best and most practical way for the people to deal with this school
fund question is the way provided in this bill. Let us take the
land that the government has given to us, and use it so that it
will lighten the burdens of the taxpayers of to-day and for some
time to come. It is true that land will increase in value, but it is
also true that there are a number of acres of the school lands
that will never increase in value to any appreciable extent. There
are lands which could be sold to-day and realize just as much for
them as at any time, and inasmuch as we are limited in the price
of these lands, no one will see that there is any danger of our
selling them for less than their actual value. To say that the
lands which have been donated to the state for school purposes
should be held intact and should not be sold, is virtually to say
that we must bear the burdens of the support of these schools,
and that it will be necessary for us to provide an officer who shall
see that the school lands are leased. In this country lands leased
for grazing purposes will realize but a very small revenue. If the
lands were allowed to be broken and cultivated and planted, then
in a few years we might realize some revenue, but to say that we
could realize any considerable revenue from leasing lands for
grazing purposes is to make a statement that cannot be supported,
for everybody realizes that the money so obtained would not be
sufficient to pay the man who would look after its collection.
A vote was taken on the substitute of Mr. JOHNSON, and the
substitute was lost.
164
DEBATES OF THE CONVENTION.
Mr. LAUDER.
I desire to offer an amendment to section
three by adding the following:
"Land belonging to the State, which is suitable for cultivation, shall be
granted only to actual settlers, and in quantities not exceeding 320 acres to each
settler, under such conditions as may be prescribed by law."
This is no doubt a question that has already engaged the minds
of the members of this Convention, and they have undoubtedly
studied it in all its bearings, and perhaps it would be a waste of
time for me to detain the committee with any extended remarks
upon it, and I do not intend to. But it seems to me that the pro-
vision contained in this amendment should be incorporated in this
article. The tendency of the times is to the accumulation and to
the acquisition of large areas of land. I believe that every mem-
ber of this committee will agree with me that that tendency does
not promote the best interests of the people at large. The policy
to be pursued, it seems to me, should be to prevent the acquisition
by individuals of large and unwieldy tracts of land. It prevents
the settlement of the country; it prevents the best and most
profitable kind of farming. Men get these large tracts of land;
they do their business away from their farms; they don't assimi-
late with and mix with the people, and it seems to me that it
would be far better if the holding of these large tracts of land
could be prevented. I understand that as this land is not con-
nected it would be impossible to get large tracts of it, but the pas-
sage of this amendment would, in my opinion, promote the inter-
ests of the State. Three hundred and twenty acres of is land all
that any man ought to own.
Mr. GRAY. I think the amendment of the gentleman from
Richland should prevail for the reason that in my town there
are four settlers on one school section of land. They have built
themselves good buildings that have cost them $1,000 each, dug
wells, are good, industrious citizens, and it looks to me as though
it would be unfair to allow a speculator to come in there and buy
those lands and crowd them off and have them lose their improve-
ments. Again, on another section there is one settler; he has got
good buildings, has dug three wells, and has shown that he went
on the land with honest intentions-with the intention of making
his home there. It looks to me that in the interests of such men
that the amendment should prevail.
Mr. CARLAND. I hardly see how this amendment has much
force without we are to understand what is meant by the words—
:
DEBATES OF THE CONVENTION.
165
"actual settler." If it is intended to limit the sale of the lands
in the proposed state to persons who have actually settled in the
state already, then there would not be much sale of these lands,
because those who have actually settled here would not be so
numerous or so desirous of purchasing lands as to want to take
all the lands that would be offered for sale. If you mean that
this land is for persons who intend to settle, then it would be in-
operative from the fact that the person might say he wanted this
land for actual settlement-he might get it and not settle; or an
actual settler might buy it and turn it over to a speculator. I
don't see how it would have any force-to use the words "actual
settler."
Mr.WELLWOOD. I don't agree with the gentleman who moved
the amendment. I think that one man's money is just as good as
another man's, and I think our object should be to sell the lands
where and how we can realize the most for them. If there are
any men who have settled on school lands and have used the
lands for four or five years and got the goodness out of the lands
for their own purposes, I think they would be satisfied to pay as
much for them as anybody else would. If they would not, then
they should not stay on them. I cannot agree with the gentle-
man in his amendment.
Mr. LAUDER. I don't agree with the gentleman that one
man's money is as good as another's under all circumstances. I
don't believe that that sentiment prevails throughout the country,
as has been evidenced by the law recently passed by Con-
gress preventing aliens from holding lands in the territories.
This law prevents the aliens from coming in here and buying up
all our land and holding it for speculative purposes, and I believe
that the sentiment of the people of the country is favorable to
that law. It was to sim ply apply that principle to aliens in the
State of North Dakota that I offered my amendment.
Mr. SCOTT. This amendment requiring the land to be pur-
chased by actual settlers is vague for this reason--it says lands
that are suitable for cultivation. There might be a great differ-
ence of opinion between the Superintendent of Public Instruc-
tion, and the person who has charge of the sale of these lands as
to whether or not a certain section or part of a section was suit-
able for cultivation. That, and the objection to which the gentle-
man from Burleigh referred seems to me to make the amendment
too indefinite to be incorporated as an article of this Constitution.
166
DEBATES OF THE CONVENTION.
Again, we are now looking after the interests of the State. We
are endeavoring to frame an article which will conserve our school
fund, and increase it in every way possible. We want to get the
most for our money that we can get. A farm of 640 acres is not
a very large farm in this country. That could not be held to be a
large farm; it is the holding of lands in much larger tracts than a
section that is a damage to the country at large. Very frequently
you will find a man who wants to purchase 640 acres who would
be willing to pay more for it than if he could only get 320 acres. I
believe that it would be difficult for us to sell these lands for
some years to come for $10 an acre. The great majority of this
land will not be sold for the next ten or fifteen years for $10 an
acre, and for that reason I think it would be unwise to limit
it to the man who is actually living in the State, or to the
man who intended to come and settle immediately on purchasing the
land.
>
Mr. MATHEWS.
I believe as the gentleman from Barnes
does. Take in Grand Forks county to-day-one of the best set-
tled counties in the Territory, and I don't believe the school lands
will sell there for $10 an acre. In the county of Nelson, I don't
think there is any danger of selling the land there. Taking it in
all these counties it is doubtful if there is much that will sell. I
don't believe that we can sell all that the law allows us to sell at
these figures, and I don't believe that we should restrict a man to
320 acres, for very often parties want to secure a section who will
become actual settlers, and pay more than those who are living in
the country. Take through any of these counties, and there is
comparatively little land that will find a ready sale at $10 per acre.
You will very often find that a man won't buy 160 or 320 acres
when he would buy 640.
Mr. PARSONS of Morton. This is a very important subject,
and in view of the fact that some of us have not given it the con-
sideration that we ought, I move that the committee do now rise,
report progress and ask leave to sit again.
The motion was seconded and lost.
Mr. BARTLETT of Dickey. It seems to me that some of the
gentlemen have not paid enough attention to the law under which
we are working. The bill under which we are making this article
provides that no man can lease more than 320 acres, if I mistake
not. Where the land is sold in small quantities it will let the
little fish in, and that is what we want. The provision is this-we
DEBATES OF THE CONVENTION.
167
only get one-fifth down. The balance is to be paid later, and it is
to bear interest at six per cent. per annum right along, so it will
be a long term of years before we will handle much money.
Mr. GRAY. It looks to me that the pen that drew this article
as it stands was guided somewhat by the hand of the speculator,
and that it was to be sold in the interests of the speculator, instead
of the interest for which it was designed when it was given to the
new State of North Dakota. We are inviting settlers here, and
yet we are so going to fix this Constitution that the school lands
will go into the hands of speculators first. I had an amendment
which I thought of introducing which would provide that settlers
on school lands should have a prior right, other things being equal.
The land will have been apprised before it can be sold, and it is
the duty of this Convention to throw safeguards around these
school lands so that speculators cannot get hold of them, but it
should go to the tillers of the soil-to people who will settle on it
and cultivate it and help to build up the State of North Dakota.
Mr. LAUDER. The remarks of the gentleman from Barnes
seem to convey the impression that these lands would not be sold
in quantities of more than 640 acres. I am not particular; I don't
know but that I would consent that 640 should be inserted in lieu
of 320 in my amendment. I am not so particular about that, but
my objection to the article as it now stands is that it permits
speculators to buy not only 640 acres, but just as much as they
can huy, tie it up, take it out of the market and prevent settle-
ment. That is what I object to. I cannot see the force of the
argument that these lands will not sell for $10 per acre, and I
would incorporate something here that would.prevent the buying
of these lands by individuals, or corporations, or speculators, and
leave it in such a manner that at least every section, after the
lands were sold, would have a settler upon it. If we provide by
law that no man shall buy more than 320 acres or 640 acres, it
will prevent speculators from buying these lands to any great ex-
tent, for if a man is unable to buy more than 320 acres, in most
cases he will buy that to use as a farm and will live on it and
work it. The gentleman says that it is our business at this time
to look after the interests of the state. I agree with him, but
when we are looking after the interests of the citizen, we are at
the same time looking after the interests of the State, and if we
can arrange this matter so that on every quarter section there will
be an actual settler living with his family and cultivating the soil,
168
DEBATES OF THE CONVENTION.
mingling with the people, increasing the volume of business, we
will be caring for the interests of the state.
Mr. WILLIAMS. It is now about five o'clock, and there are
eight more sections of this bill. It was only laid on our desks
this afternoon, and it is one of the most important measures that
this Convention will have to deal with. It will be impossible for
us at this sitting to consider this bill fully and report it back to
the Convention with the recommendation that it do pass and give
it that consideration which it should have. I move that the com-
mittee do now rise, report progress and ask leave to sit again.
Mr. BLEWITT. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTY-FOURTH DA Y.
BISMARCK, Saturday, July 27, 1889.
The Convention met pursuant to adjournment.
The CHIEF CLERK called the Convention to order and an-
nounced that the PRESIDENT had appointed Mr. RoWE to act as
President pro tempore during his absence.
Prayer was offered by the Rev. Mr. KLINE.
The roll was called and there being no quorum, upon motion of
Mr. WILLIAMS the Convention adjourned until Monday at 2
o'clock p. m.
TWENTY-SIXTH DAY.
BISMARCK, Monday, July 29, 1889.
The Convention met pursuant to adjournment, with President
pro tem. RowE in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
The roll was called, and there being no quorum, the Conven-
tion adjourned until Tuesday at 2 o'clock p. m.
DEBATES OF THE CONVENTION.
169
TWENTY-SEVENTH DAY.
BISMARCK, Tuesday, July 30, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. COLTON. I move that this Convention do now resolve
itself into a Committee of the Whole for the purpose of con-
sidering File No. 130 and other reports.
Mr. MOER. The report of the Committee on Revenue and Taxa-
tion was held over for the purpose of allowing members of the
committee to present a minority report. As that report is not
ready, I would ask that the consideration of that report be deferred
till to-morrow.
Mr. PRESIDENT. If there is no objection File No. 132 will
be deferred till to-morrow.
SCHOOL LAND.
Section three of File No. 130 was then read and under discus-
sion.
Of course
Mr. CARLAND. I desire to call the attention of the gentle-
man to the reading of lines seven and eight of this section.
They read as follows: "The residue may be sold as soon as the
same become saleable at not less than $10 per acre."
the act of Congress limits the price of these lands, but this
section by its language only limits the price of the lands which
may remain after selling no more than one-quarter and no more
than one-half. In line four it reads: "No more than one-fourth of
all such lands shall be sold within the first five years after the
same become saleable by virtue of this section. No more than
one-half of the remainder within ten years after the same be-
comes saleable as aforesaid. The residue may be sold as
soon as the same becomes saleable at not less than $10 per acre."
It seems to me that if the Constitution is to adopt the limitation
170
DEBATES OF THE CONVENTION.
imposed by the act of Congress it would be proper to make it
apply to all lands, for that is the condition on which the state ac-
cept the school lands. I would move as an amendment to that
section that all after the word "saleable" in the line be stricken
out.
The motion was seconded by Mr. MILLER.
Mr. MCKENZIE. I would call your attention to section six
of the same article, the first and second lines which I think will
cover it.
The amendment of Mr. CARLAND was carried.
The section was then adopted as amended.
Section four was then read as follows:
SEC. 4. The Superintendent of Public Schools, Governor, Attorney Gen-
eral and Secretary of State shall constitute a board of commissioners which
shall be denominated the "Board of University and School Land Commis-
sioners," subject to the provisions of this article and any law that may be
passed by the Legislature. Said board shall have control of the apportion-
ment, sale, rental and disposal of all school and university lands, and shall
direct the investment of the fund arising therefrom in the hands of the State
Treasurer, under the limitations of section ten of this article.
Mr. ELLIOTT. I move that the word "schools” in the first
line be stricken out and the word "instruction" be inserted in lieu
thereof.
Mr. ROBERTSON. I think it will be found so in the original
draft.
The amendment of Mr. ELLIOTT was carried.
Mr. CARLAND. It seems to me that the reading of lines three
and four does not convey the meaning intended. "Which shall be
denominated the Board of University and School Land Commis-
sioners subject to the provisions of this article and any law that
may be passed by the Legislature." I would amend this by having
line four after the word "commissioners" read "and subject to the
provisions of this article, and any law that may be passed by the
Legislature," and no period after the word Legislature. That is,
I think, what is intended to be conveyed by the language.
Mr. ROBERTSON. I am aware that the gentleman is a jurist
and his words have great weight with this Convention, but I would
suggest to the gentleman the advisability of adopting the word
"shall"-making it read "and shall be."
Mr. MILLER. If the gentleman reads further down he will
find that the word shall occurs further down and has the same
meaning as he proposes.
DEBATES OF THE CONVENTION.
171
Mr. CARLAND. In line three, too, the word "who" should
appear instead of the word "which."
""
Mr. JOHNSON. I should like to have some reason given for
that change. Why would it be better to insert the word "who"
instead of the word "which"? My opinion is that the word
"which" is proper there. Before we make this change we should
have some good reason given.
Mr. ROBERTSON. I think the word "who" is better as applied
to persons. We say "the person who" or "whom." "Which" is
generally applied to the lower animals. I think "who" is alto-
gether a better term.
Mr. ROLFE. It strikes me that the question is what is the
antecedent to the pronoun? I take it that the word "board” is the
antecedent, and therefore the word "which" referring to that is
proper, rather than to the officers who compose the board. If the
word refers to the officers then clearly it should be "who," but if it
refers to the board as a body then plainly the word "which" is
correct.
Mr. O'BRIEN. We have a Committee on Revision and Adjust-
ment, and it strikes me that it would be better to refer this matter
to them. Of course it will go there anyhow, and the duties of
that committee are to arrange the matter, and cure any defects
which may occur in the different sections. I think it would be
the duty of that committee to cure the alleged defects that have
just been pointed out here.
The amendment of Mr. CARLAND was lost.
Mr. ROLFE. I would suggest that the better place for the
word "Commissioners" would be in the third line.
Mr. ROBERTSON. I think it would be better to leave the
whole matter to the Committee on Revision and Adjustment. I
think it would be a good deal better to have it occupy the time of
that committee than the time of the whole Convention.
committee should have something to do.
The section was then adopted; also section five.
Section six was then read as follows:
That
SEC. 6. No lands shall be sold for less than the appraised value, and in
no case for less than $10 per acre. The purchaser shall pay one-fifth of the
price in cash, and the remaining four-fifths as follows, to-wit: One-fifth in
five years, one-fifth in ten years, one-fifth in fifteen years and one-fifth in
twenty years, with interest at the rate of not less than six per centum payable
annually in advance. All sales shall be held at the county seat of the county
in which the lands to be sold is situate, and shall be at public auction and to
A
172
DEBATES OF THE CONVENTION.
3
the highest bidder, after sixty day's advertisement of the same in a newspaper
of general circulation in the vicinity of the lands to be sold, and one at the
seat of government. Such lands as shall not have been specially subdivided
shall be offered in tracts of not less than 160 acres, and those so subdivided in
the smallest subdivisions. All lands designated for sale, and not sold within
two years after appraisal, shall be reappraised before they are sold. No grant
or patent for any such lands shall issue until full payment is made for the same.
Mr. BEAN. In line twelve it was the intention of the com-
mittee to have it offered in blocks of 160 acres. I move that the
words "not less than" be struck out.
The amendment of Mr. BEAN was seconded and adopted.
Mr. LAUDER. I move that section six be amended by insert-
ing after the word "subdivision" in line thirteen of the section,
the following-the amendment I offered last Friday:
"Land belonging to the State which shall be designated by the board of
appraisal of the county in which the land is situated, to be suitable for culti-
vation, shall be granted only to actual settlers and in quantities not exceeding
640 acres to each settler, under such conditions as may be prescribed by law."
It is File No. 109 modified.
The amendment was seconded by Mr: GRAY.
Mr. ROBERTSON. I sincerely hope that this amendment will
not prevail. I don't think that we are yet prepared for a land
limitation act. It does not seem to me that any such principle as
this should become incorporated in this Constitution.
Mr. BARTLETT of Dickey. It strikes me that this would be
unconstitutional. It is discrimination between men and would be
unconstitutional. It is selecting certain parties to buy, and when
the land is put up for sale it says how we shall sell it or lease it.
We certainly cannot make any respector of persons, and therefore
I hope it will be voted down.
Mr. LAUDER. I hardly think that the amendment is open
to the objections that have been raised against it. It is in the
direct line of the legislation of Congress on this question. Dele-
gates here will know that there is now an act of Congress which
provides that no alien may hold lands within any of the Territories,
and if Congress had the power to legislate for the states in this
matter, there is no doubt but that a similar provision would be
applied to the states. Of course Congress may provide that any
class of persons may become the owners of the soil and so may this
Constitution. I do not care to detain the committee with any
extended remarks. I stated my views upon it when the question
was up before, and briefly those reasons are-we should
DEBATES OF THE CONVENTION.
173
provide against any possibility of the lands that remain unsold
in this State from going into the hands of foreign syndicates.
We want the lands of the State of North Dakota for actual set-
tlers, and not for the purposes of speculation, and it seems to me
that anything that will bring about that end, and that is not other-
wise unreasonable should be incorporated in this Constitution.
Mr. ROBERTSON. If the gentleman would look forward to
the terms prescribed in this article for the sale of these lands he
would see that the terms are not the terms such as would be ac-
ceptable to speculators. They are terms that favor the actual set-
tlers.
only at public sale,
This sale will be ad-
I can go in and buy
Can they refuse to
Mr. MATHEWS. Section two of the Enabling Act says:
"All lands herein granted shall be disposed of
at a price not less than $10 per acre, etc."
vertised, and it will be put up for sale, and
one, two or five or a dozen quarter sections.
sell me this land if I am the highest bidder? If I go to the sale
with my money, how can they refuse to sell me the land? I don't
think that we have a right to make any such provision as the
gentleman from Richland wants.
The amendment of Mr. LAUDER was lost.
Mr. WALLACE. I move to insert after the word "acre" in
the second line the words "without the consent of Congress."
Mr. ROBERTSON. I think it is well understood that it could
not be accomplished without the consent of Congress. The En-
abling Act covers this ground sought to be covered by the amend-
ment. I regard the words proposed as a mere incumbrance to the
sentence, and it seems to me that they should not be adopted.
Mr. WALLACE. The reason for my moving this amendment is
this, there is a good deal of border land in this Territory, and $10
an acre is a price that we can never get for a good deal of it. It
might be that we might desire to sell this land for less money
than this, and without this amendment we could not do it, even
with the permission of Congress, without a constitutional amend-
ment.
Mr. MATTHEWS. I think the argument of the gentleman
from Steele is a good one. A number of delegates have lately
gone to the western part of the Territory where they have seen
a good deal of country that will not sell for the minimum price
fixed by Congress. While we are making a Constitution it is well
to insert these words proposed, and in case we have a chance to
174
DEBATES OF THE CONVENTION.
sell these lands for less, and we get the permission of Congress,
we won't be bound up by our Constitution.
Mr. BEAN. I think we should be careful and think the matter
over well before we adopt this amendment. If this amendment.
is carried we may place our school land in danger. A bill author-
izing the state to sell the lands for less than $10 an acre might be
lobbied through Congress. There would perhaps be no one in
Congress to see that the price was held at $10, and before we
knew it there might be a bill lobbied through fixing the price of
lands at $5.
Mr. WALLACE. Of course we have no intention of changing
the price of these lands at present, but in the future we shall in all
probability find that we shall have a great quantity of lands on
hand that it will be impossible to sell for the maximum price.
With these words in we might go to Congress and ask for the
privilege of selling these lands at less money.
Mr. BARTLETT of Dickey. It seems to me very much like
putting on a fifth wheel to the wagon. It strikes me that it is
lumbering up the Constitution, and it is well enough as it is.
The amendment of Mr. WALLACE was lost.
Mr. O'BRIEN. I move as an amendment that the second line
shall read as follows: "The purchaser shall pay one-quarter of the
price in cash, and the remaining three-quarters in equal instal-
ments payable in five, ten and fifteen years."
Mr. MILLER. I suppose the object of the sale of these lands
is to bring as great a revenue into the State Treasury for the
benefit of the schools as possible, and to continue it as long as pos-
sible. This bill provides that the interest shall be six per cent.
There is no question but what in the years to come six per cent.
will be a very high rate of interest, and it will be all the interest
that can be obtained on first rate real estate in North Dakota.
It seems to me to be a desirable thing to do to have as much of
this money loaned as possible for a long time. I should rather
see it extend for thirty years rather than fifteen or twenty. If we
enforce the payment of that money at an earlier date it goes into
the State Treasury and remains idle till it can be distributed for
use and invested as provided by law, and I am opposed to the
amendment because I think the method proposed will be less ad-
vantageous to the State.
Mr. O'BRIEN. The principal reason for my offering this
amendment was this: The section as it now reads provides that
DEBATES OF THE CONVENTION.
175
one-fifth of the price for which the lands shall be sold shall be
payable in cash. If the land is sold for $10 per acre, all that a
man would have to pay in cash would be $2 per acre. He would
pay one-fifth of the price in cash, and he would get the benefit of
the use of the lands for five years, and at the end of five years
after having exhausted the soil he might not see fit to continue
the payments, and would let the land revert back to the State. I
believe that so far as the present value of lands in this country is
concerned $10 would be a very high price, and there is no doubt
but that he will be unable to sell anything but the best lands, and
the best will be taken by speculators or settlers. If that is true,
it would seem to me that before we allow the best lands to be all
sold, we should make some provision that will secure the remain-
ing portion of the amount which is to be paid under the terms of
the sale, and I think that if some arrangement of that kind is
made, so as to make the first payment large enough so as to be an
inducement for the man to continue his payments, I think you
would better subserve the purposes for which this enactment has
been made. So far as prolonging the time of payment is con-
cerned, it is not of any importance to me whether these payments
are put off five, ten or thirty years. The principal object as I
stated before was that the purchasers should pay a sufficient sum
in advance to render the State secure against the man who would
stay on the lands and take all their virtue out and not pay a suf-
ficient sum to reimburse the State.
Mr. BARTLETT of Dickey. The terms of the sale are these:
They are to pay one-fifth down, and the interest in advance an-
nually. To make the very best of it-we get one-fifth. After one
year from that time we get all the interest. I think that we have
pretty good security. It was argued right here that they were
not in favor of selling it and taking the cash simply from the fact
that we would have money that we would not know what to do
with. I think that we shall have good security as it is, and I hope
the gentleman's motion will not prevail.
Mr. MATHEWS. I understand from the reading of this that
they pay one-fifth down and the interest in advance at the time
they buy the lands.
Mr. BARTLETT of Griggs. I notice the last two lines of the
section says that "no grant or patent for any such lands shall issue
until full payment is made for the same." They don't propose to
issue a deed until the full expiration of the twenty years. The
176
DEBATES OF THE CONVENTION.
purchaser would thus pay no taxes. It would pay our citizens to
give up their land and buy these school lands and give up paying
taxes for twenty years. If they are not going to give any deed or
patent until the twenty years are up, they should compel them to
pay one-half down.
Mr. MOER. It seems to me that the point is not well taken
for the reason that the section provides that the interest shall be
paid in advance. It is almost a certainty that the Legislature in
passing laws necessary to carry out the sale of these lands, will pro-
vide that in case a default is made in the payment for any of these
lands the land shall revert back to the state. It would hardly be
business to sell a piece of land upon a payment of one-fifth and the
interest for one year, and say we would allow the purchaser to hold it
for twenty years. I don't think there is any danger of this being
done. I think the point raised by the gentleman from Cass
is will taken-that one of the principal things we want to do is to
invest our funds at a good rate of interest, and before the twenty
years have expired we should be unable to get so good a rate as
six per cent. More of the lands will pass into the hands of actual
settlers by a small payment down rather than by any other method.
Mr. COLTON. I would like to ask if lands sold under a con-
tract would not be taxable as well as any other lands, and if the
contract would not be drawn so that in case the parties did not
pay the interest and the taxes the property would revert back to
the original owners ?
Mr. MILLER. I move to refer the gentleman's question to
the Committee on Judiciary.
Mr. LAUDER. This section provides that no patent shall
issue till after full payment has been made, and that is right.
There is a provision in the report of the Committee on Revenue
and Taxation which provides that none of the property of the
State shall be taxable, and it seems to me that until the patent is
issued or the grantee receives his deed, the title would still re-
main in the State, and it seems to me that this land should not re-
main for this length of time in the possession of an occupant not
to be taxed.
Mr. SPALDING. It seems to me that in selling these lands.
we should make provision so that we shall get enough during the
first five years, or till some default is made, to pay us a good
rental. Let us see. Suppose a quarter section is sold for $1,600.
One-fifth of that paid down in cash would be $320—the balance
DEBATES OF THE CONVENTION.
177
{
due would be $1,280. Six per cent. on that would be $76.80. For
the first year's payment you would get $396.80, then the four
years' interest would be about $300 more. That would make
about $700 for the first five years' use. Suppose the land then
reverted back to the State you would have $700 and a piece of
land in practically a worthless condition, and the only question
for us to consider is whether this is a fair price for the use of
that land considering the condition it would naturally be left in.
It would be $700 for five years.
Mr. MATHEWS. I can illustrate this in my own case.
A man
has a quarter of a school section, and pays about $75 a year for
the use of it as interest. My taxes on my land amount to about
$30 per year for each quarter section. I agree with one of the
gentlemen who has spoken, that under these conditions a man had
better sell his land and buy school lands.
Mr. STEVENS. I thought that the object of this report was
to provide a foundation on which the Legislature might make a
law. I do not understand that it was our duty or our province to
make all the provisions that will be required for the protection of
this land, and therefore I don't believe that there should be as
much in the article as there is. As the gentleman from Cass has
said, the main object of the sale of these lands is to bring to the
new State the most funds that can possibly be had for the schools.
I don't believe that in all cases it will bring the most funds to the
State to sell these lands upon long time. There are men who would
want to pay for their lands before twenty years. There are men
who would probably be willing to pay more for lands if they could
pay for them and get a deed at the end of five years. Men of the
average age, such as my friend here, in twenty years or so, will, in
all probability, be dead, and they won't probably want to go into
debt and leave that debt to their heirs. It seems to me that it
would be better policy to leave the matter of the period of pay-
ment to the Legislature. Let them fix the time-give them the
privilege of legislating upon it.
Mr. BARTLETT of Dickey. We have talked this matter all
over-we want to crowd out the speculators, for we know that
there will be men who will want to come in and pay the cash and
own the lands. We talked that over a long time in committee,
and thought that we had got the best plan. The gentleman from
Cass said that we should get in five years about $700 out of the
land. I appeal to any farmer that knows, and he will say that
12
178
DEBATES OF THE CONVENTION.
when land has been cropped five years, one summer's summer fal-
lowing will make it perfect and make it produce a splendid crop.
I think that $700 is ample payment for the use of a quarter section
for the time named. You can to-day buy hundreds of thousands
of acres of land for that money.
Mr. ROBERTSON. The prominent idea in the minds of the
committee was that the lands should be offered on terms more
acceptable to the actual settler than to the speculator, and in cast-
ing our thoughts on the propositions that we had before us, we
thought that this was the best plan-this that we incorporated in
our report.
Mr. STEVENS. I don't wish to intimate that it would be bet-
ter to put this matter on a cash basis, but it surely can be no
injury to the settler or the Territory if they are allowed to buy
their lands on time or for cash as they may see fit. They would
have the option, and surely land sold with that option would bring
a better price than if sold without that option.
Mr. MATHEWS. I believe that the majority of the people
who will buy these school lands will be settlers, and I should
think that a fifth would be better than a fourth to pay down. In
case they are occupied by settlers there will be more or less im-
provements put upon them, and while I don't like to see too much
legislation in the Constitution, yet I think with the gentleman
from Ramsey that it would be well to give the people the option
of paying sooner than twenty years if they desire to do so.
The amendment of Mr. O'BRIEN was lost.
Mr. STEVENS. I would amend the section by adding after
the word "years" in line five the following words: "Provided,
That the last payment on the said lands may be made at the option
of the purchaser at any time after ten years of the date of the
purchase."
Mr. BARTLETT of Dickey! I oppose that amendment on this
account-we have surely got good security. Ten years have
elapsed, and we should give that interest up if the purchaser
pays for the land. We won't need the money, and when we have
a sure thing in good interest we should not let it slip. I cannot
see any point to the motion only to help the purchaser and the
speculator.
The amendment of Mr. STEVENS was lost.
Mr. LAUDER. I move that the section be amended as fol-
lows: After the last word add-"Provided, That all lands con-
DEBATES OF THE CONVENTION.
179
tracted to be sold by the state shall be subject to taxation from
the date of the contract."
Mr. BARTLETT of Dickey. I should oppose that amendment
because the land would be taxable anyhow.
Mr. ROBERTSON. I don't understand the amendment.
Mr. MOER. I would like to inquire of the gentleman from
Richland how the tax can be collected on these lands? How can
the tax be enforced? Suppose the purchaser defaults in the
taxes, fails to pay, how would it be collected when the title rests
in the State ?
Mr. LAUDER. I presume that the purchaser would be inter-
ested in protecting any right that he had, and if he was not, all
the right he had would be lost to him by the sale of the land for
taxes, and of course the Legislature will provide that the rights
of the State will be protected, and that the State could transfer
the land again to some other person. As this article now stands,
inasmuch as no transfer of the title is to be made for twenty
years, the land would not be subject to taxation till that time;
and it seems to me that it would be bad policy to have this land
occupied, and in a sense owned by individuals, and at the same
time not be subject to taxation.
Mr. ROBERTSON. I am opposed to this amendment for the
reason that if it is carried it will embrace two subjects, and this
is improper, no matter whether we are framing an article for a
constitution or a municipal ordinance. I think the subject of this
amendment properly belongs to the article on Revenue and Taxa-
tion. It is one of the subjects that should be embraced there,
and it is not germain to this article.
Mr. CARLAND. I don't understand that the words: "No
grant or patent for any such lands shall issue until full payment
is made for the same," has anything to do with the taxability of
the lands. The gentleman has perhaps in mind certain litigation
that has arisen over the taxability of lands lying within the
Northern Pacific land grant. The Supreme court held that the
Territory could not tax them for the reason that the taxation
might result in depriving the United States of its lien upon the
lands. If the State sells the school lands the Legislature can
provide for the taxation of the lands in the hands of the pur-
chaser, and if it is offered for sale the State protects itself by
bidding it in. That is the practice in most states.
Mr. LAUDER. If our Constitution contains a provision that
180
DEBATES OF THE CONVENTION.
the property of the State shall not be subject to taxation, and if
this section provides that the title to this property shall remain in
the State until the full purchase price is paid, then I fail to see
what authority there is left in the Legislature to provide for the
taxation of the lands without some such provision as I propose by
my amendment. If the title remains in the State, the property is
in the State and the purchaser has simply a possessory right. The
title is still in the State. I say that with that clause in the Con-
stitution the State has no right to tax its own property, and in
order to reach it, it would be necessary to have the Constitution
amended, and now is the time to provide the remedy.
Mr. WALLACE. I agree with the remarks of the gentleman
from Richland. We should make sure of this point. It is a
matter easily put in, and that would settle it beyond any possiblity
of dispute, and it would be wise to put in a provision which would
make it certain that these lands are subject to taxation. Other-
wise a man had better take these lands and sell out what he has got.
It would pay him to do so.
The amendment of Mr. LAUDER was adopted.
Mr. BLEWETT. I offer as a substitute for section six the fol-
lowing;
"No land shall be sold for less than the appraised value, and in no case for
less than $10 per acre, under such provisions as the Legislature may prescribe."
Mr. BARTLETT of Dickey. That just kills the whole article.
The appraisers may go out and appraise the land for $30 or $40 or
$50 an acre and it must not be sold for any less. That would ruin
the whole thing.
Mr. ROBERTSON. If this motion carries it will prove very de-
structive to the whole article. I don't believe that we are prepar-
ed to do this. I simply make these remarks to warn the committee.
Mr. ROLFE. I thought these folks who are opposed to legis-
lation in the Constitution would wake up after awhile. I excepted
it when we were discussing section three. Apparently section
three agreed with some of those who were opposed to legislation
in the Constitution, but that section suited them, and they called
it proper. Section six does not agree with them, so they want to
blot it out. I want to put myself on record as being favorable to
some legislation in the Constitution—that which approves itself
to the minds of those who have had experience of the Legisla-
tures in the past. Those who have had such experience are justly
in favor of such limitations on the Legislature, whether in the
DEBATES OF THE CONVENTION.
181
nature of legislation or otherwise, as will best protect the interests.
of the people. If we are agreed here that there is good sense in
this section, let us support it whether it is legislation or not—
whether it is common-whether it is a provision such as is com-
monly inserted in Constitutions, or whether it is only legislation.
The question for us to consider in this amendment is this—is there
sound sense in it—is it in the line of serving the interests of the
people in the future? I am opposed to the substitute.
The amendment of Mr. BLEWETT was lost.
Sections seven and eight were adopted. Section nine was read
as follows:
SEC. 9. The Legislature shall have authority to provide by law for the
leasing of lands granted to the State for educational and charitable purposes,
but no such law shall authorize the leasing of said lands for a longer period
than five years. Said lands shall only be leased for pasturage and meadow
purposes, and at public auction after notice as heretofore provided in case of
sale. All rents shall be paid annually in advance.
Mr. BEAN. I amend the section by adding after the word
"years" the words "nor in quantities exceeding one section to any
one person or corporation."
Mr. ROBERTSON. This particular question was discussed in
the committee, and the reason it was left as it is, was that a sec-
tion of land in the grazing portions of the State would not rent
for very much for grazing purposes by itself, and it was thought
best to leave the section as it is.
Mr. ROBERTSON. I move an amendment to the amendment,
so that it will read "that the land shall be rented in quantities as
has been or may be provided by Congress."
This amendment to the amendment was lost.
Mr. O'BRIEN. It seems to me that it is unnecessary for us to
lumber up this section with another amendment. Congress has
already made a provision in regard to this matter, and I don't see
why it is necessary for us to try to aid Congress in any way in the
matter. It is simply adding unnecessary words to the section.
The amendment of Mr. BEAN was lost.
Sections nine and ten were then adopted.
Section eleven was read as follows:
SEC. 11. No law shall ever be passed by the Legislature granting to any
person, corporation or association any privileges by reason of the occupation,
cultivation or improvement of any public lands by said person, corporation or
association subsequent to the survey thereof by the general government. No
claim for the occupation, cultivation or improvement of any public lands shall
182
DEBATES OF THE CONVENTION.
ever be recognized, nor shall such occupation, cultivation or improvement ever
be used to diminish, either directly or indirectly, the purchase price of said
lands.
Mr. GRAY. I move to amend by inserting in the fifth line
after the word "government” the following: "Other than the right
to purchase the subdivisions on which any valuable improvements
may be located by the owner thereof within three days after any
sale, and at a price not less than the highest price offered at said
sale."
Mr. ROBERTSON. The object which the committee had in
presenting this article and this section was to give the occupants
of our school lands no other recognition than that of trespassers;
to give them no rights, and not allow the fact of their occupation
to diminish the price of the lands. I believe that that is the
sentiment which is shared in by a very large portion of the inhabi-
tants of the State. I believe that they will recognize this article
as being just and right. I don't believe that there is any desire ·
to have those trespassers recognized as occupants, or that it is
desired to give them the inside track. I don't believe that our
people share in that opinion.
Mr. MATHEWS. At the present time there are parties break-
ing up the school lands in my locality, thinking that if they get
them broken up they will be able to get possession before they
become State lands. Last week there were parties that had eight
teams at work, and I think that nothing of the kind should be
recognized, and any improvements they have should be put up
and sold the same as the lands, without any recognition of any
improvements that they may have upon them.
The amendment of Mr. GRAY was lost.
The remainder of the article was adopted.
Mr. FLEMINGTON moved that the committee proceed to con-
sider File No. 125.
The motion was carried.
MUNICIPAL CORPORATIONS.
Mr. MILLER moved the adoption of the following additional
section to File No. 125:
SECTION 1. No municipal corporation shall ever become indebted in any
manner or for any purpose in any amount, in the aggregate, including existing
indebtedness, including four (4) per centum, upon the value of the taxable
property within such corporation, to be ascertained from the last assessment
for state and county taxes previous to the incurring of such indebtedness, and
•
DEBATES OF THE CONVENTION.
183
all bonds or obligations in excess of such amount, except as hereinafter pro-
vided, given by such corporation, shall be void; Provided, however, That any
incorporated city may become indebted in an amount not exceeding four per
centum on the value of such taxable property without regard to the existing
indebtedness of such city, for the purpose of constructing or purchasing water
works for furnishing a supply of water to the citizens of such city, and for no
other purpose whatever.
Mr. STEVENS. As I understand it that would be an original
proposition and must first go to the hands of the committee.
Mr. MILLER. The reason for my introducing this amend-
ment is simply this-that in all the cities in the State in which
they desire to construct a system of water works, they could not
raise a sufficient tax without exceeding the limit now provided by
law, and in all these cities it is a matter of absolute necessity
that they get their water from a system of water works, whether
by the sinking of artesian wells, or by taking the water from a
river or from some other source. In the City of Grand Forks
their system of water works was constructed and Congress passed
a special act authorizing the city to bond itself in an amount in
excess of the amount laid down by a prior congressional law. In
Fargo the citizens desire to construct a system of water works or
purchase one partially in existence. They are unable to do so
because they would incur an indebtedness in excess of the amount
provided by law. If it were possible for the cities to secure their
water in any other way the reason would not exist for the adop-
tion of this article. They could not bond now for a sufficient
amount for sinking of an artesian well, and it seems to me that
they should have a right in municipal corporations to bond them-
selves in excess of the limit for that purpose only, and that is
what the bill provides.
Mr. STEVENS. I don't object to the article, but it is the pre-
cedent which is here being set which I object to. If we adopt the
precedent of making new articles, or of making entirely different
articles than those which have been considered by the Convention
or passed by the committee, we are very liable to get some matter
into this Constitution which we should not get in, and it is more
the precedent being set than this article, which I object to.
The CHAIRMAN. The Chair may be ignorant of parliamen-
tary matters, but it is his judgment that the article may be
amended the same as a section, and he rules this in order, but the
CHIEF CLERK will assure you that this matter has been referred
to the committee.
DEBATES OF THE CONVENTION.
184
Chief Clerk HAMILTON. This proposed section was File No.
67. It was introduced by Mr. MILLER, and referred to the Com-
mittee on Municipal Corporations.
Mr. BENNETT.
To accommodate Mr. MILLER I returned the
File so that he could present the matter to the Committee of the
Whole and have it considered.
Mr. SELBY. I wish to state in reference to the proposition
that is now before the committee, that the Committee on Muni-
cipal Corporations at the time they were acting on this article had
in view the proposition incorporated in the amendment that is now
presented, and there is really but one matter in it that is proper
to be considered in connection with this article as we at the time
viewed it, for the reason that I presume it is the sense of the Con-
vention, and it is the custom in all Constitutions, that where they
make a limitation as to indebtedness it goes into the article upon
Counties and Townships, and that article includes it all. If we
were to incorporate this section in the article on Municipal Cor-
porations we should find that we would want a similar provision
in the article on Counties, and the matter would thus become
cumbersome. It was omitted for the purpose of having it come
in at the proper place, and forming one section of the Constitu-
tion in an article that it belonged in.
Mr. NOBLE. I move that the word "four" be stricken out of
the third line and the word "five" be inserted.
The amendment of Mr. NOBLE was lost.
The section introduced by Mr. MILLER was adopted.
Mr. MOER. I move that we now proceed to consider File No.
123.
Mr. CARLAND. I would ask that the reports of the commit-
tees be taken up according to their precedence they have on the
table. In regard to the report of the Judiciary Committee I
would say that there have been certain propositions made with a
view to the committee coming to some agreement and thus save
a good deal of time to the Convention. That is the only objec-
tion I have to taking up the report of the Committee on the Ju-
diciary Department at this time.
Mr. LAUDER. There are some gentlemen, attorneys, who are
supposed to be specially interested in the consideration of File
No. 121 who are absent to-day, attending the meeting of the Joint
Commission, and they would like to be present when the report
of the Committee on the Judiciary Department is being consid-
DEBATES OF THE CONVENTION.
185
ered. In deference to their wishes I should like to have this
report laid over till to-morrow.
Mr. POLLOCK.
I think the same might be urged in reference
to any File. They are interested in all the Files-probably in one
as much as in another.
Mr. LAUDER. I think hardly so, Mr. CHAIRMAN. I think
the gentlemen are particularly interested in the report of the
Committee on Judiciary, and they have expressed a wish to be
heard when this matter is considered, and I should at least like to
have time to send them word.
Mr. PURCELL. The members of the North Dakota part of
the Joint Commission have expressed a desire to be present when
the Judicial Bill is being discussed, and as we are now about com-
pleting our report, we do not like to be disturbed, and if it can
be laid over till to-morrow we shall be glad.
Mr. CARLAND. In view of the expressed wish of the gentle-
man I would ask that it be laid over till to-morrow.
The File was laid over.
ELECTIVE FRANCHISE.
File No. 123-the Elective Franchise-was then brough up for
discussion.
Section one was read as follows:
SECTION 1. Every male person of the age of 21 years or upwards belonging
to either of the following classes, who shall have resided in the State one year.
in the county six months, in the precinct ninety days next preceding any elec-
tion, shall be deemed a qualified elector at such election. First, citizens of
the United States. Second, persons of foreign birth who shall have declared
their intention to become citizens one year and not more than six years prior to
such election, conformably to the naturalization laws of the United States.
Third, civilized persons of Indian descent who shall have servered their tribal
relations two years next preceding such election.
Mr. FLEMINGTON. I would move to amend section one by
striking out the word “ninety” in the third line and inserting the
word "thirty."
Mr. MILLER. I second the motion.
Mr. COLTON. I would say that I hope no such an amendment
will carry. If a man has got to live in the State and county a
required time he certainly, if he is a bona fide settler, can be in
the precinct ninety days. This shinning around at election time
is too much practiced all over the territory and has been for years,
and I would like to see it left ninety days.
186
DEBATES OF THE CONVENTION.
Mr. FLEMINGTON. It seems to me that the provision which
just precedes this-that a person shall have lived in the county
six months, sufficiently protects the people in that respect. This
provision making it ninety days in the precinct would prevent
many people from voting who are constantly moving from one
precinct in a county to another. I think that with the provision
to the effect that they must have resided six months in the county,
thirty days in the precinct is enough.
Mr. MILLER. I agree with the gentleman from Dickey that
thirty days in the precint should be sufficient length of time. To
allow the section to stand as it is at present would have this effect:
Most city elections occur in the spring about the time people are
moving, and a large number of people who occupy tenement houses
move about once a year and that in the spring. It would require
them to change the time of moving or lose their votes. A citizen
of the State and the county who has become a bona fide resident by a
long residence in the State should not be deprived of his vote
because necessity requires him to move from one ward to another,
or from one township to another. It seems to me that thirty days
should be sufficient time for a man to reside in a township.
Mr. COLTON. The remarks of the gentleman would be all
right if we had small counties, but where we have counties big-
ger than two or three states, in the east, it is a very easy matter
for a man to say when he comes to vote: "I have lived in the
county six months, but I just came here thirty days ago." No-
body can tell whether they have or not, and for that reason I
should like to see it left to the precinct, for almost everybody can
tell whether they have lived the length of time in the precinct.
Mr. FLEMINGTON. I would say further in connection with
this matter that the time here, of ninety days, is longer than I
know of any precedent for. It has been the custom until lately
in this Territory wherever I have been, to only provide for ten
days residence in the precinct. We now have a law on our statute
book that provides for thirty days. It would be well, it seems to
me, for us to conform to the present established law of the ter-
ritory.
Mr. WILLIAMS. I agree with the remarks of the gentleman
from Ward. I think this provision was put in here to secure
honest elections, and it is about as the gentleman says—in the
spring of the year when the municipal elections are being held
there is a good deal of activity, and I think it is well to require a
DEBATES OF THE CONVENTION.
187
pretty long residence in the ward in order to protect the cities
from illegal voting. I think it is a very wise provision and I am
in favor of requiring this length of time in order to stop if pos-
sible all illegal voting at municipal elections.
Mr. LAUDER. I agree entirely with the remarks of the gentle-
man from Burleigh. Of course the provisions of this Constitu-
tion are of general application, and in particular instances hard-
ships may be worked. But I believe that taking it altogether that
it would be better for the territory if the law remains as provided
in this section. In the spring the people flock into the cities, and
as everybody knows, hundreds of people vote there who really
have no interest whatever in the city, and who perhaps the next
day are gone, and the same in the fall. It seems to me that we
would have a purer election if we allow this provision to remain
as it is.
Mr. NOBLE. I move as an amendment to the amendment that
the amendment read "not less than thirty days," thus leaving the
whole matter to the Legislature.
The amendment to the amendment was accepted by the owner
of the amendment. The amendment as amended was then put to
a vote and lost.
Mr. MATHEWS. I move as an amendment that the word
"sixty" be substituted for the word "ninety" in the third line.
The amendment was seconded and lost.
Mr. ROLFE. I move that there be added to the second sub-
division of section one the following proviso: "Provided, That
at the expiration of five years from the admission of this State
this subdivision of section one shall become inoperative and void."
I make this motion in justice not only to our foreign population,
but to our native American citizens. It has been the custom in
most of the states, and perhaps in all the territories, to make the
qualifications of a voter those of actual full citizenship, and par-
tial citizenship. It would be an injustice to our present foreign
population who are now taking a hand in the formation of this
Constitution in this new State, by any act of ours to deprive
them of their votes in the formation of this State, and the forma-
tion of the Constitution and the election of the officers provided
in it. But every citizen of foreign birth who is with us now can,
at the expiration of five years, become a full citizen--can have
taken out his second papers and be standing on the same basis
with American born citizens. I believe it is contrary to the prin-
188
DEBATES OF THE CONVENTION.
ciples of good government, generally speaking, that any person
who has not resided in the commonwealth for a sufficient length
of time to become well acquainted with our institutions and laws
and the basis upon which our government rests, should have an
equal voice with those who are, so to speak, to the manor born.
But I say, it would be an injustice to those of our population who
are only partially citizens now, to make this limitation at this
time, but I think it is for the benefit of the American portion of
our citizens and our foreign citizens, that there should be some
time when no man should have a voice in the government of this
State who is not a full citizen. It is for that reason, in justice
to our native born citizens, in justice to our foreign born citizens
who have already taken out their first papers, and in the interest
of good government I have offered this amendment.
Mr. BELL. It seems strange to me that the gentleman should
wish to debar from voting those citizens who shall come to this
country hereafter. If the State was fully settled up it might be
different, but as we all know the State is not one-quarter settled,
and the new comers to this State, coming in as they have hereto-
fore, are entitled to vote. These counties will in a great many in-
stances be settled with at least two-thirds of people of foreign
birth. I don't think it is right that these people should have to
wait five years before they can vote-before they can have a say
on matters concerning the welfare of the State in which they will
be interested. Therefore I am opposed to the amendment.
Mr. JOHNSON. I am of the same opinion as the gentleman
from Walsh. Why should we now, at this period of our history,
embark on a new, untried and revolutionary system. If I remem-
ber right it was this morning or yesterday morning that we read
in the dispatches that an amendment similar to this offered by
the gentleman from Benson was defeated by the Constitutional
Convention in Montana. Why should we be less liberal than the
makers of the Montana Constitution? Ever since we first begun
to build on these prairies we have been inviting people to come
here to take out their first papers disavowing all further alle-
giance to any foreign potentate, swear eternal fealty to our gov-
ernment, and identify themselves with us-cast in their lot with
The government of the United States has by repeated acts
of Congress, notably the Homestead and Pre-emption laws, in-
vited those people to come here, take lands and become for all
practical purposes and duties of citizenship, fully equal
ours.
DEBATES OF THE CONVENTION.
189
the conduct of
with us and equally responsible for
this government. A large percentage of our population
are now voting under the principles laid down in
the report of the committee under the acts of Congress and the
laws of this Territory, and all the territories from the foundation
of our government to the present day. Look at the justice of the
thing. Large numbers of our people have come here under the
invitations that have been extended to them. They have read the
Constitution of the United States, have studied it thoroughly and
know its provisions; they have read the Declaration of Indepen-
dence and the laws of the Territory of Dakota, and they have in-
vested their money in lots; have taken homesteads, built up homes
and make these prairies blossom like the rose. They have to pay
taxes. They have always up to this time had a say in the matter
of the government-they have not been taxed without representa-
tion so far, and why should we now at this late day turn back the
page of history and establish the principle against which the found-
ers of the republic fought, bled and died—namely taxation without
representation? Why should we tax these people and at the
same time give them no voice in the affairs of the government?
I can point you to many a township where you would deprive of
a right to vote on school questions, for example, intelligent people
who know what they want, and who are just as anxious to estab-
lish schools and build up township and county governments as
any people in America--people who can read and write and study
and work just as intelligently as anybody else. Why deprive
these people of a right to vote? Why tax them? Why invite
them to come here without giving them the ballot and the power
to build up these institutions, schools, townships and county gov-
ernments? Why not encourage them to obey those laws that
they aided in making. Why not extend to them the privileges
that they have always had before? I think the amendment is
hardly in keeping with the spirit of American institutions.
Mr. COLTON. I hope nobody who lives in a county that is
pretty well settled will vote for this amendment, for if they do, it
will tend to keep settlers out of those counties that are but
sparely settled. If there is another place in the United States
that they can go where they will have a chance to vote, they will
not come to this State with such a provision in our Constitution
as the gentleman from Benson wants to put in.
Mr. STEVENS. I hope that this amendment will not prevail,
190
DEBATES OF THE CONVENTION.
for I believe that if it does prevail and goes into the Consti-
tution, Ransom county will be robbed of a thousand settlers that
we are expecting there, but who won't go if they are to be dis-
franchised.
Mr. ROLFE. I did not expect that this amendment would be
popular in this Convention. But it is in line with the policy we
pursue in this government and in this Convention when we make
a limitation of the period of citizenship for our public officials.
There is not a report here that provides for the election of a
public officer which does not provide for a certain length of time
that he shall have resided here before he can become eligible.
The Constitution deprives a foreigner from occupying certain offices
until after he has been in the country a certain number of years.
If we believe that we should say that no person should become
eligible to the office of Judge of the Supreme Court until he has
resided here five years, why not put a limitation also on the voter?
If it is wise in the one particular it is in another. Why debar a
foreigner in the filling of any office if you don't limit his partici-
pation as a voter? I don't expect that my amendment will be
popular, and I am inclined to think the time I have named in the
amendment is too short. But I do believe that it is right that the
time should come when none but full citizens should participate
in the government of this State, and I honestly believe that it is
the opinion of a vast majority in this House that that should be
the case.
If I had any idea that this amendment in any form
would prevail, I would like to substitute the word "twenty" for
"five," and with the consent of my second I would ask that that
substitute be made.
Mr. MOER. With the substitute of the word "twenty" for
"five," I am willing to support the amendment. I am surprised
that more gentlemen have not risen to their feet in support of the
original amendment. I have heard a large number of the dele-
gates express themselves outside of this hall in favor of the pro-
position. Why don't they do it on the floor of this House? Is it
that they are afraid of the foreign vote? Is that the question that
keeps them from saying here what they say in private? It seems
to me that the time has come when it is just as necessary that
foreigners should be as familiar with our institutions as the
Americans are. We limit every American born citizen to twenty-
one years before he is allowed to vote. Why then should a for-
eigner be allowed to vote in six months or a year? There is no
DEBATES OF THE CONVENTION.
191
reason in the name of good government. It is impossible for
any man or class of men to become familiar with American insti-
tutions and ideas in six months or a year. Now with the proposed
amendment of twenty years, it seems to me that no man could
have any objection to the amendment as proposed. It will allow
every one now in the country and those who come here for the
next eight or fifteen years to become voters under our present
system. It seems to me that in the interests of good government
it is right to begin to restrict the right of suffrage to a limit of
time. We have this question before us-shall we allow people to
vote who know nothing about the institutions of the country-who
come here and in one year start in to exercise the rights of suffrage?
The right of suffrage is a right conferred by the government for
the public good. It is not a right inborn in any individual. It is
simply a question whether it is for the public good or not that this
amendment should prevail. Won't the honest answer from every
man's heart be that the best interests of good government require
that the voters shall have sufficient knowledge of American insti-
tutions to cast an intelligent vote when they go to the polls, and
does not that require a moderate residence, and is not five years
sufficiently short?
The amendment was put to a vote and lost.
Mr. CARLAND. I move to adjourn.
The motion prevailed, and the Convention adjourned.
TWENTY-EIGHTH DAY.
BISMARCK, Wednesday, July 31, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. NOBLE. File No. 130 is of considerable importance, and
the arguments and remarks made yesterday showed that there
were a great many questions in it of a judicial nature, and I
would move that before the adoption of the report and before it
goes to the Committee on Revision and Adjustment, that it be
recommitted to the Committee on Judicial Department.
192
DEBATES OF THE CONVENTION.
Mr. BEAN. I move the adoption of the report.
The motion was seconded by Mr. COLTON and carried.
Mr. SELBY. I move that we now resolve ourselves into the
Committee of the Whole for the purpope of considering the
article on the Judicial Department.
The motion was seconded by Mr. LEACH.
Mr. MOER. I amend by making it the report of the Commit-
tee on Elective Franchise. It is still before the committee and
should be finished.
The amendment of Mr. MOER was carried.
Mr. NOBLE. The minority report of the Committee on the
Elective Franchise turns out to be a majority report, and I would
suggest that the clause recommended by the minority be read in-
stead of the report of the minority.
Mr. PARSONS of Morton. Is File No. 123 before the house
for consideration? I would like to ask for the minority report.
As an act of courtesy the minority report should be before each
member as well as the majority report. I would like to state that
the majority report was made in good faith, but it would appear
that a majority of the committee signed what is called the minority
report, and I would move that this section two in the minority
report be substituted in the place of section two in the majority
report.
Mr. POLLOCK. I think the gentleman from Morton is labor-
ing under a slight misapprehension at least I judge that from
the statement he makes. This question that is touched on in
regard to both of these reports was considered in committee, and
a clear majority was in favor of the report which was made as the
report of this committee-File No. 123. Subesquent to that time
and before the matter was reported to the Convention, work was
done outside of the committee by which a majority were induced
to sign the minority report. It must not be construed that this
matter was considered hastily in the committee. The change was
made by reason of some work that was done by some of the mem-
bers of the committee after the adjournment of the committee
and before the report was submitted to this Convention. I state
this so that there my be no misunderstanding on the part of this
Convention. I would like to say further, that I hope this amend-
ment will not prevail for the reason that the question of extending
the right of suffrage to women, making that right equal with men,
is one that is being considered by the people not only of this Ter-
DEBATES OF THE CONVENTION.
193
ritory but by all the people of the United States. It is a question
on which considerable advancement may be made by us, and it is
a question that can be safely trusted to the Legislature. Our
Territorial Legislature has had control of this matter ever since
we have had a territorial government. They have not abused that
privilege. I understand that several states, notably New York,
have had the same power. But the time may come when the
Legislature should have the power to submit this matter to a vote
of the people, or to extend the franchise without the submission,
or to take such action as they may think is right and proper. I
am anxious that this amendment should not prevail for these
reasons.
Mr. LAUDER. I should like to know where this so-called
minority report may be found.
The CHILF CLERK. In the Journal of the 25th.
Mr. MOER. I don't understand that the motion of the gentle-
man from Morton to substitute the minority report for the majority
report settles the matter. He means to make it a part of the
majority report, and then the majority report may be adopted or
rejected by this body.
Mr. PARSONS of Morton. The gentleman from LaMoure has
the correct idea, and I would not choose now to enter into a further
discussion as to the merits of the question. It seems right that
if a majority of the committee has agreed on anything it should
be incorporated in the main report. I repudiate any insinuations
that have been made on the floor of this House as to any influence
having been brought to bear on any members of the committee.
The minority report was drawn up at my desk, and various mem-
bers of the committee signed it, and I don't know of any member
that signed that minority report who has expressed himself as
having had influence brought to bear on him. They signed it
deliberately, of their own free will and choice, and it seems to me
to be poor courtesy to cast any insinuation on any member of the
committee who has a right to vote any way he chooses. Any man
in this Convention has a right to cast his vote as he chooses and
change it when he likes. I don't believe that there has been any
wire pulling, nor that any one has used undue influence one way
or another. I deny the accusation. The minority report was on
my desk and was signed, and if there is any member who has had
any undue influence I wish he would stand up and say so.
I hope
the motion will prevail in justice to the majority of the committee.
13
194
DEBATES OF THE CONVENTION.
It is not a question of the merits of the case, but to substitue one
section for another.
Mr. POLLOCK. Putting the question on that ground, I wish
to say that I did not and don't now, intend in my remarks to re-
flect on the gentleman from Morton, but I intend to state that I
am credibly informed that one of the gentlemen who signed this
minority report stated that he signed it under a misapprehension,
and he signified his willingness to remove his name from that re-
port. I think when the argument is based on the fact that seven
names appear on that report the gentleman from Morton is lab-
oring under a misapprehension, and he asks to have one clause
substituted for another when such substitution should not be
made.
Mr. SPALDING. It seems to me that there is a misunder-
standing in regard to the action of this committee, and it occurs
to me that this Convention is no place to settle it in, and I move
as a substitute that when this committee rise it recommends that
the respective reports of the Committee on Elective Franchise be
re-referred to that committee for such action as they may see fit.
The motion was seconded.
Mr. WELLWOOD. I cannot see where this would help the
matter any. I don't see that it makes any difference one way or
another. The committee has worked over that thing and talked
it over, and it has got to be an old matter with it, and it cannot
accomplish any more. It is only wasting time to refer it back to
the committee. The Committee of the Whole can act on it now
as well as any other time.
Mr. CAMP. The sentiment of the gentleman who has just
spoken is precisely mine. The Committee on Elective Franchise
is, evidently, very nearly evenly divided on this point, and their
report, whether minority or majority, can but little affect the ac-
tion of this House, simply because they are about evenly divided.
It seems to me that this House can fairly take it out of the hands
of the committee and act on it, and whether they act on it under
the name of majority or minority report is of very little conse-
quence to anybody.
Mr. BARTLETT of Dickey. I cannot see the objection to put-
ting it as it is. If the minority is in the majority, so fix it. I
don't see why that is not right. The report that has the most.
signers should be the majority. I think that is right and what the
House ought to do.
DEBATES OF THE CONVENTION.
195
Mr. CARLAND. I move as a substitute that section two read
as follows:
"The Legislature shall be empowered to make further extensions of suffrage
hereafter at its discretion to all citiezns.”
And that this section be adopted.
The motion was seconded.
Mr. MOER. I move an amendment to the substitute that after
the word
The CHAIRMAN. The Chair is of the opinion that this amend-
ment is out of order.
Mr. NOBLE. It seems to me that the amendment offered by
the gentleman from Burleigh is identical with section two of the
majority report. I cannot see how a substitute can be offered.
Mr. CARLAND. I made the motion for this purpose. There
are two reports, and this Convention was being agitated by the
question as to which is the majority and which the minority, and
my motion was to make section two the same as it appears in File
No. 123.
Mr. ROLFE. I trust the substitute of the gentleman from
Burleigh will not prevail. I believe that it is the right of the
majority of the committee to have their section considered first as
the actual work of the committee, and I have not yet heard any
member whose name appears here as having subscribed to this
proposed section, testify or repudiate his signature. The presump-
tion must be that they signed it, and that they signed it with their
eyes open, and they intended to have their names there. Until
this is proven to be a mistake it is certainly a majority report
under whatever name it may be called. It seems to me that such
being the case it has a right to be considered here now, and have
the prestige which belongs to a majority report.
Mr. SCOTT. I hope the substitute of the gentleman from Bur-
leigh will not preveil. It is rather an anomaly to see a minority
report before this Convention as a majority report, and therefore
I hope the motion of the gentleman from Morton will prevail.
Mr. TURNER. As a member of that committee I wish to
state to this House that at the last session of that commit-
tee there was a clear majority of one on the final vote to adopt
section two as contained in the report of the committee, and as
contained in File No. 123. This File has been submitted to this
House as the majority report of this committee. How to account
for a minority report with seven names upon it, when no such
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DEBATES OF THE CONVENTION.
minority report was presented before that committee, and when a
clear majority of one for the adoption of the other report was
recorded, I cannot say. The question was discussed in the
committee and a majority of one was in favor of the report.
What has been done in getting seven names on this report was
done outside of the committee room and independent of any
knowledge the committee had. I hope the work done and sub-
mitted as File No. 123 will be recognized by this House as the
majority report, whatever inducements may have been used to
induce members to sign the minority report afterwards.
Mr. LAUDER. It seems to me that we are wasting a good deal
of time in discussing a matter that is practically of very little
importance. It can make but very little difference in the final
result which of these reports is considered the majority or the
minority, because in either case it will have no particular binding
force on this Convention. It seems to me that the report that is
signed by a majority of the committee, as none of them repudiates
the signature, should be regarded as the majority report, and it
seems to me that the most speedy way out of this difficulty will
be to sustain the motion of the gentleman from Morton to have
that considered the majority report which is signed by a majority
of the members of that committee.
Mr. CARLAND. I am not particular as to which is called the
majority report. I made the motion I did for the purpose of get-
ting the matter before the House.
Mr. NOBLE. I made the point of order that a substitute
could not be made, for we must first decide which is the majority
report, or whether there is a majority report, and then the minority
report may be substituted for the majority report.
The CHAIRMAN. The Chair is of the opinion that the sub-
stitute is in order.
Mr. BARTLETT of Dickey. I have never known a time that
great men did not have the right to change their minds. This
man signed the report, and after consideration he thought that he
had done wrong, and it is a true sign of greatness to see a man
who has done wrong, to change his mind and sign again. That
signing or that change made the minority report the majority re-
port, and I can't see any reason why all this argument should
follow when the gentleman is here to explain the matter himself.
Mr. FAY. At the meeting of the committee there was a ma-
jority in favor of what is called the majority report. Several of
DEBATES OF THE CONVENTION.
197
the members of the committee were absent. It was then stated
by those opposed to the majority report that a minority report
would be made. It was prepared and signed by some of the
members that were absent from this meeting. That accounts for
the situation. There is no complication about the matter, and it
occurred in this way.
Mr. TURNER. There were two members absent, and one was
on each side of the question. I hope the motion of the gentle-
man from Burleigh will prevail. I don't think we do well in com-
mencing the work of the new State to take a step backward.
Since 1862 the Legislature of the Territory of Dakota has had
the power to grant the suffrage to women, and yet they have been
conservative enough not to do it. There is sufficient protection
in the veto power of the Governor, and I don't see why a matter
of this kind should necessarily be submitted to the people, re-
quiring all the machinery of an election for the purpose of de-
termining it. When the Legislature becomes sufficiently con-
vinced that the people require the law they should be empowered
to pass it. I think no Legislature that may be elected as a Legis-
lature of the State of North Dakota, will at any time be willing
to extend the franchise beyond a reasonable desire of the majority
of the electors who send them here. I think the matter will be
safe and better left as it is now in the File as reported, and as it
has been during the Territorial government.
Mr. CARLAND. I understand the question before the House
to be whether or not this committee will adopt section two of File
No. 123 and recommend its adoption as section two of this article.
That is the question before the House. That motion has been
seconded and it is open for discussion. It is not necessary for
any delegate who advocates this motion to champion in any de-
gree the right of women to the suffrage. It is sufficient for the
delegate to be satisfied that he is doing right to citizens of North
Dakota, whether male or female. By glancing at section one of
File No. 123, it will be seen that this committee has adopted a
provision making civilized persons of Indian descent voters in
North Dakota. They have by section one in the first sub-division
allowed the negro to vote. They have allowed every description
of animate male humanity to vote in North Dakota. What is
asked in section two? It is asked that the Legislature shall be
empowered to make further extension of suffrage hereafter in its
discretion to all citizens of mature age and sound mind, not con-
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DEBATES OF THE CONVENTION.
victed of crime, without regard to sex, but shall not restrict suf-
frage without a vote of the people. Of course the intention of
that section is to empower the Legislature at some time to grant
the right of suffrage to females. Now I understand that we have
assembled here for the purpose of forming a Constitution for the
citizens of North Dakota. The citizens of North Dakota include
the female portion, as well as the male. If you are come here for
that purpose of making a Constitution for one-half of the
people of North Dakota, or perhaps for a minority, then you
ought to declare it in your preamble, and not say "In the name of
Almighty God" you are making it for the people of North Da-
kota. There is another view of this section, and it is this:
It has been guaranteed by the Constitution of the United
States and it has been the fundamental principle in
all bills of rights that I have ever studied since bills
of rights were demanded-by the Parliament of Great Britain
or formulated in the states of this Union-that the citizens have
a right to petition for the redress of grievances. Now what do
you do if you adopt a section which will prohibit the Legislature
forever from extending the right of suffrage to females? You
practically deny the right of one-half of the citizens of North
Dakota to petition for the righting of grievances. You deny to
them something you have advocated, and that has been advocated
by this government during the last century, and for a long time
in the country from whom we have our existence. Another view
of this case:
The minority report, as we call it, says the Legisla-
ture shall at some future time submit this question to a vote of
the people. Now I call on any person who has any knowledge of
the use and effect of the word "shall" in that, minority report to
state whether or not that has any more than a moral influence on
the Legislature. There is no human power that can ever compel
them to submit it to a vote of the people. This section says they
may have the power. Your section says they shall have the
power. I claim that so far as the actual enforcement of the pro-
vision is concerned the one is not any more binding than the
other. It seems to me that this section two is a very reasonable
provision. It is just; it is right that the question of this kind
that depends on the varying policy of state governments as to
whom they will admit to the right of suffrage, should be left to
the law-making power, and there is no right, no justice in saying
in this Constitution that the Legislature of North Dakota shall
DEBATES OF THE CONVENTION.
199
2
never extend the suffrage to any but male persons. What is this
for? What is the reason? If I should vote against this proposi-
tion in the face of the knowledge of the world in regard to the
ability, the integrity, the morality of the citizens of North Da-
kota who compose the female sex, and at the same time my con-
stituents see that on the day previous I had voted to let the civil-
ized Indian, and the negro, and every ignorant class known vote,
and I had debarred the women—and not only that, but had voted
to prevent the Legislature of North Dakota from ever extending
the suffrage to them, I would go out of this hall with my head
cast down as a man who was not a friend of justice, or a friend of
right, or a friend of fair dealing between man and man.
This of course is not a new question. It is a question that has
been discussed pro and con for a long time by all people, and
whether I am or not an advocate of woman suffrage—I say it does
not depend on that or enter into the solution of the question
whether this section shall be passed or not. A man's advocacy of
this section can be defended and rest solely on the question whether
he is an advocate of justice and fair dealing to one-half of the
population and citizens of North Dakota that you are making this
Constitution for. This minority report, as it is called, kindly says
the Legislature shall submit this question to a vote of the people.
Who are the people? Who are you in your generosity to submit
the question to, whether or not women shall vote? Why to your-
selves, and call yourselves the people. I say in justice and fair-
ness no person ought to advocate the submission of a question to
himself when he is the most interested party. It violates every
principle which obtains in judicial dealings—a man should not be
a judge in his own case. We do not ask to have this matter sub-
mitted, but we ask that in the future if such a thing should be
decided to be right and a matter of good public policy, that the
Legislature should grant this privilege. Now you have got to trust
the Legislature in a good many things, and they ought to be
trusted in this. I am in favor of leaving it to them for their
decision. I am satisfied that whatever they do in the matter will
be right. It is bound to be right in theory if not in practice, or
else our form of government is a sham and should be abolished.
With these remarks I hope the section will be adopted.
Mr. PARSONS of Morton. I was not aware that the question
of woman suffrage was before the House, and was not expecting
that the question would come before the House. The question as
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DEBATES OF THE CONVENTION.
it seems to me is simply a question whether the matter of extend-
ing the right of suffrage shall be left to the Legislature or left in
the hands of the people. We have had quite a number of re-
marks on this question, and on the question of woman suffrage.
I would not say a word were I sure the motion before the House
would be lost, but it seems very strange that we have existed as
people for over 100 years and the gentleman from Burleigh, who
has had the honor of being one of the judges of the district
of this Territory, asks-who are the people? I would like to ask
the gentleman who were the people in 1776, when the glorious
Declaration of Independence was signed, and who were the
people that voted to establish this government? Let me ask him
who were the people in the civil war when our country was torn
in twain? Who were the people who fought then to maintain our
system of government? It seems to be a strange question for a
gentleman of his enlightenment to propound on this floor.
don't wish to discuss the question of woman suffrage here.
would, however, make one reference to the matter, and I hope you
will pardon me for it. I have been so fortunate in life as to be a
married man, and so fortunate as to have these relations pleasant
and agreeable. I have the honor of having the presence of my
wife here to-day and I have too much deference to the institution
which I believe was established by God Himself and above a civil
contract-too much deference to that institution, to ever favor the
proposition of woman suffrage and she is with me in this posi
tion. So far we will let that subject drop and proceed to the
question before us. Shall it be left to the Legislature or the
people? I am an American. The question seems to be, and
always has been granted, that the sovereignty of this government
rests in the hands of the people, therefore I am opposed to ever
leaving the Legislature the unqualified power of extending the
right of suffrage. The people—a term that embraces every one who
casts a vote-have carried this government on through the past
years to the present day. If we have made mistakes-if we have
become helpless in misery and corruption, let us pull out and let
the other side of the house run it for awhile. But if there is any
honor left in us-if there is any responsibility, and we deem our-
selves men, let us still as Americans have enough confidence in
the sovereignty of the people to submit a question of so much
importance to the people instead of the Legislature. It is a
known fact that legislatures are susceptible to influences, and
DEBATES OF THE CONVENTION.
201
since I have been here as a delegate, were my feelings in that re-
spect not governed by a higher motive than simply a desire to
please the fairer portion of my audience, I should have been car-
ried away entirely in favor of woman suffrage. I am aware that
the same influence has been brought to bear on every Legislature
here, and it is a question that we should not decide in the heat of
argument, but we should leave it to the people. No more serious
question ever agitated the American mind than the question of
franchise. It affects our whole government, and there are argu-
ments pro and con.
It seems to me to be foolish to put a measure of this importance
into the hands of the Legislature with power to extend the suffrage
without limit, but without the power to restrict it. It seems
strange that such a proposition should be agitated, or advocated
here. I am proud that a majority of the committee have signed
this report. If the motion of the gentleman from Burleigh car-
ries, what does it defeat? It defeats the section which provides,
as our sister state has provided, for the submission of this ques-
tion to a vote of the people a year from now.
We cannot compel
the Legislature to submit it, but in all probability the Legislature
would not disregard the wants of the people as expressed in the
Constitution, and the provision is that it shall be submitted to a
vote of the people a year from now at the general election. You
may take this Convention, and you will find men in it who are
opposed to woman suffrage, who are in favor of this submission to
the people. You know that one of the principal arguments that
these people use for woman suffrage is that it will help in con-
trolling the liquor traffic. That is one of the arguments used.
Let that issue come up by itself. There is one class in favor of
the liquor traffic and one class against it. It seems strange to me
that anyone advocating a reform-a radical change in our govern-
ment should ask that the matter be left entirely in the hands of
the Legislature. It seems most preposterous that such a proposi-
tion should be made here, and all I ask is that the methods which
have been adopted since we were a government be adopted now-
and that such an important matter as this be left for the people
to decide. I wish to see no radical changes made without the
consent of the people, and when we say "people" I refer again
to my answer to the gentleman from Burleigh on this question.
We are legal voters to-day, and it is a question whether we shall
extend the franchise or not, and every man will be held free from
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DEBATES OF THE CONVENTION.
any imputation when he decides this question for himself at the
polls. I hope the motion of the gentleman will not prevail, but
that section two of the minority report will be inserted in the
article. I say this as an American who hopes to see our institu-
tions perpetuated in the same glorious manner as we have beheld
them perpetuated for a hundred years.
Mr. LAUDER. The question before the House as I understand.
it is not whether the right of suffrage shall be extended to women,
but the question is as to the manner in which it shall be extended
if at all. The gentleman from Burleigh takes the position that
the question should be left to the Legislature. In what I say I
shall not express my opinion or make any argument for or against
the right of suffrage for women, but I cannot agree with the gen-
tlemen from Burleigh that the Legislature is the proper tribunal
to decide this question. It is before the people. It has been dis-
cussed. It may be said to be one of the leading questions before
this Territory the same as the liquor question is. In regard to all
these questions, and which may be said to be leading questions,
it seems to me they should be submitted to the people, and let the
people finally pass on them, and then when they have been passed
by the people they will be settled. Whereas, if by chance, or if
by some combination, an act of the Legislature were passed grant-
ing suffrage to women, it would not be settled, for the people
would say that was not the issue before the people when the Legis-
lature was elected our legislators did not express the sentiments.
of the people, and the next Legislature, if the other party have
the majority, would reverse the acts of the former one, and it
would go on in that way just as Legislation on the whisky matter
has gone on in Dakota and other States, where it has not been
definitely settled by the people.
The gentleman says that in referring this matter to a vote of
the people we refer it to ourselves in our magnanimity. The
women will have no voice in it. If the Legislature decides this
question, to whom is it then referred? Any law, whether it be
constitutional or whether it be the act of the Legislature, must go
as the voluntary act of the male population of this State, and
there is no way in which you can get around it, unless it is pro-
vided here that on this question the women shall vote themselves.
But before this is done it must be by a constitutional provision to
be adopted by the male voters. The question, anyhow you put it,
is to be settled by the male voters of the state. The gentleman
DEBATES OF THE CONVENTION.
203
asks-has it come to this that the right of petition shall be denied
-that the women cannot petition the Legislature? I say it has
not come to that, and the position we take on the question does
not bring us to that at all. The women may go before the Legis-
lature with a petition-they may petition the Legislature to sub-
mit this question to a vote of the people, and the right of petition
is not changed. The gentleman says that perhaps the Legislature
will not submit the question. That is true. But are not they
just as liable to, and far more so, to submit the question than they
are themselves to grant the right to vote? If they may be relied
on to grant the right to vote, may they not be relied on to submit
the question to a vote of the people? These arguments are in-
genius-they are not fair. I am in favor of having this question
submitted to a vote of the people. If they want the franchise ex-
tended to women, let it be so extended.
vote on this question as well as the men.
selves say on this final vote when the
whether the suffrage shall be extended.
I would let the women
Let the women them-
question is submitted
Mr. MOER. The proposed substitute is, I presume, the origi-
nal report of what was supposed to be the majority of the com-
mittee. We then have the minority report which provides that
this question shall be submitted to a vote of the people a year
from now at the next general election. I am not in favor of sec-
tion two as proposed by the gentleman from Burleigh, neither am
I in favor of what is now called the majority report, for the reason
that it forces a vote at a time next fall when there has been no
demand for it on the part of the people. We have been here for
a long time, and there has not been a petition placed on our desks
or read to us, asking for this thing, from any source that I know
of. There have been one or two parties here in the interests of
the cause and that is all. There is no general demand on the part
of the women of the State for the right to vote, nor should that
question as to woman suffrage be discussed here, as it is not before
the House properly. The question now before us is this-shall
we empower the Legislature to extend the right of suffrage with-
out having it ratified by the people who are now the voters? It
seems to me decidedly that we should not. It is a proposed
change in our system of government that we know little or noth-
ing about. It may be good; it may not be. If the Legislature
extends this suffrage they can never restrict it, and the query in
my mind when the gentleman from Burleigh was speaking was
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DEBATES OF THE CONVENTION.
why the question to extend or restrict should not be left to a vote
of the people. It seems to me in this matter that it would be a
much better thing to leave it to the Legislature in the future-one
year, two years or ten years, when the people ask that the right of
suffrage be extended to women, so that at that time the Legisla-
ture should pass such a law and submit it to the voters for ratifi-
cation or rejection. There is no question of more weighty im-
portance to the people of this State that will come before us than
this no question that will come before the Legislature that will
be of more importance than this question of doubling the vote of
the country. Why do the advocates of woman suffrage object
to having this question submitted to a vote of the people? Why
do they want the Legislature to have the power to extend the
suffrage, unless they fear the voters at the polls will reject it?
In Dakota Territory we had the suffrage extended to women, so
far as the Legislature was concerned, and yet we know that not
one member in fifteen was elected on the question of woman
suffrage, nor did it enter into the canvass, nor did the people
ratify that action in any sense. I am against the motion of the
gentleman from Burleigh; I am also against the minority report
for the reason that it would force a vote in a year when there is
no demand for it. I believe in leaving the matter to the Legisla-
ture to legislate upon at any time when there is a demand, but
they must submit their work to the people to ratify it before it
becomes a law of the State.
Mr. ROLFE. Do I understand that the Chair ruled out of order
the amendment offered by the gentleman from LaMoure? If so,
and the section of the gentleman from Burleigh is adopted we will
still have an opportunity to amend it.
The CHAIRMAN. The chair so understands it.
Mr. SCOTT. Before voting on this I want to understand it. I
understand that the amendment of the gentleman from LaMoure
is out of order, and the substitute is this-that we adopt section
two of File No. 123, and recommend its adoption. If we do that,
then as I understand it, it cannot be amended unless some person
can be found who will move to reconsider it.
The CHAIRMAN. The Chair understood that it was simply a
substitute section to the majority report, and then the section
would be read and discussed.
Mr. SCOTT. Under the ruling of the Chair it prohibits any
amendments at this time. If we adopt this section it must be
DEBATES OF THE CONVENTION.
205
exactly as it stands. For that reason I move that the motion of
the gentleman from Burleigh be laid on the table.
The CHAIR ruled that that could not be done.
Mr. SCOTT. I move that further consideration of this ques-
tion be indefinitely postponed.
The motion was seconded and lost.
Mr. BEAN. The substitute motion is the section of the gentle-
man from Burleigh. I understand that to be the case.
The CHAIRMAN. That is so.
The substitute of Mr. CARLAND was then put and carried by a
vote of 39 to 24.
Mr. PARSONS of Morton. I give notice that there will be an
amendment offered to the Convention to-morrow on this section.
Sections three, four, five, six and seven were adopted.
Mr. SELBY moved to strike out section eight, which reads as
follows:
SEC. 8. Any woman having the qualifications enumerated in section one of
this article as to age, residence and citizenship, and including those now quali-
fied by the laws of the Territory, may vote at any election held solely for school
purposes, and may hold any office in the State, except as otherwise provided in
this Constitution.
Mr. JOHNSON. I move to amend section eight by adding
after the word "school" in the fourth line the words "or muni-
cipal."
The motion was seconded by Mr. COLTON.
The amendment was lost.
Mr. CARLAND. I move that the words commencing in the
fourth line after the word "purposes" be stricken out. I think the
Constitution should speak for itself.
The amendment of Mr. CARLAND was carried, and the section
was adopted as amended.
Mr. PARSONS of Morton. I move that when the committee
rise they report recommending the adoption of the Australian bill
at the end of this article, instructing the Legislature to pass it
with such modifications as they may see fit.
Mr. MILLER. I move that when the committee rise they re-
port recommending that the bill do not pass. It is simply in re-
gard to the method of conducting elections-purely a matter for
the Legislature.
Mr. PARSONS of Morton. I don't wish to occupy the time of
the Convention at this time. I would like to say that we don't
:
206
DEBATES OF THE CONVENTION.
deny that this is pure legislation, but this bill has passed the Leg-
islature of the Territory of Dakota, and was purloined or stolen
away in some manner. We desire to go on record as in favor of
it, and I hope that the motion of the gentleman from Cass will
not prevail, and that the bill may be incorporated in the Schedule.
I believe that a majority of the people in North Dakota want it,
and I should like to have the Convention bear the odium of de-
feating it.
The motion of Mr. MILLER was adopted.
THE REGISTRATION QUESTION.
Mr. COLTON. I move that section three of File No. 105 be
added as section ten of File No. 123. It reads as follows:
"All electors must be registered ninety days before the day of election, and
certified copies prepared by the Clerk or Auditor of each township, municipal-
ity or county for each polling place therein, and all lists must be certified to as
being true according to the certified list of the court of examiners.”
Mr. MILLER. I object to this amendment being added to
this article for the same reason that I objected to the Australian
bill. It has reference solely to the method of conducting elec-
tions and is a matter that should be relegated to the Legislature.
If we seek to put in all the provisions for conducting elections,
we shall have a very long Constitution. At its first session the
Legislature must make provisions for conducting elections. If
they deem it a wise thing they will undoubtedly provide for regis-
tration.
Mr. COLTON. I would say that where anything is for the
good of the public I don't see that there is any great danger of
being afraid of a little legislation. I notice there are some par-
ties on this floor who are terribly afraid of a little legislation, and
they seem to be very much against it. This registration provis-
ion is certainly what we need to secure an honest ballot, and if
we want an honest government we must start at the foundation
and have an honest vote. There is no way to secure this as well
as to have the voter register. Then we know who are voters and
who are not.
Mr. TURNER. I don't think this House can construe section
three of File No. 105 as being legislation. I don't believe that
that section makes any provision with respect to any method or
manner of conducting elections. It merely requires the registra-
tion of voters ninety days before election, in such a way and man-
:
DEBATES OF THE CONVENTION.
207
ner as may be provided by the Legislature. It so provides that
every person who shall be a candidate for office will have the right
by examining the files or records to know whether there are men
on those lists who are not entitled to vote. The individuals who
are candidates will have the right to examine those records and
ascertain if parties who have a right to vote are on that record
when the Board of Examiners meet, or not, and if their names
are not there they can take steps to have them put on. It is not
legislation, but it is placing in our Constitution a safeguard around
the question of who shall vote at elections to be held in this state.
It simply provides that individuals shall be ninety days in the
precinct and shall have registered. The persons who have not
registered will not have the right to vote. I think it is a question
quite within the province of this Constitution we are framing as
much as anything that is embraced in File No. 123.
Mr. BARTLETT of Griggs. I am opposed to section three,
first because it makes the registration ninety days before election.
I don't know why we should require them to be registered so long.
In all the States that I know anything about where registration
laws are in force the voters can reister up to within a few days of
election, but to require them to register ninety days ahead seems
to me to be unreasonable and unjust. I am also opposed to it
because I don't dnow the meaning of the last line which provides
that the lists shall be certified to by a "court of examiners." I
don't know where we have provided for any such court and I think
it would be almost impossible in this section to know where these.
polling lists could be found.
Mr. BARTLETT of Dickey. I am opposed to the whole clause
for this reason—it would open the door to fraud. I suppose every-
one is aware of the fact that many of us have to go seven or eight
miles to vote in the different townships. Frequently there is only
one voting precinct to each township. The people who vote there
are simply working people, and none of them would want to be
put to the trouble of going a long distance to register. It would
result in some of the candidates scratching around and getting
their friends to go and register and carry the election and leave
the balance of the voters out in the cold. There is not one farmer
in a hundred that would know anything about this, and then it
would take half an hour to get it into their heads. We all know
that the people don't want anything like this. They don't want to
go seven or eight miles to register, and they are not going to do it.
208
DEBATES OF THE CONVENTION.
They would be left out, and simply a few tricksters that wanted to
get into office would go and get their friends to register, and five
or six men would vote in a township. I should think that any-
body could see that.
Mr. TURNER. I should explain something with respect to
the question of registration. This section was made short that it
might not occupy the position of legislation, and that the entire
matter, almost, might be left to the Legislature. I am acquainted
with the working of the registration law, and it provides that all
persons who are assessed-who are on the assessment roll—shall
be placed on the registration roll by the clerk of the township or
by the county auditor, as the case may be. On the other hand
parties who are not assessed, and who pay no taxes, may have
their names placed on the lists of electors. Then it further follows
that when the day comes for the board of examiners to pass on
the roll, after which no names can be added, every individual has
a right at that time to have his name placed on the roll, or to ap-
pear before the board and give evidence why his name or the
name of any other person should be placed there or otherwise.
If an individual desires to have his name placed there who is not
a proper elector, and he is not entitled to vote for any reason, his
name is left off. I am satisfied that this section would be one of
the greatest safeguards of the ballot that we can have. It will
show who are properly entitled to vote and who are not, and will
do more to purify our elections than any other one thing.
Mr. WALLACE. I move as an amendment that the following
be added as a section to File No. 123: "The Legislature shall
pass a law providing for the registration of all legal voters."
The amendment was seconded.
sary
Mr. BARTLETT of Dickey. I agree with you that it is neces-
that your voters should be fit to elect the officers we need,
but it does seem to me that this registration business would not
be practicable. You who have run elections know that very
frequently you have got to hire a team to bring the voters out to
the polls. You have got to drag them out. You have got to
almost snake them to the polls. It makes us feel sad to realize
this, but you know it is a fact. There is a certain class of men
who will go and vote, but if we had such a law as this a few
tricksters would get a few to register and it would be the running
in of a few men, and after it was all over and the tricksters were
elected the voters who did not register would be very sorry that
they did not turn out and attend to it.
DEBATES OF THE CONVENTION.
209
Mr. WALLACE. I think that in actual experience the fears
of the gentleman are unfounded. I think he has no reason to
fear anything of the sort. A registration law has always been
looked on with great favor wherever I have lived. As to the
farming population understanding the necessity of getting regis-
tered, I think the gentleman speaks for a very small number. His
remarks don't apply generally. I am opposed to the section that
has been offered, because it seems to me to be indefinite, and I
don't fully understand it, but I am in favor of providing that the
Legislature shall pass some law providing for the registration of
all voters.
Mr. MATHEWS. I am in favor of a registration law, and am
in favor of this section introduced by the gentleman from Ward.
I lived under a registration law, and every voter had to go and see
that he was registered. Another party could not go and do it for
him, and he had till the Saturday before election, which came on
Tuesday, but Saturday was the last day. I am in favor of the
registration law, but I think two or three days before election is
enough.
Mr. COLTON. I would say this about the Legislature passing a
law: The Legislature has passed several such laws, but for some
reason they have always left a clause at the last end which killed
the whole thing-that if they did not register they had got to
swear their votes in. These voters that won't register we are try-
ing to weed out-they have a capacity to swear to almost every-
thing. The gentleman talks about dragging people to the polls.
I admit that that is done. I have known them to drag people 300
miles to the polls, and we don't want this dragging business to go
on any longer. They have got to be in the precinct ninety days,
anyhow, according to the section we have adopted, and if they
register that length of time before the election, we know that they
are there. But if they register a few days before election-I tell
you their consciences are made of rubber. They can say they
have been there ninety days when they have not been there ninety
hours. If we have this section go through as it has been intro-
duced, I will defy you to have any illegal votes cast. They can't
get their illegal votes in, and that is what we want. I don't care
if it defeats me at the next election. I want to see fair votes and
nothing else.
he
Mr. HARRIS. I agree with the gentleman from Ward when
says that if we adopt this section we would have a fair election
14
210
DEBATES OF THE CONVENTION.
next time, if we could have an election. But our authorities who
call elections don't call them ninety days before the voting is done.
We cannot provide for registration until the election is called. In
our municipalities they call elections twenty or thirty days before
election, and registration can't be provided for until after the elec-
tion is called. This refers to all elections, and I don't see how we
could have any special elections. How could registration take
place ninety days before a special election if the election is called
only twenty days beforehand? A registration law may be good in
our towns, but it is more of a question whether it is on our prairies.
We have men in this county who have to travel fifteen miles to
vote. Compel these men to leave their business and travel on a
certain day to register and they would consider it a hardship,
and they would not go and they would not be able to
vote. They don't care enough for the question as to who wants
office to put themselves to all this trouble. I am in favor of a
registration law for our cities and towns. But for the country I
am not, and especially a registration law which compels a man to
register ninety days before the election. It would be impracti-
cable and inoperative, and we could not hold an election under the
law.
Mr. PARSONS of Morton. There is nothing whatever in the
article as reported from the committee to prevent the Legislature
from enacting a registration law. There is nothing in this article
suggested by the gentleman from Bottineau to prevent the regis-
tration of every voter or name which appears on the assessor's
roll. The ninety days business would have nothing to do with the
special elections. If your name once went on the register roll
you
would not have to bother with it unless you changed your place of
residence, and if you did this you could go to the county seat and
have your name changed to your new precinct the same way as you
would go to the postoffice and get the postmaster to forward your
mail to some other point. It is supposed under this proposed
provision that we will always keep a full register roll of parties in
the county who are entitled to vote, and this list will go with the
ballot boxes. When a person obtains a residence and becomes an
elector he should see to it that his name gets on the register.
When a man's name once gets there it will stay unless he changes
his residence.
Mr. APPLETON. I quite agree with the views of the gentle-
man from Burleigh. I think the registry system is good in cities.
DEBATES OF THE CONVENTION.
211
or in thickly populated counties, but not in this country. I have
had experience in the east-in cities and in the country. We have
a statute in our territorial law at present that provides that any
county that wants to adopt the registry system can do so. Pem-
bina county adopted that system years ago, before I came to the
Territory, but we found that it did not work well for the simple
fact that the people would not get out to register. New settlers
were coming in all the time, and one-third the people were never
on the registry lists. On the day of election they would go to the
polls, and would say "If I have to swear my vote in I won't vote.”
I am opposed to the system, for we found it to be a nuisance.
Mr. TURNER. I think the remarks made by the gentleman
from Morton county are very pertinent. I voted for nearly twenty
years under the registry system, and I never was at the registry
court, nor did I ever register my name in my life. The fact is
that the Legislature can provide that all men who are on the as-
sessment roll shall be placed on the register, and my name was
always on the register and I never had to look after it. But in
cases where farmers' sons had not any property they had to regis-
ter and sometimes unless they were looked after their names
would not be on the register. No man not on the assessment roll,
and who did not pay poll tax would be on the registry list without
he took some pains to get it there. These lists would be printed,
and in the county in which I lived one would be hung up in every
school house in every township for public use, and every elector
could go to the school house and examine the lists and see if there
were names there of people who were not entitled to vote, and if
there were, there would be plenty of time and opportunity for
him to appear before the board of examiners and give evidence
and have the name of the unqualified elector struck off. I think
the Legislature should be allowed to make a law under the guid-
ance of that section.
The amendment of Mr. WALLACE was lost.
The motion of Mr. COLTON was lost.
THE SUPREME COURT.
Files Nos. 121 and 131 were then considered together, being the
majority and the minority reports of the Committee on the Judi-
cial Department.
Sections one, two and three were passed, and section four was
read as follows:
212
DEBATES OF THE CONVENTION.
ད་
1
"At least three terms of the Supreme Court shall be held each year at the
seat of government."
Mr. PURCELL. I offer as a substitute for that section the
following:
"At least three terms of the Supreme Court shall be held each year, one at
the seat of government, one at Grand Forks in the County of Grand Forks and
one at Fargo in the County of Cass, until otherwise provided by law."
Mr. JOHNSON. I move to amend by striking out the words
"seat of government" and inserting the word "Bismarck."
The amendment was accepted by Mr. PURCELL.
Mr. WALLACE. I hope the motion will not prevail. I think
that when we have a Supreme Court travelling around the State
as is proposed we had better change the title to that of a travel-
ling court.
Mr. STEVENS. I hope the amendment to the amendment will
not prevail for this reason-if at any time the seat of govern-
ment should be changed there would be no session held at
the seat of government, unless it was removed to Grand Forks or
Fargo, and I believe that one session at least should be held at
the seat of government. While it is very nice for Bismarck, I
have not declared yet that I am for Bismarck for seat of govern-
ment, and this is not the place to do so.
The CHAIRMAN. The amendment to the amendment was ac-
cepted.
Mr. STEVENS. Then I move an amendment to the effect that
the word "Bismarck" be stricken out and the words "seat of gov-
ernment” be substituted.
Mr. PURCELL. In view of the point made I would ask the
gentleman from Nelson to withdraw his amendment as I think the
substitute covers the point-"until otherwise provided by law,"
so in case the Capital is changed the Legislature might make pro-
vision that a term of the court should be held at Bismarck.
Mr. JOHNSON withdrew his amendment.
Mr. STEVENS. I desire to say this in justification of my
action: When this question was voted on by the committee I
voted in favor of three terms of court to be held at the seat of
government. I am now going to vote for this amendment as in-
troduced by the gentleman from Richland, and for this reason:
In my county we have a bar association of twelve members, and
that bar association has met and asked me as the sense of that as-
sociation that I vote for this resolution, and I am going to do it.
DEBATES OF THE CONVENTION.
213
Mr. O'BRIEN.
When this matter was before the Committee
on Judiciary Department it was taken as the unanimous sense of
the committee that the section should stand as reported that at
least three terms of court should be held at the seat of govern-
ment. I believe that the Supreme Court should not be a migra-
tory court. I believe that a fixed place for the holding of all its
sessions should be determined upon by the Constitution. It does
not matter to me where the seat of government shall be finally
fixed, but wherever it is fixed there I believe the Supreme Court
should meet. It may turn out that in time the seat of govern-
ment will be fixed at a point which will be available from all
points by rail. When the court is fixed at the seat of government
we will then have a State Library. The first Legislature which
meets will probably provide for a State Library. Now that li-
brary will be of great assistance to the members of the bar prac-
ticing before the Supreme Court, and it will also be of great ad-
vantage to the members of the Legislature and the other officers
residing there. When the members of the Supreme Court are
compelled to go to Fargo or Grand Forks they have got to inflict
themselves on the people of those localities for the use of the li-
brary which they are entitled to, and which they would have as a
matter of right at the seat of government. I most certainly am
in favor of having the Supreme Court at one point, and I say let
it be fixed at the seat of government, wherever that may be.
Mr. PURCELL. My reason for offering this substitute to the
fourth section of this article is this-as is well known the majority
of the business for the Supreme Court of this Territory comes.
from the Red River valley, and the counties on the eastern part of
the territory, and the probabilities are that for a
number of years the counties on the eastern part of
this State will furnish a majority of the business for the Supreme
Court. It is likewise supposed that the Supreme Judges of this
new State will be called from different districts-from the east,
from the southeast and perhaps from this location. If these judges
reside in their districts or live in the eastern part of the State, it
will be a matter of no great difficulty for a judge who lives on this
side of the territory to take the train and go to Fargo. On the
other hand if the Supreme Court is located at the seat of govern-
ment, and the seat of government is located at the City of Bis-
marck, it necessitates the travel of every attorney to the City of
Bismarck. It seems to me that it is easy for the Supreme Court
DEBATES OF THE CONVENTION.
214
to travel to the City of Fargo or the City of Grand Forks and
there meet the men who furnish the business to the court-easier
than it would be for all of them-judges and attorneys, to go to
Bismarck. There is nothing in the statement that such a court
would be migratory. The Supreme Court of the Territory of Da-
kota holds one term in Bismarck, one at Yankton and one in the
Black Hills. The judges of that court are compelled to travel in
many instances 2,500 miles to reach the Supreme Court, but it has
been proven that the business of the different localities is brought
before that session of the court which sits in those localities.
When the Supreme Court of the State meets in Grand Forks the
business of the country adjacent to that city will be disposed of
there. When the court meets at Fargo the business immediately
surrounding that city will be brought before it. It seems to me
that in justice to the attorneys as we are now located, one term of
the court should be held at each of the three points in the new
State named.
Mr. MOER. In the matter spoken of by the gentleman from
Richland, that the business will be transacted in each district,
I don't see how it will be possible to do that except by consent of
the attorneys. Heretofore when the court has sat at Yankton,
business which arose in the Bismarck district, or any point along
the line of the Northern Pacific railroad, was heard at Yankton.
It seems to me that the court should have an abiding place, and
not be compelled to go to Fargo and ask the charity of that city
for rooms, or make the State furnish rooms in Fargo and Grand
Forks as well as Bismarck. Litigants themselves do not go to the
Supreme Court. There is no occasion for a litigant to go-nobody
but the attorneys, and it seems to me that they can move around
just as well as the court. The question of Supreme Court mile-
age, and the expenses incident thereto would be quite a consider-
able sum if you have this migratory court, and it strikes me that it
is just as easy for the attorneys to go to the court as for the court to
travel over the State.
The substitute of Mr. PURCELL was lost, and the section as
reported by the committee was adopted.
Mr. BENNETT. I desire to offer a substitute for section four
as follows:
"At least three terms of the Supreme Court shall be held each year at the
seat of government until otherwise provided by law.”
The substitute was seconded and lost.
DEBATES OF THE CONVENTION.
215
THE SUPREME COURT JUDGES.
Section eight was then read as follows:
The Judges of the Supreme Court shall immediately after the first
election under this Constitution, be classified by lot so that one shall hold
his office for the term of two years, one for the term of four years, and one for
the term of six years from the first Monday in December, A. D. 1889. The lot
shall be drawn by the judges who shall for that purpose assemble at the seat
of government, and they shall cause the result thereof to be certified to the
Secretary of the Territory and filed in his office, unless the Secretary of State
of North Dakota shall have entered upon the duties of his office, in which
event said certification shall be filed therein. The judge having the shortest
term to serve, not holding his office by election or appointment to fill a vacancy,
shall be the Chief Justice and shall preside at all terms of the Supreme Court,
and in case of his absence the judge having in like manner, the next shortest
term to serve shall preside in his stead.
Mr. CARLAND. The orginal draft provided that the judges
should be elected at special elections. It was changed by the
committee so that they are now elected at general elections. In
that change from special to general elections, a change in section
eight would necessarily follow so far as the term of the Judges is
concerned, in order to have the election of their successors occur
at the general election. It will be seen that in line three of sec-
tion eight the first judge holds his office for the term of two
years. He is elected this fall. That would make his term of of-
fice expire on the odd year, and his successor could not be elected
at a general election, because there would be no general election
on the odd year. It has got to be fixed in this section either that
his term be one year or three, and the man who is mentioned in
line three for four years has got to hold for three or five, and the
other man who is down for six years has got to hold for five or
seven years. To obviate any difficulty I would move to amend
section eight so that the word "two" where it occurs in line three
be stricken out and the word "three" inserted, and the word
"four" be stricken out and "five" inserted, and the word
"six" be stricken out where it occurs in the fourth line and
"seven" be inserted in its place.
Mr. JOHNSON. Would it not be well to strike out the figures
"1889" and insert in lieu thereof "1890" in the fifth line?
Mr. CARLAND. That would leave the Territorial Judges to
serve till 1890.
Mr. JOHNSON. If you do this, as soon as practicable after
the election the judges would meet and decide that one should
!
DEBATES OF THE CONVENTION.
216
hold for two years from 1890, which would be equivalent to three
years from 1889, and one would hold for four years which would
be equivalent to saying five years from 1889. My object in this
suggestion was to render unnecessary more than one change in
the wording of the section.
Mr. ROLFE. It seems to me that the point would be all right
which limits absolutely the term to six years.
Mr. STEVENS. If I am not mistaken it was the understand-
ing of the committee that this matter should be remedied by the
Chairman before the report was made. It was agreed that the
terms as specified should be the ones to be adopted, but should
not affect the first judges to be elected under it, and that matter
would be attended to by the Committee on Schedule, providing
the terms for the first judges, and this matter would go before
that committee to be arranged.
Mr. SCOTT. Is there a motion before the House?
The CHAIRMAN. The motion is to strike out the words
"two," "four" and "six," and insert in their places the words
"three," "five" and "seven."
Mr. SCOTT. I would amend the motion by moving to strike
out the words "two," "four" aud "six," and inserting in their places.
the words "one," "three" and "five."
Seconded by Mr. STEVENS, and lost.
Mr. SCOTT. If the motion of the gentleman from Burleigh
is carried, we will find that we have a section providing that the
judges shall not be elected for longer than six years, and yet we
will go and elect one for seven years. It does not seem to me to
be good policy when we are experimenting and electing our first
judges to elect one man for a longer term than any of his success-
ors can ever be elected for.
Mr. CARLAND. It must be obvious to every delegate present
that when the officers are elected this fall they must be elected
for one or three years if it is decided that we shall have biennial
elections. The report provides that the judges shall be elected at
the general elections. You cannot do this unless you elect these
judges one or three years, three or five years and five or seven
years. You must make some such an arrangement as this, because
your first election will occur on an odd year, and this provision in
section eight was made so that the judges would not be elected at
intervals of six years apart, but one would be elected at each gen-
eral election. That was the intention of the section. In order
DEBATES OF THE CONVENTION.
217
to have the election of judges fall at the time of the general elec-
tions you have got to provide that they will be elected for three,
five and seven years.
Mr. SCOTT. You don't have to provide that way at all. You
might provide for one, three and five years
The amendment of Mr. CARLAND was carried.
APPOINT OR ELECT.
Section nine was then read as follows:
There shall be a Clerk and also a Reporter of the Supreme Court who shall
be appointed by the judges thereof and who shall hold office during the pleasure
of said judges, and whose duties and emoluments shall be prescribed by law
and by the rules of the Supreme Court not inconsistent with law. The Legis-
lature shall make provision for the publication and distribution of the decisions
of the Supreme Court, and for the sale of the published volumes thereof.
Mr. JOHNSON. I move to amend by inserting after the word
“Clerk” in the first line, the words: "Of the Supreme Court, elected
by the people, whose term of office shall be four years.”
The motion was seconded by Mr. BEAN.
Mr. JOHNSON. As I understand the rule of courtesy in this
committee and in others, it was not necessary to introduce a
minority report on every little matter that members of the com-
mittee may advocate. The Committee on the Judicial Depart-
ment was far from harmonious on these several articles, and on
this point particularly. If I remember rightly the committee was
evenly divided-seven and seven, one being absent. I wish to
repeat the protest which I made in the committee against this
method of appointing officers. We here provide for one of the
most important, pleasant, fat places in the government. The article
as reported and read is un-American, un-republican, un-demo-
cratic. It is monarchial. I don't believe in appointing these
officers for life, which this means we shall have done. He is to
hold his office during good behavior. I believe in appointing or
electing officers for certain specified terms. The clerk is not ap-
pointed according to the section, absolutely for life, but the phrase-
ology is just what is implied here. During good behavior-the
pleasure of the king or the judges. I am not in favor of appoint-
ing or electing any of our State officers for life, or during good
behavior or the pleasure of the government or the Supreme Court
Judges. Another thing-I am in favor of electing our State
officers instead of appointing them. I am well aware that I subject
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DEBATES OF THE CONVENTION.
myself to the same rebuke that I received in the committee, but
duty impels me, and I will make the statements here that I made
there. One reason why I am in favor of having this officer elected
is that a very large and representative body of our fellow-citizens
met at Fargo a week before we met here, and passed resolutions
on this question. I refer to the Farmers' Alliance. They said—
elect as many and appoint as few of our public officers as possible.
Now it is true that that society has no right to come here and
dictate that you
shall do so and so, but I say this-that
every society and every individual, whether a voter or not, in
North Dakota has a right in a respectful manner to express views
and opinions on this subject. Now when the representatives of
the farmers of North Dakota have met immediately on the eve of
the meeting of this Convention, and have said earnestly and
respectfully what they want, they are at least entitled to a respect-
ful hearing. I don't argue for this on that account merely, but I
take the position I do on the deeper principles of right-on the
deeper principles of American policy-of the American genius.
I say it is the policy and in accordance with the tradition of the
American people to elect their officers and not have them appointed.
A hundred years ago when the machinery of our government
was first put in operation, the men who made constitutions were
afraid to trust the people to elect the President of the United
States. They prepared the machinery of the electoral college--
men who were supposed to meet and discuss the question as to
who should be President, and it was supposed that with their
greater attainments and enlightenment they could use better judg-
ment in the election of a President. We have done away with
that now, all except as a matter of form. As a matter of fact it
amounts to the same now as if the people had voted for the
President direct. If we had a Constitution of the United States
to make now, all but a very small minority would be willing to
trust the people to vote directly on the question of President. I
say this without any fear of contradiction, that it is the rule in
the northern states for the people to elect the Clerk of the
Supreme Court. It is provided so in the Constitutions of Min-
nesota, New York, Ohio, California, Illinois, Indiana, Michigan,
Iowa and last but not least in the WILLIAMS Constitution. We have
abundant precedents for electing this officer by the vote of the
people; on the other side of Mason & Dixon's line we have pre-
cedents the other way. But it seems to me that we should follow
DEBATES OF THE CONVENTION.
219
the precedents of the people who live in the same parallels of lati-
tude with us and the states from which our people have come. I
do not say that the rule is uniform, for there are a few exceptions
but on principle you will never go far wrong if in voting for arti-
cles here you follow the advice of Abraham Lincoln as given on
the battle field of Gettysburg when he said "Government of the
people, for the people and by the people shall not perish from the
earth." I believe in that principle of government of the people
and by the people here in North Dakota, and not by favoritism or
by appointment by the judges or the Governor. I believe there
is a demand that Railroad Commissioners and the Clerk of the
Supreme Court shall be elected by the people. I appeal to you
to trust the people in this matter.
Mr. MOER. In the Judiciary Committee, as the gentleman
has stated, it was a close question whether the committee would
report in favor of the appointing of the Clerk of the Supreme
Court or electing him. I think only a majority of one was for
the appointing. It seems to me that the members of the Su-
preme Court would be better qualified to judge of the kind of a man
that was needed for this place than the people. The Clerk is not
brought into contact in any way, shape or manner with the people
of the state. The attorneys and the Judges of the Supreme
Court are about all the people that have any business with that
official. Now the gentleman from Nelson quotes the different
constitutions that provide for the election of the Clerk. I have
a constitution in my hand which I am sure surpasses all constitu-
tions ever made, because the gentleman from Nelson has intro-
duced here numerous sections from it, the Constitution of South
Dakota, the very essence of wisdom, in the estimation of a great
many gentlemen, and it provides that its Clerk of the Supreme
Court shall be appointed by the judges. It seems that it is not
wise for the people to elect every officer that is to have a place
under our Constitution or our laws, for the reason that in such an
office as this it needs a man who shall have certain qualifications
for the office, and certainly the judges of the court would know
more as to the man's qualifications than the people would. I am
willing as far as I am concerned, as a voter, to forego a vote at the
general elections on the question of the clerkship to the Supreme
Court, for what I believe to be the good of the public and the
good of the service.
Mr. STEVENS. I have always, at all times and under all cir-
220
DEBATES OF THE CONVENTION.
cumstances, been in favor of leaving to the people all questions
that affect them directly, and while it is true that the people as a
whole do not appear before the Supreme Court, it is also true that
the Supreme Court and their Clerk in all their work affect the
people. The gentleman says that this appointment should be
made by the judges because they are better qualified to judge of
the qualifications of the clerk than the people, or in other words,
the creature is greater than the creator. The people create the
Supreme Court -they elect them, and then you say that they are
better qualified because the people have elected them, to say who
shall be Clerk. Why not say that the Supreme Court after serv-
ing their term out should pick from the attorneys who have
practiced before them, the men who shall be their successors on
the Supreme Bench? The rule is as good in the one case as in
the other. The fact is that in a republican form of government
it is not only the tendency to-day, but has been from its establish-
ment, that all questions that affect the people should as near as
possible be settled by the people, and the whole people are af-
fected by every public officer in the Territory. I was amazed at
the gentleman's proposition, that he was always in favor of leaving
everything to the people, after just voting that the people should
be deprived of the right to decide this question. I think that
every officer should be elected by the people, who is to hold a
public office.
Mr. PURCELL. The gentleman from Nelson states, as I
understood him, that this is one of the fat offices in the new state.
This bill does not make it so unless the Legislature sees fit to cre-
ate a salary or emoluments to make it fat. Under the territorial
government of this Territory, the Supreme Court selected their
own Clerk. In conversation with that Clerk I was informed that
all the fees received by him from every source whatever in the
performance of his duties as clerk of the court, did not
amount to $400 per annum. That same clerk is the chief deputy
of the United States Marshal, and working for him at a salary of
$100 a month. Unless the gentleman from Nelson proposes to ask
the next Legislature to make this office a fat office, under the ex-
isting laws it is not worth the occupancy. The fact is that under
the territorial regime there have never been more than two or
three applicants for this office. The fees which come to the Clerk
are not sufficient to justify any man to become a candidate for the
position. And, Mr. PRESIDENT, it is fair to presume that the liti
DEBATES OF THE CONVENTION.
221
gation which has taken place in the past in the court of the terri-
tory will be some criterion of the amount and character of the
business of the future. Unless the business materially increases,
or by operation of laws passed by the Legislature, it will not be
worth a man's time to become a candidate for the place. The du-
ties consist of receiving and filing papers and are simply ministe-
rial. The decisions of the judges are handed down to the Clerk
and filed; transcripts are sent to the different clerks, and those du-
ties simply occupy his time during the sitting of the court.
There are only three terms provided by this bill. These will not
last more than three or four months at the outside. This office
will take but a part of his time. He will have from five to seven
months at his leisure. I do not mean to say, or would any man
state, that the Legislature intends to make the emoluments or sal-
ary of this office sufficient to allow a man to live in idleness five
or seven months out of the twelve. The work of the Clerk
never commences till the work of the court is nearly done.
Mr. JOHNSON. The question last touched on by the gentle-
man from Richland does not enter into the matter of the amend-
ment. I propose to leave the article just as it is, so far as the
emoluments are concerned. They shall be prescribed by law, so
that cuts no figure in this amendment. No matter whether the
pay is large or small-it is the principal I am after. But the gen-
tleman has well stated and spoken by authority, as he has himself
been on the Supreme Bench of this Territory.
Mr. PURCELL. I understood that there was a rule prescribed
by this Convention that there should be no personal remarks
indulged in by members.
Mr. JOHNSON. I was mistaken- the gentleman from Bur-
leigh was the gentleman who was on the Supreme Bench, but the
domes of the two genleman are so much alike. My understanding
of the rule as to personalities was to the effect that a complimen-
tary reference to a man was not out of the way. I did not know
that it was offensive for a man to be referred to as having been on
the Supreme Bench of this Territory. The gentleman states that
the duties of this officer are simply ministerial. That is the very
reason why I have singled out the Clerk and left the Reporter to be
appointed. Their duties are different. The duties of the Clerk are
such that any fair man of average ability could pick it up. It
does not require peculiar sagacity and long training on the bench
to pick out a man to act as clerk. The article says as left by my
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DEBATES OF THE CONVENTION.
amendment that his duties shall be prescribed by law and the
rules of the Supreme Court. There is nothing to be left to his
discretion. With the reporter it is entirely different. My rule
does not strike at the reporter. Their work is very different. The
relations of the reporter to the judges is quasi-confidential. He
takes the decisions of the Supreme Court, he will prepare the
syllabus, giving the gist of the opinion. That requires special
ability to see that the judges may be properly reported. The judges
should be left to pick their own reporter, as he is to them what a
private secretary is to a business man.
The amendment of Mr. JOHNSON was lost by a vote of 32 to 27.
Mr. PARSONS of Morton. I desire to have it recorded that I
vote for this amendment, simply from principle.
A MATTER OF ELIGIBILITY.
Section ten was then read as follows:
No person shall be eligible to the office of Judge of the Supreme Court
unless he be learned in law, be at least thirty years of age and a citizen of the
United States, nor unless he shall have resided in this State or Territory of
Dakota five years next preceding his election.
Mr. PURCELL. I move that the section be amended by strik-
ing out the word "five" in the fourth line, and inserting in its
place the word "three.'
Mr. BARTLETT of Griggs. I am opposed to this amendment.
In the committee I believe that I favored three years, but a motion
was made to increase it to five years and that was carried. I, as
one member, objected to the increase, but it was almost unani-
mously carried and agreed to, that five years was the proper num-
ber and that we did not want any carpet baggers in our Supreme
Court. Since it has been reported as five there has been a gentle-
man here, who I understand is a candidate for the Supreme Court
Bench, and he has not been in the Territory five years. To that
man I have no objection, and I should like to have the pleasure of
voting for him for the Supreme Bench, but I do object to this Con-
stitution being made to suit any one man. If five years was right,
then it is right now, but some members of the Judiciary commit-
tee who were for five years are now supporting this amendment.
I am opposed to making a Constitution for the purpose of letting
in anybody. We are here for the purpose of making a Constitu-
tion for the State, and not let any one man in to some place. If
three years is right, then it should be three years, but the reason
DEBATES OF THE CONVENTION.
223
that the three-year plan is now sought to be adopted does not com-
mend itself to me. I think it takes a good deal of gall for a man
to come here and say we must change the Constitution, because if
we don't we won't permit him to be a candidate for the Supreme
Bench. I would like to vote for him for Judge, but I am opposed
to changing this committee report for the sake of giving me that
privilege.
Mr. LAUDER. I was about to rise and second this motion. I
presume that when this question was under discussion in the
committee I voted to have it as it now stands. I presume that
the gentleman from Griggs has reference to me in his remarks as
one of those who supported the five year clause and now am in
favor of three years. I do not desire to say, or to be understood
as saying, or meaning that the person or persons who prepared
the phraseology of this article did not to their best ability and as
they understood it, prepare it in accordance with the report or
wishes of a majority of the committee. I think they did, but I
want to assure this committee and every one of them, that I never
intended to vote for the article as it now stands. My impression
is that a number of other members of the committee, who are
classed as belonging to the majority, and in favor of this article
as it now stands, did not understand it that way, and I appeal to
every member of the committee that the question was discussed
at large as to whether or not the limitation provided here should
applly to the first judges or whether it should be general and
apply to all. My understanding was that it should not apply to
the first judges. My understanding was, and I supposed that it
was the sense of the majority of the committee, that a five-year
limit was too long in providing for the election of our first judges,
but after that, after our State became older, after members of the
bar had been here longer, it would be well to make the limitation.
five years, and I think myself that so far as the first election is
concerned, I don't care whether it lets one man in or twenty, and
renders them eligible as candidates, I don't think that should pre-
vent us from doing what is right in the premises. The gentleman
says that we should not change this Constitution to let any man
in. That is true, neither should we refrain from changing it if it
ought to be changed, because the change will let someone in.
Mr. MOER. I would like to ask every member of the Judi-
ciary Committee if there would have been a suggestion of a change
if there had not been a gentleman here who desired the change
224
DEBATES OF THE CONVENTION.
for his own benefit, and not for the good of the State. It seems to
me that the point made by the gentleman from Griggs is a good one.
We decided that the time should be five years. The point has never
been suggested or raised by anyone that the time was too long, till
a certain gentleman who comes here, asks that it be changed because
he wants to be a candidate for the place. It seems to me that
that is a very small reason to give for changing this committee's
report. If five years is too long that is another matter, but it is
strange that this did not occur to somebody here before this gen-
tleman appeared. I have not a thing against the gentleman whom
I believe this change is being made for, but it seems to me that
five years is none too long, and if it is none too long for the sec-
ond election it is none too long for the first. We want men on
the Supreme Bench who have lived here, and it seems to me that
five years is little enough time.
Mr. CARLAND. As to what occurred in the committee room,
I have some recollection. This report was drafted by myself as
a sub-committee, and I had in this line two years instead of five.
The records show that Mr. SPALDING of Fargo, made a motion to
increase it to five, and a vote was taken, and there was a large
majority in favor of five. That is the way the vote stood in the
committee. I was in favor of two years.
Mr. PURCELL. The purpose I had in moving this amend-
ment was not to comply with the wishes of any one gentleman, but
we all know from experience that there are many men among us who
have come recently, who have considerable ability. For members
of the Legislature a certain term of residence is required, and for
other officers. What we desire on the Supreme Bench is as much
ability as possible. It seems to me that there can be no objection
to the passage of this amendment when we all know that two or three
years' experience or knowledge of any man will enable us to judge
of his qualifications for any position. There were many who
thought that by enacting the five-year clause we were excluding
men from aspiring to the Supreme Bench-men whom the Su-
preme Court records show have appeared before that court as
often as those who have been here longer. The standing of our
bar has been improved in this Territory during the past four or
five years more than it has ever been before. There are men of
experience, men of ability, wide knowledge, coming to the Terri-
tory every day. When they have been here two or three years, in
my judgment they have fixed their residence and are entitled to
DEBATES OF THE CONVENTION.
225
occupy a position on the Supreme Bench if the people want them
there. If there could be an objection to this why not raise an
objection to a man voting until he has been here five years. It
won't take any of us long to become acquainted with the qualifi-
cations of any man for this position.
The amendment of Mr. PURCELL was put to a vote with the re-
sult that it was adopted by a vote of 30 to 19.
Mr. ROLFE. In view of the vote just taken, and in view of a
vote taken by this Convention before, I move that all after the
word "states" in the third line of this section be stricken out.
The motion was seconded by Mr. SELBY.
Mr. ROLFE. If we are so careless of the use of what we con-
sider to be vital--namely, the right of suffrage, why should we
not be fully as careless in regard to the qualifications which we
impose on our candidates for the Supreme Bench. A carpet
bagger can in our suffrage article, have a right to vote-a practical
carpet bagger, then why not a Judge of the Supreme Court? I
don't see the necessity of making any distinction in the one case
over the other. If we let down the bars in the one direction, why
not in the other? If there is no merit in imposing a limitation
in the matter of the Supreme Court, there is none in the other
case. If there is no merit in the one case there is none in the
other.
The amendment of Mr. ROLFE was lost.
Mr. BENNETT. I offer an amendment as follows: After the
words "Territory of Dakota" insert the words "And is a qualified
elector therein.'
""
Mr. PARSONS of Morton. It is a quarter to six, and I would
move that we take a recess till 7:30 p. m.
A member suggested that there were no facilities for lighting
the hall.
The CHAIRMAN. I desire to state that there are large lamps
and a sufficient number to light the hall properly.
Mr. STEVENS. I move that the committee do now rise, re-
port progress and ask leave to sit again.
The motion was carried.
Mr. STEVENS. I move that this Convention adjourn to meet
at 10 o'clock to-morrow morning.
The motion was lost.
Mr. BEAN. I move to take a recess untill 8 o'clock p. m.
15
226
DEBATES OF THE CONVENTION.
The motion prevailed and the Convention took a recess until 8
o'clock p. m.
EVENING SESSION.
The Convention assembled at 8 o'clock p. m.
COMMITTEE OF THE WHOLE.
Mr. BENNETT. I move that in section ten of File No. 121,
all after the word "Dakota" be stricken out, and the words "and
qualified elector therein" be substituted.
Mr. PURCELL. It seems to me that no man should be eligi-
gible until after he has been three years in the Territory.
Mr. O'BREN. As I understand it, before we took a recess this
matter came up, and was passed upon, and we left here with the
idea that section ten had been carried. Does it come up as a mo-
tion to reconsider that vote? It seems to me that it is not proper
to take up that section any more than any of the preceding sec-
tions.
The CHAIRMAN. There seems to be a difference of opinion
as to whether or not we have adopted that section.
Mr. O'BRIEN. The question was asked the Chair before the
adjournment if that section was adopted, and he replied that it
was. That is my recollection.
Mr. PARSONS of Morton. I don't see why there should be any
necessity for a motion. None of this is passed by motion-not
one of these sections, and if there is no objection it was passed.
I made a break here for a recess, and I did that when the motion
of the gentleman from Grand Forks was before the House.
Mr. NOBLE. The question was asked before the recess whether
section ten had been adopted. It was ruled by the Chair that it
was adopted by the Committee of the Whole. The motion of the
gentleman from Grand Forks had been put to the House and lost
by myself as Chairman of the committee at that time.
Mr. MILLER. That is exactly as I understand it. I voted on
the motion.
Mr. BENNETT. I understood that the motion to change from
five to three years carried. Now I renew my amendment of that
section by striking out the words after "Dakota” and inserting the
words "and qualified elector therein." My reason is that a man
who is a qualified elector in the State should be eligible to hold
any position in the State.
DEBATES OF THE CONVENTION.
227
Mr. MOER. My recollection is that the gentleman from Benson
introduced as an amendment that all be stricken out after the
words "United States." Then the gentleman from Grand Forks
moved to inset the words that he names, and the motion was sec-
onded but never voted upon.
Mr. STEVENS. I move that we proceed to consider section
ten.
A vote was then taken on the amendment of Mr. BENNETT and
it was decided to indefinitely postpone the same.
Section fifteen was then read as follows:
The judges of the Supreme and District Courts shall receive such compen-
sation for their services as may be prescribed by law, which compensation shall
not be increased or diminished during the term for which a judge shall have
been elected.
Mr. STEVENS. I have no objection to the section with this
exception, there should be some provision by which the first Legis-
lature may fix the salary of the judges. I believe it has been
held by the Supreme Court of this Territory that where the county
commissioners set the salary of a county officer the incoming com-
missioners could not do it. I believe that the salary of the judges
will be fixed by the Schedule that is adopted by this Convention,
and the Legislature when it convenes this winter should have the
privilege of fixing the salary of these judges, and the Constitution
should not be fixed so that they cannot.
Mr. CARLAND. This section does not prohibit the Legislature
from prescribing what the salaries shall be. The Judges of the
Supreme Court and the District Court shall receive "such compen-
sation as may be provided by law." That is what the section says.
A provision of that kind has always been construed as not pro-
hibiting the fixing of the salaries, but it prohibits increasing or
decreasing the salary when once fixed, during the term of the
officer. If it is so provided in the Schedule of this Constitution
what the salary shall be, then it will come within the meaning of
the expression "as may be prescribed by law," for it will be as
much law in the Schedule as if it were an act of the Legislature.
The amendment would be, if any were put in, that this section
shall not be construed as prohibiting the first Legislature fixing
the salaries of the judges.
Mr. STEVENS. If it is fixed by the Schedule it will be as
much fixed by law as if fixed by the Legislature. I would ask the
gentleman from Burleigh, who was, if I mistake not, a member of
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DEBATES OF THE CONVENTION.
the Supreme Bench at the time the decision was made-if it is
not true that that Court held at Yankton that the county commis-
sioners could not change salaries that had been fixed by the pre-
ceding board?
Mr. CARLAND. I was not a member of the Supreme Bench
at that time, but that case was decided in this way-the county
commissioners had fixed the salary, and the Court held that it
could not be changed after the officer had entered on his duties.
It depends on whether the Schedule fixes the salary as absolute or
whether it provides "or as otherwise provided by law." If the
Schedule fixes the salary for all time, the Legislature cannot
change it.
Mr. STEVENS moved an amendment to come at the end of
section fifteen as follows:
"Provided the salaries of the first judges elected under this Constitution
may be fixed by the first Legislature of the State of North Dakota."
The amendment was lost.
ADDITIONAL SECTIONS.
Mr. WILLIAMS then introduced four sections which he moved
be numbered sections seventeen, eighteen, nineteen and twenty.
They read as follows:
SEC. 17. When a judgement or decree is reversed or affirmed by the Su-
preme Court, every point fairly arising upon the record of the case shall be
considered and decided, and the reasons therefor shall be conscisely stated in
writing, signed by the judge concurring, filed in the office of the Clerk of the
Supreme Court and preserved with a record of the case. Any judge dissenting
therefrom may give the reasons of his dissent in writing over his signature.
SEC. 18. The Supreme Court shall have power to make rules for the gov-
ernment of said Court and the other Courts of the State, rules of practice and
rules for admission to the bar of the Courts of the State.
SEC. 19. It shall be the duty of the Court to prepare a syllabus of the
points adjudicated in each case which shall be concurred in by a majority of
the judges thereof, and it shall be prefixed to the published report of the case.
SEC. 20. The Judges of the Supreme Court shall give their opinion upon
important questions of law and upon solemn occasions, when required by the
Governor, the Senate or the House of Representatives; and all such opinions
shall be published in connection with the reported decisions of said court.
Mr. PURCELL. The last section introduced by the gentle-
man from Burleigh which requires the Judges of the Supreme
Court to give their opinion, would conflict with No. 12, which
reads:
DEBATES OF THE CONVENTION.
229
"No duty shall be imposed by law upon the Supreme Court or any of the
judges thereof, except such as are judicial, nor shall any of the judges thereof
exercise any power of appointment except as herein provided.”
To give their opinions to a State officer would not be a judicial
function.
Mr. CARLAND. I move that this amendment be taken up
section by section the same as the report.
The motion was seconded and carried.
Mr. LAUDER. I think that section twenty introduced by the
gentleman from Burleigh is unnecessary. The article provides
for a Reporter who will do just what is required of the judges. If
that prevails, then the other section which provides for a Reporter
should be amended. There is no reason for both of them to stand.
Mr. WILLIAMS. I don't see that the two sections will con-
flict. The section that I have introduced requires that the court
shall make the syllabus. This provision exists in some other
constitutions which require that the judges shall make the sylla-
bus and show what particular points they have decided.
Mr. MOER. I would ask what was the idea in taking the work
away from the Reporter?
Mr. WILLIAMS. It would then be more accurate and more
satisfactory.
The section was adopted.
Section nineteen was then taken up, which reads as follows:
The Supreme Court shall have power to make rules for the government of
said court and the other courts of the State, rules of practice and rules for ad-
mission to the bar of the courts of the State.
Mr. PURCELL.
I move that the words "other courts of the
State" be stricken out.
The motion was seconded by Mr. PARSONS of Morton.
Mr. CARLAND. I move as a substitute motion that the whole
section be stricken out for the reason that the Supreme Court
possesses the power to do what the section says they may do. It
is a waste of time to adopt such a resolution, and it is mere legis-
lation anyway.
Mr. WILLIAMS. It is true partially what the gentlemen says,
but the latter part of the section is not within the power of the
Supreme Court unless we put it in here. The latter part provides
that they may make rules for admission to the bar of the State.
I think this is a good idea. If it is left to the Supreme Court
230
DEBATES OF THE CONVENTION.
it will have a tendency to elevate the bar. I think the proposi-
tion is a good one.
Mr. CARLAND'S substitute to strike out the whole section was
carried.
Section twenty (now nineteen) was then considered.
Mr. PURCELL. That section will conflict with section twelve
which we have already adopted. I move that the section be
stricken out.
The motion was seconded.
Mr. WILLIAMS. I hope the motion will not prevail. I don't
think it will conflict with the section which the gentleman refers
to. It is a provision which I found in many constitutions and I
think it should be put in here. I think it would have a tendency
to save the people frequently large amounts of money. The
people don't as a rule elect constitutional lawyers to the Legis-
lature. The majority of every Legislative Assembly will be
farmers, mechanics and laboring men with a small minority of
lawyers. Frequently the people determine on a particular meas-
ure, and they send men to the Legislature here to carry out the
wishes of the people. They are met by a small minority who tell
them that the proposed measure would be unconstitutional, and
they say this so many times till the farmers think that the minor-
ity is right. The Legislature-or the majority of it—is obliged
to recede from its position, but if a member had an opportunity
to offer a resolution calling on the highest tribunal in the State
for their opinion on the construction of that bill, he would be per-
fectly independent, and equal to the best lawyer in the body.
This resolution would place all the men in the Legislature on an
equality, and I think, Mr. CHAIRMAN, you could put no better
provision in our Constitution than this. It is a protection to the
farmer, the laborer and the men unlearned in the law.
The
Mr. LAUDER. I hope this amendment will not prevail.
gentleman from Burleigh has evidently forgotten that in all hu-
man probability we will have in this State an officer designated
as the Attorney General, whose peculiar business it will be to ad-
vise the State officers and the Legislature when called upon. Now
no one knows better than the gentleman from Burleigh that when
a question is presented to the court as these questions would if
this amendment prevails, the Supreme Court would be flooded
with these questions. Judges of the Supreme Court, are simply
men; they don't know all the law there is, and it is very unsafe
DEBATES OF THE CONVENTION.
231
for any court or any person to pronounce the law on any proposi-
tion unless it has been argued before that court on both sides, and
all the authorities presented. If the court should give an opin-
ion, for example, in an ex parte case without having the law pre-
sented, argued, discussed, and that same question should be
brought before the Supreme Court, it might put them in a very
awkward position. They would not be free to decide that case as
they then understood it, after the matter had been properly and
exhaustively presented to them. They might be obliged to recede
from their position they had taken up, and it is unfair to the court
to place them in any such position. We elect an officer and pay
him a salary to do the same work that the gentleman from Bur-
leigh would have the Judges of the Supreme Court do. If this
amendment prevails we have no need of an Attorney General, or
very little, and we might almost abolish the office. But the At-
torney General is the officer to advise the civil officers, and when
questions come before the Supreme Court, that court is then un-
trammeled. The gentleman says that this provision is found in
many constitutions. I grant it may be found in a very few, and I
think I can safely say that there is not a state in the Union where
that provision prevails but not only the Supreme Court but every
other person who has an intimate knowledge of the workings of
that provision would wish it were not there.
Mr. LOHNES. I don't agree with the gentleman from Rich-
land. Take in Massachusetts-the Supreme Court there have
always given their opinions to the Governor and the Legislature,
although lately they refused to do so. Then follows the State of
Maine. They made a legislative enactment to get a provision of
this sort into their Constitution, and it saves a great deal of ex-
pense to the State. No one can object to this but the lawyers, be-
cause it will prevent their bringing suits in so many cases.
Mr. PARSONS of Morton. I think that there is a mistake on
the part of some of the gentlemen. If you notice the section
reads:
The Judges of the Supreme Court shall give their opinion upon important
questions of law and upon solemn occasions, when required by the Governor,
the Senate or the House of Representatives; and all such opinions shall be
published in connection with the reported decisions of said Court.
The entire language of the section seems to be one of solemnity,
and it does not carry the idea that any little question that may
arise will justify a person in running off to the Supreme Court
232
DEBATES OF THE CONVENTION.
and demand a decision, but it must be demanded by the Senate
or the House or the Governor, and an important case at that. Here
is the Attorney General-a man to whom every officer in the State
goes. He is busy. It very frequently happens that the Attorney
General is in with the administration, his eyesight may be colored,
prejudiced, and occasionally in rare cases it would be desirable
that the Governor or the Legislature could go to the Judges of
the Supreme Court. The understanding is that it should be used
in rare cases, but I believe that the people should have the privi-
lege of going to the highest tribunal without first passing a law
and bringing that law before them. They should be able to go to
them and find out if the law is constitutional, and give the judges
time to look it up. This amendment does not pre-suppose that the
judges will decide in five minutes. It seems to me to be a wise
provision for the benefit of the members of the Legislature who
have not the advantage of a thorough legal education.
Mr. CARLAND. In 1885 the State of Colorado amended her
Constitution so as to put a provision of this kind in it, and I am
sorry I have not the Reporter here, but there has just been issued
in the Pacific Reporter, a series of publications published in St.
Paul, a statement, and counted up about seventy-five acts of the
Legislature of the State of Colorado that had been presented to
the Court the last winter, and in some of them the Supreme Court
showed the absolute uselessness of any such provision. They say—
"You ask us to pass on these laws without any, argument, on our own
research." Sometimes they refused to do it and in some cases
where they thought it was a clear proposition they answered it. It
is an injustice that a man's rights may be determined in advance
at an ex parte hearing, and the argument that they will not be
asked except on solemn occasions for their opinions has nothing
to it, for the Legislature is the judge as to whether it is a solemn
occasion or not. The value of the Supreme Court as I understand
it, depends on two things-first the ability of the judge or judges.
that compose the Court, and second the ability with which the
case is argued. The opinion of the judge is not worth more than
that of any other lawyer of like standing and ability. His opinion
as a judge after he has heard the case argued on both sides, and
had a chance to examine it is what gives force to the opinion. I
sincerely hope that no such provision will be engrafted into the
Constitution requiring the Supreme Court to perform anything
but judicial duties. Section twelve was drawn to prevent this
DEBATES OF THE CONVENTION.
233
thing, for no man desires to have his rights decided in advance by
an ex parte opinion of the Supreme Court, however learned and
respectable, without argument.
Mr. STEVENS. In furtherance of the argument I would state
that a number of states have within a few years passed laws pro-
viding that a case shall not be determined by the court except it
is in shape where one of the parties can appeal it. This amend-
ment would practically cut off the right of appeal. It allows the
Supreme Court to pass on a question and settle it, and cut off
your right to carry it to the Supreme Court of the United States
where it might have been reversed.
Mr. WILLIAMS. The point I desire to make is that we desire
to have no unconstitutional laws go on our statute books. The
farmers will meet in a convention a convention representing
thousands of farmers and agree on a measure which they desire
to have become a law. They have able lawyers draft the law,
they send it to the Legislature, and a small minority says it is un-
constitutional. They ask the opinion of the Attorney General-
that is the opinion of one individual. It is no satisfaction at all,
and they are forced to recede from their position rather than pass
a law which they are led to believe was unconstitutional, be-
cause a few lawyers may tell them it is so. I can see no harm—
where there is an important measure affecting the whole people
of the Territory, for instance affecting the taxation of railroads,
corporations-a law that affects the whole people-I can see no
reason why the Legislative Assembly should not know in advance
as to whether it is constitutional before they pass it and place it
in on the statute books. To wait two or three years to find out
that the law is unconstitutional is not wise. I tell you the Su-
preme Court has power enough. I think we should reserve some
power to the people, and this is one way to reserve it. If this
amendment is adopted the Legislative Assembly will have power
to find out in advance whether an important measure will be con-
stitutional if it is placed on the statute books, and not be com-
pelled to wait after passing it, and then let three men sit up and
say it is unconstitutional, notwithstanding a body of 125 or 150
men have said it was constitutional. The Supreme Court has
power to say it is unconstitutional simply because this Constitu-
tion gives them this power. Why should not they say this in ad-
vance? So far as I am concerned I believe that when a measure
passes both houses-passes the judicial branch, they come about
234
DEBATES OF THE CONVENTION.
1
as near getting what is constitutional as the Supreme Court. I
believe, Mr. CHAIRMAN, that it should go into our Constitution.
The motion to strike out the section was lost.
Mr. PARSONS of Morton. I move that we adopt this section
nineteen.
The section was adopted by a vote of 33 to 25.
Mr. BARTLETT of Griggs. It seems to me that it is a neces-
sity for us to reconsider section twelve, therefore I move that sec-
tion twelve be reconsidered.
Mr. CARLAND. As neither one of these sections has been
adopted by the Convention yet, I don't see the necessity of recon-
sidering number twelve.
Mr. FLEMINGTON. We have a Committee on Revision and
Adjustment which will examine into this matter and if there is a
conflict between the two sections they will probably report it back
to the House on the final adoption of the Constitution. I don't
think we should consider this section at this time.
DISTRICT COURT JURISDICTION.
Section seventeen was then read as follows:
The District Court shall have original jurisdiction, except as otherwise
provided in this Constitution, of all causes both at law and in equity, and such
appelate jurisdiction as may be conferred by law. They and the judges thereof
shall also have jurisdiction and power to issue writs of habeas corpus, man-
damus, quo warranto, certiorari, injunction and other original and remedial
writs, with authority to hear and determine the same.
Mr. BARTLETT of Griggs. I offer an amendment. After
the word "jurisdiction" in the first line insert "each within its ter-
ritorial limits," the object being to limit the jurisdiction of the
District Court to its district.
The amendment was seconded.
Mr. BARTLETT of Griggs. I desire to say in support of this
motion that I believe that no District Court Judge or District
Court should have jurisdiction outside the limits of the territory
of the court, unless in the absence or inability of the District
Judge. That should be provided for, but if we have it as in the
past so that an attorney can sit in Fargo and sue a man in any
part of this Territory, then we want but one district, and let them
sit in Fargo all the time. Last fall there were over forty accounts
brought by one attorney in Fargo-brought against parties living
in Griggs county. There is but little encouragement for attor-
DEBATES OF THE CONVENTION.
235
neys or courts to exist in these outlying counties if the
work is to be done in this way. They will say that this can
be prevented by the Legislature. But we can do it here, and it
seems to me that here is the place to do it. We have had an ex-
ample of a mortgage being foreclosed in Cass county when the
land was in Dickey or some other county outside of the district,
and the Supreme Court has held that that was proper. If it is,
then we want a provision here which shall say that it is not proper,
and that a man can be sued only in his own bailiwick.
Mr. PURCELL. The statement that the gentleman makes
with reference to a man sitting in Fargo and suing a man in
Griggs county is in conflict with our statute. The gentleman well
knows, or should know, that no man can be required to go outside
of his county in answer to a summons, but if he is sued outside
his county and the venue is laid outside, he can give notice of a
change of venue and the court will grant it on his showing that
it is brought in a county other than the one in which he lives.
That objection of the gentleman goes for nothing, for our law
provides and says that every man is entitled to have the trial in
his own county.
Mr. BARTLETT of Griggs. I was not ignorant of the provis-
ion on our statute books, but we should not compel a man to go to
the expense of asking for a change of venue. Why were the men
of whom I have spoken sued in Fargo? Simply because the
plaintiff wanted the defendants to compromise the suits. There
were sixty of them, and they went to the attorneys and found that
the attorneys would charge them from $5 to $10 apiece to get the
change. This was a small matter-some of the notes were only
for $5 or $10 each, and a compromise was effected. It was cheap-
er for the defendants in these cases to compromise than to go to
the expense of getting a change of venue. No man should be
compelled or obliged to pay an attorney $1 or 1 cent in order to
have the right or privilege of being sued in his own county.
Mr. PURCELL. There are various cases where it is better to
bring suits in a county outside of the district. Then if the de-
fendant desires to have the case tried in his own county, he can
make a motion to the judge and the request will be granted. Our
present law provides for it, and we might just as well make a pro-
vision that these suits shall not be brought as to attempt to limit
this power.
Mr. LAUDER. I agree with the gentleman from Griggs
236
DEBATES OF THE CONVENTION.
county. I have had a little experience like my friend on this
point. I have seen more than twenty-five persons residing in
Richland county sued in Yankton, on notes averaging from $5 to
$25-none of them larger. These men had the right to be sued
and make their defense in their own county. What was the re-
sult? It would cost as much to hire an attorney to get a change
of venue for these cases as it would to pay the debt in the first
instance, and because of that, defendants are compelled and do
pay unjust claims rather than incur the expense of fighting them
in the courts. There were twenty-five cases brought for the insur-
ance company down there in Yankton, and there was not a single
one but had a defense, and not one of them felt that it would be
to his financial interest to employ a lawyer to get a change and
fight the case.
Mr. PURCELL. It seems to me that our statute contains a
provision that suits brought on insurance notes shall be brought
in the district in which the maker of the note resides. I don't
know of any such suits as the gentleman speaks of. Even if they
were pending and if they had a defense to make to the collection
of those notes or the success of those suits, they would have to
employ an attorney. I don't know of any attorney who will
charge any more for asking for a change of venue if he is em-
ployed in the case. If he goes to the attorney and tells him that
he wants the case tried in his own county, he will not charge any
more for writing out the notice for a change of venue. He is
not required to go to Yankton or to Fargo. There is nothing in
it so far as I can see that should prohibit the passing of this sec-
tion, for every objection that they have stated here is covered by
the statute. So far as insurance cases are concerned, they must
be brought in the county where the maker of the note resides. If
it were otherwise it would cost no more to have the attorney ask
for a change of venue than if he did not have it to do.
Mr. LAUDER. I am not ignorant of the existence of the
statute referred to. I simply stated the case of these insurance
notes as an illustration. There are a good many other notes, and
I think that the statute requiring action on insurance notes to be
brought in the county in which the defendant resides, is the only
statute of that character. I know not what the gentleman's
practice may be, but I know as for myself that I ordinarily do
not prepare a notice or a demand on the opposite attorney, and he
refusing that, give him notice that I will appear before the court
DEBATES OF THE CONVENTION.
237
and ask for an order, and go myself to the court or employ some
one else to go for me--I don't do this for nothing. Neither do I
believe that my friend from Richland does it for nothing. I don't
believe that it is the practice for lawyers to do all this for noth-
ing, and every dollar a person pays out for this kind of thing is a
dollar that he should not be compelled to pay out.
Mr. SELBY. It strikes me that we have somewhat left the line
on which the section belongs. It is not a question of changing a
place of trial from one county to another, but a question of dis-
tricts. It is a question whether in the district of Fargo, a resident
of that district shall be dragged into the District Court at Grand
Forks. The simple idea of changing the venue from one county
to another is not contemplated by the amendment or the section.
Griggs county would stand in the district of Jamestown. The
proposition is that a man shall not be taken from Griggs county
into Fargo, which is out of his district. The Legislature can
provide the methods as to changing the place of trial from one
county to another if it is necessary. Under the statute as we have
it, if an individual or resident of Griggs county happens to be in
Fargo and a summons is served on him there, they try him there,
and not in the county where he lives, unless he has witnesses or
can give some other reason for a change of venue. If he i served
in the county where he lives he is tried there.
that the amendment would be proper-that is, providing that
every man residing within a district shall, if he is a defendant, be
tried in that district and not drawn off somewhere else. He should
not be taken to Bismarck or Fargo or Grank Forks, but should be
tried in his own district.
;
It seems to me
Mr. STEVENS. In conversation with Judge Levisee in com-
pany with the gentleman from Griggs, he told us about a gentle-
man who had a suit brought against him in Fargo some hundred
miles from where he lived, and because of that he lost his land.
The amendment of Mr. BARTLETT was put to a vote and carried.
Mr. MOER. I would like to inquire whether the amendment
has placed the section so that the judges have no power to execute
writs of habaes corpus or remedial writs outside their own districts.
Do they want it so that a man cannot procure a writ from another
judge because of the illness of one judge or for any other cause?
It seems to me that we are going a little too fast.
238
DEBATES OF THE CONVENTION.
COUNTY COURTS.
Mr. PURCELL moved the adoption of section twenty-four of
the majority report which reads as follows:
"There shall be established in each county a Probate Court, which shall be
a Court of Record, open at all times and holden by one judge, elected by the
electors of the county, and whose term of office shall be two years.
Mr. MOER. I move the adoption of section twenty-four as re-
ported by the minority committee as follows:
There shall be elected in each organized county a county judge, who shall
be judge of the county court of aid county, whose term of office shall be two
years until otherwise provided by law.
Mr. ROLFE. I am in favor of section twenty-four in the mi-
nority report for various reasons. Section twenty-four of the
majority report relates to probate courts. I undertake to say that
it will be difficult for any member of the majority of the Judi-
ciary Committee to defend the general system of probate courts
as it is now administered in this Territory, and as it is adminis-
tered in many other states which have no provision for county
courts. I don't believe that any member of that committee, or
any member of this Convention relishes the prospect of having
the probate court as it is now constituted and administered pass
on the questions that may arise on his death in the administration
of his estate, be it large or small. I take it that the aim and ob-
ject of most of us is to accumulate some small modicum of this
world's goods to enjoy in the present, and to leave to our poster-
ity and our family, and that the administration upon our estates
should be in the hands of such an incompetent court as the pro-
bate court of this territory and in other states, is a shame to our
judiciary system. As at present administered the officer who
sits in adjudication upon some of the most intricate questions
that arise in the practice of law, is not only unlearned in the law,
but in common practice ignorant of the law. I don't know of
any cases which can arise which will bring to the notice of the
presiding judge of the district court any more complicated, or in-
tricate, or important, or vital questions than those that arise before
the generally incompetent men who sit as presiding judges over
our probate courts, and I repeat the statement, that the system of
probate courts as we now have it, and as we seem to like it, is a
disgrace, not only to our judicial system but to the people who
seem to hug it to their bosom. I believe that we honestly think
this-every one of us.
DEBATES OF THE CONVENTION.
239
I charge no judge of the probate court who now sits in adjudi-
cation on probate matters with intentionally sitting there to frus-
trate law, justice and equity, but from his previous training and
from the nature of the case, and from the fact that any one is
permitted to occupy that position, the result is inevitable that
more injustice prevails in the administration of estates in the
probate court than any matters of any other court, save that of
the justice of the peace. The majority report proposes to con-
tinue this system. It is mysterious to me upon what ground they
can defend the continuation of this system. There may be judges
of probate in this Convention, and I wish to cast no reflection on
them personally by attacking the system. I take it that there is
a disposition on the part of this Convention to continue this out-
rage on justice and equity. We are supposed to be here under-
taking to form a judicial system which shall not only be conven-
ient for the lawyers, which shall not only provide a lucrative
income for the lawyers, but I believe that we are more bound to
arrange it so that the system which we establish shall result in
substantial justice to litigants, to all widows and orphans, to all
persons under guardianship-those persons who are least able to
protect themselves-those persons whose interests we should pro-
tect first, last and all the time. We know that the system of
probate courts now established, and which the majority report
seeks to have enforced will never do this. It cannot from the
very facts of the qualities of the man who will inevitably preside
over these probate courts. The minority report proposes to sub-
stitute for the probate court judge a man learned in the law-a
man who from his education, his tastes, his line of occupation and
his preferences is fitted to pass on the intricate questions that
arise in the probate courts. They propose to lift this court of
probate from that of the most poorly conducted court under our
system into that of a respectable court in which all litigants—in
which all widows and orphans, in which all persons under guar-
dianship may be assured of that their estates, both little and
great, shall not be squandered-shall not be improperly passed
upon.
I undertake to say that any lawyer, any average lawyer, is far
superior in a position of this kind to the average citizen for the
purpose for which we proprose to employ him. We are met with
the assertion that if this system of county courts is adopted it
will result in the elevation to the county bench of lawyers who
240
DEBATES OF THE CONVENTION.
are not fitted to act in a judicial capacity, and the objection is true
in some few cases, considering the state of affairs that prevail at
present. But we should remember that we are not making a Con-
stitution for to-day simply, nor for tomorrow, but for all time,
and if we do not now institute proper reform in the matter of
probate courts and practice, we cannot do it at all. It is for this
reason that I am specially in favor of the minority report. But
there are other reasons that appeal with nearly as much force to
me, and I think must to the vast majority of the members of this
Convention in favor of the county court system. I undertake to
say that it is a cheap system of litigation. It would save money
to the litigants, and as it looks to me it would be nearly if not
quite self-supporting now, and eventually so in all the counties.
It would save the salaries that we now pay to the judges of pro-
bate, and if the fees that would be paid by litigants in civil cases
tried before this county judge are turned into the county treasury,
they will nearly now, and eventually quite, make the court self-
supporting. I take it also that the county court as contemplated
by this minority report might be considered a court of the com-
mon people. In talking with some of the lawyers in regard to it,
those who were opposed to the system might raise the objection
that it would reduce their fees, and they say that under the county
court system they will not be able to charge the same fees as in
the district court. Why? Then they say that these courts will
lower the dignity of the practice of law. They say that the
county court would degenerate into a court on the same plane as
the justice court, and the lawyers practicing therein would become
a lot of pettifoggers. If this is an objection at all, it is an objec-
tion which should result in the establishment of county courts. I
am a practicing lawyer myself, but I do not fear that the estab-
lishment of county courts would result in the reduction of law-
yers fees, but if it did, then it might be considered a favorable
step in the behalf of the common people.
There is another reason why I favor county courts. If given
jurisdiction in criminal cases to any considerable extent, it would
do away with a vast amount of expense, delay, and trouble in
passing upon certain offenses which might be considered by com-
parison, petty. I cannot illustrate this better than by citing a case
of injustice which arose in my own country. A man was arrested
on the charge of obtaining $10 under false pretences. Under our
code this offense was a felony-a case that could not be tried
•
DEBATES OF THE CONVENTION.
241
except on a presentment or indictment found by a grand jury.
The defendant had no defense. He would have been glad to have
entered a plea of guilty at once and receive sentence, but under
our law this was impossible. He must wait until the District
Court met in the county, the grand jury be summoned and the
case take its course. Thirteen months elapsed, and this defendant
was immured in a six by six steel cell waiting the action of the
grand jury. The question of expense to the county in such a case
is insignificant in comparison to the injustice to that defendant,
criminal though he was. The majority report would simply result
in reducing the time-the period of such injustices. The majority
report provides, if I am not mistaken, that the District Court shall
hold at least two terms a year in each organized county. In any
case then, provided the grand jury were summoned, a defendant
could not be immured for a longer time than six months before
his case would come before a grand jury. Nevertheless, if a de-
fendant were willing and anxious to be tried immediately, he
should have the privilege of a trial, have his case determined and
settled. Let his innocence be established or his guilt, and let him
then receive the punishment. If the county court were clothed
with the authority to try these cases, which we might consider
petty by comparison, county courts could at once determine such
a case, and the counties be relieved of great expense, and defen-
dants in criminal cases be accorded the rights which under the
Constitution they possess of having their cases tried and settled
without undue delay.
Mr. BARTLETT of Dickey. I did not expect to speak on this
subject, and I don't speak as a lawyer, but as a farmer and with
experience in this line of business. I will go into court as a cli-
ent-my case is simple, but I have employed a lawyer. Suit is
brought, court convenes after several months and the other side
want a continuance. It is granted-always. The next time court
comes around they furnish a witness that swears there is some
other important witness and they have got out a subpoena for
him, and due diligence has been used to find him, and they want
to put it off for another term. It is put over, and in eight or ten
months more court convenes again. Every time this is done your
lawyer gets $10 to agree to have it put over. Court con-
venes again, and there comes along another witness who swears
that they expect to prove by a certain witness certain things, and
it runs right along, and the result is that it will frequently run
16
242
DEBATES OF THE CONVENTION.
along this way when you have a good, first-class case, and you are
two, or three or four years collecting it. I have one individual case
that stayed in the court in Dickey county for three years right along,
and I was pushing it all the time, and the result was that when I
got that thing through, after lots of trouble, I paid my lawyer
$125 in cash, whereas there was only about $700 pending. If
there had been a county court there the matter would have been
settled and adjudicated upon, probably in one month. I hope.
that the farmers here and the men who are liable to be led into
just such performances as I have described, will put their seal on
the question to-night, so that they cannot be imposed upon any
longer. Suppose a man goes off with some stock that he has
given a chattel mortgage upon. You send and get that stock back
again by an officer, and before court convenes it is very common
for that stock to be absorbed its value-through the expense of
keeping it. If we had a court there with jurisdiction it would be
speedily settled. It might take some dignity away from the law-
yers, but I tell you I know from my experience that the county
court is what favors the poor man, and there is where my vote
will go.
Mr. MILLER. It seems that the gentlemen who have spoken
think that county courts would necessarily be a panacea for all
the ills they have individually suffered by reason of some im-
proper conduct in some court. I don't know what guarantee you
have that a circuit or county court would not continue a cause as
well as a District Court. If a judge is honest he will continue a
case on the proper showing being made, and if you suppose that
the judge of the county court will not continue the case when
proper showing is made, then you are presuming that he is showing
partialty. But I desire to refer particularly to the argument of
the gentleman from Benson. It seems to be his theory that it is
unsafe to trust the affairs of estates in the hands of the probate
judge, but if you put them into the hands of the county judge,
then your property will be taken care of. The judge of probate
is elected by the county at large, because the citizens think him
to be the most competent man for the place that they can select.
Have we any right to presume that the county judge, who is
elected within the same territorial limits will be any better man
than the judge of probate, or any safer to leave the estate with?
It is a question that rests with the electors of each county. The
same electors elect the one and the other, and whichever they
DEBATES OF THE CONVENTION.
243
elect he is expected to be possessed of the qualifications for the
place. But they claim this county judge will be a better man
and pay much better attention to the duties of the office than
the probate judge does. What are the facts? They desire to
give him civil jurisdiction to quite an amount; also criminal juris-
diction of what the gentleman from Benson calls petty offenses,
and then he cites a case of felony, and then the surrogate court
with jurisdiction of civil cases, criminal jurisdiction which must
absorb a large part of his time and attention, and he is going to
be better qualified to take care of estates of decedents. In some
counties the probate judge is occupied every day in the 365 that
it is possible for him to sit in a court, in conducting probate busi-
ness of his county alone. He requires not only his own but the
assistance of a competent clerk in order that he may keep up with
business. Make a county court in his office, and have him an-
noyed all the time with civil and criminal cases, and every estate
in such a county as Cass brought to him for administration would
be sadly neglected, or else the civil and criminal business would
be neglected.
It is the experience of the older states where probate law is the
best managed, and where estates are the best managed, that it
must be done through a good probate judge, who has the juris-
diction of nothing but the estates of decedents; makes them his
special business, and if a competent man is elected, as is usually
the case, other politics are sometimes forgotten when they think
that they are electing a man who may have to take care of their
estates. He is usually a competent man, because he gives his ex-
clusive time and attention to it, and is not bothered with any of
this other work. In most counties of this Territory the probate
court will, in the near future, as the counties get settled up,
have to give a large portion of its time to probate business alone.
The gentleman claims that he desires a surrogate court because it
will lessen the expense of litigation and that it will tend to lessen
the fees of the attorneys. There is no greater absurdity than this.
A surrogate or county court will increase the expenses of liti-
gants beyond all account-beyond any comprehension of the gen-
tleman who has not passed through that sort of business. An
attorney will charge just about the same in all probability for
going into the county court as for going into the district court,
to try the same case. His case is begun, and one man or the
other generally gets beaten. The fellow that is beaten is just as
244
DEBATES OF THE CONVENTION.
sure nine cases out of ten to appeal that case to the district
court, and have it retired, as he is to live, for it is right there in
his own county, and he thinks he will take another chance. How
many civil cases, even of the importance that go into the justice
court, go up to the district court. The same thing will be true to
a greater extent when you get into the county court where the
jurisdiction is increased, and the amount involved is greater. So
that in your county court you pay your attorney for the trial of
the case in the county court, and in the district court, and your
county court is but another step to get into the district court.
You go through the county court instead of serving a summons
and going direct into the district court.
The gentleman from Benson cites the case of a man who was
compelled to lie thirteen months in jail awaiting the judge before
he could be tried. That was undoubtedly when two judges under-
took to do the business of the Territory and North Dakota. This
applies no longer, for we are to have districts so arranged that
the judges can hold court twice a year, and that trouble is obvia-
ted. I can see nothing but objection to the county court system.
There will be nothing but added expense, added annoyance, and
no return whatever to the litigant, the people or the attorney. It
is true that if we were to have only two judges in North Dakota
it might be desirable to have a county court, so that business.
might be done more frequently, but with six judges they will be
able to do all the business, and have terms of court as often as
will be necessary.
Mr. PARSONS of Morton. I wish to state a little of my ex-
perience in regard to county courts. The little State of West
Virginia, in which my folks dwell, has more litigation in propor-
tion to its inhabitants than any other state in the Union, but we
adopted a system of county courts which was somewhat different
from the one now under discussion, but it answered the same pur-
pose. The argument has been advanced that it deteriorates and
drags down the profession of the law. I have seen cases in that
court in which the best lawyers of the state were engaged. It
does not surprise me to hear the remarks of the gentleman from
Cass. If all the counties in North Dakota were like Cass it would
be different. We are differently situated than other parts of the
We found down in West Virginia, instead of dragging
the profession down it brought up the standard of the justice of
the peace from being a byword and a matter to be scoffed at, until
DEBATES OF THE CONVENTION.
245
honorable men -men that were competent to take the places—
were elected. If we would add to the dignity of the probate court
there would be an added quality to those who held the office. It
seems to me that there is no one measure that has been
tried in these United States as thoroughly as
thoroughly as this, and
it seems to me that we should adopt it for the purpose of get-
ting some means of speedy justice at hand. If it were possible
to pass such a measure here I would urge a measure that would
make the jurisdiction of the county court $50,000 instead of one,
give it criminal jurisdiction in most cases, and give it sufficient
power to take in nearly all the cases we have. As a matter of
fact where the county court system has been tried very few cases
have been appealed. In West Virginia the president of the court
is ex-officio chairman of the board of county commissioners.
The added dignity gives us a court that is reliable, and it is not
limited to a man who is learned in law. On the contrary I could
refer you to Judge Hagan and Dr. Moore who have occupied the
place, and nobody has ever given a better administration of justice
than they have. One is a farmer and the other a doctor. Perhaps
at the first session of the court there were some mistakes made,
but their administrations were satifactory to the people, and fav-
ored by the people. If you could give us the county court the
District Court would have far less to do as well as the Supreme
Court. In nine cases out of ten the cases would stop at the
county court.
The committee then rose.
Mr. LAUDER. I move to adjourn.
The motion prevailed, and the Convention adjourned.
246
DEBATES OF THE CONVENTION.
TWENTY-NINTH DAY.
BISMARCK, Thursday, August 1, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. ALLIN moved the following resolution:
Resolved, That all clerks of committees now in the employ of the Conven-
tion be and the same are discharged from and after this date, August ist, 1889.
Mr. MATHEWS. I don't think it would be well for this reso-
lution to pass. There is the Apportionment Committee, for ex-
ample, which has done no work yet, and it will be necessary for it
to have a clerk.
Mr. LAUDER. I hope this resolution will not prevail. It will
be all very well for the committees that have finished their work
to discharge their clerks, but as the Convention well knows there
are some committees who cannot finish their labors-in fact can
do very little of their work till the Convention has acted on the
reports of other committees. I have not yet been able to get a
meeting of the Committee on Schedule. I have prepared a number
of sections, but the work of that committee is yet to be done, and
it cannot be done till these other reports have been acted upon,
and we know what there is to come into the Schedule. To do our
work will require the services of a clerk.
Mr. PURCELL. I move that the resolution be amended by
applying only to those committees which have finished their labors.
Mr. BARTLETT of Griggs. There is the Judiciary Commit-
tee which has handed in its report to the convention, but since
that it has had other resolutions and matters referred to it.
The original resolution as amended by Mr. PURCELL was
carried.
A QUESTION OF PRINTING.
The report of the Committee on Printing was read as follows:
MR. PRESIDENT: Your Committee on Printing to whom was referred the
resolution introduced by Mr. PARSONS of Rolette, respectfully recommended
DEBATES OF THE CONVENTION.
247
that the same be adopted, and that each newspaper in North Dakota receive
$25 each for such services, and recommend that provision be made in the
Schedule for the payment of the same by the Legislature.
ROGER ALLEN,
Chairman.
The adoption of the report was moved by Mr. ROBERTSON and
seconded by Mr. ROLFE.
Mr. NOBLE. I understand that the report provides that each
newspaper shall get $25 for publishing the Constitution. It
seems to me that if it provides that, it should be printed, read a
second and a third time.
Mr. SCOTT.
not wise for this Con-
The better
The better way in my
It seems to me that it is
vention to pass such a resolution as this.
judgment would be for this Convention to take steps to secure the
printing of 100,000 or 200,000 copies, whatever may be determined
on as necessary, and let those be sent to the delegates or to the
county auditors or to the chairmen of the boards of county com-
missioners in the different counties. They could be very well dis-
tributed in that way. They will thus reach more people than if
the Constitution is printed in every paper in the State, and the
cost will not be one-fifth as much as it would be under this resolu-
tion. If my suggestion is followed the Constitution will be in
pamphlet shape and can be preserved, whereas it won't be if it is
printed in every newspaper in North Dakota. I am opposed to
the resolution.
Mr. MILLER. I would like to inquire how many newspapers
there are in North Dakota.
Mr. PARSONS of Rolette. There are about 150.
Mr. MILLER. I am opposed to the resolution. I think it
amounts to saying that we will make a donation to each newspaper
of $25. If we put it in this shape, and the respective editors say
they need it, I would vote for the resolution, but for the matter of
printing the Constitution I don't think we should do it. There is
not a newspaper that will not print all that Constitution for the
benefit of its readers. It is being printed every day, and if this
report of the committee is adopted we shall be making an invest-
ment of $4,000 to have this document printed in the respective
newspapers, more than two-thirds of which would be useless. I
have papers in my mind that have not a circulation of more than
100, and to pay them $25 for printing the Constitution would be.
throwing the money away. It seems to me that the gentleman.
248
DEBATES OF THE CONVENTION.
from Barnes is correct. If we are to print this Constitution let us
print it in pamphlet form.
Mr. ROBERTSON. I would ask that for the purpose of secur-
ing a full presentation of this matter, the gentlemen be requested
to state what the cost would be to print the Constitution in
pamphlet form as he recommends, that we may consider the cost
of the one method and the other.
Mr. SCOTT. I don't know what it would cost, but if this Conven-
tion wish to give me $4,000 I will print all they want in pamphlet
form, bound in morocco.
Mr. NOBLE. I wish to make an amendment to the proposition.
$25 is too much for each paper in the territory, for the simple reason
that they get a supplement from the Pioneer Press or some other
paper, and the cost of them will be about eight cents a quire. I
think that $5 would be.the greatest plenty and leave a little to
spare for the newspapers. I will move as an amendment that the
figures $25 be stricken out and $5 inserted.
Mr. PARSONS of Rolette. There won't be a newspaper in
North Dakota that will print it. The work cannot be done for
any such figures. The sum of $25 is about half what was pro-
posed to me by the newspaper men— a few that were here. The
matter cannot be set up for $25. The usual fee for printing
county commissioners' proceedings is 25 cents per folio. The
price suggested for printing this Constitution is very much less
than that. I differ with the gentleman who says that it can be
printed for $5 for each paper, and I am certain that it can be
printed by the newspapers at a very much less cost than by the
pamphlet plan. It cannot be printed in pamphlet form in suffi-
cient quantities for half that.
Mr. JOHNSON. Does the gentleman from Rolette imagine
that if this resolution passes, that every country newspaper like
his own is going to set up the type for this Constitution inde-
pendently? I do say this—that nearly all the papers in Dakota—
nearly all the country newspapers-have patent insides printed at
St. Paul or elsewhere. I know that these printers of patent insides
for the newspapers are now preparing to print the entire constitu-
tion immediately, just as soon as it is ready. I am myself in cor-
respondence with one of the largest manufacturing concerns in
those cities, for the purpose of furnishing them as promptly as pos-
sible a copy of a correct constitution. My idea is that whether this
resolution passes or not the Constitution will appear in the news-
DEBATES OF THE CONVENTION.
249
papers as interesting matter, as profitable matter for those news-
papers to put in, just the same whether we pay them for it or not.
I think that even the $5 would be a donation. They would publish
it anyhow.
Mr. PARSONS of Morton. I am informed that a hundred
thousand copies of this Constitution printed in pamphlet form would
cost about $2,000, and it seems to me, as we have forty or fifty thous-
and voters, we could supply each one with two copies apiece, by
having a hundred thousand printed, and this would be better than
the adoption of the resolution or report before the House.
Mr. PARSONS of Rolette. You want to figure the additional
cost of distributing them.
Mr. PARSONS of Morton. That would be a very small matter.
Every man here would be pleased to put them into the hands of
parties in his district who would distribute them. I never knew
of any literature of that kind that lacked distributors.
Mr. STEVENS. There has just been a resolution passed here
providing that a committee should be appointed for the purpose
of drafting a letter or memorial to the people showing the reasons
for the adoption of this Constitution. The object for introduc-
tion of that resolution was this-the Constitution will not in all
probability be read as a whole by one-half the people—probably
not more than one-third of them. A majority of them would
rather read a synopsis of the important features, and it should be
pointed out where it differs from the ordinary Constitution. At
the same time I had in view that there would be printed in pamphlet
form a sufficient number of the Constitutions that might be placed
in the hands of the county auditors of the various counties, so
that any person after having read a synoptical letter might go and
get a copy of the Constitution and look it over if he desires for
further information. That was the view that was taken when the
resolution was drawn to which I have referred, calling for a com-
mittee.
Mr. CLAPP. I am not so particular about the original resolu-
tion, but I hope the amendment will not pass. For us to say that
the newspapers of this State shall print the whole Constitution
for $5 is an insult to every one of them, and I hope the resolution
will be voted down.
Mr. ROBERTSON. I fully concur in the remarks of the gen-
tleman that has just spoken. I believe that we ought to publish
the Constitution through our newspapers, and I believe we should.
250
DEBATES OF THE CONVENTION.
not be niggardly in the matter. We ought to pay what it is worth
to set up that type. We ought to remember the fact that the servant
is worthy his hire, and we ought not to impose on our newspapers
or compel them to set that up for nothing simply because it is a
matter of interest to the public. If we choose the newspapers as
the medium for bringing this Constitution before the public, we
ought to pay them every cent it is worth.
Mr. NOBLE. The question before us here is whether this ex-
pense should be borne by the new State-whether $25 is not more,
in connection with the other necessary expenses, than the people
should bear in the formation of the new State. There is no ques-
tion but that the setting in type of such a Constitution as we will
have, would be worth more than $25 to each newspaper in the State
if they were to set it up themselves, in their offices; but I have
had enough experience in the newspaper business to know what it
costs to get a Constitution set up and printed. The patent inside
of a newspaper costs about eight cents a quire, and that is for
good sized papers. This Constitution will be distributed at the
same rate. $5 will leave $2.50 clear to the newspaper if my
amendment carries, in my opinion. If the newspapers were to
set it up it would be worth more than $25, and it would be more
of an insult than to give $5.
We
Mr. BARTLETT of Griggs. This Constitutional Convention
is in a peculiar position when it is dependent on the patent insides
of the newspapers to distribute their Constitution. Let us print
it in circular from, or take some method to have our papers print
it. If we print it in circular form it will cost more than if we pay
the papers $25 each to print it. The gentleman says that
100,000 would cost $2,000. We should need at least 500,000.
have a population of over 200,000. South Dakota provided for
500,000 copies of her Constitution in two languages-the Scandi-
navian and the English language. It seems to me to be absurd to
say that we shall only need 100,000 copies, when that is not as
much as our population. If we pay the newspapers for it, it is
easily circulated, and the money is distributed. We should not
then be giving any one printing institution $2,000 or $3,000 for
doing what should be more generally distributed.
Mr. ELLIOTT. The suggestion of the gentleman from Barnes
would give more than two to every voter. I think that that should
be sufficient, and there should be some left out of that for future
use. If we had this Constitution printed in the newspapers it would
DEBATES OF THE CONVENTION.
251
soon be out of print, and we would not be able to find a copy except
those that would be printed in the law books or the school books.
There are other people in the United States who are just as much
interested in this Constitution as some of us are, and they would like
to see what we have done here. If we fail to publish them in pamph-
let form we cannot furnish anyone on the outside with copies. Be-
fore this convention met I wrote to the Secretary of the State of
Kansas for a copy of the constitution of that state, but he could
not send me a copy because it had not been printed in pamphlet
form. I wrote to the Secretary of California, and got one back by
return mail. I think we should make some provision by which we
could circulate some outside the state for the benefit of people in
other states. They are interested in our work here, and they want
to see what kind of a production we are getting up.
Mr. MOER. This matter of the printing the Constitution is,
presumably, for the benefit of the people of the territory or state,
so that they may know what they are voting upon.
It strikes me
that a question of $2,000 or $3,000 or $4,000 cuts but little figure as
against the fact that the people must know what they are voting for
or against. I would be willing to favor the proposition that the
Constitution should not only be printed in the way recommended
by the committee, but I would also have it printed in as many diff-
erent languages as we have got people to vote on it. I believe that
the thing we want to do is to put it before the people, and it does.
not matter whether or not it costs $2,000 or $4,000. The gentleman
from Ransom county says that he has introduced a resolution for
the purpose of having a committee prepare reasons why the voters
should vote for the Constitution. It seems to me that the voters
will do their own reasoning if they have the Constitution before
them, and that they are fully as capable of deciding why they should
vote for it as we are. It may be that $25 is too high a figure to pay
the papers, but certainly $5 is too low. I therefore move as an
amendment that the figure be made $15.
Mr. FLEMINGTON moved as an amendment that the figures $10
be substituted.
The amendments and the motion to adopt the report of the
Committee on Printing were all lost.
THE SUPREME COURT JUDGES.
Mr. CARLAND. I move that the report of the Committee of
the Whole in regard to the session of yesterday afternoon be
252
DEBATES OF THE CONVENTION.
adopted with the exception of section nineteen, which reads as
follows:
"The Judges of the Supreme Court shall give their opinions upon any
question of law and upon solemn occasions when required by the Governor,
the Senate and the House of Reoresentatives, and all such opinions shall be
published in connection with the reported decisions of said court."
Mr. PURCELL. I also move to strike out of the report of
the committee the whole of section four:
"At least three terms of court of the Supreme Court shall be held each
year at the seat of government."
Mr. CARLAND. In support of the motion so far as section
nineteen is concerned, I desire at this time to again renew the
same objections that I urged in the Committee of the Whole to
the adoption of that section. I believe it to be pernicious and
unwise to have it in the Constitution, and in support of my view
I desire to read to the Convention the expressions of the Supreme
Court of Colorado in regard to a similar provision which they
have in their Constitution, and which was put in there by amend-
ment in 1885. There were numerous questions referred to the
Supreme Court, and they are included in this pamphlet. In
answer to the Senate resolution on the subject of Irrigation, the
court says:
"The resolution before us purports to have been framed under
the authority conferred by section two, article six of the Constitu-
tion, as amended in 1885. The amendment in question reads as
follows: "The Supreme Court shall give its opinion upon solemn
occasions, when required by the Governor, Senate or House of
Representatives; and all such opinions shall be published in
connection with the reported decisions of the court.' It is ob-
vious that this constitutional provision will become a medium of
great abuses unless its purpose be clearly apprehended, and its
spirit be strictly obeyed by both the General Assembly and the
court. In acting thereunder the peculiar functions devolved upon
each of the three departments into which the State government
is divided should always be kept in view. It could not have been
the intention to authorize an ex parte adjudication of individual
or corporate rights by means of a legislative or executive ques-
tion. Parties must still adjudicate their rights in the ordinary
and regular course of judicial proceeding. Nor could the pur-
pose have been to enact, in response to a legislative inquiry, a
wholesale exposition of all constitutional provisions relating to
:
DEBATES OF THE CONVENTION.
253
a given general subject, in anticipation of the possible introduc-
tion or passage of measures bearing upon particular branches of
such subject."
"The questions propounded by the resolution under considera-
tion call for a construction of sections five to eight, article sixteen
of the Constitution. These sections comprise all of that instru-
ment dealing with the subjects of water-rights-a subject second
to none in its importance and intricacy. Our answers to the
questions would necessarily affect vast property interests, and pro-
found questions of public policy. We are not apprised by the
resolution that the various matters mentioned are covered by any
act or acts pending before the General Assembly. There are now
in this and other courts of the State actions through which some
of these matters are in process of adjudication. To anticipate these
cases, and pass in this summary manner, upon the rights involved,
and no apparent rights or interests of private parties directly with-
out the parties before us, and without the aid of counsel, is some-
thing we should not be asked to do, except upon the greatest and
most urgent necessity. It is not improper for us to further suggest
that a satisfactory response to the resolution would require vast
research and extraordinary caution. In view of the fact that we
must act both as court and counsel, and in view of the other
duties which we must necessarily perform, the period of time
provided for a legislative session would hardly be sufficient to
return safe and satisfactory answers to more than one such inquiry.
We shall always most cordially co-operate with both Houses of the
General Assembly in their work, so far as such co-operation may
be proper under the Constitution. But the foregoing, and other
considerations that will readily suggest themselves, constrain us
to respectfully request that your honorable body consider the
propriety of withdrawing the questions embodied in this resolu-
tion."
Mr. CARLAND. There was no opinion obtained, and there
was no human power that could compel the court to do anything
further than they did. In another case as regards Senate Resolu-
tion No. 65 the court says:
"The framers of our constitution specified the jurisdiction to be
exercised by the court. They declared that, with certain designated
exceptions, this jurisdiction should be purely appellate and super-
visory. A few writs and proceedings were named, in connection
with which the court was clothed with original jurisdiction. Sec-
254
DEBATES OF THE CONVENTION.
tion three, Art. six. The section mentioned has been construed by
this court as applying only to cases where questions publici juris are
raised, thus excluding from this branch of its jurisdiction all con-
troversies wherein private rights alone are involved. Wheeler vs.
Irrigation Co., 9 Colo. 249, 11 Pac. Rep. 103. The reasons for this
construction are obvious and potent. They are considered in the
opinion referred to, and will not be here re-stated. The provision
authorizing legislative and executive questions was not originally
a part of the constitution. It has been in effect less than three
years. It is an enlargement of the original jurisdiction of the court
conferred by said section 3 of the judiciary article. It adds to the
list of writs there specified an unique and important proceeding-
unique, because as we shall presently see, it is devoid of nearly all
the usual indicia of judicial proceedings; important because of its
consequences. All of the reasons relied upon for confining the writs
specified in section three of article six to questions publici juris
apply with even greater force to the novel proceeding authorized
by the provision before us; for while this provision is orig-
inal, and in that respect similar to the other original proceedings
referred to, yet it possesses characteristics peculiar to itself. Not
only should its operations be confined to questions publici juris
but as we shall endeavor to show, every question of this character
should rarely be thus presented or considered. It will be observed
that the authority conferred is accompanied by an express limita-
tion. While the question must be one relating to purely public
rights, it can only be propounded upon solemn occasions, and it
must possess a peculiar or inherent importance not belonging to
all questions of the kind. It is impossible to state any absolute
rule by which the sufficiency of this importance and the degree of
this solemnity can be determined. These are matters that rest
largely in the discretion of both the legislature and the court; for
while the legislature is first to judge of the relative importance and
solemnity justifying a given question, it has been held that the jus-
tices have also a voice in deciding whether jurisdiction should be en-
tertained. Opinion of Justices, 49 Mo. 216. The court will seldom
question the action of the legislature in this respect, but the right
so to do should not be denied. It is submitted, however, that for
reasons hereinafter stated, the greatest caution should be employed,
both by the legislature and court, in exercising the discretion just
mentioned. As already suggested, there are peculiar reasons for
excluding from the purview of the provision before us legislative
DEBATES OF THE CONVENTION.
255
and executive questions affecting private and corporate rights,
reasons not applicable in the exercise of the original jurisdiction
of the court in connection with the other original writs or proceed-
ings provided for.
"Only five states of the entire Union have ventured to adopt
and retain constitutional provisions in any way analagous to this
constitutional amendment. At one time there existed in Missouri
a provision somewhat similar, but the framers of the Missouri
Constitution of 1875, profitting, we suppose, by experience, ex-
cluded the same therefrom, and we are not aware that any effort
has since been made looking to its restoration. But Colorado
has gone further than the states referred to in this doubtful and
perilous experiment, by adding two peculiar features, one of
which at least seriously increases the danger. By the express
words of the corresponding provisions in each of the other states
the questions are limited to questions of law, and the justices, not
the court, are to respond. These officers appear to be merely
legal advisors, occupying much the same relations in this regard
to their respective General Assemblies as does the Attorney Gen- -
eral of Colorado to the State Legislature. Their written re-
sponses, when questioned, are not always published in the reports.
They are not pronounced by the court, and hence are not techni-
cally judicial decisions, nor do they necessarily constitute judicial
precedents. In this State, on the other hand, the interrogatories
are not expressly limited to the questions of law, and it is the
court, not the justices, that must answer. For obvious reasons,
we hold that the intent could not have been to authorize questions
of fact, but our responses must be reported as are other opinions,
and they have all the force and effect of judicial precedents.
"It is a principle declared by our Constitution, section twenty-
five, article two, and of universal recognition, that no person shall
be deprived of life, liberty or property without due process of
law. But there cannot be due process of law unless the party to
be affected has his day in court. Yet a careless construction and
application of this constitutional provision might lead to the ex
parte adjudication of private rights by means of a legislative or
executive question, without giving the party interested a day or
voice in court. When this tribunal exercises its original jurisdic-
tion by entertaining any of the other proceedings specified in the
Constitution, process must issue, the parties to be affected must
have notice, and they must be given an apportunity to appear and
256
DEBATES OF THE CONVENTION.
be heard, both in person and by counsel; so that even though the
primary and principal purpose of the proceeding be to adjudi-
cate a matter publici juris, yet there is a compliance with the
fundamental requirement relating to due process of law. This
consideration greatly reinforces the proposition that it could not
have been the purpose of those who framed the amendment to
permit such ex parte adjudications by means of executive or
legislative questions. We have no hesitancy in reaffirming what
we have already declared, that 'parties must still adjudicate their
rights in the ordinary and regular course of judicial proceedings.'
In Senate Resolution on Irrigation, 9 Colo. 621, ante. 470.
"Nor could it have been the intention of the authors of this
amendment to permit the presentation of questions relating to
the policy of proposed legislation. A proper regard for the con-
stitutional arrangement of the different departments of govern-
ment, and the constitutional powers and duties devolved upon
each department forbids the conclusion that this court can have
anything to do with such matters. It is clearly not authorized to
give its advice upon any question of fact or of policy. It is the
peculiar and exclusive province of the Legislature, so far, at least,
as the judiciary is concerned, to judge of the necessity or desir-
ability from a political or economic standpoint of each and every
act proposed. The history of this constitutional amendment may
be consulted with advantage in the endeavor to discover its pur-
pose. The successive Legislatures meeting after the admission of
Colorado to statehood encountered great difficulty in the enact-
ment of laws, on account of numerous wise, but troublesome,, limi-
tations contained in the Constitution. Perplexity and confusion.
arose in consequence of legislation which this court was ulti-
mately compelled to hold invalid. It was deemed expedient that
each house should have the privilege of submitting questions so
that the injurious consequences arising from constitutional legis-
lation might be avoided, by having the validity of proposed legis-
lative acts thus determined in advance. Corroborating the con-
clusion that the foregoing was the primary and principal purpose
of the amendment, we have the contemporaneous construction of
the Legislature. All the questions propounded by the General
Assembly of 1887, which was the first to meet after the adoption
of the amendment in question, rested upon legislative doubts as to
the constitutionality of certain proposed acts or parts of acts.
This consideration is peculiarly significant, because it tends
DEBATES OF THE CONVENTION.
257
strongly to show the view entertained by the legislative represen-
tatives of the people chosen at the same election at which the
amendment itself was adopted. It must be presumed that these
representatives comprehended, and by their action expressed, the
understanding of the people in relation thereto.
"Upon mature investigation and reflection, we are of the opinion
that executive questions must be exclusively public juris, and
that legislative questions must be connected with pending legis-
lation, and relate either to the constitutionality thereof, or to
matters connected therewith of purely public right. We believe
that the accuracy as well as the wisdom of this interpretation will
commend themselves alike to the legislative judgment and the
legal mind. But even with this construction there is danger of
grave abuses. Efforts will still be made by private parties to an-
ticipate judicial rulings in the ordinary course of litigation, by
inducing the submission and decision of questions ostensibly
publici juris. We feel constrained to repeat and emphasize the
thought heretofore expressed that the utmost vigilance and caution.
be exercised by both the General Assembly and the court in acting
under this novel constitutional authority. There cannot well be
too much moderation in the premises. We note that in those
states which permit consultation with the justices, the privilege
seems to be less often invoked than it has been here. The Attorney
General is the natural, as well as the statutory, legal advisor of
the Executive and Legislative Departments. His counsel should
be solicited, and only as a dernier resort, upon the most important
questions and the most solemn occasions, should the court be
requested to act.
"It must always be remembered that we are compelled to dis-
charge the duties of both court and counsel; that the exigincies
which of necessity require speedy answers, render it impossible
to bestow upon these questions the research and deliberation
usually given to judicial proceedings by courts of last resort; and
that for these reasons our embarrassment is seriously enhanced,
while the possibility of erroneous decisions is, of course, aug-
mented. Although no questions be propounded or answered save
those which relate to the constitutionality of legislation, or to
other matters purely and exclusively publici juris, and although
there be no causes pending in the courts that are directly affected,
and no apparent rights or interests of private parties directly in-
volved, yet it is obvious that a false interpretation by us of a con-
17
258
DEBATES OF THE CONVENTION.
stitutional provision, or a mistaken opinion upon a question purely
publici juris, may indirectly lead to the most grievous conse-
quences.
"The question presented in this case suggests, neither through
the preamble nor the resolution, any matter of constitutional diffi-
culty; nor is it such a matter otherwise publici juris as would war-
rant our entertaining jurisdiction upon that ground. It does not
even, so far as we can perceive, relate to the action of either branch
of the General Assembly upon the bill mentioned. We are asked
to construe the future effect of the proposed bill in its application
to the fees of certain public officers. The matters specified are
proper subjects for judicial action, and will doubtless be litigated
through judicial proceedings. The court has always conscien-
tiously endeavored to observe the requirements of all constitu-
tional provisions, including the one now under consideration and
it will in the future, as in the past, ever take pleasure in rendering
such assistance to the Executive and to each House of the Legis-
lature as shall be consistent with its position as a separate and in-
dependent branch of the government, and also in harmony with
what is deemed a sound exposition of the Constitution. But in
view of the foregoing considerations, were the General Assembly
still in session, we would respectfully ask that the question be re-
called."
Mr. CARLAND continued: Without taking up the time of
this Convention any longer, I would say that I am satisfied that a
constitutional provision of this kind is open to grave abuses, and
I would ask that it be stricken from the report of the Committee
of the Whole.
Mr. PURCELL. I move that the report of the Committee of
the Whole be adopted by sections.
Mr. STEVENS. Does the adoption of this report adopt the
sections?
The CHAIRMAN. No, sir.
Mr. NOBLE. Then if the motion prevails, what is to be done
with the report of the Committee of the Whole prior to the re-
port of the Judiciary?
WHERE TO HOLD COURT.
Mr. PURCELL. My objection is to section four which reads.
as follows: "At least three terms of the Supreme Court shall be
held each year at the seat of government." I hope that the re-
port of the Committee of the Whole with reference to that par-
DEBATES OF THE CONVENTION.
259
•
ticular section will not be adopted. In our territorial form of
government the Supreme Court held three terms a year at three
different cities, and in conversation with many of the attorneys in
those cities they one and all agree that it was a most excellent
thing, and they cited this as an illustration of the benefits that
were derived from the Supreme Court coming into their localities.
In many instances poor people are litigants-people who have
cases against corporations for injuries, and many of these cases
are taken by attorneys contingently, their fee depending on recov-
ery of damages in the case. When recovery is had, if an appeal
is taken to the Supreme Court, the plaintiff or the poor man, may
not be sufficiently able to follow that court to its location if per-
manently located at some far off point, but if that court in its
movements will come within a reasonable distance of his district,
his attorney can go there and argue it and have it disposed of at
a less expense than if he had to pack up his papers and travel to
the seat of government. There is nothing degrading in the
Supreme Court holding its terms in different cities. It is done in
Iowa. They have done that way for a number of years, and the
same thing is done in a number of the states of the Union, and
all who have tried it agree that it is beneficial to the people who
are unable in many instances to follow their cases from the Dis-
trict Court to the Supreme Court, but who can do so if the court
comes within easy reach of them. As I said yesterday a major
part of the business of the Supreme Court in North Dakota comes
from the Red River Valley, and the tendency is for litigation to
come this way. If the Supreme Court can hold a term at Bis-
marck, one at Fargo and one at Grand Forks, the different litigants
living in these localities can have their matters heard at less ex-
pense than if they are required to go to Bismarck. No one can
be injured. There is no additional expense to the State, for if the
Supreme Court Judges get mileage the presumption is fair that
two of them will reside in the eastern part of the State and that
mileage will amount to more to go to Bismarck than that of the
Bismarck judge to go east. It seems to me that for all these rea-
sons this section should not be passed as it is, but an amendment
should be made so that one term will be held at Bismarck, one at
Fargo and one at Grand Forks.
Mr. MILLER. Do I understand that you offer that amend-
ment?
Mr. PURCELL. I offer that amendment.
260
DEBATES OF THE CONVENTION.
The amendment was seconded by Mr. MILLER.
Mr. SCOTT. It seems to me that the section as adopted by the
Committee of the Whole is as it should be. The gentleman from
Richland refers to the fact that now, while we are a territory, we
have a migratory Supreme Court, and that it proved satisfactory.
But I venture to say that there are not four states in the Union
that have a Supreme Court of that character. It is something
unusual—almost unheard of except in the territories. Now we
have a Capitol-a seat of government, and there are supposed to
be suitable rooms in the Capitol for the use of the Supreme Court.
We are supposed to have, we should have, and we in all proba-
bility will have, a State Library for the use of the Supreme Court
and the general public. It will be necessary to have chambers at
the Capitol or the seat of government for the use of the court, and
as stated by a gentlemen yesterday, if the court meets at Fargo
and Grand Forks the first thing we shall be called on to do will be
to fit up chambers or some other place for holding the Supreme
Court in Fargo and Grand Forks as well. The gentleman also
refers to the fact that it is a very great convenience that the
Supreme Court should be held at these different cities—that it
will be cheaper for litigants in the Red River valley to have the
terms held there rather than at Bismarck. I venture to say it will
not cost a litigant one cent more, whether his case is argued here
or at Grand Forks or Fargo. I don't presume that the gentleman
from Richland will say that a case that is appealed from a county
to the Supreme Court will be passed over by that court for the
term which is to be held here. The attorneys must be here any-
way to attend to their cases, and when they are here they might as
well argue then as to take it on to some future term. So that it
will not be one cent additional expense to any litigant who goes to
the Supreme Court, whether all the terms of that court are held
at Bismarck, or whether it is migratory and the terms are held one
at Bismarck, one at Fargo and one at Grand Forks. But it will be
more expense to the State-there is no denying that. When we
elect three judges they should hold their chambers at the Capital of
the State, wherever that may be. They should be here, and I don't
suppose they will be entitled to any mileage, for they are not ex-
pected to run all over the territory. Their business is here, and
when they are not here they are not working for the State. If
they desire to go home, they cannot expect the State to pay their
mileage, but if we make the terms of the Supreme Court at these
DEBATES OF THE CONVENTION.
261
three different places they will be entitled to mileage, and unless
the gentlemen in Grand Forks and Fargo are benevolent enough
to extend to the State the use of their court rooms, the State
would be obliged to furnish some place to meet. I think the sec-
tion adopted by the Committee of the Whole is just as it should
be, no matter where the future Capitol of the State is finally
located, whether it be Bismarck, Fargo or Grand Forks.
Mr. O'BRIEN. I don't see any good and sufficient reason why
the report of the Committee of the Whole should not be adopted,
so far as this section is concerned. The gentleman from Rich-
land places it entirely on the ground of the expense of the liti
gants. He does not take into consideration, as the gentleman
from Barnes has just suggested, that the expense of a term of
court at these different places will fall on the State more heavily
than a term would at the seat of government. I claim that when
a man chooses to go to law the expenses of the litigation should
fall on him mainly. The State should not bear the expenses of
private litigation, and we will be arranging it that way if we place
these terms of court at three different points as is contemplated
by this amendment. We, as a state, are willing that every man
shall be given an opportunity to be heard in the Supreme Court,
but we don't desire, we don't want, to have the methods made more
expensive than are necessary to the State. We will be required
to have a Supreme Court room at Fargo and Grand Forks,
and we will also find it necessary to have all the required appli-
ances for holding a term of court at the seat of government.
There will be at all these points the expense of a court room, the
expense of the travel of the judges and the travel of the court
officers. I cannot see any particular reason why we should do
this for the purpose of accommodating the gentlemen who live in
the Red River valley. Are we legislating for the present merely,
or the future? If in course of time the center of population
move to the West, why are not the people of the Missouri slope
entitled to just as much consideration as the cities in the Red
River valley, and if you are going to make it so convenient for
litigants, why not hold that it should go to the door of each liti-
gant, and there determine any matter which may be in process of
litigation? If you are to save expense to the litigant, that would
be the way to do it; but so far as expense is concerned I don't
agree with the gentlemen who are arguing for this amendment.
You will find in states where the Supreme Court is stationary-is
262
DEBATES OF THE CONVENTION.
held at one point-that the most of the business before the court
is done by briefs-briefs printed at the home of the litigants, and
that is an expense that they would have to incur anyhow. As has
been suggested here, there is nothing to require the litigant to go
to the court himself. All that is required is the attention of his
attorney, and in all cases if the attorney is doing business of any
importance he has a number of cases to attend to at the session
of the Supreme Court. In the case of a poor man, he can very
easily, if he has got a good case, submit his case to the Supreme
Court upon printed briefs and the court will give him just as
much consideration and as fair a hearing as if he was represented
by an attorney in the court.
Mr. MILLER. The gentleman suggests as an objection to the
court being held in three places, that when the population changes
it may be necessary to change the court to accommodate the pub-
lic. The amendment offered by the gentleman from Richland.
provides that the terms of court shall be held at the seat of gov-
ernment, Fargo and Grand Forks "until otherwise provided by
law." If it is found that the population is changed so as to re-
quire a change in the places to hold the court it is in the hands of
the Legislature. I supposed that the object of all courts was to
make them of the most convenience for litigants, that the great-
est good to the greatest number might be secured. It is a fact
that no ne disputes that the population and the litigation is very
much nearer Grand Forks and Fargo than the Capital. To sub-
serve the interests of these people who have got to have the liti-
gation and sustain the court, we ask for the terms of court at these
places. I can see no possible objection to it.
Mr. PARSONS of Morton. The matter of expense has been
mentioned, and I think there is one point to be considered. If
we are to consider the matter of expense merely, why don't we se-
lect some city in the center of the State which is readily accessi-
ble to all, and locate there the Capital, and around it all the other
public institutions of the State? Have them all right in the cen-
ter, because they will be the most accessible there, and it would
be the most economical. Who ever heard of any such scheme as
this? Is there any state in the Union that has ever done it?
And yet, following out the doctrine advocated by some of the gen-
tlemen here, that would be the thing to do on the ground of
cheapness. There is one argument that has not been referred to
—and that is that it is a great honor for a town to have a session
DEBATES OF THE CONVENTION.
263
of the Supreme Court, and wherever the seat of government is
-whether it be at Grand Forks, or Fargo or Bismarck, the people
of that place will be entitled to that distinction. As to the fit-
ting up of rooms for the court, I would say that I have not had
the pleasure of visiting the city of Grand Forks, and have not
seen their court house, but judging from the looks of the gentle-
men here from that city, I have no doubt but that they have a
very fine one. I doubt sincerely if the Supreme Court were to
hold a session at Grand Forks or at Fargo if the people of either
city would want to tax the State for allowing the court to hold a
session, any more than any one of us as individuals would want
to charge the President of the United States for a night's lodging
if he did us the honor to stay with us. As far as libraries go, I
believe that there are just as many volumes accessible to the
court in Fargo or Grand Forks as there would be at the seat of
government. It is a well-known fact that the attorneys in those
two cities have very fine libraries, and it seems to me that it would
be well to distribute the honors.
Mr. PURCELL. The objection to the substitute that I offered,
as made by the gentleman from Barnes and the gentleman from
Ramsey, seems to me to have no weight. Particularly the argu-
ment used by the gentleman from Ramsey, because I take it that
sarcasm and ridicule are never an argument. I do not here seek
by this motion to ask the Supreme Court to go to the door of any
litigant. I simply ask that this court may hold one of its terms
a year at Fargo, and there be installed in one of the finest build-
ings that this territory possesses, and it is no condescension on
the part of the Supreme Court of this State to go there and hold
one of its terms of court. I also ask that it hold one of its terms
of court at Grand Forks. I have had some experience in the
court house in Grand Forks, and it will compare favorably with
any building in the Territory. There is nothing in the proposition
they make and urge against this substitute. The library is not
necessary for any lawyer attending the Supreme Court, nor is it
necessary for the judges, as they will have at hand all the books
they need. The gentleman says that briefs are prepared in all
cases. Cases are frequently argued on briefs, but frequently
there is a good deal more to a case than the mere submission of a
brief. There is no place in the Territory to-day that has so fine a
library as either one of the cities of Fargo and Grand Forks.
Every book that would be needed is possessed there by the law-
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DEBATES OF THE CONVENTION.
yers, and collectively, the lawyers of those two cities possess a
library as good as any that will be found in the State during the
next ten or fifteen years. Everything will be accessible to the
court, and as to the objection urged as to the court room, I simply
say that I believe that neither Grand Forks nor Fargo will exact
$1 on account of the expense of the court in occupying their
court houses. The expense of the traveling will be little or noth-
ing. All that will be necessary will be for the Clerk to go and
take what papers pertain to the litigation about to be heard. It
will not require a freight car to do this, and the item of expense
will be nominal, if anything. The gentleman asks why we don't
establish the court on the Missouri slope. We don't establish
one on the reservation, because we don't need it there. Every
man knows that nine-tenths of the business in the Supreme Court
comes from the Red River Valley counties, and we proposed this
substitute so that the people can be convenienced. The gentle-
man from Ramsey says that when a man goes into court he must
stand the expenses of the litigation. That idea is in conflict
with our bill of rights. We have courts established for the pur-
pose of hearing every man's case, so that every man, be he rich
or poor, can go and avail himself of the protection of the law, and
see that his just rights are protected. We say that this substitute
is just and right, and that is the basis on which we place it.
Mr. SELBY. Residing as I do, between the two principal
towns of the Red River valley, it might appear that I was taking
or assuming an attitude that would be contrary to my interest,
and to the interest of the people of my county, and to the inter-
ests of that valley, if I would oppose a traveling Supreme Court.
The gentleman from Richland tells us that if the Supreme Court
holds a session once a year in the City of Fargo, that the people
of my district can save expense by going there and having their
matters determined. So then all the cases arising in that district or
locality would be submitted to the term of court to be held at that
particular place. Now, sir, I have, we will say, an action of im-
portance. It is determined in the district court; I appeal the
case to the Supreme Court; they sit in May; I am not early
enough to get in at that term, and the result is that I have to wait
till a year from that time before I can have my case determined.
But if I could have taken that same case to Bismarck I would not
lose all this time. This proposition was raised squarely in the com-
mittee when we were discussing it, and the committee by a ma-
DEBATES OF THE CONVENTION.
265
1
jority took the position that for the very reason that these cases
would be districted in that manner, it was decided that it would
be better to have the court held in one place, where every case
goes and is there determined in order. There would then be no
passing over and waiting till the court would get to Fargo or
Grand Forks. They claim, and it is true, and I am proud of the
fact, that Fargo has got as good a court house as there is in North
Dakota, but it does not follow from that fact that the officials of
that county, if we provide in the Constitution that the Supreme
Court shall be held in that town, that they will say: "You can
have the use of this court house free of charge." If we make a
provision of this kind they are in a position then that they can
say: "Gentlemen, come down." We are not supposed to go upon
the assumption that because it is an honor for a city to have a
term of the Supreme Court that they will open the doors of
their public buildings and say "you can come here," and espec-
ially when you are fixed in such a way that you have got to go
there as it is proposed to fix this Constitution. If the people of
that town or county would say "come down" it may be said that
the Supreme Court would be taken away from them, but gentle-
men we are here making a Constitution-an organic law-and let
us go on and do that, and if it is right that the Supreme Court
should hold its sessions at the seat of government, let us adopt
that plan. I believe that it is right, and therefore I vote for the
report of the committee.
Mr. LAUDER. It seems to me that the gentleman from Traill
county has raised up here a man of straw for the sake of the
amusement that it would afford him to knock it down again. His
objection to having a migratory court is that litigants would practi-
cally have but one term of the Supreme Court a year instead of
three. Now, Mr. PRESIDENT, you will see at once that that is an
unwarranted assumption. He has no right to make that assump-
tion, and then base an argument on it and draw a conclusion from
it and ask this Convention to accept that conclusion. There is no
rule laid down here and no provision, that the litigation shall be
conducted in that way. Any man who has a case can demand that
it shall be tried in its order, but this proposed substitute does give
litigants who live in that vicinity and who for economy's sake
consent that their cases be tried at a certain point, the privilege of
trying them at that point. There is no compulsion about the matter
whatever. He raises the objection that when the court is estab-
1
266
DEBATES OF THE CONVENTION.
lished in this article at Fargo and Grand Forks, then these cities.
will be in a position to make the State "come down." Mr. PRESI-
DENT, and gentlemen of the Convention, there are a great many
ways in which a city can make the people "come down." The small
expense of a room is not the only way in which the public may be
bled, and when you get this court established unchangeably, so
that it will hold three terms of court in a particular place, I want
to ask if that place is not in a position to make the public "come
down?" What is there to prevent that place from charging extra-
ordinary fees, expenses, hotel bills-everything else that the public.
wants? They can make the public pay and you can't help it, for
you have got to go there. I would ask the members of this Con-
vention not to forget that the State is simply the people in the
aggregate, and when you take a dollar out of the pocket of a citizen
you have got it out of the State, and hence if Fargo charged $50
for the use of its court house for Supreme Court purposes for
the term, and by holding the term there you save to the attorneys,
litigants and the public $200 in railroad fare and hotel bills, is not
the State ahead? It seems to me that it requires no great arith-
metician to demonstrate this. I don't see how any gentleman can
oppose this substitute on principle. I don't wish to insinuate that
any gentleman is actuated by any improper motive, but it seems
to me that the interest and welfare of the public demand this.
The Red River valley furnishes three-fourths of the business for
the Supreme Court, and I would like to ask upon what principle
the attorneys and litigants of that valley shall be required to travel
clear across to the Missouri river in order to do business that they
have a right to do nearer home? It is a right they have to have
the court near them.
Mr. SPALDING. I desire to say just one word on this sub-
ject. There has been a great deal said about a migratory court.
It has seemed to me, as the gentleman from Richland has said,
that it was a good deal like setting up a man of straw for the pur-
pose of knocking him down. In no article in this Constitution,
or proposed article, is there any provision requiring the Supreme
Court Judges to reside at the seat of government. If there were
such a provision there might be a little sense in the argument, but
assuming that the judges will be elected, as they naturally will
be, one from the lower Red River valley, one from the upper Red
River valley and one from the Missouri slope or somewhere in
that vicinity, where is the migratory Supreme Court? In the one
DEBATES OF THE CONVENTION.
267
instance we have a term of court held every four months near the
residence of one of the judges, while in the other case we have
none of them held except at the residence of one of them. One
word in regard to the dignity of the matter, which has been
touched upon. I resided for some time in a state that held a term
of the Supreme Court in every county in the state. That would
not be practicable here, owing to the large number of counties
and the large number of small counties, but place it on a princi-
ple as nearly equal to that as possible, and owing to the vast ex-
tent of our domain, this point of placing the Supreme Court at
three different centers comes as nearly as possible to such a prop-
osition. In that state every litigant can go into the Supreme
Court with comparatively no cost to himself. Here in this Terri-
tory we have been in the habit of paying for our expenses of at-
tending the litigation in the Supreme Court, from $50 to $100 and
$200 a case, simply because of the inaccessibility of the court.
We need to do away with that as far as practicable. We cannot
do away with it altogether, but let us put the Supreme Court
where it will be the most convenient for the greatest number.
The gentleman from Traill may have a case that he gets a decis-
ion on in the district court, too late to get into the next term of
the Supreme Court, and it may be that he will have to go
to Bismarck. But there is only one chance in three that he would
have to do that-only one time out of three, and twice he would
not. Here he proposes to cut off his nose to spite his face and
go to Bismarck with his cases three times when there is no need
for him to go more than once. I think that remarks in this Con-
vention as to what occurred in the committee room are somewhat
out of taste, and ordinarily I would not refer to them, but inas-
much as the gentleman from Traill has seen fit to bring in the po-
sition of members on this question in the committee room, I
would say that I think that when section one of this article comes
to be acted upon, the gentleman from Traill will take a position
that is somewhat inconsistent with the position he has taken now.
Mr. SELBY. Very briefly in answer to the gentleman from
Cass, I don't suppose that a member of this Convention trans-
gresses the rules of proper decorum when he makes reference to
a discussion that had occurred in a committee, having the matter
under advisement that was before the Convention for discussion.
If so, I must certainly beg the pardon of the gentleman. Never-
theless, my proposition was simply this-the gentleman from
268
DEBATES OF THE CONVENTION.
Richland made the statement that if the Supreme Court was itin-
erant, that then the cases would be distributed, and the litigants
would save expense. I took occasion to make the remark that
that was discussed in the committee, and I took occasion to state
to this Convention that that was the very reason why I oppose an
itinerant court, because the Supreme Court can make a rule and
say that in a certain district the cases will be tried in Fargo, and
I shall not be able to get my case before them at Bismarck if I
want to.
Mr. NOBLE. Is it provided in this motion that the names of
these places will be substituted in place of the report of the
Committee of the Whole? I would make the point of order that
the report of the Committee of the Whole cannot be amended by
the Convention. It can simply be rejected, or that portion of it,
or accepted.
The Chair ruled that the point of order was well taken.
Mr. MILLER. The motion of the gentleman from Richland
was to substitute.
Mr. O'BRIEN. The report of the Committee of the Whole is
before the Convention for adoption or rejection, and the gentle-
man from Richland asks to substitute something for that portion
of the report which is section four.
Mr. PURCELL. My intention was to offer this as a substitute
for section four. The matter was argued yesterday in the Com-
mittee of the Whole and every delegate was acquainted with the
substance then, and although I did not write it out and hand it in
every one knew what was the nature of my substitute.
Mr. PARSONS of Morton. Do I understand that the Chair
rules that it is impossible for the Convention to amend the report
of the Committee of the Whole ?
Mr. PRESIDENT. You must adopt the report of the Com-
mittee of the Whole or reject it, but the Chair holds that this
substitute is in order.
Mr. ROBERTSON. I would like to inquire if the action we
are now about to take extends to sections three and two?
Mr. MOER. Under the motion to adopt the report of the
Committee of the Whole it is necessary for those of us who don't
favor the proposed substitute to vote against two and three.
Mr. ROLFE. We passed a resolution providing that we would
adopt one section at a time, and then we proceed to take four sec-
tions at once, and this results in confusion.
DEBATES OF THE CONVENTION.
269
Mr. JOHNSON. I call for a division of the question. We
are entitled to a division of the question.
Mr. PURCELL. At the commencement of the consideration
of this matter I made a motion that this report be considered
section by section, but some one raised the point that unless some
one objected to the sections as they were read, they would he
considered adopted. I withdraw my substitute for the present.
Sections two and three were then adopted.
Mr. PURCELL. Now I move my substitute for section four.
Mr. PRESIDENT. We must adopt section four as reported
by the Committee of the Whole or reject it.
Mr. PARSONS of Morton. I wish to speak on
I wish to speak on a point of
order. I understood yesterday that it was impossible at that
point to offer an amendment to anything in the Committee of the
Whole, and it was distinctly understood that it would be possible
that the report of the committee should be amended. The pro-
position is this-can a report of the Committee of the Whole be
amended? The report of the Committee of the Whole has no
more prestige than the report of any other committee before this
House. It seems to me to be the most preposterous proposition
put before a body that a report cannot be amended.
There is no
gag law known to man that would be any more tyrannical than
that. We have been amending reports ever since we began our
sessions here. We have cut and slashed them in every direction,
and now we have a report before us and the question is raised
whether or not we can amend it. Mr. PRESIDENT, we have
adopted a set of rules here to govern us, and I call for the rule on
this point.
Mr. STEVENS. I move that section four of this report be re-
committed to the Committee on Judiciary.
The motion was seconded.
Mr. JOHNSON. It occurs to me that there will never be so
good a time to pass on this question as now. We have discussed
it thoroughly, and we know exactly what the point at issue is. It
seems to me that affairs have got to a pretty pass if we cannot
pass on this because it will inconvenience the clerk. What are
clerks for? We are not here to take their orders-to be gagged in
that way. It is very evident, and perfectly clear to my mind, that
a decided majority of the delegates here are in favor of the amend-
ment offered by the gentleman from Richland. Are we to be
denied the privilege of voting on this simply because the clerks
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DEBATES OF THE CONVENTION.
will get confused in keeping the records? It seems to me that it
would not be very difficult to get a clerk that is competent to write
down that a substitute was put in, in place of this section.
Mr. O'BRIEN. It seems to me that this is purely a question of
procedure, and it is not necessary to say anything about gag law.
It resolves itself down to this-the Chair rules that we must first
accept or reject this section. Then after that action, the amend-
ment or the substitute of the gentleman from Richland would be
entitled to be brought before this Convention.
Mr. PARSONS of Morton. We have passed quite a number of
articles and have sent them to the Committee on Revision. The
understanding is that they will come back for adoption or amend-
ment. If it is not possible to amend the report of the Committee
of the Whole, we had better settle that question now, and I call
for the ruling of the Chair on this question whether we can amend
the report of the Committee of the Whole.
Mr. BENNETT. Is there a question before the house?
Mr. PRESIDENT. The Chair will rule that the substitute of
the gentleman from Richland is in order, subject to appeal and
that it can be placed in this report of the Committee of the
Whole.
Mr. STEVENS. If that is the ruling of the Chair, I will with-
draw my motion to recommit.
Mr. MILLER. I want a roll call on that motion if we have got
to it.
The vote was then taken on the substitute of Mr. PURCELL to
section four, and the substitute was adopted by a vote of 48 to 26.
Mr. SCOTT. I move that the words "one," "three" and "five"
be inserted in place of the figures "3," "5" and "7" in section
eight.
The motion was lost by a vote of 51 to 17.
Mr. JOHNSON. I have an abiding conviction that the people
of this state want their officers elected for a definite term, and
therefore I offer this amendment to section nine: After the word
"clerk" in the first line insert the words "elected by the people,
who shall hold his office for the term of four years."
The amendment was lost by a vote of 46 to 25.
Mr. RICHARDSON in explaining his vote said: I vote no. Yes-
terday when the same question came up I voted yes. My reason
for voting no is that every delegate who had a resolution up yes-
terday that was defeated has run it in to-day. There has been noth-
DEBATES OF THE CONVENTION.
271
ing accomplished to-day yet, and I think it better to let the report
of the Committee of the Whole go to the Committee on Revision,
and take action when the articles come up for final adoption.
Mr. CARLAND. I renew now my motion made in the early
part of the session, that the report of the Committee of the
Whole, as far as section nineteen is concerned, be not adopted.
Mr. WILLIAMS. I hope that the motion will not prevail.
My colleague read a decision from the Supreme Court of Colo-
rado, and I think it is easy for the members to understand why
that court gave that decision. The Legislature did not submit to
the judges, as it will appear, a particular bill, and ask their opin-
ion on that. It seems to me that this provision should present
itself to every member of this Convention. It places every mem-
ber of the Legislature on an equality. It places a man unlearned
in the law on the same footing as the man learned in the law, and
it avoids forcing on the statute books an important law which may
affect the whole people of the State, and afterwards have it de-
clared unconstitutional. It seems to me that the motion of the
gentleman from Burleigh should not prevail.
Mr. MILLER. I raise a somewhat different objection to the
article from that which has been stated. The fundamental principle
of our constitutional government is that it should be divided into
three departments—legislative, executive and judicial. Under the
article as adopted by the Committee of the Whole yesterday the
Legistature may at any time, or any faction or bare majority, may
ask the Supreme Court for their opinion. Suppose the Sur reme
Court were politically inclined towards the minority of that Legis-
lature, if they gave their opinion they would shape it so as to help
out their political friends. It would be political judicial legisla-
tion that would follow, and the Supreme Court would legislatate
from the fact of their being called on to advise the Legislature.
That is what it would amount to. It would interfere with the
division of the government into its three departments. I object
to it also because it would be burdensome to the Supreme Court;
would result in no good to the people; would make the Supreme.
Court the legal advisers of the Legislature, and they would have.
to pronounce in advance on questions and without a trial, that
would afterwards come before them to decide where the rights of
parties would be involved. They would thus almost feel forced in
some cases to abide by their original opinions, and the litigant
would not get his rights nor would the law be administered as it
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DEBATES OF THE CONVENTION.
should be. I object to it on that ground-that it binds the Supreme
Court in advance. The Supreme Court would become, when they
had rendered an opinion, the attorneys of the party in whose favor
they had rendered their opinion, they having rendered it without
hearing the evidence on more than one side. When I
go into
court with a case that involves the same opinion, they have already
expressed their views, and yet they are sitting on the bench as a
Supreme Court to decide my rights. It would result in the gravest
of wrongs; injury to the poor and the rich man alike, and would
thwart the ends of justice.
Mr. MOER. I can't let this question go by without uttering
my protest against the adoption of the section as it came from
the Committee of the Whole. It seems to me that all we have to
ask ourselves is-what will the Supreme Court do? Will they
simply be an addition of three more lawyers to the legislative
body? That it seems to me is all there is in it. Their opinion
on these supposed questions will be ex parte, and without a hear-
ing, and will be entitled to no more weight than that of the lawyers
who may be present as members of the Legislature. A gentle-
man stated yesterday that a large amount of expense would be
saved. But if even there was any expense saved it would be to
the litigants. The State does not pay the expense for fighting
these laws that it is claimed are unconstitutional, or for taking
them before the court. The litigant will bear the burden of the
expense, and it is a matter of small concern to this Convention
whether they do or not. The gentleman stated that a small
minority of lawyers in the Legislature, in the interest of the
corporations, would get up and tell the majority that the law they
were about to pass was unconstitutional. I venture the assertion
that if a majority of lawyers get up on the floor of the Conven-
tion and say that a proposed bill is unconstitutional, it is just as
safe to believe them as it would be to believe the Supreme Court
if they said so. The lawyers in the Legislature, for the sake of
their reputation, would desire to be right on the proposition, and
they would investigate a question, look it up, and when they said
it was unconstitutional their judgment would be entitled to some
weight. The Supreme Court might not be able to investigate the
matter and give you an off hand opinion. To place all men on
the floor of the Legislature on an equality is something that
nobody can do but Almighty God. It cannot be done by law. If
men are unequal there is no law that will make them equal. The
DEBATES OF THE CONVENTION.
273
decision of the Supreme Court in such a matter would simply be
an addition of three more members to the Legislature.
Mr. LAUDER. The whole argument as advanced by the gen-
tleman from Burleigh proceeds on the assumption that some of
the members of the Legislature are in great danger from the
lawyers. I am an humble member of the profession myself, and I
don't believe that there is anything in the record of the lawyers.
of Dakota that warrants any such assumption. They don't need
any defense at my hands; their record defends them, and I venture
the assertion that of the same number of men, there will be found
no greater integrity, no greater virtue than there will be found in
the lawyers of North Dakota. This idea of talking about the
lawyers as being tricksters is simply wrong. It is done for a pur-
pose, and it is no credit to the intelligence of the men for whose
benefit it is said, that it should be said. It is said that the law-
yers will be interested in the corporations. They won't all be in-
terested. There may be corporation lawyers in the Legislature,
but I venture to say that all of them won't be corporation at-
torneys. Lawyers will have divers ideas, the same as other mem-
bers, and if it is sought to have the impression created that the
lawyers will be bought, I would suggest to the gentleman from
Burleigh county that the lawyers are no cheaper than parties be-
longing to some other professions.
Mr. CLAPP. I cannot expect to add anything to the discus-
sion, but I do want to place myself on record as being in hearty sym-
pathy with the motion that this section be not adopted. It seems
to me that we need stronger reasons than any that have yet been
mentioned why this section should stand. The gentleman last
night referred to a body of men who would meet and pass resolu-
tions, and petition the Legislature to pass certain laws; and then
some one would rise in the Legislature and say that the law was
unconstitutional, and then it should be referred to the members.
of the Supreme Bench for their opinion. The gentlemen on the
Supreme Bench, will be, perhaps, the peers, but not the superiors.
of the lawyers of the Legislature, and unless the case is tried be-
fore the court, and argued before them, they are just as liable to
make a mistake as anybody else. Suppose an action is proposed
that would be a benefit to the people, and they on their ex parte
testimony, declare that it is unconstitutional, and the arguments,
if properly brought before them, would have convinced them that
18
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DEBATES OF THE CONVENTION.
it was not unconstitutional. Then, in that case, the people would
be deprived of a law that they needed and were entitled to.
Mr. JOHNSON. There is another view of the case which has
occurred to my mind, and which has not been thoroughly dis-
cussed, and it is this-the premises of the gentleman from Bur-
leigh are perfectly correct, namely, that the officers of the State
and the Legislature, should have some guide in legal matters. So
far, so good; we concede that, but his logic is wrong-his con-
clusion is fallacious. He draws the conclusion that the only way
to get this legal advice is to put it in the Constitution that the ap-
peal for legal information shall be made to the Supreme Court.
We have a department specially provided to fill that--it has come
down from the tradition of our fathers. What do we have an
Attorney General for but to give this advice? His occupation
would be gone if we were to adopt the report of the Committee of
the Whole. The only advantage that the Supreme Court has
over the justice of the peace is that it has the last of the case.
They are no more likely to be right than men who are not clothed
with official positions. They are no more likely to be right than
the Attorney General. He will be elected for his integrity, abil-
ity and reputation he has obtained in a professional way. The
Legislature should have some right. The men who come here to
make the laws should be clothed with some power to put them on
an equality with those who are learned in the law. The only ques-
tion is, what department of justice shall they call on. You take
in our counties. Here in Dakota very few of us have had any ex-
perience beyond county politics. I hold the office of district at-
torney, and it is the duty of the district attorney to furnish legal
advice to the county officers and the county commissioners when
called on. That is exactly the province of the Attorney General
in the State--that is the province of the Attorney General at
Washington. In order to harmonize and be consistent through-
out, we should adopt the amendment offered by the gentleman
from Burleigh.
If there is one principle we have become familiar with, and that
the people believe in, and that our history and our laws and Con-
stitutions have been adjusted upon, it is that a judge should not
sit on the bench to try a case in which he is personally interested,
or in which he has given counsel. In this very report we have
provided that where a Judge of the Supreme Court has been inter-
ested in a case the other judges are to call in a District Judge to
DEBATES OF THE CONVENTION.
275
sit in his place. Our Supreme Court will be made up of practis-
ing attorneys that have practised law in the courts of the Terri-
tory. Many of their cases that they have been interested in will
come before their court, and we have foreseen this. The same
argument applies here. They should be free and untrammelled
when the time comes for them to decide a case, to decide it accord-
ing to the law and the evidence and the letter of the statute, with-
out being warped by any opinion that they may have had to give
in an hour of excitement possibly, or political anxiety-in an hour
when the authorities were not given and the argument was not
made. The Attorney General, the proper man to dispose of these
questions and give this advice, would be in a different attitude
altogether. His position would not be compromised. He would
have one side. The people who would say that it was unconstitu-
tional could in no possible contingency call on the Attorney
General, and he would consistently make the best fight he could.
Mr. WILLIAMS. The gentleman in criticising my remarks
insinuated that I had cast some reflection on the lawyers of the
Legislature. I heartily agree with the gentleman when he said
that the lawyers elected as a rule are quite as honorable as any
other men chosen, but there are always in attendance at every
session of the Legislature a great many lawyers who are not mem-
bers and who almost always represent corporations. They appear
before the legislative committees and make arguments and work
with members privately, and in the committee rooms, and in that
way confuse and annoy the members. Now my understanding of
this provision is this-that the Legislature will only on very extra-
ordinary occasions ask the opinion of the Supreme Court and that
will be on measures affecting the whole people-very important
pieces of legislation. They will be asked to give their opinion on
the constitutionality of proposed bills.
Mr. CARLAND's motion, that the section as reported by the Com-
mittee of the Whole be stricken out, was adopted.
Mr. PARSONS of Morton. I have serious objections to sec-
tion seventeen (in the original File) as it now stands. The judges
are human, and may be sick. They may be unable to attend to
their duties, and under this provision none of the other judges
can issue a writ or interfere in any way. All legal processes in
that district must be at once stopped till the judge returns from
the visit he is making or gets well. It seems to ine that there
should be a provision made here whereby if judge is interested
276
DEBATES OF THE CONVENTION.
in a case, there may be an exchange of judges, and another judge
can occupy his seat, or if a judge is unable to attend to his busi-
ness they may apply to the judge of another district, not to try
cases necessarily, but to issue remedial writs and so forth. I don't
believe that the mover of this section ever intended that it should
work the hardship that it will work if allowed to go as it is.
Mr. BARTLETT of Griggs. I would refer the gentleman to
section thirty.
Mr. PARSONS of Morton. I withdraw my objection.
THE SUFFRAGE QUESTION.
Mr. POLLOCK. I move that the report be adopted without
further reading.
Mr. MOER. I move that the report be adopted, except as to
section two of the Franchise report, which shall be made to read
after the word "sex," (striking out all thereafter)—“But shall not
extend or restrict the right of suffrage without first submitting
the question to the voters to be ratified by a majority vote." Then
the substitute which I move for that recommended by the Com-
mittee of the Whole will read as follows:
SEC. 2. The Legislature shall be empowered to make further extensions
of the suffrage hereafter at its discretion to all citizens of mature age and
sound mind, not convicted of crime, without regard to sex, but shall not ex-
tend nor restrict the right of suffrage without first submitting the question to
the voters to be by them ratified by a majority vote.
In offering this I do it with the view that all questions involv-
ing so much to the people as the extension of the right of suf-
frage, of fully extending it, doubling it in fact, should be submit-
ted to the voters to be ratified. I believe the voters should have
a chance to say whether they want it or not, and that it should not
be left to their representatives, who may not represent them on
that issue. The effect of the adoption of this section in the Con-
stitution would be to place it in the power of the Legislature at
any session to pass a law granting the right of suffrage to women,
but before that law would take effect--before they could exercise
the right of suffrage-the question would have to be submitted to
the voters for their ratification. If it were defeated, then at the
next session, or the second, or third or fourth, they could again
submit it. So the matter is left in the hands of the Legislature
to submit the question to a vote of the people, once or forty times.
It leaves it so that when any demand is made on the Legislature
DEBATES OF THE CONVENTION.
277
to extend the suffrage to women it is within their power to grant
it so far as the legislative power goes, but the people must ratify
it. I believe that that is what we should have, and I don't believe
that anybody can consistently or logically defend any other posi-
tion, for whatever great changes we want made should be first
voted on directly by the people. We have a prohibition question,
and it is universally agreed that the people should be the ones to
say whether we shall have prohibition or not. The Legislature
can enact a law, and if it fails of ratification they may again at
some future time enact another law to be again submitted.
Mr. SCOTT. I was not in favor of the resolution or the sec-
tion as it passed the Committee of the Whole, and under the
form in which it was discussed and the manner in which it came
up it admitted of no amendment whatever. The section had to
stand as a whole or fall altogether. I believe that this is a mat-
ter of great importance-that the question as to whether or not
there shall be woman suffrage is of equally as much importance.
as anything that will come before the people of this State. I re-
ard it as being a matter of far greater importance than prohibition,
which we will submit to the people for their acceptance or not. If we
consider that the question of prohibition is of so much importance
that it should he submitted to a vote, why should not this ques-
tion of woman suffrage also be submitted? I would as soon, and
rather, see the word "male" stricken out of the first section right
here and now, and extend suffrage to women right in the Consti-
tution, as to have the clause as it now stands form a part of this
Constitution. I am satisfied if this clause as it now stands be-
comes a part of the Constitution, it is only a question of a very
short time-from now to the next Legislature, or perhaps a year
longer-when it will become a law. The question is not one that
has been sufficiently thought of by the public, or demanded suf-
ficiently by the public for us to take this step at this time. There
has been no serious discussion of the question-it has only been
agitated by a few, and so far as I am personally concerned I
should be willing to leave it to the women of the State themselves,
provided they would get out to vote to leave it to them to say
whether or not there should be woman suffrage.
Whether we want woman suffrage or not is not a question to be
discussed here, but when we adopt section two and leave it in the
shape it is now in, with the number of people who come here year
after year for the purpose of influencing the Legislature, we might

278
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as well just strike out the word "male" and have woman suffrage
at once. I don't believe that it is a fair proposition that we should
confer on the Legislature the power to enact a law that they have
no right to repeal, and that is just what we are doing if the sec-
tion which we carried yesterday is adopted. We say that the
Legislature shall be empowered to make further extensions of
suffrage at its discretion. If they pass a law of this sort, it is
gone beyond their control, for the words of this section provide
that they shall not restrict the suffrage without a vote of the peo-
ple. Why should we give to the Legislature power to extend the
right, when we take from them the power to restrict it? Is it not
equally fair that the people should vote as to whether or not it
shall be extended, as that they shall vote as to whether it shall be
restricted? I am in favor of the proposition of the gentleman
from LaMoure, and if section two passes as it is now, I would
rather have the word "male" stricken out of the section, and let us
have woman suffrage at once. I don't believe that it is demanded
except by a very few people who live in the State. It has not
been agitated; it has not come up sufficiently for discussion, ar
we should be careful. I believe in letting the people vote, and if
they desire it I don't know of any better judges as to whether or
not we should have it than the people. The Legislature is cer-
tainly not superior to the people. Why, then, should they have
superior wisdom that they should say what the people want,
whether they have been elected on that issue or not?
Mr. POLLOCK. I have very little to say for the reason that
this matter was thoroughly and ably discussed in the Committee
of the Whole yesterday, and it was passed by a good vote. It
seems to be unnecessary that we should go over all this ground
to-day before proceeding with a vote on this report. But I desire
to refer to one or two of the objections urged in connection with
this amendment. In the first instance the gentleman from La-
Moure says that no matter of importance should be intrusted to
the Legislature. I would ask why permit the Legislature of the
incoming state to pass any law of importance without submitting
the question to a vote of the people? If it is good in one in-
stance it is good in another. It may be urged that this is of
greater importance than many other questions that will come be-
fore the Legislature; but no Legislature is going to pass on a
subject of as great importance as this without knowing the will of
the people is behind them. They may determine that it is in ac-

DEBATES OF THE CONVENTION.
279
cordance with the will of the people, that the matter be submitted
to a vote of the people for ratification. It is in their power under
this section to do that, or to pass on it in some other way in their
discretion. The further objections urged that they may pass a law
that they cannot appeal. In the first place they are acting as
representatives. If they are required to submit it to the people
they submit it, not to the whole people, but to a portion, taking in
as it does the negroes, the naturalized citizen, the civilized Indian,
and the man who may have declared his intention of becoming a
citizen—in fact to all except those who are vitally interested in
the matter. On the other hand if you restrict the Legislature,
and prevent them from repealing the law of their own motion,
then they must submit it to a vote of the whole people to deter-
mine whether or not the women shall continue to exercise the
franchise. I hope that no amendment to this section will be per-
mitted. If it is to be amended, it might as well be stricken from
the Constitution altogether, for if we are to have a vote of the
people and it is to be necessary to vote on it, we might just as
well have a constitutional amendment substituted as to the ques-
tion of woman suffrage. This is as long as it is broad, and if the
amendment prevails we might as well exclude the section entirely.
Mr. ROLFE. The gentleman from Cass refers to the point
made by the gentleman from Burleigh that we permit negroes,
ignorant negroes, full citizens, partial citizens, persons of Indian
descent who have severed their tribal relations to vote, and there-
fore they are not capable of passing on this grave question. But
we must not forget that the Legislature to which he proposes to
relegate this problem, are elected by the very class of citizens
whom he thinks are not capable of self-government Yesterday
when this section was passed, the vote by which it passed surprised
me, and I cannot yet believe that all who voted in favor of the
section as it now stands clearly understood that they were voting
for the incorporation of this in the Constitution, thereby taking it
out of the power of the people to settle this matter except through
their representatives in the Legislature. I desire to remind the
gentlemen of the Convention that the amendment of the gentle-
man from LaMoure simply and solely leaves this grave question
to be settled by the people and all the people, rather than by a
small body-often times not clearly representative-namely, the
Legislative Assembly.
Mr. HARRIS. I don't propose to take up the time of this Con-
280
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vention, but I have one objection which has not been mentioned.
I am perfectly willing that the Legislature shall have the power
to give the vote to women, but I am not willing that one Legisla-
ture shall enact a law which another cannot repeal. This section
says that the right of suffrage may be extended, but shall not be
restricted without a vote of the people. For that restriction I am
not in favor of the section.
Mr. BARTLETT of Dickey. I am aware that there are a great
many things in theory that are very good, as long as they are
theories, and I am also aware of the fact that we heard a very
earnest speech in favor of female suffrage here-a subject that
I did not know was before the house. I am also aware of the fact
that in all my travels wherever I have been, if the question was
put to a promiscuous crowd of ladies as to whether or not they
wanted to vote, they have always said no. The answer to that
made by the advocates of the theory is that the ladies are en-
slaved. They have lived so many years and they don't know what
they do want, simply because they are enslaved. I ask every gen-
tleman here, and every woman here, if by their experience there
is true happiness in those families where they are calling for
female suffrage. What is your life's experience? Echo answers
every time, that where two parties fight with one another in the
same family, that happiness does not follow. In some churches
they prohibit marriage because of differences in religious views.
Do you know a family where one of the members of that family
is strongly orthodox and the other is strongly liberal, that in nine
cases out of ten it does not make sorrow in the family? Certainly
it does—it is the history of the world. The only way we can tell
about this thing is to take experience—what we have seen in life.
Three years ago in St. Paul, the women of America who believed
in woman suffrage met in convention and they had a lady re-
porter that reported that convention. There were there 500 of
the most talented women in America. I don't deny their talent
and ability, but I do deny most emphatically that the principle
they advocated would bring any happiness into the world. The
lady who reported that meeting wrote me and, said she: "In
their countenances you could see intelligence, but you could also
see sorrow and woe. They are anything but happy people, and
their countenances show that their homes are not happy." Show
me one single individual family that is in favor of woman suffrage
--I mean those who make a business of it-and how are their
DEBATES OF THE CONVENTION.
281
children? Do they raise a family equal to those who don't be-
lieve in it? No. That is life's experience of those who have
noticed these things. Do you believe for one moment that where
a man and woman are living together and they are both seeking
for greatness--has not your life's experience taught you that they
do not get along well together? Are you not aware of the fact
-every gentleman here--that in such a case they won't pull in
unison together. They may be both republicans or both demo-
crats together, but the moment there is a discord, and unfortu-
nately it will come in a great many cases, that very moment if the
man is a republican the woman will become a democrat, or if
the man is a democrat the woman will become a republican.
That is the history of the world, and there will be bickering.
Anything that brings discord and sorrow into the family is not
for the best interests of the people.
Mr. PARSONS of Rolette. I move the previous question.
The question as to whether the main question should be now
put was carried.
The amendment of Mr. MOER was adopted by a vote of 35
to 25.
Mr. HARRIS in explaining his vote said that he was in favor of
giving the Legislature the power to extend the franchise to women,
but thought it should also have the power to repeal the law.
Mr. SPALDING. I move the following amendment to the
substitute of Mr. MOER:
SEC. 2. The Legislature shall be empowered to make extensions of suf-
frage to females of mature age and sound mind, not convicted of crime, and if
such extension is made, may at any time thereafter restrict the same.
I move this because in private conversation with members I
have heard them express themselves as willing to vote for this,
provided the Legislature is given power to repeal such a law as
a previous Legislature may have passed, and such was the tenor
of the remarks of one or two gentlemen.
Mr. LAUDER. I hope this motion will not prevail. It seems
strange that in regard to this particular question the advocates of
woman suffrage are so very much averse to leaving this question
to the people. I am opposed to this amendment for the same.
reasons that I stated here yesterday. If we leave it to the peo-
ple to determine it will be settled finally as the policy of the
State, but as long as it is left to the Legislature it will be up this
term, and next term and the Legislature will be overwhelmed
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DEBATES OF THE CONVENTION.
with petitions and lobbies and their work will be obstructed. I
don't care to criticise the advocates of this measure here, but my
impression always has been that any proposition, the mover of
which was afraid to submit to the people, was not a proposition
that should be received with favor. The people are the source of
power in this country, all the power is vested in the people, and
it seems to me that in a question of this importance the people.
should be allowed to speak, and when they do, be it one way or
another, it should be final. That question is then settled and ac-
cepted as the policy of the commonwealth. I would not oppose.
an amendment here providing that when it is submitted by the
Legislature all persons over 21 years of age should vote, women
and all. I would give them a chance in the Constitution-in the
document we are forming here-to vote on this question as well
as the men. I don't want the Legislature to go to work and pass
this law without saying a word to the people about it until after it is
done. Probably there will be a lobby to repeal it and then
another lobby to pass it again. Leave it to the people—that is
the tribunal to which this question should be referred for final
adoption.
The amendment of Mr. SPALDING was lost by a vote of 26 to 34.
Mr. TURNER. I move that the report of the Committee of
the Whole be amended so as to read:
"The Legislature shall be empowered to make further extensions of the
suffrage hereafter at its discretion to all citizens of mature age and sound
mind, not convicted of crime, without regard to sex, but not to hold office, but
as otherwise provided for in this Constitution, without being submitted to
a vote of the people."
Mr. TURNER. I rose twice before to say something on this
question, but there seemed to be an effort to shut off anyone that
had something to say on the side that I take. It has been argued
that if this matter is left to the Legislature to grant the privilege
or right of suffrage to women, and also the privilege as so provided
in the last amendment, of restricting that at their pleasure, it
would lead to the enactment at one session of the Legislature of
a law that would be repealed at the next session. I submit that
that has not been the case where this question has prevailed in
other states—in those states where the suffrage has been extended
to women. In Kansas where suffrage has been granted to women
in municipal matters, it has met with such favor that it has not
been a matter for the Legislature to deal with at one session since
DEBATES OF THE CONVENTION.
283
it was granted. It has been argued here that if the elective fran-
chise was granted to ladies, the result would be unhappiness in
the home, and to prove that position it was presented before you
as a consideration that would influence your votes that at a large
gathering of ladies that met at St. Paul some time ago, they were
described as being very unhappy in appearance. Now, Mr. PRESI-
DENT, I want to present to you the fact that persons who are
enslaved are not usually very happy. Some time ago an individual
was down in the Southern States when slavery prevailed there, and
he saw a slave girl on the block to be sold. The tears were run-
ning down her cheeks-her eyes were fixed on the ground, and she
was the very picture of misery and unhappiness. The gentleman
went up near the block, and when bids were invited he bid, and
the girl was sold to him. He then said to the poor creature:
"Now you are free." She did not understand the meaning of the
term. When he began to give her advice and tell her what she
should do, saying that she was free, the thought dawned on her
mind what was meant by the gentleman's purchase. As he moved
away she ran after him exclaiming: "I'll serve him for ever; he
redeemed me." Is there any reason why these women should be
happy when they are deprived of their just rights and privileges,
and are compelled to obey laws in which they have no right to
cast a vote or say whether these laws shall prevail? Is it not
reasonable that these women should be unhappy when they see
their sons dragged from their protection, under the influence of
those who are following what they hold to be an unlawful business,
dealing out that which destroys the manhood of their sons, and
which curses and blights-
Mr. NOBLE. I think that the gentleman should confine him-
self to the amendment.
Mr. PRESIDENT. The gentleman will speak to the amend-
ment.
Mr. TURNER. It has been argued on this floor that the
right of suffrage should not be granted to women by the Legisla-
lature on the ground that the Legislature would have no power to
withdraw that suffrage, under the article that is being considered.
I hold that when the privilege has been granted to a people of
exercising the franchise, that then after exercising that privilege,
after having lived in the enjoyment, it is improper to take away
the privilege granted to them without giving them a voice to say
whether they should have it taken away or not. I hold that when
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DEBATES OF THE CONVENTION.
the suffrage has been granted to men who may come to this Ter-
ritory who have not become citizens of the United States-that
privilege should not be taken away from them except by a vote of
the people. I hold that when Indians have severed their tribal
relations and they become proper citizens, and are given the en-
joyment of the franchise, they should not be deprived of it with-
out having a voice in the question as to whether they should
suffer that deprivation or not. When the suffrage is granted to
females they should have a voice to say whether that privilege
should be restricted, and whether they should further enjoy that
privilege or not. Holding these views as I do, I an anxious that
this amendment should pass, so that the right of the franchise
may by the Legislature be extended to women, but not the right
to hold office unless the voice of the people so declare.
Mr. FLEMINGTON. It seems to me that this question has
been very thoroughly discussed, and the two sides represented,
and I move the previous question.
The motion of Mr. TURNER was lost.
The article as amended by Mr. MOER was then adopted.
EVENING SESSION.
Mr. RICHARDSON. If it is in order I would move that the
Convention resolve itself into a Committee of the Whole and take
up the report of the Legislative Committee in reference to the
number of senators that there shall be.
Mr. PRESIDENT. The unfinished business is the report of
the Judiciary Committee.
Mr. PURCELL. I presume the purpose of the motion
of the gentleman from Pembina is to allow the Apportion-
ment Committee to get to work. They have delayed in getting
their report out till the Committee on Legislative Department
have reported.
Mr. SCOTT. Would it not be well for us to complete the
adoption of the report of the Committee of the Whole of yester-
day? We have still a part of that before us.
Mr. WILLIAMS. I think we would expedite matters by fol-
lowing the resolution of the gentleman from Pembina. The
Committee on Apportionment desire to get to work and they can-
not proceed till the Convention has acted on section two of the
report of the Legislative Committee. I think we would do well
to dispose of that question.
DEBATES OF THE CONVENTION.
285
Mr. MILLER. I move to amend the motion in this-that we
proceed to the consideration of section two and eight of the
legislative article as it now exists without going into the Commit-
tee of the Whole. I think that our experience has been that the
work in the Committee of the Whole has been almost useless.
We spent the entire day yesterday and the evening in considering
matters in the Committee of the Whole, and we have spent all to-
day in undoing what we did yesterday. I object most decidedly
to going into Committee of the Whole. I see nothing to gain by
it except procrastination and delay. Our rights are all protected
in this body more fully than they can be in Committee of the
Whole, and when we do something here we have got it done ready
to go to the Committee on Revision and Adjustment. If we do it
in the Committee of the Whole it will be taken up here again,
and spend more time over it, which will be wasted.
The motion was seconded by Mr. BARTLETT of Griggs.
Mr. ROLFE. I think that the Committee of the Whole has
acted on section eight, and the Convention has adopted the report
of that committee on section eight.
The motion of Mr. MILLER was carried.
Section two of the report of the Committee on the Legislative
Department was then read as follows:
"The Senate shall be composed of not less than thirty nor more than fifty
members."
Mr. PARSONS of Morton. I move the adoption of this sec-
tion.
The motion was seconded, and carried.
Mr. STEVENS. I understand that section two is adopted.
Does that adopt it as one of the articles of this Constitution?
Mr. PRESIDENT. The Chair is of the opinion that under
the rules that takes it to the Revision Committee. It has to be
adopted again as the Chair understands it after it comes back from
the Revision Committee.
Mr. PARSONS of Morton. I suppose it is generally under-
stood that when we use the word "adopt" we adopt it as a pro-
posed article or section, and it goes to the Revision Committee,
and then comes back to us for third reading.
LEGISLATIVE APPORTIONMENT.
Mr. NOBLE. I understand that the Chair rules that section
eight of this report has been adopted. I would like to ask if that
286
DEBATES OF THE CONVENTION.
section is adopted as reported by the committee in the Journal
page eight, July 31st..
Mr. ROLFE. The report of the Committee on the Legislative
Department was withdrawn except as to section eight, and the re-
port that was subsequently introduced is File No. 129. File No.
129, section eight, reads as follows: "The House of Representa-
tives shall be composed of not less than sixty nor more than 140
members."
Mr. SCOTT. I am laboring under a mistake if that is the fact.
Has the last report of the Legislative Committee been printed
and laid upon our desks?
Mr. ROLFE. It has.
Mr. SCOTT. That is certainly not the section that was re-
ported by the Legislative Committee. The report had been sub-
mitted, but the members had not signed it, and the Chairman.
requested leave of the Convention to withdraw the report and
section eight was amended.
Mr. FLEMINGTON. As I remember it the Chairman of the
Legislative Committee simply asked leave to withdraw the report
of the committee except these two sections, and these two sections.
remained before the Convention as first submitted, and as con-
sidered by the Committee of the Whole.
Mr. NOBLE. If that is the case there must be a supplemental
report of the committee to the report that was adopted by the
Committee of the Whole. What I am opposed to is this section
eight as amended by the Legislative Committee before the new
report or the supplementary report being considered here, as
adopted by the Committee of the Whole. I would like to know
whether this portion of section eight reading-"who shall be ap-
portioned and elected at large from the senatorial districts" has
been adopted by the Committee of the Whole?
Mr. PRESIDENT: That is not as I understand it.
Mr. SELBY. I understand that the proposition was that the
Legislative Committee requested to withdraw the article with the
exception of sections two and eight. If you will turn to page
fifteen of the Journal of Thursday, July 25th, you will find the
matter was discussed in Committee of the Whole and the recom-
mendation was made that the Convention adopt section eight.
The report was adopted by this Convention with the recommen-
dation that section two be postponed till a future time.
Mr. CLAPP. We find the final determination of the subject
DEBATES OF THE CONVENTION.
287
in the next day's proceedings on page two, in which Mr. WIL-
LIAMS is reported to have asked for the unanimous consent to
withdraw the report of the Committee on the Legislative Depart-
ment except sections two and eight, which request was granted.
Mr. SCOTT. The Legislative Committee were acting under a
mistake and did not know of the fact, or if they did know, had
forgotten. A majority of the committee reported section eight
with the amendment which will be found on page eight of the
Journal of the 25th of July. The manner in which the section
came to be amended was this-we had amended section five-it
was the bone of contention, and was the reason the re-
port was asked to be recalled. We amended section
five and would have inserted in that the part that
we put on to section eight, but we thought it was
better arranged and in a better place to add it to the end of sec-
tion eight. We had it all prepared and added to section five, but
at the suggestion of Mr. WILLIAMS and some other gentlemen of
the committee we came to the conclusion that the better place for
it was at the end of section eight, and therefore I would move if
it is in order that section eight be amended by adding to it the
following words: "Who shall be apportioned to and elected at
large, from each senatorial district."
Mr. NOBLE. This seems to me to be amending the report of
the Committee of the Whole which I think we have had a ruling
upon. Section eight has been reported back from the Committee
of the Whole and adopted. Now it is proposed to amend that
section.
Mr. SCOTT. I will withdraw that motion and put it in this
form: That the following words be added to section eight of
File No. 129: "Who shall be apportioned to and elected at large.
from each senatorial district."
Mr. NOBLE. Then you will be amending the report of the
Committee of the Whole. That is a point of order I shall make.
I will say further that at the proper time I shall object to that
clause, but I want to do it at the proper time.
Mr. SCOTT. I don't see why we cannot add anything we choose
to something that is before the Convention. As section eight
originally stood it was adopted by the Committee of the Whole
and the report of the Committee of the Whole was adopted. The
Committee of the Whole is discharged so far as that is concerned.
Now the section is before the Convention for consideration. I don't
288
DEBATES OF THE CONVENTION.
ask that any portion of the section that we have adopted be re-
considered, but merely that something be added on to that section.
The section is all right so far as it goes, but it does not go far
enough.
Mr. ROLFE. I think the gentleman from Barnes is all right
in the position he takes. The first portion of section eight has
been adopted by the Committee of the Whole, and their report
has been adopted by the Convention. Now the gentleman from
Barnes proposes to add a clause to the section which has been
adopted by the Convention. It cannot be considered as being an
amendment to the report of the Committee of the Whole at all,
because as he states, that which he proposes to amend, if you
please to call it so, is the action of the Convention and not the
action of the Committee of the Whole, and it does not come within
the ruling of the Chair of a few minutes ago.
Mr. NOBLE. It seems to me that this matter ought to be plain
enough. Section eight originally was adopted by the Committee
of the Whole and the report of the committee was adopted by the
Convention. Under the rules that portion of the article that was
adopted is now before the Revision Committee. It is not before
us at all.
Mr. PRESIDENT. I think the report of the Committee on
the Legislative Department has not been adopted yet. It is still
in the hands of the Convention-is unfinished business.
Mr. PARSONS of Morton. Look on page fifteen of the minutes
of July 25th.
Mr. CARLAND. I move that the Convention proceed to con-
sider the report of the Committee on Elective Franchise, and let
the Legislative Committee find out in the meantime what has been
done.
SCHOOL AND PUBLIC LANDS.
Mr. MILLER. I move that the report of the Committee of
the Whole be adopted with the exception of section eight and
that section eight be re-referred to the Committee on School and
Public Lands. I do so for this purpose. In brief it is provided
by the Enabling Act under which we are building this Constitu-
tion that there shall be a half a million acres of land in addition
to the school lands, sections sixteen and thirty-six, set apart for
educational and charitable purposes. Now then as to the school
lands, sections sixteen and thirty-six in each township, the En-
DEBATES OF THE CONVENTION.
289
abling Act or Omnibus Bill provides that they must not be sold.
for less than $10 per acre. This is all proper enough, for these
lands are in localities where they can be sold. As to the half
million acres of land which may be used as an endowment for va-
rious educational and charitable institutions, the Enabling Act
fixes no price at which they may be sold. In section seven of
this article it provides that:
"All lands, money or other property donated, granted or received from
the United States or any other source for a University, School of Mines, Re-
form School, Agricultural College, Deaf and Dumb Asylum, Normal School,
or other educational or charitable institution or purpose, and the proceeds of
all such lands and other property so received from any source, shall be and re-
main perpetual funds, the interest and income of which, together with the
rents of all such land as may remain unsold, shall be inviolably appropriated
and applied to the specific objects of the original grants or gifts. The prin-
cipal of every such fund may be increased, but shall never be diminished, and
the interest and income only shall be used. Every such fund shall be deemed
a trust fund held by the State, and the State shall make good all losses there-
from that shall in any manner occur."
This covers, of course, all of the lands donated to the State ex-
cept the 50,000 acres donated for the purpose of constructing
buildings at the Capital. In section eight which I move to have
re-referred to the committee, occurs the following:
All lands mentioned in the preceding section shall be appraised and sold
in the same manner and by the same board, under the same limitations and
subject to all the conditions as to price and sale as provided above for the ap-
praisal and sale of lands for the benefit of common schools, but a distinct and
separate account shall be kept by the proper officers of each of such funds.
The point raised is this-we might just as well provide that the
450,000 acres of land donated for school and charitable purposes
in addition to the school lands proper, shall never be sold, as to
put in this clause here that they may be sold on the same terms
and conditions as the school lands-to-wit, at $10 an acre, for we
all know that a large portion of that half million acres has got to
be selected west of the Missouri river, in what is commonly known
as the Bad Lands, or in the poorer district east of the Missouri
river, and they will never bring $10 per acre during the lifetime
of any member of this Convention. I desire to have this section
re-referred to the committee and ask them to make an amendment
leaving the price to be paid for these lands to be fixed by the
Legislature, or in some way not to take them forever away from
the purpose for which they were intended.
19
290
DEBATES OF THE CONVENTION.
Mr. GRAY.
I move that sections nine and eleven also be re-
ferred back to the committee.
Mr. STEVENS. The object of the gentleman from Cass in
having this section eight re-referred to the committee is this-it
has been provided that the land may not be leased to any one.
person, company or corporation in greater amounts than one sec-
tion. That was done because the Enabling Act prescribes the same
thing. Now the gentleman from Cass desires that remodeled so
that in the Bad Lands or places where the lands will be used
solely for grazing purposes, if Congress should be induced to pass
a provision allowing us to lease more than one section to an indi-
vidual, we would be able to do so without having an amendment
to the Constitution. If we put it in this Constitution we can
never get the relief by merely getting it from Congress, for the
Constitution will still tie us up. That as I understand it is the
object of the gentleman from Cass in getting this re-referred to
this committee.
Mr. MILLER. I will add to my amendment that sections nine
and eleven also be referred back to the committee.
Mr. CARLAND. No one will say that any institution is men-
tioned in section seven except educational institutions-to-wit:
the University, School of Mines, Reform School, Agricultural
College, and Deaf and Dumb Asylum. Section eleven of the
Enabling Act says that all lands herein granted for educational
purposes shall be disposed of only at public sale, and at a price
not less than $10 per acre. It involves the determination of what
those institutions are for in section seven. Most of them are for
educational purposes.
Mr. MILLER. I thought at first that this covered all lands
granted for educational purposes. I don't now believe it bears.
that construction.
Mr. ROBERTSON. I would invite Mr. MILLER'S attention to
that word "herein" in the Enabling Act in section eleven. I think
that word is broad enough to cover the whole act. I don't think
there is an attorney in this room but will say that in his opinion
it covers the whole act-every section in it.
Mr. MILLER. If that is a fact, it could do no harm to have
these three sections re-referred to that committee that this specific
question might be carefully considered by them and other members
of this Convention. If we pass these sections as they are, we
irrevocably tie up this land.
DEBATES OF THE CONVENTION.
291
Mr. ROBERTSON. I have no objection to having it re-referred,
but I do object to have the minds of delegates misled in regard
to the meaning of section eleven of the enabling act. That is all.
If I had any objection to re-referring this it would be on the
ground that it is taking up time to no purpose.
The amendment of Mr. MILLER was adopted.
Mr. TURNER. I wish to call the attention of the Convention
to the report of the Committee of the Whole which is now under
consideration. It states that after the word "saleable” in line
eight, the words "at not less than $10 per acre," should be stricken
out, and that when so amended the section should pass. I would
say that that will be in direct conflict with the Enabling Act. The
Enabling Act says that, "All lands herein granted for educational
purposes shall be disposed of only at public sale and at a price
not less than $10 per acre."
Mr. MILLER. That is all very clear. The words "not less
than $10 per acre," were stricken out of the File because they
were superfluous, and served to make the whole File a little doubt-
ful as to construction. The whole point is covered in section six
of the same File, "No lands shall be sold for less than the
appraised value, and in no case for less than $10 per acre."
Mr. SCOTT. I don't see why, if the report of the Committee
of the Whole is not adopted, this should go back to the Commit-
tee on School and Public Lands. It will be some time before it
can be reported back again to us, and then it will come to the
Committee of the Whole again, and will then be reported by the
Committee of the Whole to the Convention. Why can't we con-
sider this just as well in the Convention, and decide what we
want?
Mr. BEAN. I agree with the gentleman from Barnes. The
Committee on School Lands considered this question, and they
have been unable to find how they can sell lands for less than $10
per acre. I see no reason for re-referring this
The point of order was called on the speaker by Mr. Bartlett
of Griggs, who said: "It seems to me that this Convention went
over this report the other day very thoroughly and adopted it, and
now a week later we want to refer it back to the committee.
I say
let us adopt this report of the Committee on School Lands. If
we became convinced that we have committed an error, we can
remedy it when it comes before us again after it has gone to the
Committee on Revision."
292
DEBATES OF THE CONVENTION.
Mr. BEAN. I would like to know if I am in order.
Mr. PRESIDENT. You are.
Mr. BEAN. I am entirely opposed to referring this back to
the committee without some reason being given. The supposi-
tion has arisen in the mind of one man that perhaps we can sell
these lands for less than $10 per acre. If there is any ground for
that supposition I would like to have the ground brought forth.
If we can so sell them I would be glad to receive this report back,
but until there is some ground, something brought up in the
Omnibus Bill, I don't think there is anything but loss of time to
refer it back.
Mr. MILLER. Section eight provides that you shall not sell
for less than $10 an acre.
The Omnibus Bill does not say that you
shall sell these lands for no less than $10 an acre. I am satisfied
that if the Omnibus Bill does not require that they shall be sold
for $10 an acre, that the committee does not desire that we shall
fix the price at that high figure. I think we would all like that
the Legislature should fix the price, and if possible so fix it, with
the consent of Congress, that more than one section can be leased
to one party. We may want to ask Congress, if the Omnibus Bill
does really fix the minimum price at $10, to change it by a new
congressional enactment as to price, but if we put this in the
Constitution, then we shall have to change the Constitution to be
allowed to sell them for less than $10, in addition to getting the
congressional enactment. It is not necessary that we should
have sections eight, nine and eleven to conform to the Omnibus
Bill, for if we are debarred by the Omnibus Bill from selling
these lands for less than $10 an acre, where is the sense in our
adding another obstacle by putting it in this article? We all
concede that it would be idle to appraise these lands at $10 an
acre, and I would like to have these go back to the committee.
Mr. McKENZIE. For what purpose is section eleven re-re-
ferred to the committee? I can see no good reason for so doing.
Mr. MATHEWS. I don't object to section eight being refer-
red back to the committee, but I do object to having sections nine
and eleven referred back.
Mr. STEVENS. The motion to refer these back has already
been carried, and the question is now whether we shall adopt the
report with the exception of these sections which have already
been referred back to the committee. In relation to what the
gentleman from Cass says, that these lands, if they cannot be sold
DEBATES OF THE CONVENTION.
293
for less, Congress might be induced to reduce the price, I would
also say that we have already stricken those very words, or words
similar, from another section because they were considered, and
were shown by the gentleman from Burleigh to be surplusage.
If it is true that we can sell these lands for less than $10 an
acre, and not conflict with the Enabling Act in so doing, then
these words are surplusage and should be stricken out. It cannot
possibly do any hurt to strike them out, and as I understand it,
the only question before the house now is-shall the report of
the committee as amended be adopted? If we do not adopt it, it
is still before the House. The question is not before us now as
to whether these sections shall be referred back, for we have al-
ready voted on that.
Mr. CARLAND. I would move that the report of the Com-
mittee of the Whole now under consideration be adopted with the
exception of sections eight, nine and eleven. That will leave these
sections before the Convention.
Mr. McHUGH. Has not that motion been already made? If
so I move the previous question.
Mr. SCOTT. I call for a division of the question.
Mr. STEVENS. The amendment was that sections eight, nine
and eleven be referred back to the committee, which becomes part
of the original motion and the motion now stands-shall the report
be adopted with the exception of those sections?
The main question was then put and carried.
Mr. PRESIDENT. The question is on the motion of the gen-
tleman from Burleigh that the report of the Committee of the
Whole, with the exception of sections eight, nine and eleven be
adopted.
Which motion was carried.
PROBATE AND COUNTY COURTS.
Section twenty-seven of the report of the Committee on Judi-
ciary was then read as follows:
There shall be established in each county a probate court, which shall be
a court of record, open at all times and holden by one judge, elected by the
electors of the county, and whose term of office shall be two years.
Mr. CARLAND. When the Convention adjourned we were
considering this matter, and the pending motion was to strike out
section twenty-seven in File No. 121 as just read and substitute.
therefore section twenty-four of File No. 131 which reads as
follows:
294
DEBATES OF THE CONVENTION.
There shall be elected in each organized county a county judge who shall
be judge of the county court of said county, whose term of office shall be two
years until otherwise provided by law.
Mr. MOER. I made that motion. This question of minority
and majority reports is simply on the question of county courts
-the only question that is reported on by the minority. It seems
that the committee was very nearly divided on this question,
standing about eight to seven. The Convention, also, seems to be
very nearly divided on the same question, and many who oppose
the county court system are willing that it should be tried under
certain circumstances and to-day, so as to avoid further conflict, I
would move that the Convention refer the matter of county courts
back to the Judiciary Committee, and that the Judiciary Commit-
tee be instructed to prepare an article creating county courts, but
making a provision that any county desiring to adopt the county
court system shall first submit the question to the voters of such
county, and that in no case shall any county elect a judge of the
county court before the general election of the year 1890.
The motion was seconded and lost by a vote of 28 to 29.
Mr. MILLER. I move the adoption of section twenty-seven of
File No. 121.
Mr. STEVENS. There is a motion pending that section twenty-
four of the minority report, File No. 131, be substituted for the
original section twenty-four of the majority report.
Mr. PRESIDENT. But that was made in the Committee of
the Whole.
Mr. STEVENS. But the motion that was made in the Committee
of the Whole under the understanding of the resolution to-night,
would be operative here, as it was said that we were not to go into
Committee of the Whole because we would have our work to go
over again. It was decided to be the sense of the Convention
that we should take up these matters in the Convention instead of
going into the Committee of the Whole. I move to amend the
gentleman's motion by making it read that we consider File No.
131, section twenty-four.
The amendment of Mr. STEVENS was voted upon and lost.
Mr. PARSONS of Morton. To bring the matter before the
House I offer as an amendment that File No. 131 be substituted
in lieu therefor.
Mr. MILLER. We voted on that question once, and then we
voted to take up and consider the File.
DEBATES OF THE CONVENTION.
295
Mr. MOER. I do not think we are here considering this as
the report of the Committee of the Whole. We are considering
it as a Convention. As I understand the gentleman's motion from
Ransom, he moved that we proceed to consider the minority re-
port. The gentleman from Morton offers now section twenty-four
as a substitute for section twenty-seven of the majority report.
Mr. O'BRIEN. As I understand the matter, last night or
yesterday afternoon we went into the Committee of the Whole
for the purpose of considering this and other matters, File No.
121. We proceeded with the matter down to what is now section
twenty-seven of the majority report. At that time it was getting
late, the committee arose, and a few minutes after we adjourned.
No report has yet been made by the Committee of the Whole, or
at least no consideration by the Committee of the Whole has been
had of the sections from twenty-seven on down to the end of the
File. Now it seems to me that the proper thing would be for us
to resolve ourselves into a Committee of the Whole and take up
these different sections, or do it as a Convention.
Mr. STEVENS. I desire to ask what was done with the report
of the Committee of the Whole on the Judiciary so far as was
reported?
Mr. PRESIDENT. It was adopted.
Mr. STEVENS. Did not they also ask for further time to sit,
and was not that time granted them? How are you then to get
this out of the Committee of the Whole, having granted them
further time?
Mr. FLEMINGTON. I move that we do now resolve ourselves
into a Committee of the Whole for the purpose of considering
the Judiciary report.
Mr. PARSONS of Morton. I will withdraw my motion, for I
only made it for the purpose of placing these gentlemen in the
same light as last night.
The amendment of Mr. FLEMINGTON was seconded and adopted.
Mr. BARTLETT of Griggs. I move that section twenty-seven
of File No. 131 be substituted for the same section in File No.
121.
Mr. MILLER. The motion as made by the gentleman from
Griggs was covered in the last sitting of the committee, for I at
that time moved to substitute twenty-four for twenty-seven.
The CHAIRMAN. The Clerk says that the records do not so
show it.
296
DEBATES OF THE CONVENTION.
Σ
Mr. WALLACE. I wish to move an amendment-that in the
minority report after the words "organized county" in the first
line, these words be inserted: "In which a majority vote in favor
of the establishment of the county court shall have been had.”
The amendment was seconded.
Mr. BARTLETT of Griggs. I can see no reason why any man
on the floor of this Convention should oppose this amendment.
If this Convention or the members of it desire to deal fairly,
certainly there can be no opposition to it. All we ask is-as all
we have asked is that those counties that desire the benefit of the
county court shall have it, and those counties that don't want it,
shall not be forced to have it. They have been saying that they
don't want us to force the county court on them, and we have come
here prepared to say that we don't want to do it. We will meet
you half way and say if you will give us the benefit of the county
court, we will give you the benefit of your probate court. We are
not trying to create a new court. We are seeking to improve the
character of the one we have now, and I hope this amendment
will prevail simply in the spirit of fairness and justice.
Mr. MOER. Upon the report of the minority of the Judiciary
Committee there might have been a question in the minds of
some delegates whether they could support it. There might have
been those who were opposed to it for the reason that it enforced
a county court system on all counties in the State above a certain
population. Now the amendment proposed entirely obviates that
difficulty. It simply gives each county of the State the right to
have a county court if the majority of the voters desire it. In the
name of all fairness what possible objection can any delegate see
to this proposition? It is a proposition to leave the matter to the
people-not a proposition to force on them something that they
don't want. Whether it is a good system or not enters but little
into the case. What possible objection is there to be raised
against leaving the people to say whether they desire a county
court, or whether they desire to retain the probate court? It is
useless to go into an argument as to the respective systems—it is
a question whether you will let the people say what they want.
Many counties desire it, many possibly don't. Then allow each
crunty to have its say in the matter and settle it at home. It does
not cost the counties of Cass, Grand Forks or the other large
counties a cent if we have a county court in LaMoure county.
If LaMoure county votes for it I don't see what concern it is of
+
DEBATES OF THE CONVENTION.
297
Cass county. The opposition has come from the larger counties,
the reason being that their probate courts are now full of busi-
ness, and if they gave additional jurisdiction to the probate court
it could not take care of the business.
Mr. ROLFE. I wish to say just a word. It was urged last
night by the gentleman from Cass that the probate system was
the system. I suppose he means that he thinks this, and bases
his opinion on the experience he has of it; and his experience of
the probate system comes during his residence in Cass county,
which must always be presumed to have within its borders talent
enough to fill the office of probate court with credit to itself and
satisfaction to the litigants. The same is true probably of Grand
Forks. We have in this Convention, as one of the delegates, the
judge of probate of that county, and his record here has been a
good one. It simply strengthens the position which we took, that
the larger counties are enabled to have good probate courts while
in the outside counties they do not have probate judges of suffi-
cient intelligence to send here. It has been urged by members
of the Convention from the larger counties here to-day that the
Supreme Court should be a traveling court to accommodate liti-
gants. Now that argument came from gentlemen whom, if I am
not mistaken, oppose county courts. They live in the larger
counties, want litigants in the larger counties accommodated, but
they are not willing that litigants in smaller counties should be
accommodated in their inferior and primary litigation. If the in-
terests of the people are sufficiently important to make it requi-
site that the Supreme Court shall travel about the Territory to
accommodate litigants who are supposed to have heavy interests
involved, then certainly the county court should be granted to the
lesser litigants who are less able to pay the heavy expenses en-
tailed otherwise. We plead simply for fairness, and ask to im-
pose nothing on the larger counties which they don't want, but
simply that we in the smaller counties shall have the privilege of
establishing a court in our own borders which can handle the
comparatively insignificant business that we have.
Mr. BARTLETT of Griggs. I hope this Convention will not
be misled. I speak from some little experience, and as a man who
has had to put his hand down in his pocket. I know if I know
anything that the farmer, the poor man, ought to have a county
court. I know as well as I know anything that it will be the
means of saving them a great deal of money. It will keep busi-
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DEBATES OF THE CONVENTION.
ness from centralizing, and save money that would be spent hiring
lawyers to attend to cases between terms. If these gentlemen
don't want a county court in their own counties they are not
obliged to have it, but why not give it to those who do want it ?
Mr. CARLAND. Perhaps it devolves upon me to say some-
thing in behalf of the report of the majority of the Committee
on the Judicial Department. The majority of the committee have.
reported to this Convention a provision providing for probate
courts. A minority of the committee has reported a system of
county courts, and asks that it be substituted in place of the ma-
jority report. Now, of course we are all here for the purpose of
doing our best towards making a Constitution which will be
adopted by the people, and which will best subserve their interests.
on every particular subject that the Constitution treats upon. It
thus becomes necessary for the gentlemen proposing the minority
report to establish to the satisfaction of this Convention that they
have substituted and presented a better scheme than that pre-
sented by the majority. Now let us look at the minority report.
Even as amended-as the question is now put-providing that the
people shall vote on this-of course on this amendment arises the
whole question of the county courts; for if this amendment is
adopted it virtually adopts the whole minority report, and it must
stand or fall by its provisions. We have provided a probate court
with ordinary probate jurisdiction in every county. We have
provided a district court which shall hold at least three terms in
each county. What is provided by this minority report? It
starts off in section twenty-five with the following :
"County courts shall be courts of record and shall have a clerk and seal.
They shall have original jurisdiction in all matters of probate guardiahship
and settlement of the estates of deceased persons, and in all cases of lunacy."
Up to that point the county court has the same jurisdiction as
has been given by the majority of the committee to the probate
courts. Then the section goes on and reads:
In counties having a population or 2,000 or over, these courts shall also
have concurrent jurisdiction with the district court in all civil cases, wherein
the amount in controversy or the value of the thing sued for does not exceed
$1,000, exclusive of the interest and costs, except in matters of probate, guar-
dianship and the settlement of the estates of deceased persons.
There are a few counties that that section is drawn to especially
benefit. They are counties in which reside the advocates of this
report on the floor. This minority report puts the county court
DEBATES OF THE CONVENTION.
299
into these counties with the same jurisdiction that we have pro-
vided for the probate court. I desire to call the attention of the
Convention to this fact in reference to the allegation of the gen-
tleman from Benson-that these probate courts have become a
nuisance to litigants before them, on account of the irregular
manner in which proceedings are had. It is a fact that in every
new county the proceedings in courts of justice are irregular, and
it takes a great many years before they become systematic, and
before everything is done in proper order, and I say that if there
has been irregularity, and if there have been actions which would
subject the probate courts to criticism, it has been in the new
counties, and will continue under this minority report to be the
same, for there is no change in it except to change the word
"probate" to "county." It is further provided that the county
judge shall have jurisdiction in civil cases of $1,000. It is also pro-
vided that:
"Writs of error and appeals may be allowed from county to district courts,
in such cases and in such manner as may be prescribed by law; Provided,
That no appeal or writ of error shall be allowed to the district court from any
judgment rendered upon an appeal from a justice of the peace or police magis-
trate for cities and towns. County courts shall have such jurisdiction in crim-
inal matters as the Legislature may prescribe."
So it appears that there is to be established a court between the
district court and the justice court. In order to get from the jus-
tice of the peace to the district court, according to the minority
report, you cannot get from the justice court into the district court
direct, because it is provided that appeals shall lie from the justice
court to the county court, and appeals shall not lie from the county
court where they have rendered judgment on appeal from the
justice court. Secondly, you have established an inferior court
that has supervisory and appellate jurisdiction over justices of the
peace, and it is possessed of such jurisdiction as to subject mat-
ter and territorial limits, that it will never command the respect
of any person who is seeking to review the judgment of an infe-
rior court, as you will be no more satisfied with the judgment of
the county court than with that of the justice of the peace, and
you are precluded from appealing from, and getting out of, the
county court. I cannot see why this system of courts should be
established in counties of more than 2,000 inhabitants-certainly
it should not go into effect merely to change the name from pro-
bate to county, and make county courts instead of probate courts
in those counties. In section twenty-eight it is provided:
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DEBATES OF THE CONVENTION.
"County judges shall receive such salary as the Legislature may prescribe,
and the salary may be different in different counties but until so prescribed
the salary of county judges in counties having a population of 2,000 or over
shall be $1,500."
I say the salary is too high for a justice of the peace, and too
low for a man of sufficient ability to hold a court any better than
a justice of the peace in the county. As an item of expense,
also, if these courts are established in every county, it would
work greatly against them, in that they would be very expen-
sive. These courts would be possessed of such jurisdiction that
where a man has a district court in his own county that sits twice
a year where he can go in the first instance, he will go and these
county courts in such a case will only be engaged in trying petty
offenses and petty civil cases, which would have been tried by a
police magistrate or a justice of the peace. I don't agree with the
gentleman from Dickey that these courts will obviate the expense
of litigation so far as the attorneys are concerned, because if he
starts in the county court it is a certain thing if it is a case that
is litigated very closely an appeal will be had to the district court,
and if it is fought there hard, there will be another appeal to the
Supreme Court. I leave it to any gentleman of intelligent judg-
ment whether he can go into the county court and appeal to the
district court, and from there to the Supreme Court at as little ex-
pense as if the county court was not in the way. If we only have
the justice of the peace or police magistrate, if the suit is com-
menced there—if the party desires to appeal he may appeal to
the district court and from there to the Supreme Court. But here
he would be obliged to appeal to the court of inferior jurisdiction.
He would not probably be any more satisfied with this judgment
than with the judgment of the court from which he appealed,
especially if it is a jury case. Of course I can imagine how those
gentlemen who advocate county courts, have been inconvenienced.
I have experienced the same thing myself. It was because we have
not had enough judges in the Territory for the last ten or twelve
years, but that system is going to be changed. We must not
judge the future by the past. It would be unfortunate for us if
we were not going to better our condition by forming a Constitu-
tion. That is what we are trying to do, and we have made these
judiciary districts with a term of court in each organized county
twice a year, and I don't think the grievances will ever occur
again, and I think, that if we were to-day practicing law under
DEBATES OF THE CONVENTION.
301
the system proposed by the majority report, they would not be in
favor of this county court system.
Mr. MOER. I want to call attention to one thing—the gentle-
man's remarks will, perhaps, call attention to some defects in the
minorty report-things that should be remedied and perhaps
changed. But the gentleman begs the whole question, because
he pays no attention to the amendment of the gentleman from
Steele. The change is to be made by a vote of the people. What
objection can he raise to allowing the counties, if they see fit, to
have a county judge? The objection is to the population. Pos-
sibly that objection would be well taken were it not that the
amendment had been offered. Under the minority report it was
proposed that the Constitution should fix county courts in all
organized counties of over 2,000 population. Now, under this
amendment, it merely fixes them in counties that vote for them.
As to the salary, the gentleman thinks it too low. Perhaps it is.
If so, the gentleman can make an amendment to raise it. As far
as that is concerned, I know in certain states in this Union judges
of the district court get only $200 or $300 more, and possibly
they will compare very favorably in point of ability with the
district judges that we will have. But the question resolves itself
to this will this Convention allow the people of the counties to
say whether they will have a county court or not? Is there any-
thing unfair about that proposition? I have talked with a num-
ber of gentlemen who have opposed the county court system, and
their position has been based entirely on the question that it was
to be forced upon them. Give the county court to those counties
that want it, and to those only-give them the right to say whether
they will have it. We are safe in leaving this to the people them-
selves.
Mr. BARTLETT of Griggs. I agree with the gentleman from
Burleigh in this—that we are here for the purpose of giving the
State the best judiciary system we can, but it strikes me that a
man who rises and says that he opposes this amendment, is actu-
ated by some other motives than the best interests of the State.
The county court system has been tried before. It is in use in
Illinois, Colorado, New York, Nebraska, Missouri, and several
other states. I have letters from some of the most eminent
lawyers in Colorado and Illinois. They say that it is unquestion-
ably the most popular court with the attorneys and the people, and
yet these gentlemen here say that the counties of North Dakota
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DEBATES OF THE CONVENTION.
that want to take advantage of the system shall not do it at their
own expense. I think it is an outrage and unjust. We have had
gentlemen wax eloquent in behalf of bringing the Supreme Court
to their doors-we have had attorneys grow eloquent on behalf of
sitting in their offices and suing a man anywhere in this Territory.
Now it does seem to me in view of the fact that the opposition
comes from where?-from solely and absolutely and entirely the
counties that know they would be the centers of the judicial dis-
tricts, and would always have the judges of the district right at
their doors-it does seem to me in view of this, that something
else enters into our deliberations other than the best wishes for
the welfare of the State. Last winter I read some remarks made
by Judge Walter Q. Gresham. The question under discussion
was the relief of the higher courts. He said that Illinois suffered
less than any other state so far as his knowledge went in that
regard, and he said that it was due in a measure to the superior
quality of their inferior courts. He said that a state could afford
to pay $10,000 a year to a Cooley to sit on the county or district
court bench, better than $5,000 on the Supreme Bench. I believe
that the better the judge we get in the courts of original jurisdic-
tion the cleaner and better is our litigation. We don't propose to
put a Cooley on the county court bench, but we propose to get
better men than we have as justices of the peace. We propose to
try to improve and elevate our courts of original jurisdiction.
That is all we ask. I want to read a portion of a letter from John
P. Altgeld, of the Superior Court of Cook county, Illinois. I
wrote him-I did not know him, except by reputation, and I wrote
him particularly as to the popularity of the county courts
throughout the state, and not in the City of Chicago. His words
ought to have some weight with the members of this Convention
who have not made up their minds on this question. He says:
"In answer to your letter inquiring about the jurisdiction, use-
fulness and popularity of county courts in this State, and whether
they could not be made to take the place of justices of the peace,
so as to do away with the latter, permit me to say that in this
State, county courts have jurisdiction in all tax matters, insane
cases, all probate matters, election matters and in civil cases where
the amount involved is less than $1,000. In this county owing to
the press of business, the Legislature created a probate court sev-
eral years ago to relieve the county court. I may say that the
county courts have jurisdiction in those matters which come
DEBATES OF THE CONVENTION.
303
nearest to the people, and most directly affect them; and all
things considered, I believe they are the most useful and the
most popular tribunals in this State. So far as I can observe,
business is usually done, not only in a legal, but in a businesslike
and common sense way by them, and without unnecessary delay,
the latter being something which cannot always be said of our
higher courts. I would recommend the abolition of the office of
justice of the peace, and give the county court jurisdiction in all
such matters, taking care, however, at the same time, to provide
that the county judge, as well as the clerk and sheriff, should be
paid a fixed salary-should under no circumstances have any fees,
but that all fees, where any are collected, should be paid into the
county treasury. If you have justices of the peace you cannot
pay all a salary, because of their number. And while there will
be here and there one to whom the office will be incidental, there
will be a great many who will depend largely on the fees for a
living; and this leads everywhere to the same results, viz., injus-
tice, oppression, extortion and frivolous lawsuits, ruinous in
the expense and loss of time they entail. The courts become
clogged with business, while the poor and ignorant suffer. Do
away with both justices and constables, for they must depend on
fees; and it is difficult to conceive of a worse demoralization and
rottenness than usually grows out of the system. Provide for
sufficient deputy sheriffs to do all the work required to keep peace
and do the court work, and pay each a salary, and under no cir-
cumstances let any keep the fees. To permit any officer, whether
judicial or executive, connected in any manner with the adminis-
tration of justice, to collect and keep fees, is to offer a standing
temptation, if not a bribe, to do wrong in very many matters. And
it is asking too much of human nature to expect a hungry man to
be very particular about the means or methods which will secure
him bread.
"Have the courts easily accessible and always open for business.
There is no sense in having terms of court, and these held only a
few times a year, so that there must be delay in getting a trial,
whether there is much business or not. If the same judge is to
hold the court in several counties, or if there is but little busi-
ness, he can easily arrange matters by having the clerk give notice
as to when a case will be heard. There is no reason why the
average case should not be tried in the circuit court in fifteen
days after service, just as it would be before a justice of the peace.
304
DEBATES OF THE CONVENTION.
*
"In regard to reforms in the administration of justice, I will
say that last winter at the request of the Hon. Sherwood Dixon,
then a member of the Legislature, I pointed out some of the most
glaring defects, as well as the results following, and made some
suggestions as to amendments. This was published at the time
in all of the Chicago papers. * * * * Although no general
amendmeut of the law relating to the practice in our courts was
passed last winter, yet there is no doubt that it will soon be brought
about, as the sentiment in its favor is becoming general."
I
Mr. BARTLETT continued: That testimony ought to be
worth something. It should stand somewhere on a par with that
of the man who gets up here and says we don't want county courts,
and that the county that asks for them cannot have them.
have another letter here from L. C. Rockwell of Denver, Colorado.
I wrote him asking the same question. Mr. Rockwell has a more
extensive and lucrative practice than any attorney in Dakota or
Minnesota. He is recognized as the leading civil lawyer in the
city of Denver, and I venture to say that there is not a county in
that state that he has not practiced in. He says:
"Your favor of the 8th inst. is at hand, and I regret the delay
in answering, but owing to a multiplicity of duties, was unable to
give it attention until now. I gladly reply to your inquiry, which
is as to the working of the county courts under the system of
laws in force in Colorado, and you will pardon me if I go a step
further and offer a few suggestions upon other points as to what
in my judgment ought to be embraced somewhat more fully than
is usually found in Constitutions. First, as to your inquiry. We
have found the county courts very useful and likewise the juris-
diction bestowed upon them very beneficial to the people. Before
the adoption of our Constitution, the Territorial Legislature be-
stowed upon probate courts then, now county courts, jurisdiction
not to exceed $2,000. In several cases the judges elected to pre-
side over these courts were disqualified, but generally they were
competent, upright men. If an incompetent man was elected he
did but little business. Suits were brought in the district court.
In many of our counties, which are unreasonably large and quite
difficult of access, it is expensive to summon a jury as well as
costly to have the full machinery of a district court put in motion
to try perhaps three or four cases when that business could be as
well done by the judge of the county court. I would advise the
same qualifications as to learning, and experience in practice of
DEBATES OF THE CONVENTION.
305
the law in a county, as the district judge. You need not be afraid
but what some man in the county is eligible to the position, if not,
politicians are numerous, and they will soon migrate and present
themselves to supply the want.
"Another improvement could be made, which is that a jury
might be summoned without either party advancing the costs. It
not infrequently happens that the party can ill afford to advance
$16 or $20 for the sake of getting a jury, and, too, there is no
reason why a jury should not be called and paid for in the county
court the same as in the district court."
I have other letters here which I will not read. But I will
read a portion of a letter from A. P. Rittenhouse of Denver,
which has some good points. He says:
"The county court is a good one and a popular feature of our sys-
tem of jurisprudence. Both lawyers and people like it. There is a
strong feeling among us that all judges should be learned in the
law; also that they ought to be paid in salaries rather than by
fees. People who litigate ought, of course, pay for their litiga-
tion, and fees therefor should not be abolished. The trouble with
the fee system is that in large towns it makes the compensation
of judges and other officers large beyond reason, and in small
rural places by no means adequate. Let fees be paid, turned into
the treasury, and withdrawn in well regulated and adjusted salaries.
for the officers."
Mr. BALTLETT continued: In Griggs county the expense
of the district court, aside from the expense of summoning the
grand jury, was $3,200. The amount of civil judgments rendered
in our last two terms was between $800 and $900. We could
better have paid every judgment that has been rendered there
and have saved 400 per cent., than to have held these expensive
district courts to try those cases. I believe the man who liti-
gates should in a measure pay for his litigation. If I owe a man
$100, no other man has a right to pay for a jury to try that case.
I ought to pay it if I lose, and that is the system usually adopted
in the county courts. There is no expense to the county court ex-
cept the salary of the judge, and it will be found that when a
system of fees are established, they will more than balance the
salary. In Colorado there was a fee system up to this winter. In
some counties, while I was there, the fees ranged from $2,000 to
$15,000 a year, and it was deemed too much, and they were mak-
ing strong efforts to have the county court a salaried court, and if
20
306
DEBATES OF THE CONVENTION.
I mistake not it was so made last winter. They also increased the
jurisdiction of their county courts. If it was unpopular why did
they do this? If it is unpopular, why did the representatives of
the people increase, instead of diminishing its jurisdiction? In
counties that wish it, we desire that they shall have a county
court at their doors. All we ask is that when a man comes into
our offices and says that he wants a stay or an injunction, we won't
have to go to the expense of going thirty or fifty miles to get it,
and I venture to say that if the gentlemen who are opposing this
motion had this to do very often, they would be asking for some
such system. There is not a note in Griggs county but has a de-
fense on account of usury. Nearly every one of these are secured
by chattel mortgages. There is hardly a day in the fall but some
one comes into my office and wants to know if he cannot get an
injunction preventing a foreclosure. He will say: "They say they
are going to take that stock." There has, perhaps, been a por-
tion paid, and there is no endorsement on the note of that pay-
ment. Or perhaps he says he is willing to pay the principal and
legal rate of interest, but not the expenses that are charged up.
I tell him he can get an injunction compelling the plaintiff to fore-
close in the district court, but that I would have to go to James-
town or elsewhere to see the judge, and there is an expense, and
if the stock has been taken possession of, it will eat its head off
before you can get the case to trial. We ask that these people
can have a county court in their own county if they want it. The
gentleman from Burleigh has gone over the whole matter, not con-
fining himself, and perhaps I have not, to the amendment. As he
has gone that far, I will go a step further and mention the pro-
visions in the original report in regard to justices of the peace.
It proposes to force every man justice-of-the-peacewards if his
claim is $50 or less. You might as well have a rule that the two
men shall go into a room and flip a coin to see which shall have
it. Any lawyer who has had experience in a justice court knows
that it is so, and that is one of the provisions in the majority re-
port. We ask simply and solely that we have the benefit if we
want it, of the experience of other States in regard to county
courts. I have been surprised at the position taken by a good
many members in this matter. I have been told by a delegate to
the South Dakota Constitutional Convention in 1885, that they
put the system of county courts into their Constitution, and he
does not remember that there was one word of opposition to it at
DEBATES OF THE CONVENTION.
307
7
that time. It went through as a matter of course, as the best
system they could devise, as an improvement on the probate court
-not as the establishment of a new court, but as an improvement
on a court already established, and he says he has never heard
one objection raised to the county courts in that state.
Mr. PURCELL. As the presiding officer said, the question
before the committee was whether the amendment should be sub-
stituted for section twenty-four. But I judge from the discussion
of the question that it has not been confined to the motion under
consideration. This is a very important matter to the citizens of
the State of North Dakota, whether or not this motion prevails. It
is sought by this substitute to do away entirely with probate courts
and establish in their stead county courts. In this substitute
nothing appears to be said about the abolishing of the justice of
the peace, but on the other hand it allows their existence, and
leaves it to the Legislature to say how they shall be located and
how many there shall be. If there is any man in this Convention
who can state here a sufficient reason for the abolishing of the
probate courts as they are now constituted, I should like to hear
him. The gentleman from Benson states that they are not all they
should be in many respects-that those who occupy the position
of judge of probate to-day in the numerous counties of North
Dakota are not by experience and practice fitted for the duties
necessarily devolving upon them. Mr. PRESIDENT, in many of the
older states of this Union, the same position of judge of probate
is filled by officers who are not lawyers and who have not had
experience in the practice of law. In the State of New York the
estates of widows and orphans, the estates of minors, and of those
under guardianship are passed upon, supervised and handled by
men who are not lawyers. The office of surrogate as constituted
in that state and in New Jersey and many of the old states in the
Union, possesses duties precisely like those of our judge of pro-
bate. The surrogate of the county of Queens and of the county
in which the City of New York is located, are not required to be
lawyers, but can be laymen, and the way these men perform their
duty meets with the approval of the people. The system by which
estates are settled does not require a man learned in the law to
faithfully carry out the duties that are imposed upon him. All he
has to do is to understand the nature of the work before him, and
it is plain sailing if he has judgment. Our statute is simple and
plain in regard to the settlement of estates, and the judge can get
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DEBATES OF THE CONVENTION.
his printed blanks, and if any man suffers by the act of the judge
of probate he has a right to appeal to the district court. There
all matters go up on appeal. If there is error in his judgment;
if his acts have been illegal, or if it is necessary for his acts to be
supervised, the judge of the district court can supervise them,
precisely as they could be by the judge of the county court.
Why is it that this measure is so strenuously insisted on by the
gentlemen who are supporting it? Is it because of necessity?
Is it because in this great Constitution that we are now forming
we have not made ample provisions for the dealing out of justice?
Heretofore we have had but three district courts in which all the
business of North Dakota was supposed to be done. It is true
that this was not satisfactory, but we have already adopted a
clause in the judicial bill which gives us six judges instead of
three, and deprives those Judges of Supreme Court powers, and
we have created a Supreme Bench, making nine judges to take the
place of three. Can it be claimed that the business of this new
State is six times behind what it should be? The district court
judges of the past not only had the cases of the Supreme Court
of North Dakota, but they had to sit in judgment on cases in
South Dakota, so that they did other work besides that which
arose in North Dakota. Is it possible that the business of this
new State cannot be safely and successfully carried on, and safely
and successfully disposed of by all the judges that we have pro-
vided for? Is it necessary that we should establish an interme-
diate court-a court between the court of the justice of the peace
and the district court for the pleasure of a few men who ask it,
because in their counties they do not have a judge residing there?
The reason they insist so strenuously is this, and it must be ob-
vious to everyone who has sat here and listened to the arguments—
it creates an office, and it gives some man an opportunity of be-
coming a county judge. There are fifty-three counties in North
Dakota as shown by our File No. 121. Of these counties I am
informed that thirty-two possess a population of over 2,000 each.
Those counties with a population of over 2,000 each would be en-
titled to a county judge. That would make it nearly $50,000 that
would be paid out every year in this State for the salaries of
county judges alone; $50,000 a year paid out in North Dakota
for salaries for what? For the office standing midway between
the justice court and the district court, and what do you get after
your case has gone from the county court judge? You get no
DEBATES OF THE CONVENTION.
309
nearer the law than when you started, for in many counties the
man who will occupy the bench as county judge will be the same
man who in the past has been justice of the peace, and we all
know that in many counties in this territory the judges have
abused their power, and admitted men to practice law-have stood
them up in rows and sworn them in-who were a disgrace to the
profession and they are now practicing. They are the men who
are working to have this office created-they are the men who
stand here (not that I wish to reflect on anyone here) and plead
for the establishment of these courts, and will be most likely to
occupy the position of county judge. Is it possible to receive
from these men the law you are asking for? Are you not in just
the same position that you were when you started? Is it not
necessary to go from them to the district court or to some other
court that is supposed to know the law?
Think of over $50,000 paid in salaries, and this is a small item
compared with what the aggregate will be. Why? Because if the
county court runs there must be the bailiff the sheriff who lives
by his fees will be active-the clerk of the court will also need
pay. The general jury, or the jury that sits around and asks to
be called occasionally, will be active. This court will cause an ac-
tivity in law matters that will be surprising. Where a court is
open and where men can go into court with their grievances, liti-
gation will be encouraged, and parties when they get there will
bring in all the witnesses and expenses they can. All the officers
of the county court will pile up every dollar they can pile. I say
this is a fact, for they have existed in the past and it has been the
experience where county courts have existed. There are fifty-
three counties in North Dakota, and at $1,500 a year each it would
mean $79,500 for salaries, and then the litigant would be in the
same position that he was when he left the justice of the peace.
This bill which is so strenuously insisted on requires that a man
who becomes county judge must have the same qualifications as
the district judge, except that he must reside in the county in
which he is elected. If he is a man of equal qualifications, he is
working for too low a figure, and if he has not the qualifications
he is not worth it. In my practice the getting of an injunction is
a very seldom proceeding. It is something that is not very often
indulged in, and if there is a man who comes into the office of
the gentleman from Griggs, and tells him some one has a chattel
mortgage on his stock, all he has to do is to say that the man must
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go home and refuse to give up his stock. If he does that, this
man who is so afraid his stock will be taken, will be protected,
and instead of that man taking the stock, the sheriff will take it
according to law, and then the bond of the officer will protect the
client from any damage he may sustain.
When these gentlemen stand here and hold up these little inci-
dents we should remember that our statutes and our Legislatures
have protected every man in his rights, but there are instances,
and I don't deny it, in which it is necessary in a very short order
to have an injunction. But these cases will exist if the judge
boarded in the house-they will always exist. The practice as it
is proposed by the majority bill is this-that with the Supreme
Court separate and distinct from the district courts they will be
sufficiently ample to attend to all the business brought before them.
As six district courts are required to hold two terms of court every
year in each organized county, the judges will be enabled to go
over each district and hold four terms of court a year where it is
needed. Under our present practice it requires thirty days from
the service of the summons or complaint within which to put in
an answer. It requires ten days to give notice, virtually, so that a
case cannot possibly be got into court within less than fifty days
from the time the case is commenced. With a court twice a year
a man will have no time to lose to get his cases prepared for the
coming trial. I presume the same rule would prevail in the county
court, and what is the use of having a county court and a district
court, when there is no provision for getting your case tried
quicker in the county court than in the district court. Therefore,
Mr. PRESIDENT, it seems to me that those who go to work for the
county court, or seek the privilege of voting for it, do it simply
because it would be convenient for them, and not because it would
be a benefit to the people. It is a very nice turn the gentlemen
have made from the original proposition when they now ask by
their amendment to submit this to a vote of the people, and only
those counties that vote on it will have it in force. I say that it
will be comparatively easy for any man or set of men to have this
done when the people are not prepared for it, and we all know how
easy it is to spring a matter of this kind when the people have
not looked into the matter, and know nothing of the merits of the
case. It has always been the province of Constitutional Conven-
tions to fix the different branches-executive, legislative, judiciary.
It has been the province of every Constitutional Convention to do
DEBATES OF THE CONVENTION.
311
that, and they are generally called specifically for that purpose-
to say what shall be the executive, and what shall be the legisla-
tive and what the judiciary. That is what we ask you to do by the
majority judiciary report.
Mr. PARSONS of Morton. I should like very much to answer
the gentleman, but I respect the feelings of some, and will not.
It has been charged here that any man who would dare to advo-
cate the county court system was guilty of personal feeling or per-
sonal aggrandisement. I repel the accusation. I stood here and
advocated this, and I dare to stand here and advocate it again, and
I would like to say that I am just as free from any aspirations to the
position of county judge as the gentleman from Burleigh or the
gentleman from Richland may be for a judgeship of some of the
higher courts. It is a poor rule that won't work both ways. It
may be that some of the gentlemen who are opposing county
courts are doing so because they think that these courts will de-
tract from the dignity and importance of the district courts.
Briefly consider the situation: We are met with this question.
The objection was raised to making the Supreme Court from the
judges of the district court, and we have gone to an expense of
nearly $20,000 to keep the Supreme and the district courts sepa-
rate. Now they bring in the most preposterous theory that it
would cost the people $70,000 to run the county courts. As one
gentleman has said, the opponents of this system beg the ques-
tion. I would ask if the arguments they have adduced is all they
can produce in favor of the district court system? I trust to the
good sense and the common sense of the delegates here to detect
the fallacy. As a principle of right and justice I don't believe
that there is a gentleman here that wishes to take the probate
court from the county that wishes to have it, but I do believe that
county courts are the courts of the people. They are close to the
people, and it is a fact that when speedy justice is meted out, it in
a great degree determines the prosperity of localities and sections,
and it is a fact, and the records show it, that county courts have
been a benefit. I wish it left on the records in such a way that
when any county wants to have a county court, it can have it.
We don't seek to take away the probate court, but we do seek to
have the opportunity of having the county court if we want it.
If you will look you will see the enormous sums of money that
have been paid for the terms of the district court. We have had
our jails full when they should have been clear. All we ask is
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DEBATES OF THE CONVENTION.
that those counties that wish to, shall have probate courts, and
those that want county courts shall have them.
Mr. MOER. I move that the committee do now rise, report
progress and ask leave to sit again.
The motion was carried.
Mr. SELBY. I move to adjourn.
The motion prevailed, and the Convention adjourned.
THIRTIETH DAY.
BISMARCK, Friday, August 2, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
EXEMPTION LAWS.
Mr. GAYTON introduced the following resolution and moved.
its adoption:
"Resolved, That the Committee on Judiciary be instructed to report an
article prohibiting the Legislature from ever changing or repealing the present
Territorial Homestead and Exemption Laws.”
Mr. SCOTT. I am in favor of the resolution. It appears to me
that this is one thing that Dakota is sought for by the people of other
states. People who have been unfortunate in business relations else-
where, and knowing that we have a liberal exemption and home-
stead law, will come here and take up their residence if there is
any guarantee that that exemption will never be repealed. As it
at present stands there is 160 acres of land and $1,500 worth of
personal property, and I believe that that very fact is a great in-
ducement to settlers from other states to come in here and make
this place their home, and for that reason I am in favor of the
adoption of this resolution.
Mr. BARTLETT of Dickey. I want to enter my protest
against any such resolution. I do so as a farmer. The
The very idea
DEBATES OF THE CONVENTION.
313
of fixing it so that the exemption should not be changed! Just
think of it for a moment-bidding to get men here who propose
getting into a fix so that they can get the advantage of that law.
That law was framed in the first place to benefit the settlers, but
now the most of them have got so that they could get along even
if they did not have so much exemption. I believe to-day that if
the exemption was cut down it would be a help to the poor man.
I believe that; and I also believe that it would help the poor man
to get credit where now he cannot get any. Now they have to
march up to the common altar and give security.
Mr. STEVENS. I am opposed to this resolution for more
reasons than one. First, we have come here to deliberate upon
what shall be the Constitution that is to be submitted to the peo-
ple of this Territory. We have seen fit to provide that each
article, in order that it may be properly considered, shall be first
introduced; after having been read it shall be referred to a com-
mittee; after that committee has reported, and the printed report
has been placed on the desks of the members, it must go to the
third reading and final passage. This resolution contemplates
the passage by a single swoop of one of the provisions of this
Constitution without further consideration than a vote upon this
resolution, as it directs that that committee shall report, and if
this resolution is adopted every man who votes for its adoption is
in honor bound to vote for the report that they have directed to
be made, so that in fact the vote on this resolution if carried will
settle the question as to the exemption laws. I am in favor of
passing a Constitution here that will be as free from objection as
it is possible to get it. I am in favor of passing a Constitution
without weights upon it to go before the people, but every mer-
chant and every business man who has a single cent at stake, will
say that a Constitution adopted in such a form as that will prevent
the Legislature from reducing the exemption if they see fit, and
they would feel it to be against their best interests and the best
interests of the State to vote for it. It would be, in my opinion.
a weight—a millstone, slung about the neck of this Constitution
when it went before the business world of North Dakota. Who
can this benefit? Can it benefit the farmer? Undoubtedly not.
Let us make this Constitution so that every farmer, every busi-
ness man, every professional man will be cared for under its
provisions, and if it does not suit those who see fit to come here,
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DEBATES OF THE CONVENTION.
let them stay away. The interests of the farmers and business
men are identical.
The farmers cannot pass a constitutional provision here that
will be to their benefit unless it is also to the benefit of
the merchant and the manufacturer. The merchant and the
manufacturer are as necessary to the interests of the farmer
as the farmer is to the merchant, and the merchant with-
out the farmer would be an absolute failure. There is no
danger of the business man ever attempting to pass through
the Legislature a provision that will be against the inter-
ests of the farmer. It is true that combinations are sometimes
made which are against the interests of the farmer, but they don't
last. If we place this clause in our Constitution we have placed it
beyond our control. I say that the passage of that resolution would
be a detriment to every farmer in this country, because it would
not only be a millstone around the neck of this Constitution when
it came to be submitted, but it would also be a provision that they
would themselves desire to change. Fifteen hundred dollars and
160 acres of land may, in the present situation of the Territory,
be ample and sufficient, and it may be as little as it should be. I
am in favor of a liberal exemption, but I cannot say that I am in
favor of seventy-five men here saying that they shall forever pro-
vide in this Constitution that no power except two-thirds of the
people of this State can ever change those exemptions. I say I
am opposed to the resolution, and I believe that every farmer who
understands his best interests will also be opposed to it. I am
opposed to it, and I believe every business man who consults his
best interests will be also opposed to it. I am not opposed to the
present exemption laws, necessarily, but I am opposed to putting
it in the Constitution where it cannot be changed by the will of
the people through their Legislature.
The resolution was lost by a vote of 69 to 4.
The Convention then resolved itself into Committee of the
Whole for the purpose of considering Files Nos. 121 and 131.
PROBATE AND COUNTY COURTS.
Mr. CARLAND. There has been considerable discussion on
the question of adopting the minority report of the Judiciary
Committee as a substitute for the majority, relating to probate
courts. I have prepared what I think will be a measure which
can be adopted by those persons who are in favor of county courts,
DEBATES OF THE CONVENTION.
315
and those who advocated the other side. My amendment will be
a substitute motion as follows:
That the word "probate" where it occurs in section twenty-four and twenty-
five of the majority report of the Committee on Judiciary Department be
stricken out, and the word "county" inserted, and that at the end of said sec-
tion twenty-five there shall be added the following proviso: “Provided, That
whenever the voters of any county having a population of 2,000 or over shall
decide by a majority vote that they desire the jurisdiction of said court
increased above that limited by this Constitution, then said county courts shall
have concurrent jurisdiction with the district courts in all civil actions where
the amount in controversy does not exceed $1,000, and in all criminal actions
below the grade of felony; and in case it is decided by the voters of any county
to so increase the jurisdiction of said county court, then the justices of the
peace of such county shall have no exclusive jurisdiction, and the jurisdiction
in cases of misdemeanors arising upon State laws which may have been con-
ferred upon police magistrates, shall cease. The qualifications of the judge of
the county court in counties where the jurisdiction of said court shall have
been increased, shall be the same as those of the district judge, except he shall
be a resident of the county at the time of his election, and said county judge
shall receive such salary for his services as may be provided by law.
Mr. MOER. I second the adoption of the substitute.
Mr. PURCELL. I also second the adoption of this substitute,
for this reason: As the committee stated last night there was
considerable feeling on both sides with reference to the aboption
or rejection of the report of the majority. The adoption of the
minority report would force on some counties a court that they
did not desire to have. The adoption of the majority report
would have kept some counties from having a court that they
seem to want. This resolution creates a county court by the
Constitution, but leaves the jurisdiction of that court to the peo-
ple of the respective counties. I think it is just and fair, and
should receive the sanction of the members of the Convention.
Mr. ROLFE. I would like to have the privilege of seconding
the motion of the gentleman from Burleigh.
Mr. CAMP. I would like to ask if there is any means by
which a county can get rid of a county court after once it has
adopted the plan?
Mr. MILLER. In view of the fact that it is a matter of grave
importance, and there has been a difference of opinion in regard
to probate and county courts, and as it would seem to be practi-
cally settled by this amendment, I should like to have the amend-
ment printed and laid over till to-morrow. We will not be wast-
ing any time by doing this, but will be saving time. Some of us
316
DEBATES OF THE CONVENTION.
might feel like making amendments to it now, which we might
not make after having thought the matter over. I therefore move
that the consideration of the report be deferred till after it has
been printed.
The motion was seconded.
Mr. LAUDER. It seems to me that this Convention has had
this question under consideration a sufficient length of time, and
has discussed it at sufficient length to understand just about what
the members want, and it seems to me there is no necessity for
this delay. It is now under consideration and can be disposed of,
and I am opposed to this deferring action on these matters from
day to day.
Mr. MILLER. I made the motion only for the purpose of
saving time. If the amendment is discussed now there will be
several amendments offered to it. I can see grave objections
to its adoption, while in the main I am satisfied with it and satis-
fied with calling the probate court the county court and under
certain circumstances increasing the jurisdiction, but there are
other matters there that in my opinion need to be changed. I
made my motion for the purpose of saving time. It is an entirely
new question that is before us.
The motion of Mr. MILLER was adopted.
Section twenty-six of File No. 121 was then read.
Mr. SELBY. Inasmuch as the proposition for county
courts has been postponed and the subject of justice courts be-
comes a part of the subject matter, I move that this matter be
deferred also, to be considered at a subsequent meeting of this
committee.
The motion was seconded and adopted.
Mr. SCOTT. I move that sections twenty-seven and twenty-
eight be postponed for the present.
The motion was carried.
Mr. POLLOCK. It seems to me that the proposed change
with regard to county courts will have an effect on sections
twenty-nine and thirty, and I move that the consideration of
these sections be postponed.
The motion was seconded and adopted.
THE GOVERNOR.
File No. 122 was then considered. Section one was adopted.
Section two was then read as follows:
DEBATES OF THE CONVENTION.
317
SEC. 2. No person shall be eligible to the office of Governor or Lieuten-
ant Governor except a citizen of the United States and a qualified elector of
the State, who shall have attained the age of thirty years and who shall have
resided two years next preceding the election within the State or Territory,
nor shall he be eligible to any other office during the term for which he shall
have been elected.
Mr. SCOTT. I move that that the word "two" in line four be
stricken out and the word "five" inserted in its place. If there is
any reason why any official place in the State should be filled by
a man who has had some lengthy residence in the State, there is
every reason why that of the Governor should. I don't believe
that it should be possible under the Constitution for a man to
come into the State and in a period of two years attain to the
gubernatorial chair. I believe that five years is short enough
and that he cannot in less than that time become acquainted with
the wants and desires and necessities of the people.
Mr. ROWE. In the fifth line the question arises whether a
Governor should be prohibited from being elected to any other
office outside of the State. Not infrequently Governors are sent
to higher places, and the question arises whether this provision
would prohibit anything of this kind.
The CHAIRMAN. You must put your own construction on
that.
Sections three and four were adopted.
The motion of Mr. SCOTT was adopted.
THE QUESTION OF PARDONS.
Mr. CAMP. I move as a substitute for section five that File
No. 8 be adopted. Section five reads as follows:
"The Governor shall have power to remit fines and forfeitures, to grant re-
prieves, commutations and pardons after conviction for all offenses except
treason and cases of impeachment, but the Legislature may by law in all cases
regulate the manner in which the remission of fines, pardons, commutations
and reprieves may be applied for. Upon conviction for treason he shall have
power to suspend the execution of sentence until the case shall be reported to
the Legislature at its next regular session, when the Legislature shall either
pardon or commute the sentence, direct the execution of the sentence, or grant a
further reprieve. He shall communicate to the Legislature at each regular
session each case of remission of fine, reprieve, commutation or pardon granted
by him, stating the name of the convict, the crime of which he is convicted,
the sentence and its date, and the date of the remission, commutation, pardon
or reprieve, with his reasons for granting the same."
The section I desire to substitute for it reads as follows:
318
DEBATES OF THE CONVENTION.
"The Governor, Attorney General, and the Judges of the Supreme Court
shall constitute a Board of Pardons, in which shall be vested the sole power to
remit fines and forfeitures, grant reprieves, commutations of sentence and
pardons. The meetings of said board shall be held at the Capitol, shall be
called by the Governor, and not less than ten days' public notice thereof shall
be given. Two-thirds of the members of said board shall be a quorum for the
transaction of business. A record of the proceedings of said board shall be
kept. No fine or forfeiture shall be remitted, no reprieve, commutation of
sentence or pardon granted unless two-thirds of all the members of said board
shall vote for such remission, reprieve, commutation or pardon; and the voting
shall be by ballot."
Mr. CAMP. The question of pardons is one that has per-
plexed and puzzled the legislators of many states, and all those
who are interested in the general subject of government. Upon
the Governor, if the pardoning power is placed in his hands, im-
mense pressure, is frequently brought to bear. We all recollect
vividly the scenes connected with the last days of the Chicago
anarchists-what a tremendious pressure was brought to bear on
the Governor of the State of Illinois to pardon those men. My
propositition is somewhat similar to the system in vogue in the
State of Pennsylvania, which you will find set out in File No. 106,
page 31. In that State there is a Board of Pardons and the
Governor is only allowed to pardon on the recommendation of that
board, whose sessions are public and proceedings are in writting.
Practically the only change I make is that the votes of the board
shall be by ballot, so that no friend of the criminal nor any other
person shall know how those men possessing the pardoning power
have voted. It seems to me that such a board, composed of more
than one individual, can handle this matter of pardons with much
greater safety to the State, and do their work in such a manner,
that the laws will be respected more than one man can.
Under
the present system of pardons a great many men are pardoned
from various motives who ought never to be let out of the prison
to which they have been consigned. That is so, and it must
remain so as long as the pardoning power is left in the hands of
one man.
Mr. ROWE. I desire to speak in favor of the report of the
committee, and I hope the amendment of the gentleman from
Stutsman will not pass. The committee, when they had this under
consideration, were unanimous in expressing the opinion that the
pardoning power should rest with the Governor. The Governor
who is elected to the highest office in the gift of the State, is sup-
DEBATES OF THE CONVENTION.
319
posed to be a man of ability and integrity, and when we place this
responsibility on one man he realizes the situation, and acts with
more judicious care than if it rested on a Board of Pardons who
were allowed by their ballot to shirk the responsibility. As the
gentleman called our attention to Illinois, I would call your atten-
tion to the fact that that grand old man, Richard Oglesby, rose to
the occassion and refused to exercise the pardoning power in the
cases referred to. I again say that where you place on the one
man the responsibility, he will use it with more judicious care
than if it was put on a Pardoning Board who can by a secrect
ballot shirk their responsibility.
Mr. JOHNSON. I concur with the remarks of the gentleman
from Dickey, and am firmly of the opinion that in cases of this
kind we are more likely to get just decisions when the people have
some method of fixing the responsibility where it belongs. I
consider the worst feature of File No. 8 is that which allows this
responsibility to be so that it will be utterly impossible for peo-
ple to fix it. It would be vicious enough if it were left in such a
manner that one member could shift it on to another. The peo-
ple and the parties would be confused, and there would be no dis-
tinct and conspicuous figure on whom to fix the responsibility. If
you have a governor who exercises this power who is required to
give his reasons and report every case to the coming Legislature,
then the people know who is responsible.
Mr. FLEMINGTON. I would move that in place of section.
five there be substituted sections eleven, twelve and thirteen of
File No. 106.
These sections were read as follows.
SEC. 11. The Governor shall have power to remit fines and forfeitures,
and to grant commutations of sentence, and pardons, except in cases of treason
and impeachment; but no fine and no forfeiture shall be remitted, no pardon
shall be granted, and no sentence commuted, except upon the recommendation
in writing of a Board of Pardons composed of the Lieutenant Governor, Sec-
retary of State and Attorney General, or of any two of the members of said
board, after full hearing, upon due public notice, and in open session; and
such recommendation, with the reasons therefor at length, shall be recorded
and filed in the office of the Secretary of State. The General Assembly shall
by law prescribe the sessions of said Board of Pardons and the manner in
which application shall be made, and regulate the proceedings thereon; the
written proceedings and decisions of said board and all papers used at any
hearing shall be filed in the office of the Secretary of State; the Board of Pardons
may grant commutations of pardons, either absolutely or upon such conditions
as said board may deem proper.
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DEBATES OF THE CONVENTION.
SEC. 12. The Governor shall have power to grant respites or reprieves for
any time not exceeding ninety days, in all cases, except treason or conviction
on impeachment, but such respite or reprieve shall not (in any case) extend
beyond the end of the next session of the board of pardons.
SEC. 13. The Governor may, upon conviction of treason, suspend the ex-
ecution of sentence and report the same to the General Assembly at its next
session, when the General Assembly may either pardon or commute the sen-
tence, or grant a further reprieve.
Mr. ROWE. I would say that except the arrangement for a
board of pardons, section five of the original report covers all the
ground of these three sections.
The motion of Mr. FLEMINGTON was lost.
The section was adopted as reported by the committee.
Sections six, seven, eight, nine, ten and eleven were adopted.
OTHER STATE OFFICIALS.
Section twelve was read as follows:
"There shall be chosen by the qualified electors of the State at the time and
places of choosing members of the Legislature, a Secretary of State, Auditor,
Treasurer, Superintendent of Public Instruction, Commissioner of School and
Public Lands, Commissioner of Insurance, three Commissioners of Railroads,
Attorney General and Commissioner of Agriculture and Statistics, who shall
have attained the age of twenty-five years, and shall have the qualifications of
State electors. They shall severally hold their offices at the seat of govern-
ment for the term of two years, and until their successors are elected and duly
qualified, but no person shall be eligible to the office of Treasurer for more
than two consecutive terms."
Mr. PARSONS of Morton. I would amend section twelve by
substituting the word "labor" for "statistics" in the sixth line.
Mr. ROWE. I second the motion.
Mr. PARSONS of Morton. The Chairman of the committee
has kindly seconded this motion. The only reason for asking is
this, that at our national seat of government we have a Commis-
sioner of Agriculture and one of Labor. The commissioner of
statistics is an indefinite term. The commissioner himself is a
statistician, by reason of his office of Commissioner of Labor, and
he has complained publicly of his inability to get information
from the State, and it was designed that this particular commis-
sioner should be the one we should communicate with, and it would
be no difficulty to substitute the word "labor" for "statistics."
The motion of Mr. PARSONS was adopted.
Mr. BEAN. I don't know whether I am right or not, but in
line four it provides for a Commissioner of Public Lands. In the
DEBATES OF THE CONVENTION.
321
report of the Committee on School and Public Lands, File No.
130, section four, line four they have provided for a Board of
University and School Land Commissioners. It is my opinion
that this commissioner spoken of here will find his duties conflict
with the duties of this board which we have already agreed to. I
move to strike out the words "of school lands" in this line.
Mr. ROBERTSON. I would like to ask if the gentleman would
have any objection to striking out the word "commissioner" also?
I move that the words "commissioner of school and public lands"
be stricken out entirely.
Mr. BEAN.
The reason I did not include all these words is
that I was not certain but that we needed a Commissioner of
Public Lands. These other commissioners only act on school
lands. There may be other public lands donated to the State, or
over which the State will have control, that this board will not
have under its cognizance. That is why I did not insert the other
words in my motion.
Mr. ROBERTSON. I think it would be satisfactory if the
gentleman would examine section twelve, File No. 130. He would
see that all other lands except school lands are relegated to the
Legislature entirely. It is taken out of the limitations and pro-
visions of the whole article-placed entirely in the hands of the
Legislature. So I don't see any need, and don't think any other
member can see any need, of commissioners of public lands. The
Legislature can make any arrangement they may see fit.
Mr. O'BRIEN. I would suggest that we had better let this
matter go to the Revision Committee, and if there is any conflict.
they will discover it and report it. We have not the time to in-
vestigate it here.
The motion of Mr. O'BRIEN was seconded and adopted.
Mr. LOWELL. I move that after the words "Attorney Gen-
eral," in line five, section twelve, we insert the words "Inspector
of Steam Boilers.'
""
The motion was lost.
Section fourteen was read as follows:
"Until otherwise provided by law, the Governor shall receive an annual sal-
ary of $3,000; the Lieutenant Governor shall receive an annual salary of
$1,000; the Secretary of State, Auditor, Treasurer, Superintendent of Public
Instruction, Commissioner of School and Public Lands, Commissioner of
Insurance, Commissioners of Railroads and Attorney General shall each re-
ceive an annual salary of $2,000; the salary of the Commissioner of Agricul-
ture and Statistics shall be as prescribed by law, but the salaries of any of the
21
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DEBATES OF THE CONVENTION.
'
said officers shall not be increased or diminished during the period for which
they shall have been elected; and all fees and profits arising from any of said
offices shall recover into the State Treasury."
Mr. ALLIN. I move that the figures "2,500" be substituted
for "3,000," in line two, and instead of "1,000" in line three insert
the words, "twice the salary of a State Senator."
Mr. WALLACE moved that a provision be inserted in the sec-
tion providing that the Lieutenant Governor receive the same
pay as the Governor when he is acting as Governor.
Mr. O'BRIEN. I move that the salary of the Governor be
made $5,000 a year instead of $3,000.
Mr. MOER. I move that the section read "until otherwise
provided by law the Governor shall receive $2,000 per year."
We don't want a Governor whose
When a common drummer from
Mr. BARTLETT of Dickey.
time is not worth $3,000 a year.
Chicago can earn, after one or two years' practice, that much,
surely a man who fills the office of Governor should have $3,000
a year.
The motion of Mr. MOER was lost.
Mr. WALLACE. The gentlemen are trying to be a little
facetious. I am in favor of giving the Governor $3,000 a year.
The amendment of Mr. O'BRIEN was lost.
The amendment of Mr. ALLIN was lost.
Mr. WALLACE. As I understand it the question is now on
the amendment that the Lieutenant Governor receive double the
pay of a State Senator. If he is acting Governor he should re-
In several state constitu-
ceive the same pay as the Governor.
tions that is exactly the provision they have. The Lieutenant
Governor has just about as light a job as anybody, and I don't
know why he should be paid $1,000 for presiding over the Senate.
But, of course, when he performs the duties of the Governor he
should receive the same pay.
Mr. MOER. I would like to ask the gentleman from Steele if
we should pay the Governor his salary during the time the Lieu-
tenant Governor is acting as Governor?
Mr. NOBLE. I would like to ask whether the mileage of the
Senator would be considered in as part of his salary?
The amendment of Mr. WALLACE was lost.
Mr. O'BRIEN. I move to amend by making the salary of the
Lieutenant Governor $500 instead of $1,000. The reason I do
this is this—to give the Governor of the State $3,000 a year for
DEBATES OF THE CONVENTION.
323
two years' services is one thing, but in the same section you give
the Lieutenant Governor one-third of that for ninety days' ser-
vices. I think that is entirely too much. We should decrease
the salary of the Lieutenant Governor or increase that of the
Governor. For that reason I offered the amendment to make the
salary of the Governor $4,000. To be consistent I offer the
amendment cutting down the salary of the Lieutenant Governor
to $500.
Mr. McHUGH. We might go on this way all the afternoon.
Every member might get up and offer an amendment, cutting
down one salary and raising another, therefore I move as a sub-
stitute motion that we report this report of the committee back to
the Convention with the recommendation that it do pass.
The motion was declared to be out of order.
The amendment of Mr. O'BRIEN was lost.
The section was then adopted as reported by the committee.
LEGISLATIVE REPRESENTATION.
File No. 129 was then brought up for consideration.
Mr. NOBLE. I move that the minority report of the Legisla-
tive Committee be substituted for the majority report.
Section eleven was then read as follows:
"At its first session after the adoption of this Constitution the Legislative
Assembly shall apportion the State as nearly as possible into representative
districts composed of compact and contiguous territory according to the popu-
lation, giving, however, one Representative to each organized county."
Mr. SCOTT. I move that section eleven be stricken out and
the following substituted therefor:
"The members of the House of Representatives shall be apportioned and
elected at large from each senatorial district."
Mr. NOBLE. I move that section eleven of File No. 129 be
substituted for the report of the majority of the Legislative Com-
mittee as read.. The original report of the Legislative Committee
provided for what is known as single county representation. The
supplementary report of the Committee of the Legislative Depart-
ment provides that the Representatives shall be elected at large
from the senatorial districts. This election of the Representa-
tives from the senatorial districts at large is what I object to.
The principle established here of making a senatorial district and
making it also a district from which there shall be two or three
Representatives elected, is entirely contrary to the principle on
324
DEBATES OF THE CONVENTION.
which this government is run, and if that principle is to be estab-
lished here, then I am decidedly in favor of one house. The prin-
ciple of making a Senate and a House of Representatives which
shall be elected at the same time and by the same people is going
back to the principle of one house. While the original report of
the committee is preferable to the supplemental report I would
still prefer to have the original report amended so that Repre-
sentatives shall be elected one from each district regardless of
senatorial districts, and the House of Representatives should be
entirely separate and distinct, and independent from the Senate;
otherwise I believe that the principle of two houses is done away
with, and the reason for it is done away with. I hope that section
eleven, the amendment, will be substituted for the supplementary
report as advocated by the gentleman from Barnes.
Mr. PARSONS of Morton. It seems that in keeping with sec-
tion eight we should adopt the motion now before the House-
section eleven of File No. 129. The supplementary report, reports
an extra section for section eight, and as we have not seen fit to
reconsider the prior action of the House, it would be the height
of folly to adopt it in another part of the report, and I hope the
amendment for the adoption of section eleven will prevail.
Mr. WILLIAMS. The majority of the Legislative Committee
have reported adversely to section eleven. The majority favor the
election of members of the lower house from the senatorial dis-
tricts at large.
Mr. PARSONS of Morton. It is the principle that I am
opposed to. I believe the people's will can best be carried out by
dividing these representative districts irrespective of any senatorial
district, and when there is a body of people of sufficient number
and votes to elect a member of this House, they should have the
privilege of doing so.
Mr. SCOTT. As the section originally stood it was reported
without the knowledge of the majority of the Legislative Com-
mittee. That section gave to each organized county, no matter what
the population was, one Representative. Section eleven was recom-
mended after re-consideration by the committee to be stricken out,
and the original idea was to add a clause to the end of section
eight, which however had been adopted by the Committee of the
Whole prior to the meeting of the committee, so if the Conven-
tion sustains the majority of the committee the amendment will
be adopted that I have read. The only question before the Con-
DEBATES OF THE CONVENTION.
325
vention is this-shall the State be divided into senatorial districts
and the representatives be elected at large from those districts,
or into senatorial and representative districts, and then shall each
district be re-divided for the purpose of electing two or three, (as
the case may be,) members of the House? The majority of the
committee were not favorable to this re-division of the districts.
In the first place they are all the same people. You may divide
the senatorial districts into two or three parts aud elect a Senator
at large, or you may not divide it. It is the same people who
elect the senator anyway. The same voters elect him, but there is
this difference-you are only entitled to vote for one Representa-
tive if you sub-divide it into districts, and in the other way you
are entitled to vote for as many men as there are Representatives
to be elected. It is a great deal of work for the Apportionment Com-
mittee to sub-divide each senatorial district into sub-divisions, and
apportion to each the proper portion, so that each Representative
may be elected as may be on the basis of population. Again,
after it is re-divided into representative districts, they must hold
their caucuses and conventions in one representative district and
then they must do the same thing in the other districts, and after
that they must all get together and nominate a Senator, and after
all it is the same people that do it. What difference will it make
in the constitution of the House? The Senators are elected for
four years. Only one Senator is elected at a time and that is done
so that all the elections won't be together-so that there would be
some difference between the Senate and the House, but the mere
sub-division does not change the voters in any way, and for that
reason we thought the State should be apportioned into senatorial
districts only.
Mr. ROLFE. I wish to divide the substitute of the gentleman
from Bottineau. I think I was one of the majority of the Legis-
lative Committee which made the report that appears here, but at
the time I voted in favor of the report as it stands. I did so be-
cause the situation in that committee was such that unless we
dropped our discussion entirely on the three measures that were
at issue there, we would be unable to agree on a section covering
the point. The committee was composed of thirteen members.
There were three propositions before that committee and I yielded
the measure I supported, which included one Representative from
each organized county, and voted with the majority in order that
we might agree on something to get before this Convention.
326
DEBATES OF THE CONVENTION.
When I came here I was strongly in favor, and am yet, of a Sena-
tor from each organized county, for the reason that it is analo-
gous to the system of the United States Senate, which we all up-
hold, and believe in, I presume. But no such proposition as that
would carry; therefore, if we obtained anything that was similar
to that proposition it must come in this way-that each organized
county would have at least one Representative. As has been said
by the gentleman from Bottineau, if we cannot have the one sys-
tem or the other, I would like to see the one house system prevail,
which we have already sat down upon hard. If neither House is
to be a check on the other, there is no occasion for two houses.
If the senatorial district is created, and the Representatives are to
be elected at large in that district, then the Senator and the three.
Representatives have interests that are exactly identical, and any
measure proposed in the House will be supported in the Senate,
and any measure proposed in the Senate will be strongly sup-
ported by the three Representatives in the House. Therefore
neither house will be a check on the other, and if we are to in-
corporate in our organic law any provision by which the interests
of one house will not be identical with the interests of the other
house, it must be done in the way suggested by the gentleman
from Bottineau.
Mr. MOER. I have only a word to say and it is this-that I
believe every organized county in the State should have a Rep-
resentative in the Legislature. Every organized county, whether
it is large or small in population, is compelled to bear its burden
of taxation, and is therefore entitled to some sort of representa-
tion. In my district, we have suffered somewhat under a similar
clause as that proposed by the majority of the committee, offered
by the gentleman from Barnes. A senatorial district composed of
three counties simply means that if one of the counties is large
in population and the others small-it ordinarily means the large
county takes all the representation there is to be had by the dis-
trict. That is what it has meant to us in connection with Barnes
and Ransom counties from the time of the first history of our
county. It is what it would mean in the future if we were at-
tached to those counties. I believe that every county is entitled
to representation. I am not afraid of my own county now. From
some of the plans submitted, LaMoure, McIntosh and Logan
have been placed together. If that was to be the basis, and the
Representatives are to be elected at large, and three men in La-
DEBATES OF THE CONVENTION.
327
Moure county worked together, Logan and McIntosh would be
left out in the cold. I don't believe in placing it in the power of
LaMoure county or any other county to cut out a smaller county.
I think every organized county should have its Representative.
Mr. PARSONS of Morton. I would say that if this supple-
mentary report is adopted, Morton county would profit by it, but
we have suffered for the last six or eight years under this very
system of three Representatives from a district, and there has
been more political chicanery, more trading backward and forward,
and the will of the people in each locality has been more disre-
garded, than I have liked to see. It is a system by which the
politicians can ride rough-shod over the will of the people. I
hope the amendment of the gentleman from Bottineau will prevail,
and if it prevails, section eleven stands as it came from the com-
mittee originally.
Mr. STEVENS. It is an old saying that bad pennies always re-
turn, and chickens come home to roost. Some of the gentlemen who
did what they could to sit down on the one house plan, now see
that they have made a mistake, and desire to adopt it in another
form. At an election held down in my county there was an old
gentleman very much interested on one side, and that side was very
badly beaten. A gentleman said to him: "Well, Uncle Jim,
what are you going to do? You are down." The reply came
"I will tell you.
There ain't any man that can get on the other side
any quicker than I can.” That is the way with me. I have con-
cluded that I was wrong in my one house theory, and I want two
houses. But if this Convention concludes to have two houses, it
is preposterous to have those two houses divided up in such a way
as to give some little county with sixty votes a Representative,
when there are seven or eight hundred or a thousand votes just
across the county line that would have no greater representation.
The district is made for the Senator, and the Representatives
should be elected from the same district as a whole, because if
divided it only allows that much more jobbery in the election of
the Senator. They should be elected, if they are elected at all,
from the same district. If the districts are to be the same, then
everybody should be elected from the same district. A city might
be divided up in such a way as to let the country have no repre-
sentation and practically no vote. I am decidedly in favor,
though I signed the minority report, to be consistent with the one
house theory, of engrafting nothing in this report that would be
こ
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DEBATES OF THE CONVENTION.
inflicting an injustice on the people of every district from which
a Senator is to be elected.
Mr. LAUDER. I am not one of those who believe that polit-
ical questions should to any extent be brought before this Con-
vention, but I want to say just a word to my republican friends.
who are members of this Convention. This measure you will see
is introduced by a prominent democrat. While the democrats
are not saying a word in the discussion, you will find when they
come to vote, every democrat will vote for the proposition intro-
duced by the gentleman from Bottineau. There won't be many
noes from that side of the house. While I would not drag in a
political question here, neither would I depart from the rule
usually adopted, for the benefit of the other side.
Mr. JOHNSON. I take some pride in following my chief who
led us so gallantly in the one house contest, and in being with
him consistent. We do not believe in checks on legislation. We
believe there are too many checks now, and have been during the
past year. We have had too many. But further than that, and
further than the political objections offered by the gentleman
from Richland-and it is well known I am a partisan as strong as
anybody-more than that, overshadowing that, I oppose the
motion of the gentleman from Bottineau on the simple grounds.
of justice. Read the last line of the section. It reads like this:
"Giving one Representative to each organized county." There
are counties in this State that only cast forty-four votes. In my
county we cast 1,035. We do not ask or expect more than one
Representative. Is there anything fair-any justice-in a system
that would give forty-four men in Billings county the same rep-
resentation as the 1,035 voters of Nelson county? That is the
substance of the substitute which the gentleman advocates. We
are assembled here under the Omnibus Bill or Enabling Act. The
first section of that bill reads as follows: (It has a thought in it
which is inspiring)-"Be it enacted by the Senate and House of
Representatives of the United States of America in Congress as-
sembled. That the inhabitants of all that part of the area of the
United States now constituting the Territories of Dakota, Montana,
and Washington, as at present described, may become the States of
North Dakota, South Dakota, Montana and Washington as here-
inafter provided." Mark the words-it says "the inhabitants” of
that part of the area shall constitute the states. That is the true,
the historic, the constitutional and poetic theory of the state. What
DEBATES OF THE CONVENTION.
329
constitutes a state? Not area. It is men-high-minded men—men
whom their duties know. Our theory is that representation in
this new State which we are creating here shall be based as laid
down in the very first section, on men and not surface. It is not
on geographical exposure merely, but on men. In the name of
justice, why is not a man in the Red River Valley as good as a
man in the Bad Lands? You would not have it so if the propo-
sition of the gentleman from Bottineau prevails-you would make
forty-four men in the Bad Lands as good as 1,035 in Nelson county.
We are here to make laws for people, and not valleys, and rivers
and inanimate objects. It is a fact that for the present and for
many years to come the Red River Valley is and will be the cen-
ter of our civilization, will have the population, so that we don't
ask any more than those people who live in the cow counties, but
we do hold that a man should be counted a man wherever he lives,
and to people who live in those counties we ask that the people
who live in the eastern counties shall at least stand an equal show
with the men who live in the far western part of the State.
Mr. PURCELL. If the principle advanced by the gentleman
from Nelson is good, why is it that we have divided or have em-
powered the Legislature to divide this Territory into senatorial
districts? Why not instead of that have all our senators elected
at large-the same as the Governor and the Secretary of State
and other officers? Why do we fix districts from which they are
to be elected, and which they are supposed to represent? If his
theory is good, then why do we do it like this? If his theory is
bad, and the theory is a good one to fix districts, then why not
carry that theory a little further and fix the districts which the
members of the lower house also shall represent? As the gentle-
man read from the Omnibus Bill, something was said about the
Congress of the United States. The Congress is composed of
Senators and Representatives from their specific districts in the
respective states. That is an example that we can well follow in
fixing our Constitution here to-day. We can well follow the prin-
ciples of the Constitution of the United States, and say that the
district shall be represented by a Senator, and that these districts
shall be sub-divided so that certain portions shall furnish certain
members, and by doing that we preclude any jobs. There is
nothing in the way of having this enacted. It is in vogue in al-
most all the states in the Union. The objections that have been
advanced by the gentleman from Barnes will not lie, for it is no
330
DEBATES OF THE CONVENTION.
more difficult to hold an election for Senator or Representative
than to hold an election for a member of the board of county
commissioners. In each organized township of the counties there
is an election precinct established. When they meet at that
election they select their town officers, and they can just as well at
that time vote for their Representative and Senator. It should
be no great burden to the Legislative Committee, or to the Legis-
lature to get together and apportion these districts. They come
here to perform just such acts, if they are required to do that by
this Constitution. It seems to me that the reasons urged by the
gentleman from LaMoure are good ones. If this is allowed to
prevail and these senatorial districts are not sub-divided, you will
see in nearly every senatorial district the same fight as in counties
where county seats are in question. It will be a question of the
majority eating up the minority. When you say that the sena-
torial districs shall be divided into representative districts, then
you deal fair and square with the country as against the city, and
that is all we ask of this Constitution.
Mr. HARRIS. I am opposed to the report of the majority of
the committee, first because the principle is wrong. I want to see
the senatorial and the representative districts divorced as widely
as possible from each other. It is all very well to say that we
don't want any more checks on Legislation. I say that we want
the check of one house against another, and what the gentleman
from Richland and the gentleman from LaMoure have said in
regard to the larger counties eating up the smaller ones is true,
and we all know it. You put three or four small counties into a
district and then provide that the Representatives shall be elected
at large in that district, and you get a Senator and Representatives
all from the larger counties, and the smaller ones are not repre-
sented at all. It is all very well to say that the smaller counties
are represented by the men from the larger. If a man from one
of the larger counties finds himself in the Legislature, and his
interests and the interests of his county conflict with the interests
of the smaller counties that he represents, his own interests get
his vote every time. The smaller counties cannot be represented
if they are attached to the larger counties. The gentleman from
Nelson is poetic over the fact that we are not here to make an
apportionment whereby acres, merely, will be represented. He
raises a man of straw in order that he may in a poetical and rhetorical
manner knock him over. No man has stood on this floor and
DEBATES OF THE CONVENTION.
331
i
asked that acres be represented, but we do ask that out in this
western part of the State, where at the best, out of a House and
Senate to be composed of more than a hundred members we shall
have not more than fifteen members-we do ask that the smaller
counties of the western two-thirds of this State shall be allowed
some representation, although it may seem to be against exact
square justice to the counties in the Red River valley.
The gentleman has mentioned Billings county that last fall only
cast forty-four votes. I want to say that Billings county has over
200 voters, and she has over $500,000 worth of assessable property.
I want to say that although Billings county has only 200 votes,
Hettinger county, lying beside her, unorganized, had 271 voters.
last spring, and has more than 300 voters now. They are just as
honest, just as intelligent and grand American citizens as there
are to be found in the State of North Dakota. They are com-
posed of the New England colony that came from Maine, New
Hampshire and Vermont. They are not allowed to vote because
their counties are not organized. They believe that it is for the
best interests of the county that they should remain unorganized
until they get a larger population. Those people should have a
representation in that section of country through the organized
county that lies next to them, so that they may be properly rep-
resented in the Legislature, and we are only asking that the
counties having the larger population may give these smaller
counties some representation in the Legislature. We find the
same thing true in the north. We find Church, Sheridan and a
number of counties adjoining the counties on the Manitoba rail-
road having a large population, but they are not organized. We
ask that these smaller counties have representation. Nelson has
only one Representative, it is said. We are not asking that you
give each organized county a Senator. We are asking that every
organized county in this State shall have at least one Representa-
tive. It is true that the Committee on County and Township
Organization placed a report before this House which was referred
to that committee, providing that no county shall be organized
with a population of less than 1,000. This would prevent the
small counties in future from being organized until they have
sufficient population to give them a Representative. All we ask
is that you divorce these districts, and follow out the principle to
which the Government of the United States and the government
of every state is pledged.
332
DEBATES OF THE CONVENTION.
Mr. PARSONS of Morton. I would like to read from page
two of the Enabling Act. It says:
"The Constitution shall be republican in form, and make no distinction in
civil or political rights on account of race or color, except as to Indians not
taxed, and not to be repugnant to the Constitution of the United States and
the principles of the Declaration of Independence."
There is no more pleasing reference in that Enabling Act than
the one just read, that our Constitution shall not be repugnant to
the Declaration of Independence. What was it that produced
the Declaration of Independence? Briefly, it was taxation with-
out representation. You say these counties have representation.
You may take it in any portion of the State to-day, and the out-
side small counties have simply the choice between one or two
men in the large counties. Political conventions have been held,
and they have had the glorious privilege of voting on the choice
of delegates from the larger counties. Now please look at it-
what class of mẹn inhabit the large counties? You will find
there the centers of business, professional men, business men and
commercial interests, centered in the large counties. Under this
system the tendency and the practice of it will be to give us
that class of men in the Legislature in preference to farmers.
Go to the outside counties and you will find a rare case of a pro-
fessional man. I can point you out counties that have perhaps only
one or two professional men. There are two counties that I know
of and I doubt if there is a professional man in either one. This
old principle which the majority seek to give us is a perpetua-
tion of the principle that we have had under the old territorial
form of government, and we have seen the iniquity of it. I am not
in favor of disfranchising the outside counties and allowing the
centers of population to control the Legislature in the future. I
speak in behalf of everyone who wishes that the laboring people
of this country shall be represented in the Legislature, and ask
that they vote for the amendment of the gentleman from Botti-
neau. I hope that none will be caught by such arguments as have
been sought to be advanced here to the effect that this amend-
ment has been introduced by a democrat. It was first introduced
as a majority report of this committee, and now it is proposed to
strike it out, and if this is done we must feel that it is done in the
interests of the professional and commercial classes and against
the farming and laboring classes.
Mr. LAUDER. We have had a good many quotations from the
DEBATES OF THE CONVENTION.
333
Omnibus Bill and the Constitution of the United States and the
Declaration of Independence, but I was particularly struck with
that portion read by the gentleman from Morton county. It is
elementary, and perhaps we can all agree on it-that all men are
created equal. That is just what we claim. To refute every word
he has said I intend to quote his own words—that men are created
equal. That is, a man out in the Bad Lands is not created equal
to two or three men out in the Red River Valley. All that we
ask is that the principle laid down by the Declaration of Indepen-
dence shall be adhered to in the formation of this Constitution.
The objections that are raised here and the argument made by the
gentleman from Burleigh and the gentleman from Morton, when
you look at the thing as it exists, you will find that it has no force
in it, whatever. It is a great cry-the large counties will swallow
up the little ones. The gentleman speaks of his own county,
Morton, and tells us how many of these small counties will be
swallowed up in the insatiable maw of Morton county. I would
remind him that under the report of the Committee on Apportion-
ment and Representation as it seems to be almost unanimously
agreed on, Morton county will go in with one other county only,
Oliver, and the two counties will have one Senator and two Repre-
sentatives. You won't have the exquisite pleasure of swallowing
up anybody. These arguments are made on the theory that there
will be twenty-four Senators or members of the Council. In all
probability there will be thirty Senators from North Dakota, and
it will be a small county that will not be a senatorial district of
itself, and the matter of swallowing up counties will not cut any
figure. It is simply a firebrand thrown out here. I simply
appeal, and I have a right to appeal, in view of what has been
said, to the gentlemen who reside in the thickly populated counties
of the Red River Valley. I warn you that this is a scheme by
which this great and almost uninhabitable country west of the
Missouri river is to be cut up into counties just as soon as they
have 250 voters, and they will be brought in here, and it will
destroy the very principle of representation on which our govern-
ment is founded, representation in proportion to population. We
do not want to disfranchise anyone, but this is a combination
between these men who want to get an unjust representation from
the counties west of the Missouri river, and the democrats who
hope to be able to carve out a district in some county that they
334
DEBATES OF THE CONVENTION.
can carry when they could not carry the senatorial district alto-
gether.
Mr. MOER. The gentleman from Richland says the people
who advocate this measure are appealing to the smaller counties
from selfish motives, and then he appeals to the large ones on the
same theory. I cannot understand why any county-Richland or
any other county-why they should object to it from any stanpoint.
Does it affect Richland?
Mr. LAUDER. I object to it because I object to having forty
or sixty voters in Logan county have the same voice in the admin-
istration of the government of this State, as five or six or seven
hundred will have in Richland county.
Mr. MOER. The gentleman is wrong entirely in regard to
Logan county. They do not have any representation as a matter
of fact. As a matter of fact Logan county is entitled to her pro-
portion of representation; so is McIntosh; so is LaMoure under
the district system. I have no fault to find with some of the
sentiments advocated by the gentleman from Richland, but I don't
believe that the entire position he takes up is right or just, and I
want to say that I am going into no scheme with the democrats,
for I am as good a republican as is the gentleman from Richland.
Why should not McIntosh county have representation? Why
should not Logan county have representation? Take the district
as proposed. There are in these districts some 1,282 votes-Mc-
Intosh, LaMoure and Logan. LaMoure had 831 votes at the last
election. Why should we permit LaMoure to take all the rep-
resentation in that district? There are 351 other votes which
should at least entitle them to one Representative. LaMoure pays
taxes on $2,000,000 and McIntosh on $470,000, and at the same time.
he would say—give us a system that would give McIntosh no rep-
resentation. The same thing is true all over the Territory where
small counties are attached to large ones. What is the reason
that Cass and Barnes and other large counties are against this?
The reason is that they want the cities to control the country.
That's all the reason there is in it. There cannot be any other reason
advanced that has any argument in it at all than that the cities
wish to control the country, in the same way that the larger coun-
ties wish to control the smaller counties and take all the represen-
tation. I am not surprised that the gentleman from Ransom has
abandoned his one house theory. But he is not consistent, for he
now advocates another form of one house; he advocates now a
DEBATES OF THE CONVENTION.
335
system that selects from the same district, men to the Senate and
the House-elects them at large, thus making practically one
house, but called two houses. This is practically a one house
system. The gentleman says the howl is here to give the small
counties representation. That was the cause of the United States
Senate being established. It was established so that every State
might have representation. They paid taxes, and therefore they
claimed representation equal with the rest of the states in the
Senate. Why should not every organized county be represented?
So far, I have not heard one word of argument other than than it
is a democratic measure, which I deny, and simply from the self
interest of the larger counties-Cass and Richland and such coun-
ties. If the northwestern part of the State is to be divided ad
infinitum, them let Cass split herself into seventeen different
pieces. There is not a thing in that. A county in the west has
as much right to representation on the floor of the Legislature as
any county in the east.
Mr. BELL. It seems strange to me that they should be willing
that we should pay money into the Treasury of the State, and let
the counties that lie on the Missouri slope pay it out. It is very
strange, indeed, that these gentlemen-I know a few of them by
seeing how they were elected last spring-that they don't deal out
the same generosity to the different townships around that elected.
them. If you follow this system out, then in the county govern-
ment you must follow it too, and give each organized town the
same representation as another. It is said that this would be no
advantage to the west over other sections, but I notice that the
main advocates of the scheme are all from the west and the thinly
populated counties. They are afraid, apparently, that the people
in the eastern part of this new State are going to control it. If
they do, they have a right to control it. They are going to sup-
ply a big part of the funds to run it, and I think we should have
the right to say how these funds are to be disbursed. Do you
think it is fair that Walsh county should only have one represen-
tative to every 750 votes, when Billings county has one represen-
tative with forty-four votes? Does it take 750 men in Walsh
county to be as good as forty-four in the Bad Lands? You must
certainly think that a man who has come out here and set himself
up on bare hills and barren rocks has a great amount of judg-
ment above him who has settled down in the fertile portions of
the eastern counties in this State. I think the only fair way of
336
DEBATES OF THE CONVENTION.
having representation is representation according to population,
for when you get representation by population you get it accord-
ing as each one contributes to the public funds.
Mr. SCOTT. I want to call the attention of the Convention to
the fact that the gentleman from Morton says this proposition
does not affect him. He is looking after the interests of the
smaller counties. The gentleman says that as a matter of fact
Morton county can swallow the other fellows all up and get two or
three times more than it is entitled to. The gentleman from
Richland says that it does not affect him because he is one of the
large counties that will not have any small counties attached to it.
The gentleman from Burleigh says it does not affect him, but they
all have sympathy with the smaller counties. It is astonishing to
see so much magnanimity displayed by the gentlemen who advo-
cate this system. I don't know why they should advocate it.
They say that they have the same interests that the gentlemen in
the eastern counties have-the same interests that we have in
Barnes county-that it will entitle them to the same representa-
tion that it will us, but they pour out their souls to the poor men
in the Bad Lands and Logan county.
Mr. HARRIS. The gentleman from Richland grows eloquent
and appeals to the Red River Valley counties to stand by this
minority report, because he is afraid there is a scheme between
the democrats and a few republicans to capture the Legislature
by the cow counties. As though it were possible when the dis-
trict east of the James River Valley will have a population
amounting to four-fifths of the whole population of the State, for
the counties west of that to do the capturing. It does not seem
to me that the Red River Valley counties were in any danger of
being crowded out of the way, and as to what the gentleman from
Barnes has said, he must remember that we are representing these
outside counties on this floor. While it will not affect Burleigh it
does affect McLean that has not less than 400 voters, although at
the last election it only showed 360; it does affect McLean, and I
represent McLean on this floor and I say that it should have a
Representative in the Legislature. We are here to represent
small counties that surround us and if we represent them right
we can only ask that they be given representation, and the gentle-
men of the Red River need not be afraid of the power slipping
away from them.
The amendment of Mr. NOBLE was then voted upon and lost.
DEBATES OF THE CONVENTION.
337
Mr. NOBLE. I wish to offer another amendment. It is this-
that all of section eleven of the original report be adopted, down
to the word "population" in the fourth line, and adding that "only
one Representative shall be elected from each representative dis-
trict."
The amendment was seconded by Mr. CAMP and lost.
Mr. NOBLE. I move to adopt section eleven to the fourth
line and add afterwards the words: "And only one Represen-
tative shall be elected from each district, provided every county
having over two hundred voters shall have at least one Repre-
sentative."
The motion was lost.
Mr. NOBLE.
the committee.
I move that section eleven be re-committed to
Mr. SCOTT. The committee has made its report, and the re-
port is in the hands of the Clerk, and it is before this body for
adoption or rejection. They recommend that a certain section be
inserted as section eleven. The question is now before us to adopt
the committee's report or reject it. It has been fully discussed
both by the committee and this Convention.
Mr. STEVENS. As I understand this question the amend-
ment introduced by the gentleman from Barnes, or the substitute,
has never been before any committee, and no committee has had
anything to do with it. This is an original proposition offered by
the gentleman from Barnes to be incorporated as section eleven.
You cannot re-refer it unless it has been once referred.
The motion to recommit was lost.
Mr. NOBLE. I don't believe that we want to establish this
principle. I wish to offer as an amendment the amendment that I
have sent to the Clerk's desk. The main objection to the adoption
of this principle of giving each county a Representative seems to
be from the older counties of the Red River Valley, and they im-
agine that they will be over-ridden, and that the new counties will
have more power in the General Assembly than the old ones.
This seems to be the main objection. The principle of represen-
tation, such as we wish to see established here, cannot be dis-
puted by any man on the floor of this Convention. The idea that
it is a democratic scheme can be seen to be absurd on its face.
My objection to the proposed scheme is that the older counties.
will have entire control of the Senate-absolute control if they
have the Senate apportioned according to population. There will
22
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DEBATES OF THE CONVENTION.
be five or six counties that will have one Representative, and a
slightly larger portion of representation than they should have.
But let us consider a few objections to this principle that have
been voiced in this Convention before to-day. There has hardly
been a time that men have not stood up and pleaded against the
tyranny of the old Legislatures of this Territory. Counties have
been cut in two, and all this has been done simply because a
county was not represented in the Legislature under the territor-
ial era.
Under the old principle of legislation-under the princi-
ple that an attempt is being made to establish in this Constitution,
counties will be unrepresented in the Legislature. Their lines
can be changed and the people in these counties, in the future as
in the past, will always necessarily have to go down into their
pockets to send men to watch to see that the county lines are not
changed. The idea of the older counties standing up here and
being afraid of giving a county a fair representation in the Legis-
lature-representation that may be a little larger than they are
entitled to at present-but which they will at least be entitled to
in a year or two. The older counties of the State will have to
control the Senate absolutely, and why? They can stand up here
and object to giving us fair representation in the popular house
-the house that will be composed of all classes and factions of
the people of the State. How they can object is more than I can
understand. We hear the idea expressed that possibly this is a
democratic scheme. We have heard stories here of counties that
have been robbed-of their lines having been changed-instances
have been given and reasons advanced and methods proposed for
remedying the evils that exist, but no theory has been advanced
yet before this Convention to remedy the trouble, and the plan to
adopt that I can think of, that will be effectual, will be to elect a
democratic Legislature.
The amendment of Mr. NOBLE was lost.
Mr. ROLFE. I would like to have the Clerk read the original
report of the committee that we have to vote on.
Mr. SCOTT. The resolution which I moved was a resolution
which was favored by a majority of the committee, but it is not in
the form of a report, for it had been formerly appended to section
eight, and that section had been considered by the Committee of
the Whole. It is not in the form of the report of a committee,
but it is a resolution to be adopted as a substitute for section
eleven.
DEBATES OF THE CONVENTION.
339
Mr. PARSONS of Morton. Is this report of Mr. SCOTT's the
report of the committee?
Mr. BARTLETT of Griggs. It is the matter before the House.
Mr. FLEMINGTON. I believe that a little time taken on this
matter may be of advantage to the Convention and to the future.
State of North Dakota. With that idea in mind I move that the
consideration of this resolution be postponed until to-morrow by
this committee.
Mr. APPLETON. I hope this resolution will not prevail, for
if it does we shall have to go over this whole business again to-
morrow. I believe that every gentleman here has been talking
about this section for the last two weeks, and every man has made
up his mind just what he is going to do when it comes time to
vote. I hope that the motion for postponement will not prevail.
The motion to postpone was lost.
Mr. ROLFE. I move to add to the section the words: "Any
organized county having 200 voters shall be entitled to at least one
representative." I offer this because it is in exact line with the
action in the meeting of the Apportionment Committee this morn-
ing, on which basis the first house will be made up, provided it is
adopted by this Convention.
The amendment of Mr. ROLFE was lost.
The matter was then postponed till the next day.
EVENING SESSION.
File No. 129 was brought up for discussion; section twenty-one
was read as follows:
PAY FOR THE LEGISLATURE.
“Each member of the Legislative Assembly shall receive as a compensa-
tion for his services for each regular session $300, and 10 cents for every mile
of necessary travel in going to and returning from the place of meeting of the
Legislative Assembly on the most usual route, and $5 per day for extra ses-
sions and 10 cents for every mile of necessary travel in going to and returning
from the place of meeting of the Legislative Assembly, on the most usual
route."
Mr. JOHNSON. I move to strike out "$300" and insert $500.”
The motion was seconded by Mr. BARTLETT of Griggs.
Mr. WALLACE. I move to amend by making it $400.
Mr. BARTLETT of Griggs. I hope the motion will not pre-
vail. I think $300 is enough, and you will find plenty of just as
useful men as are to be found, applying for the place.
340
DEBATES OF THE CONVENTION.
Mr. JOHNSON. Just one word in explanation. You may per-
haps say it is demagoguery, but I don't agree with you in that.
One reason why I make this motion is because the Farmers' Al-
liance at their meeting in Fargo had this matter under discussion.
There was a large attendance, and they put a plank in their plat-
form demanding $500 a session for members. The reason is that
the poor man should have just the same opportunity to attend the
Legislature as the rich man. I undertake to say from experience
that a man cannot pay the necessary expenses of attending a meet-
ing of the Legislature for $300. I have tried it. A married man
like myself, or many of you, should have pay so that we could
support our families at home or take our wives with us. I
pay $4
a day for myself and wife at the hotel. Where am I to get money.
to buy gum, hair-pins, whiskey and tobacco, and all the things we
have to pay for? It is not right that we should come here and
pay a large amount more than we get for our services. I aban-
doned politics in Iowa because I could not live and stay in the
Senate of that state for $550, and I made up my mind I would
withdraw from it. I never expect to attend the Dakota Legis-
lature, but I want to pay the men who do represent us a reasona-
ble amount so that they can pay their expenses. I don't calculate
that they shall make any money out of it. The Farmers Alliance
have made this demand, and they are entitled to consideration.
Mr. SCOTT. I don't believe that we as a Convention are here
as the mouthpiece of any society no matter what it is. We are
not here to represent any particular sect or society, but society at
large, and what we do we are supposed to do for the best interests
of the State at large. The argument of the gentleman from
Nelson would seem to imply that the Legislature should be com-
posed exclusively, or be made up mainly, of farmers. That may
be true, and yet I think the farmer can live just as cheaply as an
attorney or any other man. We receive $4 a day here, and I don't
believe the State is called upon to pay anything for tobacco we
smoke, or cigars we use or whiskey we drink. It is not supposed
to furnish us with these things. If we wish for these luxuries we
should pay for them. Any economical and prudent man can live
very well on $4 a day. We can spend just as much more as we
choose. If we like to go to the Sheridan House that is a matter
of our own selection, but a man can live respectably, and decently,
and fairly and get good board for $6 a week. We figured that
$300 would be $5 a day. That is a dollar more than we are now
DEBATES OF THE CONVENTION.
341
getting and I don't see why any ordinary, average man cannot get
along with $5 a day. The expense of each Legislative Assembly
on the State will be at least $50,000, and the first session will cost
over that. As the membership of the House and Senate is in-
creased the cost will increase. It used to be that the members of
the Legislature got $8 a day, and then it was put down to $4. Now
we have increased it to $5 and it seems that no reasonable man
can ask for any more. If a farmer comes to the Legislature, the
session is held at a season when there is not much to do and he
can live on $5 a day and at the same time save more than he could
make at home unless he is extravagant in his modes of living.
Mr. BARTLETT of Dickey. I believe that a man has a right
to pay all for his board that he has a mind to. I have paid out a
good deal of money in my time for the grand flourish of the thing,
but I have got over that. Any man can live right here and get
good board in the city of Bismarck for a dollar a day if he has a
mind to. If he wishes to go to the Sheridan and pay out more
money, all right, but I feel that the tax payers of this State should
not be made to pay him more than $5 a day, at the present, at
least. I believe that my constituents would bear me out in this
position. When election times come the men who will want to
come to the Legislature will stick out like bristles on a pig's back.
They are just now waiting, and can hardly wait for us to adjourn
before they will bestir themselves.
Mr. WALLACE. The gentleman from Barnes says that if this
section is adopted it will amount to $5 a day. But the session is
limited to ninety days. That will make it but little more than $3
a day. To-day we voted to pay one man $2,000 for ninety days'
work. I say that $400 is not too much. Because of the fact that
a large number of men will be here the figure must be low at
which they are each paid per day, but there is no sense in putting
it too low. The gentleman from Barnes says that because the
Farmers Alliance has indicated a desire that the pay of the mem-
bers should be $500 is no reason why we should pay any attention
to their wishes. I think it is a good deal of a reason, but I am
willing to compromise on $400. I think an organization made up
of farmers, who comprise seven-eights of the people of this Ter-
ritory, have a right to say something in this matter, though some
gentlemen seem to think they have not. You are willing to go to
any extravagance when it happens to go in a certain direction, but
when it comes in other directions it is different. Any man who is
342
DEBATES OF THE CONVENTION.
capable of serving as a member of the Legislature should be paid
at least $400 for the session.
Mr. O'BRIEN. I move that the figures "$300" be stricken out,
and "$5 a day" inserted.
Mr. JOHNSON. May I ask that the gentleman will withdraw
his motion a moment so that a vote may be had on my motion.
Mr. O'BRIEN. Certainly.
The amendment of Mr. JOHNSON was then voted upon and lost.
Mr. O'BRIEN then renewed his motion.
Mr. SCOTT. I am not in favor of this amendment for this
reason. There is no necessity after the first session of the Legisla-
ture-there is no necessity for any Legislature sitting for more than
sixty days, and that period is too long rather than too short. If
the pay is put at $5 there is a disposition, as we have all seen, in
the past, to lengthen out the sessions as much as possible, and the
sessions will be very liable to run to the extreme limit that we
have made here. I think that the shorter the sessions we have
the better, providing all the necessary public business is disposed
of, and it can be disposed of readily in sixty days. That would
be just exactly $5 a day. If they desire to lengthen out the time
longer than that, it would incur a large expense upon the State.
Mr. BEAN. There is just one reason why I am în favor of
having this placed at $5 a day instead of $300 for the session. It
is the same reason that has been working to a more or less extent
here. I have heard it expressed by nearly every man in the Con-
vention, that in case we run our sessions over a certain day, we
would be working for nothing. In that way a man who is using
this as a summer vacation-who has plenty of money to spend,
does not care, but the poor man here, in case he is not to be re-
imbursed, would be willing to sacrifice certain important points
which should not be sacrificed, for the sake of getting home. In
case they are paid $5 a day, the rich man cannot get the sinch
over the poor man in that way. They are getting their $5 any-
how, and if they have a bill to support there will be no sinch or
gag law and they can act perfectly free. If the figure is put at
$300 the work will have to be crowded to get it down to sixty days,
and as we allow ninety days the man who uses this as a political
lever will say: "We will prolong this after we have passed the
period that these men are getting $5 a day; when they see every
day that they are working for nothing, they will give in."
Mr. BARTLETT of Griggs. I oppose the amendment for
DEBATES OF THE CONVENTION.
343
almost the very reason that the gentleman from Nelson is in favor
of it. I believe there is no more important section of the legis-
lative article than this one we are considering. I believe that if
we want a Legislature that will do its duty and do it well, and
then go home, we want to pay them by the session, and not limit
them as to time. Pay them $300 or $400 or $500, but don't limit
them as to time so that on the last days of the session there will
be a rush. I believe that forty or fifty days is just as good as
sixty or ninety, and if we put the pay at $300 or $400 a session or
whatever you agree on, then they will do their work and go home.
Michigan's Legislature has just adjourned-it has been in session
six or eight months on pay per diem, and there are many farmers
and lawyers that are likely to be members in the Legislature who
would be glad to stay here all summer at $5 a day, and I say that
a per diem law for a Legislature is a pernicious one.
Mr. O'BRIEN. The theory would be all right of the gentleman
if we did not have some limit to the sessions. In section thirty-
two the sessions are limited to ninety days. I don't believe there
is any man who is going to our Legislature for the purpose of
making $5 a day. I believe the State should pay any man who
will come here to the Legislature, a reasonable compensation, and I
believe that $5 a day is a reasonable amount. The gentleman from
Barnes in defense of this section as it now stands stated that they
based the amount of pay of the Legislators on $5 a day. That is
just exactly the basis I take. I am not asking that they shall
receive any more than that, and it seems to me that it is no more
than right that a man shall get that sum, and I don't think they
will prolong the sessions for the purpose of getting $5 a day. I
know there are none of us here who would care to stay here much
longer for $4 a day, and I would not go to the Legislature and
have the sessions continue indefinitely for any such sum. I could
not afford it.
Mr. BARTLETT of Dickey. The gentleman who last spoke
says he does not believe that there is a gentleman here who would
prolong the time. We will admit that, but we are talking about
the future Legislatures. These gentlemen will not get there. I
don't expect to, I am sure. I think it should satisfy any intelligent
man that during these terrible times, during the drouth and mis-
fortunes of Dakota this year, we ought not to pay more than $300
for the term. As the gentleman said, sixty days undoubtedly
would be all the time it would be necessary to spend, and I am
1
344
DEBATES OF THE CONVENTION.
satisfied it would be liberal pay. I am satisfied if it was $5 a day
for an indefinite period, that there would be a large number of the
members who would strike out to have a good time and stay here
as long as they could.
The amendment of Mr. O'BRIEN was carried.
Mr. SCOTT. I wish to offer an amendment to strike out the
word "ninety" and insert the word "sixty," and add "but the first
session of the Legislative Assembly may continue for a period of
120 days."
Mr. PARSONS of Morton. I desire to have a division of the
question.
Mr. SCOTT. I don't see how the question can be divided, for
it is all one amendment to strike out "ninety" and insert "sixty,'
and add those words to the section which I have read. I don't
believe that sixty or ninety days is enough for the first session.
Mr. PRESIDENT. The Chair is of the opinion that the ques-
tion is subject to division.
The amendment was divided, the first part put to a vote and
adopted.
Mr. APPLETON. I desire to make it read "ninety" days in-
stead of "120.”
Mr. MILLER. Possibly it does not occur to the gentleman.
that the first session will convene in the fall, and if he makes it
ninety days the fore part of the session will be taken up with
matters that are not legislation, and probably there may be some
adjournments. I think that ninety days would be too short for the
session,
Mr. FAY. I hope the motion of the gentleman from Pembina
will not prevail. During the first session of the Legislature all
our laws or nearly all of them will have to be made to conform to
the Constitution. It will be a very important session, and the
Legislature should remain in session long enough, without being
hurried, to do this work thoroughly and carefully. I think the
first session should be long enough to give the Legislature ample
time to do this work.
Mr. ROLFE. I hope this amendment will not prevail for the
reason stated by the gentleman from Cass, and also for the further
reason that the first Legislature has one job that will necessarily
take a great deal of time, and no ways or means can be devised
by which that job can be accomplished in a shorter time. It is
the enactment of a new code entirely, or the adoption of the code
DEBATES OF THE CONVENTION.
345
we now have in existence, now called the Compiled Laws. As
every lawyer knows, and probably every member knows, that is a
large volume and contains a great mass of laws which we must
adopt as a whole, which the Legislature must adopt as a whole, or
re-enact a new code, covering principally all the matter contained
in that code. I don't see how that first Legislature can enact the
incidental legislation, elect two United States Senators and also.
enact that code or adopt the one we now have in use, within ninety
days. It seems to me that 120 days is short enough, and I doubt
very much if they can well accomplish the work that will be be-
fore them in that time. I am opposed to the amendment of the
gentleman from Pembina, and in favor of the one of the gentle-
man from Barnes.
The amendment of Mr. APPLETON was lost.
The amendment of Mr. ScoTT making the maximum time of
the first session of the Legislature 120 days was then adopted.
Mr. PARSONS of Morton. I desire to move that the follow-
ing be adopted to take the place of section forty:
"Every bill passed by either House shall be signed in duplicate and one
copy shall be forthwith deposited with the Secretary of State."
The motion was seconded.
Mr. PARSONS of Morton. I introduce this, so that when a
bill shall pass from one House to the other, and some one steals
it, there will be another copy in existence. There have been bills
involving thousands of dollars to the taxpayers that have been
stolen in every state in the course of transmission from one house
to another. In Minnesota that trick has been carried out, and it
has also been carried out in this Legislature, but by this simple
plan it will do away with the whole business, and nobody can then
steal a copy and thereby perhaps wrong the people of a law that
they want, and at the same time ruin the character of some mem-
ber of a committee who will be charged with the theft.
Mr. MILLER. If bills are stolen I think the motion a very
immoral one, because it will force the boys to steal two bills in-
stead of one. It will double the crime.
Mr. JOHNSON. I have to suggest another reason in favor of
the resolution. It occurred to me when we were discussing the
article on the executive, but I said nothing then though I am glad
that I now have an opportunity. We passed a section providing
that in case the Governor failed to sign a bill, and neglected to
return it within fifteen days it should become a law anyhow. Sup-
346
DEBATES OF THE CONVENTION.
1
pose he received a bill, destroyed it, utterly failed to sign or return,
unless we had a copy of it we should have no way of putting that
on the statute book.
Mr. BARTLETT of Griggs. I hope this motion will prevail.
It is not a matter that should be turned off with a joke, for it is
well known that it occurs in nearly every Legislature in the
country. Whether this will remedy it or not I cannot say, but it
is an attempt in the right direction. Certainly it is not very cum-
bersome or very troublesome. The fact that the evil exists warrants
us in the attempt to put a stop to it.
Mr. STEVENS. Is it your intention that when either branch
of the Legislature passes a bill, it shall have two copies made
of it.
Mr. PARSONS of Morton. The proposition is that when any
measure has passed one house, one copy shall be sent to the other
house and one to the Secretary's office.
Mr. STEVENS. As I understand it at least thirty per cent.,-
fifty per cent., of all bills--you might say seventy-five per cent.,
that pass one house are either killed in the other house or amended,.
so that they come back for final action, and the gentleman has for-
gotten to provide for extra vault room for the Secretary to keep
the bills in, as a vault the size of this room will not hold the accu-
mulations of ten years.
The motion was lost.
The sections were adopted up to section forty-six. Concerning
it Mr. POLLOCK said: I think lines twenty-one and twenty-two
should be struck out, as the matter is covered by lines thirty-four
and thirty-five. I would strike out that part which reads as fol-
lows: "The sale or mortgage of real estate belonging to minors.
and others under disability." I think this is covered by the fol-
lowing: "Affecting estates of deceased persons, minors or others
under disabilities."
Mr. MILLER. I suppose this will be attended to by the Com-
mittee on Revision and Adjustment.
Mr. JOHNSON. As I understand it these paragraphs are not
identical. Lines twenty-one and twenty-two refer to the sale or
mortgage of real estate, and thirty-four and thirty-five affect the
estates of deceased persons. The personal property of deceased
persons goes direct to the administrator, and he can sell all that,
no matter how much there is, but the real estate goes direct to the
heirs, and the administrator has nothing to do with it unless it is
DEBATES OF THE CONVENTION.
347
shown that it is necessary to sell the property to pay the debts.
That is clear enough to my mind.
Mr. CAMP. I would like to have the chairman of the commit-
tee inform us as to what is the meaning of line forty-five—the
"imparing" of liens. What is meant by it?
Mr. POLLOCK. If there is no doubt that lines twenty-one
and twenty-two, thirty-four and thirty-five do not cover the same
ground I am not desirous of having any of them stricken out.
But it does not seem to me that the point made by the gentleman
from Nelson is a good one, and I still think that the sub-sections
cover the same ground.
Mr. FAY. The first sub-section would not prevent the leasing,
but the last would.
Mr. POLLOCK put his objection in the form of an amendment,
striking out lines thirty-four and thirty-five, and the amendment
was lost.
Mr. SCOTT. I should understand that the word "impair"
meant destroy—to take away any part of its force, or validity or
change would be to impair the lien. The word is spelled wrong
and doubtless will be corrected.
Mr. CARLAND. I move that there be added to section forty-
six the following:
"Nor shall the Legislature indirectly enact such special or local law by
the partial repeal of the general law; but laws repealing local or special acts
may be passed."
The motion was seconded and carried.
MINORITY REPRESENTATION.
Mr. PURCELL. I desire to move that the following shall be-
come section forty-nine of this article: "Each elector may cast
as many votes for members of the House of Representatives as
there are members to be elected in his district, or may cast the
whole number of votes for one candidate, or divide his votes
among the candidates as he may see fit." I desire to say that
this is what is called minority representation. I don't present it
for the purpose of having it incorporated in the Constitution, but
for the purpose of having it submitted to a vote of the people,
and have them say whether or not we can have a minority repre-
sentation. In the Sioux Falls Constitution they have submitted
this question to a vote of the people, and it will be voted upon at
the same time the Constitution is voted upon. This proposition
348
DEBATES OF THE CONVENTION.
is something new in the new Northwest, but it is an
old theory in the State of Illinois, and in conversa-
tion with men who have resided there I am informed
that it is a very good
a very good measure. It is in vogue in a
smaller way in many legislative bodies in the different states and
in many cities. We have an illustration here in a small way.
The President of this Convention has seen fit to accord in the
democratic members of this body a representation on the commit-
tees equal to their proportion of the whole number of members,
and he has also seen fit to divide up the chairmanships in propor-
tion to their numbers. In many of the large cities of the
country, especially in Pennsylvania, they have this privilege, and
all with one voice declare it to be a very good measure. There
are many localities where the majority is very small-sometimes
less than ten, and frequently less than 100, and in these localities
the majority of less than 100 make the laws and enact them,
and have all the say about them, and the minority have nothing
to say. Of course we believe this to be right in a sense-it is one
of the principles of our government. Minority representation.
does not intend to interfere with that, but it simply gives the
majority their majority, and gives to the minority a representation
in the legislative halls of this new State. It does not give them
representation in the Senate, but simply in the lower house, where
their views can be expressed, their wishes made known, and where
they can have a vote in the legislation that takes place. It seems
to me that this is a fair proposition. We simply ask to have it
submitted to a vote of the people and let the people say whether
or not we shall have minority representation.
Mr. STEVENS. I lived under this system, and I think it is
no more than fair that it should have a good, honest, fair, candid
consideration. We have not time to go into this to-night, and I
therefore move that this amendment be referred to the Committee
on Elective Franchise, so that we may consider it better.
The motion was seconded.
Mr. NOBLE. I wish to suggest that this clause has already
been referred to that committee, and I think that committee re-
ferred it back, and it was then referred to the Committee on Legis-
lative Department. At all events the committee did not do very
much with the question, and I don't think it will do very much
good to refer it to that committee again.
Mr. SCOTT. I move as an amendment that the matter be laid
DEBATES OF THE CONVENTION.
349
over till to-morrow. I don't think there is any reason for re-
ferring it back to that committee.
Mr. LAUDER. This is a matter that has been discussed
a good deal-perhaps not in Convention or Committee of the
Whole, but outside and I think every delegate has considered the
matter, and made up his mind how he is going to vote. It seems
to me that it can be disposed of just as well now as to be laid over
till to-morrow.
The amendment to postpone was withdrawn, and Mr. PURCELL'S
motion was put to a vote and lost by 24 to 40.
THE OATH.
Mr. NOMLAND. I desire to say that the Farmers Alliance
favored the insertion in the Constitution of the oath for the mem-
bers of the Legislature to take, that is in the Sioux Falls Consti-
tution. It will be found in Long's Legislative Handbook, on page
six. In that oath it states that the members shall take an oath
that they will not take any passes on the railroads. There has
been some talk here about the matter. It has been said that
the members of the Legislature should not have $500 per session—
it is too much, has been said. The idea of the farmers, as I un-
derstand it, in asking that the legislators should have this much,
was that they should have no passes on the railroads. I don't say
this because I have not got a pass, or because I am an extreme
moralist, but at the same time if the farmers--and they are tax-
payers, because the producers are taxpayers if they say to the
members of the Legislature, "We will give you good pay, but
you must have no passes,” I am in favor of accepting the position.
I move that the section of the Sioux Falls Constitution providing
for the oath be inserted as a part of this article.
The motion was seconded by Mr. PARSONS of Morton.
The section was then read from the Sioux Falls Constitution as
follows.
"Members of the Legislature and the officers thereof before they enter
upon their official duties, shall take or subscribe the following oath or affirma-
tion: I do solemnly swear (or affirm) that I will support the Constitution of
the United States and the Constitution of the State of North Dakota, and will
faithfully discharge the duties of (Senator, Representative or officer) according
to the best of my abilities, and that I have not knowingly or intentionly paid or
contributed anything, or made any promise in the nature of a bribe, to directly
or indirectly influence any vote at the election at which I was chosen to fill said
office, and have not accepted, nor will I accept or receive, directly or indirectly,
any money, pass or any other valuable thing, from any corporation, company
350
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ཙུ
or person, for any vote or influence I may give, or withhold on any bill or reso-
lution, or appropriation or for any other official act."
Mr. STEVENS. As I read it, this matter is already covered.
There has been a section already passed here which provides that
no member of the Legislature shall take a bribe either in money
or thing of value for his vote or influence on any subject. Under
the section we have adopted, and under the section that has just
been read, you may take as many passes as you can get and as the
railroads will give you, so long as you don't take them for your
vote or influence. If it is not taken for a vote or inflence there is
no violation of the section in the Sioux Falls Constitution.
The motion of Mr. NOMLAND was lost.
Mr. FAY. There is another matter that is already coming up
at the sessions of the Legislature. That is in regard to postage,
newspapers and stationery. In many constitutions it is provided
that a certain sum shall be allowed the members in lieu of all per-
quisites. This sum is paid them and they can use it for stationery,
papers or whatever they may desire. I would move that in lieu of
all perquisites, newspapers, postage, stationery, etc., the sum of
$50 be given to each member of the Legislature.
The motion was seconded.
Mr. LAUDER. I move that the figures "$50" be stricken out
and the figures "$15" be inserted. We have fixed the compensa-
tion of the members of the Legislature, and this idea of granting
another $50 under the name of perquisites is so obviously an at-
tempt to get more pay from the State, that it seems to me it
should not be discussed. There is not a member of this Conven-
tion for whom $15 will not buy all the pens, and ink, and paper
and postage stamps that he needs. Five dollars would do it. If
you want to give the members of the Legislature $50 additional
to their salary, do so, but call it by its right name.
Mr. FAY. I introduced this resolution for the purpose of get-
ting it before the Convention. In Illinois for a great many years
they have allowed the members $5 a day and $50, and while the
gentleman may think this is too much, yet in many older states
and with just as wise men as we have got, they have seen fit to in-
sert that amount, and they pay it right along.
Mr. PURCELL. I move that when the committee rise it re-
ports this resolution back, with recommendation that it do not
pass.
The amendment of Mr. PURCELL was adopted.
DEBATES OF THE CONVENTION.
351
The committee then rose.
Mr. BEAN. I move to adjourn.
The motion prevailed, and the Convention adjourned.
THIRTY-FIRST DAY.
BISMARCK, Saturday, August 3, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. PURCELL. I move that the Convention now resolve itself
into a Committee of the Whole for the purpose of considering
File No. 137.
The motion was carried.
Mr. CARLAND. In view of the question asked yesterday I
would move to amend the File by adding at the end the following
words:
"In case the voters of any county decide to increase the jurisdiction of
the county courts, then such jurisdiction as thus increased shall remain until
otherwise provided by law."
I move this for the purpose of enabling the Legislature to abol-
ish the jurisdiction, if after trial the people of any county desire
to abolish it.
The File as amended by Mr. CARLAND'S motion was adopted.
JUSTICE COURT JURISDICTION.
Mr. SCOTT. I desire to amend section twenty-six of File No.
121 so as to read as follows in line five:
"The justices of the peace herein provided for shall have concurrent juris-
diction with the district court in all civil actions, where the amount in contro-
versy exclusive of costs does not exceed $100."
The section now reads as follows:
SEC. 26. The Legislature shall provide by law for the election of justices
of the peace in each organized county within the State, but the number of said
352
DEBATES OF THE CONVENTION.
justices to be elected in each organized county, shall be limited by law to such
a number as shall be necessary for the proper administration of justice. The
justices of the peace herein provided for shall have exclusive jurisdiction in all
civil actions. where the amount in controversy exclusive of costs does not ex-
ceed $50, and concurrent jurisdiction with the district court in all civil actions
where the amount in controversy exclusive of costs does not exceed $200. They
shall have such jurisdiction as committing magistrates as may be prescribed
by law, but in no case shall said justices of the peace have jurisdiction, where
the boundaries of, or title to, real estate shall come in question.
The amendment was seconded.
Mr. STEVENS. I desire to offer an amendment to the amend-
ment. I would insert "$200" instead of "$100.”
Mr. SCOTT. I don't know whether the gentleman from Ran-
som has had much experience in the justice court or not, but it
seems to me that $100 is all the jurisdiction the justice court.
should have. I fail to see any advantage to be gained by making it
$200. In the first place is does not cost any more to sue in the
district court than in the justice court, and now terms of court.
will be more frequent. There will not be nearly as much delay,
and why this amendment was offered or why the report recom-
mended $200 I cannot see. If we are compelled to go into the
justice court to litigate a case involving $100 it is more than we
should do, for in nineteen cases out of twenty an appeal will be
taken to the district court.
Mr. STEVENS. In the first place, under the gentleman's
resolution we are not compelled to go into the justice court, because
the justice court has concurrent jurisdiction with the district court,
and not exclusive jurisdiction. In the second place the $100
clause may work very well where you are living in the county seat,
but in the larger counties there might be cases involving $200 in
which there was no defense and no contest. If you bring the case
into the district court, after having service you must wait thirty
days before the time for answering comes. It is an injustice to
parties who want to bring suits on notes where there is no defense
to say that because the note exceeds $100 they shall not only be
compelled to go into the district court at a greater expense, but
shall also wait in addition, and in all probability there will be a
delay of six months or more if there is a defense. On the other
hand, if it was to be tried by a justice, if there was a defense there
could be no injury, and if there was not, it would assist the plain-
tiff. I believe that law suits should be so that a man may get out
of court the cheapest and easiest way he can. The law should be
DEBATES OF THE CONVENTION.
353
so arranged as that any man who brings a defense that has no
merit, cannot delay the trial indefinitely. I have not had a large
practice in the district court or in the justice court. I am an unso-
phisticated youth who has just begun to practice, but my practice
has convinced me that jurisdiction of $200 would have been the
correct thing for my clients.
Mr. SCOTT. The same argument would apply to make the
jurisdiction larger, and I would ask-why not make it $1,000?
Very frequently a person having a case of a $1,000 would like to
get a judgment in a day which he might get in a justice court.
Mr. WALLACE. The gentleman wants to know why there is
any reason for increasing the jurisdiction beyond $100? I believe
that every litigant has a right to have his case heard speedily. To
force a man to go into the district court because he has a case of
$200 I think is unwise. I think the justice court should have
jurisdiction to as high an amount as $200.
Mr. LAUDER. It seems to me that the amendment of the
gentleman from Barnes should prevail, for we have as good as
adopted the county court system, and with the county court.
always open, and presumably presided over by a man with more
ability than an ordinary justice of the peace, there will be plenty
of opportunity for parties who wish to bring suits to bring them
if the jurisdiction of the justice remains at $100. There is an-
other question in this besides the rapidity with which a man may
get a judgment if he has got a note against a neighbor or anybody
else, and that is the character of the court and the ability of the
court to transact the business of that magnitude. That should
be the question here. It seems to me that the jurisdiction of $100
is sufficient for the ordinary justice. Occasionally we find a
justice of the peace in whose court it would be safe to try cases
involving a larger amount, but I can see no necessity for increas-
ing the jurisdiction in view of the fact that we will have county
courts in all counties that desire them.
Mr. CARLAND. I have no particular interest in the jurisdic-
tion of justices of the peace, but there is one point that seems to
have been overlooked by the gentleman from Richland, and that
is that under the terms of the Constitution, as it now stands,
counties that contain a population of over 2,000 do not have
county courts with jurisdiction other than probate jurisdiction.
Consequently in those counties it seems to me if it might not be
too much for the justices to have jurisdiction of $200.
23
354
DEBATES OF THE CONVENTION.
Mr. MATHEWS. Where I used to live justices of the peace
had jurisdiction to an amount of $200, and it worked very well.
They could settle things at once without rendering it necessary
to wait five or six months.
The amendment of Mr. STEVENS was adopted, and Mr. SCOTT's
amendment adopted as amended.
Mr. CLAPP. I move to amend the section by adding after the
word "magistrate" in the tenth line, the words "to hear, try and
determine all cases of misdemeanor.”
Mr. BARTLETT of Griggs. It seems to me that this is an
organized effort to defeat the county courts in another form. If
we are going to give all the jurisdiction of the county courts to a
justice of the peace, let us know it. The idea of giving him
power to hear, try and determine all cases of misdemeanor is as
absurd a proposition as we have heard.
Mr. CLAPP. The gentleman is an earnest advocate of the
county courts, but I would say that there are some whom I repre-
sent who are as entitled to a hearing as he is. In the county in
which I reside there are numerous villages which are not incorpo-
rated, and which would not come under section twenty-seven, where
police magistrates are given the power that I would give to the jus-
tices of the peace. There are some of these villages nearly as large as
some of the county seats, and they are forty or fifty miles from
the county seat of my county. It is a grave injustice to them to
ask them to go to the county seat in cases of misdemeanor.
Mr. STEVENS. It may be ridiculous on my part, but it sounds
ridiculous on the part of this amendment in this—in the first
place, we have provided that a police magistrate shall be a justice
of the peace, or shall have the jurisdiction of the justice of the
peace. In the second place, either the law must provide that no
misdemeanor can be punished by a fine of over $200 or else he
would have criminal jurisdiction to a greater extent than civil.
The highest penalty ascribed for a misdemeanor under our present
code is not exceeding one year in jail or $500 fine. If we abolish
these penalties and make the penalty within the present
jurisdiction, that we have fixed for justice of the peace, we
must also make a difference in the grade of crimes, or else men
who should be punished under our present laws with one year in
jail, will ask that they get $200 fine and perhaps thirty days in
jail. If we do that the offenses that could now be punished by a
fine greater than $200 and imprisonment greater than one month
DEBATES OF THE CONVENTION.
355
must go as felonies. That would be a great injustice in our crim-
inal legislation-in our Criminal Code to say that a person who
had been guilty of an offense, that the judge or jury might say
would be amply compensated with punishment of $300 fine, must
go to the penitentiary. It would increase the number that would
go to the penitentiary from three to five times. I would be op-
posed to give this jurisdiction. When you use the term "all mis-
demeanors" you make it very broad. If you say misdemeanors
of a certain grade, that would be very different.
Mr. ROLFE. As one of those who earnestly advocated the
system of county courts I recognize the situation that some
counties would be in that don't adopt the county court system,
and therefore I am partially in favor of the amendment, and cer-
tainly would be if the amendment to the amendment which I
would offer would be satisfactory. I would add to the amend-
ment as offered the words: "Where the penalty does not exceed
thirty days in the county jail or $100 fine or both.”
Mr. POLLOCK. I am very much in favor of the amendment,
and until the last few minutes I did not discover that this pro-
vision for justices of the peace does not, as it stands, give the
justices of the peace jurisdiction to hear and determine any crim-
inal cases. They certainly should have as much jurisdiction as
they have under the Territorial laws, and as I understand it this
will give them about the same jurisdiction as before.
Mr. O'BRIEN. I do not quite understand this amendment.
What is a committing magistrate? Is not he a man who holds to
the grand jury? Is it intended that the justice of the peace shall
act as committing magistrate, and in addition thereto shall have
the power to punish?
Mr. PURCELL. The purposes for which county courts were
advocated were to take away from the justices some of their civil
and criminal jurisdiction. This Convention has agreed in a
measure to adopt that system, and in doing so we should not en-
large the powers of the justices of the peace, for by substituting
county courts we furnish a speedy and quick hearing for the
cases. This extension of jurisdiction will take away a certain
measure of the county court business. It is true that some of
the counties will not have county courts, but under our system of
district courts they will not be at much disadvantage. Instead of
extending the jurisdiction of the justice court we should re-
strict it.
356
DEBATES OF THE CONVENTION.
Mr. JOHNSON. I recognize the objection of the gentleman from
Ramsey, and I think it could be obviated by placing this amend-
ment a few words further along. Instead of placing it after the
word "magistrate," place it after the word "law" in the eleventh
line.
Mr. SCOTT. It seems to me that now in place of having one
court in the county you are making the justice of the peace a
county court. This is increasing the jurisdiction of the justice of
the peace so that he may try and determine cases of the grade of
misdemeanor. As the amendment of the gentleman from Benson
reads, all cases which are punishable by imprisonment of thirty
days and fine of $100 will be within the jurisdiction of the justice
court. Misdemeanors, which are the majority of the offenses
which are committed, should not, in my opinion, be brought within
the jurisdiction of the justice court. If it were in my power I
would take away the jurisdiction they have got.
Mr. BARTLETT of Griggs. I have been an earnest and sincere
advocate of county courts, but if we are going to have five or six
county courts in every county why I don't know that we want any.
I want some system that will be in a measure consistent. The
very object of forming the county court was to increase the dignity
of the court that is near the people, and to give the people
as good a court as we can of original jurisdiction. Now you place
the original jurisdiction in a still inferior court and take away
two-thirds of the business which would naturally come to the
county court.
The amendment to the amendment of Mr. JOHNSON was lost.
The amendment of Mr. CLAPP was lost.
Mr. NOBLE. I move as an amendment the following, to come
after the word "magistrate" in the tenth line: "such criminal juris-
diction to try and determine, as may be prescribed by law."
Mr. NOBLE. It seems to me that under the section we are
considering in one of these counties that is below the 2,000
population limit, for the crime of assault and battery the magis-
trate would simply act as a committing magistrate and the defen-
dant would lie in jail till the next term of the district court.
Some provision should be made so that crimes of that kind can
be punished by the justice. That is the main reason why I would
leave it to the Legislature.
Mr. CAMP. I offer an amendmeht to the amendment. After
the word "magistrate" in the tenth line, insert: "And in counties
DEBATES OF THE CONVENTION.
357
where no county court with criminal jurisdiction exists, they shall
have such jurisdiction to try and determine cases of misdemeanor
as may be prescribed by law."
Mr. CARLAND. The amendment to the amendment and the
amendment presented by the gentleman from Bottineau would
authorize the Legislature to give the justices power to try a man
for homicide. I don't think the Constitution wants to confer any
such power on the justice of the peace.
The amendment of Mr. CAMP was adopted and the other amend-
ments rejected.
Mr. BARTLETT of Griggs. I desire to move as an amend-
ment that the following be added at the end of the section:
"The Legislature shall have power to abolish the office of justice of the
peace and confer that jurisdiction upon judges of the county courts or else-
where."
To be consistent with my theory we should provide the best
possible courts as inferior or original courts. If the county court
should become so popular that the Legislature desires to confer
on them all the power, they should be able to do so.
The amendment was carried.
DISCUSSION OF THE PREAMBLE.
Mr. McHUGH. I move that we substitute the Preamble of
File No. 106 for that of File No. 133.
The motion was carried.
Mr. POLLOCK. I move to substitute File No. 74 for the one
just adopted. It reads as follows:
"We, the people of North Dakota, acknowledging the supreme and per-
fect law of Almighty God, in order to maintain and perpetuate the peace, pros-
perity and happiness of our citizens, do ordain and establish this Constitu-
tion."
Mr. BARTLETT of Griggs. I move to strike out the words
"acknowledging the supreme and perfect law of Almighty God."
In this world, unfortunately, there is a large class of people that
declare that the only law there is lies within the lids of the Bible,
and they will stand by that with their heart's blood. The framers
of the Constitution of the United States kept the name of Al-
mighty God out of their work.
Mr. MILLER. I have read the preambles of almost all the
constitutions in the different states of the Union, and I don't be-
lieve there is a terser, more expressive, more complete preamble
358
DEBATES OF THE CONVENTION.
to
any constitution in any state in the Union than the one we have
just adopted as a substitute for the one reported from the com-
mittee. While it does not interfere with anyone's particular be-
lief, it expresses fully and tersely everything which should be
covered by the Preamble.
Mr. STEVENS. I am surprise that any member of this Con-
vention who voted to have service each morning before our exer-
cises or before our business commenced, should offer to strike
from this preamble the name that should be remembered at our
earliest morning wakening, and as we close our eyes in sleep. I
am surprised that any man in this day-in this enlightened day-
would get up in this hall and ask to strike from the preamble of
our Constitution, words that are, or should be, near and dear to
every true citizen and every lover of law and liberty. When you
strike those words from this Constitution you strike a blow at civil
liberty, because without a due reverence for Almighty God all
forms of government must crumble in the dust, and the enlighten-
ment of our day go back into the dark ages of the past. If the
gentleman has a single silver dollar in his pocket, and will take it
out and examine it, he will find that "In God We Trust" is good
enough for him in financial transactions every day of his life. He
will find that every silver doller he handles says "In God We
Trust." If we do not trust in God in whom shall we trust? What
are we but creatures of the Divine Being? You may call him
God or not as you please, but I say that the majority of mankind
at this day and age of the world have arrived at the conclusion
that that is the name by which He should be called. The very
first thing that was done in this Convention was to invoke the
Divine blessing and morning after morning that has continued.
In every Convention of a political or civil nature that is held in
this country the first thing to have is the invocation of the Divine
blessing. Why should we not rely on Him? Do we not rely on
Him for the sunshine and the shower-do we not rely on Him for
every benefit that nature bestows on man? Why, then, should
not we say so, and then the coming generations when they open
the lids of that Constitution will see that its compilers relied upon
the blessings of the great Jehovah? Strike these words from this
Constitution and you send broadcast, not only over this land, but
over across the deep sea to every civilized nation, that North Da-
kota has deliberately and willfully struck a blow at religious
liberty. You say in that Constitution that no man shall be de-
DEBATES OF THE CONVENTION.
359
It
prived of the right of worshipping according to the dictates of his
own conscience. Take your Declaration of Independence, and
what are its provisions? "With a firm reliance upon an Allwise
Being." You cannot find a single document within the last hun-
dred years, that speaks of man's liberty, that does not recognize
also a Supreme and Allwise Being. I say it is a disgrace to any
man who votes to strike the name of God from this Constitution.
Mr. BARTLETT of Dickey. The gentleman is a nice talker.
I like to hear him. But I have not heard anyone who wants to
strike the name of God from this Constitution. We know that
there is a large element of the religious world to-day that is
struggling with all their might to keep the law of God out of the
Constitution, simply that they may not have the blood stained
streets that there have been in years that are past. Recently in
Arkansas they threw men in prison bacause they broke the Sun-
day law. Who makes this persecution? was the orthodox
world that was oppressing their fellow men. Right along there
are men lying in jail there, and all because they got this into their
law. In the history of the world up to the fifth century, people
lived in peace and quiet, but when they began to get the law of
God into their constitutions and their laws, the world was deluged
with blood; one religious sect began to persecute another, and it
has been so through all time till now. For my part I am willing
that they should claim that they are governed by a higher power,
but not to say that they are controlled by the law of God. There
is not an orthodox man in the United States but would say that
that means the Bible, and therefore I am opposed to the measure.
Mr. BARTLETT of Griggs. I did not suppose when I made
this motion that I should be the cause of springing a sermon on
this Convention. It was not my intention. I believe in being
consistent. The gentleman alludes to the fact that we open our
Convention with prayer. We do; we open the sessions with
prayer, and the Legislature opens its sessions with prayer, but do
members of the Legislature or of this Convention bow their
heads in suppliance and ask Almighty God for wisdom to conduct
these meetings and the Legislature in accordance with His law?
The gentleman says it is a disgrace to try to strike the name of
God from this preamble. I say that it is more of a disgrace to
stand and listen to the prayer, and one moment after to put your
heads together and connive in schemes that are disgraceful. That
is what I say is a disgrace. Does it occur in the Preamble of the
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DEBATES OF THE CONVENTION.
Constitution of the United States?-one of the greatest, grandest
documents that was ever written? Were our forefathers dis-
graceful that they left it out of that document? I believe that a
preamble without the name of Almighty God in it would be one
that all could unite on. That is why I made this motion, and I
am not ashamed to stand here and father it, and I don't feel dis-
graced.
The amendment of Mr. BARTLETT was lost.
The amendment of Mr. POLLOCK was lost.
Mr. BARTLETT of Dickey. I move that the words "Al-
mighty God" be stricken out of the preamble that we have adopted,
and the words "Supreme Ruler of the Universe" be inserted in
their place.
The motion was lost.
CAPITAL PUNISHMENT.
Mr. ROLFE. In view of the fact that in the State of New
York the system of execution by electricity has been adopted,
which is modern and may be considered unusual, and since one
who has been condemned to death since that law was placed on the
statute books has contested the sentence imposed on him on the
ground that it is unconstitutional under a provision similar to this,
I would move that the words "or unusual" in the fourth line of
section six of the Preamble and Bill of Rights be stricken out. In
the advance of science we do hope that, if the death penalty be
retained, some means will be devised by scientists whereby that
horrible penalty may be imposed without the scenes of suffering
that are at present entailed on many murderers. It may be that
electricity will accomplish this, and it may be in years to come
means may be devised which will be superior to that which has
been adopted in New York, but we don't want to handicap our
Legislature so that it cannot inflict another penalty by some
means which will be superior to those now in force.
Mr. STEVENS. It won't be unusual by that time, as it is
already being tested. If these words are there for the purpose of
preventing experiments then I think it should be there. The
committee thought that it was better to have such a provision there
than not, because there might be a time when some Legislature
might see fit to prescribe some plan for execution that would not
be best. I don't see any advantage that would follow striking it
out. mean_cruel.
"Unusual" might be construed to mean cruel. That is the
DEBATES OF THE CONVENTION.
361
ground on which the New York case is to be tested, and the ques-
tion that the courts are to pass on is whether or not death by elec-
tricity is unusual or cruel. They have to pass on the meaning of
the word "unusual.”
The amendment of Mr. ROLFE was lost.
TRIAL BY JURY.
Sections one to six inclusive were adopted. Section seven was
read as follows:
SEC. 7. The right of trial by jury shall be secured to all, and remain in-
violate, but a jury in civil cases in courts not of record may consist of less
than twelve men, as may be prescribed by law.
Mr. BEAN. I move that this section be amended by inserting
after the word "inviolate" the following: "In civil cases a three-
fourths majority of a petit jury shall constitute a verdict." I
make this motion for the object which is apparent. We all know
that in civil cases it is very easy for a man to have a friend on the
jury that will, when the right is on the other side, prevent a ver-
dict from being arrived at. For instance, I had a case which was
as good as one could wish, and I got all the jury but two and they
hung the jury. It was nothing but a petty case in the justice court.
That occurs frequently. It is my opinion that justice can be
secured more frequently if we say that three men out of four in
all civil cases shall be sufficient. I think if we get three men out
of four in a jury it is a pretty good sign that those three men are
right.
Mr. CARLAND. I hope the amendment will not prevail, for
if we are to retain trial by jury at all I think we must retain it as
it was known to the common law. If we are not to retain it I
should like to have some good reason given for setting it aside,
and trying our cases without a jury. But if we are to have it,
let it remain as it was to the common law. Of course it is pos-
sible and probable that men will disagree on facts submitted to
them for their decision, but it must not be argued that the men
who are in the minority are wrong and that those who are in the
majority are right. If ten think one way and two another it does
not argue from that fact that the ten are right. The matter of
hung juries will continue in any event, supposing you put it at
three-quarters of twelve men. Those men may still disagree.
They are all men with different minds, and will look at facts differ-
ently and will disagree on facts presented to them, and if you are
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DEBATES OF THE CONVENTION.
going to adopt a practice of letting three-fourths of a jury render
a verdict, it will be proper in my judgement to abolish the whole
system. I am in favor of having the right of trial by jury secured
to all, and hope that this amendment will not prevail.
Mr. BEAN. I desire to show great deference, as do other mem-
bers of the Convention, to the opinion of the gentleman from
Burleigh, but at the same time I claim, on this occasion, that the
gentleman's ground is untenable. He says that he is not willing
to allow nine men out of twelve to settle a case. Rather than
that he would let one man decide it. I may be wrong, but I think
that that is untenable ground. I care not for the history of the
matter, or whether it originated in England or in the United
States-if I think that justice can be brought about better by
having nine men out of twelve decide a case, I am in favor of
amending the old law.
Mr. LAUDER. I don't agree with the gentleman from Nelson
that one man decides the case. When a case has been tried before
a jury, and they have taken it into their jury room and rendered
a verdict, that is a judgment of them all. His objection to
requiring a unanimous verdict is that one man may hang a jury.
My experience has been very limited, but during that limited ex-
perience I have found that one man on a jury was the means, not
of hanging a jury, but of going a great way in moulding their
verdict so that it would agree with the principles of right and
justice. I have in mind a case that was tried in court awhile ago
in Fargo. I understand that the jury were actuated more or less
by passion and prejudice, and eleven of them were in favor of
returning a verdict which would have been pronounced by the
people as outrageous, and one cool-headed man stood there and
insisted on getting down to business and finding a verdict as
should be found, without any personal considerations. The ver-
dict was returned and the sense of the public was that it was a
sensible and a righteous verdict. That one man prevented an
outrage, and that is oftener the case than that we will find a cor-
rupt man in the box who will refuse to exercise his judgment or
return a verdict in accordance with the rights in the case.
We
should not act on the theory that we are going to deal with dis-
honest men. Occasionally we find a man in the jury box who is
corrupt. But that is not the fault of our system. No system that
men can devise will be perfect, or wili mete out exact justice in all
As long as we are dealing with men we must deal with the
cases.
DEBATES OF THE CONVENTION.
363
infirmities of men. I think the experience of mankind in Eng-
land and the United States is that our jury system is the best sys-
tem that can be devised. When twelve men agree, ordinarily
they agree pretty nearly to the right thing. The system prevents
a body of men who may be actuated by passion or prejudice from
doing what is wrong, and it is that way far oftener than that it
prevents a fair verdict from being returned.
Mr. BARTLETT of Dickey. I must enter my protest to some
of their talk. They want it understood that if a man goes into
court claiming that a certain party may owe him, twelve men must
be on his side or the debt goes unpaid. Won't they also admit
that if you have a mean case-what is the first thing you do?
Every one of you know that you just walk up and down that jury
box and talk at your man and throw your whole force on him.
That is what all attorneys do when they have a hard case. They
pick out their man, and throw every bit of their force on him.
Presently the attorney will see the man's head bow, and then he
knows that he has got him. Every lawyer knows that this is
true, and the moment the lawyers go out of the court room to
take their quiet drink they will tell you how they pinned their
man, and the jury is hung and justice is perverted.
Mr. STEVENS. So far as the gentleman's argument is con-
cerned about the attorney picking out the man, it may be right,
but the attorneys get on the other side as often as they get on
this side. Sometimes we are on the side of the one, and some-
times on the side with the eleven. But I desire to say a word in
addition to what has been said by the gentleman from Burleigh
and the gentleman from Richland. The Legislature will have
power under this provision, as it now stands, to do just what the
gentleman from Nelson wants to have done, in case they should
see fit. I think it would be a bad provision to be made by the
Legislature or anybody else, but more particularly to be made in
the Constitution. If the time should ever come when it was found
expedient to adopt this plan, let the Legislature adopt it, but don't
put it in the Constitution. It would be poor legislation, and of all
places the wrong place to put it would be in the Bill of Rights. If it
would be right now it might be wrong hereafter and if it is put
in here it would be impossible for the Legislature to change it.
The amendment of Mr. BEAN was lost.
Section seven was adopted.
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DEBATES OF THE CONVENTION.
INDICTMENT AND INFORMATION.
Mr. ROLFE. I move to amend section eight, which reads as
follows:
SEC. 8. That until otherwise provided by law, no person for a felony be
proceeded against criminally, otherwise than by indictment, except in cases
arising in the land or naval forces, or in the militia when in actual service in
time of war or public danger. In all other cases offences shall be prosecuted
criminally by indictment or information. The Legislature may change, regu-
late or abolish the Grand Jury system.
By striking out the word "felony" and inserting the words "crimi-
nal offenses" in the second line, also inserting after the word "by"
in the second line, the words "information or;" also in the fourth
and fifth lines strike out the words "In all other cases offenses
shall be prosecuted criminally by indictment or information." I
offer these amendments in the interest of the public and defen-
dant's in criminal cases. I suppose there is no lawyer in the
House, and probably no member of the Convention, who has not
seen the occasion for some such change in our laws as this. I
suppose there are some who would raise the objection that this
might result in trifling charges being made against parties from
malice, but this is not the day and age when such moves are
popular, and it is rarely the case in my experience now, when a
trifling or malicious charge is brought before the grand jury or a
court directed against some person for whom the prosecuting wit-
ness has some malice. This substitute that I propose simply
makes it possible that a defendant may be proceeded against by
information and not necessarily by indictment. As I stated the
other day to illustrate the abuse which under the present system
may arise, a man in Benson county was confined for thirteen
months awating the action of the grand jury on the charge of ob-
taining $10 under false pretenses. Under the law his case was a
felony, therefore he could get no trial until after the grand jury
had passed on his case, and he was immured in the cell for thir-
teen months under the system we have agreed on as to our judici-
This will never arise again perhaps in the State, but the case
might arise that he would be confined awaiting the grand jury for
a longer period than he would be sentenced after he was found
guilty of the offense charged. The State of Wisconsin, whose
system we cannot but admire in many respects, has gone to this
extent that “no man shall answer for a criminal offense except by
due process of law." There is no grand jury drawn except where
ary.
DEBATES OF THE CONVENTION.
365
it is apparent to the judge that one is needed. This amendment
provides that information or indictment may be the proceeding,
but we shall not be limited to indictment alone. It appeals to
our pocket books, as we have to support men in jail for a long
time, and it certainly appeals to the rights of the defendant. We
are careful to place in our Bill of Rights that any person charged
with a crime shall have a speedy trial, but at the same time we
make it possible that he may lie in jail for six months before he
can possibly have a trial. This is inconsistent, and should be
changed.
Mr. CAMP. I am in favor of abolishing the grand jury, but I
don't see why the section is not just as good as it now stands, as
it would be with the amendments of the gentleman from Benson.
The section provides that the Legislature may establish some
other method of bringing accused persons to trial besides the
grand jury, and until they have some other method the accused
could not be brought to trial in any other way. Until the Legis-
lature does provide some other way we shall have to go on under
the present system.
Mr. CARLAND. It was the view of the committee in adopt-
ing section eight that as the territory had grown up since its
organization under the grand jury system and our laws were now
framed for the purpose of prosecuting criminals by the grand
jury, it would be unwise to make any radical change in the Con-
stitution in this matter at this time, for the reason that the Consti-
tution would go into effect before the Legislature would have an
opportunity to pass any laws to provide the machinery for prose-
cution on information. So the section is worded that the grand
jury system will prevail until the Legislature makes some other
provision. I think the gentlemen who wish to abolish the grand
jury system can see that the Legislature will have full power to
do that, and I think it best to leave it as it is, and then the law-
making body, after a full discussion, can abolish the system if
they desire to do so.
The amendment of Mr. ROLFE was lost.
BLACK LISTING.
Mr. PARSONS of Morton. I wish to offer an amendment to
the report. I desire to add to it File No. 89, which reads as fol-
lows (with certain amendmendments to the original file):
"Every citizen of this State shall be free to obtain employment, wherever
possible, and any person, corporation or agent thereof keeping a black list, in-
366
DEBATES OF THE CONVENTION.
terfering or hindering in any way a citizen from obtaining or enjoying employ-
ment already obtained, from any other corporation or person, shall be deemed
guilty of conspiracy against the welfare of the State, which offense shall be
punished as shall be prescribed by law."
I have presented this File to a good many members of this Con-
vention, and have endeavored to amend it so that it would not be
objectionable.
Mr. POLLOCK. I have no objection to the spirit of what is
contained in that proposed amendment, but it seems to me that it
is a matter that belongs to the Legislature. There are other
matters just as important as this that scarcely any member would
ask to have incorporated in the Constitution. The matter itself
is all right, except that this is not the place for it.
Mr. PARSONS of Morton. It is incorporated in other consti-
tutions of states in the Union already.
Mr. CAMP. It seems to me that this is one of the most im-
portant articles we have had under consideration, and I am very
sorry that it comes up now that the House is so empty. Every
one of us, who rides upon the railroad train, expects the utmost
care from every employe of that train. We expect to hold the
company responsible to the highest degree of care for our per-
sonal safety. And if by any misconduct of the engineer—if by
any mistake of the conductor or any telegraph operator, I am in-
jured while on that train, I expect to recover heavy damages.
against that corporation, and every judge and every jury is ready
to grant such damages. How is a railroad company, for instance,
and I take a railroad company as one instance, to know that its
employes are competent? Railroad employes are men who pass
from one community to another. Men are working on the North-
ern Pacific to-day who six months ago were on the Southern Pa-
cific—men are in California to-day who were laboring a few
months ago in New York or Connecticut. Now, when a railroad
company has found that one of its employes is inefficient, incom-
petent or a habitual drunkard, is it not right to put him on a list
and say to its own managers and the managers of every other
railroad corporation-this man we have found to be a habitual
drunkard, or he is color blind, and cannot safely act as an engi-
neer? That would be a violation of this clause, and yet it seems
to me that that is the only right and proper thing for a railroad
corporation to do, and it seems to me that they should get a list
of men whom it is found are inefficient, and that any other
DEBATES OF THE CONVENTION.
367
method would result in great danger, not only to the traveling
public, but also the railroad employes themselves.
to me
Mr. LAUDER. If what has been stated by the gentleman
from Stutsman was all there was of this proposition, it seems
me there could be no disagreement as to what ought to
be done with the proposed article. But it strikes me that there is
more of it than has been stated. I grant everything he has said,
and if the black list was used for no other purpose than that
which has been stated by the gentleman from Stutsman, I should
be in favor of it. But laboring men have rights-they have the
right to band themselves together for mutual protection, and the
black list is not used, I take it, simply for the purpose of warning
other corporations or the public generally against incompetent
men, but I believe it is used oftener as a means of punishing men
who have banded themselves together for mutual protection-men
who have been engaged in strikes for instance-something that
they have a right to engage in. Then they are often put on the
black list for this reason, and this black list is used as a menace
to the laboring men to prevent them from asserting their rights,
and when it is used for that purpose it is wrong, and should not
be permitted.
Mr. CAMP. I will not allow the gentleman to go one step
further than I will go in allowing a body of men to band them-
selves together for mutual protection. The use of the black list
is already a violation of the law, and the passage of this amendment
would not make it any more so. I see no reason why a railroad
company should not be put on a par with a newspaper. The
newspaper can print anything it chooses, but is liable both civilly
and criminally for the abuse of that privilege. Let the railroad
company make all the lists it chooses, but let it be civilly and crim-
inally liable for the misuse of that right. The gentleman from
Richland has admitted that there is a right and a wrong use of
the black list. This proposition would prohibit not only the
wrong use but the rightful use as well. I do not sustain the
wrongful use, but I do sustain the rightful use.
Mr. LAUDER. I know of no law on the statute books, or in
force in this territory, that prevents the railroad companies from
making out a black list and sending it to any other railroad com-
pany, giving the names of the employes of that company who
have been engaged in strikes, warning the other roads against.
368
DEBATES OF THE CONVENTION.
employing them. If there is such a law my attention has not
been called to it.
Mr. BARTLETT of Dickey. I desire to say why I am in fa-
vor of the black list. I believe there should be merit for good men
-good laboring men. There is no danger of their getting on the
list, and if there is no merit for doing right, there is nothing to
encourage a man in well doing. Every town in the country has
its black list. Every merchant has his black list, and they post
one another as to who is entitled to credit and who is not. All
through this land there are black lists, and it seems to me that
while we hold railroad and other corporations liable for the dam-
age they may do I cannot see why they should not be entitled to
warn one another against all the dangerous men that they have
had experience with. I think it is only just and right that they
should have that privilege, and when a man is notoriously incom-
petent they should have the right to post other people all over the
United States and show what these men are like. On the river
there are certain men who do not get drunk, but they are
reckless. The minute your back is turned they will put on more
steam than the law allows. We have the names of these men on
the river, so that we can crop their wings whenever they present
themselves, and it is right that it should be so.
Mr. PARSONS of Morton. I did not expect that there would
be much discussion over this. I would like to make this state-
ment. This section that I propose has been presented to, and
received the endorsement of, every railroad attorney in town, but
if the gentleman from Stutsman is a railroad attorney I will except
him. I have submitted it to these gentlemen and have amended it
to suit them and they have been willing to acept it in this from.
It is strange that parties should rise here and try to help out those
who do not ask for any help in this matter. This measure is not
mine, but has been carefully prepared and advocated for years and
years, and in our system of government you may talk about legal
privileges, but there is no remedy for the laws that exist. There
is a class of laboring men in some of the states that have worked
for their fellows, and have succeeded in securing their rights, but
they themselves, the men who have done the work, may go to the
poor house. There is no tribunal before which you can bring
these things, and the men are left to the mercy of the corporations.
If corporations in practice worked as well as they do in theory it
would be all right. I wish to say, that it does not interfere with
DEBATES OF THE CONVENTION.
369
the discharge or the hiring of competent men and it does not in-
terfere with the discharge of incompetent men. There is nothing
in the provisions of this section which will prevent the employer
from acting and using the same judgment and discretion, (although
this employer may be an employe of a railroad company,) that he
would use if he were in another walk of life. If a man asks for
employment of a railroad company and he is asked where he was
last employed, he will have to answer. If he is a skilled workman
he will so state or show his papers. Nothing in this clause inter-
feres with or trammels the right of the employer to write or
inquire all over the United States as to the character of the appli-
cant, but it is intended to make the circulation of the black list a
crime, and most of the names on these black lists are there for
political offenses. It has become tyranical, and in some cases
people are held in shackles by the custom of exchanging black
lists between corporations. The word "person" is in this clause
to prevent an officer saying that he was acting as a person, and not
as an agent of the corporation or the corporation itself. No other
persons circulate black lists but the corporations. If this country
is to be free-if the poor laboring man is to have the same rights
as any other man, he should not have his bread and butter taken
from himself and family simply because he may have offended
some little petty officer-may have committed some little political
offense, and have had his name put on the black list, and published
to the world. There is no tribunal that has that right, and yet.
they take that right. There was a recent decision in Missouri to
the effect that there was nothing in the Constitution of that State
to prevent corporations from circulating a black list. I could
point you to cases of men with families who would strive to obtain
work, and they would get it, but the moment it was found that
their names were on the black list they would be discharged. If
that is right, then let it continue, but if the laboring men have any
rights, we ask that they may have those rights preserved to them.
Mr. BEAN. I am in favor of this section for another reason
which it seems to me has been overlooked, and that is on account
of strikes. If I read this section right it will prevent strikes. It
says that every citizen shall be able to obtain employment, etc.
To my mind that would tend to prevent what is taking place in
the east every day. We all know that these strikers form to-
gether and unite and endeavor to keep other persons from going
there to obtain employment. To my mind this article would pre-
24
370
DEBATES OF THE CONVENTION.
vent that very thing. They could not unite and say: "You must
not come here and work." A man would be free to go there and
work if the employer would hire him.
Mr. ROLFE. If there is in this measure only a prohibition of
that feature of the black list which amounts to a boycott, I would
be in favor of it. I think that the section could be so amended
as to eliminate the objectionable feature. I would move that it
be laid over till Monday.
The motion was seconded and lost.
Mr. STEVENS. I think that I know more about this question
than any man who did not come from a coal or iron working state.
The black list originated in the coal fields of Illinois. Miners
who were not satisfactory or who objected to their wages or in any
way were disliked, were put on the black list. These lists were
sent out to other mines, and the men were not allowed to be em-
ployed by the other mines in the combination, and the whole min-
ing interests of the state were into it. This system resulted in
strikes, combinations of laborers, and to-day the two systems are
at war with each other. There is no provision in the Illinois
Constitution on this subject. They have passed laws by the Leg-
islature, but they found that it was very hard to enforce them,
because the practice has become so deep-rooted. I don't think
the system is very much in vogue in this part of the country, and
if we can prevent the condition of affairs that exists in Pennsyl-
vania and Illinois, and those states where miners or other work-
men are employed in large numbers, it would be a good thing.
Since it was started in Illinois the system has been in vogue among
the railroad corporations. The railroad corporation is all right
but it has a president who looks after his department, and he has
a lot of subs, and these subs run clear down to the fore-
men of the sections, and any offense committed by any
person in the employ of the road-offensive, not to the
corporation, but to the chief of the department in which he
is employed, is reported and blacklisted. That is one of the ways.
The system can be carried to such an extent that the man who of-
fends his section boss can be put on the black list, and the presi-
dent approves it because he does not know anything about the cir-
cumstances of the case, for each officer supposes that his inferior
officer has made a correct statement. It may be that a man has
done wrong--violated the confidence of his employer-that he
should have been discharged, but has not he a right to say, “I
DEBATES OF THE CONVENTION.
371
will reform," to say, "when I go to the next man and he employs
me I will reform, and refrain from the acts that I have committed
in the past." If you put him on the black list you practically say
that he cannot work in that particular line of employment any
more, even if he has concluded to reform. Again, as the gentle-
man says, it will tend to prevent strikes. No combination of la-
borers should have the right to say that because they are not wil-
ling to accept the wages they are offered, nobody else should have
the privilege of doing the work they refuse to do. Look at the
combination that has been waging war on the Burlington railroad
of late. That was simply a counter combination. The railroad
first started it, and in order to protect themselves the men formed
a counter combination, as is always the case, and went far beyond
what was the original intention when they entered upon the con-
test. Political reasons, as has been said, are often the cause of
men being put on the black list. For corporations expect and in-
sist, very frequently, that they own the political power of the
voters who are in their employ. Take the case of John V. Far-
well of Chicago--there is hardly an election but there is a notice
posted up in his place which reads like this: "Persons employed
in this house are expected to vote for so and so, for it is to
interest of this house." Everybody knows what that means. This
may not be absolutely necessary to have in our Constitution now,
but there will come a time when it will be of the utmost value to
the new State, and I am heartily in favor of the amendment.
The amendment of Mr. PARSONS was adopted.
The committee then rose.
Mr. CAMP. I move that the Committee on Public Institutions
be requested to report back to the Convention File No. 79 on
Monday next.
The motion was seconded and carried.
EVENING SESSION.
Mr. STEVENS. I move that the Convention resolve itself into
a Committee of the Whole for the purpose of considering the
matters on the Clerk's table.
The motion was carried.
C
Mr. STEVENS. I see a great many vacant chairs. To my
mind the most important subjects that we will have to consider
will be that of corporations other than municipal, and taxation
372
DEBATES OF THE CONVENTION.
and revenue. I hope these two subjects will be delayed if possi-
ble till the absent members come. I believe there should be a
full attendance when they are discussed. I would like to see
seventy-five votes on every section of these articles, as they are
two propositions of all others that will give us trouble in the
future if they are not properly considered here, and I hope there
will be unanimous consent given to have them go over till we have
a larger attendance.
Mr. LAUDER. I hope the consideration of these articles will
not be delayed. There is no reason why every member cannot be
here now. They all know when this Convention convenes, and if
they will be here in five or ten minutes they will be here before
we have proceeded at a great length in the consideration of these
articles and I hope that we will proceed to consider them at once.
CORPORATIONS DISCUSSED.
Section one of File No. 134 was then read by the Clerk as
follows:
SECTION 1. No corporation shall be created or have its charter extended,
changed or amended by special laws except those for charitable, educational,
penal or reformatory purposes, which are to be and remain under the patronage
and control of the State; but the Legislature shall provide by general laws for
the organization of all corporations hereafter to be created.
The Clerk then read section one of File No. 135 as follows:
SECTION 1. No charter of incorporation shall be granted, changed or
amended by special law, except in the case of such municipal, charitable, edu-
cational, penal or reformatory corporations as may be under control of the
State, but the General Assembly shall provide by general laws for the organi-
zation of all corporations hereafter to be created, and any such law so passed
shall be subject to future repeal or alteration.
Mr. JOHNSON. I would like to know if there has been any
motion made to change the rules here-any different rule adopted?
Is there any precedent for the Clerk reading an article and then
reading another without being requested to do so?
The CHAIRMAN. It was at my request that he read both
articles. I thought that it would be an advantage to this body to
have the majority and the minority reports both before them.
Mr. MOER. I move that when the committee rise they report
back to the Convention section one of the minority report and
recommend that it do pass.
Mr. JOHNSON. I second the motion. I wish to be fair in
this matter, and I think the section from the minority report is
!
DEBATES OF THE CONVENTION.
373
better than that of the majority, although we had no opportunity
to consider the ideas of the minority in the committee. There-
fore I second the motion and hope it will pass. I consider the last
part of the section reading "and any such law so passed shall be
subject to future repeal or alteration" is useless, but I do not wish
to bring on a contest here over this.
The motion was adopted.
Mr. MOER. I move that the minority report be read with the
majority report section by section.
The motion was seconded and carried.
Mr. JOHNSON. I move to amend by saying that the corres-
ponding sections be read not by numbers. Section two in the
minority report is section fifteen in the majority.
The amendment was seconded.
Mr. PARSONS of Morton. With all due respect to every one
concerned, would it not be better to proceed according to the reg-
ular order and take the regular majority report of the committee;
when we come to a section that answers to one in the minority re-
port, bring it up by motion to be substituted for the majority
report. I make that as a motion. The second section may take
the sixth or the seventh or twelfth of the minority report.
Mr. MOER. I move to reconsider the previous motion.
The motion was seconded and carried.
Mr. PARSONS of Morton. I move that we take the sections
of the majority report and when the minority has a correspond-
ing section it can be moved as a substitute.
The motion was carried.
Sections two, three, four, five and six of the majority report
were adopted.
Section seven of the majority report was read as follows:
"No corporation shall engage in any business other than that expressly
authorized in its charter."
Mr. MOER. I would call the attention of the committee to a
section in the minority report which reads as follows:
"No corporation shall engage in any business other than that expressly
authorized in its charter and the law.”
I move that the section in the minority report as just read be
substituted for the majority report.
Mr. WALLACE. I would like to ask the meaning of the
words "and the law." Does it mean some future law that the
Legislature may make?
374
DEBATES OF THE CONVENTION.
Mr. MOER. It would probably mean any law relative to that
corporation, I should think.
The motion of Mr. MOER was lost.
Sections seven, eight, nine and ten were adopted.
Section eleven of the majority report was read as follows:
PARALLEL AND COMPETING RAILROADS.
"No railroad corporation shall consolidate its stock, property or franchises
with any other railroad corporation owning a parallel or competing line; and
in no case shall any consolidation take place except upon public notice given
at least sixty days to all stockholders, in such manner as may be provided by
law. Any attempt to evade the provisions of this section, by any railroad cor-
poration, by lease or otherwise, shall work a forfeiture of its charter."
Mr. MILLER. I am inclined to think that this section as it
now stands will work a serious injury to railroad building in the
State of North Dakota. If it is to be strictly construed it cer-
tainly will do that. It is a fact probably known to every member
of this Convention, that every branch of the Northern Pacific has
been built by a separate company. It is also known to every
member of this Convention that the Manitoba road from Barnes-
ville to Grand Forks was built by a local company as a competing
line to the Manitoba across the Red River. It is also known that
the branch west of Casselton to Mayville, and the branch
west of Casselton also running up in the same direction,
were both built by separate and independent companies and
were competing and parallel lines and were sold out to the Mani-
toba line. I don't know that there has ever been a line built in
Dakota except the main line of the Northern Pacific that has not
been built by an independent company and then sold out. The
Fargo Southern was built by a local company, organized in Fargo
as a competing line with the Manitoba, and afterwards sold to the
Milwaukee road. While I have not examined this section before,
and have not any amendment just at present to suggest, I think it
is well to look into this matter. If my recollection serves me
rightly the original charter of the Northern Pacific does not per-
mit them to build branches, so that any branches they may have
must be built by local companies. If there is anything in this
section to prevent the sale of these branches, it would certainly
be a serious detriment to railroad building in North Dakota. I
know of the facts that I have stated. In regard to the organiza-
tion of private companies within the territory to construct these
lines, every member of this Convention knows that there is no
DEBATES OF THE CONVENTION.
375
}
man or set of men who can organize these companies and build a
line from ten to 125 miles long and have the means and money to
equip and operate that road after its completion, especially when
they come to arrange for an eastern connection. These roads
that cover the Territory of Dakota to-day were all built by inde-
pendent companies, but of course with the expectation of selling
them to some one of the larger companies that occupied the field
contiguous thereto. This section would have prevented the Man-
itoba from buying the branch from Casselton to Mayville; it
would have prevented, possibly, the sale to the Milwaukee of the
Fargo Southern, some 125 miles, and it would have prevented the
sale to the Manitoba of the road which was known as the Moor-
head, Fargo & Northern; and if the stockholders of that road had
known in advance that they would not be able to sell it to another
company, they would never have built it. While I have no
amendment to offer to this section at present, I should like to
have it passed over for a little while.
Mr. JOHNSON. I think if the gentleman will read the section
a little more carefully he will find that the objection which at first
flush have occurred to him do not exist. The gentleman argues
as if section eleven prohibited the consolidation of different rail-
roads as if it prohibited the purchase of one railroad by another—
as if it prevented a small local company from selling out to a
great trunk line. It contemplates no such thing.. It will work no
such result. This is a provision which I think the gentleman will
find on investigation has been placed in all the Constitutions—all
that have been made within the last sixteen years, or since the
Illinois Constitution in 1870. I am very happy that the report
has gone forward so smoothly and so nicely. Here are ten impor-
tant sections that have been adopted with scarcely an amendment;
nothing but verbal changes and improvements. It is significant,
but I knew the time would come when we would not have as much
smoothness, and we have struck a snag right here. This is one of
the sections which we cannot yield an inch upon. We are not
against corporations. We know that these prairies would be
utterly uninhabitable without these roads, but we want just and
fair treatment and we want guarantees for the future. People are
not afraid of the railroads. It is the monopolies that they are
afraid of. This clause is certain to guard against monopolies. It
is so fair and just that it has been accepted by every Constitutionl
Convention that has been held within the last sixteen years, since
376
DEBATES OF THE CONVENTION.
this question of monopolies grew up to be a threatening danger
and a live question in American politics. It is in the Constitutions
of Colorado, Illinois, West Virginia, Pennsylvania, Texas and
South Dakota. In some of these constitutions they provide that
the question of a competing line, or being a parallel line shall be
left to the courts to determine. I have no objection to inserting
that there, except for the mere matter of lumbering up the Con-
stitution with useless matter.
There would be no objection to a road building a line up and
down the Missouri river and selling it to the Northern Pacific.
They would not be parallel or competing lines. They would be
feeders instead of competitors. But it does aim to strike at a giant
combination like that of the Northern Pacific and the Manitoba.
Those are the only two great companies in North Dakota. Think
of the helplessness of the people in the event of a consolidation
of these two great corporations. History would be turned back;
progress would be stopped; people would be denied their rights,
and unless we have some law of this kind on the statute books or
in the Constitution, there is no guarantee but that at any moment.
in the future the fruits of their victory would be swept away. We
are willing to give hundreds of thousands of dollars to get the
roads, but are you going to invest that money when you have no
safeguards in the Constitution that it will not be swept away in a
minute? An agreement can be made in New York or Boston or
St. Paul between the heads of these great corporations that will
sweep away the rights of the people in an instant, and it is to
guard against this that we seek to have this section in our Consti-
tution. This is a moment when I call on you to represent the
people, not only the farmers but the laboring classes-to stand up
against the monopolies-to stand up against the combination of
parallel and competing lines.
Mr. CARLAND. This may be a very good provision, but it
seems to me that the penalty that is provided as a result of the
violation of this section, would be inoperative so far as the North-
ern Pacific and the Manitoba roads were concerned. The section
reads: "Any attempt to evade the provisions of this section, by
any railroad corporation, by lease or otherwise, shall work a for-
feiture of its charter." It is not within the jurisdiction of this
State to work the forfeiture of the charter of either the Northern
Pacific or the Manitoba roads.
Mr. MILLER. I am as anxious as the gentleman from Nelson
DEBATES OF THE CONVENTION.
377
*
to have every safeguard thrown around the rights of the people,
against the consolidation of monopolies, which would render the
life and the business of the people burdensome. On the other
hand I don't want to throw anything in the way of building rail-
roads, upon which depends in a great measure the upbuilding of
this country. I have no amendment to offer to this section, but
I have in my mind now an instance where this section would
work serious harm. There is a charter for a road running par-
allel to another road in North Dakota; the right of way has been
secured; the road is being surveyed for over fifty miles, with the
strong probability that much, at least, of the road will be com-
pleted this present season. It is a parallel and competing road
to another line of railway of this Territory. It is being built by
local parties for the benefit and the upbuilding of the country
through which it passes. There is no moral question involved,
and when it is completed the very parties who will seek to obtain
it will be those parties to whose line it runs parallel, and with
whom it is a competitor. It would be to the interest of every
party along that road to sell it in that way. The road that now
exists will not build along the projected road. They will have
no road, opening up a new stretch of country, till a local company
builds it up and sells it to them. The road would be a fixed fact;
and be a valuable aid to the development and improvement of
that section of country. If this section is aimed at preventing
the building of roads in that manner, then I am opposed to it.
desire, as I said before, to see all safeguards thrown around the
people in the protection of their rights, but I do not wish to call
things by their wrong names, and say "safeguards" when I mean
obstacle to the improvement and the development of the country.
I have no captious objection to make to this section. I only wish
for an opportunity to consider it carefully enough to be certain
in my own mind as to what effect it will have. Perhaps there is
no person here but is more or less interested in the building of
railroads in this State, either directly or indirectly.
Mr. STEVENS. I confess frankly that I have never read this
section before. I do not understand the word "parallel" when
applied to a railroad to mean the same as the gentleman from
Cass, but if it does, then I agree fully with what he says. I would
like time to consider this question. I believe that this Convention
should throw all the safeguards it is possible to throw, around the
rights of the people, and I believe I for one would be better able
378
DEBATES OF THE CONVENTION.
to vote on the question after having studied it than I am now. I
move that this section be passed until Monday's session. I do
this simply for the purpose of getting what light I can upon the
subject.
Mr. PARSONS of Morton. I am willing to postpone this mat-
ter, for it is of so great importance that we should not consider it
hastily.
The motion of Mr. STEVENS was carried.
RAILWAYS DECLARED PUBLIC HIGHWAYS.
Section twelve of File No. 134 was then read as follows:
SEC. 12. Railways heretofore constructed or that may hereafter be con-
structed in this State are hereby declared public highways, and all railroads
and transportation companies are declared to be common carriers and subject
to legislative control; and the Legislature shall have power to enact laws regu-
lating and controlling the rates of charges for the transportation of passengers
and freight, as such common carriers from one point to another in this State.
Mr. MILLER. I move to substitute for this section nine of
File No. 135. It reads as follows:
SEC. 9. All railroads and canals shall be public highways, and all railroads,
canals, transportation and express companies shall be common carriers and
subject to legislative control, and the Legislature shall have power to regulate
and control by law the rates of charges for the transportation of passengers
and freight by such companies as common carriers from one point to another
in the State; Provided, however, That such common carriers shall be entitled
to charge and receive just and reasonable compensation for such transportation
of freight and passengers within the State, and the determination of what is a
just and reasonable compensation shall be a judicial question to be determined
by the courts.
Mr. STEVENS. I desire to ask a question of somebody. How
far would that section be interfered with by the present Inter-
state Commerce Law? We don't want to adopt anything that will
be in direct conflict with that law. It comes close to a subject
that they have done a good deal of legislating upon.
Mr. CARLAND. This is intended to apply only to commerce
within the State. It would be inoperative for anything else, of
course.
Mr. PARSONS of Morton. I would amend by inserting in the
second line after the word "transportrtion" the word "telegraph,"
and after the word "passengers" in the fifth line the word "intelli-
gence."
Mr. MOER. I think it would be rather a hard matter to make.
a telegraph company a common carrier.
DEBATES OF THE CONVENTION.
379
Mr. LAUDER. I had always supposed that they were common
carriers.
The amendment of Mr. PARSONS of Morton was carried.
Mr. STEVENS. I desire to offer an amendment to section nine,
line two, adding after the word "companies," the following: "and
palace car companies."
The amendment was seconded and carried.
Mr. JOHNSON. I have been waiting for somebody to say
something in favor of the section that it is proposed to substi-
tute for that reported by the majority of the committee. I figure
that this section is the most important section in the minority re-
port. In order to get at the difference between the two sections,
let me go back just a few years in the history of this contest be-
tween the people and the railroads, and I will do it as briefly as
possible. You will remember that the question of the oppression
of the people by the railroad companies did not become a live
question till after the war. Before the war we had comparatively
few railroads. The immense development of the country imme-
diately after the war sent forward the work of railroad building,
immensely. The railroad industry grew to a giant. A great many
evils followed; the people did not know how to deal with it, and
the railroads themselves did not know how to use the great power
and responsibility that were thrown upon them. In 1874 the op-
pression throughout the Western states became so general and in-
tolerable that there was a general uprising of the people. It al-
most amounted to a revolution, and in the winter of that year
there were enacted throughout the western states-Iowa, Wiscon-
sin, Illinois and Minnesota, what were known as the granger laws.
The companies were defiant. They said, "We own our roads just
as you own your oxen—as you own your ox-carts.
-as you own your ox-carts. We can charge
what we like. If you don't like to ride on our coaches you can
walk. If you do not like to send your freight by our roads,
you can send it in some other way." That is what the roads said
then. The Legislatures were disposed to be fair, and reasonable
and honest. There was a railroad lobby at the sessions of the
Legislature in the different western states-there were men there
also who were posted and competent to give advice as to what was
reasonable. But in every one of the states the roads assumed a
position of defiance and contempt for the Legislatures. In Iowa
the farmers had control of the Legislature. They knew nothing
about railroading, as to what was fair and reasonable. They could
380
DEBATES OF THE CONVENTION.
not get the information from the men who were lobbying and had
the information, so what could they do? They went to the rail-
road station and tore down a schedule that was nailed up on the
wall, gotten up by the Illinois Central railroad, giving lists of
classified freights, and giving a list of everything in the way of
merchandise and farm products, and the price to be charged.
The Legislature took that list and put a preamble to it, saying
that ten per cent. less than the following rates shall be the legal
rates for Iowa. They signed their names to it and made it a law.
These ignorant, honest farmers were helpless unless they did
that. In some respects it was an unreasonable thing to do, and
the railroad attorneys laughed louder than they had ever done
before, and kept laughing till they got to the Supreme Court, and
the Supreme Court sustained the Legislature. They laughed
again till they got to the Supreme Court of the United States but
this court sustained the law, and said that the Legislature had the
right to fix freight and passenger rates. That settled that principle
once for all. We don't have to ask any favors of that sort any
more. If there is one thing that is settled in the constitutional
history of the country, it is that railroads are quasi public insti-
tutions. They don't own their roads as we own our ox carts. They
must run their roads in the interest of the public-they cannot
stop these arteries of commerce, and deprive the husbandman of
the fruits of his labor. It is decided that they cannot charge any
arbitrary rate they may choose to fix and thus rob the laboring man
of the fruits of his labor. This matter has been fixed in all the
late constitutions. The fruit of these granger laws has been placed
in these constitutions, and we propose to place it in this Constitu-
tion if possible.
The minority report seeks to spring on us a very curious pro-
vision which would destroy the fruits of the struggles of the
farmers in the Northwest for nearly a quarter of a century, so far
as North Dakota is concerned. Read the proviso to the minority
section. That proviso destroys the whole thing. If you put that
in you turn back the wheels of progress to 1872. It reads:
"Provided however, That such common carriers shall be entitled to charge
and receive just and reasonable compensation for such transportation of freight
and passengers within the State, and the determination of what is just and reason-
able compensation shall be a judicial question to be determined by the courts."
That is nice, is it not? When laws are passed for you and me
to obey, do we say "We will obey them if they are just and reas-
DEBATES OF THE CONVENTION.
381
onable, and provided you can get the decision of the Supreme
Court to that effect." This would mean that the fixing of rates
would be delayed five or six years before it would be determined
whether or not they were right. When the Legislature passes a
law ordering you to destroy noxious weeds and Canada thistles
would you expect that they would put in their law a provision of
this kind-"Provided however, That such labor should be reason-
able, and the question whether it is reasonable or not shall be a
judicial question to be determined by the courts." Could you get
a decision of the courts before the seeds of the Canada thistles
were ripe, and scattered to the four winds of the heavens? That
is the kind of taffy they are giving us here, and time in the matter
of freight rates is more important than it is in the matter of Can-
ada thistles. No set of men-no individuals in towns or cities,
have ever before had the impudence to come before an intelligent
body of men and say that they did not want to obey the laws that
were made until you can prove that those laws are just and reason-
able. The theory is that the king can do no wrong and that the
Legislatures can do no wrong. They may be unjust but the theory
is correct after all. They may pass unjust and oppressive laws,
but we must obey those laws.
The history and tradition of the Anglo-Saxon people point to
the fact that laws must be obeyed, and if those laws are wrong
and oppressive they must be agitated and modified and repealed.
Agitate the matter on the stump-through the newspapers—
through the ballot. That is the way to appeal from the Legisla-
ture. You can appeal to the people, and not to the district court.
Now then, as a matter of fact the Legislature won't fix the rates
under the section of the majority report. No man and no set of
men could foresee two years and say what would be reasonable
for that length of time. We have delegated this power to the
Railroad Commissioners. That has been the practice in all en-
lightened states, and for them to fix the rates and have a sliding
scale so that they can go up and down throughout the year. You
cannot always fix rates that will be fair and reasonable for two
weeks. Sometimes a single blizzard will throw an obstruction in
the way of the roads that will cost them $10,000 to clear off. It
costs them a great deal more to carry freight in a stormy winter
than in such nice pleasant weather as we had last winter. The
railroad commissioners will have the power to say that they shall
carry freights cheaper during a nice winter than in some such
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DEBATES OF THE CONVENTION.
winters as we have. No Legislature could pass a law that would
be right for an entire season, if that law contained the rates the
road should charge for their freights. These things will vary.
The size of the crop will make a great deal of difference as to the
rate at which each bushel can be carried to the market. These
are matters of storm and rain and sunshine and shower. What
kind of a pickle should we be in if we pass this proviso-if we
say-"No, you shall not from year to year regulate it, nor during
the biennial sessions of the Legislature, but you shall wait till the
laws passed have taken their regular course in the law's delay, and
have been submitted to the Supreme Court of the United States."
What protection would we thus give to the farmer? The law has
been passed, let us say, that the roads shall carry wheat to a cer-
tain point from a certain point, for five or eight cents a bushel. If
the proviso is passed they will say "The Constitution provides
that if a law of that kind is passed, I am entitled to disregard it
till you prove in the courts that it is reasonable." So you would
have to sue the company in the court, and they would appeal to
the Supreme Court, and by that time another winter's storm and
summer's sun would have gone over the State and you might be
sold out on a mortgage or have died and be laid under the sod.
You want that question decided then and there-you want them to
obey the law, and if the law is oppressive and unjust the people
of this State will always be reasonable and fair in the long run.
A corporation like the Northern Pacific has nothing to fear at
the hands of the people. I heard one of its attorneys say some
time ago that when the people along the line of the road were un-
able to get seed wheat they furnished $100,000 worth of seed wheat,
and of all the farmers that had this wheat there were only two
men who tried to cheat them. It showed that these men who had
that wheat had been treated fairly, and reasonably, and honorably
by that company, and they considered it their debt of honor, and
they dealt fairly and squarely with the company. I could point
you to other companies that try to take every opportunity to op-
press the people. I have hear of a road selling wheat to farmers
along its line, and the first chance the farmers had to get even
with the road they would take it-to get even for past oppression.
The farmers would commence to study and and lie awake nights
to beat the road out of their wheat. The companies have the
matter in their own hands. If they are just, and fair, and reason-
able they can trust to the Legislature. If on the other hand they
DEBATES OF THE CONVENTION.
383
undertake to oppress the people, they must expect the people will
remember it.
Mr. MILLER. I will take but a very few moments of the time
of the Convention. I do not expect to be able to make the argu-
ment that my friend from Nelson is able to make. I have given
this matter no consideration whatever, but have been thoroughly
impressed with the justness, fairness and equity of section nine of
the minority report. The objection that the gentleman raises
seems to be at the two or three last lines of the section.
He says
that the Legislature should have the right to fix rates for trans-
portation of freight and passengers. The section provides that
the Legislature shall have the right to regulate and control by law
the rates to be charged. But the objection the gentleman raises
is to the last few lines of the section. From the organization of
the government of the United States its foundations were laid
strong in this fact; in the ability and readiness of all the people
of all the states to submit their differences whether great or small,
to their tribunals of justice-to the judges of the courts that had
been elected by the people, or appointed by the representatives
that the people had elected. These courts hold the balance of
justice, and decide what is right and what is wrong. All this sec-
tion seeks to do is to have the differences arising between the
Legislature, or the people, or any individual and any corporation,
decided by the tribunal which we have elevated to the position of
a court of justice-to which we pay respect and honor. The
gentleman raises the objection that in case this tribunal-this
court that is the arbitrator of all differences, should be left to
settle the question whether the charges were just and reasonable,
that it would take so much time-that the plaintiff would be seri-
ously injured, and cites the instance of the thistle seed being
scattered. In some cases the railroad commissioners might be
ignorant, as he says the members of the Legislature may be, and
the gentleman cites a case in Iowa where the Legislature regu-
lated the rates, and in such cases their judgment is very likely to
be wrong. Would it be just and right between man and man for
the Legislature of the state which has no knowledge of what is
right, to fix an arbitrary rate, and that such as would bankrupt
the companies who would be compelled to carry freight and pas-
sengers at that rate? Suppose the Legislature was all-powerful,
and the railroad company had to wait till they could go to court;
their lines traversing the great state of Iowa, carrying freight
384
DEBATES OF THE CONVENTION.
and passengers at a ruinously low rate, you would have them in
the hands of receivers and their operations would have to cease.
Would there be no injustice on that side?
to
I can cite an instance in Minnesota. The commissioners fixed
an arbitrary rate for switching cars at $1 a car. The actual cost of
switching cars as shown by the records of all the companies was
$1.87 each. The commissioners fixed that rate arbitrarily, and
without any knowledge as to what it cost to switch those cars. Is
it anything more than right that those roads should have the right
go before the courts and see if their property can be confiscated
in that way? Corporations have rights as well as individuals.
Without these corporations the State could not exist. All that is
asked, and it seems to me to be a fair proposition, is that these
matters may be submitted to the courts. Is there a gentleman
here who would not be willing to submit the differences that exist
between himself and his neighbor or himself and a stranger, to the
court that he has helped to elevate to the position of a court?
That is all this bill asks. Now then, in the case in Minnesota
where they were compelled by the commissioners to switch for $1
a car when the cost was $1.87, they appealed to the Supreme Court
and the Supreme Court held that in the absence of a constitutional
provision they were powerless to help them. If the power of
those commissioners were carried to its full extent every company
in the State would be bankrupted. It is unjust-it is wrong-it is
confiscating the property of individuals and corporations, when
their right to their day in court or their right to be heard is denied
them. The fact is true that railroad companies are dependent on
the prosperity of the country through which they pass-they are
dependent for their livelihood and support on the prosperity of
the country. The gentleman has well cited the instance of the
Northern Pacific where it spent $100,000 for seed wheat for the
farmers. They know that the farmers and the business men must
prosper in order that the road might prosper. He might have
cited another instance--the president of the Manitoba road shipped
a number of high bred cattle into the country traversed by that
road, and made a free donation of them to the farmers who would
care for them, so as to improve the grade of cattle and help to
make the farmers prosperous. That fact shows that the railroads
recognize the fact that communities must be prosperous in order
that the roads may attain any success whatever.
I can see nothing unjust or unfair in this section, and I am sur-
DEBATES OF THE CONVENTION.
385
prised that any gentleman in this Convention should stand up
before us and assume an attitude that we as individuals are not
willing to submit our differences to the courts. We will submit
all our differences between each other to the court, and when we
get to the artificial individual-the corporation-we refuse to sub-
mit our differences to the court. It seems to me that this is a
most preposterous idea. I can see no reason or justice in it, and
when the proviso is in there it seems to me that it throws every
safeguard around the rights of the individual. To leave the
Legislature which has no knowledge of what the freight rates
should be between certain points, to arbitrarily fix those rates
might ruin any company and would certainly hinder and delay
any company from extending its lines in a state where such laws
exist. I would not like to put myself in a position of not being
willing to submit my differences to the courts. I hope the Con-
vention will look at this matter in that light. It is just to the
individual and just to the corporation.
Mr. BARTLETT of Dickey. I feel that every gentleman
should favor what the last gentleman has said. I am a farmer,
and I feel that when a man says he wants the farmers of this
country to convene in the Legislature and enact laws to control
the railroads, when they have come here and spent their hundreds
of thousands of dollars among us, he takes a very one-sided posi-
tion. It makes it like a jug handle-all on one side. I think
certainly if the farmers and the people of the state convene
together and make laws it is only just that if those laws are such
that the railroads cannot live under them-it is only just that they
should be able to go to a higher tribunal to settle the differences.
They spend their money among us to build us up, and when we
do that we convene together to make laws to freeze them out. Is
it generous or right? I say it is not. I say the minority article
is what we ought to adopt, and it seems to me that any farmer
ought to see it in that light. Suppose we want more railroads,
and you enact a law of this sort, and English capitalists look over
the ground-I tell you they will be scarey about building railroads
for us, and if we don't have the roads our country will go down.
Mr. LAUDER. As I understand this question it is not so much
as is claimed by the gentleman from Cass, whether or not we are
willing to submit our differences to the court. That is a question
that does not arise here at all, as I understand it. The question
is whether the legislative authority of this State, or the legislative
25
386
DEBATES OF THE CONVENTION.
power shall abdicate their position, or whether they will not. That
is the question. We must all submit our differences to the court
and I cannot but notice that the gentleman from Dickey had evi-
dently fallen into the trap that this proviso was laid to catch him
in. It is the very trap that was intended to catch him.
We must
all submit our differences to the court. The Constitution of the
United States provides in express terms that you cannot take
private property for individual uses without just compensation,
nor can you deprive a man of it without compensation. The courts.
have held uniformly that when any authority fixed a freight or a
passenger rate that was less than the cost, or a rate at which the
company could not make anything-lost money-could make no
income-that was in effect taking private property without just
compensation. The courts have held that time and again, and if
the Legislature should pass a law fixing a freight rate below ope-
rating expenses, the higher courts would declare it unconstitu-
tional at once, because it would be taking the property without
just compensation. As the gentleman from Nelson county said, it
was a long and a hard struggle to have the judiciary establish the
principle that railroad corporations were quasi public corporations,
and they could be controlled by the Legislature, or in other words,
that they had the constitutional power to control them, and it
seems to me that when it was determined that the power to control
them rested in the Legislature, that that body had the power to
fix the freight rate and the power to control those rates—not to go
to the extent of destroying them or passing laws that would in
effect render their property useless, but they had the right to
control them in legitimate ways. What does this provision amount
to? Read it carefully. It simply means this-that the Legislature
shall abdicate the power that they have fought so long to gain,
and which they finally did gain in the highest court in the United
States. That is what it means. It simply says that this shall be
a judicial question.
Mr. MILLER. I think the gentleman is mistaken in his re-
marks about the Supreme Court of the United States.
Mr. LAUDER. I did not think that there was any dispute about
that. There is no question in my mind about it. Does the gentle-
man deny that the Potter law in Wisconsin was held by the
Supreme Court of the United States to be constitutional? There
can be no question about it. I say in substance that we do not
refuse to submit our differences to the courts. The court is the
DEBATES OF THE CONVENTION.
387
final resort in any case, but it is simply a question whether the
people shall abdicate the power which they have through their
Legislatures and go back to and put a block in the way, so that
they can never travel over the road that they have traveled over
before. Shall they go back there and fence the road behind
them? That is what it means. As has been said, here are nearly
half a dozen states-in fact I think every state in the Union,
whose constitution has been revised, or which has made a new
constitution for itself within the last fifteen years, contains a pro-
vision almost identical with that which is under consideration
here as the report of the majority of the committee. It is strange
if the State of North Dakota shall not as carefully protect the
rights of the people as did those states that have been named
here-nearly every state that has adopted a constitution within
sixteen years. The gentleman from Cass says that unless this is
a judicial question property will be confiscated—unless we resort
to the courts property will be confiscated. I say that this provis-
ion is the same as the one they have in Wisconsin and Iowa. Is
railroad property in those states confiscated? The gentleman
knows that no matter how many provisions there were in this
Constitution, no person and no power would have the right or the
authority to confiscate property belonging to any railroad. We
have not the right to do this, but we have the right to control
corporations that are quasi public in their character, and that is
the power that is inherent in the people, and can be exercised
through the Legislature, and then if their personal rights or the
rights of their property are trampled upon, they have the right to
come into court. Let us see how this plan would operate if this
minority report were to prevail. A law would be passed fixing
the freight rate. The railroad company would say "this must be
submitted to the court." It would be taken there, and to the
Supreme Court, and perhaps from three to five years would elapse
before that law could become operative, no matter how the people
might be oppressed in the meantime. At the end of that time,
when it had been determined that the rate was fair and right, the
conditions might have altogether changed, and rates would be
changed again, and the road would take the case again to the
Supreme Court and the result whould be, perhaps, during the
next quarter of a century, we would not have any legislative en-
actment on the question of rates, which would have any force and
effect. I hope this Convention will sustain the majority report.
388
DEBATES OF THE CONVENTION.
Mr. STEVENS. Either I am wool gathering and do not un-
derstand the two sections and the argument that has been made.
on them, or they are both in my opinion wrong. If the substitute
means that the Railroad Commissioners shall not have the right
to determine this question, then in my opinion the substitute is
wrong. If the original proposition proposes not only that the
Railroad Commissioners shall settle this question, but that it shall
cut off all appeal to the courts, then I think it is wrong. I believe
that the proposition that should be introduced is one that where a
law has been passed and any person may feel aggrieved, either the
railroad company or the people or any patron of the road, should
have a right to appeal from the decision of the Railroad Commis-
sioners. The commissioners are elected for the purpose of look-
ing after this business and fixing rates where it is necessary, and
if the company or anybody else is not satisfied with the decision
of these commissioners, they should have the right to appeal, but
it should then become a question between the State and the rail-
road company, If the people or the person aggrieved should be
dissatisfied with the decision of the Railroad Commissioners, they
should have a right to appeal to the courts, and then it would be a
question between the State and the person aggrieved. I would
give every person a right to have his rights adjudicated by the
courts, but no person should be compelled to follow a case in
which he felt aggrieved from court to court and from year to year
at an expense that it is impossible for the farmer to pay. If the
commissioners establish a rate which the railroad believes to be
ruinous, the law should be so fixed that the State would become
responsible for the damage which it might cost to the railroad
company. On the other hand, if they were right, the railroad
company would have nothing to pay but the costs of the appeal.
I understand that this proviso would cut off that power of the
Railroad Commissioners. If so, if I have understood it correctly,
and that statement of the case is right, I am opposed to the sub-
stitution. But if the original provision does not give the company
the right to appeal from the decision of the Railroad Commis-
sioners, then I shall insist that it be amended so as to give that
right.
Mr. PARSONS of Morton. I would like to state that when
the time comes I shall offer an amendment to the section. I don't
wish to state anything that occurred in the committee room, This
is supposed to be an amendment to section twelve of the majority
DEBATES OF THE CONVENTION.
389
""
report "Appeal may be had from any rate fixed, to the courts of
record in this State, provided the rate appealed from shall be in
force until such rate is decided to be unreasonable by the courts.
It seems as a simple proposition of right and justice that no per-
son or corporation, if they have any property, shall be subject to
a board of three men-that they shall have their very life and
success bound up in the decisions of those three men. We have
agreed that we have a right to control the railroads, but it is not
right that so much power should be given to three men, for they
will be human, and circumstances will arise which will render
them prejudiced against some corporation, and other corporations
they will, perhaps be favorable to. The point seems to be that if
this is voted down it would leave it entirely in the hands of three
men. I shall vote in favor of section twelve, but I shall want such
a provision inserted in that section as I have introduced,
Mr. MOER. The section proposed by the minority of the com-
mittee gives the railroad company the right to have determined
in court whether or not the rate fixed is reason able. It likewise
gives the shipper the same right. Should the rate be fixed too high
the shipper can go into court. The objection has been raised by
the gentleman from Ransom, Mr. STEVENS, that the commissioners.
would not have any power in the matter—that they would not be
authorized to fix rates. So far as I am concerned as one of the
minority I would be willing to insert, for instance these words in
the fourth line "power to regulate, by direct act or through a Board
of Railroad Commissioners." That would give the Railroad Com-
missioners power to fix the rates, and shift them as often as was
necessary. Under section twelve of the majority report, it would
be a grave question whether the court would not say that under
this constitutional enactment the Legislature could confiscate the
property of the railroads. That would be the trouble with section
twelve. The gentleman from Nelson has referred to Iowa in his
remarks, and I think he referred to a state in which there is a
good illustration of what would happen here under such a consti-
tutional provision as is proposed by the majority of the com-
mittee. The granger laws passed in Iowa by an ignorant body of
men, stopped railroad building in Iowa for three years. The
State of Iowa to-day has a Board of Railroad Commissioners who
have made certain regulations which the railroads deem unjust
and unreasonable. What has been the result in Iowa? The result
has been the abondonment of large mumbers of trains—taking.
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DEBATES OF THE CONVENTION.
the trains off the roads, and only running such as they are abso-
lutely compelled to run, and a general period of stagnation of rail-
rowd building in the State. That is the result of laws of this
kind—it always follows unjust discrimination. I want to see this
State of North Dakota built up, and nothing can build it up so
fast as railroad corporations. Take south of us, through Logan,
McIntosh, and into Burleigh. There is a road graded from Aber-
deen to Bismarck. The people through that section of coun-
try are farmers, and what they most desire is a railroad.
think they will get it in ten years if this majority section is
enacted.
I think the gentleman from Richland is mistaken, as to what
the courts have held in this matter. But be that as it
But be that as it may, the
section of the character proposed by the majority simply means
that the Legislature may confiscate the property of the railroad
when they see fit to do so. It seems to me that all corporations,
whether stage lines or what they may be, should have the right to
go into the courts and try their cases, and have it determined
there whether the rate is fair and reasonable. The objection is
further urged that if the railroad company thinks that the rate
fixed is unjust they can appeal to the courts and can tie it up in-
definitely and thereby defeat the operation of the law. I main-
tain that that is not true. I apprehend that if the Legislature or
the Railroad Commissioners should fix the rate on wheat at ten
cents a bushel from this point to Duluth, and that rate was deemed
to be unreasonably low, when the shipper came to the company
and asked it to ship his wheat and was answered that the
rate of ten cents was too low, and that the rate it wanted was fif-
teen cents, and the shipper had to pay the fifteen cents, if it took
five years to determine that the rate of ten cents was reasonable,
the railroad company would have to return to that shipper the
excess that had been charged. If the rate were too high and the
shipper said that he would not pay it he would have to sue the
road for damages, and he would get them if it was held that the
rate fixed by the commissioners was reasonable. That is the way
we have to do with everything else and I don't see why we should
not do it with the railroads. The gentleman intimates that you
cannot make him sell an ox at a given figure, but suppose you
could do that—suppose as a matter of fact that were the law—
suppose it were possible for this Convention to provide that the
Legislature might fix the price of a horse, but the question as to
DEBATES OF THE CONVENTION.
391
whether the rate was reasonable or not should be left to the courts.
That is the same principle. Would any one maintain that
there was no reason in that? But what do the gentlemen want?
They want that the Legislature shall be empowered to confiscate
the property of the railroads without any compensation whatever.
Mr. PARSONS of Morton. I move as a substitute that section
twelve be reported by this committee for adoption and amended in
the following manner: Add at the end the following words:
"Appeal may be had from any rate fixed, to the courts of record in this
State, provided the rate appealed from shall be in force until such rate is
decided to be unreasonable by the courts."
Mr. MILLER. Does the gentleman offer this as a substitute
for section nine?
Mr. PARSONS of Morton. I offer it as a substitute and that
the committee report that.
Mr. LAUDER. The committee have taken a great deal of time;
they are men of undoubted ability; their fidelity to the interests
of this State is unquestioned; they have prepared this section with
a great deal of care; they have compared it with constitutional
provisions in other states, and as I have said it is found in every
Constitution that has been passed since the principle was enun-
ciated by the Supreme Court of the United States that there was
power in the legislative authority to control railroads, and I hope
this Convention will stand by the majority of this committee and
vote down the amendment that is offered. I believe that this sec-
tion is exactly as the people of North Dakota want it. Don't
allow the wool to be pulled over your eyes. This matter has been
tried in the different states; it has worked well, and I hope the
Convention will stand by the committee.
Mr. PARSONS of Morton. I second the words of the gentle-
man who has just spoken. I endorse his words, and the only
amendment that I would offer is to include telegraph and tele-
phone companies and sleeping car companies, and the other amend-
ment that I have moved. I wish to state that I believe it was owing
to a clerical error that the amendment that I have offered was not
embodied in the report of the majority. The substance of it, as
it was written down in my note-book, was adopted by the com-
mittee as a portion of this report, and attached to section twelve,
and this amendment of mine simply corrects a clerical error. If
what I say is an error the committee are present, and they can set
392
DEBATES OF THE CONVENTION.
me right. I am standing by the majority of the committee when
I offer this substitute.
Mr. STEVENS. I don't believe that the gentleman from
Richland has the interests of the people at heart any more than
I have. I don't believe that it is fair and right for us to pass
something because the committee have agreed that it is what the
seventy-five members of this Convention should promulgate to
the people as part of the State Constitution. I don't believe,
further than that, that there should be any amendment made here
that will kill the original report. If that provision allows an ap-
peal to the courts, then I am for it. If it does not then I am
against it. I am against it in that case because it is against the form
of our government-it is against the Constitution of the United
States it is against the rights of every man to shut off the right
to appeal. I believe too, that when these appeals are taken the
State should stand responsible for the decision of its officers. If
the Railroad Commissioners make an error in their decision, and
the courts shall over rule them, then the State should stand re-
sponsible for any damages that have been suffered by the wrong-
ful acts of their officers. If any person feels aggrieved he should
have the right to appeal. With the addition of this substitute
motion, nobody can be harmed. It provides that the Railroad
Commissioners or the Legislature may fix the rates that the rates
shall be determined as between the parties by the Railroad Com-
missioners, and rates so established shall stand until the courts
say the Railroad Commissioners are wrong. There is only one
thing I would change in the substitute of the gentleman from
Morton-and that is the words "courts of this State," for it might
have to go the Supreme Court of the United States. They say
this would delay matters. That is no argument, and cuts no figure,
for the rates established will hold until a decision is obtained
stating that they are not reasonable. I hope nobody will come
here and be caught here with what I would term the chaff of
those who say that because the committee have determined this
thing one way that therefore it should go that way.
Mr. CAMP. Let us see for a moment if anybody would be
harmed. The rates are fixed, say, twenty per cent. lower than they
should be twenty per cent. lower than the actual cost of performing
the service. The company appeals and from what does it appeal?
As I understand it it appeals from the decision of the Railroad
Commissioners-the Railroad Commissioners or the Legislature.
DEBATES OF THE CONVENTION.
393
#
The matter goes to the district court and in six months time it is
decided that the rates fixed are too low. The Board of Railroad
Commissioners thereupon appeal to the Supreme Court of this
State, and that court decides that the rates are too low. The Rail-
road Commissioners then appeal to the Supreme Court of the
United States, and after five years more that court decides that
the rate is too low. There are six and a half years in which these
rates have been maintained at twenty per cent. below the actual
cost of performing the work, and from whom shall the railroad
company receive its compensation? As I understand the substi-
tute, the company does not appeal in the individual cases as it
should be provided that they may, but it appeals directly from the
action of the Railroad Commissioners. Where is the company to
get its compensation?
Mr. PARSONS of Morton. I believe that the gentleman is a
lawyer. When the railroad company has a decision of the court
to the effect that the rate was too low, and that they have suffered
thereby, is not that a good ground for action in any court?
Mr. CAMP. Action against the State or against the Railroad
Commissioners?
Mr. STEVENS. Against the State, and that is why I wish to
have the State held responsible for these damages.
Mr. LAUDER. In what I said appealing to this Convention
to stand by the committee I did not mean to infer or to imply that
the other members of the Convention were not qualified to con-
sider this subject and pass judgment upon it. I simply meant to say
that these gentlemen have had this matter under their considera-
tion specially, and are presumed to have given it more study, per-
haps, and their judgment on it now is presumed to be of more
weight, than that of the gentleman from Ransom who was not on
this committee, and who presumably has not given it the amount
of study he would have given it if he had been on the committee.
Just one word in answer to Mr. CAMP-the gentleman from Stuts-
It seems that the gentlemen here who are opposed to this
section find no difficulty whatever in raising objections to it. I
will remind them that the same argument was used during the
contest between the people and the railroads in establishing this
principle in the first instance. The gentleman from LaMoure
says it would be confiscation. That is what they said fifteen years
ago that the property of the railroads would be confiscated if
the Legislature exercised the right to regulate the roads; it would
man.
DEBATES OF THE CONVENTION.
394
be an unwarranted invasion of individual rights. There would be
nothing between the railroads and bankruptcy, it was said; but
notwithstanding this the courts did hold that the Legislature had
this right, and there has been no confiscation yet. The Legisla-
tures in various states-in Minnesota, Wisconsin and Iowa have.
exercised their powers, and there has been no confiscation. The
gentleman from LaMoure knows as well as anybody else that no
law passed by any body in North Dakota, be it by a provision in
the Constitution or a legislative enactment, the effect of which
would be to confiscate anybody's property, would have any force
or effect whatever, for it would be in contravention of the Consti-
tution of the United States. The courts have held repeatedly
that where any authority whatever made a rate below that which
exhausted all of the income to pay the running expenses, this was
in effect taking the property of another without just compensa-
tion, and the railroad companies are protected from that.
Mr. JOHNSON. I wish to say that I am inclined to think the
gentleman from Richland is correct, and the course of safety is to
vote against this amendment.
Mr. MOER. The report of any committee should always re-
ceive due weight, for the committee is supposed to have examined
the subject carefully, but it is much weaker when it is only a com-
mittee of nine and five comprise the majority and four the minor-
ity. It is supposed that the minority have examined the matter
about as much as the majority. If I mistake not, the gentleman
from Nelson, who now tells us we must vote against it-if I mis-
take not in the committee supported that same proposition now
introduced by the gentleman from Morton. It seems to me that
there certainly cannot be anything unreasonable in this proposi-
tion, for it affords full protection to the people in every way. But
just on that committee point-remember that the committee stood
five to four, and all of them probably investigated this matter.
The substitute of Mr. PARSONS was lost.
The substitute of Mr. MOER was lost.
Mr. FLEMINGTON. As I understand it the last vote was
upon the motion of the gentleman from LaMoure as to whether
section nine of the minority report should be substituted for the
majority report.
Mr. APPLETON. I don't believe that this is a jug handle. In
the early part of the Convention the gentlemen who urged that
we should leave everything to the Legislature, now want to take
t
DEBATES OF THE CONVENTION.
395
everything away from them. It is wonderful the way they can
flop around. It seems that there are three or four gentlemen here
who are trying to run this Convention. I don't believe there are
any gentlemen here who can be bull dozed by any such cross-fire
as there has been indulged in.
Mr. FLEMINGTON. I don't understand that the last vote we
had settled the original section at all. I think we should vote on
the matter understandingly. I did not understand what I was do-
ing, and I think I keep track of the work of the Convention as
well as the gentleman from Pembina.
Mr. BARTLETT of Dickey. I don't know who the gentleman
from Pembina was talking about. If he meant me I can say this
-I voted for the minority report in the committee-I talked in its
favor in the Convention, and I have told everybody where I was
on it. I have always talked that way. I stood in the first place
right where I stand now.
Another vote was taken on the question whether section nine of
the minority report should be substituted for section twelve of the
majority report with the result that the motion was lost by a vote
of 20 to 35.
Mr. BLEWETT. I move that the committee do now rise,
report progress and ask leave to sit again.
The motion was lost.
Mr. BELL. I move the adoption of section twelve as reported
by the committee.
The CHAIRMAN. No motion is necessary.
Mr. STEVENS. I desire to amend section twelve by inserting
in the third line after the word "railroad" the words "sleeping
car, telegraph and telephone;" also in the same line after the
word "companies" insert the words "of passengers, intelligence
and freight."
The amendment of Mr. STEVENS was carried.
Mr. STEVENS. I would add the following as an amendment
to the section as it now stands.
“Provided, That the regulation of such charges shall be exercised by a
Railroad Commission, and all such common carriers shall have the right to ap-
peal to the courts from all orders of the commission fixing such rates, and such
common carriers shall be entitled to receive such compensation as may be
determined by said courts on such appeal, or as appears to be just and reason-
able."
Mr. PARSONS of Morton. I am opposed to the amendment
of the gentleman from Ransom, because there is something wrong
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DEBATES OF THE CONVENTION.
in it. I don't know if he observes it. It makes no provision to
the effect that the rate fixed by the Railroad Commission shall be
in force until reversed. My amendment had that provision in it,
and this is just as bad as that which we voted down here-substi-
tute number nine. I had a provision that provided that the rate
fixed should be maintained until changed by the courts, and I am
opposed to the motion of the gentleman from Ransom.
Mr. STEVENS. If there is any woodchuck in my motion,
vote it down. I think it is right, and if others think it is wrong
I am willing to have them vote the the other way.
Mr. APPLETON. I am going to vote against it, because I
think there is too much legislation about it. I don't believe that
the Legislature we are going to have will legislate the railroads
out of existence. I understand the railroads will have the right
to appeal without our saying so, and I don't want to see so much
legislation in our Constitution.
Mr. CAMP. I move that when the committee rise they recom-
mend that section twelve be not adopted. I think there is too
much legislation in it. The gentleman from Nelson when he first
took the floor stated that this section embodied the decision of the
Supreme Court of the United States as to what was already the
law. As I have had occasion once before to say, though it is so
long ago that everybody has forgotten it, this Convention can give
to the Legislature no power, and this section twelve will confer
on the Legislature nothing that they don't now possess--nothing
that every State Legislature does not possess without any provis-
ion. Attention has been called to the Potter law in Wisconsin,
and the Constituton of Wisconsin contains nothing of this kind.
The Wisconsin law in question was passed under the ordinary,
usual powers of the Legislature without a constitutional restric-
tion, and therefore section twelve is absolutely useless. It does
not confer and cannot confer any power on the Legislature which
the Legislature does not possess. I state it as a principle that is
fundamental, as the gentleman from Nelson and every member of
the committee knows, that every time we say the Legislature shall
have power to do such a thing, we are just uttering so much rub-
bish, because they have the power whether we say it or not.
Mr. BELL. Is it not very strange that so many of our bright
legal lights have been fighting nothing? He says it is nothing.
They have used all the law they could get, and still they say it is
nothing. I think there must be something in this section after
DEBATES OF THE CONVENTION.
397
all, or they would not fight it so hard. I agree with the gentle-
man from Pembina that there is no danger that any Legislature
will pass laws that will kill the railroads. I should be terribly
opposed to that. We need the railroads, but we want to keep
them in their right places, and every one here who has an interest
in the farmer will vote for section twelve.
Mr. LAUDER. As an amendment to the motion of the gen-
tleman from Stutsman I move that when the committee rise it
recommend the adoption of section twelve as amended.
The motion was carried.
The committee then rose.
On motion of Mr. ALMEN the Convention adjourned after adopt-
ing the report of the Committee of the Whole.
Mr. ALMEN. I move to adjourn.
The motion prevailed, and the Convention adjourned.
THIRTY-THIRD DAY.
BISMARCK, Monday, August 5, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. PRESIDENT. We have with us to-day two of the mem-
bers of the Senate Committee on Irrigation and Arid Lands. I
feel certain that I voice the sentiments of every delegate in this
Convention when I say that we shall be glad to dispense with the
regular order of business and listen to these distinguished gentle-
men. I have the pleasure to introduce to you Senator Stewart of
Nevada, the Chairman of the Senate Committee.
SENATOR STEWART'S SPEECH.
Senator Stewart said:
MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION: We are here on
a tour of investigation to obtain information rather than to impart information
to others. But your President having kindly invited us to come before you
398
DEBATES OF THE CONVENTION.
we deem it a privilege to do so. It is a most interesting occasion to see a new
State forming a Constitution to become a member of the Union. North Da-
kota and South Dakota, Montana and Washington, are all engaged in the same
interesting business. Four new states are soon to have a voice in the councils
of the nation. This is very important, not only to you but to the whole nation.
This is a representative government, and in order that each section may be
properly cared for and have the benefits of the government, it is necessary that
each section shall be represented. The great west that portion of the coun-
try lying west of the Mississippi river has not been adequately represented,
because we had not the population. The communities west of you have de-
veloped important interests in a most rapid manner, which have not been ade-
quately represented or protected. In fact, while we are territories we are step-
children and suffer from a great many inconveniences, but when we become
states we are in a better position to look out for ourselves. It is bad for the
government to have step-children or to have any place where they can send off
those who are inconvenient to them and where they won't hear complaints.
The government needs to hear from all sections-in order to do what is right.
This question of irrigation is a very important one; a new question to the
people of this country, for we spring from a race that lived in a rainy country-
the northern part of Europe. We came to this country where the rainfall is
ordinarily sufficient for crops, and all our teaching and all our traditions related
to raising crops with adequate rainfall. It was not so with many other people. It
was found necessary to irrigate to raise crops by the ancients. There are now
perhaps two-thirds of the people on this globe who pursue farming, who are
required to irrigate their lands. Not more than one-third have the blessings of
sufficient rainfall. In the Atlantic States, east of the dry zone-in a word, be-
tween here and the Atlantic, is the largest area in the world where there is suf-
ficient rainfall to produce crops. The countries where irrigation is pursued
have their advantages as well as their disadvantages. The land is richer, be-
cause it is not bleached so much by the rainfall. There are many places in the
Atlantic States where they have very great difficulty in getting crops sufficient
to pay for their labor. The land is poor, sandy, bleached-there is too much
rain, and it is difficult to fertilize enough to produce good crops. Besides,
even there they have their wet times and their dry times and their draw-backs.
There is another consideration in regard to irrigating land. I think consider-
ing the population that has been supported-the vast numbers of people that
have been supported where irrigation has been pursued, the vast populations
that have lived there; we may infer without having made close investigation
that irrigated land is very much more productive than the other kind. One acre
of irrigated land is probably worth two or perhaps three or four of land which
has sufficient water without irrigation. It requires industry, care and attention
--more perhaps than where you have rainfall, but you get a more certain result.
Now this country has been admitted by all to have at least 1,200,000 square
miles of land where irrigation must be pursued. All of the country west of
the 100th meridian, and a portion of that east, requires some irrigation. All that
is west requires irrigation except a little strip west of the Cascade mountains.
There is a great deal of waste land in that area that cannot be cultivated or
irrigated. But it so happens that even these waste lands furnish nutritious
grasses and are very useful for raising stock and always will be. So after all
there is not as much worthless land as you might suppose.
DEBATES OF THE CONVENTION.
399
These mountains are worth more than the eastern mountains that have
been cultivated. We do not know exactly how much of this land can be re-
claimed-how much can be brought under cultivation, but of the 1,200,000
square miles, if we can reclaim 12 or 15 per cent, it is an enormous amount of
land. That is as much good land as they have in a good many large states.
I am not certain but we could support about as much population in this re-
gion as we have in the region where they have the rainfall. If we compare
this section of country with British India, it is represented that they are very
similar. British India contains 800,000 square miles and supports a popula-
tion of 250,000,000. We have 1,200,000 square miles. This section of country
is the only one where we can make homes for the settlers that are coming
hereafter. They have got to go into the arid region. The public lands in the
rest of the country are occupied. That being the case, Congress has taken the
matter up for the purpose of ascertaining the facts with regard to it. They
appropriated at the last session of the last Congress $100.000 to be used in
commencing a system of explorations under the geological department, under
Director Powell's management. This is attached to the bureau that has to do
with the geology and topography of the country. One hundred thousand dol-
lars was appropriated, and last year a further sum of $250,000, which is now
being expended, but this will not go far in the work. It takes a great deal of
money to make these surveys. These surveys raise another question as to
public policy and constitutional power. The policy of the department has
been to survey the public lands so that settlers could move onto them and till
them. The ordinary survey of public lands will not necessarily allow settlers
to do that. The survey of mountains and desert lands will be of no service
to the homestead settler. But the arable lands must be surveyed and they
must go into the hands of settlers. This question of surveys involves different
problems. We have in the mountains a stream-a watershed of considerable
magnitude, and the stream that in the summertime nearly runs dry. It contains
enough water to irrigate, say, 100,000 acres of land, and this land depends en-
tirely upon that stream.
The survey must determine the value of these streams-locate reservoirs
to store the water-determine the lines and ditches so as to reclaim land that
can be reclaimed in any one watershed. When we have that done we will still
have a very difficult problem before us. The homestead laws will not apply
to that territory, because somebody must build waterworks. Hydraulic works
must be constructed. Here are 20,000 acres to be reclaimed-probably the
work will cost fifty or a hundred or two hundred thousand dollars, and the in-
dividual going there can do nothing. We must have laws so that there can be
a combination between the people to construct these works for the common
benefit. The next thing is to have laws to prevent monopolies, for I don't be-
lieve in one party owning the water and another the land. That would make
serfs of the people. It is a difficult problem to work out. It has some ad-
vantages, for it is more difficult to monopolize irrigated land than other land.
A man with a large amount of irrigated land will find his hands full if he is
going to make it productive. In California they found that they had to cut
the land up, and inaugerating a system of irrigation has opened a field for
emigration. There is another consideration connected with water which ap-
plies everywhere. While we have no means of increasing the rainfall-that is
400
DEBATES OF THE CONVENTION.
beyond human control so far as we have investigated, for raising of trees and
vegetation does not increase the general rainfall-what a man can do is equiva-
lent to that he can preserve the rainfall that comes. He can plant trees, culti-
vate the soil and put more water on it in various ways, by ditches from rivers, or
by storing the water, or by artesian wells. There is a great contest always go-
ing on between man and the desert-man moving out by regular stages into
the desert and the desert moving back onto man. So man has been advancing
and the desert has been receding. Many countries, on the other hand that
were once inhabited, and may be reclaimed again, are now deserts. Large
portions of Egypt that were once fertile, are now deserts. There are some
wonderful irrigating works there-constructed 3,600 years ago. Their ruins
show that they were intended to cover a large portion of the acreage. Trav-
elers in Palestine tell us that every step taken shows evidence of ancient irriga-
tion works. They built tanks on the mountains of huge masonry that hold
water to-day, In Persia and the eastern empire that once flourished, ruins
everywhere say that the desert has driven man back in those regions. Why,
it is difficult to say, but we know that before the day of telegraph and the rail-
road, nations might be destroyed by the destruction of their hydraulic works.
A foreign foe, getting into a country might destroy a whole people by the de-
struction of their irrigation system.
In South America we find the most perfect masoury built by the Spaniards,
and in our own time Japan is a country where the people have made great de-
velopment of its irrigation system. The country is mountainous, and by the
sides of the mountains they construct terraces in which they save the water
that falls. In Japan they could not possibly support 10,000,000 of people, and
perhaps not 5,000,000, and may be less that that. Now they have over 30,000,000.
China has vast irrigating works, and India depends largely upon it. Some-
times in India they have plenty of rain, but it does not come at the right time.
The amount of money spent in India by the English government on irrigating
works is simply enormous. The country was devastated by famines the rail-
roads could not prevent these famines, and an estimate was then made as to
what would be the cost of the necessary irrigation works to be constructed by
the government. The first was 150,000,000. Now they have spent between
three and four times that amount. We cannot go into any such scheme as that,
but what we propose now is to ascertain the facts and lay them before the
American people. When they find what a heritage they have got-how much
wealth there is, we have no doubt the ways and means will be discovered and
the difficulties will be overcome. As to your region here, it has been compared
particularly by Professor Davison to the region he finds in India. There they
made canals out of the rivers, and distributed the water over the land. They
have created an immense amount of wealth by the work they have done in that
country. You have immense rivers here and much land that can be irrigated by
them. You are, however, between the regions where they rely entirely on rain-
fall and entirely on irrigation, and you are likely to forget the bad years, but
your abundant rainfall in some seasons will enable you to store the water and
provide for the bad seasons. Water is very easily stored in lakes and ponds
and it is very easy for the farmer to have a lake, and if he stores his water for
the dry seasons he will have crops when he otherwise would have none.
The existence of artesian wells has been known for a long time, and the
DEBATES OF THE CONVENTION.
401
waters from them have been used for irrigation. The chief objections have
been that the supply of water has been liable to exhaustion, and before I came
to this region I was very skeptical about the extent to which this land could
be irrigated by these artesian wells. But the artesian belt is like everything
else-the quantity depends upon the supply and the extent of the supply.
They are sunk all along the James River Valley, down to the Missouri river.
They have sunk their wells through shale, limestone, and have come through
into the sand rock. They have not gone through this sand rock. They have
gone into it fifty or sixty feet. It is a coarse sand, and it is the largest water
bearing strata I have ever read of in any artesian country. It has got more
capacity and more power, and discharges with more power than any that I
ever heard of, and if there is a sufficient supply it might be used very gener-
ally for irrigating purposes. Much depends on the supply, and I have sug-
gested to Major Powell, if this artesian strata that carries the water, immense
as it is, comes from the Rocky Mountains, bringing the melting snows from
those mountains--the supply would be such as would be of incalculable bene-
fit to the people of this region. If this is the source of the supply, you can get
artesian wells anywhere between the Rocky Mountains and the James River
Valley. That matter should be investigated, and will be investigated. Once
irrigated, this country can maintain a larger population than any portion of
the east of the same size, for you have an advantage in your subsoil for saving
the water. Your soil takes less moisture than the soil of the eastern states.
There is scarcely any place we have passed over in Dakota that requires more
than four inches of moisture to make a good crop, while in many parts of the
east they require a foot. I am delighted that you are going to send represen--
tatives to Congress, and they will be able to do much to secure for you such
legislation as will enable the people to develop the country. That will make
all this land here which is now worth $10 acre, worth from $30 to $100 an
Its value will be determined by its proximity to market and its produc-
tive capacity.
acre.
There is another matter that I would like to speak to you about. They
have invented a recent process for irrigating debts and making them grow. I
think debts are large enough when they are born. I don't think they should
grow after the contract is made. Shall I speak a little about that? You know
very well—you have been told again and again-that the price of articles de-
pended on the law of supply and demand. Value is not intrinsic in gold and
silver. It is entirely outside of them, and depends on two propositions. First,
the desire of men to have the article valued, and secondly the limitation of the
quantity. If the quantity is unlimited, as air and water, you don't pay any-
thing for it. If you were on a desert where water was scarce, you would give
anything for it if you wanted it. We call that supply and demand. When
there is a failure of the wheat crop you say—wheat is going up, and so if any-
thing else is going to be scarce. If the demand increases and the supply does
not, prices will go up. If the quantity increases and the supply does not, then
it will go down, and money and everything else is governed by that same law.
If you doubled the money in the world, property would go up. If you de-
stroyed half the property money would go down, but debts would keep where
they are. So that the price of money depends on the same law of supply and
demand. Civilization has had a great deal of trouble in devising some form
26
402
DEBATES OF THE CONVENTION.
for money to take. They found only two things that they could agree on,
and they were gold and silver. They do not rust, you cannot destroy them
with fire and they remain the same. They are the only metals that can be found
in any quantity possessing these qualities. The world in all civilized countries
has adopted these two metals as money. I agree with the greenbackers in
this-that fiat money is philosopical if you can get all the world to agree that
the stamp of the government issuing it is good for the face of the bill. But
you will have to get 1,200,000,000 of people to agree to it, and you can't live
long enough to get them to do it. But they are all of one mind so far as silver
is concerned. Wherever money is used they use silver, and in Asia and South
America-in all those countries they know no other money. You cannot use gold
there they know nothing but silver. Only 250,000,000 of the people in the
world know anything about gold as money. With these people the two metals
possess the same characteristics and can be used for the same purpose and
with them it does not make any difference which is used. It is a dollar the
man wants, and it does not make any difference to him whether it is gold or
silver that he gets. That practice existed for three or four thousand years, and
when a country had plenty of money it prospered, for money is like the life-
blood of the system.
It is the interchange of commodities that makes the difference between the
civilized man and the savage. Money is necessary to this and it so happens
that when a nation has plenty of money the people are prosperous, and when
they have but little money they have a bad time. You cannot have property in
a country without a good crop of money. Take the Jews in the time of their
prosperity—when they made Palestine flourish and made it renowned. When
they made their advancement they gathered gold and silver from every country
in Asia, and the countries surrounding them. Look at Egypt-when she built
her reservoirs and hydraulic works-she had an abundance of gold and silver.
See Rome, from the time she started out on her way of glory, till all the com-
merce and treasure of the world was turned over to the Roman Empire. She
accumulated in coin vast amounts, besides gold jewelry-more than any other
nation has ever accumulated. No nation has ever got before or since the amount
that Rome accumulated. By and by she had internal strife-war, internal
quarreling—lost her money-men would bury it—and with her loss of money
came her loss of power, and she descended to the same level to which she was
centuries before. The world was once more plunged into barbarism for the
lack of money. Feudal slavery was the order of things-no independence-no
bravery-no independence of thought-no individual action-all slavery. I
tell you my friends such a thing as brave independent action without wealth
is phenomenal. It does not happen once in a century. To take a man's
wealth from him-to mortgage his property-to make that mortgage grow
larger and larger-will make him a coward. In a generation or two he is will-
ing to become a slave. Take a tramp, and you can kick him from your door,
but put $500 into his hand and you cannot do that. I have seen miners with no
money who could be kicked around without a murmur, but let them strike it
well, and they will carry a chip on their shoulders.
મ
I am opposed to irrigating debts and mortgages, because they take the inde-
pendence and manhood out of the people. Our present civilization-it was the
gold and silver from Mexico which revived commerce, started a new era of
DEBATES OF THE CONVENTION.
403
mining, and then we see reformation began-then we see men asserting their
independence-we see civilization developing, because the people have money
and are independent of their masters. This went on for 300 years without any
diminution. There was some little falling off in the mines-the countries in
South America and Mexico cut off the supplies, and from 1810 to 1850 they had
dull times. From 1840 to 1850 $8 a month was considered good wages on the
farm. All property was down-very cheap-everything was at a standstill.
The entire product of the world from 1810 to 1850 was less than $40,000,000 of
money. It did not keep pace with the growth of population-it was not
enough to supply the losses of wear. But then came the discovery of gold and
silver in California, and Australia. That was a blessing that no preceding gen-
eration since the world's history has enjoyed. That started inventions, pro-
gress, wealth. The average rise of the value of property was 35% per cent.
This is according to the statistics of England, Germany and the United States.
Everybody was employed. When you go in debt you see sell money short. If
when you go to deliver it it is worth more than when you maãe the contract you
have to give more property to pay it. When this good fortune first dawned on
the world there were some bond holders-some people long on money-who
had a right to call for their money. They said-when we get our money we
will not be able to buy as many of the necessaries of life as we could when we
let you have it. They said that we must stop making money out of silver-
make it out of gold. Germany and Austria demonetized gold, and so did
Holland and some of the other minor states. The struggle went on and France
took it into consideration and in 1869 after a commission had set on the subject
for some time, she said that it was necessary to demonetize gold. Then a great
deal of silver was produced, and Bismarck said, "we will demonetize silver."
England had done this in 1816 and had demonetized gold in India. In 1871
gold was restored in Germany and silver was demonetized. In 1873 a bill was
smuggled through Congress demonetizing silver in this country. At all events
nobody knew it. Grant did not know it for two years after he had signed the
bill. He signed it in 1873, and in 1875 he advised the establishment of two or
more mints at Chicago, Omaha or St. Louis for the purpose of coining silver
dollars. He did not know when he advised this that he had signed a bill de-
monetizing silver. The influence of the United States and Germany induced
the Latin union to do the same. Then by the end of 1875 silver was banished
from the civilized world as a coin to stand on a par with gold. In 1878 we
passed a law providing that the Secretary should not coin less than $2,000,000
of silver in a month. This has done one thing-it has furnished $300,000,000
worth of silver certificates for the people. The civilized world had contracted
enormous debts. The corporate and private debts were enormous.
What means did we have to pay our debts? We had a regular income of
$200,000,000 from the mines out of which to manufacture money. That was
our supply. If the people had been allowed to go on they would have been
able to handle their debts and pay them. I believe in the obligation of con-
tracts. That is the foundation of civil government and civil liberty, but it
would not have been easy for the people to have maintained their credit and
pay their debts without silver, in view of the facts under which they were con-
tracted. The world sold money short because they saw that there was two
hundred millions being poured out of the mines. They did not anticipate that
404
DEBATES OF THE CONVENTION.
are
there would be anything done that would impair the utilization of this crop of
money. Consequently they had gone into debt. But when these laws were
passed the supply was cut off, and it grew less and less every year. The price
of property has decreased in sixteen years, according to these same statisti-
cians, from 30 to 35 per cent., including farm property and other real estate.
You take farms in the east that are not affected by local improvements or im-
migration, and they have fallen in value 35 per cent in the
last sixteen years. They will continue to fall. Now ᎳᎾ
told we must ask England and get her consent before we can
coin silver again. The people of Europe have no say in this mat-
ter. It is the money class that rules Europe-the aristocracy that live on the
interest on bonds and fixed incomes, and they want labor cheaper so that they
can pile up more money. The present system has destroyed the farming class
in England. They appointed a commission on the depression of trade, and
that sat for two years. Volumes of testimony were taken. The farmer said
their wheat would not sell for as much as it cost to produce it. They said to
the farmer-we cannot help you. We cannot revive the corn laws, for we are a
great manufacturing country, and we must have cheap labor. But see how we
are building up India. If we let you prosper we would make the American
farmers prosper too. We must have cheap labor. Mr. Farmer, you will have
to suffer.
So England goes on the basis that she is a creditor nation. If she makes
money scare she will continue to hold her supremacy, but anything that is done
to make money cheaper would be fatal to her financial supremacy. That is suf-
ficient reason for her to hold on to the gold standard and contract the world's
money to the greatest extent in her power. How does it operate here? Since
the war the United States has been the field for the investments of this bonded
aristocracy of Europe. Only think-the interest payable on the debts
of the civilized world amounts to $5,000,000,000 per annum. Five thou-
sand millions of dollars per annum the laboring and producing classes contri-
bute to the non-producing classes. Can you comprehend this? More than all
our wars cost is contributed annually by the civilized world in interest. A
good deal of that five thousand millions has to be re-invested. Syndicates have
been formed to make investments in bonds. They come over to America, and
the Americans are always flattered by getting beside an Englishman. The
Americans tell them about the resources of the country, and then these syndi-
cates get interests in our railroads and towns and cities, and one of the condition
of the bonds will always be found to be that the face and interest shall be paid
in gold. It is understood that the e bankers will exact that the bonds shall be
paid in gold. The railroads are undoubtedly mortgaged for twice the cost of
their construction, and the officers have made a good thing out of them. But
these New York bankers who control the newspapers and everything else, they
make all these bonds payable in gold, and wherever you go-whether to the
great banker in London or New York, or even to the little banker in your
own town, you are told that gold is the only thing that is good for anything.
And so it goes; but four-fifths of the people are on our side and Congress is
with us.
But the money power has controlled every Secretary of the Treasury
for twenty years absolutely. That power forces the secretary to purchase the
minimum and not the maximum of silver each month. But the present ad-
DEBATES OF THE CONVENTION.
405
ministration was elected on a silver platform-the platform that says the re-
publican party is in favor of both gold and silver for money. When we come
to a vote we have a two-thirds majority in Congress. Mr. Cleveland asked his
party to repeal the Bland Act and adopt the gold standard exclusively, and
here is a gentleman sitting by my side who had the manhood to get his fellow
members of Congress to the number of 100 to sign a respectful letter to Mr.
Cleveland, telling him that they would not do it, and they did not do it. This
saved you from a catastrophe of having the chains of bondage riveted about
your necks. It was the democrats during the Cleveland administration who
stood up against their party, and I present to you the leader of the men who
did it.
I say to the bondholders that the American people are in favor of fulfill-
ing their contracts, but there is not gold enough to redeem the world's debts.
The world must go into bankrutcy or slavery. You cannot have more than
there is of a thing. There is not gold enough to do it, and I warn the bond-
holders to allow the full volume of gold and silver to be manufactured or there
will be universal bankruptcy. The world is too much in debt. The financial ·
system has the worst fever in the world. The extremities are cold. There is
no money with which to enter into any enterprise. No man will put money
into property. All the railroads are discharging hands, the manufacturers are
curtailing everybody is waiting to see what will turn up. Things are at a
standstill in this great country when they should be moving forward without
let or hindrance. There is no people more energetic, more intelligent or more
temperate on earth, and things should be moving forward. No, we are trem-
bling-curtailing—no money is being used there is no money in the country
—it has gone back to the centers and it seeks investment in bonds. When
money is a drug in New York, that is a sign that business is stagnant. That
is the condition now. Do not be deceived. I tell you that there must be a
change, and when they tell you that money is plenty they deceive you. Every
man knows that it is not plenty. I say we are in favor of the use of both gold
and silver. They sneer at me because I come from a mining state. I tell you
the silver miners of the United States have suffered in actual discount over
ninety millions of dollars. That is what they have suffered. It is a great in-
dustry-farming is a great industry-we destroy these industries for the pur-
pose of gratifying the bondholders in making the rich richer and the poor
poorer. I hope the people of this new state will stand shoulder to shoulder
and send no representatives to Congress that will represent New York city, or
London, or Berlin. Those cities have representatives enough there now. You
will send men who will represent North Dakota, and Montana, Washington,
Idaho, Wyoming, California, Nevada, Colorado, Nebraska, and Kansas will be
with you.
Mr. PRESIDENT. I have the pleasure of introducing to you
one of the best friends of the farmer of Dakota-one of the cham-
pions of the Inter-State Commerce law-Senator Regan.
SENATOR REGAN'S SPEECH.
Senator Regan said:
MR. PRESIDENT, GENTLEMEN OF THE CONVENTION, AND LADIES: I esteem
it a very high honor to have the pleasure of addressing the mem-
406
DEBATES OF THE CONVENTION.
•
bers of this Convention, clothed as they are with the sovereign authority
of the people of North Dakota to form a State government. In sit-
ting here and remembering that I was in the presence of the Con-
vention that was to form a government, the thought came to me as to
the difference between the formation of governments here in our land
and among the despotisms in the old world. There the king, the emperor,
is the sovereign, the source of authority, the foundation of honor. There the
people are held to be incapable of self-government. There the philosophy of
their system is that the government must be strong enough by the exertion of
its powers to preserve order, to protect property, life and liberty, and to restrain
the people as a means of securing safety to society. How different it is in this
land of ours. Here each individual citizen possesses within himself a unit of
the sovereignty of this great republic. Here the people by their own authority
make, amend, destroy or alter governments. They are amenable to no author-
ity above themselves. Here we hold that man is capable of self-government;
that he possesses virtue enough to preserve the order of society. A hundred
years and more of experiment in peace and in war has vindicated our American
principle that the people are not only sovereigns, but capable of self-govern-
ment. You in your capacity as a convention are exercising the highest sover-
eign authority a citizen can exercise. I did not anticipate observations of this
kind but they arose from the accident of this presence.
Our committee of which Colonel Stewart is chairman have been directed
by the Senate of the United States to collect information on the subject of ir-
rigation in the arid regions of the United States. The question is one of very
great moment, and is attracting year by year greater attention than heretofore
as population reaches out to the arid regions. I will not attempt to discuss
this question of irrigation in the presence of my friend Colonel Stewart, who
has given so much attention to it, and Major Powell, who has given more at-
tention to it and better understands it than any other citizen in this country.
It is enough for me to say that about four-ninths of the territory of the United
States, exclusive of Alaska, is in the arid region of the United States; in that
part of the country where irrigation is necessary to fructify the soil and in-
crease its fruits. The subject of irrigation for this purpose is older than his-
tory, especially in Egypt and Asia, and has been employed for a long time in
Italy, Spain, France, and in Mexico and South America on this hemisphere.
Recently it has been engaged in in our sister States of Colorado and Califor-
nia, and in the Territory of Utah. Our mission is to collect from among the
people as much information as we can as to the necessities of the several por-
tions of the country for irrigation, and as to their experience and judgment as
to the means of irrigation. We are therefore collecting information, and not
undertaking to give it, nor can we say what Congress will do with this infor-
mation when it receives it. It may be the basis of some action that will be of
value. Already an appropriation has been made for a survey, and land and
water have been reserved from speculators till some plan can be adopted which
will enable the federal government or the states and territories to utilize the
waters for the benefit of the people of the country. In passing through the
Dakotas we were gratified at the large flow of waters from the artesian wells
which may prove an inestimable boɔn to the people of this country, and which
presents the problem here, perhaps, in a different phase from what it is else-
DEBATES OF THE CONVENTION.
407
where, where the holding of water and the flooding of dams during the wet season
and using it during the dry season to stimulate the crops is resorted to. I don't
propose to go further into this subject now, and if I may be pardoned I will
refer to another subject-one to which Colonel Stewart has referred-a subject
that is of vital interest to our people. Some fifty years ago Stephen Girard of
Philadelphia, after a life of successful speculation and adventure accumulated
a fortune of $3,000,000 which came from the fact that he owned in San Do-
mingo, where the blacks were massacring the whites, property, and he put the
treasure of the whites on his vessels and took them to Philadelphia for safe
keeping, and the owners never lived to call for them. His fortune was the
wonder of everybody in this country. Now what a change. We see within a
few years men accumulating fortunes of ten, twenty, fifty, a hundred or two
hundred millions. I pause to make this observation in reference to our past
and our present. Up to thirty years and less ago, the wealth of this country
was more evenly divided among its people, and the enjoyment of the wealth
was more and better distributed. Since that time the tendency has been to
collect the wealth of the country in a few hands and impoverish the great mass
of the people. There naturally arises in the mind of one-how is this? If
you will bear with me I propose to state to you some of the things which have
brought this about, for being one of those who have sprung from the ranks of
labor, my sympathies and feelings have been with the lower classes, and I have
always tried to be faithful and true to those with whom I have been associated.
What has caused this great change? I will only go back twenty or twenty odd
years for the explanation. During the civil war the government was involved
in a debt amounting to nearly $3,000,000,000-$2,800,000,000. The necessities
of the government required that it should issue a great deal of paper money.
Commerce was disturbed, and Congress undertook to relieve these embarrass-
ments by causing this redundancy of circulation to be converted into interest
bearing bonds, which was no doubt a wise policy. To induce people to take
these bonds it was provided that the owners of this currency might buy the
bonds at par with the currency. The currency was worth about half as much
as coin. So a citizen with $100,000 of coin could buy $200,000 worth of notes,
and with them buy $200,000 worth of interest bearing bonds. So by this oper-
ation, and I don't question the policy of it, whatever the motive
might have been, it was to give to the bondholders one-half of the
amount of the bonds which they held and a promise of interest pay-
able semi-annually in gold on all of them. That was an enormous
gift. But as I have stated I do not stop to question whether this was
right or wrong, but to mention it as the first great step of enriching the few at
the expense of the many. Up to 1869 the lawful money of the United States
consisted of gold and silver coin and legal tender notes. All debts, public and
private, state and national, were payable in this kind of lawful money. In 1869
these bondholders who paid 50 cents on the dollar for their bonds, concluded
that these bonds should not be redeemed with the kind of money with which
they were bought, but with coin. A congress was found faithless enough to
the right of the people to say by law that thereafter the bonds should be re-
paid in coin alone, and that meant gold and silver. This act of taking away
the legal tender notes as a means of payment, it was estimated by some of the
best men of the country, by increasing the value in the hands of the bond-
·
408
DEBATES OF THE CONVENTION.
holders of their bonds, added not less than $500,000,000 of burden to the
people of the country. That is the second step in this drama.
Subsequently Congress provided for the retirement of the legal tender
notes from circulation, by directing the Secretary of the Treasury, as they were
brought into the treasury, to cancel and destroy them. When this retirement
was ordered there was $400,000,000 worth of legal tender notes. In the execu-
tion of this law fifty odd millions of these notes were taken up, cancelled and
destroyed, thus taking that much circulating medium from the people. It was
alleged that it was sought to pay these bonds in coin because they must pay
them in honest money. But to pay bonds in gold and silver which were bought
with currency worth 50 cents on the dollar was one of the instances of putting
on the livery of heaven to serve the devil with. Money that was good enough
to pay the soldiers and sailors-money that was good enough to pay all private
debts was good enough to pay these bonds that were bought for 50 cents on the
dollar. In 1872-3 Congress passed a law to which Colonel Stewart refers, de-
monetizing silver. This was taking away from the currency of the country
one-half of the money which might have been employed in national and state
and corporate debts which we owed, and private debts. It reduced the amount
of metal money one-half after providing for the retirement of the legal tender
notes. That act of oppression to America was passed in view of the further
fact that then as now, the United States produced forty per cent. at least of all
the silver mined on the earth-a bounty bestowed upon this country by God
such as has been bestowed upon no other country on earth-a
bounty which, if it had been bestowed on Great Britain or Ger-
many, the statesman who proposed to demonetize and destroy the
world's money, would have been regarded as a lunatic and a knave. And yet
our financiers and legislators to retain their respectability with British and
German creditors and bond holders and Wall Street and London and Vienna
bankers, sought to take from the American people this great
boon in the hour of their struggle to redeem their indebted-
ness. I venture to say that in this world's history no act of greater outrage
on the industrial interests of the country has ever been perpetrated-a policy
so vicious as to affect every possible interest of the country. It was a measure
to enrich the few and impoverish the many. But they said in justification of
this, England has demonetized silver, Germany has demonetized silver, and
they are old and wise nations. So they are, but that does not prove the wisdom
or necessity to sacrifice the rights of the American people. Every civilized
nation under the sun is Great Britain's debtor. When a state or a government
desires to obtain a loan, or a railroad or canal corporation desires to obtain a
loan, they will take their bonds to England, and if they are shaved down twenty
or twenty-five per cent. they give their bonds for the full amount and with
interest payable in gold only, and the people in that country who hold the reve-
nue yielding property, own bonds given by the people of every land-by
nations and corporations of every land. It was her policy to make those bonds
as valuable as could be. Then Great Britain has a long civil list, and the in-
comes of those people are fixed, and it was the policy to make them as valuable
as possible. When our government demonetized silver it did its share to
destroy one-half the metal money of the world-to add to the burdens of the
people--to double the number of carloads of wheat or bales of cotton or days
DEBATES OF THE CONVENTION.
409
are
to
work of the people of this country to pay the vast indebtedness that then ex-
isted. This is the instrumentality through which the wealth of this country
was rapidly made to drift into the hands of a few persons, and that has done so
much to load the people, the labor, and the agriculture of this land with taxa-
tion, with debt, embarassment and often with sorrow aud grief. It is enough
to show how in a large measure this state of affairs was brought about. The
occasion does not call for me to go into the operations and the means by which
we have made millionaires and paupers in this country. But this is a sample
of what has done it. I submit to this Convention whether the facts which I
have stated are not the unalterable facts of history, and whether
they
not sufficient
the
account for
condition of things
which prevail in this country? Your young State is just coming
into the Union. It has to shape its policy, and your action and the action of
the people which immediately follows it, will determine in a great measure
your capacity for forming a government which will protect the people and
obviate the dangers which lie before us all. You will find that the money
powers are strongly intrenched in power at the national capital, and that they
have held coutrol of the functions of government of this country for the twenty
years in which all this has been going on. In 1877 Congress made an effort
to relieve the pressure, and passed a law over the veto of the President arrest-
ing the cancellation of the legal tender notes, and preserved $346,000,000 to the
people as part of the currency. The same Congress passed over the veto of
the President a law which required the coinage of not less than two millions
nor more than four millions of silver dollars a month. The House of Repre-
sentatives passed a law for the free coinage of silver, but the Senate placed the
limitation on it, and preserved the tax on the coinage of silver. By the law the
government pays for the coinage of silver, and by the law the producer has to
pay a tax to the government for its coinage. Now then, I feel a very great
degree of gratification at the thought that four new western states are to be
represented in the Senate and the House of Representatives at Washington.
Add them to California, Nevada and Oregon and to the southern states, and we
will have the power to control this question. If you choose meu to represent
you, and if the four new western states choose men to represent them who will
go there under the influence of Wall Street and the bondholders, you will aid
in fastening the chains of poverty tighter on your fellow citizens. I make no
reference to any of your candidates, for I don't know who they are.
In God's
name send men who will represent North Dakota who are Dakotians. Do not
send men to represent the bondholders and money men, to further oppress the
people, and go further to change the character of this government to rob the
people of their sovereignty and make them the slaves of the money power.
You send the right men, and we will make the coinage of silver free and un-
limited like gold. Some people speak of the great weight of silver. I never
found any trouble because of this. But we propose to relieve that objection
and provide for the issuance of coin certificates, based on the gold and silver
coin which will be deposited with the government. Strike down the difference
which now exists between the two coinages. When men come to you and tell you
that you want honest money to pay honest debts, tell them to disgorge the mil-
lions of which they have robbed the American people. They first changed the
law under which these debts were created, for under them we could have paid
410
DEBATES OF THE CONVENTION.
>
them in legal tender notes. They changed that. They violated the letter of
the contract by taking away the rights of the people to pay them in coin, and
ask that they be paid in gold alone. It would seem when we contemplate the
intelligence, independence and courage of the American people, that no set of
scoundrels would have ventured such an atrocious scheme as this was to rob a
brave and strong people. We will be deluded no longer by their cry of honest
money-we will be deceived no longer by a heartless and venal press. There
are organizations among the laboring and agricultural people, where these
questions are being discussed as they have never been discussed before. They
are beginning to awake to the condition of things, and they will demand such
action as will restore to the people of the land their rights. I do not consider
whether men are republicans or democrats in relation to the great questions
which attack alike the rights of every citizen. When the President of my
choice choose to join the band of plunderers, I told him he must halt, and in-
duced a hundred democratic Representatives to tell him that he must halt. I
have been a democrat all my life. I believe in its principles as I believe in
Holy Writ, but whenever it joins the cormorants and robbers, it is no longer
the party of Jefferson, and it will be no longer the banner under whose banner
I will go. This country has suffered as no other country has suffered from
classes. The legislation of this country has been controlled for more than
twenty years by the money classes. It is enough for me to say that legislation
in the interests of the classes as against the masses has covered many of your
farms with mortgages-has loaded many of your people with debts that they
cannot discharge, and has helped to pile up the collossal fortunes which press
on the Amerisan people. Let us demand the repeal of all adverse legislation.
Let us demand laws which shall protect all men alike and shall give nɔ man an
advantage-an undue advantage over his fellow men. I will go with any man
in any party to accomplish a purpose so beneficient and so holy as this.
Mr. PRESIDENT. I have a great deal of pleasure in intro-
ducing to you Major Powell, the Director of the Geological Survey.
MAJOR POWELL'S ADDRESS.
Major Powell said:
MR. PRESIDENT, AND GENTLEMEN OF THE CONVENTION.-I am not accus-
tomed to speak on occasions like this. In the first place I never made a politi-
cal speech in my life, and it seems to me I am almost out of place here. When
I was a boy they used to bring to the table the dinner, and the finest things
came at the last part of the feast, but somehow in the high falutin dinners they
give now they fill the people with wines and viands of many kinds, and then
end with strong cheese and hard crackers. I think that is what your PRESIDENT
is doing to-day. He wants to top off with something very plain. I know noth-
ing about the silver question, but I have studied somewhat the subject of irri-
gation. I was a farmer boy and have been engaged in farming, and have spent
a good deal of time studying many of the problems which interest your people.
I remember in my childhood my father moving into Illinois. Then I remember
when Wisconsin and Minnesota were making states, and now you are making
two states of Dakota. All these years I have watched the march of progress
across the continent, and have seen all this western half of America grow up as
DEBATES OF THE CONVENTION.
411
it were from a wilderness. Of the questions that practically interest the people
who are engaged in farming, I have made some study, and in my remarks I will
confine myself wholly to some practical questions relating to irrigation, and
then I will show what the Constitutional Convention should have to say about
them. The State of North Dakota has a curious position geographically in
relation to agriculture. The eastern portion of the State has sufficient rainfall
for agricultural purposes; the western part has insufficient rainfall, and the
western portion is, practically, wholly dependent on irrigation. In the western
portion, all dependence on rains will ultimately bring disaster to the people.
They are willing yet, a good many of them to admit it, but the study of the
physicial conditions which prevail in this county and the application of
the knowledge which has been given to mankind through the study of
these same problems in Europe and Asia and Africa, all prove this one
fact that in the western portion of this State they will have to
forever depend on artificial irrigation for all agriculture. In the eastern por-
tion they may depend upon the storms that come from the heavens, and there
is a middle belt between the two regions which is of very great interest. They
will soon learn in the western portion to depend upon irrigation and provide
themselves with agencies for the artificial fructifying of the soil with water.
In the eastern part they will depend on the rainfall, and in the middle portion
they will have a series of years when they will have abundant crops; then for
two or three years they will have less rainfall, and there will be failure of crops
and disaster will come on thousands of people, who will become discouraged
and will leave. Up and down the temperature of agriculture will rise and fall
with the seasons in this manner, and the only practical way to do is to look the
thing squarely in the face and remember that in middle Dakota agriculture
will always be liable to meet with failure unless you provide against it. That
is the history of all those who live on the border between the humid and the
arid lands. Years will come of abundance, and years will come of disaster,
and between the two the people will be prosperous and unprosperous, and the
thing to do is to look the question square in the face and provide for this and
for all years. You hug to yourselves the delusion that the climate is chang-
ing. This question is four thousand years old. Nothing that man can do will
change the climate. A long succession of years will give you the same amount
of rainfall that any other succession of the same length will give you. The
settlement of the country, the population of the country, the planting of the
country, the cultivation of trees, the building of railroads-all these matters
will have no influence upon your climate. You may as well not hope for any
improvement in this direction. There is almost rainfall enough for your pur-
pose. But one year with another you need a little more than you get. It is
flowing past you in the rivers. Storms come and spread over the land, and the
water runs off into the rivers and is carried into the waters of the Gulf
of Mexico. There are waters rolling by you which are quite ample
to redeem your land, and you must save these waters. I say it from
the standpoint of the history of all such lands. Civilization was born
in arid lands. Taking the world at large most of the agriculture of the world
has depended on irrigation for more than 4,000 years. The largest populations
have depended on irrigation, so it is an old problem, and it has been solved
time and again, so that it may be said that there is nothing to learn. All you
412
DEBATES OF THE CONVENTION.
have to so do is to learn the lessons already taught by history, and that it is
that in these lands you have to depend on placing the water on the soil, and
when you have once learned to do that you are in no unfavorable condition,
In the humid region the storms come, and the fields receive the gentle shower,
but frequently just before the harvest comes, a great storm devastates it all.
In this arid region if you depend on artificial irrigation, you are independent
of storms. The waters that are brought on the land by irrigation, are sources
of fertilization beyond all other sources. There are fields in the eastern world
that have been cultivated for 4,000 years-where water was brought on the
land to irrigate, and all other fertilization is unnecessary. Now in all lands
of high culture, where the fields are irrigated, they are ceasing to use any
other fertilizer. In France where they are irrigating their lands, they have
commenced a system in every county and township-the same in Spain and
Germany. They find that they must pour the waters of their streams on their
lands.
As members of this Convention, this is what I want to say to you. Not
being a public man, it may be considered a little presumptious for me to say it
-in Dakota you are to depend hereafter in a great measure on the running
streams—in small part on your artesian wells, and in part on the storage of
the storm waters. The chief source will be the running streams. These waters
are to be preserved and stored during the seasons of non-irrigation. There
are, say, two months of the year when you need to irregate, and ten months
when you should store the water. All other wealth falls into insignificance
compared with that which is to come from these lands from the pouring on
them of the running streams of this country. Don't let these streams get out
of the possession of the people. If you fail in making a Constitution in any other
respect, fail not in this one. Take lessons from California and Colorado. Fix
it in your Constitution that no corporation-no body of men-no capital can
get possession and right to your waters. Hold the waters in the hands of the
people. Think of a condition of affairs in which your agriculture—which you
will have to depend on largely depending on irrigation, is at the mercy of
twenty companies, who own all the water. They would laugh at ownership of
land. What is ownership of land when the value is in the water? You should
provide in the Constitution which you are making, that the water which falls
from the heavens and rolls to the sea, down your great rivers-that water shall
be under the control of the people, subject always to the will of the people;~
that property in water should be impossible for individuals to possess. You
should forbid the right to acquire property in water. The property should be
in the land, and the right to the water should inhere in the land, and no com-
pany or individual should have property in the running streams. Such a pro-
vision will prevent your great agricultural sources falling into the hands of
the few.
Mr. PRESIDENT. Whoever has any information in regard
to irrigation which they can present to this committee,immediately
after the session, will please do so.
Mr. JOHNSON. We are very much interested in this subject.
We have found since we came out on these plains that the water
supply is not sufficient to make sure a good crop every time. It
DEBATES OF THE CONVENTION.
413
has apparently diminished during the last few years, and this year
we are brought face to face with this great problem of a lack of
moisture. But it does seem that there is an overruling Providence
that tempers the wind to the shron lamb, and the way is now open
whereby the fountains beneath us are opened to us. I believe
that the greatest problem that will present itself to the members.
of Congress sent from this new state will be the question of the
water supply. But this subject of irrigation is a much wider one
than I supposed when we read that this committee would come
here.
While the gentleman has been speaking my mind reverted back
twenty-six years to the time when many of you here who are
wearing Grand Aamy badges were studying irrigation in the
ditches, in the fever ditches on the 4th of July before the trenches.
at Vicksburg; my mind has reverted to the time when many of
you were studying irrigation on the march that Sheridan made to
the sea in wading brooks and traveling over pontoon bridges; my
mind has reverted to the 4th of July twenty-six years ago when
some were studying irrigation on the battle field of Gettysburg,
irrigating that soil with the blood of yourselves and your com-
rades, when at least 12,000 of our northern soldiers irrigated the
soil at Andersonville and Libby prisons with their tears and their
blood, and I could not but think of the wonderful irrigation that
we were studying at that time-how it cost money to furnish
hardtack, and powder and bullets, and bayonets, and how we could
raise money to save the country in those days-and I was won-
dering where the honorable gentleman from Texas was studying
irrigation in those days. If I have correctly read history, when
Jefferson Davis was elected President of the Southern Confed-
eracy, he called the gentleman with him, as one of his trusted
leaders that could be depended upon, into his cabinet. If I have
read history correctly the gentleman was believed by the so-called
President to be deep-rooted in the eternal principles of democ-
racy, and the Senator from Texas was called into that cabinet and
served as Postmaster General. Why did not the gentleman tell
us something of that debt that was piled up at that time-as to
how and why-
Mr. PURCELL. Does the gentleman mean to cast any reflec-
tion on the Senator from Texas by his remarks?
Mr. JOHNSON. No, sir.
Mr. MATHEWS. I move to adjourn.
The motion prevailed and the Convention adjourned.
414
DEBATES OF THE CONVENTION.
EVENING SESSION.
PARALLEL LINES.
Section eleven of File No. 134 was read as follows:
SEC. 11. No railroad corporation shall consolidate its stock, property or
franchises with any other railroad corporation owning a parallel or competing
line; and in no case shall any consolidation take place except upon public
notice given at least sixty days to all stockholders, in such manner as may
be provided by law. Any attempt to evade the provisions of this section, by
any railroad corporation, by lease or otherwise, shall work a forfeiture of its
charter.
Mr. STEVENS. Mr. MILLER was looking up the matter of
this section, and I see that he is not in his chair.
Mr. JOHNSON. This is a very important section, and I de-
sire to say that it is no novelty as a constitutional provision. I
could read you similar provisions in the constitutions of Ne-
braska, Missouri, Arkansas, Colorado, Illinois, West Virginia,
Pennsylvania, Texas and the South Dakota Constitution. I think
that is all the constitutions that has been made since 1870 except
one or two states in the south, where they have no railroads to
speak of.
Mr. PURCELL. Does the gentleman intend to confer upon
the Legislature of this State the right to forfeit the charter of the
Northern Pacific, which railroad is chartered by Congress?
Mr. JOHNSON. This Constitution is only good within the
boundaries of this State. It applies to the corporations so far as
they are chartered here, and so far as it is possible to reach them.
Mr. PURCELL. Is it not a fact that the Interstate Commerce
law covers this particular section?
Mr. JOHNSON. It is my understanding that it covers the
same principle as to railroads that run through several states, but
we have no guarantee that it will not be repealed next winter,
and we think it is well for us to go on record as approving that
principle.
Mr. ROBERTSON. I move that section eleven be stricken
out.
Mr. PURCELL. I second.the motion.
The motion was lost by a vote of 16 to 29.
""
Mr. MOER. I move to amend by inserting the words “organized
within this State" in the first line after the word "corporation.'
We would have no power whatever over a foreign corporation,
DEBATES OF THE CONVENTION.
415
and no act that we might pass as a State or in our Constitution,
would be of any account so far as these foreign corporations are
concerned.
The motion was seconded.
Mr. JOHNSON. I object to that, for it will amount to the same
thing as striking out the entire section. It would be an easy mat-
ter for any new company to organize outside the State to evade
this section.
Mr. MOER. I would simply say the section would be void any-
way. We cannot forfeit the charter granted by the Congress of
the United States, or by the State of Minnesota. It does not lie
within our power to forfeit it, and we should limit this section to
something we can control. We can control a corporation organized
within this State, but not a foreign corporation. What is the use
of putting this in the Constitution? That is what I would in-
quire?
Mr. JOHNSON. That is all very well as to the forfeiture, but
it is the principle of non-consolidation that we want in here.
Mr. PURCELL. As one of the members of the committee
who signed the minority report, and which does not cover section
eleven, I desire to say that as Mr. MILLER stated on Saturday night,
the reason why the minority did not report a section to take the
place of this, is because in their judgment it would seriously in-
terfere with railroad building in this Territory. He gave us an
illustration of the Fargo Southern road, and at least the delegates
from Richland county know that his statement was correct so far
as that road was concerned. That company was organized in
Fargo, and in Richland and othes counties, and it was purely a
local company. In the City of Wahpeton we subscribed $15,000
towards a fund with which we purchased lands for right of way
five miles north and five miles south of that city. The railroad
was built to Ortonville, and the company attempted to operate the
line. They operated it for a short time, but found that it was im-
possible for them to go on with it, for they did not have a trunk
line from Ortonville to any other point east, or from Fargo which
would make it pay to operate. It was therefore sold to the Mil-
waukee road. The road was organized for the purpose of open-
ing up the country on the west side of the Red River from Fargo
to Ortonville. The Manitoba road had come as far as Brecken-
ridge and built its line north to Barnesville, Crookston, and so
forth, but on the west side there was no outlet for the grain grown
416
DEBATES OF THE CONVENTION.
between Fargo and Wahpeton except by the Manitoba, and every
farmer was compelled to haul his grain from six to twelve and fif-
teen miles to the station. We saw the necessity. The people got
together and themselves built this road. They subsequently sold
it to the Milwaukee road, but if they had not built it the Manito-
ba would never have come to the farmers. If this section is
adopted there are a good many other sections of country that are
similarly situated, and there are other men who would be ready to
band themselves together and build roads, if they are not hamp-
ered and handicapped by such a provision as this. For this
reason I am opposed to the section.
Mr. LAUDER. I am in favor of section eleven for the very
reasons which cause my colleague from Richland county to be
against it. I think the case he has cited is the strongest argu-
ment he could have made in favor of the incorporation of section
eleven in this constitution. It is a fact, as has been stated, that
the people of Richland county and other counties through which
the Fargo Southern road was to run, contributed very largely
towards its construction. They gave the right of way, and a bonus
I think, too, in a certain amount. Now why did they do that?
They did it so that they might have through their county a com-
peting road. They did not contribute to the building of that road
so that it might in the near future, as soon as it was built and
operated, be absorbed in a system with which they wished to have
it compete. If this section is not incorporated in this Constitu-
tion, and if some other road can absorb this one which the citizens
of town and city and country have contributed largely to build,
then there would be no security at all, and the very purpose for
which these people put up their money would be defeated. For
that reason I am in favor of the section. Perhaps in a very few
cases it may work an injury. There is no law in its application
that does not at some time and under some circumstances work
injury, or operate, as it would appear, against abstract justice.
But it seems to me that this is the only protection that people
have who encourage railroad building into their cities and coun-
ties by contributing their money. They want to be assured that
the road will continue to be a competitor of the roads that already
exist.
The amendment of Mr. MOER was lost.
Mr. SPALDING. It seems to me that to make it consistent
the words "organised within this state" should be placed after the
word "corporation" in the first line.
?
DEBATES OF THE CONVENTION.
417
*
Mr. JOHNSON. I will accept that amendment if you add
after the word "state" the words "or doing business."
Mr. FAY. It seems to me that the words that the gentleman
from Nelson would add are meaningless. If they are not doing
business within the state, then what have we to do with them? If
they are not operated here, then what figure would it cut?
Mr. SPALDING. The only object I had was to make it appear
consistent, so that we might not appear to be attempting to de-
clare some charter forfeited that was granted by some other state.
When the amendment of the gentleman from Nelson is inserted
it leaves the article practically as it is now, and there would be no
object in amending it.
Mr. JOHNSON. One has to think pretty rapidly here, and
just at the moment I thought it was necessary to make the amend-
ment to the amendment.
Mr. SCOTT. If this amendment goes in, it is practically the
same thing as if the original amendment had carried. I don't see
how this will better it. If we cannot forfeit the charter of a for-
eign corporation, the section as it stands now has full force and
effect. I don't think it applies specifically to the forfeiture of
charters. It is to prevent any competing lines from consolidating
with each other. It seems to me it is a good section, and although
there may be very few railroad companies organized under our
laws-although in all likelihood a majority of them will be for-
eign corporations, I don't believe it will be denied by the gentle-
men in the Convention that we have got power to control, to a
certain extent, a railroad company within our limits, whether it is
chartered here or elsewhere. It must obey our laws and if it will
not do that we can prevent its doing business, just the same as if
it had been organized and chartered in this State. I don't believe
the amendment ought to prevail.
Mr. STEVENS. I will go a step further and say we can forfeit
the charter of a foreign corporation to the extent of the right it
has acquired in the State of North Dakota. A charter granted by
the State of Minnesota would have no effect in the State of North
Dakota, except such as it may acquire under the laws of North
Dakota. While we could not affect the charter so far as it applied
to Minnesota or to any other state, so far as it applies to North
Dakota we could affect it and forfeit it, be it a foreign corporation
or a corporation organized within this State. If we cannot do
that, then what is the object of that provision in our present law
27
418
DEBATES OF THE CONVENTION.
which provides that before a foreign corporation can transact any
business here they must file with the Secretary the articles of in-
corporation of other state or states? They must comply with the
law of the Territory of Dakota.
Mr. SPALDING. In answer to the gentleman from Ransom I
would say that I did not propose this amendment, thinking for
one moment that it would in any way abridge or enlarge the scope
of the section, but so that it might be made plain just what we
mean; and I had in my mind to suggest that there should be a
further amendment to this section providing some penalty for cor-
porations organizing under foreign statutes but operating in
this State, but that it should be worded differently from that sec-
tion which applies to local corporations. I have not been here
while this has been under discussion and did not know that it
would come up to-night. I think there should be such an amend-
ment as would make it apply, so far as it would be applicable, to
foreign corporations.
The amendment of Mr. SPALDING was lost.
The original section-number eleven of the majority report—was
then recommended for adoption.
Section fifteen was then read as follows:
SEC. 15. The term "corporations" as used in this article, shall be construed
to include all joint stock companies or associations having any of the powers
or privileges of corporations not possessed by individuals or partnerships.
Mr. JOHNSON. I think that section two of the minority
report is a better section than this, and I move that it be substi-
tuted.
The motion was seconded and carried.
Section two in question reads as follows:
SEC. 2. The term "corporation" as used in this article, shall not be under-
stood as embracing municipalities or political divisions of the State unless
otherwise expressly stated, but it shall be held and construed to include all
associations and joint stock companies having any of the powers or privileges
of corporations not possessed by individuals or partnerships.
Sections sixteen and seventeen were adopted.
THE ARBITRATION QUESTION.
Mr. PARSONS of Morton. I move that section eighteen of
this File be made to read as follows:
"Whenever a difference shall arise between any corporation other than
municipal and its employes or an industrial society incorporated under the laws
of this State, any of whose members are employes of such corporation, if the
DEBATES OF THE CONVENTION.
419
disagreemeut cannot be adjusted by conference it shall be submitted to arbitra-
tion under such rules as shall be prescribed by law.
The only objection I have had raised to this amendment, as I
originally offered it, was that it would be possible for some person
who had been discharged from a corporation to make trouble and
difficulty under this clause. But if you will notice the wording
of the article, it only includes employes of the corporation.
Therefore, when anyone is discharged, he ceases to be an employe
and this clause does not apply to him. It only affects those diffi-
culties in which there is a large body of men and difficulties arise.
while they are in the employ of the corporation or individual.
Ninety-nine out of 100 of the strikes that have arisen in this
country have arisen from the most trivial reasons and have grad-
ually spread. This measure has been urged in different states for
twelve or fifteen years, and it is the only solution that has ever
been offered to the problem. I have spoken before of the advo-
cacy by one of the most prominent attorneys in New York in the
New York Tribune, of this system, as the only solution of the
problem. I don't say that this is a panacea for all the ills, but I
ask it as a measure of justice and in the interests of humanity,
and I believe it will have a pacific effect on those who would
otherwise be belligerent and desirous of using coercive measures.
It will tend to have these matters submitted to arbitration, and in
nine cases out of ten trouble would be settled in this way, and dif-
ficulties would be amicably adjusted.
Mr. PURCELL. Is it intended that this will force a corpora-
tion to arbitrate with its employes?
Mr. PARSONS. If that is a matter of law the gentleman
should be better posted than I am. He can see readily that there
will be absolutely nothing binding in it if the parties did not wish
to be bound, and the corporation, if it choose, could discharge
every one of its employes. Then this clause would cease to ope-
rate, and I think he knows as well as any of us that it is only in-
tended to be a pacific measure. But public opinion and public
sentiment generally would be on that side that was willing to sub-
mit the question at issue to arbitration.
Mr. PURCELL. This matter was before the committee, and
was discussed somewhat. It seems to me if it passes and the
Legislature should see fit to follow up the idea incorporated here,
that it might require, or it may require, many differences to
be arbitrated upon. Under section thirty-four of the Judicial
420
DEBATES OF THE CONVENTION.
Bill, they have established tribunals of arbitration, where people
may go and arbitrate their differences. But if it is intended to
force a corporation to go into an arbitration court, in my judg-
ment it is wrong. As the gentleman stated, many differences
exist between corporations and their men at times. Arbitration
is generally understood to be a voluntary submission of differ-
ences to a third party, but if it is intended by this clause to force
them to submit their cases to arbitration it is not good law. Nor
is it a good provision to have in this Constitution. Take an im-
aginary case--here is a farmer with ten or fifteen thousand acres
of land under cultivation. During the harvest season he may
employ men wherever he can get them. If the superintendent sees
fit to discharge a man that may create a difficulty with the others,
that should not be cause enough for them to drag him into an arbi-
tration court. Or if he required a man to follow a plow instead of
driving a binder, that might create a difference. If this provision
prevails, it might be within the power of the men who are em-
ployed by that corporation, to compel the corporation to go before
a tribunal of arbitrators and make the corportion justify the fact
that the superintendent ordered him from the binder to the plow.
There is none who is more anxious to give to the workmen all the
rights they should have, than I am, but there are some rights that
we are bound to respect and must not allow to be trampled
underfoot. It is easy enough for one to see wherein an abuse of
this power could be worked. I don't believe it to be constitu-
tional or right to force any man to go before a board of arbitra-
tors and justify his acts--to justify what he has done with refer-
ence to his workmen, so long as these workmen receive what is
their due. If any engineer has disobeyed an order, or if he had
an order given him which he did not see fit to obey, and instead
of performing his work compels his employers to go before a
board of arbitration, I say that it is not right. This matter may
seem simple and plain, and it may not appear to be much on its
surface, but if we stop and consider we will see that every corpor-
ation can be put to a great disadvantage by this section. There-
fore I am opposed to it.
Mr. STEVENS. If the section was intended to cover the
thing the gentleman intimates it was, it would be a failure on its
face. As it stands it does not cover any such provisions as he
mentions. It plainly says "employes," and as soon as an employer
discharges an employe there is no remedy to be obtained under
DEBATES OF THE CONVENTION.
421
this section. Besides that, it does not provide for boards of arbi-
tration, but it provides that the law may establish boards to act
between employer and employed. Not between employers and
one who has been an employe. I don't see where in our present
condition it could have any material effect, but following the line
of our National Congress-following the line of the governments
of the civilized world, this provision should be incorporated in
our Constitution. We have had at least a dozen international
congresses met with the sole view of submitting international
questions to arbitration. The tendencies of the governments of
the day are towards arbitration, and if arbitration between nations
is good, if arbitration between states is good, why should not
arbitration between employers and their employes be good too?
It is in the same line, and therefore I am in favor of incorporat-
ing it in this Constitution. I don't see how it can possibly do any
harm. It simply authorizes the Legislature to pass such a law.
I am not certain that they would not have a right to pass it any-
how, but it is simply explanatory of their power. It can do no
harm, and it might be that it would do a great deal of good. As
the tendency of the time among all nations is towards arbitration,
I am in favor of anything looking in that direction.
Mr. BARTLETF of Griggs. I hope this amendment will not
prevail. If the tendencies of the time are towards arbitration,
then we may have a general law compelling or inviting all men or
all parties into arbitration, I am in favor of it. But why we
should single out corporations and similar organizations I don't
see. It is very evident that this section is designed to compel a
railroad or any other corporation to arbitrate differences that it
might have between the Knights of Labor or any other organiza-
tion and itself. It is said that it will only apply to employes.
Admit that an employe is discharged. Then the organization of
which he is a member takes it up and attempts to reinstate him,
or something or that sort, it becomes a question between an in-
dustrial society and a corporation, and it must be submitted to
arbitration. It is not fair and it is not just. I believe that rail-
roads have the same rights as individuals, and we should not deal
differently with them from what we would with individuals.
Mr. SCOTT, The gentleman from Morton says that under this
provision a corporation might discharge all of its employes and
they would have no remedy under the section. That being the
case I fail to see what advantage there is in having the provision.
422
DEBATES OF THE CONVENTION.
If a dispute arises between the employes of a corporation and the
corporation, and the corporation desires to evade the submission
of the matter to a board of arbitrators, all they would have to do
would be to discharge their employes at once. If that is the
meaning, then this section is so much lumber. It is not neces-
sary, and is mere verbiage and means nothing, but from its word-
ing I would not so interpret it. I question if there are many other
members of this Convention who would interpret it this way.
Taking the ordinary interpretation of these words, if there was a
dispute arising over a discharged employe, if the Legislature
should pass a law, I think it would be a very serious question but
that the ex-employe could compel the submission of the matter to
a board of arbitrators. I don't think that is fair. I concur with
the remarks of the gentleman from Richland. If it means what
the gentleman from Morton says it does, it had better be out, for
it will do no good.
Mr. MOER. It seems to me that this would be a wise provi-
sion to put in the Constitution. I think it would tend to bring
about an amicable adjustment of differences between corporations
and their employes, and I hope the amendment will prevail.
Mr. BARTLETT of Dickey. I believe that if a man wants to
discharge a person who is working for him, he should have a right
to do it, and if the employer won't pay his discharged hand what
he owes him, let the employe sue. I believe that any railroad
company has a right to discharge any of its employes, and any
man who works for a railroad company should be able to quit
when he wants to and get his money.
Mr. LAUDER. I agree with the gentleman from Dickey. Rail-
road corporations, or any other corporations, or any private indi-
viduals have a right to determine for themselves who they will
have in their employ and who they will not. But in the applica-
tion of this principle we have seen a great deal of difference arise.
We have seen a great deal of loss to the corporations and the
laboring men, and if any provision can be incorporated here or
can be devised by the Legislature that will assist corporations and
individuals on the one side, and the laboring men on the other, in
coming to an agreement and harmonizing their differences and
avoiding strikes, I think it should be encouraged. I think that is
the purpose of this section, and the only purpose, and therefore
that it should prevail.
Mr. PARSONS of Morton. It is a surprise to me to hear
DEBATES OF THE CONVENTION.
423
some of the objections that are urged against this measure by the
gentlemen on the other side of the house, especially since the
principal portion of the original file has been stricken out, and
the matter left almost entirely to the Legislature. We say a man
has a perfect right to hire another and discharge him when he
chooses, and that is what I say, but what that has to do with the
question before the house I can't see. It is a known fact that
since corporations have become common, we have had differences
all over the United States-we have had loss of property-loss of
life and suffering untold. As a gentleman from Chicago told me
after the great strike there, he said there were row after row of
houses left desolate people ruined all through strikes. They
had struck—had mortgages on their homes and had to get out and
leave them. Not long ago we heard of the eviction of 500 fami-
lies in Illinois; not long ago in Minneapolis we witnessed the
spectacle of the citizens traveling on foot, with a corporation on
the one side, the employes on the other and the people in between.
I ask you if corporations or their employes have the right to step
in, and interfere with, and stop the public business? This fall
the farmer may have his crops ready to ship-they are liable to
become damaged by delay-and a strike occurs. Do you say that
the company and their men have a right together to stop the pub-
lic business-to prevent the farmer from shipping his product to
market? I introduce this section simply in the interest of hu-
manity and for the public good. I stand here and speak for those
who earn their bread by the sweat of their brow. I admit that
an employer has a right to discharge his employes when he wants
to, but it is a fact that the present method of settling industrial
differences has led to strikes, and starvation and poverty. This
section may be mere lumber. It is easy to call any section that
you don't like, lumber or surplusage. But it is a fact that this
measure is offered in the interest of humanity. This is offered as
a concilatory measure. This measure as it originally stood was
adopted as the report of the committee, and in my absence it was
reconsidered on the motion of a party, and stricken out of the
report, so that you may know how the committee stood. If I had
been present at that committee meeting it would not have been
done. In God's name and in the name of humanity I ask for this
measure. It is not for me that I ask it. I have nothing to gain
by it, and perhaps everything to lose, but I have that much in-
terest in my fellow men-in those whom I see in grimy and soiled
424
DEBATES OF THE CONVENTION.
2
clothes, toiling and laboring for their daily bread, to ask this of
you, and if I thought it would do any good, I would willingly go
down on my knees and ask that you vote for this measure. I
claim this government has a right to control any creature it cre-
ates. It is a pacific measure, and I beg you to stand by this
measure as you would be men.
Mr. PURCELL. I would like to ask the gentleman from Mor-
ton if it is not a fact that the bloodshed he referred to in Minne-
apolis was not caused by the organized labor trying to drive off
the unorganized labor? That is a fact in nearly every instance
where there are strikes and difficulties between employes and em-
ployers. It is not the corporations that make or cause the blood-
shed. It is not the corporations that are always in fault. The
rule is that whenever there is trouble, and the employers excercise
their right to employ others men in the places of those who have
left their employ—then the organized labor steps up and tells the
unorganized that it must not go to work. When the gentleman
speaks in pathetic tones let us remember that in nine cases out of
ten the trouble we see is not between employers and employes, but
between organized and unorganized labor.
The amendment of Mr. PARSONS was lost by a vote of 18 to 22.
THE PASS QUESTION.
Mr. JOHNSON. I desire to offer an additional section which
will read as follows:
"If any railroad corporation issue passes to any member of the Legisla-
ture, it shall in like manner issue passes to all members of the same Legis-
lature."
Seconded by Mr. BEAN.
Mr. JOHNSON. This question of passes is a very difficult and
a very interesting question. There has been a great deal of dis-
cussion upon it, and I hardly know what is the best method of
dealing with it. It was my deliberate judgment when I came
here as set forth in File No. 1, that all public servants, when en-
gaged in public business, should travel at public expense. I
think the state officers and the members of the Legislature, and
judges, when they travel on public business, should not sponge
on the railroads. But that principle did not find favor in the com-
mittee. Then the gentleman from Traill offered the oath of the
Sioux Falls Constitution, but that was not acceptable to this Con-
vention, and I am not sure that I approve of that myself. There
DEBATES OF THE CONVENTION.
425
is a correct and an incorrect use of passes. I am not here to
condemn the use of passes. I am not sure but that it is correct.
I notice by the dispatches in the paper this morning from Mon-
tana, that there they have forbidden the use of passes. I have
come to this conclusion since the committee had its last meeting
-to get the sense of this convention, and it is a question easy to
understand. You can see the fairness of the section I have in-
troduced. All members of the Legislature should be treated
alike; then I think there would be no injustice in issuing passes.
If we all had passes we would be on the same footing, and would
not be afraid of the companies, and would not be bound by them.
I am not complaining of unfair treatment, for I have got all I de-
serve out of the corporations. You take my case-I have a good
way to come, and while most all the rest of the delegates in the
neighborhood got passes I did not get any, and you can see how
it is unjust. I would give $100 for one of those passes. It would
be worth that to me, and thus they got $100 more than I did.
None would say that that was just, and I can hardly avoid the
conclusion that these corporations single out certain men for pun-
ishment, and I might draw the other conclusion that they single
out certain others for reward. I have some passes myself, but I
speak of the Manitoba road-a great road that controls every-
thing in our part of the country. The votes on these nineteen
sections show that these passes in the pockets of members has not
influenced their conduct one hair's breath one way or the other.
They stood up for what they believed to be right. But I hold that
members of the Legislature who come to sit here year after year
should not be treated as we have been treated this year. The
members from Nelson and Grand Forks and Cavalier counties
should all be treated alike. We should take it out of the power
of these corporations to single out a man for punishment as they
have singled me out. That is nothing more than fair or just.
Mr. BARTLETT of Dickey. I thought of making an amend-
ment to the effect that we each should also have a chromo. I am
opposed to the amendment, and I hope and believe that the dele-
gates will vote it down. I think the railroad companies have a
right to do just as they please about these things.
Mr. PURCELL. I move that the resolution of the gentleman
from Nelson be referred to the Committee on Militia.
The motion was carried.
426
DEBATES OF THE CONVENTION.
STATE DEFICITS.
File No. 140 was then taken up.
Section one was read as follows:
SECTION 1. The State may, to meet causual deficits or failure in the
revenue, or in case of extraordinary emergencies, contract debts, but such debts
shall never in the aggregate exceed the sum of $200,000, exclusive of what may
be the debt of North Dakota at the time of the adoption of this Constitution.
Every such debt shall be authorized by law for certain purposes to be defi-
nitely mentioned therein, and every such law shall provide for levying an annual
tax sufficient to pay the interest simi-annually, and the principal within thirty
years from the passage of such law, and shall especially appropriate the pro-
ceeds of such tax to the payment of said principal and interest, and such ap-
propriation shall not be repealed nor the tax discontinued until such debt both
principal and interest, shall have been fully paid. No debt in excess of the
limit named shall be incurred except for the purpose of repelling invasion, sup-
pressing insurrection, defending the State in time of war, or to provide for
public defense in case of threatened hostilities.
Mr. ROLFE. I move that in the third line the word "one" be
substituted for the word "two."
The motion was seconded by Mr. BARTLETT of Griggs.
Mr. WALLACE. As far as I am concerned, as a member of
the committee I am willing that it should be $100,000. Some of
the members thought it should be two, and it was put so. I have
no feeling in this matter whatever.
Mr. STEVENS. I hope this amendment will not prevail. I
don't believe it is a good idea to bind the State down to $100,000.
I don't believe it should be put in this Constitution. One hun-
dred thousand dollars is not a reasonable sum for the great State
of North Dakota. You cannot tell what will happen-what pub-
lic improvements may be necessary to our welfare, and $100,000
will be very little towards making any great public improvement.
We have to-day been talked to about a subject which might be-
come very important to the State. If, after it had been demon-
strated that it was a practical benefit, we should desire to adopt.
it, and it was the desire of this State that some measure should
be taken to reclaim the arid lands of our western slope, and if our
Constitution was so made that we could not possibly make the im-
provements, it might be a lasting benefit wasted. Two hundred
thousand dollars is indeed low enough, if not too low. I don't
think there is any state in the Union with a provision so low, and
as we are here, just on the boundary between the arid tract and
the tract which gets enough natural rain, I hope this Convention
DEBATES OF THE CONVENTION.
427
will pause and consider well before they say North Dakota may
not at any time go into debt to exceed the amount of a thousand
men's private fortunes in this Union.
Mr. HARRIS. I trust this amendment will not prevail. One
hundred thousand dollars of indebtedness or deficiency in the rev-
enue is but a very small amount. We expect this State will grow,
and the Treasurer of the Territory tells me that on the first of
November there will be $140,000 of deficiency this year, with the
probability that it will be $160,000. There are a great many
things that arise to cause a deficiency in revenue. There will be
a large deficiency in the revenue next year. Crops are poor-
they are short all over the State; the taxes will not be paid, and
the territory will have to wait till they are paid before it can get
them. As I said, $100,000 is very small, and I certainly think
that we ought not to change this from two to one. I trust the
amendment will not prevail.
Mr. MATHEWS. I will move as an amendment to the amend-
ment that we make it $250,000. I think $200,000 is too small.
Mr. BARTLETT of Griggs. $100,000 is not such an insignifi-
cant sum as the gentleman from Ransom would have us believe.
I would venture to say that if he should ever undertake to irrigate
North Dakota or any considerable portion of it, even $200,000 or
$500,000 would be but a drop in the bucket. The highest limit
that I know of in any state is $250,000. Nebraska is limited to
$100,000; the great State of Michigan to $50,000, and now we wish
to put this-this new State-to $200,000. The main object
of this State should be-the main purpose-to keep out of debt,
and we can only do that by throwing restrictions around our Leg-
islature, so that it will be impossible for them to contract for
public institutions and other things, an enormous debt. I would
like to see this $50,000. I believe it is impossible to make it as
low as that, but I think $100,000 is plenty high enough. It is
above the average limits of constitutions that I am familiar with,
and it should be plenty.
Mr. ROLFE. I notice in File No. 132, the article on revenue
and taxation, which we have not considered-yet I take it that the
first section is very likely to meet the approval of this Convention
-provides that the Legislature may provide for the raising of
revenue for State purposes, in an amount not exceeding four mills
in any one year. Four mills on the assesable property of a county
having $3,000,000 worth of assessable property—and I take it that
428
DEBATES OF THE CONVENTION.
that would be a fair average in North Dakota-would result in the
raising of a State tax in that county of $12,000. If we multiply
that by thirty-eight, considering $3,000,000 the average for the
counties—thirty-eight being the number or organized counties,
now in the Territory, and possibly by a larger number since new
counties are likely to be organized shortly, we shall find that this
State may, in any one year, by assessing to the limit imposed by
the section on revenue and taxation, raise an amount that will in
all reason be sufficient to pay an expenditure other than the most
extraordinary one. South Dakota in her Constitution of 1885
fixed the limit at $60,000. She has in her late Constitution raised
that to $100,000. That portion of the Territory of Dakota is far
richer in population and assessable property than we are, and in
all probability will continue so to be for a long series of years to
come. They have kept in line with a majority of states which
have been careful to get the limit of state indebtedness down to
such an amount as to make it impossible for any Legislature to
make the State tax burdensome to the people. I don't believe
that $100,000 is an insignificant sum as has been suggested, and I
think that the annual tax which the State might raise by a four.
mill levy will be sufficient for the needs of the State for many
years to come, and I hope the amendment will prevail.
Mr. STEVENS. I would like, in refutation of what the gen-
tleman has said, to ask him one question-what is the assessed
valuation of his county?
Mr. ROLFE.
A little over a million.
Mr. STEVENS. And your county is over the average county.
There are but few counties in North Dakota that come up to what
the gentleman says is the average. Further than that, in answer
to what the gentleman has said about public institutions, I don't
believe in combinations for public institutions any more than he
does, but I say if it is necessary for North Dakota to go into debt
for $100,000 to take care of the cripples, the maimed, the blind,
the speechless and the sightless, I for one am in favor of contract-
ing that debt and taking care of all those persons in the institu-
tions we will build. Would the gentleman seek to limit the in-
debtedness of North Dakota when it is taking care of the per-
sons confined in the Jamestown Asylum-would it limit the State
indebtedness, and thereby prevent the proper carrying on of the
educational interests of the Grand Forks University? Would the
gentleman seek to cut off the appropriation that might be had for
DEBATES OF THE CONVENTION.
429
maimed, and crippled, and old and decrepit soldiers? Surely not;
and yet if you cut down this indebtedness in the manner proposed
you might do that very thing. I don't believe that because we
ask for $250,000 as a limit that it needs to reach that. The Legis-
lature will not, necessarily, because they have the power, run into
debt. Would the gentleman limit the liabilities of the individual
citizens of his county-would he say they have no right when
necessary for their own interest, to go into debt? Why, then, if
it is going to be a benefit to the State to go into debt, should it
not be allowed to do so? Consider this proposition well before
you say by your votes here to-night that we will not allow the
State of North Dakota to contract, no matter how necessary it
may be, an indebtedness to exceed $100,000.
Mr. HARRIS. A few cold facts won't do any harm. South
Dakota limits her indebtedness to $500,000 and starts in with
$750,000 of bonded indebtedness at once. She limits her floating
indebtedness to $50,000, and the first day she starts in she will
have $150,000 of floating indebtedness, and she can't help it. It
does not matter what her constitution says. I wish to illustrate
the fact that these things occur and we cannot always shirk them.
This section only provides for casual deficits or cases where there
is a failure in the revenue, aud they will come no matter what the
rate of taxation that has been assessed. These failures come when
the taxes are not paid, and the warrants of the State must neces-
sarily go to protest or a temporary indebtedness must be incurred.
We are not to infer that the Legislature or the officials propose to
run to the limit, and run this State into debt every year. We are
not to suppose that because in the report of the Committee on
Revenue and Taxation a limitation of four mills is fixed, that the
State of North Dakota will levy four mills on the assessed valua-
tion every year. Not at all. Any man who is elected to an office
in this State will endeavor to keep the expenditures at the lowest
possible limit, and this section of File No. 140 is only for extra-
ordinary expenditures or failures in the revenue, and $100,000 is
too small if we expect to keep within the limit.
Mr. SCOTT. As the gentleman from Benson stated that South
Dakota in her Constitution in 1885 had the limit placed at $50,000,
what position would she be in to-day had the Constitution taken
effect at that time? The result would necessarily have been
that they would have had to increase the tax levy or else their
warrants would have been below par. One hundred thousand
430
DEBATES OF THE CONVENTION.
dollars is not very much to a state. Already our indebtedness is
something over $500,000. We are not in as good a position as
South Dakota. There are public institutions which will be abso-
lutely necessary which the State must equip and establish. These
all require money, and the question is-shall the State start off
and levy a tax which will defray the expenses of these institu-
tions—of the Legislature and the State officers, or will the limit
of indebtedness be placed at $200,000 or $250,000? To my mind
$250,000 is not a large sum for this State to incur. I don't think
it would be good policy to adopt the amendment, for failure of
crops or some other cause might render it absolutely impossible
for the State to get its taxes paid up. They will be delinquent,
and will have to wait till the crops are good, and for that reason
it may frequently require $200,000 to meet the deficiency. I
should be in favor of an amendment that would make the amount
$250,000.
Mr. WALLACE. The only object I have in limiting the in-
debtedness is to encourage economy. If you want to open the door
to extravagence put a large limit on. We have seen cases of other
states that have put a much less limit than we have. I don't
think it is good policy for us to go into debt. I think the best
thing we can do is to put a small limit. The amendment which
has been proposed by the gentleman from Grand Forks to in-
crease the amount to $250,000 should not, I think, prevail. As
has been mentioned, Michigan's limit is $50,000, Indiana's $100,-
000, Minnesota's $250,000. . I think that $200,000 is enough for
North Dakota, and I should be satisfied with considerable less.
The amendment of Mr. MATHEWS was lost.
The amendment of Mr. ROLFE was lost.
The original section was adopted.
CITY AND COUNTY DEBTS.
Section two was read as follows:
SEC. 2. The debt of any county, city, town, school district, or any other
subdivision, shall never exceed five (5) per centum upon the assessed value of
the taxable property therein, except as otherwise specified in this Constitution;
Provided, That any city may, by a two-thirds vote, increase such indebtedness
three (3) per cent. beyond said five (5) per cent. limit. In estimating the in-
debtedness which a city, county, or any subdivision thereof may incur, the
amount of indebtedness contracted prior to the adoption of this Constitution
shall be included.
Mr. SPALDING. I have never seen this report till it was dis-
tributed, and had no knowledge whatever as to its contents. In
DEBATES OF THE CONVENTION.
431
looking over the Journal I have come to the conclusion that this
section conflicts with the section reported by some other commit-
tee, and the action already taken by the Committee of the Whole.
I have had no time or opportunity to examine it carefully and see
what the difference is, and I move that this committee do now
rise.
Mr. STEVENS. It seems to me that this is one of the most
important subjects that we have to consider. I have never seen
the report till to-night. We have had no chance or opportunity to
examine it, and for that reason, and that we may better under-
stand this File, I move that its consideration be postponed till to-
morrow.
The motion to postpone was carried by a vote of 24 to 11.
The committee then rose.
Mr. SELBY. I move to adjourn.
The motion prevailed, and the Convention adjourned.
THIRTY-FOURTH DAY.
BISMARCK, Tuesday, August 6, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. MOER. I move that the reading of the Journal be dis-
pensed with.
Mr. HARRIS. The Journal only takes a few minutes to read.
I think it is of the utmost importance that it should be correct,
and mistakes are liable to occur in it. It has been laid over now
for several days and I think we should proceed to have it read up
and corrected.
Mr. MOER. I withdraw my motion.
Mr. JOHNSON. Inasmuch as we have dispensed with the reg-
ular order of business for two days, I would ask that the Journal
of August the 3d be also read.
(The Journal of the 3d was then read by the Clerk.)
432
DEBATES OF THE CONVENTION.
;
Mr. JOHNSON. My recollection of what occurred last Satur-
day night is a little different from the history as written by the
Clerk. He states that sections one to ten were adopted, and
eleven was passed, and then he says something about thirteen.
My recollection is that we had a very decided scrimmage here on
twelve. Why is there no mention made of section twelve? These
words mean something-the words that authorize the Legislature
to fix rates for the railroads. There have been traditions that
have come down to us, handed down by our forefathers and ances-
tors that sometimes bills that have passed both houses of the
Legislature have failed to get on the statute books. If it is not
asking too much of the Chief Clerk I would like to trouble him
to make mention in the record of the fact that we adopted section
twelve.
Mr. PURCELL. Last night when we commenced to consider
the majority report on corporations the Chief Clerk stated in the
hearing of every member of this Convention, that instead of the
Journal saying that section thirteen was adopted it should have
read section twelve, and we continued to consider section thirteen
yesterday. The Chief Clerk made that statement that it had been
adopted by the Committee of the Whole.
Mr. JOHNSON. Then the fact that he read "thirteen" to-day
shows that the manuscript has not been corrected, and that is why
I called attention to it.
Chief Clerk HAMILTON. It is a mistake of the printer, which
has been marked for correction.
Mr. JOHNSON. Mr. PRESIDENT: I desire to ask if people
who have not been elected members of this body have any right
to the floor to make explanations here?
Mr. PRESIDENT. The Chief Clerk has a right to give infor-
mation when he is called on for it.
CITY AND COUNTY DEBT.
Mr. BENNETT. I move that the Committee on Revision and
Adjustment be and are hereby instructed to insert between the
word "city" and the word "and" in the last two lines of section
three of File No. 125 as amended the following words-"or for the
purpose of constructing sewers." File No. 125 is the report of
the Committee on Municipal Corporations. That File was amended
in the Committee of the Whole by Mr. Miller's motion, which was
made section three of the File. The amendment limits the indebt-
DEBATES OF THE CONVENTION.
433
edness of cities, except in the case where they construct water-
works. There are several cities in North Dakota that are intend-
ing to construct sewers. Grand Forks and Grafton are among
those cities, and we are desirous of having these words inserted as
recommended by this resolution.
Mr. PRESIDENT ruled that the motion was out of order, and
that the amendment must be made when the article comes back
from the Committee on Revision and Adjustment.
Mr. STEVENS. I make a motion that it is the sense of this
Convention that the provision contained in this resolution shall be
incorporated by the Revision Committee and I do it for this
reason. I don't think there is a single gentleman on this floor
who voted in favor of the provision for the establishment of
waterworks who will not also vote for this provision, as without
sewers waterworks are practically of little value, and this provision
is necessary to carry out the other provision.
The motion was seconded and carried.
Mr. STEVENS. I move that we now resolve ourselves into a
Committee of the Whole for the purpose of considering the bus-
iness on the Secretary's table.
The motion was seconded and carried.
Section two of File No. 140 was then read, as follows:
SEC. 2. The debt of any county, city, town, school district, or any other
subdivision, shall never exceed five (5) per centum upon the assessed value of
the taxable property therein, except as otherwise specified in this Constitution;
Provided, That any city may, by a two-thirds vote, increase such indebtedness
three (3) per cent. beyond said five (5) per cent. limit. In estimating the in-
debtedness which a city, county, or any subdivision thereof may incur, the
amount of indebtedness contracted prior to the adoption of this Constitution
shall be included.
Mr. FLEMINGTON. Inasmuch as the report on municipal
corporations limits indebtedness of cities and towns I would
move that the words "city" and "county" be stricken out of this
section.
Mr. WALLACE. I think that this matter of conflict should
be left to the Committee on Revision and Adjustment. It will be
hard for us to take up these matters and decide on the merits of
the case.
The Committee on Revision will report any conflict.
It is their duty and their work.
Mr. FLEMINGTON. I think the remarks of the gentleman
from Steele are all right, but there is a difference in the substance.
In this case there is a difference in the substance and in the limit
28
434
DEBATES OF THE CONVENTION.
prescribed, and I think it should be settled by this committee at
this time. If the sections were alike—if the limit prescribed in
this section was the same as that in the other, it might be left to
the committee, but as they are not alike, I think the question
should be settled here.
Mr. ELLIOTT. I don't think the motion of the gentleman
from Dickey covers the ground. Section three of File No. 125,
which is File No. 67, provides that no municipal corporation shall
ever exceed 4 per cent with its indebtedness, except cities for
the purpose of constructing waterworks or sewerage. His motion
to strike out the words "city" and "town" would not cover the
case. I would move as a substitute that where the figure "5"
occurs it be stricken out and the figure "4" inserted.
The motion was seconded.
Mr. ROLFE. I hope the amendment will not prevail, for the
reason that while the 4 per cent. limit might be feasible in a case
of the larger counties, it is hardly the limit that would be advis-
able in the case of the smaller counties, upon which the expense
of running a county government is proportionately larger than it
is in the larger counties. A 4 per cent. in the smaller counties
would not allow them to carry on the government as established
to the best interests of the county at large. I think the better
plan would be when we are acting as a Convention to reconsider
the action taken on section three of File No. 125, and increase
that to five. Therefore I hope this amendment will not prevail.
Mr. SCOTT. I cannot see where there is any necessity for our
having this section two in at all. We have already adopted a
provision in the File on municipal corporations, in which we fixed
the limit of indebtedness of any municipal corporation, which will
include cities, counties, towns and so on, and that has been fixed
at 4 per cent.
cent. If we desire to reconsider that, it is a proper thing
to do, but we have already an article passed, which covers this
whole section. This section two and this original File No. 67
vary materially, and for that reason, if it is in order I would move
that section two of this File be stricken out.
The motion was seconded.
Mr. CAMP. I differ with the gentleman in the meaning of the
term "municipal corporation." Ordinarily it does not include
county, town or school district. If we are to fix any limit to the
indebtedness of the counties, school districts, or towns, it must be
DEBATES OF THE CONVENTION.
435
done explicitly, and cannot be done by the use of the term "mu-
cipal corporation," unless we append to it a new definition.
Mr. FLEMINGTON. I agree with the gentleman from Stuts-
man as to the definition of the term "municipal corporation." I
don't think that the provision in File No. 125, section three, gov-
erns towns, counties or school districts, and I don't think it would
be so considered, so that it would leave us without any limit in
the case of a county, town or school district. I think if the
words "city" and "town" are stricken out from this bill it will
leave us with a 5 per cent. limit, and 4 per cent. will govern mu-
nicipal corporations which it was intended to cover. I still think
that the motion I originally made to strike out the words "city"
and "town" will be the best.
Mr. SCOTT. I would like to inquire what kind of a corpora-
tion a county is if it is not a municipal corporation?
Mr. CAMP. It is a quasi municipal corporation. It would
come under the head of municipal or quasi municipal.
The motion of Mr. ScOTT to strike out section two was lost.
The motion of Mr. ELLIOTT to strike out "five" and insert
"four" was lost.
Mr. SCOTT. I don't see the object of the gentleman from
Dickey in wanting to have "city" and "town" struck out, any more
than county and school district. I don't see how that will amend
this. We then have section three of File No. 125, providing that
under certain circumstances the indebtedness may be increased
again.
Mr. FLEMINGTON. I was a member of the Committee on
Municipal Corporations, and the understanding of the committee
was that they were simply to adopt measures in that article relat-
ing strictly to municipal corporations of cities and towns. I
understand the section we now have to have reference to counties,
towns and school districts, and what the gentleman from Stuts-
man terms quasi municipal corporations are not provided for in
the section reported by the Committee on Municipal Corpora-
tions.
Mr. O'BRIEN. There seems to be considerable conflict over
this matter, and I think it would be better to pass this section and
let it go to the Revision Committee. They can carefully study
over this and so arrange the sections as to prevent any conflict.
I think the motion of the gentleman from Dickey should not pre-
vail.
436
DEBATES OF THE CONVENTION.
The amendment of Mr. FLEMINGTON was then voted upon and
carried.
Mr. WALLACE. If you want to amend this by changing
“four” to “five" you will accomplish about all you want to accom-
plish. I hope there will be no mutilation of this article. It
strikes me this matter of public debt applies to everything-city,
county and every other sub-division.
Mr. SCOTT. I think it would be well to refer section two and
section three of File No. 125 to some. committee and have them
frame a new article under the head of this report, or under the
head of municipal corporations, so that there will be no conflict
or misunderstanding. If we adopt this provision even with these
words stricken out, it will lead to misunderstanding of the matter
and difference of interpretation, and I think we had better have some
section properly framed so that all the work won't have to go into the
hands of the Committee on Revision and Adjustment. Here is a
five per cent. clause in one section and a four per cent. clause in
the other, and I think there should be a clause framed so that
when a man gets the Constitution into his hands he will know
what it means. I move that section two of File No. 140, and sec-
tion three of File No. 125 be re-referred to the Committee on
Municipal Corporations.
Mr. WALLACE. I move that the word "four" in section three
of File No. 125 be changed to "five."
The motion was ruled out of order.
Mr. WALLACE. I move as a substitute that the Committee
on Revision be directed to change the word "four" in line three
of File No. 125 to "five," which would make it correspond with
the second section of File No. 140.
The Chair ruled that this motion was out of order.
Mr. NOBLE. I move an amendment to the amendment, that
it be referred to the Committee on Public Debts and Public
Works. This section has been before that committee, but the
section referred to as being incorporated in the article on muni-
cipal corporations has never been referred to any committee. It
was simply taken up and adopted in this Convention. It is nat-
ural to be supposed that the committee has given the matter some
little consideration, and I make this motion for the purpose of
having it referred to a committee that has already investigated
the subject.
Mr. O'BRIEN. The difficulty in the way of this action is this:
DEBATES OF THE CONVENTION.
437
*
File No. 125 was before the committee with the amendment offered
by the gentleman from Cass, and is now in the hands of the Re-
vision Committee, so that we have practically lost control of it.
The object of his motion is to have section two of File No. 140
referred to the committee. It seems to me the better plan would
be to let this section go into the hands of the same committee that
has charge of File No. 125 with the amendment. They can report
back their action here, and if we deem it best to change the limit
from five to four we can do it after the report comes back. That
committee can make any suggestions they deem best.
Mr. BENNETT. I am in favor of the 5 per cent. limit. I
think it is the proper thing, and if this committee adopts the 5
per cent. limit we can pass a resolution instructing the Committee
on Revision and Adjustment to change the 4 per cent. to 5 per
cent. in the report on Municipal Corporations, and I think in that
way we will avoid any confusion.
The motion of Mr. SCOTT was lost.
Mr. PARSONS of Morton. I would like to ask if the motion
of the gentleman from Barnes included Files Nos. 125 and 140
both?
The CHAIRMAN. I understand that it only includes this sec-
tion.
Mr. FLEMINGTON. On examining this section it seems to me
it would be well to include in that motion only a motion to strike
out, beginning after the word "Constitution" in the fourth line
and ending with the word "limit" in the sixth line. This is a limit
simply to cities. If we strike out the words "city" and "town,"
the article only refers to counties, towns and school districts. This
will eliminate from the section all that refers to municipal corpor-
ations, and will then include only quasi municipal corporations.
Mr. BARTLETT of Dickey. I have been pleased to hear the
talent here, but it seems to me that if we would let this go to the
Committee on Revision and Adjustment, a great deal of trouble
would be saved to us. We have been discussing this matter three-
quarters of an hour, and it seems to me it would be better to pass
on to other business, and let the committee decide this. •
The motion of Mr. FLEMINGTON was lost.
Sections two and three were adopted.
LOANING PUBLIC CREDIT.
Section four was read as follows:
SEC. 4. Neither the State nor any county, township or municipality shall
loan or give its credit or make donation to or in aid of any individual, associa-
DEBATES OF THE CONVENTION.
438
tion or corporation, except for necessary support of the poor, nor subscribe to
or become the owner of the capital stock of any association or corporation,
nor shall the State engage in any work of internal improvement unless
authorized by a two-thirds vote of the people.
Mr. WALLACE. I move as an amendment that you strike out
all after the word "improvement" in the sixth line. If this amend-
ment is carried it will prevent the State from going into any work
of internal improvement. If you are going to build a canal, or
if you are going into irrigation works, there is no telling where
you will stop. There are a number of things of this sort, which a
good many people would like to go into with the State's money
and credit. We find in a good many constitutions that the state
is prohibited from going into any of these works. The section as
it was reported by the committee provides that the State may go
into work of this kind by a two-thirds vote of the people. The
States of Iowa, Minnesota, Ohio, Michigan, Oregon, Pennsylvania
and Wisconsin, and probably a good many more, are prohibited
by their Constitutions from going into internal improvements. It
is a question whether we want to leave it open as it is now.
The amendment of Mr. WALLACE was lost.
Mr. BARTLETT of Griggs. I move to strike out all after the
the word "corporations" in line five of section four.
Mr. BARTLETT of Dickey. This is a matter that was laid
before the committee and they gave it serious consideration.
After doing this they reported it as we have it here, and I think
it would be a good deal better for us to take it as we find it, and
send it to the Revision Committee.
Mr. MOER. It strikes me that the tendency is getting to be
rather to let the Revision Committee make the Constitution, and
while I think that we want to be reasonable, it seems to me that
it would be wise not to let them have too much power, for we may
find if we keep on that the Constitution when it comes back from
that committee will be a very different instrument from what we
sent them. I believe the amendment should not prevail. I think
the legislative power should be limited. They should not be al-
lowed to go into great works without the sanction of the people.
I think a two-thirds vote is reasonable, and if the people decide
by such a vote as that that they want it, the State should grant it.
The amendment of Mr. BARTLETT was lost.
Sections four and five were then adopted.
DEBATES OF THE CONVENTION.
439
BONDS TO BE ATTESTED.
Section six was then read as follows:
SEC. 6. No bond or evidence of indebtedness of the State shall be valid
unless the same shall have endorsed thereon a certificate signed by the Audi-
tor and Secretary of State showing that the bond or evidence of debt is issued
pursuant to law, and falls within the debt limit. No bond or evidence of debt
of any county, or bond of any township or other sub-division of a county
shall be valid unless the same have endorsed thereon a certificate signed by
the county auditor, or other officer authorized by law to sign such certificate,
stating that said bond or evidence of debt is issued pursuant to law, and is
within the debt limit.
Mr. ROLFE. I suppose the committee has well considered the
effect of having contained in that section the words, "issued pur-
suant to law." I have not considered this section at any great
length, but it is asking considerable of the officer specified within
this section, and therefore I move, in order to bring the matter
up for discussion, that the words "issued pursuant to law” be
stricken out where they appear in this section.
Mr. WALLACE. I don't think it is necessary to discuss this.
It seems so apparent that a certificate or evidence of indebted-
ness should include the statement that it was issued pursuant to
law.
Mr. BEAN. The object of this article is apparent, and it is
my opinion that if we carry this amendment we might as well strike
out the whole section. How do the people in the east know that
these bonds are issued according to law? They are not supposed
to have a code or an attorney to refer to, and if the evidence ap-
pears on the face of the certificate that it is i sued pursuant to
law, the people will have some faith in it. It is not a very serious
matter for the Secretary of State or the Auditor to sign such a
statement. He has an attorney to refer to, and it is simply an
opinion that that certificate is issued pursuant to law, and falls
within such limits.
Mr. PARSONS of Morton. It seems strange that a gentleman
would raise a question of opinion in this way. The objection the
gentleman from Benson has to the section is that there is a lack
of authority on the part of the tribunal named in the section. If
every auditor in the State, down from the State Auditor would
have a legal opinion on the question-a decision of the court, let us
say-it would be right and proper, but it seems to me that it is going
too far to require an officer whom we elect as a mere clerk to call
440
DEBATES OF THE CONVENTION.
on him to form a legal opinion-sit in judgment on these things
and say whether or not these bonds or evidences of indebtedness
are in accordance with the law. They may be so as he under-
stands it, but if that provision stands there "pursuant to law,” we
should also make a provision for submitting all these questions to
the court first—before the respective auditors are required to pass
upon them.
It is strange to ask a clerk to pass on a matter of
this kind. I agree with the committee on their efforts to place
safeguards around the public property, but if the words "pur-
suant to law" were stricken out I think the Auditor would still
endorse sufficiently upon it, for it is not the custom of eastern
capitalists to buy bonds in this or any other state or county unless
they are first passed upon, and they know they are all right. The
fact that an auditor endorsed on them that they were issued
according to law would not have any weight, and it might get
these officers into serious trouble, when they were acting in good
faith. If the bonds through some technicality turned out to be
no good, an innocent party might suffer very, very seriously.
Mr. CARLAND. I believe that this is a good section, and will
answer a good many good purposes if it is allowed to stand as it
is. If this remains here, every purchaser of bonds will be bound
to know the law, which will be that any bond is not valid if it
does not contain the certificate. There have been cases in which
officers have issued bonds without authority, and they have got
into the hands of innocent purchasers, and the court enforced
them against municipalities and states. Now they cannot come
up and claim that they are innocent purchasers, for the State or
municipality can say: "You were bound under the law to see
that the auditor had put his certificate on the bond before you
got it." This clause would prevent officers from issuing bonds
without this certificate. Every purchaser would know the law
and would require the certificate. This section does not mean
that all the technical requirements have been complied with, but
that the bond has been issued in pursuance of some law and in
accordance with its conditions.
The amendment of Mr. ROLFE was lost.
The section was then adopted.
CHANGING COUNTY LINES.
File No. 139 was then taken up. Section three was read as fol-
lows:
DEBATES OF THE CONVENTION.
441
i
SEC. 3. All changes in the boundaries of organized counties before taking
effect shall be submitted to the electors of the county or counties to be affected
thereby, at a general election, and be adopted by a majority of the legal votes
cast in each county at such election, and in case any portion of an organized
county is stricken off and added to another, the county to which such portion
is added shall assume and be holden for such proportion of the indebtedness
of the county so reduced, as the part severed bears to the whole county from
which it was severed.
Mr. BARTLETT of Griggs. There is the objection here that
they propose to slice off the indebtedness in the same proportion
that they do the territory. I move to strike out the word "such"
in line seven, and insert in lieu thereof the words "an equitable,”
and strike out all after the word "reduced."
The amendment was carried, and the section adopted as
amended.
LOCATING COUNTY SEATS.
Section four was then read as follows:
SEC. 4. In counties already organized, where the county seat has not been
located by a vote of the people, upon a petition signed by a majority of the
legal voters of the county, it shall be the duty of the county board to submit
the location of the county seat to the electors of said county at the next gen-
eral election thereafter, and the place receiving a majority of all votes cast at
said election shall be the county seat of said county. If, at said election, no
place receive a majority of all the votes cast, it shall be the duty of the county
board to resubmit the location of the county seat to the electors of said county
at the next general election thereafter, and the electors at said election shall
vote for one of the two places receiving the highest number of votes at the
preceding election. The place receiving the majority of all the votes cast for
county seat at said second election shall be the county seat of said county.
Mr. HOLMES. I move that this section be stricken out. I
think that we have all we need in section five bearing on this
question. There is no sense in having too many sections that
cover the same question. I think we can get along very well
without it.
The motion was seconded and carried.
Mr. LOWELL. I move that in section two in line five the word
"twenty" be substituted for "twenty-four."
The motion was seconded.
Mr. POLLOCK. It would be better to substitute "eighteen"
for "twenty."
Mr. WALLACE. I move to insert in place of "twenty-four"
the word "ten."
The amendment of Mr. LoWELL was lost.
442
DEBATES OF THE CONVENTION.
The amendment of Mr. WALLLCE was lost.
Section five was then adopted.
LIMITING TERMS OF OFFICE.
Section six was then read as follows:
SEC. 6. At the general election in the year A. D. 1890, and every two years
thereafter there shall be elected in each organized county a clerk of the court,
sheriff, register of deeds, treasurer, state's attorney, surveyor, coroner and
superintendent of schools, whose terms of office respectively shall be two years,
and, except the clerk of the court, no person shall be eligible for more than four
years in succession to any of the above-named offices.
Mr. RICHARDSON. I move that all after the word "years"
in the sixth line be stricken out.
Mr. LAUDER. There may be some reason why, perhaps, some
of the officers enumerated in that section, shall be restricted in
the time they shall be allowed to hold their offices with advantage
to the public; but there are officers enumerated in that section.
which it seems to me should be allowed to hold their offices as
long as the people chose to elect them. For instance, take the of
fice of the Superintendent of Public Instruction. Anyone who is
at all familiar with matters of education knows well that the su-
perintendent of public schools who has served one or two terms
in that capacity--who has become acquainted with the teachers
and the schools, is better able to perform in a satisfactory way the
duties of that office than a person who is annually elected. That
may also be said of a great many other officers, for example, the
register of deeds. I have in mind the register of deeds in our
county. We have a gentleman who has held that office for the
last ten years, and I undertake to say that there is not another
man in all our county who could go into that office at the present
time, and discharge the duties with the same accuracy and the
same satisfaction to the people of our county that the present in-
cumbent can. He is elected right along, with no opposition
whatever, and were an election to be held now I presume he would
receive five-sixths of the votes in the county without any effort.
whatever on his part. It seems to me that this Convention should
not put a provision in this Constitution that will prevent our peo-
ple from retaining that man as their public servant to perform for
them the duties of the office of register of deeds. If there is
any reason why a provision should be incorporated in this Con-
stitution of this character, it should only apply to officers who are
obliged from the nature of their office to become the custodians
DEBATES OF THE CONVENTION.
443
are.
of public funds. In cases of that kind it might be well, and then
if there has been anything crooked in their books or accounts it
would come out. As a means of safety such a provision as that
might be well, but in the cases of officers whose duties are largely
ministerial, it seems to me the public should be left, and have the
right and privilege of electing the men who are, in their judgment the
best qualified to fill these offices. I speak of another office with
some hesitancy, because I hold that office, and I hope no member
will think that I am seeking to gain any advantage for myself. I
have held the office of district attorney, and know what the facts
Any attorney knows that a man who has been in the office
of district or states attorney, and has had the run and the charge
of the criminal cases pertaining to that office, and has accumulated
in his office not only the criminal but the civil cases in which the
county is interested, that when he surrenders that office and turns
it over to his successor, it will take that successor some time to
take hold of the cases and carry them on satisfactorily. If the
incumbent of this office is competent, and has become familiar
with all the details of the cases-many of them perhaps import-
ant-it seems to me that the public should have the right to con-
tinue him in office if they think proper, and it seems to me that it
would not be policy to adopt this section, or to have this principle
applied to any officers except, perhaps, those who are custodians
of public funds.
Mr. FLEMINGTON. I agree with the gentleman from Rich-
land in the main, and think that this provision should not apply
to any officers except it might be to the sheriff and treasurer, and
I offer the following amendment to the amendment of the gentle-
man from Pembina. After the word "years" add the following:
"Sheriff and treasurer shall not be eligible to their respective offi-
ces for more than two years in succession." That limits the term
of the sheriff and the treasurer, and leaves all the other officers to
be elected as long as their services are satisfactory to the people.
Mr. BARTLETT of Griggs. I would second that, but I would
prefer to make it two terms.
Mr. FLEMINGTON. I think the sheriff and the treasurer
should be for one term each. The treasurer should account at the
end of each term, and there is no way to have him do that but by
making a provision of this sort.
Mr. BARTLETT of Griggs. It often requires half a term for
the sheriff to become acquainted with his duties.
444
DEBATES OF THE CONVENTION.
Mr. BARTLETT of Dickey.
look at the situation as it is.
ing of the thing you will see that there is a chance for a good
deal of robbery outside of these two offices. In the county that
I lived in before I came here the treasurer held his office for twelve
years, and the man would have been almost mobbed that would
have said one word against him. His record for honesty stood
preeminently high. What were the facts as they afterwards de-
veloped? After he had gone out of office and another man had
taken his place, it was found that he had robbed the county of
nearly $60,000, and he served his time in the penitentiary for it,
David Smith of Keokuk, Iowa. Whenever you permit men to
hold positions right along year after year in this country or in any
other country, corruption follows. I believe that men holding
public office should be put out at certain times, and new men
elected that will scrutinize the work of the parties that have been
in office, and I believe that as a matter of principle we should not
put a clause in our Constitution that would permit any public
officials to keep in office without having their record thoroughly
examined.
This all sounds very well, but
When it comes to the actual work-
Mr. MOER. I am in sympathy with the motion offered by the
gentleman from Dickey, provided he will make it two terms. It
seems to me that one is shorter than there is any necessity for
having it. The only reason I am in favor of limiting these offices
is because both officers have large amounts of money in their
hands, but the other county offices are merely clerical and I see
no reason to limit them as to time. But I think it is advisable to
do it with the treasurer and the sheriff.
Mr. BARTLETT of Dickey. There is a principle at stake here,
and it is one that we should look well to. Is there a gentleman
here who has not at some time or another taken a hand in fighting
the court house ring? I don't believe there is a man thirty years
old who has not fought a ring that has run the politics of the
county in which he has lived. In passing this section we weed
these fellows out.
Mr. LAUDER. I have heard a great deal about court house
rings, but I have always found that the men who were howling the
loudest were the men who were trying the hardest to get into the
court houses themselves. They are the men from whom we hear
the most about court house rings. As I stated before, there is
reason and logic in applying the provisions of this section to the
DEBATES OF THE CONVENTION.
445
men who have the custody and distribution of the public funds,
but as to the register of deeds-if he is a good officer, why should
not the people have a right to elect him again? What right has
this Convention to come here and say that the people of Richland
county shall not have the privilege of electing their man as regis-
ter of deeds who has served them so faithfully during the past ten
years? What right has this Convention to come here and say that
any county shall not have the right to re-elect a public servant who
has been found faithful to his trust? I say it is illogical, unreas-
onable; it is not right.
Mr. BARTLETT of Griggs. I am in hearty sympathy with
the gentleman who has just taken his seat. I should like to see
this amendment changed to two terms, but if it cannot be I will
vote for it as it is. This section as it stands omits the probate
judge. That will have to be put in there, and I undertake to say
there is not a delegate here who does not want the privilege of help-
ing to re-elect a probate judge as many years as the people want to
do so.
It takes more than one term for a man to become familiar
with the duties of this office, and if you have a competent probate
judge, the county should have the privilege of retaining him as
long as it wants to. I would rather it should not be restricted at
all, but if we are going to restrict it, let us confine the restriction
to those officers who handle public funds.
Mr. SCOTT. There is another official omitted from this sec-
tion—the county auditor. I think the section is suplusage anyway
for the reason that section nine, if it was a little modified would
be better than to name the county officers. Section nine provides
as follows:
SEC. 9. The Legislature Assembly shall provide by general laws for such
other county, township and district officers as may be deemed necessary, and
shall prescribe the duties and compensation of all county, township and dis-
trict officers.
The only thing that section six covers is their election in 1890.
That would naturally be provided for in the Schedule, and if we
adopt this section six we have got to have a probate judge and a
county auditor. I am in favor of striking the whole section out.
I move that the section be stricken out.
The motion of Mr. Scorт was carried by a vote of 33 to 25.
THE SUPERVISOR SYSTEM.
Section seven was then read as follows:
"The Legislative Assembly shall provide by general law for organizing
counties into civil townships."
446
DEBATES OF THE CONVENTION.
Mr. CAMP. I move to add at the end of section seven the fol-
lowing:
"But in every county now organized the present system of a county gov-
ernment by a board of three or five commissioners shall continue in force
until a majority of the voters of such county, voting at an election held for
the purpose of submitting the question of the change of the system of county
government to the people, shall have voted in favor of such change."
Mr. STEVENS. There is no provision made for calling such
an election. I desire to offer an amendment.
Mr. LAUDER. I would like to ask a question. I would like
to know if this section implies any procedure by which the ques-
tion may be submitted to a vote? Or is it the intention that the
Legislature shall provide for it without a vote?
Mr. CAMP. Certainly.
Mr. ROLFE.
I would like to ask if the idea he has in mind is.
not the same as is contemplated in section eight.
Mr. CAMP. No sir. My idea in introducing this amendment
is this a large number of counties of this Territory and some of
the large counties, are not at this time organized into civil town-
ships, and they don't want to be. They prefer the present sys-
tem. The system of county government indicated in section
eight is the system by the board of county supervisors. That is
all right where the county wants it, but I don't think we should
force on these large and sparsely settled counties a system of
county government which they may not wish to adopt. It is all
right for the Legislature to provide a system of govern-
ment by county supervisors, and allow any county that prefers
that system to adopt it, and that is what my amendment intends.
All that this amendment seeks to preclude is the forcing on a
county a system of government which it does not prefer. Many
of the counties of the State will prefer to remain for a long time,
I judge, under the present system of government by the board of
county commissioners. They find it cheaper and better.
Mr. STEVENS. I move to amend the amendment of the gen-
tleman from Stutsman by adding to his amendment the following
words:
“Provided, The question shall be submitted at any time one third of the
legal voters of any county shall petition the board of county commissioners
so to do."
Mr. CAMP. I accept that amendment.
Mr. ROLFE.
I cannot see wherein the amendment offered re-
DEBATES OF THE CONVENTION.
447
}
·
lieves any county from having forced upon it the supervisor sys-
tem any more than section eight does. Section eight provides as
follows:
SEC. 8. In each organized civil township there shall be elected at the
first general election after the admission of this State into the Union for such
terms as the Legislative Assembly may by law prescribe, three township su-
pervisors, one of whom shall be designated as chairman, and if the Legisla-
tive Assembly shall, by general law, provide that the county board of any
county shall consist of less than fifteen members, then upon a petition signed
by not less than fifty legal voters of any county, asking that the question of
the establishment of a county board to be composed of the chairmen of the
several boards of township supervisors be submitted to the electors of the
county, it shall be the duty of the county board to submit the same at the next
general election thereafter, and if at such election a majority of such electors
shall vote in favor of such proposition, then the county board of such county
shall consist of such chairmen of the several boards of township supervisors
and of such others as may by law be provided for any incorporated city or vil-
lage within such county.
Suppose the word fifteen be stricken out and three or five sub-
stituted. Then each county may vote on the question.
Mr. LAUDER. I am very much in favor of a provision in this
Constitution that will enable each county for itself to determine
which system of county government it will have-commissioners
or supervisors. It seems to me that it can be done in a much
more simple manner than is set out in section eight.
Mr. CAMP. It does not seem to me that section eight covers
the same ground at all. It says, "If the Legislature shall by gen-
eral law," etc. Suppose they pass a general law providing that it
shall consist of twenty-five members. This section eight does not
prevent the Legislature from forcing on every county a system
which it does not want. We have a system which is satisfactory
now to most of the counties in the State. There is no need to
change it until the people want a change.
Mr. ROLFE. It seems to me that the course of the gentleman
from Stutsman would be better if he offered an amendment to
section eight, than to ask that this amendment be appended to
this section. That is all the point I would make. I am in favor
of amending section eight in the direction suggested by the gen-
tleman from Stutsman. If that were properly amended then it
seems to me in other respects section eight would be unobjection-
able.
Mr. LAUDER. I must confess there is a portion of section
eight the purpose of which I am unable to understand. This
448
DEBATES OF THE CONVENTION.
(C
is the part that I do not understand: And if the
Legislative Assembly shall, by general law, provide that the
county board of any county shall consist of less than fifteen mem-
bers, then upon a petition signed by not less than fifty legal
voters of any county" and so on. What is the necessity of
having that proviso in? Why not let each county on such a peti-
tion, by vote, determine for themselves without any such proviso?
I would inquire of the members of the committee the object of
that proviso-what it means, what it is for? It may be that I am
very stupid, but I can't understand it.
Mr. FLEMINGTON. It looks to me that as section seven is
now amended it provides for the continuance of the present com-
missioner system in any county that desires to continue it, and in
section eight it provides that under certain conditions a county
may organize into townships, and the county board shall consist
of the various chairmen of the boards of supervisors. It seems to
me that this whole matter of county organization should be left to
the Legislature, and I would like to offer a substitute for sections
seven and eight. It reads as follows:
"The General Assembly shall provide by general law for township organi-
zation under which any county may organize whenever a majority of the legal
voters of such county voting at any general election shall so determine, and
townships when so organized shall be bounded as nearly as may be by congres-
sional township lines and natural boundaries."
Under section seven as it is reported by the committee, the
Legislature will provide for township organization, and as I under-
stand that section, every county within the State of North Dakota
must organize under the township system. I do not read it in any
other way. If the commissioner system which the gentleman
from Stutsman wishes perpetuated in Stutsman county continues,
there is no necessity for any township organization. As I under-
stand it they have none there now. If the report of the commit-
tee should prevail, every county in the State would have to organ-
ize under this law of the Legislature which this section provides.
If the substitute which I have offered for these sections prevails,
the Legislature will then pass a law for the organization of town-
ships, and the county may organize under that law if it sees fit.
Mr. STEVENS. While I offered the amendment I believe the
substitute is best. I believe so for one reason particularly, and
that is that I don't believe we should provide in this Constitution
that the present system of boards of county commissioners or
DEBATES OF THE CONVENTION.
449
I
anything else, should be
should be a part of the Constitution.
think that reference to the present system should not be in the
Constitution. This is what we call a new deal, and I think the
substitute covers the ground.
Mr. SCOTT. This is an important matter. That is why we
sent this report back to the committee for them to resubmit a new
article. This report as it now comes to us does not appear to be
very satisfactory. At least it is not to me, and I expected there
would be a different article presented. I am in favor of some
such article as the gentleman from Dickey has suggested. It is
short, but as we have not got it before us, I don't know whether
it is exactly what we want. For that reason I am not prepared to
vote upon it. I supposed the committee would have a section
fully expressing the opinion of the Convention as ascertained
when we discussed the matter before. Then the sentiment of the
Convention was that the whole matter should be left to the people
in each county. The present commissioner system should be al-
lowed to continue where the counties want it, and they should not.
be forced into the township organization unless they so desire it.
That is practically the substitute, and yet we have not had time-
enough to consider the substitute in order to vote upon it intelli-
gently, although I think I am in favor of it.
Mr. ROLFE. One word in support of the report of the com-
mittee. I believe section seven is almost identical with the sec-
tion we have relating to civil townships now. If my recollection
serves me right this is nearly a literal copy. If so it would not
appear that the township organization system had been forced on
all the counties up to date. The county from which I come has
two civil townships in it. It was the design of section seven to
simply limit the Legislative Assembly to passing a law whereby a
congressional township could become organized into a civil town-
ship. I did not suppose that section seven compelled each county
to become fully organized into civil townships. If it does it
should be amended.
Mr. CLAPP. I think both the substitutes are open to this ob-
jection-they provide that the matter must be put to a vote of the
whole county, and a majority cast for it before any township can
be organized. In most of these counties there are incorporated
cities. They have obtained incorporation privileges without hav-
ing the matter submitted to a vote of the people of the county,
and if a majority of the voters of any township think they want to
29.
450
DEBATES OF THE CONVENTION.
organize, they should have the privilege the same as they have
heretofore had, and not be obliged to have the whole county vote
upon the proposition.
Mr. CAMP. I move to amend the substitute by inserting the
word "township" instead of the word "county," so as to require a
majority vote of the township instead of the county.
Mr. SCOTT. That destroys the sense of the amendment of the
gentleman from Dickey very materially. It is practically a sub-
stitute. I understand that we are trying to arrive at some system
of county organization, and to decide whether it shall be a com-
missioner or a supervisor system. This provides now for town-
ship organization, and has no reference to whether these town-
ships shall send their chairmen to form a board of supervisors.
Mr. STEVENS. I take it for granted that every man who is
opposed to the organization of counties into townships will vote
for the amendment. Every man who is in favor of submitting to
the people of each county the question whether or not they shall
organize under the township system or continue the system which
will probably be established the same as the present commissioner
system, should vote against this amendment. It is an entire sub-
stitute for the whole matter.
The amendment of Mr. CAMP to Mr. FLEMINGTON'S amendment
was lost.
Mr. LAUDER. I am in favor of the amendment of the gentle-
man from Dickey as far as it goes, but I cannot say I see anything
in it that provides for a change in the present system of county
government from the commissioner system to the supervisor sys-
tem.
Mr. FLEMINGTON. It is the intention of my amendment
that this shall be left to the Legislature.
Mr. LAUDER. I desire that it shall be incorporated in the
Constitution-the right of each county to determine for itself
whether it will have the supervisor or the commissioner system.
There are a large number of counties that for some reason or
another do not desire to have this question fairly submitted-do
not desire to have the people determine it. I would amend the
amendment of the gentleman from Dickey by adding to it the fol-
lowing:
"And upon a petition signed by not less than fifty legal voters of any
county, asking that the question of the establishment of a county board to be
composed of the chairmen of the several boards of township supervisors be
DEBATES OF THE CONVENTION.
451
submitted to the electors of the county it shall be the duty of the county board
to submit the same at the next general election thereafter, and if at such elec-
tion a majority of such electors shall vote in favor of such proposition, then
the county board of such county shall consist of such chairmen of the several
boards of township supervisors and of such others as may by law be provided
for any incorporated city or village within such county."
Mr. STEVENS. I would like to second that with one exception.
I would like to strike out the word "general" before "election" so
if it came in an "off" year we could have an election.
The amendment of Mr. STEVENS was accepted by Mr. LAUDER.
Mr. HOLMES. I would like to ask the gentleman from Rich-
land if he would accept another amendment. An election should
not be forced upon the people by the petition of fifty persons. I
should like to see it made twenty-five from each township in the
county.
Mr. LAUDER. In some townships there might not be twenty-
five people.
Mr. HOLMES. Then make it a third or a quarter of the
voters.
Mr. LAUDER. I think if one-fourth of the voters petition
that should be enough. I have no objection to a petition requir-
ing that one-fourth of the legal voters as shown by the preceding
election shall be the pre-requisite.
Mr. NOBLE. This matter has got entirely too thick. There
is too much of it to remember. I believe there is something the
matter with this section, and I move that the whole matter be
postponed till to-morrow.
Mr. LAUDER. I would suggest that that is no amendment to
the substitute. The gentleman from Dickey has accepted what I
have offered, so the only question is the substitute offered by the
gentleman from Dickey.
Mr. NOBLE. But the substitutes are as long as two sections.
Mr. HARRIS. I trust this matter will not be postponed. I
think we are all trying to arrive at the same thing-to put this
matter in such shape that counties can have the kind of govern-
ment they want by voting on it. In my county we are very well
satisfied with the commissioner system, and wish to retain it. I
think we can act on this matter now, and act on it intelligently.
Mr. STEVENS. We have fought this question from the com-
mencement of the Convention to about three or four days ago,
when the matter was compromised, and it was agreed as a com-
promise to all factions that the question should be left so that the
452
DEBATES OF THE CONVENTION.
Legislature should provide for a vote, and allow each county to
adopt which system it choose. The substitute here does the very
thing we have proposed, and the men who have promised that to
us, and who have agreed that they were willing to end this fight
by a compromise, are now adopting other tactics, and seek to post-
pone this matter for the purpose of preventing the passage of this
report. This report was agreed on-it was agreed that it should
be passed that it was satisfactory to both factions, and now to
delay action means simply to have another fight. If we are go-
ing to fight this thing out, let us do it now. Let every man who
is in favor of continuing the present system and not allowing the
people to vote on this question, let him vote for postponement or
against the substitute. I think every man who votes for post-
ponement is in favor of preventing the Legislature from passing
such a law.
Mr. SCOTT. I don't know what we are going to vote upon. If
there are other gentlemen who, in the present stage of the pro-
ceedings, know, they are smarter than I am. I like to know what
I am voting upon before I vote. I think it is practically agreed
that we will adopt a system just as the gentleman from Ransom
has said—and yet I don't believe the section before us is worded
properly and I think it should be put in better shape. I think
there should be a committee of four or five get together and frame
a section so that we can act intelligently. There has been so
much amendment and substitution that I think none of us can
vote intelligently on this question.
The motion of Mr. Scorr to postpone was lost.
Mr. SCOTT. I move to amend by inserting the word "general"
before the word "election." I don't think any county should be
put to the expense of calling a special election for this purpose,
and as is well known, it is not a very hard thing to get a petition
signed by one-fourth of the voters on any question. It would be
a source of considerable expense to submit it specially, and there
is no reason why it should be submitted at a special election.
We have a general election next fall-a year from this fall-and
every two years thereafter, so that at any reasonable time they
can submit it at a general election and it will then be no extra ex-
pense. As it at present stands, if a petition is gotten up they
must submit it forthwith.
Mr. LAUDER. I think in a question affecting all the people
as this does, when one-fourth of the people-qualified voters—
DEBATES OF THE CONVENTION.
453
The
ask that it be submitted to a vote, it should be so submitted.
matter of the expense of holding a special election should not
be taken into consideration.
Mr. STEVENS. I do hope the word "general" will not be put
in here. It simply means another defeat for the measure- that
you must wait two years. If it is right to have these townships
organized at all-if they should be entitled to be organized-they
should have a right to determine this without waiting two years
to do it.
The motion of Mr. SCOTT to substitute the word "general" was
lost.
The substitute of Mr. FLEMINGTON as amended was then adopted.
COUNTY OFFICIALS' PAY.
Section nine was then read as follows:
SEC. 9. The Legislative Assembly shall provide by general law for such
other county, township and district officers as may be deemed necessary, and
shall prescribe the duties and compensation of all county, township and dis-
trict officers.
The following amendment was offered by Mr. ALMEN to the sec-
tion, to be added thereto:
“No county officer shall be allowed more salary per annum, including clerk
hire and other expenses, than $2,500 in counties containing 5,000 and not ex-
ceeding 15,000 inhabitants; $3,000 in counties containing 15,000 and not exceed-
ing 30,000 inhabitants, and not more than $500 additional compensation for
each 20,000 additional inhabitants; Provided, That the compensation of no
officer shall be increased or diminished during his term of office."
Mr. ALMEN. I offered this amendment for the reason that in
our county we pay in fees to the register of deeds, $4,880, and the
man who is in that office is not capable of transacting any busi-
ness himself, and he has a deputy and two clerks who are receiving
$2,880. The business in that office could be transacted for the last
named amount or for less. I have limited that in my amendment
to $3,000. The extra amount that we have to pay in our county
amounts to $2,000. I don't think we can afford to keep on doing
that in the future, and I don't see any necessity for it. In the
Illinois constitution we read that they shall not allow any of their
county officers more per annum than $1,500 in counties not ex-
ceeding 20,000 population; $2,000 in counties of 20,000 population
and not more than 30,000, and $2,500 in counties of 30,000 and
not exceeding 50,000. I cannot see any reason why we should
pay such enormous sums more than they do there. I have been
DEBATES OF THE CONVENTION.
454
consulting with some of the delegates, and they say the business
cannot be transacted in Dakota for the same salaries as in the east.
But I think that if we allow double the amount, that should be
sufficient. I hope the gentlemen of this Convention will take this
into consideration.
Mr. WALLACE. I would favor that amendment.
Mr. BARTLETT of Griggs. I am in favor of a classification
of counties, but I think the whole matter should be left to the
Legislature.
The amendment of Mr. ALMEN was lost.
Mr. O'BRIEN. I move that the word "other" in line two of
section nine be stricken out.
The motion was seconded and carried.
Mr. BARTLETT of Griggs.
amended by adding the following:
I move that the section be
"Also recommend that section nine (9) be amended by striking out the
word "other" in the second line thereof; also by adding at the end thereof the
following: 'Provided, That all county officers shall receive a fixed salary.
For the purpose of providing for and regulating the compensation of county
officers, the General Assembly shall, by law, classify the several counties of the
State according to population, and shall grade and fix the compensation of the
officers within the respective classes according to the population thereof.
Such law shall establish scales of fees to be charged and collected by such of
the county officers as may be designated therein, for services to be performed
by them respectively. All fees, perquisites and emolument, shall be paid into
the county treasury,' and that as amended the section be adopted."
My purpose is to classify the counties so that they may be
reasonably apportioned to the amount of work to be done. It is
easy to see that the salaries that would be adequate for my county
would not be adequate for the county of Cass, and vice versa. If
the work of classifying them is left to the Legislature, certainly
they can do the work a great deal better than we can do it here.
I believe the system of paying officers by fees is pernicious.
There are counties in this State, I have no doubt, where the reg-
ister of deeds make several thousands of dollars a year for work
which they can readily hire done for half that sum. In the State
of Colorado, where they have the fee system, the recorder or reg-
ister of deeds in Arapahoe county makes as high as $50,000 a
year, and they have tried year after year to have the fee system
repealed, and salaries fixed for that and other officers, but the
county officers of the large counties are enabled through their
representatives to prevent it. I believe we should fix this thing
DEBATES OF THE CONVENTION.
455
here, and provide that these officers should be paid by salary, and
the fees should be paid into the county treasurer.
Mr. ELLIOTT. I call for a division of the question.
The first part of the amendment providing that all officers shall
be paid by fixed salaries, was adopted.
The remainder of the amendment was then adopted.
Section ten was adopted.
LIMITING TERMS OF OFFICE.
Mr. FLEMINGTON. I desire to offer the following to become
section eleven:
"The sheriff and treasurer of any county shall not be eligible to their res-
pective offices for more than four years in succession."
Mr. ROWE. I should think it would be well to include in this
the register of deeds. The gentleman from Griggs just stated
that in a county in Colorado this office is worth $50,000 a year. If
this officer is paid in fees there is a great deal of county money
passes through his hands on the way to the county treasury.
Under our present system, I believe, counties having a population
of 5,000, limit the salary to $2,000. I think the register of deeds
should be included in this amendment.
Mr. FLEMINGTON. Under the present system in this Terri-
tory the register of deeds accounts monthly with the treasurer,
and quarterly with the county commissioners, and I presume he
will be held to strict account under the system which may be
adopted here. I don't think we should provide for the limitation
of the term of office of any officer except where we deem it to be
absolutely necessary—where we consider it is for the safety of the
people that it should be made. I don't think the register of deeds.
should be included in this section.
Mr. ROWE. If the county treasurer can so arrange his books
that he can deceive the auditing board, a register of deeds can
operate in the same manner. If there are thousands of dollars of
county money to pass through the hands of the register of deeds
I am in favor of putting him on the same basis as all the other
officers who handle the public money.
Mr. POLLOCK. If the argument of the gentleman from
Dickey is good, we should also include the clerk of the court, the
county superintendent of schools and county auditor into whose
hands fees come. I am opposed to including in this list any more
that the county treasurer and the sheriff. We have in our county
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DEBATES OF THE CONVENTION.
a register of deeds who has the right qualifications, and people in
our county would feel it to be a grievance if they were not allowed
to elect him to that office as long as he will accept it. It requires.
a peculiar fitness, and when we fix it so that we cannot re-elect an
officer more than once or twice we are doing ourselves an injustice.
Mr. BARTLETT of Dickey. It was intimated when I spoke of
the court house ring that it was a scheme to get in. For my part
I am sixty years old, and I never offered myself for a county of-
fice in my life. I have had them pull on me, but I have stren-
ously refused. I have been fighting court house rings all my
life. I have seen so much corruption among the cliques that I
hope this motion will prevail so that we can get rid of them once
in awhile.
The amendment of Mr. RowE was lost.
Mr. CARLAND. Perhaps I don't exactly understand the
meaning of the word "eligible." I understand that a man may
be eligible and never hold an office at all. I would move an
amendment to the amendment to the effect that the officers who
have been mentioned shall not hold their offices for more than
four years in succession.
The amendment was accepted by Mr. FLEMINGTON.
Mr. APPLETON. I move to amend by adding the superin-
tendent of schools to the list. My reason for doing so is this--
in talking with a great many gentlemen in this convention it was
argued and shown that the superintendent of schools use their
office for political purposes, and not only that, but they abuse the
office by issuing certificates to daughters of men who have votes
and who can influence votes, that are not competent to hold a cer-
tificate, and they use it in other ways to abuse the office. I be-
lieve there is scarcely an organized county in this Territory but
has got several good men who could hold that position. I move
that the superintendent of schools be added to the list.
The motion of Mr. APPLETON was lost.
The section of Mr. FLEMINGTON was adopted.
The committee then rose, and the Convention adjourned.
EVENING SESSION.
Mr. ROLFE. I move that we now resolve ourselves into a
Committee of the Whole for the purpose of considering File No.
132.
DEBATES OF THE CONVENTION.
457
Mr. SCOTT. I move that we now proceed to consider File No.
143.
Mr. BARTLETT of Griggs. It is the report of the Committee
on Public Institutions and Buildings made this morning. The
Chairman stated that there was to be a minority report from that
committee. I presume the Convention is not desirous of shutting
off the minority, and that the courtesy will be extended to them
which has been extended in the case of other committees, and that
we will not consider this report now.
Mr. MARRINAN. As one of the minority on that committee I
desire to say that we have a report to make. The majority report
was not given to us till to-day. Since that time we have not had
an opportunity of meeting and framing our report, but we will
have it prepared and ready to-morrow, and we desire to have time
till to-morrow morning.
Mr. STEVENS. I move to strike out the words "one hundred
and thirty-two" in the motion and insert in the place thereof "such
business as may come before the committee."
Mr. BARTLETT of Griggs. I move to strike out the words
"such other business as may come before the committee."
The amendment of Mr. BARTLETT was carried and the original
motion was adopted.
File No. 132 was then considered.
Sections one and two were adopted.
TAXING CHURCH PROPERTY.
Section three was read as follows:
SEC. 3. Laws shall be passed taxing by uniform rule all property accord-
ing to its true value in money, but the property of the United States and the
State, county and municipal corporations, both real and personal, shall be ex-
empt from taxation, and the Legislature shall by general law exempt from tax-
ation property used exclusively for school, religious, cemetery or charitable
purposes and personal property to any amount not exceeding in value two hun-
dred dollars for each individual liable to taxation.
Mr. STEVENS. I move to amend section three by inserting
after the word "charitable" in line six the words, "To an amount
not exceeding $50,000." My object in making this amendment is
to prevent any religious corporation from holding over $50,000
worth of proper ty without paying taxes upon it.
Mr. JOHNSON. There are many religious corporations that
have branches. For instance the Catholic, or Methodist, or Pres-
458
DEBATES OF THE CONVENTION.
byterian church. Does that amendment mean any one piece of
property worth $50,000 or property belonging to one corporation?
Mr. STEVENS. I intend to mean that no religious body-not
the whole corporation-but no one church. In the case of Trinity
church.in New York City this question has caused a great deal
of trouble, and the members of this Convention-or at least some
of them, have received circulars asking them not to exempt church
property. Trinity church corporation in New York owns, prob-
ably, $10,000,000 worth of property, and the question as to how
to tax that property has become quite a question in New York.
I think in the exemption of religious and charitable corporations
we should fix a reasonable amount as a maximum-such an amount
as they would reasonably use in the exercise of the particular
vocation followed by that corporation. If religious, such churches
as may be necessary for their worship; such houses as might be
necessary for parsonages. If charitable organizations, they might
be exempt to a large amount, for in the poor of the Territory
everybody is interested. I have aimed to get an amendment so
that it would cover that point that has been fought over so much
in some other states.
Mr. MOER. I beg to offer the following as a substitute for
section three:
"The rule of taxation shall be uniform, and taxes shall be levied on such
property as the Legislative Assembly may prescribe."
M. LAUDER. I hope that the substitute just offered by the
gentleman from LaMoure will not prevail. It seems to me that
section three contains the correct idea on this question. This sec-
tion provides that laws shall be passed taxing by uniform rule all
property according to its true value with the exceptions that are
enumerated there. Of course the property of the United States
is exempt, and it would be folly for the State to tax its own prop-
erty, or the county or municipal corporations to tax their property.
This section says that "the Legislature shall by general law ex-
empt from taxation property used exclusively for school, religious,
cemetery or charitable purposes." It seems to me that that covers
the whole ground. The gentleman from Ransom has offered an
amendment here which was not seconded, but the purpose is to
limit in value the property belonging to either of these institu-
tions which are declared to be exempt. It strikes me that there
should be no limitation put on the values of such property as
shall be exempt, so long as it is used exclusively for the purposes
DEBATES OF THE CONVENTION.
459
enumerated in this section. The gentleman speaks of Trinity
church in New York. Fifty thousand dollars would not be a
proper limit. For example, you take the Roman Catholic cathe-
dral on Fifth avenue, and the ground alone on which it stands is
worth more than $50,000. The land and the building together are
worth from a quarter to a half million. It seems to me that it
would be bad policy to tax any of that property so long as it is
used exclusively for religious purposes-so long as no corporation
uses it or any part of it as a means of raising revenue. I would
be opposed to a provision which would permit any of these corpo-
rations from acquiring large amounts of property, renting them
out, or using them for purposes of raising revenue as they do in
some of the older countries. But so long as the property is used
exclusively for religious or charitable purposes, it seems to me
that it should be exempt. No tax should be placed on a man's re-
ligion, and none on his charity. The more charity the better, and
the more religion we have the better, if it is of the right kind. It
seems to me this section is worded well, and covers the ground as
well as it is possible to have it. I don't believe we ought to leave
it within the power of any Legislature that may come to tax
church property, or property used exclusively for church pur-
poses. I don't know what Legislature may be elected here, and
we don't know by what motives they may be actuated. We should
put it in the Constitution that all property used exclusively for
religious and charitable purposes should be forever exempt from
taxation.
Mr. BARTLETT of Dickey. I hope the amendment of the
gentleman from LaMoure will carry, for this reason-while I hold
that the churches are all right and I agree with the gentleman
that the more religion we have the better it is for the country, yet
I do hold that when people build churches that cost one to two or
three hundred thousand dollars, and then sell the pews so that no
common man can sit within that church unless he is a millionaire,
they should not be exempt. They put up their pews at auction-
their church property is free--but the plain citizen who may live
within ten rods of them has to go to the little church around the
corner, because he cannot put up the necessary amount to get into
the other house of God. I believe that when any church accumu-
lates property so that they can afford churches that cost more than
$50,000 to build, they ought to pay taxes upon them and I would
460
DEBATES OF THE CONVENTION.
•
be willing that the taxes they pay should all go to the poor of the
city.
Mr. LAUDER. The gentleman from Dickey speaks about sell-
ing pews. If the revenue derived from the sale of the pews is
appropriated or is used for any other purpose than paying the
necessary and actual running expenses of that church, then it is
not used exclusively for religious purposes, and under this section
would be taxable. He says that if the church building cost over
$50,000 it should be taxed. Now I don't believe the gentlemen.
who put their money into the Cathedral in New York City or the
gentlemen whose money built the church that the gentleman from
Ransom speaks of, ever used a dollar to better advantage than
they did when they put it into those churches. If they were rich
they used their money for a good purpose, and they should be en-
couraged in it, and simply because rich men invest their money in
this way, the public should not tax them for it.
Mr. STEVENS. I never allow anybody to outdo me on a ques-
tion of generosity. When I am wrong I am as willing to own it
up and admit it as anybody ever was in the world, and when I
have carefully read this section I believe the amendment I offered
would be wrong. I believe the word "exclusively" covers the
point which I intended to cover by my amendment, and when the
gentleman intimates what he does about what I said about church
property in New York, he forgets that the word "exclusively" was
not used in that case. There is a great corporation that is mak-
ing New York a great deal of trouble-not with the houses that
they have dedicated to worship, but with their other interests con-
nected with that great corporation, and these were the things that
I alluded to, and not to the church itself. The steeples of the
churches cannot be built too high for me, nor can the churches be
scattered too thickly over the land. I agree fully with the gentle-
man that no man ever invested a dollar in the building of a church
but what his dollar was contributed to at least one of the best in-
terests of society. I hope the motion of the gentleman from La
Moure will not prevail, but I hope the section will be allowed to
stand as it was originally framed. I am the more impressed in
this direction when I see the opposition it meets. I have not for-
gotten God in the Constitution. I hope the amendment will not
prevail.
Mr. MOER. I don't know what God in the Constitution has
to do with the taxation question. I do not seek to prevent the ex-
DEBATES OF THE CONVENTION.
461
emption of church property. Nothing of the kind; but it seems to
me that the gentlemen have wandered from the point. I seek to
substitute a section that is found in the constitutions of most
western states, Wisconsin practically the same. Iowa, Minne-
sota, Nebraska and Kansas have clauses that are very similar.
This clause simply leaves the matter to the Legislature to say
what taxes shall be levied, how, and on what property. That is
all there is to it. It does not attack the church that I know of.
I think the gentleman from Richland wandered from the point
altogether, because he was talking on the proposed amendment of
the gentleman from Ransom, while the question before the House
was the substitute that I offered. The only objection I have
to section three is that it lays down an iron-clad rule of taxation
-no matter what the future circumstances of our State may be-
no matter what the necessities of the State may be, the Legisla-
ture can never change it. Taxation laws should be elastic, so
that they can be changed from time to time if the circumstances
demand it. Under such a clause as this which I have introduced
the western states have prospered-their legislatures have had full
power to tax all property or none, and it seems to me we cannot
do better than to follow the example of these states that are strong
and wealthy. It simply leaves the matter to the Legislature
—where the power of taxatien should be.
Mr. LAUDER. It seems to me that an effort is being made to
put this matter in a light which it should not occupy. Ordinarily
I grant the Legislature is the proper power to determine ques-
tions regarding taxation. But will the time ever come in the opinion
of the members of this Convention, when property that has been
dedicated freely to religious or charitable purposes, should be
placed under the burden of taxation? Will that time ever come
in the history of this State. I don't think it will.
Mr. TURNER. I have heard on all hands that these United
States are pre-eminently the land of liberty, and I have to some
extent accepted that view of the question. But I find a resolu-
tion reported by this committee which indicates that it is not a
land of perfect liberty. I am in favor of the amendment of the
gentleman from LaMoure. I am in favor of leaving this matter
to the Legislature. I am in favor of leaving it to the Legislature
because I don't think it should be fixed by an unalterable law, or
a law that will be as difficult to alter as will be the Constitution
of the State. I believe that I should support the religious convic-
462
DEBATES OF THE CONVENTION.
tions and views which I conscientiously hold myself, and that I
should not ask my fellow countrymen to support any religious
denominations to which I belong, unless their contributions were
the contributions of free will offerings. I believe as a matter of
principle that the church and the State should be separate, and that
they should be unalterably separated. I believe as a principle
that if we exempt taxation on church property, it is simply an-
other way of taxing the people for the support of the church.
Exempting me from taxation which I should bear in common
with others, is simply taxing others to pay that share of taxation
which I should pay. I hold as a principle of the church, and as
one who believes that the churches are doing all that any gentle-
man in this House can claim they are doing, that as a matter of
right and justice those who do not believe in church organiza-
tions, should not be compelled to contribute one cent by law to
their support. Holding that, I believe every religious denomina-
tion should pay a just, fair and equitable amount of taxa-
tion-they should pay their just proportion in accordance
with the amount of property they have. What difference.
does it make to me as a member of a church whether these taxes
are exempt by the state, or whether I am compelled to pay as a
member of the church a certain portion of that taxation? It
makes no difference to me, from the fact that I have to bear my
share of the burdens of the State. I might as well bear a portion
of that on the church property of which church I am a member,
as bear it on the personal property which I possess. I don't think
it fair to those men who are not members of any church-to those
men who in fact do not believe in our church organizations and
our church creeds, that they should bear a proportion of the taxes
of the State that should be levied upon the property that belongs
to the churches. I believe that it is only another way of connect-
ing the church with the State. We do not connect the church and
State by saying-"you shall contribute so much towards support-
ing these institutions," but we do connect them by saying that the
property of the church shall not contribute its share of the taxes.
I think if you will look into this matter you will see that it is
only another way of taxing men who don't believe in our churches
and who are not willing to support them, and compelling them to
contribute a certain amount which we should bear. These matters
should be left to the Legislature, for we don't know what the cir-
cumstances may be in the future which will call for action, and if
DEBATES OF THE CONVENTION.
463
the Legislature exempt church property for a time, they may see
in the end as they are seeing in other countries now, the evil of
the system. I believe that if the religious sentiment of the people
was stirred up in this matter they would see that it was not fair,
square justice which religion itself should give to the people, be-
tween every individual taxpayer, and the property that should pay
the taxes.
Mr. COLTON. I think the mark is so far off that they don't
see it. What is the most danger-of the church coming here with
a mob to carry the Legislature or something else? We can get
scared over a few churches for fear their buildings won't be taxed
and at the same time let a great many things that are much larger
slip past us. The danger of leaving so many things to the Legis-
lature is the greatest danger we have to fear, and when we fix it
here that the Legislature shall have full power to tax or not to
tax one thing and not another, and make the taxes as they have a
mind to, those who have the most money and property will pay
the least taxes. You need not be afraid of the churches. Neither
will there be a Legislature that dare stand up and tax the churches
for years to come-not while any of us live. They dare not come
here and do that and face any denomination where they live.
When you get it so that they can exempt their buildings, there is
no danger of our being oppressed by it. But here if we don't
have this section as it is we may go back seven or eight years
hence where we have buried our fathers and mothers and find
their tombstones gone and a crop of wheat on their graves—the
cemetery sold for taxes. If this clause is not in here they will be
-able to tax graveyards; if you give them the power to tax them
you give them the power to sell the land for the non-payment of
taxes. We want some provision here so that we will know what
is going to be taxed and what is not. We want this done uni-
formly. This section provides for taxation uniformly, and it ex-
empts what is used for religious and charitable purposes. I hope
the substitute will not prevail.
The substitute of Mr. MOER was lost by a vote of 37 to 33.
GROSS EARNINGS TAX.
Mr. HARRIS. I wish to offer an amendment to this section,
and in doing so I desire to say the question of taxing church
property was a blind, and that the meat in the cocoanut was
464
DEBATES OF THE CONVENTION.
not the churches. I understand that the gentleman from Ward
would like to see the section adopted as it is, and he knows the
position I took in the committee. I wish to strike from section
three all of line one and part of line two as far as the word
"money," and put in the place thereof the following: "The rule
of taxation shall be uniform, and taxes shall be levied on such
property as the Legislative Assembly may prescribe."
Mr. WALLACE. The gentleman from Burleigh has well said
that this discussion regarding church property was entirely a
blind. This is simply the question again that we fought over in
the matter of corporations. This is to leave the matter of taxa-
tion over so that a different rule will be required concerning cer-
tain property.
Mr. BARTLETT of Griggs. It strikes me that my colleague
is as far off as the discussion on the other point, if the position
that the committee took presents an indication of what the sec-
tion means. As the gentleman from Ransom said, I would go.
as far as anybody in favor of churches, and I would like to see
them so thick that he might wander inside one occasionally. I am
heartily in favor of this amendment, to leave it to the Legislature
what classes of property shall be taxed. Here it says all prop-
erty. It compels the Legislature to provide laws taxing all prop-
erty. I am not in favor of the Henry George plan of taxation,
but we should leave this question of taxation open, so that if the
Legislature wishes to adopt this plan or any other, it can do it.
For years and years this country has been taxed and lived under
this same provision, requiring the Legislature to tax all property,
and it is while living under that provision that the farmers are
generally kicking and saying that taxation is not uniform. They
say that the poor man is paying more than his share of the taxes.
That is unanimously the cry. I say we should leave this open to the
Legislature to devise any means in their power to most justly tax
the property in the State. Where they wish to exempt a certain
class of property they should have the right to do so.
If they
want to raise all the revenue on land, let them do so.
It is per-
fectly safe to experiment. You cannot have any more unjust tax
laws than you have now. You may change them at every session.
of the Legislature, and in a century you might get something that
would be more equitable than the present system, but you could
not get anything more unjust. I believe that the man who has all
the property that he has, in sight, pays the taxes, but the moment
DEBATES OF THE CONVENTION.
465
a man gets an accumulation of property he escapes taxation. I
say let us leave it to the Legislature.
Mr. HARRIS. As I stated in offering this amendment I wish
to bring the matter of taxation squarely before the Convention,
and I want it settled on its merits, and I propose the thing shall
be brought to the attention of this Convention. I believe with
the gentleman from Griggs, this matter should be left to the Leg-
islature. There is another point that has not been brought out in
connection with this subject, and that is whether this State under
any circumstances will ever be in favor of the gross earnings tax
system for the railroads. That is the question to settle in this amend-
ment and in this section. There is no other question in it. There
is not a man here who believes that the Legislature will ever ex-
empt property from taxation. This amendment or a similar clause
has been in force in Wisconsin, and has there been any complaint
that property has not been taxed there? It has been in force in
Iowa, Nebraska, Kansas and Minnesota. Has there been any
question raised as to property not being taxed in those States?
Not a complaint, and as I have said the whole question comes to
this-will we leave it to the Legislature to say if in the future such
conditions exist that this State wants to put a gross earnings tax
upon railroads, it will have the opportunity to do it. While I am
up-and I don't wish to take the time of the Convention-I would
like to say a few words about this gross earnings tax. The gross
earnings tax, based on the gross earnings of 1888 was over $167,000
and North Dakota gets out of that, exclusive of what goes to the
counties, $53,793. There is a provision in this report which pro-
vides that railroads shall be taxed-the franchise and road bed and
right of way at not less than $3,000 a mile. This tax at $3,000 a
mile on the railroads of North Dakota would amount to about
$6,000,000 assessment and at three mills or if you will, four mills,
the limit which will be placed in our Constitution, would raise
$24,000 of tax, while this year the northern part of the Territory
is receiving over $53,000. As I stated in the beginning, the only
question before us is whether we shall leave this question to the
Legislature that in the future they may enact a gross earnings tax,
ane that is all there is in this amendment.
Mr. LAUDER. When I was discussing the question of the
taxation of churches and charitable institutions I had no idea that
this section would bring up the question of gross earnings. I
can not see the occasion for it. But it seems that the gentlemen
30
466
DEBATES OF THE CONVENTION.
are so much in favor of gross earnings, and are so frightened over
this clause that provides that all taxes on all property shall be
uniform, that they are unable to contain themselves, and must
give expression to their fright before we get to the place where
there is any danger of their getting hurt. Now, it always struck
me as peculiar that men would go before committees and legisla-
tures and say that there was no way in the world-men repre-
senting railroads—that there was no way in the world by which
you could get so great a tax out of the railroads as the gross earn-
ings law. Did any member ever hear a railroad man or a railroad
president advocate any other system? Then we must infer that
the railroads are anxious that this Convention shall put in this
Constitution a clause under the terms of which the railroads will
have to pay the largest possible tax. Is not that logical? The
gentleman has given us some figures here. He says we get so
much money under the gross earning law, whereas by direct tax-
ation we get so much less. Was not that a fair statement-under
his theory? But he infers that under a taxation plan that assessed
the railroad property, the railroads would pay only the state tax.
Your property and my proyerty-if we have any-not only pays
the state tax, but the county and town and city tax--if we live in
the city and school tax. To show you how absolutely unfair
city—and
these men are in their statements and how they try to get this
Convention to form erroneous conclusions and then adopt them,
look at the figures. There can be no harm in putting the rail-
roads on the same footing with everybody else here. Let their
property be assessed. I am not seeking for this $3,000 clause,
but there can be no system preferable to a system that is uniform
--that assesses the property of the millionaire the same as the
property of the railroad or farmer-put them all on the ground floor
where there will be no advantage of one over the other. The gen-
tleman from Burleigh says let us leave this so that the Legisla-
ture can change it.
Gentlemen, I ask you in whose interest it is sought to leave it
in that position? Is it in the interest of the lawyer? His library
is on the shelf in his office, and is always taxed. None would ad-
vocate a law that would not tax those books at their value. Is it
sought to be incorporated in the interest of the farmer? His prop-
erty is always in sight. Would anybody go into the Legislature
and advocate a measure that would not tax the property of a
farmer that is in sight at just what it is worth? No such measure
DEBATES OF THE CONVENTION.
467
has ever been advocated in any legislative hall. Then I ask you
in whose interest is it--who is it that wants this section amended
so as to leave it to the discretion of the Legislature to regulate
this matter of taxation? In whose interest is that section sought
to be put in here? Is it the farmer, the lawyer, physician, mill-
owner? No. Every man in this Convention knows in whose in-
terest it is sought to be put in there. It is in the interest of the
railroads, who will be better able to escape thereby their just pro-
portion of taxation. That is the whole purpose of it. I don't
want to tax the railroad any more than I am willing to be taxed
myself—not a dollar, not a cent. But I demand that they pay
just the same in proportion to their property as I do-just exactly
the same. The argument is made here that the gross earnings
tax is the only tax that is based on justice, because it is said if the
company has the road here and it is not profitable—if they are
losing money they should not be taxed, because their property is
not worth anything. When the assessor comes around to tax your
property, if you were to say, "Here, my crop was a failure and I
did not make a dollar, and my farm is not worth anything; I won't
list it this year for taxation," what would the assessor say? What
would public opinion say? Is not that exactly the case with the
railroads? It is on such spurious arguments as these that it is
sought to palm off on you the clause of the gentleman from La
Moure as the sum total of all that this Constitution is to contain
on this subject. I want to say to the members of this Convention
that if you want to adopt a system that will make all taxes just
and uniform and fair-that will not tax one man's property at the
expense of another man, and leave no loophole for any corpora-
tion to escape, then stand by this section. This section exempts
no property, except such as in my judgment should be exempt.
Mr. PARSONS of Morton. We have one affliction in this
country that is a great deal worse than any scourge that ever
visited the land-worse than cholera, yellow fever or smallpox—
and that is the scourge of corporations. My record on this floor
is known to you all. And what I say won't, I think, be misunder-
stood. What I have said is the legitimate deduction to be made
from the remarks that have been made on this subject. If there
is any one influence that has developed this country-if there is
any one thing to which we are indebted for the luxuries we enjoy,
it is the corporations. I will join hands with any one in forcing
corporations to the mark-so to speak, conforming to their charter
468
DEBATES OF THE CONVENTION.
rights-not to depart therefrom. But I will not be one to join in
oppressing them, because they are necessary to the welfare and
development of the country. I was well pleased with the estimate
made by the gentleman from Burleigh in regard to taxation.
When this matter came up I was heart and soul for this $3,000
assessment, but I went to figuring and found out that if we
went to the maximum we would not get as much tax as we are
getting to-day. We would always have to assess to the maximum,
but under the gross earnings system, the road's business is increas-
ing, and we would draw a larger revenue than under the assess-
ment plan. Now as to the gentleman's remarks as to why the
railroads seek this particular form of taxation. If you and I, as
the gentleman from Richland stated, had poor crops, we would
like to have our taxes rebated. If we have excellent crops we
would be willing to pay a good heavy tax. The railroads are
placed in the same position. They say, "so long as we are mak-
ing money we will pay the tax gladly, and we would like to have
this matter arranged so that if our earnings fall off our tax would
keep along with our earnings." To some of these gentlemen
there seems to be a steal in that there is robbery in it—and yet
there is none of us that think the wheels of progress are going to
turn backward. In some isolated cases the taxes might drop
down, but in nine cases out of ten the taxes would steadily in-
crease.
If I understand it we are after the dollars. If we can get more
from the corporations by that system of taxation, I see nothing
wrong in taking it. If it accomodates them to adopt this system,
I see no injury done to any man. Now I acknowledge that it
would never do to adopt this system generally-apply it to all
persons. But here is a corporation. I don't wish to champion the
corporations, and if there is one thing I have said more than an-
other it was that they were able to take care of themselves.
I am
satisfied that they will pay their taxes whatever way they are as-
sessed, and perhaps they will pay just as much in proportion to
what they are worth as a great many rich people, for I don't think
that class of people pay the most taxes in proportion to what they
are worth. The question is-will we adopt an iron clad rule which
will prevent enterprises being developed and prevent the develop--
ment of railroads in North Dakota? The hardest time for a new
road is when it is just starting. It is the hardest time of its exis-
tence. Do we wish to cripple these new enterprises? Whatever
DEBATES OF THE CONVENTION.
469
system of taxation you adopt I don't think you will cripple the
Northern Pacific or the Manitoba, but to adopt an iron clad rule
which will cripple young roads seems to me to be a foolish policy,
until we come to that time in our history when we have our country
fully developed and roads scattered throughout the State in all
directions. Then the question can be viewed from a different stand
point. I want to be understood as not standing here as the cham-
pion of corporations, but I don't propose to be frightened by the
word "corporation." I claim that their rights should have the
same calm consideration as the rights of any other interest that
may exist in the State.
Mr. HARRIS. When the gentleman from Richland tried to-
run the Convention against the taxation of churches, I intended
to smoke him out, and I mentioned the gross earnings tax so that
it might be brought fairly and squarely before this Convention.
He has held me up as a railroad attorney. I am not an attorney
at all, and I don't ride on railroad passes. I pay my full fare and
have nothing to do with railroads. I am not an attorney. The
gentleman has questioned my figures. I stated plainly in the be-
ginning, and I take these figures from the Treasurer's books down
stairs, that the railroads in North Dakota-the Northern Pacific,
the Manitoba and a few miles of the "Soo" line-paid into the
treasury of this Territory on the basis of the 1888 gross earnings,
$167,767.97. Two-thirds of that, with the exception of the North-
ern Pacific's, went to counties along the line. The Northern Pa-
cific tax goes 70 per cent. to the counties, and the Territory re-
ceived out of that amount, $53,793.51. That was one year's tax.
One hundred and fourteen thousand dollars of that goes to the
counties along the line; $53,000 remains in the Territorial or State
Treasury, and that $53,000 is more than you will raise by taxing
these lines at $6,000 a mile and four mills on the dollar. I do not
wish to take the time of this Convention in discussing this sub-
ject. I only wish to stand by these figures which are cold, hard
facts.
Mr. LAUDER. The gentleman from Burleigh speaks about
smoking me out on this question. I have had some discussion
with the gentleman from Burleigh on this subject in the commit-
tee. I had not any doubt but that he would be smoked out of his
hole, and that the Convention would see him in his true light be-
fore we got through with him. But I was not prepared to see
him exhibit himself quite so soon. I cannot see, as I said before,
•
470
DEBATES OF THE CONVENTION.
what this section has to do with the taxation of railroads. But as
we are on the subject it might as well be discussed here as any-
where else. The gentleman from Morton says there is a war on
railroads. In the name of common justice, where is there any
war on railroads in this section or any other section of this ar-
ticle? Where is the war on railroads? What is asked of them?
They are asked simply to pay their taxes like any farmer or
merchant or mechanic in North Dakota. That is what is called
I say there is no war at all. It is simply a provision here
that they shall be amenable to, and obey the same law as the rest
of us, and that is what is called war.
war.
The amendment of Mr. HARRIS was lost by a vote of 30 to 33.
Section three as reported by the committee was adopted.
ASSESSING LANDS.
Section four was read as follows:
"Land and the improvements thereon shall be separately assessed. Culti-
vated and uncultivated land of the same quality and similarly situated shall be
assessed at the same value.'
""
Mr. HEGGE. I move to strike out the words: "Land and the
improvements thereon shall be separately assessed."
Mr. NOMLAND. If this section be adopted we shall lose a
good deal of taxes.
The amendment was adopted.
Mr. SPALDING. I move to strike out all that part of the sec-
tion that remains. I make this motion so that we may not have a
section in conflict with the one that we have just passed. We
have provided that the Legislature shall pass laws taxing by uni-
form rule all property according to its true value in money, and if
we let this section stand as it is, it will conflict with section three.
There is no standard of value of land and improvements except
its value in money. Is there anything that is more emphatically
worth money in this state than improvements on land? Is there
a man here who will question the fact that improvements on land
are worth money, and I don't see how a man can consistently vote
for this section after having voted for the other.
Mr. BARTLETT of Griggs. I hope the motion to strike out
will prevail. I thought that when section three was adopted they
would find out as they came to the next section what they had
done, and now I think you have. To make this consistent you are
obliged to strike out the last half of section four, because the as-
DEBATES OF THE CONVENTION.
471
sessor, or the Legislature, or any one else, cannot possibly comply
with both of them.
Mr. SCOTT. I don't see the force of the arguments of the gen-
tleman from Griggs. He says it is inconsistent with section three.
Is it because the cultivated land is worth more than the unculti-
vated? I believe that it is pretty well established in this country
that leaving out the improvements and improvements according
to this section will be taxed just the same-and only taking into
consideration the cultivation, uncultivated land is worth as much
as cultivated, if not more. I don't believe that it will be con-
tended otherwise by any practical farmer. So there is nothing
inconsistent between these two sections. Section three says that
all property shall be taxed uniformly. Section four says that cul-
tivated and uncultivated land of the same qualify and similarly
situated shall be assessed at the same value. They will aggregate
as a rule the same, so that although I don't see why this section.
should be in here, I don't believe the sections conflict. I don't
believe that now the cultivated land is taxed more than the uncul-
tivated. It should not be, it is not worth more.
Mr. STEVENS. I believe in calling things by their right
names. I think this clause is put in there more particularly to tax
the lands of non-resident speculators equally with the lands of
actual farmers. I believe that is the meaning of this section, and
for that reason I am going to vote for it, and for any other section
that will enable us to tax the uncultivated lands of speculators as
high as the cultivated lands of the farmers.
Mr. MOER. The sentiment is all right, but the trouble is that
it conflicts absolutely with section three. Take for instance a cul-
tivated piece of land—a section just broken and backset, and that
work has added a value of $2.50 an acre to the land. A section
immediately adjoining it must be assessed at the same value, while
you have a section of this article immediately preceding this,
which states that it shall be taxed, not at the same price as the cul-
tivated piece, but at its true value in money. Therefore these two
sections are in conflict. If there is any way that we can tax
speculators' land, I am in favor of it, but I think these two sec-
tions are in conflict. I therefore shall vote for the amendment of
the gentleman from Cass.
Mr. NOMLAND. I think that what is left of the section is just
about what we want. I think that speculators and farmers would
have equal justice. I know that there is a tendency in our country
472
DEBATES OF THE CONVENTION.
to tax speculators about one-third more than the actual farmer.
That is not in accordance with the law, but there are a number of
assessors that do it, and if this section is adopted they would have
equal justice with the farmers.
Mr. MATHEWS. I take exceptions to what the gentleman
from LaMoure says about the value of broken and unbroken land.
In Grand Forks county, land that is uncultivated is worth more
than that which has been cultivated for five or six years.
Mr. MOER. Then why tax the farmer for his cultivated land
which is less valuable, as much as the speculator for his unculti-
vated land which is more valuable? If one piece is less valuable
than the other, you must tax them both alike according to this
clause. If all land is taxed at its actual money value and the un-
cultivated is the more valuable, you don't need this section. If
you attempt to say that two pieces of land of unequal value shall
be assessed alike, you say that which will conflict with section.
three, however you look at it.
Mr. STEVENS. This does not say that lands that are culti-
vated and those which are uncultivated shall be taxed at the same
price, but it says that two pieces of land similarly situated and of
equal value shall be taxed equally. The only question is that
the cultivation of the land shall not be taken into consideration
in fixing the value. The question is, shall the cultivation of the
land increase the price at which it shall be taxed. That is the
only question there is in it. Cultivated and uncultivated lands of
the same quality and similarly situated shall be assessed at the
same value. If they are of equal value, one being plowed and
one not plowed, they shall be assessed at the same price.
Mr. SPALDING. I disagree with the gentleman from Ran-
som. The effect of this section will be to take any discretion which
the assessor might have, out of his hands. Here might be a piece
which was full of foul weeds to such an extent that it is not worth
half the price of a piece alongside that has not been cultivated,
and this section says that they shall both be assessed alike. Also
it says that a section of land which has just had $4 or $5 an acre
spent on it to plow, and without any question is worth from $3 to
$5 an acre more than a similar piece located side by side, and not
under cultivation, shall be taxed the same. The question is not
whether land is worth more uncultivated, or whether non-residents
shall be taxed more than residents, but whether we shall tax
lands according to their true value. That is the question, and
DEBATES OF THE CONVENTION.
473
this section takes the discretion out of the hands of the assessor
in assessing it. It takes away any question of value, and says, ar-
bitrarily, it shall be taxed the same and valued at the same value,
whether it is worth half as much or twice as much as another
piece.
Mr. BUDGE. Any land in the Red River Valley uncultivated
is worth more than cultivated.
Mr. POLLOCK. In view of the discussion that has been had
on this section, I am certainly opposed to it, especially in view of
the interpretation that is placed upon it by the gentleman from
Ransom. We are forbidden in the Omnibus Bill from discrim-
inating as to the owners of land whether they are residents or
non-residents, and if that is the spirit of the section it should be
stricken out. If the gentlemen will turn to the Omnibus Bill,
page three, they will find the following: "The lands belonging to
citizens of the United States residing without the said states shall
never be taxed at a higher rate than the lands belonging to resi-
dents thereof."
Mr. STEVENS. I did not say that a non-resident's land should
be taxed any higher than that belonging to a resident, but I said it
should be taxed the same. I know that our present Organic Act
and the Enabling Act provide that there shall be no discrimina-
tion between residents and non-residents, and that is my point,
and the attempt to turn it on to anything else is simply clap-trap.
Mr. POLLOCK. If the gentleman takes a different position,
then the objection that I made should not be urged against him.
At any rate the Legislature should have the right to regulate this
as the circumstances may warrant.
Mr. BARTLETT of Dickey. That clause says that land simi-
larly situated shall be taxed alike. I apprehend that if land is
turned over and plowed it is not similarly situated. That is my
idea of it.
The vote on Mr. SPALDING'S motion to strike out the section as
amended was lost.
Mr. CAMP. I move the following: "Cultivated lands shall
not be assessed higher than uncultivated lands of the same qual-
ity similarly situated."
The motion was lost.
Mr. SPALDING. I move to amend by inserting in the third
line, afther the word "shall," the following in lieu of what is now
there: "Not be assessed at the same value."
474
DEBATES OF THE CONVENTION.
Mr. STEVENS. I move as a substitute that the section be
adopted as amended.
Mr. SPALDING. I think that uncultivated land similarly
situated should not be assessed at the same value.
Mr. STEVENS. It is simply another way of gaining time for
the purpose of killing this section, and I hope you will just vote
down every amendment they offer till you get down to the origi-
nal section which we should adopt.
The proposed amendments were then voted down and the section
adopted.
Section five was adopted.
APPORTIONING TAXES.
Section six was then read as follows:
SEC. 6. All property exempt as hereinafter in this section provided, shall
be assessed in the county, city, city and county, township, town, village or dis-
trict in the manner prescribed by law. The franchise, roadway, roadbed, rails
and rolling stock of all railroads operated in this State shall be assessed by the
State Board of Equalization at their actual value, and the same shall be ap-
portioned to the counties, cities, towns, townships and districts in which said
roads are located, in proportion to the number of miles of railway laid in such
cou ties, cities, towns, townships and districts; Provided, That for the pur-
pose of assessment and taxation said railroad shall not be valued at less than
$3,000 per mile.
Mr. SCOTT. I don't understand as to what proportion of this
tax shall be paid to the counties. It says:
"And the same shall be apportioned to the counties, cities, towns, town-
ships and districts in which said roads are located in porportion to the number
of miles of railway laid in such counties, cities, towns, townships and districts.'
It seems to me that the proper way is the way we have at
present. The Territory collects the tax, and pays over to the
county that portion which is not kept in the Territorial Treasury.
I don't see how you are going to pay any to the township or city,
because the proportion would be so small that it would not be
worth while taking into consideration. I think the whole tax
should be paid into the county treasury.
Mr. LAUDER. I think the suggestion made by the gentleman
is a good one. Though a member that submitted that report I am
in favor of amending this section.
Mr. PURCELL. I move that all after the word "district" in
the ninth line be stricken out for the reason that we are placing in
the Constitution a value upon land or upon the railroad companies'
DEBATES OF THE CONVENTION.
475
property. In many instances, if I understand it, it does not cost
nearly $3,000 a mile to build a railroad. In many instances it can
be constructed for one half that, and that portion of the lands of
the railroads lying west of here might not be as valuable as other
land, and for that reason I move to have it stricken out.
The amendment of Mr. PURCELL was lost.
Mr. CARLAND. There is an expression in line two that I
think is not applicable to our law. It is peculiar to the laws of
California, and I should judge that the section had been taken
bodily from the constitution of that state. I refer to the term
"city and county." We have no such political organization here.
I move that it be stricken out.
The motion was carried.
The section was then adopted.
THE POLL TAX DISCUSSED.
Section seven was then read as follows:
SEC. 7. The Legislature may provide for the levy, collection and disposi-
tion of an annual poll tax of not more than three dollars on every male inhab-
itant of this State over twenty-one and under fifty years of age, except paupers,
idiots, insane persons and Indians not taxed.
Mr. NOBLE. I move as a substitute for section seven the fol-
lowing: "The levying of taxes by the poll is grievous and op-
pressive; therefore the Legislature shall never levy a poll tax for
county or state purposes."
Mr. JOHNSON. I move to strike out all that portion of the
proposed amendment before and including the word "therefore."
Mr. PARSONS of Morton. It would seem to be a bright idea
if the poll tax were eliminated. It has been a question which I
suppose will be solved here shortly, whether we desire a uniform
system of taxation or not. Here is a relic of the old fedual times.
This idea of taxing people so much a head-taxing people who
never ride in a wagon, never use the roads from one year's end to
another-taxing them to keep up the roads, is an outrage. If you
are in favor of justice—if that is what you want, it is a poor rule
that won't work both ways. There is no more unjust tax ever
levied in this country than the poll tax. I hardly expect to see
the substitute carry. I claim that the one who uses the road
should be the one to pay the tax in proportion to the property he
This is put in this section at three dollars a day. It means
that the poor man will go and work out his tax. The rich man
owns.
476
DEBATES OF THE CONVENTION.
will pay his three dollars. There are men on this floor who would
not sell their services for less than ten dollars a day, and this
means that we are taxing the poor man two days' work, and the
other man less than one-third of a days' work. If we assessed a
poll tax in proportion to what each man earned there would be a
little more show of justice. But why say that the money to re-
pair the roads shall be raised by direct taxation? There is no one
thing that has come before this House that is so unjust as this.
measure, and I hope sincerely that the amendment will carry and
that the poll tax will be forever banished. I don't expect it-the
prejudice in favor of this measure is so strong, but I would like
to hear some one get up here and show reasons why the poll tax
theory is one that is just and right.
Mr. BARTLETT of Dickey. Here is the man. The gentleman
puts the amount in his remarks at the extreme allowed in this
section. I have never known of a single poll tax that exceeded
one day's work, and I believe that it is right and just. Any man
can afford one day and that is as much as ever will be charged.
Every man, old and young, rich and poor, has to pay a road tax
on his land, and in every state that I have lived, there has been a
poll tax. It has generally been $3 on a quarter section. The float-
ing population that has the benefit of our roads can well afford to
pay one day's work. It is right-it is just and I hope it will pre-
vail.
Mr. WALLACE. It is the only way you can get tax from a
good many men.
Mr. PARSONS of Morton. I would like to ask if every poor
man in this State does not pay more taxes in proportion to what
he is worth than the gentleman who has just spoken here. There
is no one who can stand up and deny this. It is rank oppression;
it is not just and the theory which we have asserted in the other
section of this article which says that all taxes shall be uniform
and in proportion to the property, is at variance with this. You
may say what you like, the poll tax is not levied in accordance
with the amount of property that a man has got. I know that
men will vote here for this who will not pay the taxes which they
should justly pay for the support of the roads, but would rather
put it on the poor man if possible. The very men who will advo-
cate the theory of taxation by which a man should pay in accord-
ance with the amount of property he has, now turn around and
DEBATES OF THE CONVENTION.
477
advocate the putting a tax on a poor man whether he has any
property or not.
Mr. BARTLETT of Dickey. I think it is quite possible that
if I am not rich I am worth more than some men, and the gentle-
man holds that those men should not pay any taxes. I have
worked all my life for the public benefit, and every year since I
have been in Dakota I have put a good deal more on the roads in
the county where I have lived than the law requires. I am full
of public spirit. Every man who knows me knows that. All they
have to do is to ask for my team and it goes. But I do say that a
man who will drivel his life away and loaf around without earning
anything, and will thus keep himself poor should give at least
one day in the year to the roads in the district in which he lives.
Mr. SPALDING. I am thick-headed probably, but I don't
know what the subject of roads has to do with the poll tax. I
have the idea that the theory of the poll tax is that every man
who lives under the protection of this government, and under the
protection of its laws that are passed by its legislative bodies,
bear his ligitimate portion of the expenses incident to the passing
of those laws and enforcing them. My idea is that that is the ob-
ject of the poll tax--to reach those who are protected by its laws,
but still have no property on which to levy a tax. I believe that
is the only principle on which a poll tax is based.
The substitute of Mr. NOBLE was lost.
Mr. BLEWETT. I move that all after the word "tar" in the
second line be stricken out.
Mr. MOER. I move to strike out the whole section.
Mr. BARTLETT of Dickey. I think this is one of the most
useful sections we have in this Constitution.
The motion of Mr. MoER was lost.
Mr. NOBLE. I move that in the second line the words "three
dollars" be stricken out and $1.50 be inserted in its place.
The motion was carried.
The section as amended was then adopted.
Sections eight and nine were then adopted and the committee
rose.
Mr. LAUDER. I move to adjoured.
The motion prevailed, and the Convention adjourn.
478
DEBATES OF THE CONVENTION.
THIRTY-FIFTH DAY.
BISMARCK, Wednesday, August 7, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
THE PUBLIC INSTITUTIONS.
Mr. WILLIAMS. I move that we proceed to the consideration
of the report of the Committee on Public Institutions and Build-
ings, as well as the minority report. The majority of the com-
mittee made their report yesterday, and it was agreed to them
that the minority should have time to submit their report. That
report is here now.
The motion was seconded by Mr. MILLER and carried.
Mr. MILLER. I move that we adopt as a whole the majority
report of the Committee on Public Institutions and Buildings,
known as File No. 143.
The motion was seconded.
Mr. BARTLETT of Griggs. I desire to offer the following as
the first section of the report:
"The following article shall be submitted to the vote of the people as a
separate article as provided by the Schedule."
Mr. BARTLETT of Griggs. The unusual manner in which
this question has been brought up was unexpected by me.
I am
well aware that I represent the opinion of the minority on this
floor this afternoon, and as far as I am concerned I bow to the
majority. However, you may have obtained that majority, you
have it. Now I ask in behalf of at least thirty members, and I
think more I ask in all fairness that you adopt this section, and
that this matter be submitted separately, that the people may have,
if they wish to locate these institutions, that they may have a
right to do so. Refuse this section and you compel at last thirty
members that sit in this Convention to-day to refuse to sign your
DEBATES OF THE CONVENTION.
479
Constitution you compel at least thirty who have sat here from
the Fourth of July until now, trying to do their duty, to go home.
and say to their people that they have been unable to accomplish
it, and to ask their people to refuse to endorse their work. I don't
believe that this Convention can afford to do this. Refuse this
section-refuse to submit this matter separately, and you forever
bar all compromise with the minority here, which I think is a
respectable minority. Refuse it, as I say, and you compel us to
take the steps that we here and now state that we do not wish to
take, and would much rather not take. Refuse this, and the re-
publicans in this Convention endanger the success of the republi-
can party in this new State this fall. You may smile, but it is a
fact. We know that not only have the votes of the majority been
obtained by every means known to the power of corporations, by
promising and farming out so far as that influence could go, every
office and position on the State ticket this fall-we know that and
are satisfied of it. Refuse this section, and you compel at least
thirty members of this Convention to join with any party-to join
with any alliance that will forever and forever sit down and per-
manently sit down on the rule of corporations in this State. Gen-
tlemen, I ask in all humanity-I ask, I plead it, that you accept
this provision.
Mr. POLLOCK. I am in favor of this amendment, and I cer-
tainly hope that it will be incorporated as the first section of this
article. The people of this incoming State have not expected that
these institutions were to be located. They have not expressed
their desires or wishes on this subject. What is fairer, what is
more in accordance with the wish of the American people, than
that they shall decide the question for themselves? They have a
right to determine it, and unless they do it by their representatives-
and we are not their representatives to decide this question-they
have a right to do it at the polls. Unless they have this privilege
as the gentleman from Griggs has said-it may endanger the adop-
tion of this Constitution.
Mr. MATHEWS. I can endorse all that has been said by the
gentlemen who have spoken. I am in favor of this amendment,
and not in favor of our saying where the buildings shall be located.
I don't think that our people want us to do it, and I am opposed
to it.
Mr. JOHNSON. This is an interesting moment, and I fear a
sad day in the history of North Dakota. Is it possible that gen-
480
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tlemen in the majority will sit here in silence under the earnest
appeals that have been made to them, and give us no reason for
this course of conduct? Is there no defense-is it utterly inde-
fensible; so that not one of you gentlemen will open your mouth
and say one word? We have labored here faithfully and earnestly
and for over a month, and if we were to adjourn at this minute
that portion of the Constitution which has been sent to the Com-
mittee on Revision and Adjustment would make a very good consti-
tution if adopted. I shall be glad to vote for a motion to adjourn
at this moment rather than have this article pass. I think that
we would then, although it would be incomplete-have a Constitu-
tion that would be better than any state in the Union has. See
how we have almost completed our labors. The whole thing has
been prepared-the executive, the legislative and judicial depart-
ments, corporations, taxation and revenue, school and public
lands-all these questions have been thoroughly studied and
argued, and we have reached wise and moderate conclusions. Is
it possible that you will make the people of this incoming state
confront this problem-either to remain in the territorial condition
indefinitely or to vote for the adoption of such an article as this?
Is it possible that you will make over thirty delegates hesitate,
and possibly refuse, to affix their signatures to the document when
it is completed? Is it possible that you will compel them to go
out and take the stump against this document that a small major-
ity only will sign? The people are in no mood for being whipped
into voting for this Constitution. A representative body of men
met at Fargo a week before
before we assembled here and asked
for three simple things-things that were utterly insignificant of
themselves. Their representatives on this floor have begged with
you-pleaded with you, that you recognize these appeals. Every
one has been spurned. I beg of you-I plead with you to give
us one reason why we should vote for this article.
Mr. PURCELL. I for one, as a delegate to this Convention,
supposed it to be our duty to meet here in Convention and as soon
as possible draft a Constitution for the people of the new State
of North Dakota. The duties devolving upon delegates of this
kind are not new in the history of the country. We take as a
precedent, and properly so, the Constitution of the United States.
The different states of the Union since the origination of that
document, have been compelled to frame and form constitutions
such as we are presumed to be forming here. So far as our duties
DEBATES OF THE CONVENTION.
481
pertain to the forming of a Constitution, we have precedents, but
when this Convention attempts to step aside from the duties as-
signed to it by the Organic Act, it fails to find a precedent in any
state for the action sought to be forced here. It was my hope and
wish that whatever part I took in the making of this Constitution
might be such that it would reflect credit on myself and others.
But, sir, we have here to-day seen an effort to put in this Consti-
tution something that must forever damn the men who dare sign
their names thereto. We have not been sent here to farm out the
public institutions of this great State. We have not been sent
here to meet in caucuses and conventions, and as the result of
those caucuses seek to foist upon the people of this State a burden
they can never shift from under. As a member of the commis-
sion that took part in the division of the property of the Terri-
tory of Dakota, I was enabled to appreciate the debt with which
North Dakota will start out, and that debt is $539,807.46. That is
what North Dakota starts out under on her road to statehood. If
this report of the Committee on Public Buildings is adopted there
is no telling there is nothing by which we can place a standard,
at which the debts of this new State will reach.
As I said before, in making this Constitution we have prece-
dents. We not only have precedents, but our duty was somewhat
limited and confined by the Enabling Act under which we met,
and by strictly adhering to the principles laid down in that docu-
ment and confining ourselves to making a Constitution that we
might be proud of, we would be doing that which our constituents.
expect of us. But when we seek to leave that path of duty and
enter the path of chicanery, we not only bring on ourselves the
disrespect of our constituents, but the disrespect of every citizen
of the United States, because, sir, we have had it hurled in our
teeth for ten years at least, that the Territory of Dakota was com-
posed of more schemers than all the rest of the Union combined,
and when we went to Washington on missions to benefit the peo-
ple, we were met with these epithets on every hand. It seems to
me that men who value their integrity at anything, should be
careful when they introduce a measure of this kind and ask to
have it placed in this Constitution. It is the sign for the people
of North Dakota to start out on missions of chicanery. It has
been the custom when in the past epithets would be hurled at us
for our scheming traits, that the people of North Dakota would
say it must be the people of South Dakota, but to-day we not only
31
482
DEBATES OF THE CONVENTION.
see the handiwork of some bright schemers here, but we see these
schemes attempted to be forced into this Constitution and upon
the people of the new State. Here is an attempt to locate institu-
tions that there is no necessity for, and the probabilities are that
there will be no necessity for them for fifty years to come.
Every man has a right to consider why it is that this measure
is sought to be engrafted in this Constitution. I would ask any
man whose name is appended to that report, or who is in favor of
this measure now, if it was an issue in the campaign, or if it was
thought of when he was elected? On the other hand, Mr. PRESI-
DENT, we have seen no less than four prominent cities in North
Dakota, candidates for the seat of government. But to-day by
this bill we see these four cities working here as a unit for the
passage of this measure. As was well said by the gentleman from
Griggs, there is some subtle influence at work in this matter. It
does not seem to me that it is being done for the interest of the
people at all, but if there is any one thing that will stamp our
Constitution with contempt, it will be the engrafting in that Consti-
tution of the report of the Committee on Public Buildings. In
years to come when people are turning back and looking on this
Constitution, they will ask where it was that we got our precedent
for putting an article of this kind in the Constitution. They will
say that we must have been suspicious of the Legislatures that
were to follow-that we thought that we possessed all the honesty
and integrity that it was possible for the State to have within the
next hundred years, because in the adoption of this article we
forestall the Legislatures for all time to come. There are institu-
tions provided for here that are to-day ridiculous--there are insti-
tutions provided for here that it is not possible for this State ever
to need, and tell me why it is that these institutions of which
some people have never heard are to be located—are to be erected
and the debt created to settle on the people of North Dakota? Is
there to-day the need for a single institution mentioned in that
bill, with the exception of the Capitol and the Insane Asylum?
We have all the institutions that we need for the present, and
for some future time to come.
There is a phase of this question that should be explained.
There was a member of this Convention that moved that a cer-
tain committee should be appointed to draft an address to the
people of this Territory, and everybody thought that perhaps
that motion was a good one-that we should give to the people of
DEBATES OF THE CONVENTION.
483
our new state the reason why this Constitution was thus and so.
That I understand to be common in many such instances of this
kind, but I see that the gentleman who made that motion sits
silent to-day, and says nothing in support of this proposition. If
he is a member of that committee which will frame that address, I
would ask that to him be directed the duty of explaining to the
people of North Dakota the reasons why they have imposed on
them eleven new state institutions? As was said by the gentle-
man from Griggs, we have come here to make for our people a
Constitution. We hope they will be satisfied with our work, but
we cannot claim that they will when we see an article of this
kind attempted to be interposed. On every hand will we be as-
sailed with the charge that there was some subtle influence in this
Convention to which we were all susceptible. I have talked with
men on this floor who will support this measure, and they have
told me that influences brought to bear on them were such that
they were unable to withstand. I ask you to stop and ponder
what will be the influences brought to bear on the Legislatures of
the future when these respective localities come forward and ask
for appropriations for their respective institutions. It may be
said that this is only directory, and the Legislature will simply
locate these institutions when necessity requires. By this article
these institutions are located now, and the same influences that
have come together and sought to push this article through, will
be here with the next Legislature, and will work with the Legis-
lature for appropriations to carry out the original plan.
The statement is made here that we simply locate the institu-
tions, and the Legislature will provide them as the State needs
them. But won't every locality that has an institution step for-
ward and insist that the necessity for its institution exists now,
and won't the same influences that propose to adopt this measure,
also come forward and help the people of these different localities
to get their institutions? Wherein can the people be injured—
wherein can they be hurt one iota by the referring all this matter
of the public institutions to the Legislature? Whenever the pub-
lic sentiment exists in favor of the location of a particular insti-
tution it will be time for the Legislature to locate it, and no one
will say that the Legislature dare stand up and refuse to give the
people what they want in this respect. We want this matter left
in the hands of the Legislature. Why is it sought to be en-
grafted in here? It is something unheard of in the history of
484
DEBATES OF THE CONVENTION.
our country. It seems to me that if the gentlemen on this floor
who are advocating this measure were honest and sincere-these
gentlemen who have been talking to us about honesty and integ-
rity-would look at this proposed article for a moment, they
would be surprised at their own unworthiness. It is true that in
some states public institutions of the kind mentioned in this arti-
cle are located and are now being located—it is true that they are
locating such public institutions as they really need-but I ven-
ture to say that out of all the institutions named in this bill there
are not two, aside from those which are now built, that we will
need for the purpose of accommodating our wants. But it has
been planned, and it is sought to shackle the people of this
State, and put in this Constitution something that they know if it
once gets in, must be maintained and thereby create a debt which
the people have never expected would be incurred. This is in
direct opposition to the duties we have been sent here to perform,
because as I consider the article under which we have met here,
there are 170,000 acres of this land that have been donated for
such educational and charitable institutions as the Legislature
may determine upon. Instead of waiting for the Legislature to
determine as to these institutions, by a combination these things
are intended to be farmed out. I ask you if it is right—if there
is a man on this floor who can stand here and justify it? It is
true that Wahpeton is represented in this bill, but I care not. I
came here to do what seemed to me to be my honest duty, and I
feel that I have done just what my constituents require of me.
Mr. STEVENS. It was not my purpose when this matter
should come before this body to have one word to say as to whether
or not such a measure should pass. But having been attacked by
the gentleman from Richland, I feel it is a justice to myself and
justice to those who shall vote with me on this proposition, that
the reasons which I would be pleased to incorporate in the letter
which shall go forth to the people of North Dakota, explaining to
them the reasons why this Constitution should be adopted, will be
given here. Let me say to the gentleman that while I may possi-
bly, in his mind, be inconsistent in my views, while it may be that
the reasons I shall give for the location of these institutions at
this time and at this Convention might not seem to be such as
would be approved by his mind, he cannot accuse me of ever hav-
ing swopped horses in the middle of the stream or changed my
position when once it had been taken. First. Why should we not
DEBATES OF THE CONVENTION.
485
*
locate these institutions? They will be located by the Legislature
if not by this Convention. Are we not as competent to locate
these institutions as the Legislature would be? Is there the same
motive to influence our conduct that there would be to
influence that of the Legislature? The motive which
would influence a Legislature in
in locating these insti-
tutions at improper places might be the purposes of other legisla-
tion. There is but one question to be considered by us in locat-
ing these institutions. No legislation need affect us; no provision
in our Constitution is being changed for the purpose of making a
combination. The only combination here is a combination of
cities of this Territory, where these institutions can be located to
the best interest and the best advantage of the Territory, soon to
be the State of North Dakota. On our west we have a vast amount
of territory. Shall we rob that great territory of its life and
vitality-the capital of the Territory-and thereby pay taxes from
the eastern part, of thousands and thousands of dollars which we
can now save by assisting in building up the western part of our
State by locating at the City of Bismarck the permanent capital?
Shall we let our capital be shifted from place to place as other
capitals have been in different states, and shall we let it become a
source of corruption by the lobbyist of every Legislature to work
upon, or shall we say-here the people have located and estab-
lished the capital? Here we occupy one that is a credit to the
State of North Dakota, as much so as the capital of any other
State of this Union has been at the same age of its statehood.
•
For that reason, for the purpose of increasing the taxable prop-
erty of the west and making a railroad center here, and
helping to build up our Territory, we have located this insti-
tution at this place-which is the proper place. The location of
the Capitol at any other place, while it might seem to fit the
ideas of the gentlemen who vote on the other side, would be not
only an injustice to this country, to this particular place, but an
injustice to the whole Territory of robbing one-half of our Terri-
tory of an institution that will assist in the up-building of the
country. Why have we located the other institutions in the way
we have? Because our population demands it; because our popu-
lation is scattered up and down the Red River and in the counties
lying along the Jim River and in the counties lying along the
Cheyenne; because they are the most populous and pay the most
taxes, and still for some time to come these institutions cannot as-
I
ہو
DEBATES OF THE CONVENTION.
486
sist in up-building the country as the Capitol building would, and
for that reason we have located these in the region to which they
properly belong. Will any gentleman on this floor get up and
say that a single location made by this committee is not properly
made? Will a single gentleman say that a single location has
been made 30 that it is not beneficial to the people? Is there a
suggestion in the mind of any gentleman that any other places
would be more appropriate than the ones that have been placed in
this report? If that is true, why should we not locate them? In
the address to the people I would say that the institutions were
located by us, because in the first place they could be located at
such places as the people could never object to. In the second
place they were located so that when the legislators should meet
the lobbyists or corporations and others who come forward and
ask to make this one of the factors in passing unjust laws and in
discriminating in favor of things that we do not want in our laws,
they could not say that if you do not assist our measure we will
defeat you in your efforts for your public institution which must
be located. We believe that under this arrangement we retain for
the people all the benefits and all the rights that they possibly
have if they were each one individually to vote on these locations.
These, sir, are the reasons that I would give to the people of North
Dakota for the action which I hope this Convention will take in
the adoption of the majority report and the voting down of the
amendment now before this House.
Mr. BENNETT. I want to say one word in reply to the gen-
man from Ransom, and it is this. He states that his reason for
desiring to locate the public institutions at the present time is
that corporations-railroad corporations, and so forth, may be pre-
vented from hereafter influencing the Legislatures of this State.
I have it from a gentleman who is good authority on this ques-
tion, and who is a member of this Convention, that the corpora-
tions-the two great railroad corporations in North Dakota-are
to-day interested in making this combination to locate the capital
at Bismarck. I have every reason to know that it is true, and if
necessary I can bring the gentleman on the stand to prove it. I
don't take any stock-and I don't want the minority of this Con-
vention to take any stock-in the intimation of the gentleman that
the corporations are not to-day the motive power in this matter.
Mr. PURCELL. We are all glad to know just why the gentle-
man will support this article. He supports it because by moving
DEBATES OF THE CONVENTION.
487
the capital we would rob this great western country of something
that will draw to it; and to-day in the discussion of this question
he is particularly liberal in making this as one of his reasons why
he votes to sustain the capital at this place. But if I remember
rightly, the other day when that gentleman stood here on the floor
of this Convention and asked that they be given more representa-
tion in the Legislature of the State, the gentleman was not so lib-
eral on matters of that kind as he is on this. He speaks about
consistency. Consistency is a jewel, and if there is any man on
the floor of this Convention who will hold up his finger and say
I have not been consistent I want him to do so. This is not a new
matter to us. It has been talked of since the Convention com-
menced to hold its sessions, but if any man charges me with in-
consistency he charges me with that which I have not been guilty
of. If it was wise and proper to give this capital to these poor
western people, why is it not right and proper to give to these
same poor western people the right of representation on this floor
which they ask? If that is the only defense he has got to the
motion, it will be a difficult task to explain in his address to the
people the reason why this infamous clause should be tried to be
planked in this Constitution. We have been sent here to make a
Constitution that ought to be our pride and glory. We have been
sent here charged with a careful duty to perform. In the constit-
uency which I represent are men who are in favor of prohibition,
but in every one of their conventions the prohibitionists have
said: "You must not vote to put prohibition into the Constitution,
because it might endanger its adoption." They have charged me
when coming here to perform the duties of a delegate, that in all
questions of this kind I should in no way vote to put it in the Con-
stitution and thus endanger its passage. We have heard on the
floor of this Convention some delegates who are prohibitionists,
and who spend their time and money in seeking to accomplish
their end, but when they come here as delegates they come here
as men, and say, "Don't put that in the Constitution, because
placing it there may endanger its passage," and they sit here—al-
though it may be a measure many of them have worked long and
earnestly to see become a law-they sit here and ask only that it
be submitted as a separate matter to the people to vote upon. If
they are so careful of that small measure which many of us be-
lieve would be of great good to the community, why do other
members of this Convention spring up here and endeavor to foist
-1
488
DEBATES OF THE CONVENTION.
on the people a debt of this kind, and that without submitting it
to a vote?
Mr. BARTLETT of Griggs. It was not my purpose to speak a
second time, and I should not do so if the gentleman from Ran-
som had not spoken, and spoken as he did. He says no man can
charge him with changing horses while crossing a stream.
He says no man can charge him with being in-
consistent in this matter. He
says that no man can
charge him with doing anything but what was right,
and just and fair. I wish him to say here in giving his reasons.
why this Constitution should be adopted-I want him to state
what reason he gave less than three days ago, when he was laugh-
ing and shaking hands with us, and pledging that he would stand
out for all time against this combination. I want him to explain
those reasons, and then explain to the citizens here the reason
that he is now taking the position he does. Not many rods from
where he now stands he told me that he could not justify his
change. He told me that the scheme was one that he could not
openly sustain, and I quote him now and here. I well understand
that I am talking here to no purpose. I well understand that we
might talk here till November and possibly we could not change a
vote. The question is not whether or not the location of these
public institutions is right—whether they are located in the right
places, but the question is whether we will put this in the body of
the Constitution and compel us to swallow the whole thing, or will
you submit it to a vote and allow it to stand upon its merits. If,
as the gentleman says, it can stand upon its merits, then why not
submit it separately?
any
There is one thing about this which I have never noticed in
other constitution. It does not say one thing; it is absolutely si-
lent upon the conduct, the disposition and control of the public
institutions. It simply provides for their location, and their per-
petual location, and that is all. Therefore it can be submitted in
a separate article and not endanger the Constitution, without tak-
ing one word from it, and without taking one word out of the Con-
stitution that should be in it. Those who know, know that this
combination was the cause of having the report of the Committee
on School Lands withdraw their report, that it might be changed
in accordance with this scheme. They know the first section of
this File said that these lands shall be under the control of the
Legislature, and those who are in favor of placing any restriction
DEBATES OF THE CONVENTION.
489
around our school lands might as well go home. I think this File
has changed that provision. He asks: Could we get more ap-
propriate locations for these institutions? I think that with all
due respect to the gentleman from Ransom there is one institu-
tion mentioned in this report, and that is the institution for the
feeble-minded, that ought to be located in nearly every county in
this State. It seems to me that that institution would be pre-
eminently proper to be located in the home of the gentleman from
Ransom. I have been told that it would not do for me to oppose
this measure. I have been told that there was a future in this
matter, and that I should be on the right side. I want to say that
I have no political future; I have no political life that I wish to
perpetuate or sustain by voting for such a contemptible measure
to be placed in the body of this Constitution.
say
Mr. STEVENS. I do not desire to make a speech. I desire to
in the first place that the reason that an institution for the
feeble minded is not to be located in my county is because we have
no subjects down there. In the second place when the gentleman
got up and addressed this Convention, he said: "I bow to the will
of the Convention."
Mr. BELL. I am greatly surprised to-day. I am greatly sur-
prised at the gentlemen who have here to-day developed such en-
ormous love for the dear people-such fatherly love for the dear
people that would not give them a say in matters of voting for
the Capital a matter that is of the greatest interest to all the
people. This cannot be left to them. They think their fatherly
care must decide the matter for the people. The gentleman from
Ransom says that he does not want to leave this matter to the
Legislature. The Legislature might be corrupt. He certainly
would imply by that that this constitutional body is pure and
clean. He certainly would make us believe that this was
a body offering to legislate for the people for all time to come,
and yet yesterday the gentleman said that we have nothing to do
with legislation—we are usurping the powers of the people when
we undertake to legislate on any matter. Now he comes forward
and says we are settling a matter of all the public institutions
that the State will ever need to the time of the millenium. Now
gentlemen, any man who stands up here and casts his vote for that
article-for that report of the Committee on Public Institutions—
denies to the people the right to vote on matters that concern
themselves. The gentleman claims that there is no scheme in
>
490
DEBATES OF THE CONVENTION.
this matter. I is all for love of the people, and he says the in-
stitutions are distributed as they should be distributed-they are
distributed largely in the Red River Valley because they have the
population, but as there is a smaller population in the west, we
have placed but a few there. I would like to ask what is the mat-
ter with Walsh county that she has not got an institution though
she has 18,000? I will tell you. She certainly has as good a
right to an institution as any county in the State. She is the
third county in the State-has never got any public institution or
public convention, but she will not go into the dirty scheme. She
has been offered public institutions in every town and hamlet, if
she would only come in and locate the Capital at Bismarck. But
I tell you the men from Walsh county can't be caught with a hook
with an artificial fly upon it. If we trade our votes we want
something for the people. We don't want institutions that won't
be built till all the people living there are beneath the sod. The
Argus says they are distributed throughout the State, and Fargo
has got the Agricultural College and Bismarck has got the Cap-
ital. That is the whole business. That is all that will be got.
Before there is any money to build any institutions in the out-
lying counties, I hope the Constitution will be changed. I feel
certain that the Constitution, weighted down with that infamous
article, never can be adopted by the people. The people are cer-
tainly not going to vote for the Constitution that denies them the
right to say where the seat of government shall be. Never will
they submit to such an abuse as that. I think the amendment of-
fered by the gentleman from Griggs is fair. Some think the re-
port of the committee is right. Others don't think so. Surely
the people of North Dakota should be the judges. If it is right
the people of North Dakota will endorse it; if it is wrong they
will defeat it, as I am sure they will do to the Constitution if you
put that in it.
The amendment of Mr. BARTLETT was lost by the following
vote.
The roll being called there were ayes 31, nays 43, viz:
Those who voted in the affirmative were:
Messrs. Allin, Almen, Appleton, Bartlett of Griggs, Bean, Bell,
Bennett, Best, Budge, Carothers, Colton, Douglas, Haugen, John-
son, Linwell, Marrinan, Mathews, McBride, Noble, Nomland,
O'Brien, Peterson, Powers, Purcell, Pollock, Richardson, Robert-
son, Selby, Slotten, Turner, Wallace.
DEBATES OF THE CONVENTION.
491
Those who voted in the negative were:
Messrs. Bartlett of Dickey, Blewett, Brown, Camp, Carland,
Chaffee, Clapp, Clark, Elliott, Fay, Flemington, Gayton, Glick,
Gray, Griggs, Harris, Hegge, Holmes, Hoyt, Lauder, Leach,
Lohnes, Lowell, Meacham, McHugh, McKenzie, Miller, Moer,
Parsons of Morton, Paulson, Powles, Ray, Rolfe, Rowe, Sandager,
Scott, Shuman, Spalding, Stevens, Wellwood, Whipple, Williams,
Mr. President.
Absent and not voting, Mr. Parsons of Rolette.
The motion of Mr. MILLER was adopted by the following vote:
The roll being called there were ayes 44, nays 30, viz:
Those who voted in the affirmative were:
Messrs. Bartlett of Dickey, Bean, Blewett, Brown, Camp, Car-
land, Chaffee, Clapp, Clark, Elliott, Fay, Flemington, Gayton,
Glick, Gray, Griggs, Harris, Hegge, Holmes, Hoyt, Lauder, Leach,
Lohnes, Lowell, Meacham, McHugh, McKenzie, Miller, Moer,
Parsons of Morton, Paulson. Powles, Ray, Rolfe, Rowe, Sandager,
Scott, Shuman, Spalding, Stevens, Wellwood, Whipple, Williams,
Mr. President.
Those who voted in the negative were:
Messrs. Allin, Almen, Appleton, Bartlett of Griggs, Bell, Ben-
nett, Best, Budge, Carothers, Colton, Douglass, Haugen, Johnson,
Linwell, Marrinan, Mathews, McBride, Noble, Nomland, O'Brien,
Peterson, Powers, Purcell, Pollock, Richardson, Robertson, Selby,
Slotten, Turner, Wallace.
Absent and not voting, Mr. Parsons of Rolette.
Messrs. Camp, Parsons of Morton, Rolfe, Turner, Williams and
Mr. President explaining their votes.
Mr. BEAN. I desire to offer an amendment to section one--
the first part. The section reads as follows:
SECTION 1. The following public institutions of the State are permanently
located at the places hereinafter named, each to have the lands specifically
granted to it by the United States, in the act of Congress, approved February
22, 1888, to be disposed of and used in such manner as the Legislative As-
sembly may prescribe.
I desire to strike out the words "in such manner as the Legis-
lative Assembly may prescribe," and put in their place the words:
"as provided in this Constitution." I wish to say a word or two
giving my reasons for this amendment. This whole matter has
been gone over in the Convention before, and I am not in favor
of this article personally, but I think the Convention wishes that
492
DEBATES OF THE CONVENTION.
there shall be no mistake about this. The subject referred to
covers the public lands-the matter of the school lands and other
public lands was referred to a committee. That committee have
agreed to their report, and it has been reported once and adopted,
but was withdrawn to amend certain sections. The committee
have now prepared their report and it will be introduced this
evening, and it is my opinion that this File No. 143 is not the place
for such a provision as I seek to strike out by my amendment.
The Committee on School and Public Lands have prepared an
article showing how those lands shall be disposed of, and I am
not in favor of leaving these lands to be disposed of by the Legis-
lature. These institutions can very easily get the Legislature to
put this land on the market, and the result will be our entire sys-
tem of school and public lands will be thrown away. Everybody
in this Convention knows that our lands are not for sale, because
there are no purchasers. As I understand this section our school
and public lands will be thrown on the market by it, and capital-
ists can come in and buy these lands as they did in Wisconsin for
sixteen to twenty cents an acre. I am willing as far as I am con-
cerned to adopt this report, but I am opposed to putting it before
the people in its present shape. I say we should put a clause in
the Constitution by which we reserve to ourselves these lands and
put them to the uses for which they were intended by the Omni-
bus Bill.
Mr. WILLIAMS I presume the remarks of the gentleman
from Nelson are founded on the report of the Standing Commit-
tee. I presume that if the Convention adopts the report of the
Committee on Public Institutions it will be the duty of the Com-
mittee on School and Public Lands to frame a clause in accord-
ance with the article adopted by the Convention. This does not
refer to school lands at all, but has reference to the amount ap-
propriated for the public institutions.
The amendment of Mr. BEAN was lost by a vote of 32 to 35.
Mr. JOHNSON. I move to amend the first section by striking
out the words "Bismarck, in the county of Burleigh," and insert-
ing in lieu thereof the words "Jamestown, in the county of Stuts-
man." Now, Mr. PRESIDENT, and four or five of the gentlemen
living in and near Jamestown, it is your ears that I wish to reach.
Let me tell you that we of the minority are willing now, and we
have got the power to give you the Capital for all time to come in
Jamestown. We will do it in good faith, and you now take the
DEBATES OF THE CONVENTION.
493
responsibility of choosing whom you will serve. Five votes is
enough to do it, and you have got it right there.
The vote was then taken on Mr. JOHNSON'S amendment.
BLEWETT explained his vote as follows:
Mr.
Mr. BLEWETT. I don't think the amendment was made in
good faith, and I therefore vote no.
The amendment was lost by the following vote:
The roll being called there were ayes 19, nays 55, viz.:
Those who voted in the affirmative were:
Messrs. Allin, Almen, Appleton, Bartlett of Griggs, Bell, Ben-
nett, Best, Budge, Carothers, Haugen, Johnson, Marrinan, Ma-
thews, Noble, Peterson, Richardson, Robertson, Turner, Wallace.
Those who voted in the negative were:
Messrs. Bartlett of Dickey, Bean, Blewett, Brown, Camp, Car-
land, Chaffee, Clapp, Clark, Colton, Douglas, Elliott, Fay, Flem-
ington, Gayton, Glick, Gray, Griggs, Harris, Hegge, Holmes,
Hoyt, Lauder, Leach, Linwell, Lohnes, Lowell, Meacham, Mc-
Bride, McHugh, McKenzie, Miller, Moer, Nomland, O'Brien,
Parsons of Morton, Paulson, Powers, Powles, Purcell, Pollock,
Ray, Rolfe, Rowe, Sandager, Scott, Selby, Shuman, Slotten, Spal-
ding, Stevens, Wellwood, Whipple, Williams, Mr. President.
Absent and not voting, Mr. Parsons of Rolette.
Mr. BEAN. I move the previous question.
Mr. WILLIAMS. I desire to say the majority have given the
minority all the afternoon to submit their objections to the major-
ity report, and I think it has been as ably presented as it possibly
could be. Therefore I second the motion for the previous ques-
tion.
The previous question was then called, and a vote was taken on
the main question.
Mr. CAMP. In explaining his vote said: I desire to explain
my vote. I rise with reluctance to vote on this article and to ex-
plain, if explanation be possible, my vote. I accepted my com-
mission and took the oath of a member of this body with, per-
haps, somewhat exalted ideas of the powers and high duties of
this Constitutional Convention of North Dakota. Those ideas I
have retained. I have not looked upon this assemblage as one in
which to trade votes or log-roll measures through by means of
caucuses. I have not gone to any member with a proposal to vote
for a measure that I did not approve, in order to obtain votes for
a measure which I desired to have adopted. But I have wished
494
DEBATES OF THE CONVENTION.
to see every separate measure stand or fall on its own merits. And
yet I find myself here confronted by a combination of propositions
which can only pass this Convention as a whole. None of these
propositions would, if standing alone, receive the support of more
than a respectable minority of this House. It is only by the
assent of members to several propositions which they do not ap-
prove, in order to carry propositions which they wish to see
adopted, that this article will pass. Of the moral right of such a
course I have most serious doubts; of its political expediency I
am by no means assured. I know it will deliver those who sup-
port the article over to the most scathing criticism. And if I were
expecting to take more than a most humble part in the public.
affairs of the State of North Dakota, I should consider that there
would be great danger that a vote in support of this article as it
now stands would cast a cloud over the future. But I believe
under the difficult circumstances in which we find ourselves, I
cannot do better for the county which I represent, and the city in
which I reside than to vote for this article, and therefore I record.
my vote-aye.
Mr. PARSONS of Morton, in explaining his vote, said: I de-
sire to say a word in explanation of my vote. My reasons are the
same as have just been given by the gentleman from Stutsman.
One important reason is to take from the Legislature the mater-
ial on which most combinations have been made in the past and
would be in the future, and also under protest against that portion.
of section one which leaves the lands in the hands of the Legis-
lature, I vote aye.
Mr. ROLFE, in explaining his vote, said: I wish to say a word
in explanation of my vote on this article. The main question, as
it appears to me, is the location of the Capital. That to my mind
is a local issue. The interests of the west are brought into direct
conflict with the interests of the eastern portion of the new State.
I am a western man, and I represent the western section, and
therefore I place myself in line with that portion of this Conven-
tion, which by its action will locate the Capital in the west, and
locate it permanently. I vote aye also for the reason as has been
stated by the gentleman from Morton, that the action which we
take to-day removes the power from the Legislature to farm these
public institutions out to the different sections of the State with-
out regard to population; without regard to centers of population,
and to my mind there is no moral question involved, but simply
DEBATES OF THE CONVENTION.
495
one of local interest and public economy. There has not been a
moral question presented here in its relation to this article to-day
—not one, and if I am permitted to affix my signature as a mem-
ber of this Convention to that Constitution with this article in-
corporated in it, I shall do it with as much satisfaction as I shall
because there is also incorporated in that Constitution an article
providing for county courts, which as you all know are so dear to
me. I vote aye.
Mr. TURNER. I wish to say a word in regard to the vote
which I shall give on this occasion. As a matter of conscience
with me, and believing as I do that Bismarck has some claims on
this State for the Capital, I would under other circumstances be
glad to vote aye. But coupling as it does with the location of the
Capital, all the institutions of this new State, and locating these
institutions now when this new and growing State does not war-
rant the location at the present time, I object. If it was left to
the Legislature to provide for only one institution at each session,
it would prevent the very dealing and combination which appears
to have been formed here in this Constitutional Convention-
when we are not aware of what the growing necessities of this
State will be, or what section will need these institutions most. I
therefore vote no.
Mr. WILLIAMS. I desire to explain my vote. As a member
of the majority of the committee I have refrained from making
any remarks in reply to those that have been made by the mi-
nority. I have no hesitancy in saying that I vote for this meas-
ure, believing that in so doing we are submitting a proposition in
our Constitution which will promote the future welfare and pros-
perity of this people. It will take from our Legislature a very
embarrassing question. The action of the Legislature with the
approval of the Governor is final. Our action is not final. To
those gentlemen who question the sincerity of our course, I say
that we submit our works to all the people of North Dakota.
That is the explanation of my vote. I vote aye.
Mr. FANCHER. Since it has been my fortune to reside in
Dakota, I have followed the fortunes and endeavored to advance
the interests of the people of my county with such loyalty as I
possessed. Believing that in the measure we are voting on now I
am acting for the best interests of this people-believing as the
gentleman from Benson has said that there is no moral question
involved, I beg to explain my vote in that manner. I am not a
496
DEBATES OF THE CONVENTION.
creature of any corporation. There has been no lobby working
on me. I don't believe that this vote means that the tickets of
the parties have been fixed up in this matter. Nor do I believe
any fair man on the floor of this Convention believes it. I may
be wrong in voting this way, but if I am I am honestly wrong.
Now I trust I have made myself sufficiently plain. I trust there
is no man on the floor of this Convention who misunderstands
my position. If there is such a man I would remind him that it
is my duty to supply him with information, but the Divine power
alone can furnish him with brains to comprehend it.
The motion was carried by a vote of 44 to 30.
Mr. McHUGH. Mr. PRESIDENT: I move that the vote by
which this report was adopted be reconsidered, and that that mo-
tion be laid on the table.
Mr. WILLIAMS. I second this motion. Until this matter is
finally settled and taken from the Convention there is liable to be
controversy and an interruption of business. In order that bus-
iness may proceed I heartily second the motion.
Mr. CAMP. Before that motion is put it is very essential that
we know every word of this report is just what as we wish it to be
in the Constitution-that there is nothing in it for the revision
committee to act on whatever. I don't know the effect at present
of the end of section one-the last word of the section.
Mr. BARTLETT of Griggs. I think I voice the sentiment of
the minority here when I say that there will be no attempt to fight
this ground over again. We will let this matter take its usual
There won't be any attempt to fight this over again.
course.
Mr. WILLIAMS. So far as the objection raised by the gentle-
man from Stutsman, I would say that I think this report simply
goes to the Committee on Revision just the same as the other re-
ports, and they will have the power to re-arrange any section, but
they must retain its substance. The motion will simply take this
article from the hands of the Convention and put it in the hands
of the Committee on Revision. I am perfectly willing it should go
to that committee as the other articles go that we have adopted.
Mr. COLTON. I would amend the motion that it be referred
to the Committee on Revision.
Mr. WILLIAMS. It will go there if this motion prevails, and
this motion is not capable of amendment.
The motion of Mr. McHUGH was carried.
DEBATES OF THE CONVENTION.
497
Mr. PURCELL.
EVENING SESSION.
I move that we resolve ourselves into a Com-
mittee of the Whole and proceed to consider the report of the com-
mittee on Miscellaneous Subjects.
The motion was carried.
AMENDMENTS TO THE CONSTITUTION.
File No. 36 was then read as follows:
SECTION 1. Any amendment or amendments to this Constitution may be
proposed in either house of the General Assembly; and if the same shall be
agreed to by a majority of the members elected to each of the two houses, such
proposed amendment shall be entered on the Journal of each House, with the
yeas and nays taken thereon, and referred to the Legislature to be chosen at
the next general election, and shall be published, as provided by law, for three
months previous to the time of making such choice, and if in the General As-
sembly so next chosen as aforesaid, such proposed amendment or amendments
shall be agreed to by a majority of all the members elected to each House, then
it shall be the duty of the General Assembly to submit such proposed amend-
ment or amendments to the people in such manner and at such time as the
General Assembly shall provide; and if the people shall approve and ratify
such amendment or amendments by a majority of the electors qualified to vote
for members of the General Assembly voting thereon, such amendment or
amendments shall become a part of the Constitution of this State.
SEC. 2. If two or more amendments shall be substituted at the same time,
they shall be submitted in such manner that the electors shall vote for or
against each of such amendments separately.
Mr. WILLIAMS. I move to strike out the word "majority” in
the third line and insert the word "two-thirds."
Mr. MOER. I should be opposed to that for the reason that
according to this File it is submitted to two houses-first the
house this year must ratify the proposed amendment and the
house two years after must ratify it again, and it seems to me that
after two houses of the Legislature have said that the proposed
amendment shall be submitted, a majority is sufficient. That is
the Iowa provision. If it is to be submitted to only one house
then I think two-thirds is right, but if to two houses, then a
majorty is right.
The amendment was lost.
The first section was adopted.
Mr. WILLIAMS. I desire to offer the following substitute for
section two of the File.
"It shall be the duty of the Governor every seven years after the adoption
of the Constitution to submit to the qualified voters of the State the following
question: 'Shall a Convention be called to revise the Constitution.'
32
498
DEBATES OF THE CONVENTION.
If it shall appear that the sense of the people has been taken, and that
in the opinion of a majority of the qualified voters in the State, voting at said
election, there is a necessity for a revision of the Constitution, it shall be the
duty of the Governor to call a Convention for that purpose.
The delegates to be chosen in the same manner and proportioned as the
members of the House of Representatives in the Legislative Assembly; Pro-
viding, That no amendment shall be made to this Constitution before the
same shall be submitted to the people."
Mr. WILLIAMS. We ought to frame a fundamental law here
that will meet with the approval of the people of this State, and
if it is approved by the voters it ought not to be subject to amend-
ment every year or second year. It strikes me that we will be
able to frame such a law that the people of this State will be
willing to leave intact for at least a few years. There should be
something about our fundamental law which will be permanent
and substantial, and the amendment is a provision which is found
in several constitutions of the different states. It is simply for
the purpose of having something that will stand for at least a few
years. I believe the amendment is a wise one and should be
adopted.
Mr. PURCELL. Do you offer that as a substitute for section
two or a substitute for the whole article.
Mr. WILLIAMS. For section two. I understand that section.
one is adopted.
Mr. O'BRIEN. I am in favor of allowing the people to say
when they please that a revision of this Constitution is necessary.
I don't believe it is right to limit them to any particular period.
If they desire to change the Constitution in two years they should
have the privilege. Let them say for themselves when they desire
a revision, and let it be done in accordance with the provisions of
File No. 36, section one, which has just been adopted.
Mr. MOER. I am opposed to the substitute, and opposed to it
for the reason that no matter what we may adopt in this
Constitution at this time it will take us seven years to change it,
and that I am not in favor of. We may desire to change some-
thing in this Constitution in a very much less time than seven
years, and I apprehend that it is very likely that that will be the
case. If the Legislature shall first recommend that we submit
this question, that is one year. Then two years will have to
elapse, and the next Legislature will have to say the same thing.
Is not that notice enough to the people that there is a desire to
change the fundamental law? It seems to me that this provision
DEBATES OF THE CONVENTION.
499
should not prevail. Seven years is a good while before you can
change the Constitution. It may be necessary to change it before
that.
Mr. WILLIAMS. I think it will take four or five years before
we can get any amendment under File No. 36. It seems to me that
this Convention should be able to frame a fundamental law under
which the people will be willing to live for a period of seven years,
and then the question as to whether they will amend it is left to
themselves. It is a provision found in a good many constitutions
and as I understand it, it has been the desire of most Constitu-
tional Conventions to frame a fundamental law that will meet with
the approval of the people-such a fundamental law as they will
be willing to live under for at least a few years. Under this pro-
posed article it will take four or five years anyway for a change to
be made, while under the substitute, at the end of seven years it
is submitted to the people, and if there are serious objections and
any desired amendments the people will say so, and a Constitu-
tional Convention will then be held. There should be something
settled-something permanent about our fundamental law, and if
this section goes through as reported by the committee the matter
will be up before every Legislature and be a matter for discussion.
It seems to me there should be something more settled and more
durable, and I believe this body has sufficient intelligence to frame
a fundamental law under which the people will be willing to live
for at least seven years.
Mr. MOER. I just want to call attention to the mistake the
gentleman from Burleigh is laboring under. He says it will take
us four or five years to change this Constitution. I apprehend
that it will not take that time under the provisions of File No. 36.
I apprehend that if the Legislature meets this year on the first
day of January and decide to submit a question to the people,
and two years from that date the next Legislature ratify the pro-
position-I apprehend that the following fall the people will vote.
upon the question and decide it. It may be very necessary that
we should have a constitutional amendment. We are liable to
make mistakes, and it seems to me we should not shut off the
people of the State for seven years to come. It would only take
us two years and some six or eight months to change the Constitu-
tion under File No. 36, and not four or five years. It may be nec-
essary to change this Constitution in the next two or three years.
Mr. LAUDER. I believe this amendment ought not to pre-
500
DEBATES OF THE CONVENTION.
vail for this reason-as we all know this is a new state.
We are
growing, and in all human probabilitiy great changes will take
place in North Dakota within a shorter period than seven years—
changes which may render it necessary to amend this Constitu-
tion, and for that reason I think the people should have an oppor-
tunity to change their Constitution when the exigencies of the
case may require it. It would be different if we were living in a
state that had been settled for a long time and affairs of the State
were settled-were in permanent condition. Things are shifting,
moving, changing here now, and will for some time, and for that
reason I believe we ought to leave this matter open so that the
people may have an opportunity to vote almost any time. For
my part I would be in favor of striking out the part of this sec-
tion which requires that the proposed amendments shall pass two
successive Legislatures. I think it would be better to strike it.
out, and when the Legislature has passed a proposed amendment
it be submitted at once to the people. I am very much'opposed
to this amendment.
Mr. POLLOCK. As I understand this proposed substitute it
would be impossible to amend the Constitution in any compara-
tively unimportant particular without calling a Constitutional
Convention. For that reason I should oppose it for the reason
that I would avoid the expense that would necessarily be incurred.
There are many matters which may need changing within a short
time and they may be comparatively unimportant, but under this
substitute it would be necessary for a Constitutional Convention
to come together at a large expense and propose this or that
amendment. For that reason, if for no other, I am opposed to
the amendment.
Mr. WILLIAMS. I proposed this amendment in order that
we might have a few sessions of the Legislature that would be
quiet, and whose whole interests would be devoted and directed to
the passage of general laws affecting the interests of the people.
We have to-day adopted a majority report of the Committee on
Public Institutions. Perhaps if this section is not adopted that I
have introduced, there might be a Legislature that would try to
overturn everything that has been done-there might be one a
year from now that would make a similar attempt. I believe the
action of this Convention has been wise in settling the location of
these public institutions-taking the matter out of the hands of
the Legislature, so that the Legislature will be free to act
•
DEBATES OF THE CONVENTION.
501
passage of laws
have offered is
for the interest of the people in the
that are needed. This provision that I
found in many of the Constitutions that have been
adopted during the last few years. A fundamental law
is one that it is not desirable to change very often, and most con-
ventions which have been held of late years have made similar
provisions. I believe this Convention will adopt a fundamental
law under which the people of this State will be willing to live
for seven years.
If they do not, we shall fall far short of my ex-
pectations. I believe this Convention represents the best ele-
ments and best interests of the people of the proposed State of
North Dakota. I believe the people will be glad to have the
Constitution taken out of the hands of the four or five Legisla-
tures which are to follow the sessions of this Convention. I
therefore hope that the proposed substitute will be adopted.
Mr. JOHNSON. Will the gentleman allow me to ask him one
question. With the exception of the State of New Hampshire,
what states have such a provision in their constitutions?
Mr. McHUGH. I move that the consideration of this amend-
ment be indefinitely postponed.
The motion was seconded and carried.
Mr. SCOTT. I am of the opinion that a mere majority of the
Legislature to decide that a question of amending the Constitu-
tion, be submitted to a vote of the people, is not enough. That
is all that this section prescribes. For that reason I would move
an amendment to section one as follows: In line three strike out
the word "majority" and substitute therefor "three-fifths."
Mr. MOER. I move that when the committee rise they recom-
mend the indefinite postponement of the amendment.
The motion was seconded and carried.
Mr. SPALDING. I desire to offer an amendment to section
two and a further section to this article. I desire to amend section
two by inserting in lieu of "two or more" the words "no more than
three amendments." I desire to add as section three an article
offered as a substitute by the gentleman from Burleigh, with the
amendment that seven years be stricken out and ten years take
its place. I would say that I agree with the gentlemen who have
spoken in this-that the condition of things in this new State is
changing, and what may now be proper and best to be inserted in
the fundamental law of the State may become obsolete in a few
years, and for that reason I would leave it so that it will be possi-
*
502
DEBATES OF THE CONVENTION.
<
ble to submit some amendments such as may be of importance
within a short time, and almost whenever desired, and for that
reason I would leave this as it is, only providing that no more
than three such amendments shall be submitted in any year, so that
the Legislature should not be all the time mixed up in revising the
Constitution and getting up a practically new Constitution. I
would then submit the article proposed with the change of "ten"
in place of "seven" so that whenever the people desire to revise
the whole Constitution, there will be some power through which
they can do it other than through the Legislature.
Mr. MOER. I apprehend the Legislature has full power in this
matter if we say nothing about it in the Constitution. I appre-
hend the Legislature can assemble a Constitutional Convention
any day they see fit for the purpose of revising this Constitution.
If we accept the amendment we would simply limit the possible
power of amendment to three sections. I simply suggest this. I
believe the Legislature should have the power to sumbit constitu-
tional amendments at any time. We are putting things in this
Constitution that we may want to change three years from to-day.
Mr. PURCELL. I move that when the committee rise they
report a recommendation that the substitute for the amendment
be indefinitely postponed.
The motion was seconded and carried.
Mr. WILLIAMS. I move the following amendment to the
File now under consideration:
SECTION 1. Any amendment to this Constitution may be proposed in either
house of the General Assembly, and if the same shall be voted for by two-
thirds of all the members elected to each house, such proposed amendment, to-
gether with the yeas and nays of each house thereon, shall be entered in full
on the respective journals; and the Secretary of State shall cause the said
amendment to be published in full in at least one newspaper in each county
(if such there be), weekly for three months previous to the next general elec-
tion for members to the General Assembly; and if, in the General Assembly
next afterwards chosen, such proposed amendment shall be agreed to by a ma-
jority of the members elected to each house, the Secretary of State shall again
cause the same to be published in the manner aforesaid, and at the next elec-
tion aforesaid the said amendment shall be submitted to the qualified electors
of the State for their approval or rejection; and if approved by a majority of
the qualified electors of the State, shall become part of the Constitution.
Where more than one amendment is submitted at the same election, they shall
be so submitted as to enable the electors to vote on each amendment sepa-
rately.
Mr. HOLMES. I think that a two-thirds majority of the peo-
DEBATES OF THE CONVENTION.
503
ple should be required, and I would amend section one of File
No. 36 by striking out the word "majority" in the fourteenth line
and inserting in its place "two-thirds."
Mr. WALLACE. I don't hear any second to the motion of the
gentleman. I should say that a majority of the people should
have the right to say what they want. It is not customary to re-
quire a two-thirds vote, and I think it would be unwise to put it
that way in the Constitution.
The amendment of Mr. WILLIAMS was lost.
The File was then adopted.
THE NAME OF THE STATE.
File No. 59 was then taken up.
lows:
Section one was read as fol-
"The name of the State shall be called and known as the State of North
Dakota."
Mr. SPALDING. It seems to me we should know what State
this refers to, and the word "this" would be preferable to "the" in
the first line-the fourth word.
Mr. LAUDER. I think the word "the" is preferable. There
is no state yet. It presupposes the existence of something which
now exists. We speak of a State that is to be formed.
Mr. SPALDING. No part of this Constitution refers to any
State that exists at the present time, and the object is that when
this Constitution becomes operative it will then refer to the State
of North Dakota, and not to some indefinite State.
Mr. WILLIAMS. 1should like to hear from some of the schol-
ars of the Convention--from the gentleman from Nelson, Mr.
JOHNSON.
Mr. JOHNSON. I thank the gentleman from Burleigh for the
compliment.
Mr. MOER. I think the invitation to the gentleman from Nel-
son was made in good faith. I would like to ask Judge CARLAND
what he thinks about the matter. I certainly am acting in good
faith.
Mr. CARLAND. I move that the consideration of the con-
struction of this sentence be referred to the Committee on Revi-
sion.
The amendment of Mr. SPALDING was then put to a vote and
carried.
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DEBATES OF THE CONVENTION.
Mr. MATHEWS. I understood the vote was that it be referred
to the Committee on Revision. That is what I voted on.
The CHAIRMAN. This section will go to that committee and
probably will receive attention from them.
BOUNDARY LINES.
Section two was read as follows:
SEC. 2. The State of North Dakota shall consist of all the territory in-
cluded within the following boundaries, to wit: Commencing at a point in the
main channel of the Red River of the North, where the forty-ninth degree of
north latitude crosses the same, from thence south up the main channel of the
same and along the boundary line of the State of Minnesota to a point where
the seventh standard parallel intersects the same; thence west along said
seventh standard parallel to a point where it intersects the twenty-seventh
meridian of longitude west from Washington; thence north on said meridian
to a point where it intersects the forty-ninth degree of north latitude; thence
east along said line to place of beginning.
Mr. LAUDER. It seems to me that this section is improper.
I have not an amendment that I can offer now, but I will point out
to the committee wherein the error exists. The seventh standard
parallel does not intersect the Red River of the North. The Red
River of the North does not come as far as that. It is the Boise
de Sioux river.
Mr. PURCELL. This section does not say along the Red
River of the North, but it says "commencing at a point in."
Mr. FLEMINGTON. In the first few days of the Convention.
there was passed a resolution referring to a certain matter with
reference to the southern boundary of the line of the State, to a
committee that had the settlement of affairs between the two
States of North and South Dakota. A question arose as to
whether or not there was a line established, and I would like to
have some member of that committee report what was deter-
mined, if anything, in regard to that matter.
The Joint Com-
act in this matter,
Mr. PURCELL. I offered that resolution.
mission determined that they had no power to
and therefore have made no report, but the report they might
have made would in no way affect the location of the seventh stand-
ard parallel. The only question to determine is where that
line is.
Mr. WILLIAMS. I move that the section be adopted. I don't
know whether this bounds British Columbia or some other point.
I think this is peculiarly a section to be referred to the Commit-
DEBATES OF THE CONVENTION.
505
tee on Revision and Adjustment, and they will report a correct
section on this subject.
The section was adopted.
THE GREAT SEAL.
File No. 142 was then read as follows:
"The following described Seal is hereby declared to be and is hereby con-
stituted the Great Seal of the State of North Dakota, to-wit:
"A tree in the open field, the trunk of which is surrounded by three bun-.
dles of wheat; on the right a plow, anvil and sledge; on the left a bow crossed
with three arrows, and an Indian on horseback pursuing a buffalo towards the
setting sun; the foliage of the tree arched by a half circle of forty-two stars,
surrounded by the motto, 'Liberty and Union, One and Inseparable, Now and
Forever;' the words, 'Great Seal,' at the top; the words, 'State of North Da-
kota,' at the bottom; 'October 1st' on the right and '1889' on the left. The Seal
to be two and one-half inches in diameter."
Mr. LAUDER. It seems to me that "Liberty and Union, one
and inseparable, now and forever" is somewhat transposed. Why
is it not put in the original way? It seems to me that if we are
taking a quotation from Daniel Webster to be incorporated and
made part of the great seal we should take it literally and cor-
rectly, and not transpose it from the original. "Now and forever”
should come before the "one and inseparable."
Mr. PURCELL. In drawing up this File we used the statute
of the Territory and these words were in there just as they are
here.
Mr. LAUDER. I think when we quote Webster we should
quote him correctly, and therefore I move that this be amended
so that the words "now and forever" shall precede "one and in-
separable."
Mr. SPALDING. My recollection is the same as that of the
gentleman from Richland. But it seems to me that we should be
absolutely certain, and the records should not be cumbered with
this unless we are sure. It might be well to make the suggestion
to the Committee on Revision and have them make the change if
there is a change necessary.
Mr. JOHNSON. I move that we strike out the words "Liberty
and Union, one and inseparable, now and forever," and insert in
their place the following: "Government of the people, for the
peope, and by the people shall not perish from the earth." It
has been stated on the floor of this Convention that the words
recommended by the committee are from a speech made by Daniel
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DEBATES OF THE CONVENTION.
Webster. If I am correct the question of states rights was under
argument and the remark had been made that the liberty was de-
sired first, and union afterwards. In reply to that Webster said,
"Liberty and union, one and inseparable." That question is as
dead as a smelt. It has been buried for twenty-five years. But
it seems to me that the words which I have embodied in my
amendment embody a living question. They are the words of
Abraham Lincoln at Gettysburg. That is a living question, which
it will be well to impress on our people and on our friends.
Mr. BLEWETT. As a democrat I would make a motion that
we have on the seal the words: "Public office is a public trust.”
The substitute of Mr. BLEWETT was lost.
Mr. SPALDING. I see nothing objectionable in the words in-
troduced by the gentleman from Nelson, but it strikes me we
should have a seal twice the usual size to accommodate the words.
The amendment of Mr. JOHNSON was lost.
The File was then adopted.
AGAINST CHILD LABOR.
Mr. PARSONS of Morton offered File No. 72 to become a sec-
tion in this article.
The File was then read as follows:
"The labor of children, under 15 years of age, shall be prohibited in mines,
factories and work shops in this State."
Mr. PARSONS of Morton. We are spending thousands of
dollars in the cause of education-thousands every year-and the
evil which I seek to avert has become so prevalent in eastern
states that they have endeavored in one way and another to bring
children of school age and compel them to attend school. This
amendment is offered in accordance with the wish of a good many
people that we should have a prohibition of this kind in the Con-
stitution in regard to this matter, though I would accept an amend-
ment providing that it should include the sessions of the public
schools, so that the children may attend the public schools and not
be found in the factories and workshops. I see the Constitutional
Convention of Montana have fixed the age at fourteen.
Mr. BARTLETT of Dickey. I move that the word "ten” be
substituted for "fifteen." In support of this I would say that all
over the country there are plenty of children of thirteen years of
age that are well able to work. A reasonable amount of work—it
can be restricted to two-thirds of a day—is better than to have the
DEBATES OF THE CONVENTION.
507
children running the streets, and I hope the motion will not carry.
I believe a little work is better for the children.
Mr. MATHEWS. I am in favor of the amendment to make it
"ten" years. In New York and other states in the east lots of
children are left homeless and without father or mother, and they
have to earn livings of their own, and in many cases this is a great
deal better than that they should become objects of charity. I
have earned my living since I was eleven, and I am all the better
for it.
The amendment of Mr. BARTLETT of Dickey was lost.
Mr. BARTLETT of Dickey. I hope this section will pass as
it now stands. If you want to save the country from tramps and
vagabonds, give them work to do while they are young. I went
into the world and worked for myself ever since I was a little boy.
I grew up one of the strongest men in the country I lived in. I
tell you, get boys and girls that don't do any work till they are
fifteen years old, and you will fill your country with tramps and
vagabonds. There is a certain part of the population that will go to
school, and if they are inclined that way, there is where you will
find them. Work, labor is what makes useful men and women.
Mr. FLEMINGTON. I move to amend the motion by striking
out the word "ten" and inserting in its place the word "twelve."
Mr. MOER. I don't exactly understand what the objects of
these amendments are. I have heard something about schools,
but it is not provided that the children shall go to school. It
seems to me that it would be well to leave this to the Legislature.
We have not got any factories here. I move that when the com-
mittee rise they recommend the indefinite postponement of this
section.
The motion was seconded.
Mr. SCOTT. I don't think it wise to incorporate this section
in the Constitution. I don't think it wise to limit the age at
which a child may begin work. In the case of some children it
is absolutely necessary that they work for themselves. They are
without mother or father, and if we prohibit them from working
we may be working a serious injustice. We have not many fac-
tories and workshops in North Dakota yet and are not likely to
to have for years to come. I think the whole matter should be
indefinitely postponed.
Mr. PARSONS of Morton. It is amusing to see some of
these old fatherly gentlemen trying to decide this question. I
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DEBATES OF THE CONVENTION.
did not know that they had had the experience in some of these
matters that some of them seem to have had. This is simply a
File that has been introduced here by request, but I would like to
state, while I don't pose as an educator particularly, I have had a
little experience in that line, and after eight years spent in the
service, I would say that I have been in schools where we had a
law on the subject from the Legislathre, but I have seen the
children daily at work in the mines and the factories, when they
should have been in school. We are spending thousands of dol-
lars yearly, and not accomplishing what we should accomplish
to-day. The very class we wish to reach we don't reach to-day.
The Chair ruled that the motion of Mr. MOER was out of order.
Mr. MOER. I move that the committee recommend that the
proposed article and amendments be not adopted.
Mr. WILLIAMS. I hope the motion of the gentleman from
Dickey-Mr. FLEMINGTON-will prevail. I think boys twelve
years of age are able to do pretty well a man's work. Many of
them on farms come near doing a man's work, and sometimes
they are compelled to support aged and infirm parents and if they
are ordinarily strong they should have the privilege of working.
Mr. MATHEWS. As I said before, I started for myself when
eleven years of age. I left home at that age. When I was six-
teen years old I had charge of a store in New York State and was
running it independent of my employer and conducted it on a
paying basis. When I became of age I was in shape to do busi-
ness for myself and I am in favor of the motion of the gentleman
from Dickey. I think it is wrong to prohibit children who may
be in circumstances that need their work, to prevent them from
earning their living when they reach the age of twelve.
•
Mr. PARSONS of Morton. My father was a Yankee farmer
in Vermont, and by hard work he has managed to acquire a mod-
erate fortune. He told me this-he said, "Young man, try to
profit by the hardships that I have gone through. Try to have
your children well educated." I wish to see our citizens grow up
educated. I desire to have ignorance banished from our land if
possible. I wish that we shall have educated voters-desire to
see our people prosperous and happy. The Legislature by sup-
plementary action can go on and make provision for those who
are not in such circumstances as to be able to maintain themselves
in schools, and I believe every true hearted citizen will support
measures of this kind. I am not going to cavil over the exact
DEBATES OF THE CONVENTION.
509
age of the child, but I hope the principle embodied in my motion
will prevail.
Mr. MOER. This whole question seems to me to be one of
education, and if the gentleman from Morton will fix it so that the
Legislature may provide for compulsory education, it would be
different, but it simply provides that children shall not work at
certain places. I apprehend that it may be necessary if we have
factories established in the State that some children work, and if
they don't work they will probably be in idleness. Let the Legis-
lature attend to this. If the gentleman will make it so that there
will be compulsory education up to the age of fifteen years I will
vote for it, but as it is it provides that they shall live in idleness,
and that is all there is in it. It seems to me that where children
are able to perform manual labor it should be left to their parents.
and the necessities of the case.
Mr. SPALDING. While I admit it might be entertaining to
the Convention, I will not attempt to rehearse my personal his-
tory, but it seems to me this is a very good section. The object
of this section is this: it does not prohibit child labor when the
children are able to work out of doors, but it is intended to pro-
hibit their laboring in mines, factories and workshops. Those
are the places where children under fourteen years of age cannot
work and be shut up during the working hours of the day without
dwarfing them, damaging their physical health-without impair-
ing their future capacity to labor, and they have had a great deal
of trouble in the east in the States where factories and mines are
numerous in dealing with this subject. The owners of such places
have discharged full-grown workers in many places and employed
children-shut them up for ten or twelve hours a day in close
confinement in rooms that were unhealthy and badly ventilated,
where grown people could have lived and not seriously suffered
any evil consequences therefrom, but where it was entirely out of
place to keep children. That is the object of this amendment
-to prevent this sort of thing in this State. Let the children work
out of doors or in the stores, and in such places as will not dwarf
them physically or injure their development. While this may be
said to be in the nature of legislation, yet we have incorporated so
many things that are in the nature of legislation, and this is a good
thing, and should not be struck out on the ground of legislation
without doing the same with many other things that we have put
in here.
510
DEBATES OF THE CONVENTION.
Mr. BARTLETT of Dickey. I feel this is a matter of great
importance. As the gentleman from Morton says, he thinks it is
an educational matter. I agree with him that where children
have brains it is a good thing to give them education, but above
all things in the world the most pitiful thing, creature in life, is an
educated fool. You will see many of them start in life, grasp
their diplomas as being all that they have in life, and they sink to
insignificance in no time. We all know any number of boys and
girls who, at the age of twelve or fourteen years are able to do a
good day's work. We know that. I feel just this way-we will
very probably in the near future have a system of artesian wells
and a good many factories and water power. I feel that the
children that are growing up should have the privilege of going
in and aiding to support their aged parents where they have them,
from ten years up.
There will be thousands of them here who
will fit themselves for men and women this way, and I believe at
ten years old there are a great many who are able to earn half the
wages their parents can, and not hurt them one bit.
Mr. WILLIAMS. I think "twelve" should be inserted rather
than "fifteen." With a boy twelve years old there are some posi-
tions in factories that he can fill as well as a man and earn nearly
as much. While I agree with the gentleman from Cass that it is
not hardly proper for us to recite our personal experience, I know
that at twelve years of age I came very near earning the same
wages that a grown man earned, and I think it is wrong to put
"fifteen" into this provision. I think the young folks should be
allowed to work in the factories at twelve years of age. This limi-
tation of fifteen years I don't think is right.
Mr. MOER. It would seem that in Dakota, where we have not
got a factory, and scarcely a mine, it is absolutely useless to put
this into the Constitution. Were this Massachusetts and it was
sought to keep children of 12 or 13 from working in factories, I
should certainly vote for it, but here in the absence of all facto-
ries, it seems useless. Here is a boy 12 years of age, and under
ordinary circumstances it is no hardship for him to go to work. I
worked in the harvest field when I was 12 years of age, and
I don't believe that my parents should have been prohibited from
allowing me to do it, nor if it had been railroad shops should they
have been prohibited from allowing me to work there.
Mr. LAUDER. I fail to see the force of the remarks of the
gentleman from LaMoure. He says we have no factories. If we
DEBATES OF THE CONVENTION.
511
have no factories this provision can do no harm. But we expect
to have some here. He tells us he has worked in the harvest
field; but this does not prevent boys from working in the harvest
field and working out of doors where they will breathe the pure
air. These employments are healthful and right. This section
aims to prevent the crowding of boys and girls into factories
where they are dwarfed, and their health injured, and they are
prematurely broken down. The gentleman from Burleigh says a
boy of 12 can nearly do the work of a man. That is the diffi-
culty. Because a boy can do that he is often required to do the
work of a man. Boys should not be required to do that, and it
should not be put into the power of any person to work them like
so many cattle in the shops. That is just what this section means,
and the same thing will be tried here without doubt when our
cities grow up and factories are established.
Mr. ROLFE. Considering that in this State it is proposed to
locate several cold storage plants, I think it is advisable for us to
incorporate some section in this Constitution that will prevent
children of tender age from being employed in such works, and I
think 12 years is about the proper limit.
The section was adopted, with the word "twelve" inserted.
Mr. FLEMINGTON. I move to adjourn.
The motion prevailed, and the Convention adjourned.
512
DEBATES OF THE CONVENTION.
THIRTY-SIXTH DAY.
BISMARCK, Thursday, August 8, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
APPORTIONMENT.
Mr. PARSONS of Morton. I move that the report of the
Committee on Apportionment be adopted.
The motion was seconded.
Mr. HARRIS. The Committee on Apportionment labored with
this question for three days. There were a number who were not
satisfied, but we withdrew our objections and agreed to this re-
port. Every man who had any objections withdrew them in a
spirit of conciliation and compromise, and it is the unanimous re-
port of the committee of twenty-five, and I trust it will go through
just as the committee reported it. It was agreed by the commit-
tee that it was the fairest apportionment that we could arrive at.
The report was adopted.
SCHOOL AND PUBLIC LANDS.
File No. 130 was then taken up and discussed, being the report
of the Committee on School and Public Lands.
Sections one to five inclusive were adopted.
Section six was read as follows:
SEC. 6. No lands shall be sold for less than the appraised value, and in
no case for less than $10 per acre. The purchaser shall pay one-fifth of the
price in cash, and the remaining four-fifths as follows, to-wit: One-fifth in
five years, one-fifth in ten years, one-fifth in fifteen years and
one-fifth in twenty years, with interest at the rate of not
less than six per centum payable annually in advance. All sales
shall be held at the county seat of the county in which the land to be sold is
situate, and shall be at public auction to the highest bidder, after sixty days'
advertisement of the same in a newspaper of general circulation in the vicinity
of the lands to be sold, and one at the seat of government. Such lands as shall
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DEBATES OF THE CONVENTION.
513
not have been specially subdivided shall be offered in tracts of 160 acres, and
those so subdivided in the smallest subdivisions. All lands designated for
sale, and not sold within two years after appraisal, shall be reappraised before
they are sold. No grant or patent for any such lands shall issue untill full
payment is made for the same. Provided, That all lands contracted to be sold
by the State shall be subject to taxation from date of such contract. In case the
taxes assessed against any of said lands for any year, remain unpaid until the
first Monday in October of the following year, there and thereupon the con-
tract of sale for such land shall become null and void.
severe.
Mr. CAMP. It seems to me that the penalty imposed is very
It is going far beyond any tax law I ever read. I never
knew of a man losing title to his land on his tax becoming delin-
quent. In this Territory we have three years-two years after
the date of the sale in which to redeem. It strikes me that for
the neglect which might readily occur a man should not lose his
entire title to his land beyond hope of redemption where there is
perhaps four-fifths of the money paid.
Mr. BEAN. There is a great difference between cases where
the title belongs to individuals and cases where it still lies in the
state. I think this proviso is perfectly proper.
Mr. SPALDING. This proviso regarding the contract being
null and void is intended to follow out the same provision which
is provided under the contract of sale, in case of non-payment of
the interest or the purchase money. We should feel the same in-
terest regarding the taxes that we do regarding the purchase
money or the interest. That clause was inserted to get around
the decision of the Supreme Court of the United States in the
case of the county of Traill against the Northern Pacific railroad
company, where the court made the decision on a case exactly par-
allel with what this case would be, provided we taxed these lands
and then there was a failure to pay the taxes. You could not en-
force the payment of the taxes unless you could sell the lands and
give title. If you sold the lands the State would be depriving
itself of its lien on those lands. It would be selling the lands for
a song and depriving the State itself of four-fifths, perhaps, of
the purchase price, and the only way to get around that and leave
these lands taxable is to put this proviso in.
Mr. MATHEWS. I see that the words "not less than" before
the words "one hundred and sixty acres" have been struck out..
Take it on the section line along side of me-there is 400 acres
and 240 of that is no good. It is not worth anything for cultiva-
tion, and it would make part of that section of land almost worth-
33
514
DEBATES OF THE CONVENTION.
less, while the other would not sell for enough to overcome the
loss on the 240, while the whole section would sell for the full
value of $10 or more per acre. I think it would be well not to
have these words stricken out. I think we should be able to sell
a section if necessary in a piece. Now we cannot sell more than
a quarter section to any one party. I move that our former ac-
tion in regard to this matter be recinded-I mean to insert the
words "not less than" in line twelve, section six.
Mr. BEAN. This amendment made in the Committee of the
Whole was as the Committee on Schools and Public Lands in-
tended it to be. They did not intend those three words to be in
there. They did not intend to have more than a quarter section
offered at any one time, and it seems to me that this is the proper
way to do it. If these school lands are to be sold to the farmers
an ordinary farmer is not supposed to be able to buy a full section
at $10 an acre. A quarter section of 160 acres is about all an
ordinary farmer is supposed to be able to buy at one time. That
is why we favor selling only 160 acres.
Mr. MATHEWS. My object was to be able to sell it to the
best advantage to the new State and the school fund. I think it
would be wrong for us to arrange it so that we could not get as
much for the land by selling it as a whole as by selling it in
smaller parcels. I think the Legislature should be empowered to
sell this land in the way that will best serve the interests of the
State at large.
Mr. SCOTT. I think that the State should be allowed to dis-
pose of these lands in such a manner as would the best advance
the interests of the State. Frequently they would be able to sell
160 acres to the best advantage, and sometimes they would be able
to sell a whole section better than 160 acres. If they are allowed
to sell only 160 acres at a time the best portions of the sections
will be picked first, and the poorest portions will be left, whereas
very often a purchaser would be found who would take the whole
section at the price you would get for the best quarter. I don't
think it is policy or wisdom to restrict the State in the matter of
selling these lands and say just what it shall sell at one time to
any one purchaser. I believe if they can sell eighty acres and the
• board who appraises the land thinks it is to the best interests of
the State to sell the and in so small a piece, they should be
allowed to sell it that way. But if they can sell 640 acres or two or
three sections at the price set for them to good responsible par-
DEBATES OF THE CONVENTION.
515
ties, they should be able to sell them. We want an endowment
fund for the schools. You would not now say how in all future
time to come we would want to dispose of our own farms. I think
it is policy to have no restrictions, and the utmost liberty should.
be given our officials in charge of this business, so that they would
be able to look after the best interests of the State, and get as
much money out of these lands as possible. If this amendment
prevails it is a great deal better than to have the words stricken
out. Then you will not be able to offer these lands in tracts other
than quarter sections. I think the words "not less than” should
be inserted.
Mr. BARTLETT of Dickey. This all sounds very nice to peo-
ple who have not had experience, but just so sure as you fix this
land so that it can be sold in large quantities the rich men of the
country would gobble it up. The poor man would have no show.
It is an unfortunate thing that money has an influence, and if you
follow the advice of the gentleman who has just spoken, wealthy
men who will want to control the purchase and sale of these lands
will tell the men who have the selling of them that it will be bet-
ter to sell in large quantities. I want to say that it is not true.
It will cut out all of these small men-men who are striving to
get homes. I know how it works, and that will be the tendency
-to wipe out all the men who can possibly rake and scrape up
enough money to buy 160 acres of land. The result will be, the
very men you want to benefit will not be able to get any of this
land.
Mr. SCOTT. This talk is all very well-claiming that the
amendment would be in the interest of speculators, but let us
read the section. According to this article the purchaser must
pay only one-fifth in cash; the next one-fifth he cannot pay till
five years.
He has got to pay 6 per cent. interest. He cannot
pay the next fifth till ten years after the first payment, and so on.
I ask if there is any probability that the speculator is going to
buy a land on those terms? He can buy all the land he wants in
North Dakota and pay cash for it, exclusive of school lands, so
that there is not going to be much running around for the privil-
ege of picking up the school lands. They are not better than
other lands. He is not going to buy school lands if he is a spec-
ulator, and on such terms as we are putting in here, when he can
buy other lands just as good on his own terms. Speculators
won't pay one-fifth cash and taxes and interest on the balance for
516
DEBATES OF THE CONVENTION.
twenty years. No man will buy these lands except he wants them
for actual cultivation-he can't afford to do it.
Mr. CAMP. It seems to me that some limit as to the quantity
of land that will be sold to any one person should be placed in
this article. The United States has established a rule as to this
in the case of its public lands. Before the present pre-emption
laws were enacted the public lands were sold at auction, and vast
quantities of these lands passed into the hands of speculators in
this way. The present policy of the United States is known to all
of us.
No man can come and buy a foot of these lands except by
scrip. The other States have had the same experience as the
State of North Dakota will have if there is no limit. Speculators
have gone into States adjoining us, and bought up as much as one
hundred thousand acres by one fell swoop. The matter of the
limitation as to price is referred to in the new report of the com-
mittee. File No. 138 provides that the price at which some of
these lands may be sold may be less than ten dollars an acre pro-
vided Congress pass an act modifying the terms of the grant. It
seems to me that in case an act is passed by Congress as referred
to, and all restrictions as to quantity of lands to be sold to any
one person be removed, the inducements to speculators to take
these lands would be great. They would only have to pay one-
fifth down, and they would hold these lands for a rise without a
large investment, and that is just the way speculators like to oper-
ate.
Mr. BARTLETT of Dickey. I do say that if you sell it in large
quantities 'the moneyed men would have the influence, and the re-
sult would be that the poor man would not get any of the land.
I would like to see the law fixed so that the man who can just
raise enough money to get 160 acres can get it.
Mr. LAUDER. I am in favor of the proposition laid down by
the gentleman from Dickey. It seems to me that we are taking a
great deal of time over this proposition. We went over this same
ground a few days ago. I was at that time in favor of putting in
this Constitution a provision that no man should be permitted to
buy more than 640 acres of this land at one time or at any time,
thereby reserving it to actual settlers and preventing it from go-
ing into the hands of speculators. That having been voted down
I do not care to bring it up again, but I am in favor of every pro-
vision the effect of which will be to put this land in the hands and
under the control and in the possession of actual settlers-men
DEBATES OF THE CONVENTION.
517
who are living on small farms and cultivating them, and to place
every obstacle we can, consistently with the interests of the State,
in the way of permitting these lands to go into the hands of spec-
ulators.
Mr. SCOTT. If the gentleman will notice, it reads as follows}
"Şuch lands as shall not have been specially subdivided shall be
offered in tracts of 160 acres.
and I have made up my mind
county and I attend the sale.
acres on certain terms. I take
it is very seldom that you will find a section of land that is all
good. I will buy those quarter sections and leave the poor land, and
that they cannot sell. Then they have got the best land sold and
the poor land is left. If we did not limit the sale to 160 acres I
would be compelled to buy the whole section.
There is a public sale, let us say,
to gobble up all the lands in my
They are offered in tracts of 160
out the best quarter sections, and
That is why I say
it is unwise. We will sell our best quarters in this way.
Mr. CLAPP. It seems to me that this section is entirely in the
interest of the rich man, for they wish to provide that it shall be
sold in lots of not less than 160 acres. If they are going to put
it on a fair footing why do they put any limit. Why do they limit
it one way and not another? Why not change it so that a poor
man can buy eighty acres if the commissioners think it is advis-
able to sell it in such small parcels?
Mr. STEVENS. I move as a substitute the adoption of the
section as it came from the committee. After the action that was
taken yesterday, there are a great many here who are afraid that
some change may be made in this section for a purpose. It is
possible there may. Under the action of yesterday we got 40,000
acres of land down in my county, and we want all the money we
can get out of it, and I want the report to stand as it is for I be-
lieve it will get the most money out of it.
Mr. JOHNSON. I wish to offer an amendment--to strike out
160 acres and insert the words "quarter section." We have had a
good deal of difficulty with quarter sections not being exactly 160
acres in some cases. I live along a line-and I presume some of
you have had a similar experience which Sparks investigated
and found contained fluctuations. It was considered at one time
that a quarter section of land was the same as 160 acres, but it was
found different. Mine was 181 acres and a fraction, and Sparks
cancelled all the claims on that line because of that "fraud." The
government decided that they could not sell their land in more.
518
DEBATES OF THE CONVENTION.
;
}
than 160 acre lots, and we had committed fraud. I appealed to
the Secretary of the Interior and the matter is still held up.
Many of the settlers gave up the struggle immediately, and gave
up large quantities of well improved land. I think it is the in-
tention that we should sell a quarter section, no matter how much
it contains, whether it is more or less than 160 acres, and not
allow these difficulties to arise. In section thirty-six you will find
that it is very seldom that a quarter section will be exactly 160
acres.
The amendment of Mr. JOHNSON was accepted by Mr. STEVENS.
The motion of Mr. STEVENS was carried.
Mr. SCOTT. I move that line twelve be amended so as to read
as follows: "Shall be offered in tracts of not less than a quarter
section and not more than 640 acres.”
Mr. BEAN. We have just adopted the section, and this amend-
ment is not in order.
Mr. SPALDING. I know, or I think I know, what the motion
of the gentleman from Ransom was, but the Chair did not put it
so as to make the motion an adoption of this section, and I did
not vote on it with that view. I am confident we did not vote on
it that way.
Mr. STEVENS. I am perfectly willing to have this put to a
vote again, but I am opposed to having this open to further
amendment, and if the gentleman will consent that we will take a
vote on this question and vote for the adoption of this section
without further amendment, I am perfectly willing that it shall
be put to a vote again.
Mr. SCOTT. If the question is open for discussion again I
would like to hear the gentleman from Ransom say why it is the
best policy to insert in the Constitution a provision which will
say the State must sell 160 acres, neither more or less. I want to
know why that is good policy.
Mr. LAUDER. That is what we have been talking about for
an hour. I was convinced of this when this question was before
the Convention three or four days ago. We have talked this over
for nearly a day, and it seems to me every member has made up
his mind how he wants to vote.
The section was adopted.
Sections seven and eight were adopted with verbal corrections.
Section nine was read as follows:
DEBATES OF THE CONVENTION.
519
SEC. 9. The Legislature shall have authority to provide by law for the
leasing of lands granted to the State for educational and charitable purposes,
but no such law shall authorize the leasing of said lands for a longer period
than five years. Said lands shall only be leased for pasturage and meadow
purposes, and at public auction after notice as heretofore provided in case of
sale. All rents shall be paid annually in advance.
Mr. STEVENS. I move that section nine of File No. 138 be
substituted for the section just read.
The proposed substitute reads as follows:
SEC. 9. The Legislature shall have authority to provide by law for the
leasing of lands granted to the State for educational and charitable purposes,
but no such law shall authorize the leasing of said lands for a longer period
than five years. Said lands shall only be leased for pasturage and meadow
purposes, and at public auction after notice as heretofore provided in case of
sale. Provided, That all of said school lands now under cultivation may be
leased for other than pasturage and meadow purposes until sold. All rents
shall be paid in advance.
Mr. SCOTT. I move as a substitute that section nine of File
No. 130 be adopted.
Mr. ROBERTSON. I hope the motion of the gentleman from
Barnes will not prevail. This provision amending section nine
was made by the committee in response to an almost unanimous
demand, and it seems to me that we should adopt the section from
File No. 138. I would therefore urge that the motion of the gen-
tleman from Barnes do not prevail.
Mr. PURCELL. As I understand section nine of File No.
138, it differs from section nine of File No. 130 in this—that it
provides for those lands which are not cultivated, that they may
be leased and some revenue derived from them. That I under-
stand is the difference. A large portion of the school lands to-
day are being cultivated, and the idea is to derive some revenue
from them.
Mr. MATHEWS. I am in favor of section nine, File No. 130.
Take it through our county, and a great many school lands are be-
ing broken up now so as to take advantage of just this amend-
ment that is proposed. There were parties who had got on the
Saturday before to the school section within a short distance of
where I live with eight teams, and for the purpose of taking ad-
vantage of this, and every acre of these lands has been broken up
in this way, and it serves to depreciate their value. I am in fa-
vor of adopting section nine, File No. 130.
Mr. MCKENZIE. I hope the section-nine, File No. 138-will
520
DEBATES OF THE CONVENTION.
prevail for this reason--when the committee had this under
consideration this fact was apparent, that if lands were only sold,
and not leased except for pasturage and meadow purposes, from
some of them we would not get any revenue for a long time.
Again, in case of school lands under cultivation, those cultivating
them will have the benefit and use of the lands without paying
anything to the State, and the committee was of the opinion that
this clause should be inserted so that lands now under cultivation
shall be rented and then we will get a benefit of the rent that will
be paid which will amount to thousands of dollars. If we rent
them for one year, which we can do under this clause, we can
· collect some rental. Otherwise these people who are cultivating
these lands can go on using them and they will have next year's
crop in spite of you and you will lose that rent which will amount
to thousands of dollars.
Mr. SCOTT. We can sell these lands as soon as we can make
a contract to lease them. As soon as the State government
is in force, and they are forced to lease these lands, they can sell
them to the parties in possession. If the parties in possession do
not choose to buy them they should not remain in possession. If
they don't choose to buy them as soon as they can get a title from
the State, then they will not buy them after they have taken one
crop off. I think it is poor policy for us to begin renting school
lands for other than pasturage purposes. It will destroy their
value, and a party in possession, if he desires to buy them, can buy
them as soon as he can lease them, and if he does not desire to buy
them he should get off the land.
Mr. BARTLETT of Dickey. We had that matter under con-
sideration for a long time, and made the change because we thought
there were some lands that we could get something out of in this
way and in no other. The gentleman says that if they don't want
to buy the lands they should get off. There is no power that can
make them get off, and the result is that they cannot be appraised
and offered for sale. They might live there for years and we should
lose everything from those lands that we might have. It seems to
me that this is the section to protect the State.
Mr. PARSONS of Morton. The gentleman from Sargent and
the committee have fully considered this matter, and it seems to
me a very wise provision indeed for one reason-the school lands
in this State that have been cultivated are the best lands we have
got. They are the most valuable for cultivation, for it stands to
DEBATES OF THE CONVENTION.
521
come.
reason that if a person is going to cultivate any land he is going
to select the best. Now then, it seems to me to be foolish, to say
the least, to allow those lands which have been cultivated-to al-
low them to grow up to weeds and remain idle and have no rental
from them when they are just the ones that would bring in an in-
If parties wish to buy them, all right; if they don't want
to buy them, allow this commission the privilege of deriving some
revenue from them. It is foolish to say the best of our school
lands shall lie idle because they shall not be used except for pas-
turage purposes. When we consider that the best portion of our
lands have been broken up, it is the height of folly to say we shall
not derive any income from them.
Mr. CLARK. We gave this matter long and serious considera-
tion in the committee, and this was one of the main features we
desired to consider in having the bill sent back to us. Though
there may be a few instances like those cited by the gentleman
from Grand Forks where people are breaking up land to take this
advantage, I think there will be only a few to do this; whereas, on
the other hand, these lands can't be rented for pasturage or
meadow lands, and cannot be sold, and will lie in idleness and
grow up to weeds. Every member of the committee, after giving
the matter consideration, was desirous that this section (nine of
File No. 138) should be adopted.
You take it espe-
Mr. SPALDING. There is another reason.
cially in the Red River Valley, and if the school lands that have
been cultivated are not allowed to be cultivated any more, they
will, inside of three years, seed the whole country from Manitoba
to South Dakota with weeds. It would depreciate the value of
the adjoining land thousands of dollars, and it looks to me as a
matter of self protection and public policy that we must rent these
lands. They must be rented as a matter of self protection—
matter of protection to the adjoining land owners.
-as a
The various amendments were voted down, and the report of
the committee adopted.
Section ten was adopted.
Section eleven was read as follows:
SEC. 11. No law shall ever be passed by the Legislature granting to any
person, corporation or association any privileges by reason of the occupation,
cultivation or improvement of any public lands by said person, corporation or
association subsequent to the survey thereof by the general government. No
claim for the occupation, cultivation or improvement of any public lands shall
522
DEBATES OF THE CONVENTION.
J
ever be recognized, nor shall such occupation, cultivation or improvement ever
be used to diminish, either directly or indirectly, the purchase price of said
lands.
Mr. POLLOCK. I move that this section be stricken out. I
make this motion for the reason that there are a good many ac-
tual settlers on small pieces of this land especially in the Red River
Valley, and they are men who have gone and erected buildings
more or less valuable with the expectation that the same rule would
prevail when the State came into the Union as prevailed in Min-
nesota and Wisconsin and many other states, giving them a chance
to purchase their land at the price it might bring—giving them
the preference over others. The objection that may be urged is
that there are others who have large tracts who have farmed them
and have taken the best they could. I have no defense for those
who have farmed the land as a matter of profit and have taken
the best that it would yield, but I have for those who under a mis-
understanding and in good faith made their improvements there
and live there. The Legislature can provide in what manner
these parties shall be treated, who have really settled on these
tracts, and how those who have not actually settled on the lands,
but have taken off the produce of the lands, shall be discrimin-
ated against. It seems to me that in view of the circumstances
something ought to be done to arrange it so that a settler will not
have to buy his own improvements. The legitimate result of the
passage of this section is that the man who is living on that sec-
tion must move his improvements or buy the improvements he
has placed on his land. As a matter of strict justice and right it
may be proper to pass this section, but in view of the precedents
that have prevailed in other states it is no more than right that
these men should be protected.
The amendment of Mr. POLLOCK was lost.
All the remaining sections were adopted and the committee
rose.
EVENING SESSION.
Mr. WALLACE. A very valuable portion has been stricken
out of section thirteen, of File No. 130. We simply provide now
that the Treasurer shall deposit the funds in the name of North
Dakota. We stop there. The part that has been stricken out
provides for the safe keeping of the funds and I think it was very
DEBATES OF THE CONVENTION.
523
unwise to strike it out. If you will examine the section you will
see the point I wish to make. I move that the report of the
Committee of the Whole be accepted with the exception of that
part of it referring to section thirteen of this File.
The motion was seconded and carried.
Mr. PARSONS of Morton. I move the adoption of the fol-
lowing resolution:
"Resolved, That the Committee on Revision and Adjustment be instructed
to report the following as section eighteen of the report of the Committee on
Corporations Other than Municipal, and that the same become a part of the
Article on Corporation.
SECTION 1. Whenever a difference shall arise between any corporation other
than municipal and its employes or an industrial society incorporated under
the laws of the State, any of whose members are employes of such corpora-
tion, if the disagreement cannot be adjusted by conference, it shall be submit-
ted to arbitration under such rules as may be prescribed by law.”
Mr. BARTLETT of Griggs. I think we argued this matter
pretty thoroughly, and I move that the resolution be laid on the
table.
Mr. NOBLE. I make the point of order that a resolution of
this kind cannot be placed in the Constitution without a first, sec-
ond and third reading.
Mr. PARSONS of Morton. It is simply instructions to the
Committee on Revision.
The motion of Mr. BARTLETT was adopted.
Mr. PARSONS of Morton. In accordance with the wish of
recommendation of Major Powell, the National Geologist, I offer
the following:
Resolved, That the following be reported to the Revision and Adjustment
Committee with the request that the same be reported as adopted as an article
or section of the Constitution:
"All flowing streams and water ways shall forever remain the property of
this State."
The motion was temporarily withdrawn.
Mr. LAUDER. I desire to offer the the following resolution
and move its adoption:
Resolved, That the Committee on Revision and Adjustment be requested
to report the following as a section of the article on corporations other than
municipal: "Laws shall be passed by the Legislative Assembly providing for
the amicable settlement of difference between employers and employes by
arbitration.
524
DEBATES OF THE CONVENTION.
Mr. STEVENS. I desire to know if that is not already covered
in the provision which provides for boards of conciliation.
Mr. LAUDER. No, that is not provided for. The boards of
conciliation provided for in the judicial report simply provide for
the settlement of differences that may arise without a law suit.
It does not provide for the settlement of differences that arise be-
tween employers and employes. This provides for an entirely
different thing and I hope it will pass.
Mr. BARTLETT of Dickey. I arise for information. I want
to know whether the gentleman intends this to be without appeal,
for if that is the case I should in my feeble way, oppose it. I
don't believe that it is right nor just that any company or creaţure
should be compelled to leave serious matters to arbitration simply
in this way. I don't believe it is right. Never in my life have I
had a misunderstanding that I wanted to have left to my neigh-
bors. That I shall be arraigned here and compelled to stand by
an arbitration whether I want to or not, realizing all the time
that it was a put up job on me, is not right, and I don't think it is
right that a corporation shall be compelled to do anything of the
kind.
Mr. LAUDER. This does not provide for any arbitaray submis-
sion. It provides or suggests to the Legislature that it provide
some means by which parties can submit their differences to arbi-
tration if they wish to, voluntarily.
Mr. STEVENS. I desire to read section thirty-four of the report
of the Judiciary Department. It is as follows:
SEC. 34. Tribunals of conciliation may be established, with such powers
and duties as shall be prescribed by law, or the powers and duties of the same
may be conferred upon other courts of justice, but such tribunals or other
courts when sitting as such shall have no power to render judgment to be obli-
gatory on the parties, unless they voluntarily submit their matters of difference
and agree to abide the judgment of such tribunals or courts.
Now, unless the concilitroy measures to be adopted as a Board
of Arbitration conform to this section, it would be in conflict with
this section, and if it does conform, it is covered by this section,
and these courts could settle differences between employer and
employe as well as differences between any other parties. It seems
to me that the matter is fully covered by this section, and any
other board to be established would be in conflict with this section.
Mr. LAUDER. It would simply be another section, providing
for an entirely different thing. The court that is contemplated by
DEBATES OF THE CONVENTION.
525
the section just read by the gentleman is a court of justice that
parties can go into and submit their differences without a summons
being served. This contemplates an entirely different thing. It
simply means that in order to avoid a strike, parties can go before
a Board of Arbitration if they voluntarily submit themselves to
the board. This provides for settlement of differences where dif-
ferences arise between employers and employes as to wages. There
is no right of action either way—no right of the employer to cut
down wages and no right of the employe to demand more. There
is no legal right in the matter as legal rights are viewed now under
our law.
But where these differences may be referred by them to
an Arbitration Board to be settled, a strike may frequently be
avoided. It contemplates an entirely different purpose from the
section the gentleman from Ransom has read. I believe it is in
the interests of humanity that it should be so, and I think any-
thing we can incorporate in our Constitution that is reasonable;
that does not infringe on the rights of anyone and still in any
measure tends to the desired result, should be adopted.
Mr. PARSONS of Morton. I desire to supplement the remarks
that have been made by saying that this provision is simply to
cover something which has no standing in the courts whatever.
You cannot bring it into the courts in any way, shape or form, and
it is simply to cover those differences which may arise and settle
them and stop striking. It is a pacific measure and that is all
there is to it. I wish to extend the hearty thanks not only of my-
self but of thousands of laboring men in North Dakota to the
gentleman who voted against tabling that resolution, and I wish
to say the record of that will not stop here, but will go to those
who are interested all over the United States.
Mr. STEVENS. I desire to say I was heartily in favor of the
other motion, but this is gotten up without any ultimate good to
anybody. It is got up simply as a catch-penny, and I move that
it be laid on the table.
Mr. LAUDER. I desire to have that read again, and let us see
how much of a catch-penny there is in it. I say it is not a catch-
penny. It is offered here in good faith, and the purpose of it is a
noble purpose.
Mr. STEVENS. The motion is not in order. We have no
right to instruct the Revision Committee to bring in such an arti-
cle. It must go on its first and second reading.
The CHAIRMAN. It cannot be passed as an article. It may
526
DEBATES OF THE CONVENTION.
be voted on simply as the sense of the Convention that the Revi-
sion Committee should do that.
Mr. SELBY. It is unusual in a discussion of this character
that a member of this Convention, for the purpose of holding out
an inducement to members to sustain a measure, will make the
statement that was made here by the gentleman to the effect that
this goes over the United States. I wish it distinctly understood.
that I made no vote here that was not intended to go out as far as
it will reach. It seems to me that in the article adopted several
days ago, this point is substantially covered. To say that because
I voted against this resolution it is to go all over the United
States, and to say it in such a way as to intimidate my vote, will
have no effect on me, and I vote aye on the question of laying this
motion on the table.
Mr. PARSONS of Morton. I rise to a question of privilege.
I have not waved any club or used any threat in this House to
anyone, but the remarks I made were in relation to the vote that
had been taken the roll call that had been taken, and I expressed
the heartfelt thanks of myself and those who had requested me to
introduce this. The record is there. The resolution is not mine.
It is that of the gentleman from Richland, and I again desire to
thank those who have stood by me in my measure.
A vote was then taken on a motion to lay Mr. LAUDER'S motion
on the table. It was laid on the table by a vote of 39 to 30.
Mr. PARSONS' resolution relating to flowing streams was then re-
introduced.
Mr. SCOTT. I think the resolution is all right, but where are
we coming to? It has been our rule ever since we met here to
have no article go to the Committee on Revision and Adjustment
until it had had a first and second reading. The first and second
reading could not be had on the same day. If we allow ourselves.
to go into this business—if any member is now free to offer an
article and we merely instruct the Committee on Revision to
present it as part of the Constitution, where are we going to? It
was supposed that every original proposition should be referred
to its proper committee, returned from the committee and pass its
first and second readings. But now we propose by resolution to
send this article to the Committee on Revision and Adjustment.
I think the section is all right, but I don't believe we can af-
ford to adopt this measure and allow various members to intro-
duce measures of this kind.
DEBATES OF THE CONVENTION.
527
Mr. CAMP. I move that the rules be suspended and the arti-
cle be put upon its second and third reading.
The motion was seconded and carried.
Mr. JOHNSON. There are a good many flowing streams that
are now the property of individuals. Does this Convention con-
template the confiscation of the streams?
A discussion ensued on the question of adjournment and the
Convention decided that when they adjourn they would adjourn
to Tuesday at 2 o'oclock.
Mr. CAMP. There is a matter of great importance and the Re-
vision Committee cannot act upon it until it is settled. The whole
matter of the Schedule has not been reported to the Convention.
I desire also to move that the resolution introduced by the gen-
tleman from Morton, and which has had its first and second read-
ings be referred to the Committee on Revision and Adjustment,
with instructions to report the same as part of the Constitution.
Mr. SCOTT. The gentleman from Nelson suggested a few
minutes ago that a great many running streams and waterways in
this State are private property. Now what effect will the incor-
poration of this section in the Constitution have? Nearly all the
streams in the Territory, except the larger ones, are the property
of some private individuals. That being the case, I think we
should be careful what sort of a clause we insert in this Constitu-
tion in regard to them. There is another class of streams. Sup-
pose I dig an artesian well, and there is a flow of water. Would
the State reserve the right to use that water when it was my in-
dividual property?
Mr. PARSONS of Morton. The gentleman I believe is a law-
yer. I would like to put a proposition to him. If a man owns
land on both sides of a stream and owns the land under it, he may
utilize the portion that is on his land, but has he the right to
turn that stream from its course-to appropriate it in any way to
the detriment of anyone else below him who may need it? I
don't think he has a right to control that water or get up a syndi-
cate that should control it in any way. The matter of irrigation
may become one of the most important questions and in fact one
of the most vital interests, and it seems strange to me that any
man should endeavor to withhold from, or keep out of the power
of the State the natural waterways. It seems to me to be com-
mon sense that they should remain the property of the State.
528
DEBATES OF THE CONVENTION.
Mr. HOLMES. I move that the matter be referred to the
Attorney General.
Mr. STEVENS. Is this the resolution that was passed to its
first and second reading a few moments ago? If so the second
and third reading cannot be had on the same day, and it cannot
be taken up without a suspension of the rules.
Mr. CAMP. I am heartily in favor of this article and am
anxious that it should go to the Revision Committee, and we can
discuss it. I hope it will go to that committee.
The motion to send it to the Revision Committee with instruc-
tions to embody it in the Constitution was carried.
Mr. BARTLETT of Griggs. It seems to me we should find
out if there is anything on the Clerk's table that we can act on,
and if so clean it up and get it into the hands of the Revision
Committee. We want that committee to do its work well and
thoroughly and they can only do that when we have got every-
thing into their hands. I don't know but there are some matters
that can be acted upon.
Mr. WILLIAMS. The Committee on Schedule cannot make
their final report till they know what is going in the Constitution.
Mr. O'BRIEN. When the motion was put here to adjourn till
next Tuesday, it was done for the purpose of giving the Revision
Committee an opportunity to take advantage of that time in per-
forming their labors. If they cannot do the work that is allotted
to them because of the failure of the committee to report, I am
in favor of reconsidering the vote by which we decided to adjourn.
We want to get through, and we don't care to go home and come
back and then have to stay several days longer. I move that the
vote by which we decided to adjourn till Tuesday when we ad-
journ, be reconsidered.
Mr. NOBLE. If the Convention will permit me I will explain
something about this Schedule Committee. The committee is
ready to report everything except the question of expenses and a
few minor questions which it is impossible to report on until other
committees report. For instance, the Committee on Expenses.
It can all be handed to the Committee on Revision, and any little.
thing of that kind can be added to the Constitution by the Con-
vention when in Committee of the Whole.
Mr. WALLACE. I desire to move that section thirteen of File
No. 130 be adopted as printed. It reads as follows:
T
A
DEBATES OF THE CONVENTION.
529
SEC. 13. The Legislature shall pass suitable laws for the safe keeping,
transfer and disbursements of the State school funds, and shall require all offi-
cers charged with the same, or the safe keeping thereof, to give ample bonds
for all moneys and funds received by them, and if any of said officers shall
convert to his own use in any manner or form, or shall loan, with or without
interest, or shall deposit in his own name, or otherwise than in the name of the
State of North Dakota, or shall deposit in banks or with any person or per-
sons, or exchange for other funds or property any portion of the school funds
aforesaid, or purposely allow any portion of the same to remain in his hands
uninvested, except in the manner prescribed by law, every such act shall con-
stitute an embezzlement of so much of the aforesaid school funds as shall be
thus taken, or loaned, or deposited, or exchanged or withheld, and shall be a
felony, and any failure to pay over, produce or account for the State school
funds, or any part of the same intrusted to any such officer as by law required
or demanded, shall be taken to be prima facie evidence of such embezzle-
ment.
Mr. SPALDING. The Committee on School and Public
Lands considered this matter very carefully and decided to cut
out the matter that was cut out, and to insert the amendment that
was inserted, for the reason that there is nothing in the part that
was cut out except what is in the statute, and there is no reason.
why we should lumber up this Constitution with a definition of a
crime of embezzlement. We can't undertake to define every
crime in the code here.
Mr. WALLACE. I think it is very important that we should.
place every safeguard around the money of the Territory that is
possible. It is in the Constitution of the State of Minnesota.
Mr. MOER. In view of the fact that it is getting late I move
the previous question.
The motion of Mr. WALLACE was carried by a vote of 32 to 23.
Mr. CARLAND. As one of the members of the Commit-
tee on Revision and Adjustment I ask authority for that commit-
tee to have a sufficient number of copies of its report printed to
furnish every member of this Convention with a copy. My idea
is that the Constitution should be in the hands of every member
of the Convention when we come to consider it after it has gone
through the hands of that committee.
The suggestion of Mr. CARLAND was put in the form of a motion
and adopted.
Mr. CAMP. I move that the Committee on Schedule be re-
quested to hand their report to the Committee on Revision and
Adjustment to-morrow morning at 9 o'clock.
Mr. SCOTT. That is an important committee. It is a little
34
530
DEBATES OF THE CONVENTION.
out of the regular course to have this done, but under the circum-
stances I see no other way than to report to the Committee on Re-
vision. But if they don't report to-morrow I don't see how we
are going to compel them.
The motion of Mr. CAMP was seconded and adopted.
Mr. APPLETON. I desire to offer the following resolution
and move its adoption:
Resolved, That the Committee on Revision and Adjustment be requested
to report the following as an article of the Constitution:
"The State Treasurer shall invest all funds that may come into his hands
as such Treasurer belonging to the State of North Dakota in Government
bonds, except the sum of $50,000. All interest collected from said bonds to
go to the State, and shall sell said bonds whenever the funds shall be needed."
Mr. SPALDING. This resolution is out of order without a
suspension of the rules.
Mr. APPLETON. I move that the rules be suspended and
that the article pass to its first and second reading.
Mr. McHUGH. I move that the further consideration of the
resolution be indefinitely postponed.
The motion was seconded and carried.
Mr. WILLIAMS. I move to adjourn.
The motion prevailed, and the Convention adjourned.
FORTY-FIRST DAY.
BISMARCK, Tuesday, August 13, 1889.
The Convention met pursuant to adjournment, the PRESIDENT in
the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Communications were read from Grand Forks, Casselton,
Jamestown, Lisbon, Minto, Park River, Sheldon, Portland, Hat-
ton, Mayville, Lakota, Wheatland, Fargo and other places relative
to File No. 143.
Mr. SCOTT. I move that the further reading of these resolu-
DEBATES OF THE CONVENTION.
531
tions be referred to a committee of five, to be appointed by the
Chair.
The motion was seconded by Mr. MILLER.
Mr. PURCELL. I hope this motion will not prevail. It seems
to me that these expressions of the people should be heard here.
It seems to me the people have a right to send petitions to this
body, and that we have a right to hear them.
Mr. BARTLETT of Griggs. I wish to endorse the sentiment
of the gentleman from Richland. We have adopted a section
which gives the right of our citizens to petition their representa-
tives, and says that it shall not be denied, and I don't doubt the
very man who made this motion voted for that section.
Mr. BARTLETT of Dickey. I think the motion should not
prevail. I think it is no more than right that these communica-
tions should all be read.
(The remainder of the communications were read.)
Mr. MILLER. I move that all these communicatinos be re-
ferred to a committee of five, to be appointed by the Chair.
The motion was carried.
The committee was appointed as follows: Messrs. MILLER,
JOHNSON, SELBY, STEVENS and COLTON.
Mr. MOER. I find on my desk the report of the Revision
Committee. It gives us the Constitution in full as recommended
by that committee, and in view of the fact that we have had no
time to examine it, and I think we need time to do so, I would
move that we adjourn until 8 o'clock this evening.
The motion was carried.
EVENING SESSION.
The Convention proceeded to consider the report of the Com-
mittee on Revision and Adjustment.
The Preamble was read as follows:
"We, the people of North Dakota, grateful to Almighty God, for the bless-
ings of civil and religious liberty, do ordain and establish this Constitution."
Mr. ROWE. As a substitute I move that File No. 38 be substi-
tuted for this Preamble. It reads as follows:
"We, the people of North Dakota, in order to establish justice, insure do-
mestic tranquility, promote the general welfare and secure the blessings of
liberty to ourselves and our posterity, do ordain and establish this Constitu-
tion."
532
DEBATES OF THE CONVENTION.
3
Mr. BARTLETT of Dickey. I hope the members will give these
two sections serious reflection. It is a matter of some importance.
Those who are conversant with ancient history know that this
question of religion in the constitutions or in the law has been the
means of deluging the world with blood. It has been the means
of more human sacrifice the destruction of more human life
than everything else, and for my part while I believe in a Deity—
while I believe it is right to worship, and I don't believe there is
any good man that does not worship, I don't believe that these
things should be in a Preamble of a Constitution. I hope they
will give this matter consideration and put File No. 38 in the
Preamble.
Mr. STEVENS. This question has been once definitely settled
by this Convention that the Preamble of this Constitution should
contain the name and words "Almighty God" and for that reason
I move that the gentleman's motion be laid on the table
The motion of Mr. STEVENS was carried and the Preamble as
read was adopted.
THE BLACK LIST.
Section twenty-three with the recommendation of the Com-
mittee on Revision was read as follows:
SEC. 23. Every citizen of this State shall be free to obtain employment
wherever possible, and any person, corporation, or agent thereof, keeping a
black-list, interfering or hindering in any way, a citizen from obtaining or en-
joying employment already obtained, from any other corporation or person,
shall be deemed guilty of conspiracy against the welfare of the State, which
offense shall be punished as shall be prescribed by law.
[Committee recommend that this section be stricken out as in conflict with
section nine of "Declaration of Rights."]
Mr. PARSONS of Morton. As we have discussed this matter,
I move that the recommendation of the committee be laid on the
table.
The motion was seconded and lost by a vote of 24 to 39.
Mr. SPALDING. I move that the words "keeping a black
list" which occur in the section be stricken out.
The motion was seconded.
Mr. SCOTT. I move as a substitute that the recommendation
of the committee be concurred in.
The motion was seconded.
Mr. LAUDER. I desire to amend by moving that the section
as it appears in this Constitution be adopted.
The motion was seconded.
DEBATES OF THE CONVENTION.
533
Mr. CARLAND. Perhaps it is due the Convention for some
member of the Committee on Revision and Adjustment to state
in a brief manner what the ideas of the committee were in regard
to this section. It is not the black list part of it that is so objec-
tionable. But let us read it. Section nine is as follows:
SEC. 9. Every man may freely write, speak and publish his opinions on
all subjects, being responsible for the abuse of that privilege. In all civil and
criminal trials for libel the truth may be given in evidence, and shall be a suffi-
cient defense when the matter is published with good motives and for justifi-
able ends; and the jury shall have the same power of giving a general verdict
as in other cases; and in all indictment or informations for libels the jury shall
have the right to determine the law and the facts under the direction of the
courts as in other cases.
In all countries having a republican form of government this
section nine is the common law, almost. Every man shall have
the right freely to write, speak and publish his opinions on all
subjects, being held responsible for the abuse of that privilege.
That is the fundamental right guaranteed in the bill of rights.
What do you say in this section twenty-three? If any man shall
interfere, or hinder in any manner a citizen from obtaining or
enjoying employment already obtained he shall be guilty of con-
spiracy. I may have employed help, and the man may have been
guilty of embezzlement. A friend or relative who knows the man
writes to me and says that he is not trustworthy and that makes
him guilty of conspiracy against the State. A mercantile agency
could not report the condition of a merchant. The law is that a
man may express his opinion, and he may publish and write his
opinions, but he is responsible in the law for the abuse of that
privilege. If I wrongfully slander a person I am liable for dam-
ages. If a railroad corporation has done wrong to a man who has
been in its employ, or in the employ of another corporation, the
man has his remedy. The claim for damages is the only remedy
a person slandered has got. The two sections are in direct conflict.
Mr. LAUDER. I do not desire to occupy the time of the Con-
vention in discussing this question. It was discussed at great
length before the Convention on the second reading. It seems to
me that the arguments adduced by the gentleman from Burleigh
were all met at that time to the entire satisfaction of this Conven-
tion, so much so that the position he now takes was defeated by a
very large majority. I hope in the meantime the members have
not changed their minds. I dare say there is not a State in the
534
DEBATES OF THE CONVENTION.
Union that has a constitution in which there is not incorporated a
section exactly similar to section nine-the section which the gen-
tleman from Burleigh says meets every want, or supplies the place
of the section under consideration. In other words, with section.
nine the section under consideration (23) is unnecessary. Now,
we were told when this question was before the Convention the
reason why the section under consideration was inserted here. I
grant that there will be times when it will be to the public inter-
est that there be kept a black list so that one business man might
inform another of a customer who would not pay-that one cor-
poration might inform another of the character of men who make
application to that corporation for employment. As was said at
the time, if that was all there was to it there would be no necessity
for this section. But that is not all there is to this question. These
black lists are kept, as everybody knows, simply to intimidate la-
boring men so that a man shall not only do his work well, so that
the corporation which owns him shall not only have the benefit of
his services, but will own him body and soul; so that he dare not
assert his manhood and be independent, or if he does he will be
put on the black list, and it does not make any difference as to
how well or how ill he performs his tasks. They want the man's
vote; they want him to sink and surrender every particle of his
manhood, and if he does not he is put on the black list, and he
'cannot get employment elsewhere, unless he will submit to the
demands of his employers. It is to prevent anything of that kind
that it is sought to put this section in the Constitution.
Mr. MOER. I was not here at the time the discussion took
place, but if this section is in conflict with section nine-and we
have the opinion of a gentleman on this subject whom we all re-
spect-it seems to me it should not stand. Still, the point raised
by the gentleman from Richland is a good one-that it is wrong to
have a black list. It may be one of those wrongs that we cannot
right without working a greater injury. It would seem that we
ought not to pass a section here so if we tell one of our friends or
neighbors not to employ a certain man we will be guilty of con-
spiracy. The point raised by the gentleman from Burleigh is well
taken—that is, if any person is put on the black list he has his le-
gal remedy at law, and it seems to me this section is so far reach-
ing that in the long run it would do more harm than good. Cer-
tainly we should not put two sections in this Constitution that are
in conflict with each other.
DEBATES OF THE CONVENTION.
535
Mr. BARTLETT of Dickey. The gentleman who has just
spoken goes on and talks about good men being beaten out of em-
ployment. I have hired a good many thousand men, and I never
yet heard of a good man wanting work if there was any to be had.
I stand up here and say that I believe in the black list. I am wil-
ling that my constituents and friends should know it. Railroad
companies and all other companies will never blacklist a good
man. Good men are the men they want, and it is the fellows who
are all the time hatching trouble that they black list. It is all
a mistake about good men being black listed. I tell you it may
do to talk in politics-it may do to talk it here among delegates
who are not in the habit of hiring men, but when you talk to men
who have been in the habit of hiring others to work for them, it
is all wind. It is nothing but the merest sham.
Mr. CARLAND. There is another objection to section twenty-
three, which it seems to me is fatal to its going into this Consti-
tution, and every lawyer will see it. It says, “any person, corpo-
ration or agent therefor, keeping a black list, interfering or hin-
dering in any way a citizen from obtaining or enjoying employ-
ment already obtained from any other corporation or person, shall
be deemed guilty of conspiracy." I would like to have some one
tell me how any one person or corporation can be guilty of con-
spiracy? It is impossible in law-impossible under any circum-
stances for one person or any one corporation to be guilty of con-
spiracy.
Mr. PARSONS of Morton. I am not sufficiently educated in
legal language perhaps to make the point clear to the gentleman
that he wishes to have explained. I would like to say, however,
that this measure has met all these objections from the same gen-
tlemen who stood on the floor and argued and talked this, and it
is the same old story. The gentleman from Burleigh started up
by saying there is nothing in File No. 23 but what is contained in
the common law. I ask him what anyone is kicking for if this is
the case? But now he turns round and objects to it strenously
because it is contrary to the common law or some other law. It
seems to me that consistency would be desirable in this as well as
in other things. The gentleman speaks of conspiracy. Anyone
will see at once that before a person can come under the clause
specified he must have committed some offense. This offense
must be known and must be committed with others, and I don't
know any rule that governs us that would prevent us from putting
536
DEBATES OF THE CONVENTION.
SO.
this in the Constitution. The Constitution is the fundamental
law, and if the Constitution says a thing it will be supported in
the courts or anywhere else. If the Constitution says that such
an act shall be conspiracy it will be so and the courts will hold it
I am not going to quibble over the word conspiracy. If he
wishes to state that it is "contrary to public policy" or "contrary
to the welfare of the State" it will suit me. It is shown by the
remarks by the gentleman from Dickey that the men who are op-
posing this section are not the men who earn their living by the
sweat of their brows. There are many farmers here, and the
word "farmer" includes, we suppose, the man who earns his bread
by the sweat of his brow. I don't know a man who toils and
labors at days' wages who has ever been opposed to the measure
of the gentleman, and did not wish that it might be carried.
There is no resource under section nine, for the men we are
seeking to protect, or under any other section of this Constitu-
tion, and it is in the interest of justice and right that this measure
has been introduced. It has been fully explained, and unjust and
notorious efforts have been made to mislead. I ask you to stand
by the action that you have already taken. I believe that there is
no clause that can go into the Constitution which can lead more
hearts to be sincerely thankful than this one. I am a railroad
man, and have become experienced in this matter. I know how
it works, and there are men to-day who are as good as any man
on this floor who are persecuted from one end of the United
States to the other, and all because they dared to go against the
wishes of some corporation. It makes a great deal of difference
where a man stands. I ask for this section on behalf of the poor
man. It has been asserted here that these measures were intro-
duced in behalf of corporations. I don't believe there is a dele-
gate here on this floor who is so blind and stupid as to believe
that assertion. It is simply the remark of a demagogue. There
is a principle of right and justice at stake. There have been de-
cided changes in this country during the last twenty-five years.
We see evils growing up at an alarming rate on every side. It
has been discussed on the floor of this House, and there is noth-
ing in the arguments that have been advanced. I ask that those
of you who have listened to what has been said will stand by your
former action.
A vote was taken on Mr. LAUDER'S motion to adopt the section.
It was lost by a vote of 24 to 38.
DEBATES OF THE CONVENTION.
537
The substitute of Mr. SCOTT that the recommendation of the
committee to strike out the section was adopted by a vote of 37
to 25.
Mr. LAUDER. I move that the following be inserted as section
twenty-three of the article on Declaration of Rights in this Con-
stitution:
"Every citizen of this State shall be free to obtain employment wherever
possible, and any person, corporation or agent thereof, interfering or hindering
in any way a citizen from obtaining or enjoying employment already obtained
from any other corporation or person, shall be deemed guilty of a misdemeanor
and shall be punished as shall be prescribed by law."
Mr. CAMP. I rise to a point of order. The motion is not in
order.
The CHAIRMAN ruled that the motion was in order.
Mr. SCOTT. I move that the motion be laid upon the table.
The motion was seconded.
Mr. LAUDER. It seems to me that there is a disposition here
to enforce a sort of a gag rule. I hope every member of this
Convention will study this section-look over it carefully, and see,
satisfy yourselves, if you can, that there is nothing wrong about
it. It provides that every citizen shall be free to obtain employ-
ment wherever possible. That protects a man who is seeking em-
ployment from interference by those who are on strike, or who
would prevent it. "Any person, corporation or agent thereof, in-
terfering or hindering in any way a citizen," and so on.
That pro-
tects the man who is seeking employment from being hindered
and if there is anything wrong about that I would like to have it
pointed out to me.
Mr. SPALDING. I move to amend the section so that it will
read as follows: Insert the word "maliciously" before "interfer-
ing" and change "a" in the fourth line to "any" and leave out the
latter part of the section in regard to punishment.
The substitute offered by LAUDER was adopted.
The Preamble and Declaration of Rights, as amended, was
adopted.
Mr. PARSONS. I move to adjourn.
The motion prevailed and the Convention adjourned.
538
DEBATES OF THE CONVENTION.
FORTY-SECOND DAY.
BISMARCK, Wednesday, August 14, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Communications were read from Mayville, Clifford, Hillsboro,
Baltimore and Mandan.
Mr. WALLACE. I object to those Traill county people saying
that Steele county endorses the action of the Convention.
Mr. STEVENS. Before we commence with the third reading
of articles, there is a question of privilege I desire to speak to.
At the time we commenced our labors the question arose as to the
plan we should adopt in forming this Constitution. It was agreed
that articles should be prepared, referred to the different commit-
tees; that those committees should report; that the articles would
receive their second reading before the Committee of the Whole;
they whould then be passed on by the Convention to the Com-
mittee on Revision and Adjustment, whose duty it was understood
to be to settle any ambiguities that might have arisen between
any two sections-harmonize any discrepancies and correct any
grammatical errors or inconsistences that should appear in the
sections. This committee have taken to themselves an authority
that was never recognized, and never delegated to them by this
Convention. They have seen fit in their report to this Convention
not only to correct errors that may have appeared-not only to
strike out ambiguous sentences that may have been incorporated,
but they have seen fit to go further, and recommend to this Con-
vention to strike out articles that this Convention has, by a unani-
mous vote, passed to that committee. They have seen fit, when
compromises have been made between the different factions for
the purpose of having harmony, they have seen fit to recommend
the striking out entire of the section that has been compromised
}
DEBATES OF THE CONVENTION.
539
upon and agreed upon as one of the articles to be incorporated in
this Constitution. I refer more particularly to the article which
appears on page twenty-nine,section 174 of the printed Constitution.
This Convention will remember that was a discussion here as to
whether or not we should have a township organization system in
North Dakota. Some of the members were opposed to it and some
were favorable and it was finally agreed that as a compromise meas-
ure, satisfactory to all parties and unanimously passed by this Con-
vention, that the vote should be taken in each county-that the
question should be submitted to those counties where there was a
desire to have the township organization system. The gentleman
from Cass was the most loyal man in this Convention in opposi-
tion to the township system, and he agreed that the measure which
we incorporated in the Constitution was just and fair and that the
compromise was one that every member of this Convention could
agree to. Now this self-appointed committee-because it is self-
appointed so far as its action in regard to this section is concerned
-have seen fit, because they were in opposition to this township
system, to relegate to themselves a power that no man ever voted
they should have, and they ask that this section be stricken out.
Last night there was a motion passed in this Convention that
where there was no opposition to the sections they should be
passed, and where there was opposition to the suggested amend-
ment of the committee or to anything else it should be considered
by the Convention. The Chair in its very first ruling said: "If
there are no objections, this section will stand approved as
amended by the committee." By what authority have they done
this? Can you find a single resolution in our proceedings giving
this authority? If you are going to concur in this way in the re-
commendations of this committee you will find something before
this Convention that will keep us here till next week. If that is
the proceeding we are to have, we should before this have stood
here and fought for something that is nearer and dearer to us than
public institutions-the proper organizations of our counties. We
will rebel, and will fight your Constitution. If we have to have a
fight on the floor of this Convention to get a measure that we have
compromised upon, we want to know it, and we want to know it
soon.
Mr. BARTLETT of Griggs. I would like to ask the Chair if
the gentleman is at liberty to fire off that kind of a speech every
time he wants to do it?
540
DEBATES OF THE CONVENTION.
Mr. PARSONS of Morton. I desire to heartily endorse the re-
marks of the gentleman from Ransom.
Mr. NOBLE. I move to amend section twenty-nine by insert-
ing after the word "district" in the next to the last line: "And no
county shall be entitled to more than one Senator."
The motion was seconded. Lost.
REPRESENTATIVE DISTRICTS.
Mr. Purcell introduced the following resolution:
Resolved, That the Legislative Assembly shall divide the senatorial dis-
tricts into representative districts, and no more than one representative shall
be elected from one district.
Mr. PURCELL. I am well aware that this matter was under
discussion in the Committee of the Whole, but it seems to me
that proper care and thought has not been given to the subject.
The intention of having a lower house is that members may
come from the different sections of the country directly from the
people to express the sentiment of the different localities which
they represent. As the matter stands now the Representatives and.
Senators are elected without regard to districts. The same people
vote for Senators who vote for Representatives, and the Repre-
sentative is as directly a Representative of the senatorial district
as the Senator is. The intention of this motion is that the Rep-
resentative districts shall be specific-that they should be limited
in territory and the party who represents that district simply
comes here to represent the specific people who sent him. The
people in the district will under this motion be divided into sena-
torial and representative districts. As stated before, in the Na-
tional Congress the Senators represent the states, and each state
is entitled to two Senators, and each state is entitled to members
in the lower house in accordance with their population. But the
intention is that the states should be divided into congressional
districts, and each congressional district sends its Representative
to Congress-to the lower house. The purpose is that the differ-
ent interests in the different parts of the State may be repre-
sented, and instead of fighting over the Congressman at Large,
they have the Congressman each come from his district. That is
exactly the premises we argue from in this matter and that is the
reason why the representative districts in this State should be
fixed so that the people of a certain locality can have to them-
selves exclusively the right of selecting the man they want in the
DEBATES OF THE CONVENTION.
541
lower house to represent them. To say that the Representative
shall be elected in the same way as the Senator-you make no
distinction. In that case the Representative not only represents
the locality from which he comes, but he also represents the dis-
trict at large, and so does the Senator from the same district. But
if the districts are fixed, and if the law requires that from each
district there shall be a representative, then as in the National
Congress the interests of that particular district will receive the
attention of that member. Then again, under the present plan it
places it in the power of the large cities to say not only who shall
be the Senators, but the Representatives, and there is no guaran-
tee and no safeguard thrown around the people of the country to
have their interests or their measures looked after here. The
large cities will be able to make their nominations and force
the elections. But if the districts are fixed, and the law requires
the Representatives to go from separate districts, the people of
the several districts will have their interests looked after. For
that reason I think this matter should have careful consideration.
The motion was lost by a vote of 30 to 34.
Mr. JOHNSON.
THE TERMS OF SENATORS.
I ask leave to offer an amendment to section
thirty. Insert after the word "class" where it last appears in the
sixth line the words, "in the Senate first elected under this Con-
stitution."
Mr. BARTLETT of Griggs. Do we elect Senators this fall?
My idea was that we did not until after this Constitution is
adopted.
Mr. SCOTT. I desire to call the attention of the delegates to
the fact that this amendment would only apply to the Senators.
first elected. The Senators we elect now should only be for three
years. One class will hold their term for one year, retiring after
this next session, and there will be some more elected for four
years a year from now.
Mr. JOHNSON. The Schedule undoubtedly provides the same
for these officers as for other officers that they shall hold the first.
term for one year instead of two, but according to the explanation.
of the gentleman from Barnes this section as it appears in the
printed copy is intended to apply in future years. See what con-
fusion we shall have. If it is not intended to apply at the first
session only, they would have to divide by lot every time. You
542
DEBATES OF THE CONVENTION.
would always have this question arising-which of these clasess
should hold for two years and which for four years. It is evident
that this casting of lot should only occur at the start, so that it
can be determined which of the Senators shall hold the short
term and which the full term. If not it will be a question at the
opening of each Legislature to be decided by casting lots to see
which class shall hold for two years and which for four years.
Unless this amendment carries the objection will always be before
every Legislature.
Mr. CAMP. I think if the gentleman from Nelson will examine
section sixteen of the Schedule he will find the objection is all
covered.
Mr. JOHNSON. I submit to the gentleman if there is any
provision in section sixteen of the Schedule providing for when
these lots shall be cast and what Senators shall hold for two years
and what for four.
Mr. SCOTT. It seems to me that if they cast lots in the fall of
1890 they cast lots to see who will hold two years and who will
hold four. The short term men will go out in two years, and
there is no necessity of the members of the Senate ever again
casting lots. They can only cast lots once.
The amendment of Mr. JOHNSON was lost.
Mr. SPALDING. I desire to amend section thirty by insert-
ing after the word "class" where in last appears in the sixth line
the words "elected in 1890." I do that for the reason the gen-
tleman from Nelson offered his amendment, but I think that this
will make it a little more specific. It seems to me that it is the
intention of the section to have lots cast only once, and after that
the Senators will hold their office for four years each. The way it
reads now it is very indifinite, and it might mean that they should
continue to cast lots at every election.
The amendment of Mr. SPALDING was carried.
Mr. SCOTT. As I understand it when a section is read it will
be adopted. I move that hereafter when that is done we cannot
return to a section to reconsider, unless by unanimous consent.
Mr. JOHNSON. I think the precedent set last night was a
very fair and reasonable one. Some of us have not had an oppor-
tunity to study the sections that have been prepared by the com-
mittee as thoroughly as those we have been working on. We have
not the time in the few minutes or seconds that it takes to read a
section to think what it applies to. It can do no harm to not defi-
DEBATES OF THE CONVENTION.
543
nitely pass any sections until the article in which these sections
are contained is passed altogether.
Mr. PURCELL. It seems to me that this motion should not
prevail because if we have inadvertently overlooked a section that
contains something ambiguous this Convention should not hesitate
to go back and correct it. There may be some misunderstanding
as to the effect of some section, and the fact that it has been passed
should not hinder a correction. We are here to make a Constitu-
tion that the people want to understand and where there is any
clause we don't understand it is our duty to go back and rectify it.
Mr. BARTLETT of Dickey. I can see how dangerous it would
be. There are a good many sections that we have not digested
yet, and we see intelligent men who have examined them, and
voted in favor of them, and yet we find things that need changing.
It would be dangerous in the extreme to pass this motion.
Mr. SCOTT. If a section has already passed a critical examin-
ation from all the committees, from the members of the Commit-
tee of the Whole and by the Committee on Revision and Adjust-
ment, it should be enough. If we keep going back to these sec-
tions we are liable to stay here till next fall. If we can't see
where a section is ambiguous without going back to it so many
times we had better quit.
Mr. PURCELL. That may all be true, and yet the different
sections of this Constitution, after having received a critical ex-
amination, are liable to have slight errors. As a fair example, in
the Senate of the United States the Judiciary Committee is sup-
posed to be as well versed in the law as anybody, yet we know
that acts have passed that committee and the Senate, that have
been found afterwards to be unconstitutional. Wherever a divi-
sion of opinion exists as to the meaning of a section we should
make it plain, so that there may be nothing ambiguous about it.
We should do this if it takes all the year.
Mr. CLAPP. I move that whenever any changes are desired
to be made they only be considered at the end of the article, after
we have been through the article. That would give members an
opportunity to bring matters up.
The motion was seconded.
Mr. WILLIAMS. It seems to me that this Convention should
not at this time start in to adopt new rules. The motion made by
the gentleman from Barnes contains a harsh rule, and if this
Convention should make a mistake in a section it could not be
544
DEBATES OF THE CONVENTION.
corrected without unanimous consent. I think our rules that we
have adopted are sufficient and I don't see why we should change
them at this late day.
On motion the motion and substitute were laid on the table.
NEW APPORTIONMENTS.
Mr. CAMP. By some unaccountable oversight the Constitu-
tion has failed to provide for any census or reapportionment of the
senatorial districts. I offer the following addition to be made to
the end of section thirty-five.
"The Legislative Assembly shall, in the year 1895, and every tenth year
thereafter, cause an enumeration to be made of all the inhabitants of this
State, and shall at its first regular session, after each such enumeration and
also after each Federal census, proceed to fix by law the number of Senators
which shall constitute the Senate of North Dakota, and the number of Repre-
sentatives which shall constitute the House of Representatives of North Da-
kota, within the limits prescribed by this Constitution; and at the same ses-
sion shall proceed to re-apportion the State into senatorial districts, as pre-
scribed by this Constitution, and to fix the number of members of the House
of Representatives, to be elected from the several senatorial districts.”
This proposed amendment is based on File No. 33, introduced
by the gentleman from McIntosh early in the session.
Mr. WILLIAMS. It seems to me that this should not prevail.
This is a new country, and if we have to wait ten years before we
can have a re-apportionment, this western part will suffer. I think
this matter should be left to the Legislature as it has been under
the territorial system. They can take the vote, while under the
proposed system counties containing a large population might be
denied representation for several years.
Mr. CAMP. I am willing the apportionment should be made
every five years, and this does not prevent the Legislature making
it every five years. It simply compels them to make an appor-
tionment every ten years. There is one State that has suffered
seriously from the effect of the system proposed by the gentleman
from Burleigh. That is Delaware. They have been in shackles
because the Legislature refuses to re-apportion the State, and I
believe a similar section, carrying out the same idea, will be found
in almost every constitution requiring the census and territorial
apportionment.
The amendment of Mr. CAMP was adopted.
Mr. JOHNSON. I move that the words "and also after each
Federal census" be inserted after the word "enumeration."
The motion was seconded and carried.
DEBATES OF THE CONVENTION.
545
Mr. PARSONS of Morton. I move the reconsideration of sec-
tion thirty-five. I desire to make this point. The tide of immi-
gration is westward, and there is no question but in years to come.
every county west of the river, except, perhaps, a very narrow
portion of the country, fourteen miles wide and thirty miles long,
will be settled nearly as thickly as any other portion of the State
to-day. It seems unjust that we should take from the Legislature
the power to regulate that matter in the future. Do we wish to
hamper the immigration to this State by saying that no matter
how many people you have-no matter how many counties you.
have, you shall not have more than so many Representatives? It
seems unjust to all the country to do this. Here is an open coun-
try to be settled up. It is not a question of local interests-one
part of the State against another, but one of fairness and justice.
I don't believe there is a man on this floor that wishes to retard
immigration to this country or wishes to work injustice to anyone.
It very frequently happens that the population of a county will
double or treble, and perhaps quadruple in one year. It is a
known fact that the railroad has been sending all these immi-
grants to Washington Territory this year. What would be the ef-
fect if during the next year they were to locate their emigrants in
Dakota? The section as it stands would prohibit any apportion-
ment, and there might be a hundred for one that is here now, and
yet you would not allow any Representative for these people: I
ask in a spirit of fairness and justice to these people who come.
here, that we may have the same privilege that we have now, and
the Legislatuoe may have the power to change the apportionment
when it is desirable. If we were in an old state, where this question
of immigration does not come up-where it is thickly settled, I
would vote for ten or twenty years, because the population would
increase in such a state all over alike. But our circumstances are
entirely different. I think this section would be a barrier to the
population of portions of our country which are not taken up
now, and I hope the motion to reconsider will prevail, so that what-
ever part of the State is settled by new immigration may be re-
apportioned according to the number of votes it has got. We
have a stretch of country north, and west and south of us, and
the time is coming when just as surely as the eastern part of the
State was settled, so the western part will be settled. Do you
wish to place a provision in this Constitution which will debar
these people from securing their rights? If the matter is left to
35
546
DEBATES OF THE CONVENTION.
the Legislature it can be readily adjusted to meet the needs of
the day.
Mr. BARTLETT of Griggs. If the gentleman had been in
his seat he would have learned that this section did not restrict
the Legislature from making an apportionment every year. It
simply compels them to do it once in ten years. I hope we shall
not have a re-discussion of this matter. I don't think it is right
that a member who does not happen to be in his seat when a dis-
cussion is going on should be permitted to come in here and force
us to re-discuss a question. It is left to the Legislature with the
injunction to do it at least once in ten
years.
Mr. PARSONS of Morton. Do I understand that when this
Constitution says that the Legislature shall do a certain thing at
a certain time, that they can step in and do it at some other time?
Mr. CAMP. In my opinion there is nothing in this section to
prohibit the Legislature from apportioning the State every six
weeks. It simply requires them to do it every ten years.
Mr. PARSONS of Morton. I simply wanted to protect the
counties west of the Missouri. I want to see the Legislature
compelled to re-apportion the State once every five years.
Mr. ROLFE. I desire to add the following amendment to
section thirty-five: "Provided that the Legislative Assembly at
any regular session may re-district the State into senatorial dis-
tricts and apportion the Senators and Representatives respec-
tively."
Mr. ROLFE. I think there is a fair question as to whether the
article as it has been adopted would not prohibit the Legislature.
from making a new apportionment oftener than once in five years.
I suppose we know as much about this Constitution as anybody,
aud with us there is some question whether under the section as
it stands, whether the Legislature would not be prohibited from
making an apportionment oftener than once in five years. If we
have doubts the people will have them, for they have not had oc-
casion to study the matter as a good many of us have, and this
amendment will certainly settle a question in regard to the matter.
Of course, the Legislature need not apportion oftener than once
in five years if they see no occasion for it.
Mr. JOHNSON. I think the section is well enough as it is. I
think once in five years is enough. If you apportion for the term
of one State Senator, I think that is enough. We have seen in
the older states that where the apportioning is done too often there
DEBATES OF THE CONVENTION.
547
are shoe string and panhandle districts made, and this practice
has always led to confusion and bad morals in politics. I think
the census arrangement is the only fair one. If there is a storm
raging in the western part of the State and not in the eartern part
on the day of the election, you will have an unfair apportionment
if it is based on the vote. In some places in the larger counties
you will have to go forty miles to vote and that county will have a
disadvantage over the more thickly settled counties. In the
thickly settled states they will poll a larger vote in proportion to
population. Another thing in regard to the western counties-as
we have now this morning passed on the fact that representation
shall be based on population and not on counties, the preponder-
ance will be immensely in favor of the Red River Valley, and if
the State should be re-apportioned by the vote this part of the
State the western part-would be at a disadvantage.
Mr. PARSONS of Morton. I repudiate the arguments of the
gentleman. I have not the pleasure of having visited the Red
River Valley country except in Fargo, but I expect as fair treat-
ment from the people there as I would have from the people out-
side the Red River Valley. I don't believe that gentleman will
come in here and subscribe to a solemn oath and then try to cheat
us out of our rights. I am sorry the gentleman from Griggs (Mr.
BARTLETT) has left his seat. I object to any criticism of any
member for leaving his seat. If he has not a right to do this what
rights has he?
Mr. PURCELL. I move the following amendment to the
amendment of the gentleman from Benson:
"The Legislative Assembly shall have the power to apportion the senator-
ial districts into representative districts."
Mr. HARRIS. I trust the amendment of the gentleman from
Benson will pass. The tide of immigration in 1890 will be
turned into North Dakota. The Northern Pacific and Manitoba
railroads are doing all they can to turn the tide of immigration
into this State next year, and it is coming. It will not only be
the counties in the west that will feel it, but every county in this
Territory is going to receive the benefit. I don't think we should
be tied down to an apportionment for five years. New counties.
may be organized, and if they come in as organized counties in
1892 they will have no representation till 1895. As to the shoe-
string districts and panhandle districts, if one Legislature makes
548
DEBATES OF THE CONVENTION.
1
districts of this kind we want the next Legislature to have the
power to correct the fault. I believe it should be left to the
power of the Legislature in this new State to make the apportion-
ment as they see fit. The older states are no criterions for us to
go by. The State of Delaware is settled up. It has been an even
thing for years, but in this new country where it is settling rapidly,
we want the matter left in the hands of the Legislature. I trust
the amendment of the gentleman from Benson will prevail.
Mr. CAMP. I have not the slightest objection to the amend-
ment of the gentleman from Benson.
The amendment of Mr. PURCELL was carried by a vote of 29 to
28.
The amendment of Mr. ROLFE as amended was adopted.
AFTERNOON SESSION.
President FANCHER called Mr. NOBLE to the chair.
Mr. FANCHER. On Thursday evening of last week I, as Pres-
ident of this Convention, received three telegrams-two from
Grand Forks and one from the Governor of Idaho. These tele-
grams were received at my boarding house while I was at supper.
Immediately on going to the Convention a gentleman met me at
the door who had learned that these telegrams had been received,
and stated that he should raise a point that as they were addressed
to me personally they should not be read in this Convention. I
immediately told the gentleman-Mr. STEVENS of Ransom-that
I should overrule his point of order when it was made, and these
telegrams would be read promptly. I then stepped to the Clerk's
desk at 8 o'clock in the evening and gave the telegrams to the
Chief Clerk with instructions that they be read at the first oppor-
tunity. I have in my hand the Grand Forks Herald of date Aug-
ust 11th. One of the delegates from Grand Forks on this floor,
Mr. BENNETT, in making a speech at Grand Forks on the night of
the 10th made this statement: "At the evening meeting Presi-
dent FANCHER refused to have the Grand Forks telegrams read."
Since that time editorials have been written in this paper and in
others denouncing me for unfairness in not reading these tele-
grams. I feel quite certain that there is not a delegate on this
floor who since I have been presiding officer honestly believes that
I have ever in any way treated any delegate, or any message re-
ceived for this Convention, unfairly. I therefore ask the gentle-
DEBATES OF THE CONVENTION.
549
man who made that statement to correct it here and now.
ous gentlemen on the floor of this
those telegrams in his hands and
Vari-
Convention saw the Clerk take
attempt to read them. As you
all know, we were very much hurried that night for some reason.
When I took the chair I had no idea that we were going to adjourn
at all. But we did adjourn. Various motions came up to adjourn
till the next day, till Monday, and for two weeks, and the mem-
bers were engaged in fixing their papers and matters of that kind.
I desire to have a correction. The Chief Clerk will substantiate
what I have said, and I am sure there are a good many delegates
who will do the same.
Mr. BENNETT. I shall be very happy to correct any mistake
I may have made in the meeting at Grand Forks. I did not state
in my speech that the Chairman refused to read the telegrams.
After I was through with my remarks some gentleman in the
audience asked me if President FANCHER refused to read the tele-
grams. After thinking for a moment, I said: "Yes, by his acts
I consider he refused to read the telegrams." I stated that with
all sincerity at the time and I believe now and here that by his
acts he refused to read the telegrams.
Mr. FANCHER. I beg to state that under the rules of this
Convention it would have been a perfectly proper ruling for me
to make, that those telegrams could not be read that night. Our
rules provide that letters, petitions and remonstrances should be
read immediately after the Journal. We had long since passed
that order of business; we had been in discussion and had other
business before us, but I was very careful in this matter that I
went out of the regular order of business so that these people
might make their protests known. In view of that fact it seems.
to me remarkable that "the President by his acts tried to sup-
press those telegrams."
Mr. STEVENS. What the gentleman states as a conversation
between himself and myself is exactly correct. He came up and
I said, "FANCHER, I am going to object to those telegrams being
read. They are addressed to you." He said, "Yes, and I will
overrule the point of orler."
Mr. PARSONS of Morton. Inasmuch as there has been free
expression in regard to this matter, no matter with the subject
matter may have been in the telegrams; inasmuch as there has
been free expression on both sides, and there has been no check
placed on anyone, and there has been no check placed upon anyone
550
DEBATES OF THE CONVENTION.
*
from the day when we first assembled to the present time-the
Chair has been lenient in his rulings and allowed people to speak
out of order, and has gone ahead with the earnest desire to op-
press and gag no one, I move that it is the sense of this Conven-
tion that we entirely exonerate the President of the Convention
from the charge as presented by the gentleman from Grand Forks.
The motion was seconded.
Mr. WILLIAMS. I am perfectly satisfied that the President
of this Convention is innocent of this charge. On Thursday
night I made a motion to adjourn several times and it was, I be-
lieve, on my motion that the Convention finally adjourned. Once
or twice when I was on my feet to make this motion the Chief
Clerk was also on his feet for the purpose of reading these tele-
grams, and I was cognizant of the fact. I had seen the dispatches
but I thought that they pertained to matters that we should have
time to consider before we allowed them to be read. I really
moved for the adjournment in order to prevent their being read.
The motion of Mr. PARSONS was adopted by a vote of 71, four
members being absent and not voting.
Mr. JOHNSON. It is my recollection that at least twice, dele-
gates on the floor that Thursday evening asked if there was any-
thing else for disposition, and my recollection was that the answer
given was in the negative. If I am mistaken it would be a great
relief to me to be informed of the fact.
Mr. MOER. I should like to hear the Chief Clerk explain the
matter.
Chief Clerk HAMILTON. The recollection of the gentleman
from Nelson is entirely at fault. No such question was ever asked on
Thursday night at the time when those telegrams were here. I am
not in the habit of prevaricating or lying. I try to do my duty
faithfully, honestly, without fear, favor or affection, and I believe
that that is the sentiment of the Convention.
REPRESENTATION.
Mr. ROLFE. I move that the Convention do now reconsider
the vote by which it resolved that the Legislature may subdivide
senatorial districts into representative districts.
The motion was seconded.
Mr. PURCELL. I move that the motion of the gentleman
from Benson be laid on the table.
The motion of Mr. PURCELL was lost.
DEBATES OF THE CONVENTION.
551
Mr. MILLER. I move the adoption of section thirty-five as it
appears in the report of the Committee on Revision. It reads as
follows:
"The members of the House of Representatives shall be apportioned to
and elected at large from each senatorial district."
Mr. CAMP. The motion to reconsider only went to the amend-
ment of the gentleman from Richland.
The Chair ruled that the point was well taken.
Mr. STEVENS. I understand the question is now before the
House. I move to strike out the words, "the Legislative Assem-
bly shall have power to apportion senatorial districts into legisla-
tive districts."
The motion was seconded and carried.
RESTRICTIONS ON MEMBERS.
Sections thirty-five, thirty-six, thirty-seven and thirty-eight
were read and approved, and section thirty-nine was read as fol-
lows:
Sec. 39. No member of the Legislative Assembly shall, during the term
for which he was elected, be appointed or elected to any civil office in the
State which shall have been created, or the emoluments of which shall have
been increased, during the term for which he was elected; nor shall any mem-
ber receive any civil appointment from the Governor, or Governor and Sen-
ate, during the term for which he shall have been elected.
Mr. STEVENS. I move to add at the end of the section the
following words: "Unless he shall have resigned before his ap-
pointment.
Mr. MILLER. It strikes me that a better plan would be to
strike the section out entirely, than to add these words, for "Un-
less he shall have resigned" will simply give him an opportunity
to talk it over with the Governor in advance, and get his appoint-
ment.
Mr. STEVENS. A Senator is elected for four years. Under
this section he cannot be appointed to any office during that four
years. He serves the first term as a Senator-the first session
--and he cannot again appear as a Senator for a year and a half.
It is unreasonable to say that during that year and a half he may
not, if properly qualified and if the choice of the appointing
power, receive the appointment for some office he is capable of
filling; and under this section he would have no right to accept
552
DEBATES OF THE CONVENTION.
any office during that year and a half, except holding down the
position of Senator, waiting for the next session.
Mr. MOER. It seems to me that the suggestion made by the
gentleman from Cass is correct. The gentleman from Ransom
says he could not be appointed during the second year and a half,
but he knows that before he is elected to the State Senate. I
guess we can get along with the section as it is.
Mr. WILLIAMS. The intention was to prohibit members of
the Legislature from using their position to secure appointments
from the Governor, and at the same time it is a very good provis-
ion to place in the Constitution. Cut the members of the Legis-
lature off from using their influence in that body to secure for
themselves an appointment from the Governor. I think if the
amendment proposed by the gentleman from Ransom prevails, we
might just as well strike out the whole section. I think we will
have plenty of Senators and good Senators, and plenty of men to
fill every position. When a man accepts a position in the Legis-
lature he knows that he won't receive any other appointment.
Mr. STEVENS. If the gentlemen who are going to return to
the Senate are willing it should stand, I am willing, for I am not
going to return.
Mr. STEVENS withdrew his motion.
Sections thirty-nine, forty, forty-one, forty-two, forty-three and
forty-four were adopted.
When section forty-five was reached Mr. JOHNSON moved to
strike out the words "five dollars a day," and insert in the place
"$500 per session."
When the vote was taken Mr. PARSONS of Morton said: I
vote aye simply because I wish to make it possible for a poor man
to attend the Legislature.
Mr. STEVENS in voting said: I vote no, because I believe it
is the poorest place in the world for a poor man.
There were 11 votes aye and 62 no.
Sections forty-five and sixty-eight inclusive were adopted.
Mr. POLLOCK. It seems to me that the provisions contained
in sub-division fifteen of section sixty-nine are covered by sub-
division twenty-four. The first named sub-division reads as fol-
lows:
"The sale of mortgage of real estate belonging to minors or others under
disability."
DEBATES OF THE CONVENTION.
553
Sub-division twenty-four reads as follows:
"Affecting estates of deceased persons, minors or others under legal disa-
bilities."
I move that sub-division fifteen be stricken out.
Mr. JOHNSON. The gentleman from Cass and I argued this
question in the Committee of the Whole, and at that time the
committee sustained my views. I still hold that the real estate
under our laws as now provided for in section fifteen is no part of
the estate. That goes directly to the heir. An administrator has
nothing to do with it. I think they should both be left in.
The motion of Mr. POLLOCK was lost, and the section was
adopted.
The article was adopted and the Convention proceeded to con-
sider article three.
RESTRICTING THE GOVERNOR.
Section seventy-one was read and adopted, and section seventy-
two was then read as follows:
SEC. 72. No person shall be eligible to the office of Governor or Lieuten-
ant Governor except a citizen of the United States, and a qualified elector of
the State, who shall have attained the age of 30 years. and who shall have re-
sided five years next preceding the election within the State or Territory, nor
shall he be eligible to any other office during the term for which be shall have
been elected.
Mr. ROLFE. I move to strike out all after the word "Terri-
tory" in the fifth line. I believe we are tying up the hands of the
people too closely in prohibiting them from exercising the right
of choice of a Governor.
Mr. BARTLETT of Griggs. I hope this amendment will not
prevail. If there is any reason for adopting this section which
we have just passed, that members of the Legislative Assembly
should not be appointed by the Governor, there is certainly a
much stronger reason why the Governor should not be appointed
or elected by the Legislative Assembly during his term. I hope
we shall not strike out a part of this section that will enable the
Governor to use his appointing power to secure his election to the
United States Senate or any other office.
Mr. WILLIAMS. I fully endorse the remarks of the gentle-
man from Griggs. This provision was put into this section with
the express understanding that it disqualified the Governor from
election to the United States Senate. We don't believe the Gor-
554
DEBATES OF THE CONVENTION.
ernor should use the patronage at his disposal to promote his
elevation to the Senate, and we desire him to know in advance
that he is not eligible to election to the United States Senate. If
we strike this section out, the section disqualifying members of
the Legislature from holding other offices should be stricken out
also. This has been placed here in the interests of good govern-
ment.
Mr. LAUDER. The arguments urged by the gentleman from
Burleigh for the retention of this clause is that it would prevent
the Governor from being elected to the United States Senate. I
do not understand that that section would have that effect, because
we cannot prescribe the qualifications for a United States Senator.
The United States Senate is the judge of the qualifications of its
own members, and this clause will be inoperative so far as affect-
ing the election of the United States Senator is concerned. I was
opposed to the section to which he refers, rendering members of
the Legislature ineligible to any other office. It seems to me that
we are going in the wrong direction. The people of Dakota have
the right to select any man they choose to select whom they
please, and it seems to me that their hands should not be tied in
this way.
Mr. WILLIAMS. The gentleman from Richland has told us
nothing but what the Convention fully understood that the
United States Senate is the judge of the qualifications of its own.
members. But we were of the opinion that no honorable man
would take the oath to support the Constitution of the United
States and the Constitution of the State of North Dakota, and
threafter accept an election to the Senate of the United States
with this provision in our Constitution, which he was sworn to
support.
Mr. LAUDER. I don't understand that an unconstitutional
law has any binding force on anybody. When the Governor says
that he will support the Constitution he implies that he will sup-
port every clause that is constitutional. So far as it refers to the
election of a United States Senator-or his qualifications-it
is so much waste paper, and amounts to nothing.
Mr. STEVENS. If I recollect aright the gentleman from
Richland was one of the warmest supporters of having salaries
placed at such figures or at such a rate that we could command.
talent in judicial and other offices. Following that to its legiti-
mate conclusion, we would have a thousand dollar man to fill a
:
DEBATES OF THE CONVENTION.
555
thousand dollar place, and a three thousand dollar man to fill a
three thousand dollar place. A thousand dollar man would not be
supposed to be as talented as a three thousand dollar man. It would
therefore probably interfere with the best interests of the Terri-
tory to have a Lieutenant Governor become Governor of the State
when he was never intended to have been elected to fill that posi-
tion. You see here that a State Senator when he assumes the du-
ties of that position, assumes it with the full knowledge that he
can never be elected to any other office while is State Senator.
Why not let the Governor have the same understanding? Why
should not the same rule apply to the Governor? Surely if a
man can take the petty office of State Senator with the full
knowledge that he will be debarred from having any other office
for the next four years, a man could accept the greater office--
the greatest office under the State government-with the full
knowledge that he could not have any other office while he was
Governor. I say that this amendment is not moved for the best
interests of the State, but it is somebody's scheme for this fall.
Mr. LAUDER. The gentleman from Ransom intimates that
I have had a good deal to say about judges' salaries and so forth.
I think, Mr. PRESIDENT, the gentleman is very much mistaken.
The subject has not been under discussion.
Mr. STEVENS. The matter was talked of more than once in
the Committee on Judiciary, and you took part in it. You don't
deny that do you?
Mr. ROWE. I conceive that in all the list of officers named,
there is not one paid for his services and his ability that he exer-
cises better than the Lieutenant Governor. Furthermore, it is
generally considered when you place a man in the second position
on a ticket, that he shall be qualified to hold the highest position
should circumstances demand. We have plenty of cases where
we have secured some of the finest, ablest Senators in the United
States that have gone from the gubernatorial chair, and some of
our ablest war Governors went from the Lieutenant Governorship.
I say it is no more than right and fair to citizens of North Dakota,
that they have the right to send their Governor to the United
States Senate if they choose, and also their Lieutenant Governor
to the Governor's chair. I say there is no question about this,
and I am heartily in favor of striking out this sentence.
The motion of Mr. Rowe was lost by a vote of 13 to 55.
Sections 72, 73, 74, 75, 76, 77 and 78 were adopted.
556
DEBATES OF THE CONVENTION.
Section seventy-nine and the recommendation of the Committee
on Revision, were read as follows:
SEC. 79. Every bill which shall have passed the Legislative Assembly
shall before it becomes a law, be presented to the Governor. If he approve,
he shall sign, but if not, he shall return it with his objections, to the house in
which it originated, which shall enter the objection at large upon the Journal
and proceed to reconsider it. If after such reconsideration two-thirds of the
members present shall agree to pass the bill, it shall be sent, together with the
objections of the other house, by which it shall likewise be reconsidered, aud
if it be approved by two-thirds of the members present, it shall become a
law; but in all such cases the vote of both houses shall be determined by the
yeas and nays, and the names of the members voting for and against the bill
shall be entered upon the Journal of each house respectively. If any bill shall
not be returned by the Governor within three days (Sundays excepted) after it
shall have been presented to him, the same shall be a law, unless the Legis-
lative Assembly by its adjournment, pevent its return, in which case it shall be
filed with his objections, in the office of the Secretary of State, within fifteen
days after such adjournment, or become a law.
[Committee recommend that all after the words "shall be a law unless”
down to the words "with his objections," be stricken out, and that the follow-
ing be inserted, "he shall file the same," also that the last four words be
stricken out.]
Mr. PARSONS of Morton. Here is a case where the commit-
tee has been legislating for the benefit of the Convention. If
there is a grammatical error they should point it out, but here is a
recommendation that they strike out a certain important pro-
vision which this Convention has passed upon. It is simply a
matter of legislation. There is one committee that has sat
upon and determined these matters; reported them to the House;
they have been before the Committee of the Whole and now
comes a recommendation of the Committee on Revision in which
they pretend to do a little legislating on their own hook. As the
gentleman from Ransom said this morning, there should be a stop
put to this. It cuts out one important provision which the House
has passed.
Mr. CARLAND. I don't see where the committee has cut off
anything or exceeded their duty, and I dont see why this commit-
tee should periodically be talked about in this way. It will be
seen that this section closes as follows: "In which case it shall be
filed with his objection, in the office of the Secretary of State,
within fifteen days after such adjournment, or become a law." It
was the opinion of the committee that the words "or become a
law" in the place where they occur, were not as well phrased,
grammatically and otherwise, as it would be to end the section as
DEBATES OF THE CONVENTION.
557
recommended. It was considered by the committee that it would
be better to end the sentence in the way recommended.
Mr. FLEMINGTON. I move the recommendation of the com-
mittee be adopted.
Mr. PARSONS of Morton. I have no objection to the recom-
mendation as read by the Secretary, but I claim that the wording
of the Committee on Revision as printed is very different from
what was read by the Clerk.
Mr. MILLER. I move that the word "present" wherever it oc-
curs in this section be stricken out and the word "elected" be sub-
stituted.
Mr. SCOTT. If I remember correctly the amendment of the
gentleman from Cass is the way this thing was originally passed.
It was not two-thirds of the members present, but two-thirds of the
members elected. I don't know how it happens to be printed this
way.
The amendment of Mr. MILLER was carried.
A SALARY QUESTION.
The sections were adopted up to section eighty-four. This was
read as follows:
SEC. 84. Until otherwise provided by law, the Governor shall receive an
annual salary of $3,000; the Lieutenant Governor shall receive an annual salary
of $1,000; the Secretary of State, Auditor, Treasurer, Superintendent of Public
Instruction, Commissioner of Insurance, Commissioners of Railroads, and
Attorney General shall each receive an annual salary of $2,000; the salary of
the Commissioner of Agriculture and Labor shall be as prescribed by law, but
the salaries of any of the said officers shall not be increased or diminished dur-
ing the period for which they shall have been elected, and all fees and profits
arising from any of the said offices shall be covered into the State treasury.
Mr. WALLACE. I move that this section be amended by fixing
the compensation of the Lieutenant Governor at double that of a
State Senator.
The motion was seconded.
Mr. WALLACE. I wish to say that in most constitutions this
provision is incorporated-that the Lieutenant Governor shall re-
ceive double the pay of a State Senator. As it now stands he
receives about $33 a day for the same services, practially as are
performed by a State Senator who receives $5 a day. His duties.
are to preside over the Senate. You pay $1,000 for a year that he
does not do anything. He receives $2,000 for sixty days service in
the Legislature. I think there is such a thing as consistency.
Paying $2,000 for this service is ridiculous.
558
DEBATES OF THE CONVENTION.
The motion of Mr. WALLACE was lost.
Mr. BARTLETT of Griggs. I move to amend section eighty-
four by striking out the words "and Attorney General" in line six,.
and inserting the same words after the words "Lieutenant Gov-
ernor" in line three; also in line three insert the word "each" after
the word "shall." I believe the salary is too much. I think we
have have got all the salaries too high. The office of Attorney
General is one that takes but a small part of the time of the occu-
pant; it is in his line of business, and I believe that $1,000 is
ample for the duties he is called upon to perform.
Mr. CAMP. I have never been Attorney General, and don't
know how much time it would take, but it strikes me that
$1,000 will not go far toward paying for the services of a com-
petent Attorney General in trying the cases of the State of North
Dakota for the State in the Supreme Court. Every prosecution
that is appealed from the District Court will stand for the Attor-
ney General to prosecute in the Supreme Court. He will be the
counsel for every officer of the State, and it seems to me, although
it will not take one-quarter of his time, yet the services are of such
a nature that they are well worth, and if paid for by a private in-
dividual would cost, more than twice-more than three times the
sum specified as his salary.
Mr. WALLACE. I hope the motion will prevail. The gentle-
man from Stutsman does not know how much time it takes. I
have never been Attorney General myself and don't expect to,
but I think we all have a general opinion as to how much time
it takes. I undertake to say it is a pretty good time for us to
make some amendment in regard to this matter of salaries. The
pay is too high. It is beyond that which men in other callings
receive, and I think we should do ourselves credit by reducing it
at least one-half.
Mr. LAUDER. It seems to me that the gentleman from Griggs
cannot have seriously considered the responsibility that de-
volves upon the Attorney General, and the nature of the impor-
tant duties that he is called upon to perform, when he gets up and
advocates a salary of $1,000 a year. Why, Mr. PRESIDENT,
nearly every organized county in North Dakota pays a
greater salary than that for its district attorney. What are his
duties in comparison with those of the Attorney General? He
simply advises the county board and county officers, and repre-
sents the county in any litigation it may be engaged in. But as
DEBATES OF THE CONVENTION.
559
the gentleman from Stutsman says, any case that is appealed from
the district court, the Attorney General has to take care of before
the Supreme Court. I would remind the gentleman that that
work requires the highest order of ability. Almost any lawyer
can thrash around in the justice court, or the district court, but
when he comes to the Supreme Court it requires the highest order
of talent,and that is where the most of the work of the Attorney
General will come. Besides that, he is the legal adviser of every
one of the State officers. He is also called upon to advise the
Legislature when they are uncertain as to the constitutionality of a
law. If he is a competent man for the position, certainly his
services are worth more than $1,000 a year. An opinion from this
man— one single written opinion—if he is competent to fill that
office, is worth at least $100. His opinion on the constitution-
ality of an act if it is worth anything, is worth at least one-
fourth of his salary, and you could not get a competent lawyer to
prepare an opinion that the Legislature would be authorized
to rely upon for less than a quarter of his salary.
Mr. SPALDING. I don't believe in fixing the salaries at an
extravagant figure, and especially when we are just coming into
the Union, and I would draw a line in fixing salaries between those
offices which are honorary in their nature and those which are not
honorary-those which take all or nearly all the time of the occu-
pants, and those which take very little time. The office which is
purely honorary, like that of Lieutenant Governor for the great
portion of his time, I would reward by a small salary. I would
give him ample compensation for the time that he has to devote to
the State, but no more than that. On the other hand the office
which takes a man from his business-requires a profound educa-
tion to fill it-and requires much deep study and investigation in
complex subjects I would give him such a salary as would be a
reasonable compensation--as would be reasonable compensation for
the skill required. I have been partner of an attorney general,
and I know something about the time it takes, and I apprehend the
duties of the Attorney General of the Territory of Dakota will
not take up one-half the time of that they will take during the
first year or two of the existence of the State of North Dakota
under its present Constitution, and during its transformation from
a Territory to that of a State. The officers will be met with con-
undrums and questions continuously as to what their duties are
under this Constitution. I do know that the office of Attorney
560
DEBATES OF THE CONVENTION.
General in this Territory has required the careful, close attention.
of a skilled occupant for more time than there is in a day, and I
believe that it will require the skill and attention of more
than two men for the first year after we come in as a State,
to properly counsel and advise the officers, and perform
the other duties of the office. It is true, also, that the
Attorney General has many duties to perform in court, but they
are the smallest part of his duties. It is made the duty of the
Attorney General to advise the county officials and the district.
attorneys on all questions that they may ask his advice upon.
There is not a day passes that the Attorney General has not a
large number of inquiries asking his opinion on complex ques-
tions of law, many of which take several days or a week to inves-
tigate. That is the fact as it has existed under the territorial sys-
tem, and it must of necessity continue to be the same under state-
hood. For that reason I say the Attorney General should be
given such a salary as will command the ability and time of a
man competent to fill that office and advise these officers on grave
constitutional questions that will come before them. No man
with any knowledge of the subject-with any knowledge of
what a competent attorney can earn, will say that $1,000 will
secure such a man. Two thousand dollars is a small salary. You
are giving your members of the Legislature $5 a day, and they
are men, many of them, or probably will be, if we are judges of
the past, who will not have spent one hour to fit themselves for the
performance of their duties. They will come from the farm, the
workshop and the store, or anywhere else when they are elected,
without any special preparation for filling the office, and you pay
them at the rate of $1,500 a year, and yet here is an office requir-
ing to be filled by a man who has spent years in preparation-who
has spent years in obtaining the reputation as an attorney that
will for one moment make the people of the state consider his
name, and yet you propose to cut him down to two-thirds of what
you give a member of the Legislature.
4
Mr. WALLACE. I would call attention to the fact that the
Constitution of the State of North Dakota provides that the
salary of the Attorney General shall be $1,000. I think their
business will be fully as important as ours, and I think they
are very good judges of what time they will be employed and what
the attorney will have to do.
The motion of Mr. WALLACE was lost by a vote of 10 to 52.
DEBATES OF THE CONVENTION.
561
Sections eighty-four, eighty-five, eighty-six and eighty-seven
were read and adopted.
Section eighty-eight was read as follows:
SEC. 88. Until otherwise provided by law, three terms of the Supreme
Court shall be held each year, one at the seat of government, one at Fargo, and
one at Grand Forks.
Mr. NOBLE. I move as a substitute that the section shall be
made to read, "three terms shall be held each year at the seat of
government.”
Mr. BARTLETT of Dickey. I believe it is the feeling of the
people of the State that the terms of the Supreme Court should
be held at the seat of government, and I hope the motion will
carry.
Mr. FLEMINGTON. I agree with my colleague.
A call of the House was made, and the Convention subsequently
adjourned.
EVENING SESSION.
The substitute of Mr. NOBLE for section eighty-eight was lost by
a vote of 21 to 49.
The section was adopted; also section eighty-nine, and section
ninety was read as follows:
SEC. 90. The judges of the Supreme Court shall be elected by the quali-
fied electors of the State at large, and except as may be otherwise provided
herein for the first election for judges under this Constitution, said judges.
shall be elected at general elections.
Mr. STEVENS. I move to lay the motion of the gentleman
from Cass on the table.
Mr. SPALDING. I move to insert the word "not" after the
word "shall" in the fourth line.
The motion of Mr. STEVENS was carried.
Sections ninety, ninety-one and ninety-two were read and
adopted. Section ninety-three was read as follows:
SEC. 93. There shall be a Clerk and also a Reporter of the Supreme
Court, who shall be appointed by the judges thereof, and who shall hold their
office during the pleasure of said judges, and whose duties and emoluments
shall be prescribdd by law and by the rules of the Supreme Court not incon-
sistent with law. The Legislative Assembly shall make provisions for the
publication and distribution of the decisions of the Supreme Court, and for
the sale of the published volumes thereof.
36
562
DEBATES OF THE CONVENTION.
Mr. JOHNSON. I move to amend section ninety-three by in-
serting after the word "clerk" the words "of the Supreme Court,
whe shall be elected by the people for the term of four years."
Mr. MOER. I move to lay the motion on the table.
A vote was taken and Mr. LAUDER explained his vote as fol-
lows: I wish to explain my vote. As one of the members of the
Convention, particularly those who were members of the Judicial
Committee, I was opposed to the appointment of this Clerk. I
was in favor of the election of the Clerk, and took the position.
that the people were as competent to judge of their services in
the capacity of Clerk as the judges were, and I think now that
that is the better plan-that the power of electing a Clerk of the
Supreme Court should be left with the people. But that ques-
tion was fought over in the committee and the Convention, and it
was voted upon and the vote was decisive, and I vote to lay this
on the table because I am opposed to fighting these battles all
over again. It consumes time and in all human probability there
will be no change made.
The motion to lay on the table was carried by 45 to 27.
Sections ninety-three, ninety-four, ninety-five, ninety-six,
ninety-seven, ninety-eight, ninety-nine, 100, 101 and 102 were
adopted. Section 103 was read as follows:
DISTRICT COURT JURISDICTION.
SEC. 103. The district court shall have original jurisdiciion each within
its territorial limits, except as otherwise provided in this Constitution, of all
causes both at law and equity, and such appellate jurisdiction as may be con-
ferred by law. They and the judges thereof shall also have jurisdiction and
power to issue writs of habeas corpus, quo warranto, certiorari, injunction
and other original and remedial writs, with authority to hear and determine
the same.
Mr. CARLAND. I have grave doubts about the effect which
the expression of this section, in the second line, is going to have
"each within its territorial limits." I know what it was put in
there for. It was for the purpose of preventing persons from
being sued in counties other than those in which they reside. It
is a question purely of venue. I think it is a proper thing to be
left to the Legislature. I can conceive that it will prevent the is-
suance of a writ or judgment by the district court of the Sixth
District which can be levied on any other county out of the dis-
trict. I can conceive of a good many instances where a party
who had commenced his action in the Sixth District would de-
DEBATES OF THE CONVENTION.
563
1
sire to get provisional remedy. He might want to have it served
in another district. If this court is going to be confined to its
own district for the purpose of trying cases, it seems to me it is
going to tie up the hands of the court in a very serious manner,
and I think it is a very dangerous provision to leave in this section.
I move that the words be stricken out.
Mr. MILLER. I desire to second the motion. The practical
effect of that section will be such as is not intended by the parties.
who desired to have the jurisdiction of these courts limited. In
case a writ of attachment in the Sixth District was issued, and
there was other property in other districts, that writ would be use-
less in the other districts. The plaintiff would have to commence
action in the other districts, and it would hamper all business in a
thousand ways.
Mr. STEVENS. While that may be true it would also relieve
a thousand persons of being sued away from home and putting
them to unnecessary expense, and while it may be true that it
would be inconvenient for the lawyer who has a large collecting
business or an insurance business, or a vast amount of foreign
collections to make, to go to the district where the party lives, it
would be very convenient for the man against whom the suit was
brought. We have fought this thing over before, and I hope the
Convention will vote the motion down. Remember the hardships
that could be imposed upon a person if these words were stricken
out.
Mr. BARTLETT of Griggs. The gentleman from Ransom has
expressed my views exactly. I am happy to be in accord with
him in this matter. As he says, this matter was thoroughly dis-
cussed. It was simply a question whether the district court
should have territorial jurisdiction or jurisdiction within its dis-
trict. Why have any limits to the district court?. Why not have
five district judges and have them elected at large from the State?
Why have any district if they can sue as well out of the district
as in it? It seems to me if we have district judges, and the dis-
tricts are limited, their districts should be limited each to that
district. I will admit that some hardships will occur, but it
may be remedied by an amendment. We don't expect these
gentlemen who live in the center of a judicial district will vote
for it. It is very nice for them to sit in their offices in Fargo and
sue every man in the Territory, and if this is to prevail, let all
the attorneys go to Fargo and live, and let the district judges live
564
DEBATES OF THE CONVENTION.
there, and we can sue farmers in Walsh county, or any other
county without leaving our offices. A man should be sued in the
district and county where he lives, and no where else.
Mr. MILLER. The question of suing a man outside the dis-
trict in which he lives is not one that disturbs me at all. I am
satisfied to require a man to be sued in his own county unless per-
sonal service is made on him elsewhere. But there are grave
questions about this matter of jurisdiction. For instance, the
judge in the Third District is sick, or is inevitably away from home.
A man is incarcerated in jail who is unable to give bail. A writ
of habeas corpus would lie for the release of the man as soon as
you could get to a competent court. It would be impossible to go
into any other district, and he might lie in jail till he dies, or his
family dies waiting for the judge to come home or to recover from
sickness. No other judge could interfere. In the second place a
judge sick, or away from home, or worn out, or interested in some
particular case that is in his court, may have been an attorney in
the case, and he cannot call in a judge from another district to hold
his court. No, the judge has jurisdiction only in his territorial
limits. So the business is suspended if the judge is sick or dis-
qualified. What are you going to do with suits now pending? It
is to be presumed that lawyers now practicing will be elected as
judges. It is presumed that they have some cases pending in
court, and they cannot be tried in their courts because they are
disqualified. They cannot call in another judge because the busi-
ness would be outside his territorial limits. In the next case,
suppose a man in Griggs county desires to procure an injunc-
tion. Immediate and irreparable damage is to be done. The judge
of the district has gone to St. Paul on business. He cannot go
into any other district court for the injunction-he has got to
allow the man. to destroy the property at stake, or run away with
it. He is powerless; he cannot go to the Supreme Court. It seems
to me that every reason, if a man stops to consider the matter,
exists in favor of giving the judges of the district court, jurisdic-
tion much wider than is provided in this section. In regard to the
cry to startle people that somebody is to be sued out of his county,
I don't think it is worthy to be considered in a question of this im-
portance, because that can all be arranged and provided by law.
It seems to me the plan proposed by this section would hamper
justice in a very serious manner.
Mr. LAUDER. I appreciate the force of the arguments used
DEBATES OF THE CONVENTION.
565
by the gentleman from Cass county, but it seems to me under the
pretext of asking for a thing that is just and right, the gentleman
is going to get a great deal more that is wrong and that ought not
to be granted. I can understand why provision should be made.
here for one judge—a judge of one district-to act for and instead
of another judge who may be inevitably absent or sick, or is dis-
qualified, or for any other reason. It would be all well enough to
have a provision of this kind in this Constitution. And that is
the only argument I have heard on this point to my mind that has
any force. I desire to heartily concur in what has been said by
the gentlemen from Ransom and Griggs counties. I don't believe
we want to leave this Constitution in such shape that a man in
Griggs or Stutsman or Richland counties may be sued in Cass
county and compeiled either to go down there and defend his suit
away from home, or incur the expense of procuring a change of
venue. This was all gone over when it was before the Convention
before. The same argument was used then. The statute pro-
vides for a change of venue, but it entails on the defendant an ex-
pense to go into another county for the change of venue. It
should be his right, without cost and price and trouble, to have
his case tried in the county in which he lives. As was stated be-
fore, these insurance or machine notes are small, and a man had
better pay the note than go to the expense of procuring a change
of venue. If he lives here he must go down and hire a lawyer at
Fargo--appear there on a day certain before the court to present
his motion. The judge may be absent. If so he will have to go
again. I know how this thing goes. I have had experience, and
it is an outrage on the people of the State to permit even the pos-
sibility of their being sued out of the county in which they live.
Mr. CAMP. I also have had some experience, and it has never
yet cost a client of mine 1 cent to have his case tried in the proper
district. It has never put me to more than this trouble—I have
written a letter to the attorneys on the other side and told them
I should demand a change of venue, and I have never found an
attorney so obtuse or so bull-headed but that he at once signed a
stipulation granting a change of venue, for the law is mandatory
as it now stands. This talk about the expense and cost is the
simplest nonsense in the world. The law is perfectly plain as it
now stands that a man can compel a suit to be changed to his own
county, and he can do it without any cost. He does not have to
go to Fargo, and if the attorneys on the other side are so persis-
566
DEBATES OF THE CONVENTION.
tent as to refuse the change of venue, they have to pay the costs
of obtaining it.
Mr. LAUDER. The gentleman from Stutsman has been very
fortunate in his experience in securing a change of venue of his
cases. I will ask him-when he demanded a change of venue,
suppose the attorney had refused to sign the stipulation, then
what would he have done?
Mr. CAMP. I would have made a motion before the judge.
Mr. LAUDER. You would have been obliged to go before the
court and present your papers or employ some other lawyer to do
it for you. If there is any other way to procure a change of
venue I would like to have my attention called to it.
Mr. CAMP. The change is always granted as a matter of
course.
Mr. LAUDER. Yes, when the proper showing is made before
the court. But that can only be done by appearing before the
court and making your showing there, either by yourself or by
employing some other lawyer. The gentleman from Stutsman
has an easy way of doing work which I have never acquired.
Mr. CAMP. I have never found any attorney so ignorant or
discourteous as to put me to the trouble of going before the court.
Mr. CARLAND. I ask leave to withdraw the motion.
Mr. MOER. So far as this question is concerned, I don't be-
lieve there is any Constitution in the United States that attempts
to limit the district court like this. I believe the arguments
offered for it are the merest demagoguery. Any lawyer knows.
that all he has to do to get a change of venue in such a case as
we are discussing is to forward his motion with proper affidavits.
A change is granted as a matter of course on any showing. The
danger of limiting the jurisdiction of the district courts is greater
than any possible harm that can come from being sued outside the
district. It seems to me that this is pure demagoguery to take
such a position as is being taken here.
Mr. LAUDER. I rise to a question of privilege. My remarks
have been criticized as demagoguery. I desire to say that what I
have said here on this question has been the result of conviction.
There is no demagoguery about it. My remarks have been based
on convictions based on actual practice in Dakota Territory.
Mr. PARSONS of Morton. It seems that the principle argu-
ment advanced against this section is the fact that the judge may
be absent, sick or disqualified. Simply to meet this, I would
DEBATES OF THE CONVENTION.
567
offer the following to be inserted in section 103 after the words,
"confered by law" in the fourth line, "and whenever a district
judge is absent, sick or disqualified, any other district judge may
have jurisdiction during such sickness, absence or disqualification
in remedial writs."
Mr. STEVENS. I desire to say one thing only. Our support
of this motion which has been sustained by a large majority in
this Convention has been denominated demagoguery. The argu-
ments in support of their position by the opposition yesterday
were that if this section stands as it has been reported by the
committee, no judge could act in the district of another judge and
hold court. As far as the charge of demagoguery is concerned, I
am willing to abide by section 116 of this Constitution, which
reads as follows:
"Judges of the district court may hold court in other districts than their
own under such regulations as shall be prescribed by law."
The amendment of Mr. PARSONS was lost.
The motion of Mr. CARLAND was lost.
Mr. BARTLETT of Griggs. I move that the vote just had be
re-considered, and the reconsideration be laid on the table.
Mr. SCOTT. It seems to me that we are acting hastily in this
matter. We have the judgment of as competent men as there are
in this Convention, for whom I have the greatest respect, that this
section in its present shape is improper, and should not stand in
this way, and that some amendment should be made to it. If we
turn to section 116 we find the only authority conferred is on
judges in other districts, to hold court out of their districts, but
should a judge be sick in his own district or be absent temporarily
or otherwise, there is no provision by which any person can go to
the judge outside of his district and obtain any relief. It is a
very serious state of affairs, and there is no reason why we should
be left like that. If the gentlemen of the Convention would consider
for a moment they would not ask to have this re-considered and
laid on the table so that no amendment could be made. There is
not one case in five hundred where a person is maliciously sued,
and my experience is it is very little trouble to obtain a proper
change of venue. If we consider the matter candidly, and coolly
and seriously, and look at all the serious objections there are to
this section, which were fully stated by Mr. MILLER, I don't believe
the gentlemen of the Convention will insist on leaving this in this
568
DEBATES OF THE CONVENTION.
way, but will at least leave it so that we may have the matter
changed by the Legislature if it is deemed necessary.
Mr. LAUDER. I have just as high a regard for the legal abi-
ity of the gentlemen on the other side as my friend from Barnes
has, but I think the gentlemen who are advocating this change
have too much sense to feel that there is any reflection on their
ability or on them personally, when the Convention does not agree
with the views they put forth on this or any other question. Now,
there might be some force in the remarks of the gentleman from
Barnes were it not for the fact that this question was argued for
more than two hours, when it was considered on its second read-
ing. I don't wish to gag anybody, and I don't wish to hurry
over this question without due consideration, but it does seem to
me that all of these disputed questions that were fought over be-
fore ought not to be brought up now and fought over again. If
there is any part of this Constitution that this Convention should
be prepared to adopt without further consideration, it is the sec-
tion here that we are now considering, because we have given to
it as much consideration as any other part of this Constitution,
and I now move the previous question.
Mr. BARTLETT of Griggs. I desire to say that if there was
any indication that there was any harm being done, I would ask
that the motion be taken from the table, but the very fact that
they have voted down an amendment offered by the gentleman
from Morton that remedied the trouble they complained of, tells
me that they are not sincere in their objections.
Mr. PARSONS of Morton. I would like to second the words
of the gentleman from Griggs. The motion I introduced was
voted down deliberately, which answered the objections of the
gentlemen on the other side. If that was voted down in a spirit
of fairness, I would like to know what reason there was for doing
it? It answered every objection that had been raised to the sec-
tion, and I in corporated in it the very words of the gentleman
from Cass-absence, sickness or disqualification. Now it seems
to me that the other side were not sincere in the matter.
Mr. STEVENS. The previous question has been seconded.
Mr. MOER. Motion to reconsider was carried.
The motion to lay reconsideration on the table was lost.
Mr. FLEMINGTON. As there is such a difference of opinion
on this subject I move that the further consideration of the sec-
tion be postponed.
DEBATES OF THE CONVENTION.
569
Mr. ROLFE. I apprehend we will know nothing more about
this matter at 2 o'clock to-morrow than we do now, and I think the
Convention has pretty well settled in its mind what it wants. I
hope the motion will not prevail. As a substitute I move the
adoption of the section as it now stands.
The motion was seconded.
Mr. PURCELL. This is a very serious matter, in my judg
ment. It seems to me it ought not to be hurried through with.
If we give it a special order for to-morrow, in the meantime this
matter can receive a great deal of discussion between the mem-
bers. There is a good deal of opposition on both sides, and I hope
the motion of the gentleman from Dickey to postpone till to-mor-
row will be carried, for it should not be hastily passed.
Mr. SPALDING. It was my misfortune, and that of several
other members, to be occupied elsewhere when this discussion
took place before, and this matter as it has come up is the first I
have heard of it. So far as I am concerned I am inclined to
think it would apply to each member of the Joint Commission. I
should like to have a chance to examine this a little, and look into
it before taking a final step to adopt or reject this section. It
seems to me that it would be but fair that the matter which goes
to the very root of the district court business of this State and to
the very foundation of the rights of the people in the courts,
should be amply discussed and considered, and it should be laid
over till to-morrow.
Mr. MOER. All I would like to be shown is that the words
"each within its territorial limits" does not limit the process of the
court at all. I believe it does. If it does it is in my judgement
a serious mistake. If it does not I will vote for it. I think it
should go over till to-morrow and be made a special order.
Mr. FLEMINGTON. Undoubtedly a large majority of the
members of this Convention are in favor of a substitute of that
portion of this section which is under consideration here. It is
a matter of some little importance, and this is why I am in favor
of postponing its consideration till to-morrow. There can be no
harm done by this.
Mr. ROLFE. There has not been an argument advanced here
in opposition to this section that has not seemed to be in the in-
terest of attorneys who live in judicial centers The matter has
been fairly discussed, and I think we know what we want and I
hope the motion to postpone will not prevail.
570
DEBATES OF THE CONVENTION.
1
Mr. WILLIAMS. I have been voting with the majority on sec-
tion 103, and I feel like supporting the section, but I think the
request made by the minority is very fair, and as it is a very im-
portant question I can see no good reason for the Convention
refusing to postpone the consideration of this matter till to-mor-
row. It is of such general interest and importance, and as there
is such a stubborn minority, I think the majority should treat them
with respect, so that there may be further discussion on the
subject.
Mr. HARRIS. I have been voting with the majority, and I
have not had reasons enough presented to my mind to change my
vote. I am open to conviction, and I think it is fair and right
that we should put this over till to-morrow. If any reason can
be shown me why this section should be stricken out, I am willing
to do what is for the best interest of the State of North Dakota.
For that reason I would like to see it go over.
Mr. ROLFE. Since I made the motion I did, it has been sug-
gested to me that it might make it impossible for a process of the
district court to run over into another district in case of emergen-
cies where it might be very necessary that they should run over.
While I am in favor of the section as it stands, still I think it
should be modified a little with an amendment. I am in favor of
so limiting the jurisdiction of the district courts that every man
shall have a right to be sued in his own county, and his case to be
tried there, but for the reason I have stated I would withdraw my
substitute.
The motion of Mr. FLEMINGTON to postpone the subject was
carried.
COUNTY COURTS.
Section 111 with the recommendations of the committee were
read as follows:
SEC. 111. The county court shall have jurisdiction in probate and testa-
mentary matters, the appointment of administrators and guardians, the set-
tlement of the accounts of executors, administrators and guardians, the sale
of lands by executors, administrators and guardians, and such other probate
jurisdiction as may be conferred by law. Provided, That whenever the voters
of any county having a population of 2,000 or over, shall decide by a majority
vote that they desire the jurisdiction of said court increased above that limited
by this Constitution, then said county courts shall have concurrent jurisdic-
tion with the district courts in all civil actions where the amount in contro-
versy does not exceed $1,000, and in all criminal actions below the grade of
felony, and in case it is decided by the voters of any county to so increase the
DEBATES OF THE CONVENTION.
571
jurisdiction of said county court, then the justices of the peace of such county
shall have no exclusive jurisdiction, and the jurisdiction in cases of misde-
meanors arising under State laws which may have been conferred upon police
magistrates, shall cease. The qualifications of the judge of the county court
in counties where the jurisdiction of said court shall have been increased shall
be the same as those of the district judge, except he shall be a resident of the
county at the time of his election, and said county judge shall receive such
salary for his services as may be provided by law. In case the voters of any
county decide to increase the jurisdiction of said county courts, then such jur-
isdiction as thus increased shall remain until otherwise provided by law.
[Committee recommend that all after the words "county court" in the
proviso, commencing with the words "then the justices etc.," down to the words
"the jurisdiction in cases etc.," be stricken out.
Mr. ROLFE. I move that in the first line of the section, before
the word "jurisdiction" the word "exclusive" be inserted.
Mr. SPALDING. I move that the recommendation of the com-
mittee be adopted.
Mr. SCOTT. I want to understand the changes. I want to
know whether in case the recommendation of the committee is
adopted, whether the justice of the peace will have the same crim-
inal and civil jurisdiction as he would have if no county court was
established? Is that the intent of the committee in striking this
out?
Mr. BARTLETT of Griggs. The words struck out refer to the
exclusive jurisdiction of the justices of the peace, because the jus-
tices will have no such jurisdiction.
The section was adopted as recommended by the committee.
The amendment of Mr. ROLFE was amended by including also
the word "original," and as so amended was adopted.
Mr. SELBY. I move to adjourn.
The motion prevailed, and the Convention adjourned.
572
DEBATES OF THE CONVENTION.
FORTY-THIRD DAY.
BISMARCK, Thursday, August 15, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. SPALDING. I move that the resolution on page seven of
the Journal of Wednesday, July 17th, as amended on page five of
the Journal of July 18th, with the exception that the word "eight"
be substituted for the word "six," on page eighteen, in the fourth
line from the bottom, be adopted. The object of my motion is
this. As will be remembered this resolution passed and was then
reconsidered, and it has been left there all this time. I think the
motion to reconsider has served its purpose, and as it now stands
there is no authority to have any debates of this Convention
printed or preserved, and the stenographer knows nothing about
how much of the debates or whether any of them, shall be trans-
cribed. It being near adjournment there is no more proper time
than now that we should settle this matter definitely, and I there-
fore make this motion.
Mr. STEVENS. As I understand it there has already been a
motion passed that a thousand copies should be printed. This is
mainly a question of distribution. The members of the Conven-
tion are all in favor of printing these debates, and the question is
as to whether each member should have six copies or eight.
Mr. BARTLETT of Griggs. My recollection of this was that
this matter was voted down. If this Convention has heretofore
given authority and that authority has not been repealed-to print
the debates, let us go ahead, but as I understand it they re-consid-
ered the matter and voted down the proposition to publish the
debates.
Mr. STEVENS. There was no question as to the publishing of
the debates. The only question is as to the number we shall
have.
DEBATES OF THE CONVENTION.
573
1
ever.
Mr. PARSONS of Morton. The matter was reconsidered, and
an amendment offered to the resolution of the gentleman from
Burleigh, excluding from the debates all proceedings in Commit-
tee of the Whole, and the matter was left without any vote what-
There is nothing before the House in regard to the matter
now. There was a vote taken on an amendment offered to the
resolution of the gentleman from Burleigh, but the original mo-
tion as amended was never put to the House. I don't wish to take
the floor but once in this matter, but I wish to state this fact--that
of the proceedings in the Committee of the Whole the only re-
cord we have are the stenographers' records. We have a brief
synopsis or report of the Committee of the Whole as it appears in
the minutes, but the only positive record we have is the steno-
grapher's report. It seems to me to be the height of folly to pay
a man to take down these speeches-for that is the principal part
of what he has been doing unless we are going to make use of
them. The records of the other proceedings the secretary keeps
closely. A thousand and one questions will arise as to this course
and that course taken by different members here. That is the
only true record, and I don't know of a constitutional convention
ever held in the United States where these proceedings were not
preserved and printed. I have taken particular pains to speak to
the public printer in regard to this matter, and he informs me
that the proceedings thus far had would not make a book of more
than 400 pages.
The motion of Mr. SPALDING was lost by a vote of 21 to 45.
WOMEN VOTING ON SCHOOL MATTERS.
Mr. ROWE. I move to amend section 128 by striking out all
after the word "territory" the following words: "May vote for all
school officers and upon all questions pertaining solely to school
matters and be eligible to any school office."
The section was read as follows:
SEC. 128. Any woman having the qualifications enumerated in section one
of this article as to age, residence and citizenship, and including those now
qualified by the law of this Territory, may vote at any election held solely for
school purposes.
Mr. BARTLETT of Dickey. I move to further amend the
section by inserting after the word "any" in line one, the word
"single."
Mr. STEVENS. I hope this motion will not prevail. I hope
this Convention will not offer a premium on old maids. That is
ƒ
574
DEBATES OF THE CONVENTION.
what this motion means, and I am opposed to offering a premium
on old maids. I haven't any use for them.
Mr. MOER. I would like to know what effect the motion of
the gentleman from Dickey will have? I at one time said that I
would vote for this amendment, but I apprehended then that it
only covered officers of the county. The only question I desire
to ask is whether it allows a woman to vote for State School
Superintendent.
Mr. ROLFE. The question as I understand it is on the adop-
tion of the section as amended. The amendment is a singular
one. I don't object to the purpose of it, but the general effect.
If there is anything that we hold sacred it is the secrecy of the
ballot. How will the secrecy of the ballot of women offering to
vote on school matters be preserved if this section is adopted?
If a woman presents herself and offers to vote for school super-
intendent she must exhibit her vote before she will be permitted.
to cast her ballot. That is not only contrary to the genius of our
elective franchise, but contrary to section 129 following this, that
was passed unanimously, which provides that all elections shall
be by secret ballot. If our elections for State School Superin-
tendent and county school superintendent come at general elec-
tions as in all probability will be the case, any women offering to
vote at that election cannot have reserved to her the privilege of
a secret ballot, such as is guaranteed to men.
Mr. ROWE. I don't understand that it will be necessary for
any woman who goes to the polls to exhibit her ballot. This
amendment covers all school officers and all questions pertaining
to school matters. In the case of an election of a State School
Superintendent at the general election, it can be so arranged that
the ladies would be allowed to vote on School Superintendent.
There can be a separate ballot box for the women, and it will not
be necessary for them to exhibit their ballots.
Mr. STEVENS. These men who have fought this thing from
the first will still fight it. If a woman is entitled to vote for a
county superintendent the same rule should apply to State Super-
intendent. The county superintendent under our present Terri-
torial laws is not elected at the same time as other county officers,
but there is no provision that he shall not be. The Legislature
may prescribe methods by which the evils predicted by the gentle-
man from Benson will be avoided. Undoubtedly the details of
the question will have to be settled by the Legislature. There
DEBATES OF THE CONVENTION.
575
can be nothing done till the Legislature has prescribed rules.
The question before us is this-shall the women be allowed to
vote for school officers? I say it is absurd to say that women are
entitled to vote for school directors and not for school superinten-
dent and other school officers. If they are entitled to vote for
school director as they are now allowed to do under our territorial
laws, it is on the principle that they are entitled to have something
to say in the government of our common schools. They are as
much interested-and more in fact-as the men. Whatever little
education I may have I owe to my mother, and not to my father.
I say the women of this country are interested more in the sub-
ject of education than the men, and I say they should be entitled
to vote on this question, and if they vote on any branch of it,
they should vote on all of it. It is a queer state of things to say
that a man shall be entitled to enlist as a private and stand up as
a target, but that he shall never aspire to be a general or captain
of a company. That is what you say when you say that women
can go and vote for a school director and county superintendent,
but not for the State Superintendent. He is the general of the
army, and to say that the women can have no right to help select
that general is inconsistent with the first proposition. Either
they are not entitled to vote on educational subjects at all or they
are entitled to vote on all educational subjects. I hope no man
on this floor that is in favor of women voting on any branch of
education, will vote against this amendment.
Mr. MOER. The gentleman from Ransom is very popular
with the ladies now, and it would seem to have been wholly un-
necessary for him to have made this speech in view of the fact
that the question has been passed. The objection raised by the
gentleman from Benson was not, in my opinion, a captious one.
I propose to vote for this section. I have opposed one form of
woman suffrage. But, at the same time, it seems to me that when
an objection is raised that may be a valid one, it should be met in
some other manner than by such a speech as has been made by
the gentleman from Ransom. I believe the objection of the gen-
tleman from Benson has something in it. I don't see how a
woman is to vote unless there is a special provision made by the
Legislature, and we don't know whether the Legislature will make
it or not.
Mr. BARTLETT of Griggs. Again I shake hands with the
gentleman from Ransom. He expresses my sentiments exactly.
576
DEBATES OF THE CONVENTION.
One or two gentlemen are considerably worried over the matter of
the secrecy of the ballot. That section regarding the secrecy of
the ballot was put in there before we decided that women should
vote on school matters. Probably that would not have been put
in, because it is pretty well known that women have no secrets.
I rise to move the previous question.
Section 128 was adopted as amended.
Section 129 was also adopted.
AUSTRALIAN BALLOT SYSTEM.
Mr. PARSONS of Morton. I move that what is know as
Council Bill No. 60 be added to section 129.
Mr. SPALDING. This matter has been voted upon several
times, and there is but a small minority in favor of having this
done. To save time, I move that the motion be laid upon the
table.
Mr. MOER. I am in favor of the Australian bill system, but
I don't believe the Constitution is any place for it. I have con-
sistently opposed any proposition that would put this bill in here.
A great many other things have, in my judgment, gone into the
Constitution that had no business there.
Mr. WALLACE. I am in favor of the Australian ballot system,
but I don't think it would be wise to put it with all its complexity
in the Constitution, and I vote no.
The motion of Mr. PARSONS was laid on the table.
Mr. WILLIAMS. I desire to offer the following substitute for
section 129:
“The secrecy of the ballot shall be preserved inviolate; and the Legislative
Assembly shall pass suitable laws to secure the same. All ballots shall be
printed, distributed and delivered at the polls to electors for voting at public
expense and under public supervision, and at each polling place there shall be
provided a sufficient number of booths or compartments in which the electors
shall singly prepare their ballots in secret."
Mr. LAUDER. If we are going into this thing we may as well
do it thoroughly. But this substitute is legislation pure and
simple, and should be left to the Legislature.
Mr. MILLER. This substitute simply announces the funda-
mental principle. It is a just and proper provision. It gives the
Legislature power to go on and make a complete election law and
should be adopted by this Convention.
Mr. LAUDER. If that is not the Australian system what is
DEBATES OF THE CONVENTION.
577
the use of incurring all this expense? If that is not legislation
I don't know what legislation is.
Mr. MOER. I believe the substitute should be adopted. The
gentleman from Richland talks about legislation, and he has been
advocating legislation in this Constitution from the day we came
here. I say that this substitute goes to the purity of the ballot,
and there is no farmer on the floor of this House that should not
advocate this system. The purity of the ballot is what will prevent
corruption in the Legislature and we should take a step towards
purifying our ballot system. This provides that the State shall
provide ballots to be printed and they shall be secret. What
objection can the gentleman from Richland have to this? Let us
do something in expressing our approval of the principle of the
secret ballot.
Mr. CAMP. I am in favor of having something in the election
laws which will secure the secrecy of the ballot. During the last
month or so I have been looking into a system which does away
with ballots entirely and provides an entirely new method, which
is absolutely secret and does away with all solicitation at the polls,
and it seems to me is an almost perfect voting system and an im-
provement on the Australian system. The Legislature, in order
to carry out the provisions of this substitute would be obliged to
pass something like the Australian bill. While I am in favor of
the Australian system, I don't want to fix it so that the Legisla-
ture cannot adopt an improvement on it if there is one found.
Mr. PARSONS of Morton. The system the gentleman refers
to is very well in theory. It is a machine, and if the least thing
gets out of order with it the whole thing would be thrown out and
you would have to have a new election.
Mr. SCOTT. I think, as the gentleman from Richland says, if
we are going into providing a half Australian bill we had better
provide the whole thing. Section 129 provides that we shall have
a secret ballot system, and it leaves the Legislature free to adopt
a system. I don't think we want to put this in the Constitution.
AFTERNOON SESSION.
REGISTRATION OF VOTERS.
Mr. WILLIAMS. I desire to move the following as a substi-
tute for section 129:
37
578
DEBATES OF THE CONVENTION.
SEC. 129. The General Assembly shall immediately, and from time to
time, provide for by law a complete and uniform registration by election dis-
tricts of the names of qualified electors in this State; which registration shall
be evidence of the qualification of all registered electors to vote at any elec-
tion thereafter held; but no person shall be excluded from voting at any elec-
tion, on account of not being registered, until the General Assembly shall have
passed an Act of Registration which shall have gone into effect. No person
shall vote, except as provided in this Constitution, unless his name shall have
been registered as required by law at least ten days before the day of election.
A new registration shall be made within sixty days next preceding the tenth
day prior to every election; and after it shall have been made no person shall
establish his right to vote by the fact that his name appears on any previous
register. All laws for the registration of electors shall be uniform throughout
the State.
Mr. WILLIAMS. I think every member of this Convention
is in favor of honest and fair elections, and this provision will, I
think, insure it. It requires the Legislature immediately to pass
a registration law which will insure honest elections. That is
what the future State will desire, and I think it is a measure that
should find a place in our Constitution.
The substitute was laid on the table.
Mr. STEVENS. I move as a substitute the following:
"The Legislature shall provide by law for the registration of voters."
On motion the substitute was laid on the table.
Mr. BARTLETT of Griggs. I believe a majority are in favor
of a registration law, but I believe the principal objection to this
proposed section is that it goes into legislation, and provides what
the Legislature shall do, therefore I move to strike out all after
the word "held" in the fifth line of Mr. WILLIAMS' motion.
Mr. MILLER. That would exclude the provision beginning
in the fifth line "but no person shall be excluded from voting, etc."
If a man must be registered in order to vote, and there is no law
providing how he shall be registered, I don't know who would be
qualified voters.
The amendment of Mr. BARTLETT was adopted, and the section
as amended was adopted.
DISTRICT COURT JURISDICTION.
Section 103 being a special order was considered with 116.
Section 103 reals as follows:
SEC. 103. The district court shall have original jurisdiction each within
its territorial limits, except as otherwise provided in this Constitution, of all
DEBATES OF THE CONVENTION.
579
causes both at law and equity, and such appellate jurisdiction as may be con-
ferred by law. They and the judges thereof shall also have jurisdiction and
power to issue writs of habeas corpus, quo warranto, certiorari, injunction
and other original and remedial writs, with authority to hear and determine
the same.
Section 116 reads as follows:
SEC. 116. Judges of the district courts may hold court in other districts
than their own under such regulations as shall be prescribed by law.
Mr. LAUDER. We have had a good deal of discussion over
this section, and there seems to be some difference of opinion in
regard to it, and there were those who believed if the section were
adopted as it now stands it would prevent one judge from exercis-
ing any authority in another district. For that reason they desired
that it should not be adopted in this form. As you remember, a
large number of the delegates believed that to amend the section
as sought to be amended here last evening, would leave us prac-
tically in the same position we are in now—that a man might be
sued in any part of the State. I think I have an amendment
which will obviate the difficulty and place this section in such
shape that all delegates can support it. It is as follows: Strike
out in the second line the words "each within its territorial
limits" and add at the close of the section the following: "All
proceedings had and taken in any action not commenced in the
county in which the defendant or one of the defendants resides,
shall be null and void; Provided, however, That this section shall
not apply to non-residents of this State, or persons about to de-
part from the county of their residence."
You will see that it does not prevent a change of venue in pro-
per cases, but it simply provides that in the first instance the suit
shall be commenced in the county in which the defendant resides,
or one of the defendants. Then if the cause of justice will be pro-
moted by a change of venue an application can be made, but in
the first instance the action must be commenced in the county in
which the defendant resides. That is all there is of it, and I think
that is what we want. It does not prevent a provisional remedy
from operating in another county. Action may be commenced in
the county where the man resides, and it secures to every man
that when he is sued he shall be sued in the county in which he
lives, and if he is sued in any other county he will pay no atten-
tion to it, knowing that proceedings taken in the suit will be null.
and void. It does not restrict the process of the court, but it does
}
580
DEBATES OF THE CONVENTION.
secure to every citizen of the State the right of being sued if he
is sued at all, in the county in which he lives, and then if for any
reason the suit should be tried elsewhere, application can be made
to the court and a change of venue granted.
Mr. ROLFE. I believe the amendment has not been seconded.
I would second the amendment believing that it covers all objec-
tions made and secures the principle we would like to incorporate
in this section. Our laws heretofore have been framed in such a
way that action might be commenced wherever the plaintiff choose
to bring it, throwing on the defendant the burden of procuring a
change. We give to the defendant the right to have his case tried
in his own county, but the plaintiff may institute the suit in some
other county. Since we recognize the right of a defendant to have
his case tried in his own county, why not have it instituted in the
same county? Then if there is a reason for a change of place of
trial, let the expense and the trouble of securing the change fall
on the plaintiff rather than on the defendant. The amendment.
offered by the gentleman from Richland secures the defendant the
right to have his case instituted in the county where he lives. The
process of the district court will be valid throughout the limits of
the States and the objection will be done away with that was raised
that the process of the court would be only valid within the terri-
torial limits. That was a point we had not considered.
Mr. SPALDING. I call for a division of the question.
Mr. CARLAND. What became of my motion to strike out the
words "each within its territorial limits.'
""
Mr. SCOTT. We are entitled to a division of the question. I
am in favor of striking out these words, but not in favor of ad-
ding the amendment, because there are a good many exceptions
which perhaps the gentleman from Richland does not think of,
and I don't think it is a proper place now and here for us to say
under what circumstances and where a man may be sued. That
question is properly left to the Legislatue if any question is to be
left to them. Though I am in favor of striking out the words as
indicated in the motion of the gentleman from Burleigh, I am
not in favor of adding the clause introduced by the gentleman
from Richland. I believe the plaintiffs have rights in courts as
as well as the defendants, and the convenience of both parties.
should be consulted and the matter would be very properly left
to the Legislature to attend to. It is not our province and juris-
diction now to go into the matter.
DEBATES OF THE CONVENTION.
581
Mr. LAUDER. The objection was made to this section last
evening that it restricted the process of the court Now this
amendment proposes to remove that, and the only purpose of the
section is to provide that a man can only be sued in his own
county. It simply shows that the gentlemen were not acting in
good faith when they urged that objection, but they seek not only
to erase those words, but to leave it just as it is now so that a man
in Rollette county, if caught in Fargo, may be sued there. It is
a question whether this Convention desires such a provision in its
Constitution.
Mr. ROWE. I would like to ask what effect this would have
on a party living in a county that was attached to another for ju-
dicial purposes?
Mr. LAUDER. There will be no such county in this Constitu-
tion, for it provides that in every organized county there shall be
held two terms of court a year.
Mr. SPALDING. I call for a division of the question. I want
it divided so that the part which pertains to the striking out can
be voted on first and then a proper amendment may be added. I
don't believe the amendment offered is a proper amendment. But
I do want to have an amendment prepared that will voice the sen-
timents of the minority here and at the same time leave the thing
in proper shape, and that is why I call for a division of the ques-
tion.
Mr. BARTLETT of Griggs. I hope this motion to strike out
will be voted down. It is evident that some of these gentlemen
are not sincere. They do not want a man to have the privilege of
being sued in the county where he resides. Last night it was
postponed till this afternoon so that they could investigate it.
Now they say this is not a proper amendment. Have they a pro-
per amendment to offer? If they have they have not presented
it. They want these first words stricken out, and then they pro-
pose to vote down the amendment. I say let us keep these words
in the section and until the amendment is adopted.
The motion to strike out the words was lost by à vote of 29
to 34.
Mr. WILLIAMS. I think a majority of the members of this
Convention are in favor of allowing a man to be sued only in his
own county. I think the Convention should agree and I will move
that this section be re-committed to the Committee on Judiciary.
DEBATES OF THE CONVENTION.
582
I believe they will report a section which will be satisfactory to a
majority of this Convention.
The motion of Mr. WILLIAMS was seconded and carried.
Mr. BARTLET of Griggs. I move that the Committee on Ju-
diciary be instructed to prepare a section which will provide that
a man may be sued only in his own county. If we don't pass
some such motion as this it will simply come back to us as it did
before, and be discussed all over again.
Mr. SCOTT. I would like to inquire who is to be the judge as
to where the residence of the defendant is? The question of res-
idence is a question of fact, pure and simple, and a man may be
in Burleigh county to-day, or for three, or four, or six months, and
his actual residence, in the eye of the law, is not in any county—
not in any county at all. I say, who is going to be the judge as to
where the defendant resides? Suppose a man came here and did
business, and got into debt and another resident desired to sue
him, and he proved that his residence was in Eddy county or
some other county? Then all the proceedings would be void. It
seems to me that we should not instruct the committee to put
such a provision in the section as that. The question of residence
is a question of fact, and very frequently the law determines that
the residence of a man is determined according to his intentions.
-where he claims his residence, and not where he actually re-
sides.
Mr. MOER. I am heartily in sympathy with the movement to
get a defendant sued in the county where he resides, if it can be
done without any danger to our court system. But when you tie
up the hands of the judiciary in this way you don't let them ex-
ercise any judgment at all. I move that the motion of the gen-
tleman from Griggs be laid on the table.
The motion was seconded and carried.
Section 116 was adopted.
THE REGISTRATION QUESTION.
Mr. SPALDING moved that the vote by which article five was
adopted be reconsidered.
Mr. SPALDING. I don't believe we want to provide, or make
any provision, so that the simple fact that a man has registered
shall prevent anybody else from challenging his vote at the polls.
I don't believe such a provision is safe. It is easy to get regis-
tered and still not be a voter, and the tendency will be to put the
DEBATES OF THE CONVENTION.
583
responsibility of illegal voting on the registration, and parties.
who are not present at the time the registration is going on will
have no power to challenge those who may be improperly regis-
tered.
Mr. PARSONS of Morton. I move that the motion of the
gentleman from Cass be laid on the table.
The motion was lost and the motion to reconsider prevailed.
Mr. MILLER. As a matter of fact I don't believe the matter
can be taken from before this Convention until it finally adjourns.
This Convention has control of it till it finally adjourns. I want
to ask this Convention before this motion to reconsider is finally
yoted upon, in what position we were in if we do not reconsider?
There is a system providing for a registration law-providing that
when a man has registered, the fact that he has registered shall
be evidence of his qualifications to vote at any election held
thereafter. No subsequent registration is necessary—no qualifi-
cations required. Any man can go and register, and the fact that
he has registered is evidence of his right to vote. That is the
position we are in. This section taken altogether as introduced
would make a complete law. But this little fragment makes an
absurdity. I am in favor of a registration law, but I am not in
favor of something that is an absurdity on its face.
Mr. BARTLETT of Dickey. I am not in favor of the registration
law. In cities it is fine, but in the country you won't get men to
register, and it is a trick for political tricksters to come around
and get their friends who will vote for them, to register, and when
they come around to look, good honest men are not allowed to
vote. It is a trick to run men into office who are not worthy. A
great many of our voters have to come ten, fifteen or twenty miles
to vote, and you can't get them to leave their work. They say they
won't go twice. Such a law will defeat the honest sentiment
oftener than otherwise.
Mr. MILLER. I move the adoption of section 129. I believe
it covers every want. It gives all elections by the people by
secret ballot, subject to such regulations as shall be prescribed by
law. The Legislature may provide a registration law for both
cities and counties or for the cities alone, which will probably be
done.
Mr. WALLACE. I agree with the gentleman from Cass in the
objection he made to section 129 as it stood, and I think with him
that the provision which has been made which reads "which regis-
584
DEBATES OF THE CONVENTION.
tration shall be evidence of the qualification of all registered
electors to vote at any election thereafter held," is absurd. I move
to amend the amendment of the gentleman from Burleigh so as to
strike out all after the word "State" in the third line.
Mr. SELBY. It would seem that as we have the original prop-
osition before us and two amendments, that we are now in the
position that there is first the main motion, the motion to amend
and then the amendment to the amendment.
Mr. WILLIAMS. I would like to see this Convention go on
record for honest elections. I don't agree with the remarks of
the gentleman from Dickey. He finds the registration law works
injustice, and the local voter is deprived of his vote. I believe it is
better for a legal voter to lose his vote, than for ten or fifteen.
illegal voters to vote for him.
Mr. LAUDER. I heartily agree with everything said by the
gentleman from Burleigh. I am in favor of a strict registration
law, and in throwing all the safeguards possibe around the ballot
box. I am in favor of the Australian system of voting, but that
was voted down because it was legislation. If that was legisla-
tion I would like to know what this is. Let us have the Austra-
lian system as it was introduced here, or let us leave the whole
matter to the Legislature. I therefore move that the amendment
be laid on the table.
All amendments to section 129 were laid on the table.
Mr. WILLIAMS then moved again his original motion as a
substitute. The motion was ruled out of order, and article five
was adopted.
Sections 130 to 143 inclusive were adopted with the recommen-
dations of the committee.
RAILROAD RATES.
Section 144 was read with the recommendation of the committee
as follows:
SEC. 144. Railways heretofore constructed or that may hereafter be con-
structed in this State are hereby declared public highways, and all railroad,
sleeping car, telegraph, telephone and transportation companies of passengers,
intelligence and freight, are declared to be common carriers and subject
to legislative control; and the Legislative Assembly shall have power to enact
laws regulating and controlling the rates of charges for the transportation of
passengers and freight, as such common carriers from one point to another in
this State.
[Committee recommended that the word "intelligence" be inserted after
the word "passengers" in the next to the last line.]
DEBATES OF THE CONVENTION.
585
Mr. PURCELL.
This is in substance what is embraced in sec-
tion nine of File No. 135. As it stands now it will leave the cor-
porations in no position to take an appeal from the rates that
might be unjust or unreasonable. This question has received
some attention from the Supreme Court of the State of Minne-
sota, covering a position similar to this. All we ask is that the
railroad company have the right to go into the same tribunal
where every other person goes to have his rights adjudicated, and
have it determined there whether or not the rates are just and
reasonable. Judge Brewer in Minnesota, when deciding this
question, enjoined the Railroad Commissioners in Minnesota from
enforcing certain rates they had fixed. They then changed their
rates and fixed another rate. There was an injunction obtained
forbidding them from enforcing their rates. But when deciding
the constitutional question raised in Minnesota the judge held
that it did not appear that the rates were unreasonable. But
where the Railroad Commissioners may fix rates that are unrea-
sonable without a constitutional provision allowing the companies
to appeal to some tribunal, they have no remedy. An amendment
I shall move simply gives the courts the power to decide whether
the rates are reasonable. It does not seem to me that there is any
advantage to the company or against the company in a provision
of this sort. I move to amend the section by adding the follow-
ing:
Provided, That the common carriers above named, or any party interested,
shall have the right to appeal to the courts from the rate so fixed by the Legisla-
tive Assembly whenever said rates as fixed appear to be unreasonable or unjust.
Provided, further, That pending the determination of appeal, the court
shall fix and determine what rates shall be in force.
Mr. LAUDER. This is perhaps one of the most important
questions that has ever been before this Convention. It seems to
me that when this section is acted upon it should be acted upon
before a full Convention. I move the call of the House.
After the call of the House proceedings had been disposed of
Mr. JOHNSON said: I understand the question before the House
is the amendment of the gentleman from Richland. I don't wish
to go over the same ground that has been gone over before. I
recognize in the amendment of the gentleman from Richland at
least an old acquaintance, if not an old friend. It is essentially
the same question that we went over a week ago Saturday night,
and I shall endeavor as far as possible to make my remarks brief
586
DEBATES OF THE CONVENTION.
unless we should have some new arguments or some new positions
for us to consider. Our present predicament is very much like
that of the colored brother who went fishing. He caught a very
large catfish. He did not want to carry it all day with him, so he
put a string in the fish's gills and tied the other end of the string
to a sapling. Pretty soon a little colored brother came along who
had caught a little catfish. He determined that a fair exchange
would be no robbery, so he untied the string from the gills of the
big catfish and tied them into the gills of the little catfish.
Toward evening the large colored brother came along to get his
fish. To his astonishment, his fish had shrunk up wonderfully.
He said "This is the same place-same sapling, same string and it
must be the same catfish, but Lor, how he has shrunk up." We
have here the same section, the same amendment and the same
argument, and I hope the majority we tied in the section by the
gills has not shrunk up-that there has been no little
darkey around making an exchange. The position that
we would be in if the amendment carries is one that would
not relieve the company or the patrons of the road. It is essen-
tially this to provide a means to go into court and determine
what is reasonable. You who were here when this question was
argued before know very well that it is utterly impossible to fix
rates a year or six months in advance. They will fluctuate with
the rain and the storm-good crops and poor crops. Hence, the
enlightened states have all placed their railroad systems under
railroad commissioners, and these commissioners have fixed rates
and changed them from time to time, as is necessary. Suppose
this amendment were adopted, authorizing these men to disregard
the rates fixed by the Railroad Commissioners till a decision of
the court could be reached. That would take, probably, several
years, and when finished it would simply determine what was
right and reasonable at the time it was started. There is no way
to reach this question except through Railroad Commissioners
that can fix rates and change them from time to time-an appeal
to public sentiment-an appeal to the elections--an appeal that
can be felt promptly. If injustice should be done to anybody or
to any community, letters and telegrams would pour in on these
Commissioners, and anything that was fair, and just and reasona-
ble they would listen to.
Mr. STEVENS. I am not a catfish, and I have not been tied
to any sapling. I am not in any pool, but yet, according to the
DEBATES OF THE CONVENTION.
587
gentleman's theory, I have shrunk up. I have shrunk up for this
reason--the amendment as it now appears is just and fair. The
greatest stay to a republican form of government is the courts of
justice. If we cannot depend upon our courts of justice, upon
what can we depend? Railroad Commissioners might possibly
be biased. But these judges are sworn officers, and they are the
best judges of what should be done--of what the law should be.
I understand under the amendment, as it has been offered, that
the judges of the courts shall have the right to determine what
seall be the rate, pending litigation. That is what I have been in
favor of from the first. I have fought for this idea-that an ap-
peal should not be taken and the question hung up until the ap-
peal had been determined. Now if the courts decide what
those rates shall be, it is eminently fair, and right
and proper.
The courts have finally to decide this
question, and upon a showing if they say that the rate is reason-
able that rate should be established pending this litigation. I
say that is right. The United States court, under our present
laws in similar cases-and in fact in almost every case that may
come before them, have a right to issue an order which shall con-
trol and govern the property in litigation pending a decision.
Our territorial court should have the same right. We ought not
to go further in the Constitution of the State of North Dakota
than the United States Constitution has seen fit to go.
We are
subject to that Constitution-we are subject to its provisions—we
have adopted it, and that Constitution allows the United States
courts by laws enacted by Congress to tie up your property and
my property, and the property of corporations subject to the de-
cision of that court. They may issue an order, which order will
remain in force and will control until such time as they may have
rendered their final decision in the case. So, too, in my opinion
should the courts of this territory have a right when the question
before them has been appealed from, to issue an order which will
control until a final decision in the case is rendered. Nobody can
complain at that. No farmer, no business man, no citizen, would
have a right to complain at an order which whould be made by
the court to which he submitted his grievances. The court has
the question before it, and temporarily it will decide what is just
and right between the parties until such time as they have ren-
dered their final decision. I am opposed to monopolies and op-
pression. I am opposed to putting anything in this Constitution
588
DEBATES OF THE CONVENTION.
that will give a railroad company any influence-any benefit-any
right that every citizen does not enjoy. I am opposed to putting
anything in this Constitution, any provision which will allow a
railroad company or any other corporation by any rule that may
be established, to take advantage of their position and thereby
oppress anybody. But when the question is to be submitted
to the courts-when the question comes in the form that
it would between two citizens, then I say if I fought against
that provision I fought to say I am afraid the corporations will
control the judiciary of the State. If you say that, what advan-
tage will you have by the temporary advantage you gain by this
section? If the courts have the right to finally determine this,
and you are bound by that determination, why have not they also
the right to determine it, pending that decision. I told the gen-
tleman from Richland that if he would put in that amendment a
provision which would allow the courts to determine what the
rates should be pending the litigation, I would be in favor of it.
Without I would be opposed to it. When it is proposed that
the courts shall establish the rate pending the trial of the case, I
would not be loyal to our courts if I did not say that I was in
favor of it.
Mr. PARSONS of Morton. I am not in favor of this because
I do not favor any method of procedure by which the Legislature
or the people may be wronged out of their rights. For instance,
in the present amendment before the House if the rate were fixed
by a board of Railroad Commissioners, appeals could be had from
that decision and the court would fix the rate. My objection is
that no court could fix a rate intelligently until it had heard the
question. An appeal would be had from court to court and it
might be three years before any remedy could be found or any
decision arrived at. It seems to be the- object of some of the
gentlemen here to defeat the very thing that we are asking for in
this measure. If that is possible if this amendment should
carry-it would defeat the very thing we have struggled for for
years in other states, and is our right in this State. There was a
measure offered before this House allowing an appeal from the
decision of the board of Railroad Commissioners, but
the provision that their decision should be in force pend-·
ing the decision of the court. Now it seems to me if
we deviate from that in the least particle we will be
giving away and forfeiting all we have struggled for in
!
DEBATES OF THE CONVENTION.
589
We
the last fifteen or twenty-five years in the other states.
wish to profit by the mistakes and the battles in the other states.
My amendment was defeated on the second reading. It was of-
fered-it was part of the report of the committee and from an
oversight of the clerk of that committee it was not printed. I hope
the amendment will not prevail, for one reason that it sacrifices
our interests. But I do not wish to go on record as supporting a
proposition which leaves any three men under heaven to fix rates
from which rates a railroad corporation cannot appeal. The time
has not come when the people should be afraid to trust their inter-
ests in the hands of a court and a jury of twelve men. I am in
favor of leaving it in such a way that whatever the decision of the
Board of Railroad Commissioners is, if any party feels aggrieved
he may appeal to the courts of the State. But the decision of that
board should be in force until the courts have decided. If this is
carried out, then the right to appeal cannot be used as a means of
evading what is right and just in the matter of rates, by the rail-
road company. Therefore I move as a substitute a clause which,
remember, was accepted as the report of the committee once, and
which I hope will pass:
“Provided, That appeal may be had to the courts of this State, from the
rates so fixed, but the rates fixed by the Legislative Assembly or Board of Rail-
road Commissioners shall be in force pending the decision of the courts."
Mr. PURCELL. There was some question as to whether or
not a railroad company had the right to appeal under a section of
a constitution similar to ours. Under section 144 as we now have
it, we provide that the railroad companies and others known as
common carriers shall be subject to leglslative control, but the
Legislative Assembly shall have power to enact laws regulating
and controlling rates. The purpose of offering my amendment is
that in the Constitution we may provide that if the rates fixed by
the Legislature or a body to whom the Legislature may
delegate its power, shall be unjust or unreasonable, the
company may have the right to an appeal to the courts. A
great many of the members are under the impression that
they have that power already that it does not require a con-
stitutional provision to give the company the right to an appeal
to the courts. That is untrue, for in Minnesota under a similar
clause the Supreme Court of that State in the case of the State
vs. the Chicago, Milwaukee & St. Paul railroad company, (found
•
590
DEBATES OF THE CONVENTION.
in volume 37 of the Northwestern Reporter,) the Supreme Court
holds that they have no right to appeal. They hold that the
power vested in the Board of Railroad Commissioners is conclu-
sive, and that no right to appeal lies from their decision to the
courts of that state. Now in one instance the Railroad Commis-
sioners of the State of Minnesota have fixed rates which in the
judgment of many railroads are unreasonable. For instance, as
was stated by the gentleman from Cass, they fixed on $1 a car
which should be charged for switching cars, when it was found
that the cost of switching cars was $2.12, so that to-day under the
rates fixed by the Railroad Commissioners of Minnesota, they are
compelled to do the work at a loss of $1.12 per car. If they had
a right to appeal to the courts, they might take into consideration
the reasonableness or the unreasonableness of the rates so fixed.
That is all we ask. Simply that whenever a question arises be-
tween a company and the Board of Railroad Commissioners or
any party in interest, they shall have the right to go into the
courts and say what is reasonable and right. It has been ad-
mitted by the substitute of the gentleman from Morton that the
rates fixed by the Commissioners remain in force pending the
trial. Now a little instance occurs to me of this kind. The Board
of Railroad Commissioners not only have the power to fix rates
for the transportation of freight, but they can control the running
of trains. In one instance the Commissioners required the
Northern Pacific to make connections with trains at Glyndon, run-
ning north on the Manitoba. At the same time they required
that same railroad company to make connections at Casselton, and
as was stated by one man it was beyond all the power of human
possibility to make connections such as were insisted on at Glyn-
don and Casselton. So that the gentlemen of this Convention
will easily see that where it is left in the hands of three men they
will at times put railroad companies in a position that no corpor-
ation should be put in, if there is no appeal from their decision.
There is no man here but will say that when railroad companies
have invested their money they should be entitled to a fair profit.
Where they are compelled to carry passengers and freight at a
loss, it is reasonable that they should have the same rights as in-
dividuals in appealing to the courts. In our Bill of Rights we give
every man the right to go into the courts and have his wrongs
remedied, and all we ask is that we give the corporations the same
rights. If this substitute prevails the rates fixed by the Board of
DEBATES OF THE CONVENTION.
591
Commissioners remains in force. Now the appeal taken in the
case I have mentioned was taken on the 20th April, 1880. An ap-
peal was taken from the Supreme Court of the State of Minnesota
to the Supreme Court of the United States, and that case is unde-
cided yet, and the companies to-day are switching cars in Minne-
apolis at a loss of $1.12 a car. We ask, is that reasonable and
right? On the other hand is not the amendment I have offered
here reasonable and just, and such as every man on this floor
would be willing to have in this Constitution if he represented
either the railroads or the people? If the rate appealed from by
the company is unjust, that rate should not exist one minute. If
it is unjust to the individual it should not exist. But whether it
is reasonable or just will be determined by the court, temporarily.
He will for the time being fix a reasonable rate on freight and
transportation. That rate as fixed by the court will remain in
force till the question is determined in the courts. If there is
anything unreasonable in this proposition I should like to know
what it is. There is no man who can justify the statement of the
gentleman from Morton that a rate should remain in force as fixed
by the Commissioners until it is changed by the court's final deci-
sion. The only question is this do we, as members of this Con-
vention, have sufficient faith in our judiciary to say that with
them shall rest the power of fixing what is reasonable and just
after a fair hearing, or are we going to be carried away by preju-
dice and say that the action of the board, whether it is right or
wrong, shall operate against a corporation because it is a corpora-
tion? Every man should be willing to treat a corporation as he
would be treated himself.
Mr. PARSONS of Morton. The amendment I have offered I
have offered more in a spirit of compromise than anything else. I
reiterate-it is in substance the report of the committee, and I
am well satisfied that it is in accordance with the temper of this
House. I introduce this because I believe this Convention will be
willing to leave a question of fact to be determined by a jury of
twelve men. I don't think it is right to leave a loop-hole whereby
the people will suffer, because under the present ruling the case
might be evaded from year to year and then be unsettled. I will
acknowledge that under my proposed substitute, if the Railroad
Commissioners should fix an unjust rate the corporations would
suffer until they got it reversed by the courts. But then every
effort would be made on their part as well as ours, to arrive at a
Uor M
592
DEBATES OF THE CONVENTION.
decision as soon as possible. It seems to me we must consider the
greatest good to the greatest number, and if it does work a hard-
ship it is only in a few cases and it is a rare case in the history of
the people and only an exception to the rule, that any decision of
the Railroad Commissioners is reversed.
Mr. BARTLETT of Griggs. When this matter was under dis-
cussion before, I voted with the Committee on Corporations. I
don't know whether I made any remarks to the Convention at that
time or not. I have been converted to the extent of the amend-
ment of the gentleman from Morton. I believe they are entitled
to that appeal, but pending that appeal the decision of the board
should be and remain in force. This is going further than any
other State has gone-further than the United States has gone,
for if I understand it there is no appeal from the Board of United
States Railroad Commissioners. Their decision is final.
conciliatory measure, and to give them the rights which they can
reasonably ask, I am willing to allow them the appeal provided
the rate fixed by the Railroad Commissioners shall be enforced
pending the appeal. I undertake to say that the men who will be
elected Commissioners of Railroads in this State will be supposed
to know more about what is reasonable than a court. They will
have made it a study. That is what they will be elected for. They
will view all the circumstances and all the combinations and they
ought to know what a reasonable rate is. I do not vote on the as-
sumption that these Railroad Commissioners are going to be
elected for the purpose of oppressing the railroads. They are as
much the representatives and arbitrators of the roads as of the
people, and I say they are more likely to know what is reasonable
and right than a court after a few hours of investigation. There-
fore I will vote for the substitute of the gentleman from Morton.
Mr. LAUDER. When this question was before the Convention
I believe I voted against a proposition somewhat similar to the one.
now introduced by the gentleman from Morton. I have not been
converted at all. My mind is not changed on that question,
though I shall vote for the proposition of the gentleman from
Morton. The gentleman from Richland has spoken of a decision
of the Supreme Court of the State of Minnesota. It seems to me
that in all fairness the gentleman should have read us from other
decisions bearing on this same question. I believe that there is
but one proper solution of this question. In all cases of this kind
a railroad corporation has a right to appeal, or in other words they
DEBATES OF THE CONVENTION.
593
have a right to a decision of the court to protect their property
from confiscation. That is the decision of Judge Brewer of the
United States Supreme Court. I believe that a company has a
right to an appeal to a court, and this amendment makes no differ-
ence, because this gives to them all they have already. For that
reason I shall vote for it. In the arguments made on the other
side of this question, particularly of the gentleman from Rich-
land, they proceed on the theory that the Railroad Commissioners.
are going to be elected for the purpose of oppressing the rail-
roads. Now I would call the attention of members of this Con-
vention to this fact that fixing the rate for passengers and freight
is not a question of law at all. Because a man happens to sit on
a bench as a member of the Supreme or the District Court, it does
not qualify him any better to decide this matter of fact, than any
one of twenty members of this Convention. What are reasonable
rates? There is no law in it. The question of law comes up when
the fact has been found that the rates are unreasonable then the
question comes up whether the Commissioners have a right to fix
rates that will be a practical confiscation of the property of the
road. The fixing of the rate is a question of fact, in the fixing of
which any good business man is just as competent as a judge upon
the bench. For that reason, why are the railroad companies any
better off in having the rate fixed by a judge? He is simply a
sworn officer-sworn to do his duty. Railroad commissioners are
sworn to do their duty. They have to fix rates that are reason-
able to do equal justice between the people and the railroad
companies. They do not represent the people as against the rail-
road companies, but they have specific duties to perform, and I
undertake to say the people of this State will elect men to fill
those positions who are just as well qualified to perform that duty
as will be-the men whom they elect as members of the Supreme
Court or the District Court.
It has also been tried to create the impression that the railroad
companies are in danger from these commissioners. I would call
attention to the fact that so far as I know the railroads, during
all the time railroads have been built in North Dakota or that part
of the Territory which will soon be the State of South Dakota,
during all the time the office of Railroad Commissioner has been
in existence, there has not been a single effort to place the least
restriction on railroads. I don't believe-as far as my information
goes as far as I have been able to learn—the right of the Rail-
38
594
DEBATES OF THE CONVENTION.
road Commissioners to fix rates has never been exercised in a
single instance. What right have we to believe that these men are
all at once going to jump on the railroads with both feet and drum
the life out of them? It is a false alarm for the purpose of get-
ting something into this Constitution which should not be there.
There is no ground for this apprehension. I think it should be
left as provided in the resolution of the gentleman from Morton,
for this reason-that if the rates as fixed by the commissioners
should at any time be oppressive or unjust, if those rates were
allowed to remain, certainly a final determination of the question
would be had much quicker than if they were not allowed to
remain. If the rates were oppressive on the people, they would
be interested in having it determined. If they were oppressive
on the companies they should be interested in a speedy, final deter-
mination. It would be an unwieldly arrangement if you had to
run to the court every time you want to change a schedule. It
seems to me that would be cumbersome. By leaving it just in the
way suggested by the gentleman from Morton, the railroad com-
pany will be interested in having the case finally determined. The
gentleman has cited a case from the Supreme Court of Minnesota.
This question, as I understand it would not go to the Supreme
Court. I cannot see-perhaps I don't look at it right-I cannot
see how any federal question could arise on an appeal, from the
rates as fixed by the commission. The commission has a right to
fix the rates, and the court has the right to decide on a question of
fact. I cannot conceive how any question of a federal character
can come in there. I cannot see how any question that the Su-
preme Court of the United States would have any jurisdiction to
determing would arise, because all these cases would have to be
brought in our territorial court. We have our Supreme Court,
and unless some federal question arises I don't see how it could
get into the Supreme Court of the United States at all, when we
become a State. For these reasons I hope the substitute of the
gentleman from Morton will prevail.
Mr. PURCELL. The gentleman from Richland, my colleague,
asks me to cite other decisions. It is strange if the decisions I
have cited are not in accordance with the law that he does not cite
some cases that will contradict them. He has stood on the floor
of this Convention from the time it opened till to-day and has
had his hands and feet going on every question that has come up,
and there is no man who ever dared to sit here and question a
DEBATES OF THE CONVENTION.
595
single statement of law he has propounded. He is so large and
big that he does not require books to substantiate the statements.
he makes, but when the Supreme Court of Minnesota makes a
decision, he comes in here with all his magnitude and says "It
ain't so.
The Supreme Court of Minnesota is wrong and I am
right." There is some consistency in all men, and I would ask
that at least before this Convention he show it. I have made no
statement, and I have made no proposition of law wherein I have
tried to deceive any man. The gentleman has stated that the de-
cision of the Supreme Court of the State of Minnesota is not the
law. But the Supreme Court of that state says that the railroad
companies have no right of appeal under a similar constitutional
clause to that which we have here. The gentleman says here that
Judge Brewer of the Supreme Court of the United States has
decided so and so. I say Judge Brewer is not a member of
the Supreme Court of the Unitid States. He is simply a federal
circuit judge, and I defy him to produce his authority showing
Judge Brewer's decision. I have argued this question simply as it
is presented. When he sets himself up here as a bigger man than
the Judges of the Supreme Court of the State of Minnesota I
desire to call the attention of this Convention to him. He says
that there is no question of law involved in this case.
He says
that it is entirely a question of fact. I ask where does a man go
to determine what is just and reasonable but into court, and what
constitutes a court but a judge, and if the question of fact is in-
volved, a jury? We don't create a new court. We say they shall
go into our courts as they are now established and constituted,
and those courts consist of a judge and jury if a question of fact
is involved. See the bugaboo he raises that when you appeal you
take the case to one man. But you don't. If it is a question of
fact, you take it to a judge and a jury.
There is no man, so far as I know, that charged that any
man who will be elected a Railroad Commissioner intends to de-
prive any man of his rights, but there are men who will be elected
who will honestly make mistakes, and if they do make mistakes it
might militate against the company. We ask that the company
shall have the right to appeal. The railroad companies do not
charge that there is a conspiracy existing between those who may
be commissioners to deprive them of a single right. But we know
we are all liable to err, and in case we do err these parties have a
right to appeal. The gentleman speaks about the Legislature
596
DEBATES OF THE CONVENTION.
being able to meet and rectify the mistakes they may make.
They will only meet once in two years, and here is a wrong they
will have to endure till the Legislature meets, and they will not
have the right to go to any tribunal such as are open to other
people, but must go to the Legislature. He says there is no fed-
eral question involved. I ask if there is an appeal taken by the
Northern Pacific if there is not a federal question involved, the
company being a foreign corporation? I would ask if there is not
a federal question involved if there is an appeal taken by the
Manitoba company? When there is a difference between two
citizens of different States, they have a right to go to the Supreme
Court of the United States.
Mr. LAUDER. I hardly think it is necessary for me to an-
swer that portion of the gentleman's harangue which was directed
towards me personally. He tells me about my jumping up on
the floor every few minutes and swinging my arms, and so forth.
I hardly think that part of his speech is worthy of notice. It cer-
tainly is a very strong argument in favor of his proposition. It is
an old saying among attorneys that when you have got a case that
is absolutely without merit, about the only thing for you to do is
to abuse the other fellow's attorney. Evidently he has heard of
that old saw and is taking advantage of it. The members of this
convention are as well acquainted with the number of times I have
been on the floor as the gentleman is. What I have said here I
have said probably with as much sincerity as the gentleman from
Richland has displayed, and I hardly think it was neces-
sary for him to shoot off his mouth the way he did. Certainly it
displays a case of want of confidence in the real merits of his case,
or he would not get up here and indulge in personal abuse in order
to prejudice the minds of this Convention. I have not said that
the Supreme Court of the State of Minnesota has not decided the
case as cited. I know about that as well as he does. I knew it
perhaps as soon as he did. What I did say was this: that Judge
Brewer, not of the Supreme Court of the United States-another
misstatement, I never said he was; I know him personally, and I
know a great deal better than that-I said that Judge Brewer, a
United States judge, has held that a railroad corporation or any
other corporation or person is entitled to the interposition of the
courts of this country when his property was being confis-
cated, or when a schedule of rates had been fixed at such
to
would amount practically confiscation-
a figure as
DEBATES OF THE CONVENTION.
597
that he was entitled to the
to the interposition of
of the courts.
The gentleman from Richland knows about that decision. I
state further that the decision of Judge Ryan in sustaining the
right of the Legislature to fix rates intimated the same thing. I
have not the books here. There is not a lawyer who does not
know it. I say this question has not been tested squarely by the
Supreme Court of the United States. I know these things from
reading them. I have conversed on these things with one of the
most eminent lawyers in Dakota-none more eminent or able—
and he agrees with me entirely on this question. I say the matter
of fixing rates is not a question of law, and I appeal to every
lawyer to bear me out. It is purely and simply a question of fact,
and if this question was brought into court it would be so decided
to be. He undertakes to slide out by saying it should have a jury.
He never intended to have a jury pass on this question. The
argument was all predicated on the theory that it was the court,
clothed in his judicial robes—that is the man who shall determine
the question whether it was a reasonable rate or not, and with a
contemptible quibble he comes in and says he will have a jury.
Who had contemplated that a jury would be called in? It is
nothing but a contemptible quibble and every lawyer knows it is
so. He speaks of this being a federal question-says there
may be a gentleman here from Minnesota or a corporation engaged
in litigation. If he sues in the United States Court he can take
an appeal to the United States Supreme Court, but if the action
is brought in our territorial courts the Supreme Court of the Ter-
ritory is the end of the rope, and there is not a lawyer here but
that knows that.
Mr. CAMP. I do not know the cause of the civil war in Rich-
land county. The gentleman who has just left the floor has been
arguing against the proposition which he tells us he is going to
support by his vote. I hope his argument will not induce any
gentleman who favors that motion to vote against it, and vote
against the gentleman who makes the argument. In all cases
actions speak louder than words. This is especially true of the
gentleman who has just left the floor.
Mr. SCOTT. As I understand it there is a substitute made by
the gentleman from Morton. The only difference between the
original and the substitute is this-the substitute provides that
pending an appeal both persons can appeal to the courts, and in
the motion of the gentleman from Richland the rate pending that
598
DEBATES OF THE CONVENTION.
appeal is fixed by the court, and in the motion of the gentleman
from Morton the rate fixed by the Railroad Commissioners or the
Legislative Assembly is the one that stands until the appeal is de-
cided. I think the substitute of the gentleman from Morton is
the correct and the proper one. I believe that pending the appeal
the Railroad Commissioners are supposed to know more about
rates than any court, and I think with the gentleman from Rich-
land that it is not contemplated that a jury should be called in in
order to decide on the reasonableness of the rates. It is contem-
plated by the original motion that the court itself should decide
those rates, and I believe the people would be better satisfied to
abide by the decision of the Railroad Commissioners whom they
elected than the decision of the court, no matter how just or
honest the court might be. Again, if these matters are going to
be appealed to the court, it is certainly for the interest of the
State that the rates as fixed by the Railroad Commissioners
should be the rates by which they are bound until an appeal is
finally determined. It would be safer than leaving it to the court.
Mr. STEVENS. I am glad to know that I am not the only one
that has shrunk-got smaller that with me is the gentleman from
Richland, the gentleman from Griggs, the gentleman from Barnes
and the gentleman from Nelson. The gentleman from Griggs has
been honest enough to get up and say so; the gentleman from
Richland says it is wrong yet. He says so in this way-he´says a
resolution similar to this was introduced and he voted against it,
and he has not been converted to this proposition. I desire to say
that I introduced that resolution nearly verbatim, and the records
will show it; and the records will show that every one of these
gentlemen, with the exception of the gentleman from Nelson,
voted against it. If it was wrong then it is wrong now. If it is
right now it was right then, and I am glad to know that I was
right then, and I am glad that though the gentleman from Rich-
land is not willing to admit it, yet by his actions he says I was
right and he was wrong.
Mr. SCOTT. I desire to correct a statement made by the gentle-
man from Ransom. I did not vote one way or the other because
I was not present when this was discussed, and I have not voted
or had a chance of expressing my convictions on the matter.
Mr. JOHNSON. As Chairman of the Committee on Corpora-
tions other than Municipal it is no more than just to the gentle-
man from Morton that I should state what he has stated twice,
DEBATES OF THE CONVENTION.
599
now and in the discussion a week ago, that the pending substitute
was approved by the committee and would have been so reported
but for a clerical error on the part of the clerk.
When the ques-
tion came up a week ago Saturday night I had some doubts and
we were deciding matters very rapidly, and I thought the conser-
vative course would be to vote against it. I have had opportunity
to study the question since, and talk it over with those on the floor,
and I have come to the conclusion to vote as the gentleman from
Ransom has stated I would. I apprehend there will not be much
difference of opinion on this question. The speech from the gen-
tleman from Richland, Mr. LAUDER, may have been misconstrued
slightly, and there may have been some warmth of feeling, but I
dare say they will vote alike on this question, and there is not so
much occasion for anxiety as it would appear from the language.
I have come to the conclusion that the substitute offered by the
gentleman from Morton is fair and safe-safe for those interests
for which I have stood throughout this Convention, and I shall
vote for it, principally for the reason that it provides that the de-
cisions of the commissioners shall stand until reversed by the
courts. I consider the rights of the farming community and the
producing classes would be amply protected by the substitute of
the gentleman from Morton.
Mr. SPALDING. Some time ago we had under discussion an
article introduced by the gentleman from Burleigh requiring the
judges of the Supreme Court to give their opinions on any mat-
ters referred to them by State officers, without discussion on either
side or without suit. I was opposed to that proposition and I fail
to see wherein the proposition submitted to us now by the gentle-
man from Richland (Mr. PURCELL) is not open to the same ob-
jection. It seems to me it is open to the same objection, and
would require the judges to deliver opinions before the matter
was finally adjudicated in court. I vote aye on this motion.
The substitute of Mr. PARSONS was adopted by a vote of 59 to 13.
THE WORLD'S FAIR.
Mr. STEVENS, by request of Mr. GRIGGS, introduced the fol-
lowing resolution:
Resolved, That this Convention heartily endorses the proposition to hold
the World's Fair in the City of Chicago, thus bringing this great exposition
nearer the homes of the people of the west, nearer the center of the continent
and nearer the center of the population which goes to make up the American
union.
600
DEBATES OF THE CONVENTION.
Mr. STEVENS. It is desired that an expression be obtained
from each State and Territory on this question, and it is supposed
that we represent the new State of North Dakota. The cities of
New York, Washington, Chicago, St. Louis, Boston and Philadel-
phia are working for the location of this fair. I believe every
citizen of the State of North Dakota is interested in having this
fair as near to us as we can get it. When we assist in getting this
exposition at Chicago, we assist not only in building up her re-
sources but in building up our own, and by bringing nearer to our
homes one of the grandest sights that has ever yet been seen by
man.
The resolution was carried.
EVENING SESSION.
Section 145 was adopted.
PRIVATE PROPERTY FOR PUBLIC USES.
Section 146 was read, with the recommendation of the commit-
tee as follows:
SEC. 146. Municipal and corporations and individuals invested with the
privilege of taking private property for public use, shall make just compensa-
tion for property taken, injured or destroyed by the construction or enlarge-
ment of their works, highways or improvements, which compensation shall be
paid or secured before such taking, injury or destruction. The Legislative
Assembly is hereby prohibited from depriving any person of an appeal from
any preliminary assessment of damages against any such corporations or indi-
viduals, made by viewers or otherwise; and the amount of such damage in all
cases of appeal shall, on demand of either party, be determined by a jury as in
other civil cases.
[Committee recommend that section be stricken out as the ground is cov-
ered by section fourteen of the Bill of Rights.]
Mr. MILLER. I move that the section be adopted.
Mr. CAMP. On behalf of the committee I would ask the gen-
tleman from Cass what particular point is not covered.
Mr. MILLER. I think the phraseology is better and more
complete. The phrase "injure and destroy" makes a more impor-
tant reservation for property injured. By this section the Legis-
lative Assembly is prohibited from depriving any person of an
appeal from any preliminary assessment of damages. That is
not in the other section. I think the two sections together will
make it more satisfactory.
DEBATES OF THE CONVENTION.
601
Mr. STEVENS. When I turn over to page twenty-one I see
"Corporations other than Municipal." When I turn to section 146
I see "Municipal and other Corporations." There is an inconsis-
tency. If this is to be in the articles headed "Corporations other
than Municipal," and it prescribes the powers of Municipal Cor-
porations, it is undoubtedly wrong. So far as it refers to Munici-
pal Corporations it should be stricken out. The reference to roads
particularly should be stricken out. A county is a quasi munici-
pal corporation, and they may see fit to run out roads throughout
the counties. Under this section a county could not do this till
the damages had been appraised and the money deposited. It
should not be required in this State. The Legislature should
have a right to prescribe that any person who may feel aggrieved
will have the right to object to a road being laid out, but we have
so many non-residents in this State that it would do the Territory
an injustice to those who live here to leave this section as it is. I
don't think it could ever have been intended to apply to municipal
corporations. I don't think the Committee on Corporations other
than Municipal had any right to place it here.
Mr. SPALDING. It just occurred to me that we had only
adopted one section of article six and have stricken out one article
and this leaves one other section to be acted upon. In view of the
word "municipal" being used here and perhaps in other places and
the small amount of matter that is likely to be in article six, it
seems to me it would be better to incorporate the sections of article
six in article seven. I move that the sections such as have been
or may be adopted under the head of article six be transferred to
article seven, and change the heading to read "Municipal and other
Corporations."
Mr. MOER. It seems to me that section 146 is covered abso-
lutely by section fourteen. This is a general provision in the Bill
of Rights that private property shall not be taken for public uses
without compensation. It is covered so far as the objection of the
gentleman from Cass is concerned. So far as the latter part of
the section is concerned, it provides in section 146 that the amount
of such damage in all cases of appeal shall, on demand of either
party, be determined by a jury as in other civil cases. In section
fourteen it is provided that the compensation shall be ascertained
by a jury, unless a jury be waived as in other cases of a court of
record, as shall be prescribed by law. I don't see why this does
not fully cover it. The Bill of Rights covers all corporations of
602
DEBATES OF THE CONVENTION.
all kinds, quasi or otherwise. It does not make any difference
what kind of a corporation it is. I cannot see why it does not
cover it; therefore I move that the recommendation of the commit-
tee be concurred in.
The motion of Mr. MOER was adopted.
Sections 147 and 148 were read and adopted.
AGAINST TRUSTS.
Section 149 was read as follows:
SEC. 149. Any combination between individuals, corporations, associa-
tions, or either having for its object or effect the controlling of the price of any
product of the soil or any article of manufacture or commerce, or the cost of
exchange, is prohibited and hereby declared unlawful and against public pol-
icy; and that any and all franchises heretofore granted or extended in this
State, whenever the owner or owners thereof violate this article, shall be
deemed annulled and become void, and their property within the State es-
cheated.
Mr. SPALDING. I move to strike out all after the word
"void." It seems to me that this is too harsh a penalty. It not
only makes a corporation forfeit all its franchise and rights, but it
makes their property go the State. It is harsher than is neces-
sary or just.
The amendment of Mr. SPALDING was carried.
The section was adopted as amended.
Mr. SCOTT. There is only one article in section six, and I
think it would be better to put articles six and seven in one article
under the head of Municipal and Other Corporations.
Mr. SPALDING. I was of the same opinion, but on looking
along further and especially in section 147 I am not certain but
that if the section in six were incorporated in article seven, it
would require further amendments to prevent a conflict. There-
fore I did not renew my motion. I would not feel safe in doing
SO.
Mr. BENNETT. As Chairman of the Committee on Municipal
Corporations I object to having our work completely wiped out
and transferred to some other part of the Constitution. Your
Committee on Municipal Corporations devoted some little time
and attention to getting up the part of the Constitution entrusted
to them, and we got it up, according to my idea, in good shape
till it was amended by the gentleman from Cass. However, I
think the recommendations of the Committee on Revision just,
and are correct, and should be adopted by this Convention.
&
DEBATES OF THE CONVENTION.
603
Mr. McHUGH. I heartily coincide in the remarks of the gen-
tleman from Grand Forks. After the long nights of labor and
weary days we put in over that article I don't think it should be
wiped out as proposed.
The motion of Mr. ScOTT was lost.
Section 149 was adopted. Section 150 was read and adopted.
PUBLIC SCHOOLS.
Section 151 was read as follows:
SEC. 150. The Legislative Assembly shall provide at their first session
after the adoption of this Constitution, for a uniform system of free public
schools throughout the State, beginnnig with the primary and extending
through all grades up to and including the normal and collegiate course.
Mr. McHUGH moved to amend the section by striking out all
after the word "State" in line three and insert. the following:
"And each county of the State shall be divided into a convenient number
of independent school districts. But no school district shall be formed con-
taining less than twenty-five inhabitants."
Mr. CLAPP. This matter of the school district system came
before the committee and it was their idea, and the idea of the
Convention that while the school district system might be the best,
at some other time there might be some better method, and we
thought the better plan would be to adopt a uniform system and
if so the Legislature will make it uniform. I hope it will stand
as it is here.
The motion of Mr. McHUGH was laid on the table and the sec-
tion was adopted as recommended by the committee.
Sections 154, 155, 156, 157 and 158 were adopted.
PUBLIC LANDS.
Section 159 was read as follows:
SEC. 159. After one year from the assembling of the First Legislative As-
semby, the lands granted to the State from the United States for the support
of the common schools, may be sold upon the following conditions and no
other: No more than one-fourth of such lands shall be sold within the first
five years after the same become saleable by virtue of this section. No more
than one-half of the remainder within ten years after the same becomes sale-
able as aforesaid. The residue may be sold as soon as the same becomes sale-
able. The Legislative Assembly shall provide for the sale of all school lands
subject to the provisions of this article.
Mr. WILLIAMS. I move to amend this section by adding at
the end thereof the following words:
604
DEBATES OF THE CONVENTION.
"The coal lands of the State shall never be sold, but the Legislative As-
sembly may by general laws provide for leasing the same."
At the present time these coal lands are regarded as not possess-
ing any great value, but it is a fact that they are being bought up
by syndicates, and as a matter of looking to the future I think it
would be well to reserve these lands from sale in order to protect
the fuel supply, and allow the State of the future to lease them.
It seems to me under such rules and regulations as the Legislature
may prescribe, it would be wise to protect these lands and allow
the title to remain in the State.
Mr. WILLIAMS' amendment was adopted, and the section as
amended was adopted.
Sections 160 and 161 were adopted.
SELLING THE LANDS.
Section 162 was read as follows:
SEC. 162. No land shall be sold for less than the appraised value, and in no
case for less than ten dollars per acre. The purchaser shall pay one-fifth of
the price in cash, and the remaining four-fifths as follows: One-fifth in five
years, one-fifth in ten years, one-fifth in fifteen years and one-fifth in twenty
years, with interest at the rate of not less than six per centum payable annu-
ally in advance. All sales shall be held at the county seat of the county in
which the land to be sold is situate and shall be at public auction and to the
highest bidder, after sixty days' advertisement of the same in a newspaper of
general circulation in the vicinity of the lands to be sold, and one at the seat
of government. Such lands as shall not have been specially subdivided
shall be offered in tracts of one-quarter section, and those so subdivided in the
smallest subdivisions. All lands designated for sale and not sold within two
years after appraisal shall be reappraised before they are sold. No grant or
patent for any such lands shall issue until payment is made for the same.
Provided, That the lands contracted to be sold by the State, shall be subject
to taxation from the date of such contract. In case the taxes assessed against
said lands for any year remain unpaid until the first day of October of the fol-
lowing year, then and thereupon the contract of sale for such lands shall be-
come null and void.
Mr. ROLFE. I move that the section be amended by inserting
after the word "advance" in line seven the following words:
“Provided, That any purchaser may at his option complete his
final payment at the expiration of ten years from date of pur-
chase." Last week I went home and quite a number of interested
partics spoke to me on this point, and were very much disap-
pointed to find that they could not make final payment for the
land they might buy before twenty years after they took it. We
DEBATES OF THE CONVENTION.
605
sat down to figure what a quarter section would cost a man at the
minimum of $10 an acre in twenty years, and we found it to be
$2,545 or thereabouts. A piece of land the face value of which
would be $1,600 would be finally turned over after a payment of
$2,545 for it. It appeared that this would be rather unjust to the
farmer, who wanted to purchase a piece of school land adjoining
his own farm. Therefore I offer this amendment which makes it
optional that he complete his payment at the end of ten years.
Mr. STEVENS. I desire to second that motion, for I made
the same motion myself, and the gentleman from Benson was one
of its chief opponents. I am glad to know that he has been con-
verted.
Mr. ROLFE. I did not remember that I had opened my mouth
on school lands while it was under discussion.
Mr. BARTLETT of Dickey. Is there any gentleman who be-
lieves for one moment that the simple fact of not having the
privilege to pay for the land in ten years would hinder one sale?
If not, surely after they had made ten annual payments the balance
would be well secured. It is as good security as there is. Our
object is to put it out on long time that the rising generation can
have the benefit. Only think the amount that the people of
Dakota would miss in the next ten years' interest, and there would
not be one single dollar. There would be as much land sold on
twenty years' time as on ten. It is a chance to give the specula-
tors to come in and take advantage of this section. It gives the
man with money a chance to come in and keep us out of this
money.
Mr. BEAN. There is one other objection. It was talked over
in committee. The principle objection is that in case payment is
allowed in ten years, this Committee on School and Public Lands
will not be able to figure in advance how much cash they would
have on hand at any part of the year. As it is only the interest
they can use, they can figure about how much money they would
have on hand; what disposition they would make of it; in what
amounts to loan it and where to place it; whereas if this motion
prevails they can at no time know how much money is coming in.
Mr. SPALDING. I move to amend the amendment by pro-
viding that the purchaser may at any time pay the full purchase
price by paying a year's interest in advance. This would give the
State ample time to reinvest the funds-probably more than would
606
DEBATES OF THE CONVENTION.
be necessary, and leave some discretion with the purchaser, so
that it would not prevent a sale.
The motion was seconded.
Mr. BARTLETT of Dickey. I am surprised at men coming
in here and professing to be the friends of the poor man and
making such a motion as this. He means all right; I know he is
a friend of the poor man, but the idea of making a motion that
will let capitalists in and take the land that we can just as well
save for the benefit of the poor. We know that .the farmer who
wants to get land has a good opportunity under this law to get a
home. It is for the benefit of the poor. This committee has figured
on that thing very carefully, and I am sure that it will be a very
beneficial thing for the poor, and I hope the members will get up
and insist on it.
Mr. HARRIS. I have sat here about three weeks listening to
the gentlemen of this Convention talking on the question of school
lands and trying to make a provision for an immigration bureau.
My idea of the disposition of school lands is that we want to dis-
pose of them in a manner that will bring the most money for the
school fund. This question is not a question of speculators or a
question of poor men or farmers, but a question as to which way
we can get the most money for the school fund. That is import-
ant in my judgment. This is not for the support of an immigra-
tion bureau at all, but for the support of the public schools, and I
believe that anything that will enable us to get more money out
of these school lands for the purpose of supporting the public
schools is just the method we want.
Mr. STEVENS. Either the gentleman from Dickey has been
wool gathering or I have. I understand that this is simply
optional. The land can be sold to a poor man to be paid for in
annual installments for twenty years, but it is not necessary for a
man to stay on it for that length of time. I don't think we are
working for the poor man in this question, but we are working for
the poor man's children. They are the ones that are going to
school, and the more money we can get out of the lands and the
quicker we can get it the better. The poor man has grown up. It
is the children that we want to take care of. This is the poor
man's children's fund and not a poor man's fund.
Mr. MOER. I disagree with the gentleman from Ransom.
This is a school fund, and not a poor man's or a poor man's chil-
dren's fund. The object sought for is to get the most money pos-
DEBATES OF THE CONVENTION.
607
}
sible for the schools, and this section as it stands will accomplish
that, and it takes a long investment at six per cent.
Mr. STEVENS. What is the public school for if not for the
poor man's children?
Mr. LAUDER. I move that the amendments of the gentleman
from Cass and the gentleman from Benson be laid on the table.
Both amendments were then laid upon the table.
Mr. SPALDING. I have sat here and listened to gas and bun-
comb and demagoguery on all sides, on what was supposed to be
in behalf of the poor man. But I would like to know what this
fund is for? What are we getting up a constitution for? Are we
working for the poor man, or in this special section for the school
fund and for the people of Dakota as a whole without regard to
class, station or condition? Look at the absurdity of the thing as
it stands here. A man may buy a piece of land at ten dollars an
acre, and pay one-fifth down, and he pays interest at six per cent.
In five years he has paid about 88 cents an acre for the use of
that land. He may then refuse to make the next payment of in- ·
terest and the land reverts to the State. They have received on
lands in the Red River Valley a smaller sum than these lands will
rent for, and if he still continues to pay, they have disposed of a
fifth of the title for less than they would have rented them for.
What policy or principle can be involved in any section providing
for that disposition of the lands? Is there a business man here
who would do business on his own hook in that way? Not one.
You nor I, nor any other man of common sense would sell our
property on installments for five years on such terms that at the
end of five years we had got less for it than we could have rented
it for. Our neighbors would designate us as fools and idiots. I
believe the business of the Commonwealth should be conducted
on the same principle that the best business men would conduct
their own business on. I don't believe this is the principle that
any business man would do business on. I don't believe we are
here to provide for the sale of these lands to such parties as may
want to get the use of them for less than they would pay for their
rental. I don't believe that is the kind of a school fund we want
to provide for, and I don't believe it is common sense to do it nor
justice to the school fund we are working for, nor for the interests.
of the school children of the future State of North Dakota.
Mr. LAUDER. I have listened to the arguments. I cannot
see anything in the arguments that have been adduced here in
608
DEBATES OF THE CONVENTION.
•
favor of the section that should be designated as gas or tomfool-
ery. I believe it is good, practical, common sense, and this ques-
tion has been argued and re-argued. The same motions the gen-
tlemen make now were made before and voted down, and this sec-
tion was agreed upon and I believe it contained the judgment of
the Convention.
Mr. SPALDING. When this was up before there was no pro-
vision for the investment of the funds besides in government
bonds, school bonds and state bonds. Since then they have pro-
vided for the loaning of the funds on first mortgages on real es-
tate, which makes the field of investment under and at a much
larger rate of interest, so the same arguments that were used then
do not apply now.
Mr. BARTLETT of Dickey. The gentleman is a lawyer,
speaks as a lawyer, but when he thinks there is not a business
man who is not a lawyer that does not understand business, he is
mistaken. He says any man would be a fool, using his language,
if he would do his own business in this way. I ask any gentle-
man here if $660 in five years is not good security, and it is over
$660 that they will get on each 160 acres of land? Is not that
good security? He says any man who would lend money that
way would be a fool.
Mr. SPALDING. I did not use any such language.
Mr. BARTLETT of Dickey. Six hundred and sixty dollars in
five years makes it very safe and good security. Any gentleman
here who knows anything about business would look at it that
way. I hope his motion will not carry, because we will have good
security the way we have got it, and I say let us get the most we
can out of the land.
The motion to lay Mr. SPALDING's motion on the table was
carried.
The section was then adopted.
Sections 163 and 164 were read and adopted.
LEASING LANDS.
Section 165 was read as follows, with the recommendation of the
committee:
SEC. 165. The Legislative Assembly shall have authority to provide by
law for the leasing of lands granted to the State for educational and charitable
purposes; but no such law shall authorize the leasing of said lands for a longer
period than five years. Said land shall only be leased for pasturage and
meadow purposes, and at public auction after notice as heretofore provided in
DEBATES OF THE CONVENTION.
609
case of sale; Provided, That all of said school lands now under cultivation may
be leased for other than pasturage and meadow purposes. All rents shall be
paid in advance.
[Committee recommend to add after the words "five years" the words "in
quantities not exceeding one section to any one person or company."]
Mr. MILLER. This section would be a proper provision in
case of the lands situated east of the Missouri river, and in sec-
tions of country where they could be cultivated or used in small
quantities, but a large part of the lands that will become the prop-
erty of the State when the Territory becomes a State will be se-
lected west of the Missouri in grazing lands, and in order to lease
them to advantage it would seem to be necsssary to lease
them in much larger quantities than one section-perhaps a town-
ship or two or three townships together. It seems to me it would
be perfectly safe to strike this out. I move that after the word
"may" in the eighth line, the following be inserted:
"In the discretion and under the control of the Board of University and
School Lands."
Mr. BARTLETT of Dickey. The committee would have fixed
it that way but the Enabling Act would not allow them.
Mr. MILLER. Read section eleven of the Enabling Act. As
to lands granted for charitable purposes it might be otherwise.
Mr. STEVENS. That argument does not apply in this case. If
Congress has provided that we cannot lease several townships to
one party, it is already provided and it is not necessary to put it
in the Constitution. It is not necessary because Congress has used
certain language that we should use the same language. Congress
may see fit to change this. They do not know that a great amount
of the land we are to get will be fit for nothing else but grazing,
and when this is explained they will modify it, but if we tie it up
in our Constitution we cannot modify it ourselves—we cannot pass
an act as Congress can, and by a single bill do away with that part
of the Constitution and allow our Legislature to lease these lands.
in larger quantities. If Congress sees fit not to change this it is
not necessary to put it in our Constitution. But if they do see fit
to change it we don't want to tie ourselves up. It is impossible to
rent this land west of the Missouri river in quantities of a section.
It would take two or three sections to keep one cow, and it would
be ridiculous. I believe it would be well to have an amendment
which would provide that the land west of the Missouri river could
be leased in quantities of less than a section. That would be
39
610
DEBATES OF THE CONVENTION.
right. I am in favor of having the recommendation of the com-
mittee stand to apply to that part of the State that can be used
for agricultural purposes, but when we take land that cannot be
used for agriculture, let us not by our Constitution tie it up in
this way.
Mr. HARRIS. As I understand section eleven of the Enabling
Act it only applies to school lands. Every gentleman is aware
that the lands to be selected for charitable purposes outside the
school lands must be selected in the Devils Lake and Bismarck
land districts. A great deal of this land is only good for pastur-
age. I don't see why we should tie ourselves up to leasing this
land one section at a time. We cannot lease it at all unless we
can lease it in large quantities, and if the Omnibus Bill should be
so construed as to cover the lands granted for charitable purposes,
which in my judgment it does not do, then it would only be neces-
sary to have an Act of Congress to bring this matter to their at-
tion, and have an Act of Congress in order that it might be
changed and have these lands leased. But if we tie ourselves
down by this Constitution it would require an amendment to the
Constitution in order that these lands might be made profitable
to the State. For that reason I am in favor of a re-consideration
of this, and strike out this amendment.
A motion to lay Mr. MILLER'S amendment on the table was lost.
Mr. BARTLETT of Dickey. I am satisfied we are right and
this section should be amended. I did not think so at the time,
but the land will be practically valueless, and if we reconsider it
and leave it open, all we will have to do will be to get an Act of
Congress.
The amendment of Mr. MILLER was adopted, and the recom-
mendation of the committee was not concurred in.
Sections 166, 167, 168, 169 and 170 were adopted.
COUNTY ORGANIZATION.
Section 171 was read as follows:
SEC. 171. The Legislative Assembly shall provide by general law for or-
ganizing new counties, locating the county seats thereof temporarily, and
changing county lines; but no new county shall be organized nor shall any or-
ganized county be so reduced as to include an area of less than twenty-four
congressional townships, and containing a population of less than 1,000
bona fide inhabitants. And in the organization of new counties and in
changing the lines of organized counties and boundaries of congressional
townships the natural boundaries shall be observed as nearly as may be.
DEBATES OF THE CONVENTION.
611
Mr. APPLETON. I move to amend this section by striking
out the words: "As to include an area of less than twenty-four
congressional townships." My reasons for moving this are that I
find quite a number of gentlemen here who think the require-
ments of 1,000 population is sufficient, and sometimes the thickly
populated counties might wish to divide up, and this might work
a hardship. I hope the amendment will carry.
Mr. ROLFE. I am surprised that the chairman of the Com-
mittee of County and Township Organization should make a mo-
tion of this sort, considering the full discussion there was on this
subject in the committee, and also the part he took in that discus-
sion. It was agreed with one exception in that committee that
twenty-four was about the proper limit. The Convention thought
so the other day, and I hope they will think so yet.
Mr. FLEMINGTON. We are reaching some very important
sections in this article, and I see a great many vacant seats, and I
move a call of the House.
The previous question was then moved, and Mr. APPLETON'S
motion was lost.
Mr. CLAPP. I move that the word "four" in line five be
stricken out.
The motion was lost.
Mr. APPLETON. I move to substitute the word "eighteen"
for "twenty-four." I hope this will carry. The great argument
against the supervisor system has been that some of the counties.
are too large. I hope this amendment will prevail.
The section was adopted as it came from the committee.
Sections 172 and 173 were read and adopted.
TOWNSHIP ORGANIZATION.
Section 174 was read as follows, with the recommendation of the
committee:
SEC. 174. The Legislative Assembly shall provide by general law for
township organization under which any county may organize whenever a
majority of the legal voters of such county, voting at any election called for
that purpose, shall so determine; and townships when organized shall be
bounded as near as may be by congressional township lines and natural
boundaries; and upon a petition signed by not less than one-fourth of the legal
voters, as shown by the preceding election, of any county organized into civil
townships, asking that the question of the establishment of a county board, to
be composed of the chairmen of the several boards of township supervisors, be
submitted to the electors of the county, it shall be the duty of the county board
612
DEBATES OF THE CONVENTION.
to submit the same at the next election thereafter, and if at such election a ma-
jority of such electors shall vote in favor of such proposition, then the county
board of such county shall consist of such chairmen of the several boards of
township supervisors, and of such others as may by law be provided for any
incorporated city or village within such county.
[Committee recommend that the whole section be stricken out, for the
reason that it is ambiguous and confusing.]
Mr. STEVENS. I move that the recommendation of the com-
mittee be not concurred in.
Mr. MILLER. I don't see why the motion should be made by
as clear a headed gentleman as the gentleman from Ransom. This
section was made up from various amendments, and is a conglom-
erated mass of inconsistencies, and would be a disgrace to the
Constitution. No man can take that section and tell what it
means. There are no two men who would reach the same conclu-
sion as to what it did mean, and it would be a very unwise thing
and not reflect credit on any member of this Convention to make
it part of the Constitution. I am willing to support the idea that
is intended by this section if the section will be drawn up to de-
scribe the idea distinctly and concisely, so that it won't be a dis-
grace to us.
Mr. BARTLETT of Griggs. I desire to say that the Committee
on Revision were not opposed to the idea supposed to be conveyed
by this section, as the gentleman from Ransom intimated some
time ago. There is a long section of twenty or thirty lines that
embraces four or five different subjects. It is all one sentence.
We could not find a place to put a period, and the only thing we
could do with it was to recommend that it be stricken out.
Mr. STEVENS. If I move to adopt the recommendation of
the committee, that strikes the section out and that is the end of
it. If I move to adopt the section itself, that is bad. If it is the
temper of this Convention that this recommendation should be
concurred in, that is the end of it, and so that the section might
remain open I move that the recommendation of the committee be
not concurred in, and then such amendments as are suitable can
be adopted. We want to settle the question as to whether or not
this Convention is favorable to the idea which it is supposed the
section contains.
Mr. MILLER. I move that the section be recommitted so that
they may draw a section that may be satisfactory.
Mr. ROLFE. We had this section right-the Committee on
County and Township Organization, as we thought, and we worked
DEBATES OF THE CONVENTION.
613
over it a good deal in order to convey the idea that was intended,
but the Convention did not think it was right, and they have made
a bad matter worse. So far as that committee is concerned I don't
believe it can do anything except to bring in the section that was
contained in the original report. I should be very much obliged
if the gentlemen who opposed the original section will hand us
something on the subject.
Mr. PARSONS of Morton. After the time we spent on this
section I think it is no time to recommit it. It may not be that
the section is the most elegant in expression that could be found.
It seems to me that there is a decided effort to get the idea con-
veyed in this section, out of the Constitution. If you want to
fight this issue over again we wlll fight it if you want to take the
time. I hope the motion will not prevail.
Sections 174 and 175 were referred back to the committee.
Mr. MILLER. I move to adjourn.
The motion prevailed, and the Convention adjourned.
FORTY-FOURTH DAY.
BISMARCK, Friday, August 16, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
The Committee on County and Township Organization offered
the following in place of section 174:
SEC. 174. The Legislative Assembly shall provide by general law for town-
ship organization, under which any county may organize whenever a majority
of all the legal voters of such county, voting at a general election, shall so de-
termine, and whenever any county shall adopt township organization, so much
of this Constitution as provides for the management of the fiscal concerns of
said county by the board of county commissioners may be dispensed with by a
majority vote of the people voting at any general election, and the affairs of
said county may be transacted by the chairmen of the several township boards
of said county, and such others as may be provided by law for incorporated
cities, towns or villages within such county.
614
DEBATES OF THE CONVENTION.
SEC. 175. In any county that shall have adopted a system of government
by the chairmen of the several township boards, the question of continuing the
same may be submitted to the electors of such county at a general election in
such manner as may be provided by law, and if a majority of all the votes cast
upon such question shall be against said system of government, then such
system shall cease in said county, and the affairs of said county shall then be
transacted by a board of county commissioners as is now provided by the laws
of the Territory of Dakota.
SEC. 176. Until the system of county government by the chairmen of the
several township boards is adopted by any county, the fiscal affairs of said
county shall be transacted by a board of county commissioners. Said board
shall consist of not less than three and not more than five members, whose term
of office shall be prescribed by law. Said board shall hold sessions for the
transaction of county business as shall be prescribed by law.
Mr. SCOTT. I move that the report be adopted.
Mr. STEVENS. I move that the words "general" and “a” in
the proposed substitute 174 be stricken out, and the words "as
may be provided by law" be inserted therefor. It will then read
-at an election as may be provided by law. My reason is this:
the Legislature will convene this winter. They will pass this law,
and there will be no general election at which it can be submitted
till next fall. In the spring the township organizations vote for
township officers. This question could then be submitted so that
the counties could adopt it, and it might go into effect next spring.
If the Legislature see fit to submit it only at a general election.
they will so state. This amendment I offer to obviate the neces-
sity of waiting a whole year. I hope this amendment will prevail
for this reason: that the counties that desire this system of gov-
ernment may be authorized to organize under it at the earliest
possible time.
Mr. APPLETON. We prepared these sections in lieu of 174,
and we should have recommended that section 175 be adopted.
The amendment of Mr. STEVENS was adopted, and the sections.
were adopted as amended.
Section 175 was adopted and 176 was stricken out.
LIMITING TERMS OF OFFICE.
Section 177 was read as follows:
SEC. 177. The sheriff and treasurer of any county shall not hold their re-
spective offices for more than four years in succession.
Mr. MOER. I move to amend the section by placing at the be-
ginning thereof the words: "Under this Constitution."
Mr. APPLETON. It seems to me that this amendment should
DEBATES OF THE CONVENTION.
615
prevail. I think it should be definitely known as to whether the
sheriff and treasurer holding their offices at the present time
should be eligible for four years, or whether the time they have
already held it should be counted in. I would like to see the
amendment prevail.
The amendment was lost.
Mr. MOER. I move to amend the section by adding at the
close the words: "Under the Constitution."
The motion was seconded and adopted.
Sections 177, 178 and 179 were adopted after being read.
GROSS EARNINGS.
Section 180 was read as follows:
SEC. 180. Laws shall be passed taxing by uniform rule all property ac-
cording to its true value in money, but the property of the United States
and the State, county and municipal corporations, both real and personal, shall
be exempt from taxation; and the Legislative Assembly shall by a general law
exempt from taxation property used exclusively for school, religious, cemetery
or charitable purposes, and personal property to any amount not exceeding
in value $200 for each individual liable to taxation.
Mr. SCOTT. I move to amend this section by adding thereto
the following:
“Provided, however, That the Legislative Assembly may by law accept
and provide for a tax based on gross earnings in lieu of all other taxes to be
assessed against the road, roadbed, rolling stock, franchise and all other, and
only such property as is owned by any railroad corporation, and used by it in
the actual operation of its road."
Mr. COLTON. I move to lay the amendment on the table.
Mr. SCOTT. The object of the amendment was this: there
was quite an extended discussion on this section the last time it
came up, and it was stated that the real meaning of section 180 as
passed was to prohibit the Legislative Assembly from passing a
gross earnings law, so that all railroads would be taxed the same
as any other property, and the Legislative Assembly could not, if
they deemed proper and right, accept a tax on the gross earnings
of a railroad. Mr. HARRIS stated that at the present time we were
receiving on the basis of the gross earnings a larger amount of
revenue than we would receive if we taxed them in the manner
proposed in section 180. I think that there may be such circum-
stances arise that it would be well and wise for the Legislature to
pass a gross earnings law so that they might pay taxes on these
gross earnings in lieu of all taxes that would otherwise be assessed
616
DEBATES OF THE CONVENTION.
on the franchises, road and roadbed, and all other property di-
rectly used by the railroad in the operation of its road. It is
well known that the Northern Pacific has a large land grant and
they own a great deal of land, and I see no reason why that land
should also be included in the gross earnings tax, and I think that
should be taxed as well as the land held by individuals, and if the
Legislative Assembly decide that in lieu of taxes on railroad.
property proper, they will levy a gross earnings tax, we should
give them an opportunity to do that.
Mr. HEGGE. I move as a substitute to amend the section by
adding thereto the words, "until otherwise provided by law."
Mr. WALLACE. I move to lay the amendment on the table.
The motion was lost by a vote of 33 to 35.
Mr. WALLACE. The intention of this amendment of the
gentleman from Traill is to leave this matter to the Legislature so
that they may adopt a system of gross earnings for one branch of
business and for another class of business another. He wants to
tax one class of citizens in one way and another class in another
way. That is the principle of the thing proposed. It is immaterial
whether we get more out of the railroad by tåxing it according
to the gross earnings or taxing it the same as you and I are taxed.
All property should be taxed alike and no exceptions should be
made. The only reason why the railroad companies should be
taxed according to the gross earnings system is because they ex-
pect to pay a smaller tax that way. The citizen is obliged to pay
according to what property he has got. The point has been made
that we may under certain circumstances get less than under the
gross earnings system. That does not enter into the question.
The question is whether every class of property and every citizen
should be taxed alike, or whether exceptions should be made for
the benefit of certain classes. I hope the amendment will not
prevail.
Mr. HEGGE. I believe most of us would like to get the most
taxes but don't know how to get them.
Mr. MOER. I am not exactly in favor of the amendment pro-
posed by the gentleman from Traill, but I would like to suggest
to the gentlemen who so violently oppose the gross earnings law,
that under the charter of the Northern Pacific there is a clause
that exempts them from taxation, and it is now a question whether
or not it perpetually exempts them, or only while we were a Ter-
ritory. The railroads claim that it is perpetual exemption, and
DEBATES OF THE CONVENTION.
617
they say that the Supreme Court of the United States will so hold.
That is a mooted question. I would suggest to the gentlemen who
are against the railroads having anything to do with this, suppose
on a test matter the Supreme Court of the United States holds
that the Northern Pacific is exempt from taxation under its charter
and we have prevented the Legislature from enacting a gross
earnings law, where would we get our tax? Is there a possible
way in the world that we could get any tax under such a condition
of things?
Mr. COLTON. If it is a fact that the Northern Pacific is not
entitled to pay a tax I say let them go. I don't believe in trying
to impose a tax on people or corporations that are exempt. If we
have a right to tax them, I say tax them as you would anybody
else. This motion is to strike out the whole business; it leaves
everything to the Legislature to fix just as they see fit.
If you
want to leave everything to the Legislature we might as well leave
everything to them, and have no restrictions whatever. I believe
the railroad company is entitled to be taxed, and they know it or
they would never fight this section. They would not come up
here and try to fight a thing that it is claimed would practically
exempt them from taxation. If they would be exempt under this.
section, they would be exempt under a gross earnings law. I say
let every man be equally taxed according to his valuation.
Mr. BARTLETT of Griggs. I desire to say in reply to the
gentleman from La Moure that if the railroad company believes it
is exempt from taxation under the provisions of their charter,
they are the most magnanimous corporation I ever knew to step
up to the Treasury of this State and pay $100,000 or $200,000. I
never knew a souliess corporation before that was so generous.
I
don't believe that the railroad company do believe that they are
exempt from taxation, for if they did they would not step up and
give us this money. If they do that now they will do it after the
Supreme Court has sustained their case.
Mr. MOER. I want to suggest that the argument used is as
follows: The railroad pays on its gross earnings, which the Leg-
islature has full power to control and tax. The United States did
not exempt their earnings, but their roadbed and their franchises.
Under the territorial condition the Legislature have had full
power to tax the gross earnings in the Territory. If we have a
constitutional provision prohibiting the Legislature from enacting
any such law and the Supreme Court of the United States says
618
DEBATES OF THE CONVENTION.
that the roadbed and rolling stock are exempt, we cannot get at
them at all. The gentleman from Ward says that he does not
want to tax them under the general law if they are exempt. But
they are taxable on their earnings, but if we have this clause in
the Constitution, and they should then be held to be exempt on
their roadbed, we shall have cut ourselves off from getting any-
thing out of them.
Mr. LAUDER. I will ask if it is not a fact that the Supreme
Court of the United States has held that the gross earnings tax
law was unconstitutional and could not be enforced? I would
ask if it is not a fact that the only gross earnings law that can be
enforced is on the earnings within the jurisdiction imposing the
law? If we pass the gross earnings law, won't it rest entirely.
with the railroads whether they pay or not?
Mr. MOER. If we pass a gross earnings law the roads will
pay under it.
Mr. CARLAND. I am in favor of leaving the matter to the
Legislature. But I don't understand this would modify the sec-
tion as it now stands, as it is claimed. There is a semicolon after
the word "taxation," and "until otherwise provided by law" would
not reach back of the semicolon.
Mr. PARSONS of Morton. This subject has been discussed a
good deal, and I am opposed to the amendment of the gentleman
from Traill, because it does not place the matter in proper form.
Mr. SCOTT. I don't think this amendment would sound very
euphonious if it was passed as it is. I believe the Legislature
should have the power to pass a gross earnings law something
similar to the one which exists now, so that the railroads may
come in under it and pay on their earnings. But I don't believe
that it should be left within the power of the Legislature to in-
clude in that tax their lands. The lands should be taxed like
other lands. As this amendment will give the Legislature the op-
portunity to include the lands in a gross earnings tax, I shall vote
against it.
Mr. WILLIAMS. I shall vote aye because I think this should
be left to the Legislature. I don't believe we should tie their
hands in this matter. I don't think that we have any right to
believe that the Legislature will be less honest than we are. I
think they will be just as honest as this Convention. It should be
left to them to do as they wish.
The amendment of Mr. HEGGE was lost by a vote of 51 to 17.
DEBATES OF THE CONVENTION.
619
Mr. PARSONS of Morton. I move that the following words.
be added to the section:
"Provided, That the Legislature may provide a uniform rate for taxing all
property used exclusively for railroad purposes."
Mr. STEVENS. I am in favor of the gross earnings system for
railroads provided there is no other property to be taxed under
the system except such as is actually used in the operation of the
franchises of the road. I am opposed to a tax by a gross earnings
system which will embrace the lands that lie aside from the right
of way belonging to the railroad company.
The amendment of Mr. PARSONS was laid on the table.
Mr. MOER. I move to amend the section by adding thereto
the following:
"But this section shall not be construed as prohibiting the Legislature
from enacting a uniform gross earnings law upon property of railroad corpor-
ations used exclusively for railroad purposes."
AFTERNOON SESSION.
Mr. LOWELL. I move as a substitute for the original section
(180) and the amendment the following:
“The rule of taxation shall be uniform, and taxes shall be levied on such
property as the Legislative Assembly shall prescribe."
Mr. BELL. Without a doubt there has been an immense
amount of education on this article 180. The gentlemen have
claimed that it was unjust, but the real fact of the matter is that
it is too just to suit a great many of the gentlemen who are on the
other side of the question. What they don't like is a provision
that taxes shall be uniform-that all property shall be taxed alike
—without reference to whom it belongs. This section only pro-
vides that every individual, every corporation shall be taxed alike.
The gentlemen on the other side of the question made such a cry
for justice yesterday on the article on corporations-made such a
cry for the railroads, that they should have power to appeal to the
courts the same as individuals. But now they want the railroads
on the question of taxation to have an undue advantage over every
one else. They want the railroads to be taxed by a gross earnings
system. If that is correct why not tax the farmer, the merchant
and the manufacturer by the gross earnings system? But no,
they don't want to do that. They want to give the Legislature
620
DEBATES OF THE CONVENTION.
1
power to have favorites and pets to give certain privileges to.
They want to tax one individual and one set of people one way
and another set another way. If you give the Legislature this
power that they can tax under any system they want to, it is fea-
sible enough that the corporations will ask to be taxed under the
gross earnings system. I would like to know if there is anything
unjust in all of us being taxed alike? Are the railroads and cor-
porations any better than the individuals of this State? Why
should they have privileges that other people don't have? I hope
any amendment to this section will not prevail.
Mr. PARSONS of Morton. I feel that the remarks of the
gentleman from Walsh have been directed at me for one, as I have
advocated an amendment to this section. I wish to say that I
don't believe I have a constituent west of the Missouri river-a
farmer or a laborer—or anyone else that would have me, or urge
me in any way to vote for a measure that was unjust. Our fore-
fathers had a little difference with the British government at one
time over a matter of taxes. It was not the amount of taxes, but
the principle of the thing that was at stake. The gentleman
stands on this floor and says these things are for the interest of
the dear people-we are to be all taxed alike, "provided that no
railroad shall be taxed for less than $3,000 a mile." If the gen-
tleman from Walsh wants a provision in the law that no farm
shall be taxed for less than $10 an acre, then we are getting down
to the same basis. But you have made a distinction here, and
have stated by the very act before us that we do wish to make a
distinction against the railroads. I stand here as one who is not
afraid to declare his opinion on any subject under heaven. I
don't care whether this is for or against a corporation. If it is
necessary to stand by a corporation, I will stand there as quickly
as on the other side. The gentleman objects to this amendment
simply on the ground that it makes a distinction. I claim that
we have already made a distinction which is an injustice and an
outrage. I say the principle is wrong of placing $3,000 a mile on
the railroads. I say place all in the same category. Let some
uniform rule apply to all.
Mr. COLTON. The gentleman from Morton is getting ahead of
the business. We have not come to that section which says $3,000
yet. The question before us is now-shall we have a uniform and
equal taxation or shall we not. That is the question we have
DEBATES OF THE CONVENTION.
621
before us.
There is not a man of you that has ever got one vote
from the farmer but wants to see just and equal taxation.
A vote was then taken on the substitute of Mr. LoWELL.
Mr. SPALDING explained his vote. I desire to explain my
vote for the second and I trust the last time. I came to this Con-
vention unpledged to any individual or corporation, with sympa-
thies where they still are-in favor of that portion of the inhabi-
tants of the State to be, on whose prosperity we all, to a greater
or lesser extent depend, but desiring to see justice done to all, and
no means favoring any class to the prejudice of any other class.
Least of all did I desire to see a Constitution made giving special
privileges to wealth and the corporations, or prejudical to the poor
man or farmer. But this Convention had not long been in session
Then it became evident to me that corporations were not the only
class seeking to influence its members to adopt class measures, for
I found many members pressing measures that if passed, would,
in my judgment, prove unjust, unreasonable and oppressive, and a
detriment to the welfare of the State and its inhabitants. So
extreme and radical were many of these measures; so presistent
and uncompromising, and so averse to adopting a middle and con-
servative course were their advocates, that in some instances
in my
efforts to avoid extreme measures and class
legislation, I have been compelled to accept one horn
of the dilemma and
and support that measure which, while
not meeting my approval, was in my judgment the least
objectionable. This is especially the case in the matter now be-
fore the House, viz., section 180, requiring among other things all
property to be taxed according to its true value in cash, while sec-
tion 181 and 183, for which the very same majority which is urg-
ing the passage of this section unamended voted, provide in sub-
stance that lands in certain conditions shall be taxed without re-
gard to value, and fix an arbitrary minimum amount for the as-
sessment of railroads, without regard to actual value, thus con-
flicting with section 180 and attempting to except certain parties
from the operation of the principle which they claim to support,
and discriminating against such. In some cases this state of
affairs has caused me to vote with the minority and subjected me
to the criticism of railroad influence, but I desire to say that
neither before nor since the opening of this Convention has any
person asked my vote for or against corporate measures, and when
cast as in this case, apparently in their behalf, it has been for the
622
DEBATES OF THE CONVENTION.
measures before stated, or because in my feeble judgment the
proposed measure, even though advocated by corporations, was a
proper and just one.
The amendment was lost by the following vote:
The roll being called, there were ayes, 35; nays, 36; viz.:
Those who voted in the affirmative were:
Messrs. Bartlett of Dickey, Bennett, Blewett, Brown, Budge,
Carland, Chaffee, Clapp, Fay, Flemington, Gayton, Glick, Griggs,
Harris, Hegge, Holmes, Hoyt, Leach, Lohnes, Lowell, Mathews,
Meacham, McHugh, Miller, Moer, Parsons of Morton, Parsons of
Rolette, Pollock, Purcell, Ray, Shuman, Spalding, Stevens, Whip-
ple, Williams.
Those who voted in the negative were:
Messrs. Allin, Appleton, Bartlett of Griggs, Bean, Bell, Best,
Camp, Carothers, Clark, Colton, Douglas, Elliott, Gray, Haugen,
Johnson, Lauder, Linwell, Marrinan, McBride, McKenzie, Noble,
Nomland, O'Brien, Peterson, Powers, Powles, Richardson, Rob-
ertson, Rowe, Sandager, Scott, Slotten, Turner, Wallace, Well-
wood, Mr. President.
Absent and not voting:
Messrs. Almen, Paulson, Rolfe, Selby.
The amendment of Mr. MOER was then voted upon.
Mr. CAMP. I desire to explain my vote. I was not here when
this amendment was offered, and reached my seat after the pre-
vious question was being put. I am in favor of a gross earnings
system of taxation being applied to the property of railroads used
exclusively for railroad purposes, but it does not seem to me that
the amendment as now made is well worded to convey that idea,
and I vote no.
The amendment of Mr. MOER was lost by a vote of 30 to 40.
Mr. MOER. I regard this as practically settling the question
whether the Convention is in favor of allowing the Legislature to
have the power, in case it becomes necessary in lieu of taxes on
the roadbed and franchises, to take the taxes under a gross earn-
ings system. In the event that the Supreme Court should hold
that the roadbed, etc., were not taxable, we should be left without
taxation of railroad property. I am opposed myself to the gross
earnings system of taxation. I am in favor of a law which will
allow the railroad lands to be taxed like other lands. I am op-
posed to a constitutional enactment which will preclude a Legis-
'ature from taxing railroad property at all.
Section 180 was adopted.
DEBATES OF THE CONVENTION.
623
1
Mr. MOER. I desire to give notice of motion to reconsider
the vote by which section 180 was adopted.
Sections 181 and 182 were adopted.
TAXING RAILROADS.
Section 183 was read as follows, with the recommendation of the
Revision Committee:
SEC. 183. All property, except as hereinafter in this section provided,
shall be assessed in the county, city, township, town, village or district in the
manner prescribed by law. The franchise, roadway, roadbed, rails and rolling
stock of all railroads operated in this State shall be assessed by the State
Board of Equalization at their actual value, and the same shall be apportioned
to the counties, cities, towns, townships and districts in which said roads are
located, in proportion to the number of miles of railway laid in such counties,
cities, towns, townships and districts; Provided, That for the purpose of
assessment and taxation such railroad shall not be valued at less than
$3,000 per mile.
[Committee recommend that the words "in which it is situated" be inserted
after the word "district" where it first occurs in the section.
Mr. MILLER. I move to strike out the proviso, for the
reason that I think it grants a monopoly to the two great railroad
corporations now running through the Territory. A smaller rail-
road company, and one operating a road paying a less percentage
of profit than these roads, could not stand it. It gives these two
roads a virtual monopoly of all the railroad business of Dakota.
It is unjust and unreasonable, because it fixes a price of some-
thing that we do not know anything about what the price should
be.
Mr. LAUDER. I have desired to be consistent as nearly as I
could in the consideration of these sections. I voted against the
amendment to section 180, because I believed railroad companies
should be taxed just the same as any other person or corporation
in the State, and that they might be taxed in the same way and in
no other way, that there might be no greater burden placed on
them than is placed on any other person, but the same rule should
apply to the taxation of their property that applies in the assess-
ment and taxation of all other property. The removal of this
proviso will leave this article on taxation in such a way that every
person in the State, all corporations in the State, and all other
property, will be affected in the same way, and will be made uni-
form. There will be no special privileges and no special burdens
on any one.
624
DEBATES OF THE CONVENTION.
Mr. BARTLETT of Griggs. I desire also to second the strik-
ing out of that proviso. I believe we have no legal, moral or any
other right to prescribe the rate of assessment of any property.
Mr. TURNER. I also favor the striking out of this proviso. I
think it is only just and fair, and as the representative of one of
the classes represented here I believe that no community in this
Territory desires to have any one unjustly taxed.
Mr. MOER. I am heartily glad that the gentleman from Rich-
land has at last consented to strike these words out, and he now
uses the same arguments that were used in the committee. I don't
know what has changed his heart, but I am glad it is changed.
Mr. SPALDING. I am heartily in favor of striking out this
proviso, for the same arguments that I urged to strike out 181
apply here. I never experienced instantaneous conversion that I
recollect, and I have not seen it very often in others, but it seems
to me that here is an example of it, and I am glad to see the gen-
tlemen from Richland and Griggs and Bottineau experiencing a
change of heart so suddenly.
Mr. COLTON. I don't think it is any very sudden change of
heart. We have all had our minds made up to that amendment
for several days-long before this came up, and it is no sudden
change of heart as seems to be imagined. I don't think there will
be any opposition to it.
Mr. BARTLETT of Dickey. As the two extremes have come
together and there seems to be such splendid feeling I move that
we take a recess while the gentlemen embrace.
The amendment of Mr. MILLER was adopted and the section was
adopted as amended.
Sections 184 and 185 were read and adopted.
Articles twelve, thirteen and fourteen were adopted.
AMENDMENTS TO THE CONSTITUTION.
Article fifteen was read as follows:
"Any amendment or amendments to this Constitution may be proposed in
either House of the Legislative Assembly; and if the same shall be agreed to
by a majority of the members elected to each of the two Houses, such proposed
amendment shall be entered on the Journal of the House with the yeas and
nays taken thereon, and referred to the Legislative Assembly to be chosen at
the next general election, and shall be published, as provided by law, for three
months previous to the time of making such choice, and if in the Legislative
Assembly so next chosen as aforesaid such proposed amendment or amend-
ments shall be agreed to by a majority of all the members elected to each
DEBATES OF THE CONVENTION.
625
!
House, then it shall be the duty of the Legislative Assembly to submit such
proposed amendment or amendments to the people in such manner and at such
time as the Legislative Assembly shall provide; and if the people shall approve
and ratify such amendment or amendments by a majority of the electors quali-
fied to vote for members of the Legislative Assembly voting thereon, such
amendment or amendments shall become a part of the Constitution of this
State. If two or more amendments shall be submitted at the same time they
shall be submitted in such manner that the electors shall vote for or against
each of such amendments separately."
Mr. WILLIANS. I move to amend this article by striking
out in line three the words "a majority" and inserting therefor the
words "two-thirds."
Mr. PURCELL. I hope the amendment will not prevail, for
the reason that in the case of an amendment to the Constitution
being desired, it will require a majority of two successive Legis-
latures before it can be submitted to the people, and it seems to
me that that is safeguard enough to be thrown around our Consti-
tution. It may be difficult to get a two-thirds majority of each
Legislature to agree to submit this question, and as this is a new
State, the people should have the privilege of voting on an amend-
ment if the majority of the members of two Legislatures vote for
the submission.
Mr. LAUDER. I heartily agree with the remarks of my col-
league from Richland, and I therefore move that the amendment
be laid on the table.
The motion was carried.
The article was then adopted as reported.
Articles sixteen and seventeen were then adopted.
Mr. WILLIAMS. I move that the following be made an ad-
ditional section to article seventeen:
“The real and personal property of any woman in this state, acquired be-
fore marriage, and all property to which she may after marriage become in any
manner rightfully entitled, shall be her separate property, and shall not be lia-
ble for the debts of her husband."
The motion was carried.
THE OATH OF OFFICE.
Mr. JOHNSON offered the following substitute for section 217:
"Members of the Legislative Assembly and the officers thereof, before they
enter upon their official duties, shall take or subscribe the following oath or
affirmation: I do solemnly swear (or affirm) that I will support the Constitu-
tion of the United States and the Constitution of the State of North Dakota,
and will faithfully discharge the duties of (senator, representative or officer)
40
626
DEBATES OF THE CONVENTION.
according to the best of my abilities, and that I have not knowingly or inten-
tionally paid or contributed anything, or made any promise in the nature of a
bribe, to directly or indirectly influence any vote at the election at which I was
chosen to fill said office, and have not accepted, nor will I accept or receive di-
rectly or indirectly, any money, pass or other valuable thing from any corpora-
tion, company or person, for any vote or influence I may give or withhold on
any bill or resolution, or appropriation, or for any official act."
Mr. JOHNSON. I don't wish to argue the question.
When
it was discussed before it was in the Committee of the Whole. It
is one of the three things that were desired by the Farmers' Alli-
ance, and they have a right to have it.
The substitute was lost.
Mr. CLAPP. I offer the following amendment to section 217:
Add after the word "ability" the following: "(If an oath) So
help me God. (If an affirmation) Under the pains and penalties
of pejury." I recognize the fact that as it now stands, in case of an
affirmation it might be inconsistent to have the words "so help me
God," although some states of the Union have the form of oath
like this. But I think this amendment, if adopted, will leave the
matter in better shape.
The amendment was carried.
BLACK LISTS.
Mr. PARSONS of Morton. I move the adoption of the follow-
ing as a section of article 217: "The exchange of black lists be-
tween corporations shall be prohibited."
Mr. SPALDING. I would like to know what a black list is?
Mr. PARSONS of Morton. It is a list of discharged employes,
for no matter what cause, and circulated by agreement among cor-
porations. It is supposed to be a list of employes that have been
discharged for cause, and they are circulated from month to month
by the corporations. A man may be discharged in Dakota, and it
is known by the roads in Missouri. There are some roads with
managers who have enough manhood about them to sit down on
such a procedure. There is no way you can prevent it except by
some such clause as this. The black list does not specify the
cause, particularly, for the discharge. They may be obnoxious in
one way or another; they have done some bad thing, but we all are
liable to make mistakes. If a man makes a mistake, that is no
reason why he should be persecuted. It is a persecution list, and
it is exchanged around among the corporations.
Each corpora-
tion can have its own black list.
DEBATES OF THE CONVENTION.
627
Mr. MOER.
I would suggest that possibly if we adopt this
section they would call them blue lists.
Mr. BARTLETT of Dickey. It seems to me that some men
came here to play and have some fun. This is one of the most
foolish things. I have been figuring with black lists all my life.
If this is adopted they will be able then to get up red lists and
then blue lists. Men who want to can get around these things
without any trouble. If a man is not good put "A" after his
name, and if not so good as "A" put "B" there. I have bushels
of black lists. There is not a power on earth that can prevent a
company from keeping black lists if it wants to have them, and
never will while the world stands.
The motion of Mr. PARSONS was adopted.
EVENING SESSION.
Mr. JOHNSON. I would like to have the report of the com-
mittee read appointed to examine the telegrams, letters and mem-
orials regarding the location of the public buildings. I under-
stand the report is ready, and if it is to be of any use to us it
should be submitted now. Therefore I move that the report be
now submitted.
Mr. MILLER. As Chairman of the committee I have parti-
ally, and perhaps fully, prepared a report that would be satisfac-
tory to myself, but there are questions raised by the balance of
the committee, and I am not prepared to make that report. But
I will be ready to report to-morrow morning. I am not prepared
to do it now.
Mr. JOHNSON. I have examined the report prepared by the
Chairman and the majority of the committee, and am unable to
concur in the conclusions, and I have prepared a minority report
which I ask leave to submit.
Mr. SPALDING. I rise to a point of order. The gentleman
cannot have a report of the special committee read now without a
suspension of the rules, and the proper place for that is in the
proceedings which come in the morning session.
Mr. BARTLETT of Griggs. I move that the rules be suspended
for the purpose of receiving the minority report.
Mr. STEVENS. I think I am entitled to know something
about what is going on in this committee, or I am entitled to be
excused from the committee. I did not know that there had been
ין
628
DEBATES OF THE CONVENTION.
a meeting of that committee. I have seen no report. I have not
heard the gentleman raise any objections to the report of the
Chairman, and I don't know but that I may want to sign his mi-
nority report. But I would at least like to have an opportunity of
looking at it.
The motion was laid on the table.
Article eighteen was adopted.
THE PUBLIC INSTITUTIONS.
Mr. BARTLETT of Griggs. I renew the motion I made before
that the minority report of the Committee on Public Institutions
be substituted for article nineteen.
This was laid upon the table.
Mr. BARTLETT of Griggs. I move to amend the article by
inserting before the first sub-division the following:
"The following article shall be submitted as a separate article to be voted
on separately."
Mr. MILLER. I move that the motion of the gentleman be
laid upon the table.
Mr. WILLIAMS. I move the previous question on the ques-
tion of the gentleman from Cass.
Mr. PURCELL. I move that the whole section be stricken out.
The previous question, and the main question were put and the
section was adopted.
While the section was being voted upon, Mr. BEAN said: I
wish to explain my vote as regards this article; in fact, all the
votes we have taken this evening on this question. When I first
came to this Convention I was opposed to the Convention locating
the public institutions. When we took our vote last week I was
also opposed to locating them. My two first votes showed that
fact. When the third vote came I saw the question was going
anyhow, and I voted in the affirmative, thus giving me a chance to
reconsider my vote if I desired. After that one of the members
of this Convention saw fit to have an indignation meeting held at
the village of Lakota. There they not only condemned the action
of the majority of this Convention, but saw fit to point out me
personally, and shower their condemnation on me. Now, in voting
for this article, I do not consider it alone as a question of locating
these public institutions, but I consider it a question of my per-
sonal character. Since coming back here I have had reasons to
change my mind in regard to this matter. Since coming back
DEBATES OF THE CONVENTION.
629
here this second time I have seen more political trickery going on
than I have ever seen before in all the political conventions that I
have attended. I have seen the persons who were in the minority
at the other vote, who went up and told of the jobs that were put
up, and how the rings were formed and the cliques would gather,
and how the boodle was used; I have seen these same gentlemen
trying to form their own rings to beat the same majority that they
charge with the same offenses. I consider that this is not alone
a question of erecting these public buildings. I don't consider
this is the only question, as to where we shall locate these
public buildings. The question is not that; the question lying
under the whole thing is whether the city of Bismarck shall have
the Capital, or Grand Forks. Taking this fact into consideration,
I have voted this evening, and I do so to sustain my private char-
acter in spite of what my colleagues may go home and report in
Lakota.
Mr. BENNETT. He has just said one thing I know is false.
I fling it back in his face right here or any other time, and that
is that it is a question of locating the capital here or at Grand
Forks. That is not so. When he comes up and makes such a
statement as that he states a falsehood. When I came down here
from Grand Forks as a delegate I did not come to work in the in-
terest of Grand Forks as against any other part of the Teoritory.
I was not three hours in Bismarck until I was approached on the
question of locating the capital at Bismarck. I told them I was
in favor of locating the temporary seat of government here, and
then voting on the question. Now then, that was not what was
sought. The question was to locate the permanent seat of govern-
ment at Bismarck. I was asked to go into a combination. I stated
that Grand Forks and Grand Forks people did not propose to go
into any combination at the expense of any other part of the Ter-
ritory. That is our statement of the position we maintained from
the first till we finally saw this combination of forty-four, bound
to locate the Capital here, and then I think we were justified in
trying to break it up if possible. That is the course of the peo-
ple from Grand Forks.
A voice in the gallery called out "rats."
Mr. PURCELL. It is simply a question whether a man can
speak here and be heard, or whether some outsider can yell "rats.”
The case is just this. Of course this majority have the right to
have their remarks heard, but the minority also have the right to
630
DEBATES OF THE CONVENTION.
be heard, and while the gentleman from Grand Forks was speak-
ing somebody yelled "rats." That is unbecoming and unmanly.
The gentleman from Nelson stated that since he came back he has
seen more chicanery and more scheming going on to defeat the will
of the majority than he ever saw before. I am one of the minority
and I was present at the meeting which the gentleman from Nelson
attended to-day. And sir, I want it distinctly understood that that
meeting was not called by any man who has voted with the mi-
nority, but in the interest of friends of those who have voted with
the majority, and when I speak of them I speak of the men who
represent Jamestown and their delegates on this floor. The
minority have been willing to submit to the will of the majority
if they could not defeat them fairly and squarely. In all of their
meetings there has been no attempt at chicanery or underhand
action to defeat the will of the majority. It was at the call of
others who came here and organized this minority into a caucus,
and because of the promised assistance of those who to-day have
voted with the majority that these meetings were held, and not
otherwise. It was a question with the minority whether they
would sacrifice their votes for baits that were promised them in
case they would vote for the compromise location, and what has
been done in caucus has been done because they were called
together by those outside who pretended to be able to bring to the
assistance of the minority some of those who have voted with the
majority. If the gentleman charges the minority with having
done anything wrong, they have the right to stand up here and say
why they were in caucus at the time they were in caucus.
I
Mr. CAMP. I desire to explain my vote. The gentleman who
has just finished speaking has referred to caucuses that have been
held, and in which the delegates from Stutsman took part. When
I voted on this question a little more than a week ago, I took oc-
casion to say to this body that I knew the vote which I cast would
subject me to the most scathing criticism. I found my prophecy
fulfilled speedily, and in a quarter where I least expected it.
was called home a week ago to-night to attend an indignation
meeting, at which the delegates from Stutsman county were to be
burned in effigy, and otherwise honored. However, we were not
burned in effigy, or otherwise dishonored. It seems, however,
that the citizens of Jamestown thought that there was still a pos-
sibility that their hopes might be attained, and our city might be
made, at least temporarily, the capital of the State of North Da-
DEBATES OF THE CONVENTION.
631
kota. Their delegates were instructed and urged-they were un-
necessarily instructed and urged, for we should have done the
same thing and had done the same thing anyway-to use every
honorable effort to secure the location of the Capital of North Da-
kota temporarily at our city. One of the delegates from Grand
Forks was present at Jamestown, and he made a statement that he
could secure a certain number of gentlemen to vote for the seat of
government temporarily at Jamestown if we could secure a
sufficient number to make with them a majority. We undertook
the task, and the delegation from Jamestown has been here work-
ing with that end in view. For that reason I went with the other
delegates from Jamestown into caucus with the gentleman from
Grand Forks and with the members of the minority here.
At the opening of the first meeting of that caucus I
was very careful to state the object for which I myself was
there, which was nothing but that if a majority was obtained for
Jamestown, I would work with that majority. Otherwise, I would
remain where I had placed myself before, believing then, as I do
now, that this combination is the best for the County of Stutsman
and the City of Jamestown, provided we could not get the Capital
permanently or temporarily. That caucus held various sessions,
and at its sessions this afternoon it was finally decided, and at
least definitely fixed, that we could not command a majority for the
proposition of locating the Capital temporarily at Jamestown.
The minority then said, and to their honor be it said, that they
had gone into this matter as a matter of principle, and that to go
to locate any institution even temporarily would take from them
the moral strength of their position. They took that position, and
although some and most of the gentlemen were willing to vote the
Capital temporarily at Jamestown, yet some of the gentlemen
would not do this, and that proposition was left in a hopeless.
minority. When that was found to be unalterably fixed, I left the
caucus; the caucus adjourned sine die, and it was understood that
every delegate was free to vote upon this measure as he saw fit.
Therefore, I vote with the consent and under the advice of the
city I represent. I vote as I did before-aye.
Mr. JOHNSON. I wish to say a word, not exactly in explana-
tion of my vote, but in correction of one of the statements made
by my colleague. He states correctly the proceedings at Lakota,
with one exception. It is unimportant, but he is in that respect
laboring under a misapprehension when he states that I had an
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DEBATES OF THE CONVENTION.
indignation meeting called. He said a member of this Conven-
tion did it. I being the only member of this Convention there,
was the one pointed out. If I had had an opportunity to join in
the call, I should not have hesitated to do so. I should have con-
sidered it perfectly proper, but I had not the opportunity to do so.
When I came to Lakota, on the way to my house I went into the
printing office and had a chat with the editor, and while I was
there, before I had said a word about a meeting, a gentleman came
in and said an indignation meeting had been called. I went to
the postoffice and saw the notice signed by a great many of the
leading citizens. This is unimportant. I vote no.
Mr. LAUDER. Mr PRESIDENT, in view of the vote that I cast
on this question when it was before this Convention something
over a week ago, I feel it my duty to explain my vote on this occa-
sion. I think all the members of this Convention with whom I
have conversed will bear me out in the statement when I say that
I have been against this proposition from the start as a matter of
principle. But this combination was formed, and they saw fit in
their generosity to establish or locate a public institution in the
city in which I live, no doubt with the expectation that the dele-
gation from that county would support the measure. Two of the
gentlemen from my county, my colleagues, expressed in unmis-
takeable terms their dissent from this proceeding, and refused to
support it, concurring with me that it was an unwise measure
-wrong in principle. The alternative was presented to us, as it
occurred to me at the time--I may have been mistaken-but as it
was presented to me the alternative was to support this measure
or the institution that was in contemplation would be taken away.
I had but a short time to consider the matter. Of course I am
loyal to the county from which I come and which I represent, and
I was not at that time entirely certain that my people would jus-
tify me in voting against this measure, when if I did so they would
lose the institution which was provided in the bill, knowing as I
did that there was strength enough behind the combination to
carry it through. For that reason, and not being entirely satis-
fied that my constituents would justify my vote, if I voted against
it, I voted aye. Since casting that vote I have had occasion to
visit my home and converse with my people, and I am very glad
that I can come back here now and satisfy my judgment and con-
science by voting on this question as I believe I ought from the
standpoint of principle. There has been something said by the
DEBATES OF THE CONVENTION.
633
gentleman from Nelson about combinations in opposition to this
measure. I believe I have been in every meeting that has been
held for the purpose of devising ways and means whereby this
combination can be defeated. I have seen no such combinations
as he speaks of. For my part I have not, except in the vote I cast
here a week ago I have never consented to any scheme or any
combination by which any institution of this State should be per-
manently located in this Constitution. In this I can also include
both of my colleagues from Richland county. Some of those who
were in opposition to this combination were willing to go this far
to defeat this combination--we were willing to locate the seat of
government temporarily at Jamestown, or we would have been
willing to locate it at Fargo or Grand Forks or anywhere else, if
by so doing we could defeat this combination, but at no time have
I or any of my colleagues from Richland county, or any gentle-
men who have been opposed to this combination, so far as I know,
advocated a measure permanently locating the seat of government
of this State by this Constitution. I vote no.
Mr. PARSONS of Morton. I wish to say a word in explanation
of my vote. Inasmuch as the question of purity of conscience
has been brought up on this floor, I wish to make it clear and
plain if possible, that no one can hurl the charge of bribery or
undue influence against me. I wish to state that when I came to
this Convention, I came for measures and not for the location of
public institutions. But I was perhaps so verdant as to suppose
that we would all consider this matter, and locate these institu-
tions, fairly distributing them through the State, leaving it to the
Legislature to make provision for them as the welfare of the State
demanded. But I found a decided opposition to anything of the
kind. I was satisfied-I may have been mistaken-that it was im-
possible to ever locate the Capital of the State by a vote, and get
the wishes of the people, for it would be impossible to get a ma-
jority for any one place. In considering these things-consider-
ing that there is no body that will ever be elected by the people
till another Constitutional Convention, better adapted to deal with
this question, than the present body, as a common place, honest
man I deemed it my right and privilege to take part in the location
of these institutions. Because a minority of this body refused to
take a band in the proper location of them, and thus have a fair
distribution, the only way left was for us to do what we did-to go
in and locate them. I regret that it has been found necessary to
634
DEBATES OF THE CONVENTION.
locate the educational institutions in the eastern part of the State
in a body, but I wish to say that I am in no way responsible for
that, and in the days to come when our children occupy the same
places we do, they will find that it is the minority that has been
the cause of this improper distribution of the institutions in the
State. I have been ready to agree to a fair and equitable division
of these things, and it is the tactics observed by the other side.
that has caused this state of affairs. If they charge bribery and
corruption, I wish to say that overtures have been made to me by
the minority which I will not describe here. I do not wish to cast
any reflections on the gentlemen who have made overtures to me.
I believe in the sight of God that there was no more consideration
of justice and right on the side of the minority than there was on
the side of the majority. If selfish motives actuated the one side,
motives just as selfish actuated the other side. If any man wishes
to charge that there has been bribery or corruption or undue in-
fluence used, I wish to say that I have been familiar with what has
been going on, and I wish to say it is a base falsification, and I
desire the world to know that this combination is as pure and
honorable as any that has ever existed in any capital in the United
States, and it is just as pure and honorable as the motives that
govern the minority. I desire to cast my vote aye.
Mr. POLLOCK. On a former occasion I defined my position
in this matter to this Convention, and I do not care now to repeat
what I said then in substance or otherwise. But I wish to ex-
plain, and that briefly, that through the early days of this Con-
vention I was interviewed by a few members of the Convention,
and many people of this city, with reference to my posi-
tion as to the matter of locating the capital of the State of North
Dakota. I have expressed on every occasion, I think, my willing-
ness by my vote here or at the polls, to locate the capital in this
city, knowing as I do the history of the capital location here;
knowing as I do what the people of this vicinity have passed
through with reference to it, and knowing as I do how they have
suffered in other ways. But I would like to vote on that question.
as an independent proposition. When the proposition comes up
it is combined in such a way that it is impossible for me to vote
for it. I simply make this explanation so that I may set myself
right with the people of this city. 1 think it is absolutely neces-
sary for me to vote as I do in order to perform the duty which I
claim devolves upon me. Therefore I vote no.
DEBATES OF THE CONVENTION.
635
Mr. STEVENS. I vote aye on this proposition so that the
City of Bismarck may sit on her seven hills and be the most
beautiful capital of the four new states.
Mr. TURNER. I feel called on to explain my vote on this
question. I feel called on in the first place, because of the charges
that have been made by the gentleman from Nelson against the
minority, who have, it is true, held caucuses with respect to the
question of locating the public institutions of this State. In the
charges he has laid against the minority he has evidently tried to
make the impression that there has been an effort made on the
part of certain parties to form an improper combination in the
minority on this question. I believe that I have attended every
meeting of that minority, and I can testify that every expression
of that minority in their caucuses has been that they would not
combine to locate any of the institutions permanently. They
were against the location of these institutions; they were against
it because they did not believe it in the public interest, and they
determined that they would not go into any combination of a
character that would be buying and selling-giving something for
what was to be received. The only effort made on the part of that
minority was to endeavor to break the combination with respect to
the public institutions which are not created. For myself, as the
gentlemen know, I would, on a square issue, have voted for the
temporary location or the permanent location of the Capital at
Bismarck. But when the City of Bismarck went into a combina-
tion for the purpose of farming out the institutions of this State,
for which the Government had appropriated a half million acres
of land, and located these institutions so as to give them a major-
ity vote on this question without reference to the question of
right, which I think really they might have based their claims.
upon-when they did this, and located two Normal Schools, one at
Mayville and one at Valley City, within sixty or seventy miles of
each other, when we have a State 400 miles by 200-when they
did this, I saw plainly that the interests of the State of North Da-
kota would be sold by the people of Bismarck for the purpose of
establishing the Capital here. Hence, I would have gone into a
convention to temporarily remove the Capital from Bismarck, if
by so doing I could have broken up this combination. The posi-
tion of things was such that I could not vote for the City of Bis-
marck without voting for the locatien of the other institutions
636
DEBATES OF THE CONVENTION.
which I am opposed to so locating. For that reason I record my
vote no.
Mr. WALLACE. I don't consider it necessary for me to take
up much time. Neither do I think that what I may say will have
any influence on individuals. I wish to say that when the dele-
gates of this Constitutional Convention were elected this question
was never mooted. It was not a question that the people were
called upon to decide, nor did they vote upon it. We were not
aware that a combination had been formed, or that the scheme had
been formed that resulted in the combination which we have seen
here, but in the light of recent events we can see that the incep-
tion and origination of this thing dated away back from the time.
this Convention came together. Various gentlemen here have
been stating that they have voted in the interest of the people, and
they have disclaimed the fact that they had been bribed, and yet
they never could have been brought into it by any other means.
Now, Mr. PRESIDENT, it is well for us to talk plain words. It does
not take any very sharp eyes to see through this. The gentlemen
may say that they have acted honorably and for the best interests
of the people, but when they say they dare not submit this matter
to a vote of the people, what does that say? Actions speak louder
than words, and the history of this State will record the fact that
the judgment of the people is not in accord with the majority
here to-day. We very well know, as I have stated, that the re-
sults of this day's work have only been made possible by a com-
bination which, in order to bring about that result, has parcelled
off the landed heritage of this State to those various localities. If
that is not corruption and bribery, it comes so close to it that it is
not worth while to call it by any other name. It is not necessary
for me to say anything more to explain my vote. I believe the
people have a right to say where the capital of the State shall be
located, but the question of the permanent location of the capital
is not in my mind alongside of the right of the people to say
where the capital shall be located. For that reason I have taken
the position I have, that this Convention, not being elected on
that issue—not having been empowered by the people with a
right in this matter, have taken on themselves to do that which
they had no authority to do, and they have taken on themselves to
say that the people of this State shall not vote on this question-
that they are afraid to go before the people and submit the result
DEBATES OF THE CONVENTION.
637
of their labors to the people for their inspection. It is useless to
try to cover this thing up; it sticks out too plain. I vote no.
The article was adopted by the following vote:
The roll being called, there were ayes 43, nays 2, viz.:
Those who voted in the affirmative were:
Messrs. Bartlett of Dickey, Bean, Blewett, Brown, Camp, Car-
land, Chaffee, Clapp, Clark, Elliott, Fay, Flemington, Gayton,
Glick, Gray, Griggs, Harris, Hegge, Holmes, Hoyt, Leach, Loh-
nes, Lowell, Meacham, McHugh, McKenzie, Moer, Parsons of
Morton, Parsons of Rolette, Paulson, Powles, Ray, Rolfe, Rowe,
Sandager, Shuman, Spalding, Stevens, Wellwood, Whipple, Wil-
liams, Mr. President.
Those who voted in the negative were:
Messrs. Allin, Appleton. Bartlett of Griggs, Bell, Bennett, Best,
Budge, Carothers, Colton, Douglas, Haugen, Johnson, Lauder,
Linwell, Marriman, Mathews, McBride, Noble, Nomland, O'Brien,
Powers, Purcell, Pollock, Richardson, Robertson, Slotten, Turner,
Wallace.
Messrs Peterson and Selby absent and not voting.
Messrs. Almer and Scott being paired.
Messrs. Bean, Camp, Johnson, Lauder, O'Brien, Pollock, Ste-
vens, Turner and Wallace explaining their vote.
Article nineteen was adopted.
ELECTING COUNTY OFFICERS.
Mr. SPALDING. I move to strike out all after the word
"elected" in line twelve, section ten of the schedule. The section
now reads as follows:
SEC. 10. All territorial, county and precinct officers, who may be in office
at the time this Constitution takes effect, whether holding their offices under
the authority of the United States or of the Territory, shall hold and exercise
their respective offices, and perform the duties thereof as prescribed in this
Constitution, until their successors shall be elected and qualified in accor-
dance with the provisions of this Constitution, and official bonds of all such
officers shall continue in full force and effect as though this Constitution had
not been adopted; and such officers for their term of service, under this Con-
stitution, shall receive the same salaries and compensation as is by this Con-
stitution, or by the laws of the Territory, provided for like officers. Provided,
That the county and precinct officers shall hold their offices for the term for
which they were elected. Until the general election in A. D. 1890, the judges
of the district courts shall have power to appoint a clerk of the court in each
organized county, who shall hold his office until his successor shall be elected
and qualified.
638
DEBATES OF THE CONVENTION.
Mr. SPALDING. This provides that until 1890 the judges
shall appoint clerks of the district court. There is a provision
somewhere else that they shall be elected. I don't know any
reason why this exception should be made. I see no reason why
the judges elected this fall should have privileges over the judges
elected heretofore.
Mr. LAUDER. As an addition to the motion of the gentleman
from Cass I move that the following be inserted in the place of
what he moves to strike out:
"There shall be elected in each organized county in this State at the elec-
tion to be held for the ratification of this Constitution, a clerk of the district
court who shall bold his office under said election until his successor is duly
elected and qualified.”
Mr. SPALDING accepted the amendment of Mr. LAUDER.
Mr. JOHNSON moved to amend Mr. LAUDER'S amendment by
inserting the words "or rejected" after the word "ratification.”
The amendment was carried.
Mr. HARRIS. Section 108 provides for the election of the
clerk of each organized county.
Mr. CAMP. For several months I have considered the question
of the power of this Convention to order an election for any offi-
cers except those mentioned in the Enabling Act. This Conven-
tion is called under the Enabling Act. Its powers are defined in
that Act, and I don't apprehend that this Convention can exceed
those powers and give legal effect to such exceptions. The En-
abling Act provides that at the election certain State officers may
be chosen. It does not provide that county officers may be
chosen at that time. As I understand it, the clerk of the district
court will be a county officer, because elected in each organized
county; and it seems to me there is a serious question whether or
not a clerk elected at such an election, simply by the authority of
this election and without the authority of this Enabling Act;
whether a clerk so elected would have any legal warrant to hold
his office. I hope the question will be considered before this part
of this section is stricken out. I rather think this part of this
section was put in simply because the Revision Committee who
were compelled to draw this up were unable to find a warrant for
the election of county officers in the Enabling Act.
Mr. POLLOCK. It may be true that the construction placed
on the Enabling Act by the gentleman from Stutsman is correct,
but there is an argument that has been advanced recently with
DEBATES OF THE CONVENTION.
639
reference to whether a certain majority in this Convention had the
right to pass certain measures. The point is this: if we are ex-
ceeding our authority and the people ratify it, it will stand.
Mr. JOHNSON. How would the gentleman from Cass like to
have it read: "The election held for the rejection of this Consti-
tution"? Would that be acceptable to him? It would be to me.
That is what the election means to me.
Mr. MOER. The gentleman from Nelson seems to be in favor
of rejecting the Constitution. It strikes me that it is a little out
of place for a delegate to get up here and talk about the rejection
of the Constitution he has been making. I can see no sense in
this unless it is to gratify the gentleman's feelings.
Mr. LAUDER. I cannot see the necessity of getting up a cap-
tious argument about this. Anyone will see that the proposition
of the gentleman from Nelson is correct. The election will be
held for the adoption or the rejection of the Constitution. There
is no question about that. The people are to vote on it-for it or
against it, and it does not follow as a matter of course that the
Constitution is going to be adopted. If we were all of one mind
and every one was in favor of this Constitution, and we were all
going home to work for it and support it, it would be different.
Mr. HARRIS. I see no necessity for putting the word "rejec-
tion" in the amendment of the gentleman from Richland. Every-
one knows that if this is rejected we are still living under the law
of the Territory, and the Clerk who would be elected under this
Constitution would not have any more force than the Governor
would.
The amendment of Mr. JOHNSON was lost.
The amendment of Mr. SPALDING as amended by Mr. LAUDER
was adopted.
Mr. CARLAND. I am reliably informed that there are certain
organized counties in North Dakota that did not elect District At-
torneys at the last election, and under the Constitution there will
be courts held in each organized county, and there will be an in-
terim between the taking effect of this Constitution and the next
general election that the county will be without a District Attor-
ney. I would move that the following be added to section ten as
amended:
"The Judges of the District Court shall have power to appoint District At-
torneys in any organized counties where no such attorneys have been elected,
which appointment shall continue until the general election to be held in 1890,
and until a successor is elected and qualified.”
640
DEBATES OF THE CONVENTION.
The motion was carried.
All the sections to section twenty-three were adopted.
DISTRICT COURT JURISDICTION.
Mr. CARLAND. Section 103 was recommitted to the Com-
mittee on Judiciary Department. The Convention has been in
session, and I have been unable to obtain a meeting of the com-
mittee. I made a motion to strike out the words, "each within its
territorial limits." This section should be disposed of in some
way. If
If it is in order, I would renew my motion to strike out those
words, "each within its territorial limits." I have tried to find
some substitute in regard to the matter as to where a defendant
should be sued, but I have been unable to frame any amendment
which would meet the case.
Mr. MILLER. I second the motion, and desire to say a few
words on the subject. I wish, however, that every member of this
Convention would consider this matter by reasoning on it, and not
by any prejudices they may have. What position are we in with
these five words in this section? If a man commits a heinous
crime in any district, and is indicted, and the judge issues a bench.
warrant for the arrest of that man, all the man has got to do is to
step across the line into the next district and the judge would not
be able to reach him, although he may be within twenty-five miles
of the court house. It does not make any difference how great the
crime, he is without the jurisdiction of that court and cannot be
reached. In the next place, no judge shall have jurisdiction fur-
ther than his territorial limits, according to this section. No man
can be sued outside his own county. A man may live in Barnes
County and in an hour's ride be in Fargo. He can transact busi-
ness in a mercantile line and have $25,000 or $50,000 capital in-
vested in Fargo, and yet he has got to be sued in his own county.
His property is exempt from any process that the Fargo court
may issue. He cannot be sued in Cass County, becanse that is
not where he resides. He may be а millionaire.
His property may be in Cass County, but you can-
not sue him there because you cannot publish a summons against
a man who resides in the State. This would be an outrage on
every citizen. It would be in its effect so pernicious as to damage
us beyond all account. I can see no earthly reason for this motion
not prevailing to strike out these words. Then the law will be
complete and perfect. You might as well abolish your district
DEBATES OF THE CONVENTION.
641
1
court as to adopt this section. The Chairman of the Judicial
Committee tells me that he has studied this question carefully and
cannot think of a provision to put in. I have thought over the
question carefully, and I don't know what provision can be drawn
to fill the requirements of this Convention. I am satisfied that
you have been led away without giving this matter careful atten-
tion, and there is not a man in the hearing of my voice but will
have occasion to regret it if this section is adopted. A man may
come from Medora, the western boundary of the State, and go to
Wahpeton; get on a tear and shoot a horse or destroy some other
property. The owner of the property may see it destroyed and
ruined, but if he wants to recover damages for that property he
has got to go to Medora to start the suit. The man may lie around
in Richland county for months and cannot be sued because he does
not live there. With this state of affairs there are a good many
men who would have an uncertain residence. You would issue a
writ against a man in Barnes county and he would say that he did
not live there, but in Traill county. Residence is a matter of in-
tention frequently. Think of this question before you vote upon
it. If you desire your own best interests and the best interests of
the people of North Dakota, vote to strike out these five words
from this section.
Mr. LAUDER. I am not going to make a speech on this ques-
tion. I have no objection to having those words stricken out. I
believe I incorporated this amendment in the motion I made the
other day, coupled with an addition to the section which I believe
will obviate all difficulty. When the gentleman from Cass states.
that it is impossible to frame a section of this Constitution under
which a man will have a right to be sued in his own county, I do
not think his statement is made in good faith. There is no diffi-
culty whatever in providing in our Constitution that the process
of the court shall be co-extensive with the boundaries of the State,
and at the same time provide that the suit shall originally be in-
stituted in the county in which the defendant lives. All the diffi-
culties that he points out were pointed out before. A part of it
I grant, but I say now, as I said before, that the purpose and ulti-
mate purpose is not to give to the process of the court power and
effect in different parts of the State, but the ultimate purpose is to
allow these gentlemen living in Fargo and Grand Forks the op-
portunity to sue any man they may catch in their counties whether
he lives there or not. The gentleman cites the case of a man from
41
642
DEBATES OF THE CONVENTION.
Medora going somewhere east and killing a horse. That is true,
and perhaps it is within the circle of possibilities that something
of that kind might in the course of a century happen. There is a
law against carrying firearms, and yet sometimes it is a great hard-
ship to a man that he does not have a revolver in his pocket. Are
we going to repeal a salutary law because it sometimes works a
hardship? That is the logic of the arguments of the gentleman
from Cass. It is the same thing only in another form.
I am
willing that these words shall be stricken out if the gentleman
will give us that provision which we ask for and which is just and
right, and should be granted to every citizen of this State; and in-
asmuch as this section cannot all be disposed of, I move that the.
further consideration of this section be deferred till to-morrow
morning, by which time a provision can be drafted. I know a
provision can be drafted that will give effect to the process of the
court in every part of the State and at the same time secure to
every citizen the right to be sued in the county in which he lives.
I ask that the members of this Convention be not stampeded by
the fallacious arguments of the gentleman from Cass. I hope
the members will stand by this.
Mr. PURCELL. We have had a statement of my colleague in
regard to the effect of this section, and he has in a measure se-
verely criticised the statements of the gentleman from Cass. But
it has been stated on this floor time and time again that criticism.
and ridicule are not argument. My colleague has not stated a
single instance where, if these words remain, the objections of the
gentleman from Cass would be overcome. We have had the word
of Judge CARLAND that he has considered this matter, and has
been unable to devise anything to meet the requirements of the
gentleman from Richland. We have had one side from Mr. MIL-
LER, and in a general way, the other side from the gentleman from
Richland. But this will work both ways, and as was said by the
gentleman from Cass, it will work a greater hardship on suitors,
if you leave it with these words in, than on debtors, if you strike
them out. Take the corporations in the East who come into this
State and do an insurance business. Take the Hartford Insurance
Company of Connecticut, who have thousands of policies on
buildings in this Territory. Our laws require that every one of
these corporations must name a party on whom process can be
served, and name a town in which their principal office and place
of business will be maintained. Is it right and proper when they
DEBATES OF THE CONVENTION.
643
have selected Mr. GRIGGS of Grand Forks, that a man who has sus-
tained a loss in Richland county, must go to Grand Forks to bring
suit? Take a hail or fire insurance company, and if the state-
ment of the gentleman from Richland is true, every man who has
sustained a loss under his policy is compelled to go to the place
of the residence of that corporation to bring his suit. Take it in
the case of a man charged in Montana, though living in Dakota,
with a crime. The officers come with a requisition for the man.
The judge of the district within whose district he resides is ab-
sent. The officer comes from Montana; the man can make a show-
ing which will entitle him not to be extradited, but he is unable
to go to another judge and there make a showing of his inno-
cence. The gentleman from Cass has not stated one-
tenth of the objections that can be urged against this section.
If it remains here there will not be a man here who will not feel
its bad effects. The first question you must ask when you have
a note in your hands to bring suit upon is-where does the man
live. If he lives in Richland county I must ask where his place of
residence is? If he says in Cass county I must commence action
in Cass county. The first inquiry is not whether he will pay the
obligation, but where is his place of residence. If I take proceed-
ings and serve process before ascertaining where he lives, all I do
is invalid if he can come in and show that he lives elsewhere. Is
it not fair that the creditors should have some rights on the floor
of this Convention? Should the people who sign their names to
obligations have everything in their favor? I say it is no hardship
upon you or me when we are sued, no matter where it is, to come
in and say after the process that we live in the county of Griggs
or Richland and desire to have a change of venue. It is a great
hardship to say to the creditor that the first thing they must do
before bringing suit is to find out where the debtor lives. There
is not a provision of this kind in any constitution in the United
States to-day. It is something new, and the gentleman from Rich-
land knows that the statements he has made are not founded on
fact. There is not a constitution that any one has brought forward
on this floor to show that such a paragraph appears anywhere else.
The Legislature can protect the people in their rights but it is
time somebody should stand here and say that the creditors are
entitled to their rights.
Mr. MOER. The gentleman from Richland (Mr. LAUDER) has
made four or five speeches on this question and has never stated a
644
DEBATES OF THE CONVENTION.
reason for the adoption of these five words, that any man on this
floor, and especially if he is a lawyer, could possibly listen to. I
move the previous question.
The motion of Mr. CARLAND to strike out the words was carried.
The section as amended was adopted.
THE PASS QUESTION.
Mr. STEVENS. Among other provisions adopted in section.
seventeen, article seventeen, is this pass business. I believe it was
passed not in a spirit of good intention, but simply to play horse.
I move a reconsideration of that question. I voted against it but
I do hope this article will not be passed in this way, for we will be
subject to the ridicule of the country at large for this section. It
goes too far. If you want to say members of the Legislature shall
not have passes, all right, but this section goes farther than that.
The motion was seconded.
The section reads as follows:
"No railroad or other transportation company shall grant free passes, or
tickets, or passes or tickets at a discount, to members of the Legislative As-
sembly, or to any state, county or municipal officer, and the acceptance of any
such pass or ticket by a member of the Legislative Assembly, or any such
officer, shall be a forfeiture of his office."
Mr. BARTLETT of Dickey. If people come in here to have
fun let them have it out. We were anxious to do business-that
question was put and voted upon, and I hope every member here
will stick to it and hold them to the position they took.
The motion to reconsider was carried.
Mr. STEVENS. I move that the section be stricken out. I
want to say that I don't believe there is a gentleman here who will
say that it will affect the Legislative Assembly or the laws that
may be passed, if the Mayor of Fargo gets a pass over the North-
ern Pacific road. I don't believe they will say if a municipal
officer should be fortunate enough to be friendly with a railroad
man and gets a pass for himself or family, it should forfeit his office.
I believe every man who votes to sustain this section, does so in a
spirit of spite, because of what has happened in relation to other
sections.
Mr. MOER. I have this to say: It has been asserted that the
system of issuing passes, and the way they do it, has been a source
of a good deal of corruption, and 1 certainly believe if that is
true, that we ought to vote to retain this section. I don't know
whether we, as members of this Constitutional Convention, should
DEBATES OF THE CONVENTION.
645
:
have been favored with passes any more than any other citizens.
If they were given to us they were given to us for some object.
A pass is issued to a member of the Legislature for some object.
Take the temptation away from the members of the Legislature.
Mr. WALLACE. I have the honor of being the only member
of this Convention who was foolish enough to send back his pass.
Before I came here I received a pass from the Northern Pacific
Railroad Company and some other parties. I consulted with some
of my constituents about the matter, and they thought that it
would be a bad thing to take the passes. What have I found? I
find that every member has taken passes. I think it is tomfoolery
to throw away a pass. I don't think any member of the Legis-
lature should refuse to take a favor of that kind. My experience.
is that it does not make any difference. I vote aye.
Mr. PARSONS of Morton. I also sent back my pass that was
sent me by the Northern Pacific Railroad Company. It was a
"B" pass-good only in Dakota.
As I have an "A" pass, good
from St. Paul to Portland, I had no use for the "B" pass.
The section was stricken out by a vote of 43 to 21.
Mr. ALLIN. I move to adjourn.
The motion prevailed, and the Convention adjourned.
FORTY-FIFTH DAY.
BISMARCK, Saturday, August 17, 1889.
The Convention met pursuant to adjournment, the PRESIDENT
in the Chair.
Prayer was offered by the Rev. Mr. KLINE.
Mr. MOER. I desire to call up sectien 180, which was laid on
the table.
Mr. JOHNSON. I rise to a point of order-that the regular
business would be interfered with, and this cannot be done with-
out a suspension of the rules.
Point of order declared well taken.
646
DEBATES OF THE CONVENTION.
Mr. HARRIS. The report of the Committee on Accounts and
Expenses has never been acted upon. This is a supplementary
report and I move that it be adopted.
Mr. PURCELL. I desire to have added to the report the sum
of $5 which I paid for type writing during the session.
Mr. BARTLETT of Griggs. If I recollect correctly, that report
recommended the publication of 1,000 copies of the debates. If
we adopt the report we shall adopt what we have just voted down
in regard to the debates.
Mr. MEACHAM. The committee made only the recommenda-
tion.
Mr. WALLACE. I would like to ask if there is any reference
to the publication of the debates of this body?
The motion of Mr. HARRIS was adopted.
THE INDIGNATION TELEGRAMS.
The majority and minority reports of the Committee on Peti-
tions received in regard to the location of the public institutions
were introduced.
Mr. MOER. I move that the reading of the reports of the com-
mittee be dispensed with.
Mr. JOHNSON. I hope this motion will not prevail. Hun-
dreds and thousands of our fellow citizens have sent earnest peti-
tions to us. They are entitled to respectful treatment. Their
treatment even if this report is allowed to be read, will have been
shabby. We sent the petitions to a committee, which was evi-
dently intended to be a graveyard to bury them in. At this late
hour the committee has reported and a majority has signed it.
Surely a decent respect for the wishes of our fellow citizens would
require that this report be read.
Mr. MOER. The subject matter has been acted upon, but if
there is no objection I will withdraw my motion.
Mr. STEVENS renewed the motion. He said: I understand
reading these reports prevents their being printed. I say let them
be printed and have the widest circulation.
Mr. HARRIS. These petitions and telegrams have been printed
in our Journal, and have had the widest circulation. I think it is
unnecessary to take the time of this Convention to go over these
reports.
Mr. PURCELL. As I understand it, it is a report of a com-
mittee. I think in all fairness we should listen to their report.
DEBATES OF THE CONVENTION.
647
Mr. WILLIAMS. We have given these petitions the most
respectful consideration. Everything has been published in the
Journal, and these reports will be published in the Journal, and I
see no necessity of taking the time of the Convention in reading
them.
Mr. MILLER. There is no need to read these lengthy reports.
They will be published anyhow.
Mr. MOER. The petitions that these reports deal with have
been all disposed of, and the reading of these reports will consume
much valuable time.
The motion to dispense with the reading was lost and the report
was read, signed by the majority of the committee.
Mr. JOHNSON. I move that the report be adopted.
Mr. WILLIAMS. I would like to ask the gentleman if he
wishes to suppress the other report? He said he wanted both of
them read a few moments ago.
The other report was read, and then Mr. JOHNSON said: I
move the adoption of the majority report.
Mr. WILLIAMS. The minority on this proposition have re-
frained from answering the majority for the reason that they have
such confidence in the justice and propriety of this measure that
they believe sober judgment will approve it, and in order that busi-
ness may proceed, I move that both reports be laid upon the table.
Mr. BARTLETT of Griggs. I demand that that motion be
divided. The question of tabling two separate reports is capable
of division. If they want their report to go on the table they
can have it.
I
Mr. STEVENS. I move that the motion of the gentleman from
Nelson be laid on the table-to adopt the majority report.
think they might have had the decency to speak to me about it.
Mr. MILLER. I never heard of this majority report as they
now call it. The committee was never together but once. I never
saw the report till I saw it on the clerk's desk this morning.
The motion to table the majority report was adopted.
Mr. SPALDING. It seems to me that we are not through
with the majority report, or so called majority report, yet, and I
rise to the point of order that there is no majority report here.
From the remarks that have been made here the report was not
agreed upon in the meeting of the committee, and they cannot get
up a report unless it is done in a committee meeting. The chair-
man or any other man cannot take around a report and have it
648
DEBATES OF THE CONVENTION.
signed by Tom, Dick and Harry, and then call it a report of the
committee, and as it appears from the remarks of the gentlemen
of the committee, that is the way this report was gotten up, and I
therefore think it should be returned to the gentlemen who
filed it.
Mr. MILLER. I move the adoption of the report that the
Clerk has seen fit to call the minority report.
The motion was carried by 41 to 28.
GROSS EARNINGS.
Mr. MOER. I move to call up section 108, article eleven.
Mr. COLTON. The gentleman has gone to work and made a
motion to reconsider one section out of the whole article that has
been referred to the Committee on Engrossing and Enrolling by
a majority of 40 to 31. If we are going to fight over these things
again and again after they have gone into the hands of the en-
grossing clerks, we can stay here a week longer and then be no
nearer the end than we are now. We have fought every section
in this Constitution twice-once in the Committee of the Whole,
once on the third reading and now again. Is there no fairness in
this Convention—that when a question has been fought out and
decided they will not leave it? I hope the gentlemen will be fair
and allow what has been sent to the enrolling and engrossing
clerks to stay there. Therefore I move that the motion be laid
upon the table.
A PRESENTATION.
A call of the House was then demanded, and during this, while
delinquent members were being brought forward, Mr. STEVENS
said:
Mr. PRESIDENT: It is to me a pleasant duty that I am new to
perform. In behalf of Messrs. Leach, Chaffee, Gray, Turner,
Richardson, McKenzie, Wallace, Bartlett of Dickey and Wallace,
whose gray hairs and years of experience have lent dignity to this
Convention; in behalf of brothers Carothers, Sandager, and Brown
and Linwell and Glick, whose youth has lent fire to this Conven-
tion; in behalf of Messrs. Miller, Williams, Lauder, Purcell, Moer,
Bartlett of Griggs, Johnson, Rolfe, Flemington, McHugh, Fay,
Carland, Camp, Spalding, O'Brien, Noble, and Parsons of Mor-
ton, whose voices have been heard more times than those of all other
members; in behalf of Messrs. Griggs, Marrinan and Budge, who
have sat silent, but who have been industrious members; and in
DEBATES OF THE CONVENTION.
649
behalf of each and every one, of not only members, but clerks and
the faithful pages who have responded to the call when asked to
perform their duty; in behalf of the eighty-one who have partici-
pated in this Convention, we present you with this token of our
esteem and regard. [Here Mr. STEVENS presented the PRESIDENT
with a large magnificently framed photographic group of the Con-
vention, amid loud applause. ]
President FANCHER responded as follows:
GENTLEMEN OF THE CONVENTION:-Like the pilgrim of the olden
times, who having journeyed in many countries, gathering wisdom
and knowledge by the way, ascends at last the summit of the east
hill, and bending on his staff surveys afar the highest place of all
-so have we, after a long, interesting and varied experience,
reached the end of our labors and behold, gleaming into light,
that Jerusalem of our souls-a completed Constitution. Gentle-
men of the Convention, believing as I do, that this Constitution,
which you have formed is the peer of any Constitution in the
land; believing as I do, that the people of North Dakota will
ratify it by a magnificent vote, [Applause.] I congratulate you
on the completion of your labors. For this elegant token of your
esteem, and for the uniform kindness, courtesy and patience, which
all of you and each of you have extended to me as your presiding
officer, there are no words in our language strong enough to ex-
press my thanks. The remembrance of your kindness, and the
work of this Convention must ever be to me a green spot in
memory's waste. And when we part to go out again to our various
occupations, it is peculiarly gratifying to me to feel that should I
ever meet you again there is not a man on the floor of the Conven-
tion to whom I cannot stretch out the good right hand of fellow-
ship and sit down and talk to as a brother. Gentleman of the
Convention, I am not able to make a speech, and I will close with
just one word to one and all—God speed you, and good bye. [Ap-
plause.]
GROSS EARNINGS.
The Convention then proceeded to discuss again section 180.
Mr. COLTON. I would say this: I know that our work is not
done, but if there is going to be fooling here, and trying to undo
what we have done, I believe it is going to be best for us to close
as quickly as possible.
Mr. BLEWETT. I move to add to section 180 the following:
650
DEBATES OF THE CONVENTION.
"Provided, That the property of all railroad corporations may be taxed in
such a manner as the Legislative Assembly may deem for the best interests of
the State."
Mr. WALLACE. I move to amend by inserting the words:
"But no railroad property shall be assessed at more than one-half what
the property of individuals is assessed."
Mr. MILLER. It can't be that the gentleman from Steele
means to insert such an amendment as this.
Mr. CAMP. During the last few months I have read all the
constitutions of the United States on the gross earnings tax, and
on the taxation of railroads in general, and I have come to the
conclusion that a man cannot understand the subject without five
years' study at least. But as a venture I propose this as an ad-
dition to section 180:
"But the Legislative Assembly may by law provide for the payment of a
per centum of gross earnings of railroad companies, to be paid in lieu of all
State, county, township and school taxes on property exclusively used in and
about the prosecution of the business of such companies, but no real estate of
such corporations shall be exempted from taxation in the same manner and on
the same basis as other real estate is taxed, except roadbed, right of way, shops
and buildings, used exclusively in their business as common carriers, and
whenever and so long as such law providing for the payment of a per centum
on earnings shall be in force, that part of section 182 of this article relating to
the assessment of railroad property shall cease to be in force."
Seconded by Mr. LAUDER.
Mr. BARTLETT of Dickey. I cannot vote on that intelli-
gently. There are men who understand this who should get up
and give us some information on it, so that we can vote intelli-
gently.
Mr. WALLACE. I should like to see some reason advanced
why we should take this course. It is a mystery to me why we
should say one man's property should be taxed one way and make
such an effort to tax another man's in another way. There may
be some very good reason why my neighbor should be taxed one
way and I should be taxed another. All these propositions to tax
one class of property in a different way must have some founda-
tion or they would not be worthy of attention. I know that is
what the railroads want, and I know they want that because they
will pay less taxes that way than they should pay. If they would
not pay less than a uniform system of taxation why should they
ask for it? This is an old subject, but at the same time I cannot
see how any man that has his senses can for a moment entertain
DEBATES OF THE CONVENTION.
651
any such proposition. I don't see why one man's property should
be subjected to one system of taxation and another man's to an-
other. Now, I feel strongly inclined to stand here and talk against
time on this subject to try to show this Convention why there
should be a uniform system of taxation. I don't know but I had
better do it. Perhaps some of them will get tired by the time it
is time to get up in the morning. If any gentleman can show me
any reason for taxing one species of property in a different way
from what you tax another, I am ready to join hands, but till I can
be convinced that there is a good reason I shall oppose it. It does
not make any difference whether you get $10 that
way less than in another way-that is not the question at all. I
must say that it is a very strange thing indeed that the railroads
are coming here and petitioning us by their advocates on this floor
to give them this system of taxation. I am surprised that men
should come here to represent the agricultural interests of this State
and they should be in favor of a system which says the farmer.
shall be assessed for all he has got and when you come to another
interest we will adopt another system of taxation. It says when
you come to one class of property we will tax it for less than it is
worth and turn the burden on our constituents. Mr. PRESIDENT,
I speak in solemn earnestness when I say I am surprised that any
gentleman who comes here should hesitate for a moment when he
is asked whether or not his constituents should be taxed on their
property at its value, and the railroads should be taxed in a differ-
ent way. If there had ever been any reason for adopting such a
system I should look with some favor upon it. But no gentleman
here has been able to advance a reason why the farming commu-
nity should be taxed differently from the railroads. This is an
attempt to reduce the taxes of one class of property or to increase
it. If it is an attempt to reduce it without reducing also the taxes
of other classes of property, I don't see any reason why it should
be done. I don't favor it. There are reasons against it and I
shall oppose it. There has been an idea abroad in regard to tax-
ation of property something like this—that in case of landed pro-
perty that has a mortgage upon it, which is the situation with most
farmers, that the mortgage-
Mr. BEAN. The gentleman is not talking on the question.
Mr. WALLACE. There is an idea which has been brought very
forcibly to me of late, which is something like this-in case a
piece of land is mortgaged, the incumbrance shall be treated as an
652
DEBATES OF THE CONVENTION.
interest in the land. That is the gross earnings idea in a sort of
way, and if the railroad is to be taxed in the same sort of way I
don't see why we should not adopt that system. It says that if a
man borrows $500 on his land that mortgage shall be taxed $500.
But this proposed plan of taxing railroads is in my judgment a
very unjust one.
Mr. PETERSON. The gentleman from Cass and the gentle-
man from Richland are smoking.
Mr. STEVENS. I think every member is entitled to a respect-
ful hearing, and the gentleman should be given that privilege.
Mr. LEACH. I move that the gentleman have six hours to
make a speech beginning at twelve o'clock to-night.
Mr. BARTLETT of Griggs. I move that we adjourn.
Mr. WALLACE. In Minnesota an extended experience has
been had on this subject, and in other localities the subject of tax-
'ing one man in one way and another another, has been under con-
sideration. When we adopted section 180 we supposed we had
adopted it for good, and that was the end of it. We did not expect
that there would be a railroad lobby here to defeat it. The reso-
lution introduced by the gentleman from Stutsman provides that
I should be taxed on every dollar I have in sight, but another man
should be taxed in an entirely different way, and he should be
favored by a system of taxation that does not require him to pay
in accordance with the property he has got.
I
Mr. PURCELL. It seems to me that a man cannot keep us
waiting here like this, and tying the hands of the Convention.
move that the gentleman keep to the question.
Mr. WALLACE. This gross earnings system, which has
caused so much trouble in this body, and which was the source of
so much bitter contest in the meetings of the Committee on Rev-
enue and Taxation, has been turned over and considered from al-
most every point of view. I fail to see any reason why, after this
Convention has deliberately taken the action it has in the adopt-
tion of File No. 180, it should now turn around and cast it off. I
fail to see why any system should be adopted which would not sub-
ject the property of every class of citizens, and of all bodies to
the operation of the same system. I fail to see why or where
there is any sense or any reason or any justice in the claim that
the property of three-quarters of the people in this State should
be subjected to tax according to one system, which must inevit-
ably bring every particle of their property under the taxing
DEBATES OF THE CONVENTION.
653
power, while we turn around and say to another class of property
holders that we will allow you to go with a tax that will amount to
a great deal less. I move that we adjourn till 8 o'clock this even-
ing.
The motion was lost.
Mr. WILLIAMS offered the following amendment to the sec-
tion:
"The property of all corporations conducted for pecuniary profit may be
taxed as other property, or upon its earnings. And the power to tax individ-
uals or corporations or their property, shall not be surrendered or suspended
by any contract or grant to which the State may be a party."
Mr. CAMP. I desire to submit an addition to the substitute
which I offered. I intended to word that substitute so as to shut
out a gross earnings tax on vacant lands twenty or thirty miles
from the railroad. But I am afraid there will still be some ques-
tion if land vacant and unoccupied will be taxable. So I desire
to add to the substitute the following.
"But no real estate situated more than 200 feet from the center of the
main line of the railroad company shall be exempted from taxation by the pay-
ment of a percentage on the road's earnings."
I don't propose to support the amendment of the gentleman
from Burleigh for the reason that I believe the present taxation
law of this Territory is wrong in principle. That law provides for
the exemption of the lands of the railroads-unoccupied and wild
lands situated ten, twenty, thirty, forty, fifty miles from the main
line. Those lands which have no relation to the gross earnings
of the road ought not to be exempted by virtue of the payment of
the gross earnings of the road, and I say it is wrong. Chief Jus-
tice Tripp said in the case of Ferris vs. Vannier: "Great powers
were given Legislatures under the earlier Constitutions of the
States, and in some those powers are still retained. In many of
the States all property is subject to taxation except such as is ex-
empted in the Constitution itself. Laws which are uniform may
unjustly discriminate, and the converse is equally true, that laws
which do not unjustly discriminate may not be uniform." The
Chief Justice went out of his way to make some remarks concern-
ing the newer and the older Constitutions, and what had been
done to restrict legislation in the matter of taxation. I believe,
myself, in the system of taxing railroad property used for railroad
purposes on its gross earnings. The matter of taxing railroads is
654
DEBATES OF THE CONVENTION.
a very complicated question. It is very easy to tax it as other
property is taxed, but it is an entirely different kind of property,
and it is difficult to tax it right. I don't know a more equitable
system than the gross earnings system. But I do say whatever
section we introduce here should, in justice to ourselves and in
justice to this State, provide that no property shall be taxed by
gross earnings except the property that is used directly in pro-
ducing those earnings, and not the vacant lands. The proposition
of the gentleman from Burleigh contains that vice. It provides
that all property of the railroad is to be taxed on the gross earn-
ings of the road.
Mr. FLEMINGTON. I second the motion of the gentleman
from Stutsman and move the previous question.
The substitute of Mr. CAMP was adopted.
Mr. PARSONS of Morton. I hope a motion to reconsider will
prevail, for the measure as it now stands will forever kill any
measure for gross earnings. The provisions are for 200 feet from
the center of the right of way, and while I am willing to grant
that, yet at the terminal points there should be a greater width
for machine shops. I don't believe it is the intention of the gen-
tleman from Stutsman to exclude them.
Mr. SPALDING. I offer the following amendment to the
amendment just adopted, by substituting for that portion relating
to taxation of real estate the following:
"But no real estate of such corporations shall be exempted from taxation
in the same manner and on the same basis as other real estate is taxed, except
roadbeå, right-of-way, shops and buildings used exclusively in their business as
common carriers."
Mr. TURNER. I think the railroads will be exceedingly grati-
fied if the amendment of the gentleman from Cass prevails. I think
in a very short time they might obtain possession of all the city
property in North Dakota and then they would have a monopoly
of the houses in this new State:
Mr. STEVENS. I think if they would strike out the provision
offered by the gentleman from Stutsman and add the words "used
in the operation of its corporate rights," it would be everything
we want.
We want to provide that the property they use in the
operation of their franchise shall be exempt, whatever they may
be, which is necessary and useful in the operation of their fran-
chise. I think if all the other amendments were stricken out that
would cover all we want.
D
DEBATES OF THE CONVENTION.
655
Mr. PURCELL. In many instances their shops are situated
more than two hundred feet from the main line.
Mr. COLTON. I think the amendment should be in. They are
now taxed high, and taxes are burdensome for them to bear.
Mr. ROLFE. I was opposed to the gross earnings sy stem, but
the Convention has made it possible for the Legislature to pass a
gross earnings law. This amendment, as I understand it, is for
the purpose of making it possible to exempt from the gross earn-
ings part of any law the lands now held by the companies. If we
are to have a gross earnings system my opinion is that provision
should be made by which these lands can be taxed.
While a vote was being taken on Mr. SPALDING'S amendment,
Messrs. STEVENS and WILLIAMS explained their votes.
Mr. STEVENS. This section does not provide for a gross
earnings system. It provides that the question shall be left open.
I am not in favor of tying ourselves down to a system which may
eventually prove wrong and without effect, and that we might de-
sire to change. As the land outside of that used in the operation
of the franchise is to be taxed under this amendment, and as it is
fair and just to each and every railroad in the Territory, I vote
aye.
Mr. WILLIAMS. I vote for this measure purely as a compro-
mise measure. The proposition before us is not as to whether we
are to tax the railroads on their gross earnings or not, but it is as
to whether this question shall be left to the Legislature, and as
this section leaves the question to the Legislature, I am in favor
of it.
The amendment of Mr. SPALDING was adopted by the follow-
ing vote:
The roll being called, there were ayes 43, nays 23, viz.:
Those who voted in the affirmative were:
Messrs. Bartlett of Dickey, Bean, Bennett, Blewett, Brown, Budge,
Camp, Carland, Chaffee, Clapp, Clark, Fay, Flemington, Gayton,
Glick, Gray, Griggs, Harris, Holmes, Hoyt, Leach, Lohnes, Lowell,
Mathews, Meacham, McHugh, McKenzie, Moer, Parsons of Morton,
Parsons of Rolette, Powles, Pollock, Ray, Rolfe, Rowe, Sandager,
Selby, Shuman, Spalding, Stevens, Wellwood, Whipple, Williams.
Those who voted in the negative were:
Messrs. Allin, Appleton. Bartlett of Griggs, Best, Carothers,
Colton, Douglas, Haugen, Johnson, Lauder, Linwell, Marriman,
656
DEBATES OF THE CONVENTION.
Noble, Nomland, O'Brien, Peterson, Powers, Richardson, Robert-
son, Slotten, Turner, Wallace, Mr. President.
Those being paired were:
Messrs. Almer, Bell, Elliott, McBride, Miller, Purcell and Scott.
Messrs. Hegge, Paulson, absent and not voting.
Messrs. Stevens and Williams explaining their vote.
Mr. HARRIS. I move to adopt section 180 as amended
The motion was seconded.
Mr. TURNER. I move that the section be amended by adding
thereto the following:
"The Legislature may exempt all buildings and personal property used
exclusively in the direct operation and use of farmers in cultivating their
lands."
The amendment was lost. Section 180 was adopted as amended.
EVENING SESSION.
Mr. BLEWETT. I move that the speeches be limited to three
minutes.
The motion was seconded and adopted.
Mr. MILLER. Some days ago this Convention passed a reso-
lution refusing to publish the debates of this Convention. I was
one of those voting not to have these debates published. Since
that time I have investigated the matter to some extent and find
that these debates and proceedings would make a small volume,
and I have conversed with several gentlemen and they seem to be
very desirous that they should be published, and they think that
it would give our Convention a rather cheap appearance if we
don't have the debates published. I move to re-consider the vote
by which we resolved not to publish the debates of this Conven-
tion.
The motion was seconded.
Mr. BARTLETT of Dickey. I feel about as the Irishman did,
when they brought the hash on the table. He looked at it and
said: "Be jabers, let the men eat it that chawed it." I feel that
if they want the debates published, let them do it for my part.
The motion to reconsider was adopted by a vote of 28 to 10.
Mr. MILLER. I move that a thousand copies of the debates
of this Convention be printed by the public printer.
This motion was seconded and adopted by a vote of 31 to 16.
Mr. PURCELL (addressing the Chief Clerk.) On behalf of
DEBATES OF THE CONVENTION.
657
the members of this Convention, and particularly those assist-
tants who have been with you in the performance of your work, I
am requested to say that in consideration of your efficient ser-
vices, and the kind and considerate manner in which you have
treated your associates and the members of this Convnation, I
desire to present to you a beautiful picture as a token of the es-
teem of your fellow officers and the members of this Convention.
Major HAMILTON. Mr. PRESIDENT, AND GENTLEMEN OF THIS
CONVENTION: It is a trite saying that it is the unexpected that
happens. I don't think I was ever more surprised in my life than
I am at the present time, and to say that I most thoroughly and
heartily appreciate this beautiful present, but little expresses my
feelings at the present time. I thank my associates in the work of
keeping up the business of this Convention, and the members of
this Convention for the uniform courtesy I have received from
them. My duties have been difficult, but I have endeavored to
discharge them faithfully, so that no man could go from this Con-
vention and say that he had not been honestly recorded as he
voted. I thank you gentlemen, sincerely.
Some formal motions were passed, and the Convention ad-
journed sine die.
42
JOURNAL
OF THE
PROCEEDINGS OF THE JOINT COMMISSION.
The Joint Commission, consisting of the following members of
the North Dakota Constitutional Convention, to-wit: E. W.
Camp, of Stutsman County, chairman; Alexander Griggs of Grand
Forks, John W. Scott of Barnes, B. F. Spalding of Cass, W. E.
Purcell of Richland, Andrew Sandager of Ransom, and Harvey
Harris of Burleigh; and of the following members of the South
Dakota Constitutional Convention, to-wit: A. G. Kellam of Brule
County, chairman; V. T. McGillycuddy of Pennington, Henry
Neill of Grant, E. W. Caldwell of Minnehaha, William Elliott of
Turner, Charles H. Price of Hyde, and S. F. Brott of Brown, met
in the Executive office in the Capitol building at Bismarck, at 4
o'clock, p. m., Tuesday, July 16th, 1889, all the members of said
Joint Commission being present.
Mr. KELLAM. Gentlemen, we appear to be all here of each
Commission, and at the suggestion of Mr. CAMP, the chairman of
the North Dakota Commission, I will call the Joint Commission
to order, and suggest that if any organization is necessary, differ-
ent from what we have, that it is now in our hands.
Mr. CAMP. Mr. CHAIRMAN: I move that Major KELLAM act
as Chairman of the Joint Commission for the day, or until other-
wise ordered; and I will supplement that with a further motion,
after the temporary organization of the Commission is effected.
Mr. GRIGGS. I will second the motion.
Mr. CAMP. Gentlemen, you have heard the motion that Major
KELLAM act as temporary chairman of the Commission. All those
in favor of that motion say aye; opposed no. The ayes have it
!
660
JOURNAL OF THE JOINT COMMISSION.
and the motion prevails. Major KELLAM is elected the temporary
chairman of this Commission.
The Temporary CHAIRMAN. Gentleman, I suppose we are
now in condition for further organization.
Mr. CALDWELL. Mr. CHAIRMAN: I would move you that
the clerk or secretary of the respective Commissions be detailed
to keep jointly the records of the proceedings.
Mr. PRICE. That is chief secretary of each Commission?
Mr. CALDWELL. Yes, if that will be satisfactory to the gen-
tlemen of the Commission.
Mr. ELLIOTT. Mr. CHAIRMAN: I second the motion.
Mr. GRIGGS. I don't understand.
Mr. CALDWELL. At the time the Commission was appointed
in South Dokata there was a clerk appointed, and I was suggest-
ing that I suppose your Commission also has a clerk-that those
two gentlemen keep the records.
Mr. GRIGGS. Well, they will be pretty busy. Wouldn't it
be better to make a secretary right out of our own body here.
Mr. CAMP. I notice that you gentlemen from South Dakota
have a stenographer. We probably will have one also; and we
thought perhaps the secretary would be one of our own number
on each side.
Mr. CALDWELL. Then if you gentlemen have made any
understanding—
Mr. CAMP. Mr. SANDAGER was our selection. One on each
side has been our idea.
Mr. GRIGGS.
I will make that as a motion.
The Temporary CHAIRMAN. Gentlemen, it has been moved
that Mr. SANDAGER be elected one of the Secretaries of this Joint
Commission. As many as would favor this motion will please say
aye; those of the contrary opinion, say no. The motion prevails,
and Mr. SANDAGER is declared elected as one of the Secretaries
of the Commission.
Mr. CAMP. Mr. CHAIRMAN: As the second Secretary, or as the
other Secretary of this Commission, I would nominate Dr. Mc-
GILLYCUDDY, of the South Dakota Commission.
Mr. BROTT. I second the motion.
Mr. MCGILLYCUDDY. Before that goes to a vote, Mr.
CHAIRMAN, I will suggest that I am not a very rapid writer, and
you had better have a better writer.
The Temporary CHAIRMAN. Gentlemen, it has been moved
JOURNAL OF THE JOINT COMMISSION.
661
and seconded that Dr. McGILLICUDDY be elected one of the Secre-
Those who would favor the mo-
The motion prevails, and Dr.
taries of the Joint Commission.
tion say aye; those opposed, no.
MCGILLYCUDDY is declared elected one of the Secretaries of the
Joint Commission.
Mr. SCOTT. Mr. CHAIRMAN: Agreeable to an understanding, as
I understand it, I would move that the Chairmanship of the Joint
Commission alternate from day to day between the Commission
from North and from South Dakota. That is, between Mr. KEL-
LAM, Chairman of the South Dakota Commission, and Mr. CAMP,
Chairman of the North Dakota Commission.
Mr. PRICE. Mr. CHAIRMAN: I second the motion.
The Temporary CHAIRMAN. Gentlemen, it has been moved
that the Chairmanship of the Joint Commission alternate from
day to day between the respective Chairmen of the North and
South Dakota Commission. As many as are of the opinion that
this motion prevail will say aye; as many as are opposed say no.
The ayes have it. The motion prevails.
Mr. CALDWELL. Mr. CHAIRMAN: For the purpose of, as
early as possible, arriving at an understanding regarding the
method of procedure, I suppose it will be taken for granted that
votes by the Joint Commission will be recorded as of each side
separately. That is, that it will be necessary for there to be a
majority of the respective portions of the Joint Commission-
Mr. GRIGGS. That is, that there must be two majorities?
Mr. CALDWELL. Yes, that there be two majorities. And I
will move you, Mr. CHAIRMAN, that upon all votes by the Joint
Commission, in order for any proposition to carry, that it will be
necessary that it secure a majority in both constituents of the
Commission--both a majority of North Dakota and a majority of
South Dakota.
A DELEGATE. I second the motion.
Mr. SPALDING. It might be well to amend that so as to cover
any disagreement.
Mr. PURCELL. Would it not be well, on all questions, to
have a vote so as to show that it received the sanction of the Com-
mission, recorded to show that a majority was had.
Mr. CALDWELL. The call then would be, the North Dakota
constituency and the South Dakota constituency, and the record
would be-then each wonld confer-each side would confer among
themselves and announce the vote of each side to its Chairman.
662
JOURNAL OF THE JOINT COMMISSION.
Mr. GRIGGS.
Wouldn't it be announced by roll call?
Mr. PURCELL. I would suggest that upon all questions
passed upon by the Joint Commission, that the vote be taken by
yeas and nays upon the record, and then the record will show
whether or not each Commission has voted a majority in favor or
a majority against.
Mr. CALDWELL. Yes, and then let the declaration be made.
that the memders from North Dakota, or a majority of the mem-
bers from North Dakota, and a majority of the members from
South Dakota, having voted in the affirmative that the motion is
carried.
The Temporary CHAIRMAN. Wouldn't it be well to put that
in writing?
Mr. SANDAGER. Yes, we would like that in writing, if you
please.
Mr. CALDWELL reduced his motion to writing, and read it as
follows:
Resolved, That upon the taking of a vote by the Joint Commission, the
roll of the Commission shall be called by the clerks thereof; and if a majority
of the members from North Dakota and a majority of the members from
South Dakota, respectively, shall record themselves in the affirmative, the
proposition thus voted upon shall be declared carried; otherwise, not.
The Temporary CHAIRMAN. Gentlemen, you have heard the
motion, the adoption of which Mr. CALDWELL moves.
Are you
ready for the question? As many of you as are of the opinion
that the motion prevail will say aye; those opposed say no.
The ayes have it, and the motion is carried.
Mr. PRICE. Mr. CHAIRMAN: I presume there is no division
of opinion as to who shall be present at the meetings of the Joint
Commission; but that there may no misunderstanding about the
matter, I move you that no one shall be present at the meetings
of the Joint Commission except the members from North and
South Dakota, the clerks and stenographers, and such other per-
sons as may be invited by a majority of both Commissions.
Mr. GRIGGS. I second that motion.
The Temporary CHAIRMAN. Gentlemen, you have heard the
motion. Are you ready for the question?
Mr. SCOTT. Mr. CHAIRMAN: I am not so sure that motion
should prevail. It may be necessary in our deliberations to call
in some person as a witness in order to get information of facts
or figures. Now, under this rule we could not do it unless a ma-
jority of both Commissions should concur.
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JOURNAL OF THE JOINT COMMISSION.
1
663
Mr. PRICE.
Mr. CHAIRMAN: I do not desire of course to
make it so broad as that. If anything of that kind should be
necessary
Mr. SPALDING. Mr. CHAIRMAN: As far as I am concerned
I do not claim to know all there is that should be taken into con-
sideration in the proceedings of this Commission, and a good
ways from it-very far from it; and I don't see how we are going
to learn it without we do take testimony on the subject or procure
evidence in some way, and you might desire evidence that we
would not care anything about, and on that account you gentle-
men might wish to get the testimony of witnesses that we care
nothing about; and it seems to me hardly as though that rule
would work well in such cases.
Mr. PRICE. Mr. CHAIRMAN: The object of this motion was
not to cut off anybody's being here before this Commission whose
presence was desirable or necessary, but it is based upon the fact
that men perhaps can get along with work a great deal more rap-
idly and expeditiously if there are not too many people engaged
in it. I don't want the gentleman to understand that this may
exclude anybody who may be summoned by this Commission, or
either branch of it-any person who can throw any light upon
the subjects of inquiry; but merely so as not to throw the meet-
ing open to promiscuous visitors.
Mr. HARRIS. Mr. CHAIRMAN: I would move to amend the
motion, by "including such witnesses as either side may deem
necessary to call before this Commission."
Mr. PRICE. J will accept that amendment.
Mr. CALDWELL. Mr. CHAIRMAN: With the understanding,
of course, that after the information which it is desired to procure
from the witness, that the witness would of course withdraw.
Mr. HARRIS. Certainly.
Mr. SCOTT. Mr. CHAIRMAN: It seems to me if we adopt this
rule it will look something like a Star Chamber proceeding. This
is a proceeding of great public importance, and the people of both
North and South Dakota are looking with some interest to the
action of this Commission. I believe that everything which is
brought up for the consideration of this Commission should be
public. I believe that the people of North Dakota, if they desire
to attend the sessions of the Commission, or anybody from South
Dakota that desire to attend, should have the privilege of attend-
ing; and I for one am not in favor of holding our meetings in that
1
}
/
664
JOURNAL OF THE JOINT COMMISSION.
I
{
1
way. I believe the public should have a right to attend if they
desire so to do.
Mr. CAMP. Mr. CHAIRMAN: It seems to me that the motion
will look a little bit wrong on the record, to absolutely exclude
such persons except those whom both Commissions desire to have
present. This is a public body, directly under an act of Congress;
and it seems to me that it is in the nature of a court of inquiry
and decision, and that its proceedings should be public. Of
course, if in the course of the proceedings a great number of
people-an inconvenient multitude-should crowd in upon us, we
would still reserve the right at any time to close the doors, but it
seems to me, until such an emergency arises, that it would hardly
be advisable to put such a resolution upon our records.
Mr. MCGILLYCUDDY. Mr. CHAIRMAN: I imagine from Mr.
PRICE'S motion that it is his intention to prevent persons outside
of the Commission from taking part or making suggestions or ar-
guments before the Commission, as there may be a desire on the
part of persons in North Dakota and in South Dakota, to take
part, who are not members of the Commission. If that could be
so arranged as to prevent persons attending the meetings from
taking any part in the proceedings-or in other words, acting as
attorney for either side, it would be desirable.
Mr. CAMP. Well, if the motion were limited to that purpose,
why what I have said would not apply; but the motion as now.
made seems to be directed to the presence of any person in the
room where we meet. Of course, no person would be allowed to
come in here and make an argument or a statement except as a
witness. No witness could come in here and make an argument
before the Commission without the joint wish and vote of both
constituent parts of this Commission. We have already, by an
amendment which has been accepted, allowed either part of the
Commission to introduce such evidence as it desires to, and I
don't think either part would wish to employ an attorney or ad-
vocates to make any argument before the Commission without the
concurrence of the other constituent part.
The Temporary CHAIRMAN. Gentlemen, the question is
upon the motion of Mr. PRICE. You have heard the motion.
Are you ready for the question? If so, as many as are of the
opinion that the motion prevail will say aye;
Mr. CALDWELL. This should be upon a call of the roll.
1
JOURNAL OF THE JOINT COMMISSION.
665
Mr. SANDAGER. Mr. CHAIRMAN: I would suggest that the
motion be reduced to writing, before it is put.
The motion was reduced to writing by Mr. PRICE, and read as
follows:
Resolved, That no person shall attend the meetings of the Joint Commis-
sion, except the members thereof, the clerk and stenographer, and such other
persons as may be invited by a majority of either branch of the Commission.
Mr. PRICE. And I want to state again, my only object in in-
troducing this resolution is this: this is merely a matter of busi-
ness to us, and I think if we are left alone to do it, we can do this
work expeditiously and avoid delay-that is the only object I have
in the world.
The Temporary CHAIRMAN. Gentlemen, the question is upon
the adoption of the resolution offered by Mr. PRICE. Are you
ready for the question? The Clerk will call the roll.
Upon a call of the roll the members voted as follows:
Messrs. Camp, Harris, Purcell, Sandager, Scott and Spalding,
voted nay.
Messrs. Griggs, Kellam, McGillycuddy, Caldwell,
Brott, Elliott, Price and Neill, voted yea.
The secretary announced that North Dakota voted six nays and
one yea; that South Dakota voted seven yeas.
The Temporary CHAIRMAN.
just adopted, the motion is lost.
Gentleman, under the rules
Mr. CAMP. Mr. CHAIRMAN: I offer the following resolution:
Resolved, That no person, save members of the Commission, shall be per-
mitted to make any statement, save as witness before this Commission, except
by the request of a majority of both the committee from North Dakota and
the committee from South Dakota.
Mr. CALDWELL. I second the motion.
The Temporary CHAIRMAN. Gentlemen, the question is
upon the adoption of the resolution just read.
Mr. SPALDING. Mr. CHAIRMAN: I move to amend, so that it
will read: "When objection is made by a majority of either Com-
mission."
The Temporary CHAIRMAN. Gentlemen, is there a second.
to the amendment? If not, the question is upon the adoption of
the original motion. Are you ready for the question?
DELEGATES: "Question; question!
The Clerk will call the roll.
""
Upon a call of the roll the following members voted yea:
Messrs. Camp, Griggs, Harris, Purcell, Sandager, Scott and Spald-
666
JOURNAL OF THE JOINT COMMISSION.
ing, of the North Dakota Commission; Messrs. Brott, Caldwell,
Elliott, Kellam, McGillycuddy, Neill and Price, of the South Da-
kota Commission.
The Temporary CHAIRMAN. Under the rules, gentlemen,
the resolution is adopted.
Mr. CALDWELL. Mr. CHAIRMAN: I suppose a very essential
preliminary will be to arrive at what is the understanding of the
Commission as to its powers under the act which has provided for
its existence; and I suppose that it would be proper, and possibly
the easier way, for an informal interchange of views which may
have been arrived at by these various members after having read
the act. If that may not be regarded as best, I will formulate a
motion in regard to it.
Mr. SPALDING. I would like to hear Mr. CALDWELL'S views
on it.
Mr. HARRIS. Mr. CHAIRMAN: It seems to me it would be
proper for us, as we have plenty of legal ability on both sides of
the committee, to appoint a joint committee to inform us what the
"Omnibus Bill" provides with reference to our powers, in their
legal view of the subject.
Mr. CALDWELL. Mr. PRESIDENT: I will say, as far as I am
concerned, after having made a somewhat careful examination of
the Enabling Act, that there are certain matters contained therein
that seems to me to be somewhat blind; and it will be very impor-
tant, as conditioning the action of this Commission, that there
should be an understanding in its proceedings as to what its
powers may be, and, while perhaps we might be able to determine
the matter after submitting the same to the committee of which
the gentleman speaks, it is probably the case that a full under-
standing of it would be had by all the members of the Commis-
sion if it were informally discussed in the meeting here. How-
ever, what determination may be arrived at will be entirely
satisfactory, except that I should be very much pleased to have
the views of the gentlemen, and to hear whether or not the one
that is suggested to me has suggested itself to the rest.
་
Mr. SCOTT. Mr. CHAIRMAN: I think about as Mr. CALDWELL
does in that matter, and I should like to hear from Mr. CALDWELL
as to what his views are.
Mr. SPALDING. Mr. CHAIRMAN: I also concur with the
views of Mr. CALDWELL, and from the positions that he has oc-
!
i
JOURNAL OF THE JOINT COMMISSION.
667
cupied in the Territory, and as they have rendered him specially
competent, I would suggest that we have his ideas on it.
Mr. GRIGGS. You have got yourself into a "snap,” Cal.
Mr. PRICE. They all like to hear Mr. CALDWELL talk very
well, you know. He is an original gentleman, and he has a
"broad-shouldered voice." It seems to me that the plan suggest-
ed by some of the gentlemen on the other side is a perfectly
proper one that this be submitted to a special committee, of, say
two from North and two from South Dakota, and let them report
some time to-morrow, and then we can discuss it. That would be
my personal feeling about the matter.
Mr. CAMP. Mr. CHAIRMAN: I do not believe that the gentle-
men of the Commission who are not legal gentlemen have suffi-
cient faith in the supereminent abilities of the gentlemen of the
Commission who are legal gentlemen, to accede blindly to any in-
terpretation they might put upon this bill; and I believe, with
Mr. CALDWELL, that we could get at an agreement as to our pow-
ers by an informal discussion here. For instance, the doubt
about the question of power that has come into his mind upon an
examination of the act. He might discuss that. It will form a
very satisfactory basis for this discussion-as to the power of this
Commission.
The Temporary CHAIRMAN. Mr. CALDWELL, you are called
upon.
Mr. CALDWELL. Mr. CHAIRMAN: The chief thing that has
engaged my attention in regard to the powers of this Commission
if some gentleman has a copy of the bill I wish he would let me
have it—(A copy of the bill was here produced and handed to
Mr. CALDWELL) is what seems to be the conflict between a certain
provision of section five, and a certain provision of section six. I
will read the particular parts referred to:
SEC. 5. * * But the archives, records and books of the Territory of
Dakota shall remain at Bismarck, the Capital of North Dakota, until an agree-
ment in reference thereto is reached by said States.
SEC. 6. * * Whose duty it shall be to assemble at Bismarck, the present
seat of government of said Territory, and agree upon an equitable division of all
property belonging to the Territory of Dakota; the disposition of all public
records, and also adjust and agree upon the amount of the debts and liabilities
of the Territory, which shall be assumed and paid by each of the proposed
States of North Dakota and South Dakota; and the agreement reached respect-
ing the Territorial debts and liabilities shall be incorporated in the respective
Constitutions, and each of said states shall obligate itself to pay its propor-
668
JOURNAL OF THE JOINT COMMISSION.
tion of such debts and liabilities the same as if they had been created by such
states respectively.
Now, in section five there is (it seems to me a fair construction
of the language warrants the statement) that which takes out of
the hands of this Commission the disposition of the records, ar-
chives, books, etc., and confers the power of such disposition upon
the State; while section six seems to confer upon this Commission
the power of such disposition. And it was this seeming contra-
diction that has led me to suggest that the matter might be in-
formally discussed here. I will say that the matter has been
somewhat talked among the members of the Commission from
South Dakota, and that there is not a unanimity of judgment in
regard to it, and I had desired especially that if the matter-so far
as I was personally concerned, having heard a discussion of the
views upon it upon the part of the gentlemen from South Dakota-
I had specially desired that there might be an expression of views
by the gentlemen from North Dakota. It is a very important
question, as it seems to me, for us to determine whether or not
final action of ours determines this matter. I think there is no
question, from the language of the statute, that our action in re-
gard to division of debts and liabilities is final, and that the
respective conventions must incorporate in their documents the
recommendation made by this Joint Commission. In regard to
the matter of archives, records and books, as I say, there seems to
be an opportunity for a difference of opinion; and it is upon that
difference I should like an expression given.
Mr. SPALDING. Well, we didn't hear what your expression
of opinion was.
Mr. CALDWELL. Well, assuming to speak only for myself-
and I suppose that that is all that is expected of me--I would say
that it is my judgment that while this body may agree and recom-
mend or advise the respective commonwealths as to what it would
be proper to do with these archives, I do not believe that our con-
clusions in regard thereto would be final and binding. I think
that we might recommend, but that in order for that recommenda-
tion to be given vitality, and to warrant the removal of any rec-
ords, unquestionably there would have to be an understanding
between the two states, and after they had become political enti-
ties actually. I believe, however, that this construction would
involve a good many difficulties, but I also believe it possible to
devise means for avoiding, in a measure, those difficulties; and it
JOURNAL OF THE JOINT COMMISSION.
669
!
is for the purpose of having this considered that I have made the
suggestion.
Mr. PURCELL. This is the first time, Mr. CHAIRMAN, that
my attention has been called to this. I am not, perhaps, as com-
petent to speak on it as Mr. CALDWELL, who has given it some at-
tention, but to read it hastily it strikes me that the best manner
of procedure would be this: Section five says, after enumerating
other matters:
"But the archives, records and books of the Territory of Dakota shall re-
main at Bismarck, the Capital of North Dakota, until an agreement in refer-
ence thereto is reached by said States."
Now, taking that clause alone, it simply says that the archives,
books and records, of the Territory shall remain here at Bismarck
until the two states agree upon a division or disposition. Section
six says that we shall agree upon an equitable disposition of all
the property belonging to the Territory, which, taken by itself,
would seem to me, property other than the books and records;
but the following line says, "the disposition of all public records."
Now, no matter what we do here, of course the records, ar-
chives and books shall remain in the Territory until the terri-
torial government becomes extinct. In other words, if we should
arrive at an agreement to-day, we could not say that the records
pertaining to South Dakota, should go there, but that the same
shall remain intact until the territorial form of government shall
cease to exist. It seems to me that it is this—after we have
agreed upon all property other than the books and records, that
the books and records should be left for the two states to deter-
mine. Section six says simply "public records." Section five
says, “the archives, records and books of the Territory."
Now, it seems to me, that would be a fair interpretation of the
act, namely: That all books should remain at Bismarck until the
Territory ceases to exist and there are two states made out of it;
and that then it becomes the sole province of the two states to
agree how the records shall be disposed of.
Mr. SCOTT. Mr. CHAIRMAN: I, for my part, was taking alto-
gether another view of the case. The matter had not been called
to my attention until Mr. CALDWELL referred to it. I was of the
opinion, and am now, that we have full power to make an ar-
rangement and come to an understanding and agreement among
ourselves as to what disposition shall be made of these books;
and I think if we do, that whatever action we do take, if it is
670
JCURNAL OF THE JOINT COMMISSION.
necessary subsequently to have that action ratified by the states,
it will be ratified. I believe we should go into this matter-it is
an important matter-to see what shall be done with these records
and come to an understanding with reference to it. Shall they be
retained in North Dakota, or shall they go to South Dakota? If
they remain in North Dakota, what will South Dakota have to
show in the way of record's? If they go to South Dakota, what
are we going to have in our records to show or keep track of the
money, and show how it has been expended? Now, I believe that
we have the power to do that, and under section six, we shall
agree upon a division and how the records shall be disposed of:
SEC. 6.
* Whose duty it shall be to assemble at Bismarck and
agree upon an equitable division of all property belonging to the Territory,
and agree upon the disposition of all public records.
Now, what are public records? It seems to me there can be
but one interpretation, and that is, any of the books, papers and
records remaining and belonging to the Territory of Dakota in
any of the offices of the Territory-in the Auditor's office, in the
Treasurer's office, the Governor's office, in all the public offices.
Now, I don't think there is in section five anything more meant.
It means nothing more than the subsequent section, which says
we shall agree upon a disposition of all public records, the pub-
lic books, the papers, and everything pertaining to the records.
They are the archives. It seems to me clear that where it says
that this Commission shall assemble at Bismarck and divide the
property and agree upon a disposition of the public records, that
we are authorized to make some agreement respecting them.
What that agreement is, of course remains to be seen.
Mr. PURCELL. Is it your understanding that the preceding
section places no limitation upon the powers of the Commission?
Mr. SCOTT. It places this limitation: If we cannot come to
an understanding, that the records shall remain here. Section
six prescribes how an agreement shall be reached by the States--
Mr. PURCELL. Yes, but we are not a State.
Mr. SCOTT. I think the word "State" there refers to North
Dakota. There is no such thing as the Capital of North Dakota.
It merely refers to the Territory of North and South Dakota, and
calls them States. Section six, as I understand it, shows to us
how we may reach an agreement.
Mr. SPALDING. I should like to hear from somebody from
the South who does not agree with Mr. CALDWELL.
JOURNAL OF THE JOINT COMMISSION.
671
Mr. CALDWELL. There are five of them, I think. I think
Capt. ELLIOTT agrees with me.
Mr. PRICE. I would like to hear from the CHAIRMAN.
Mr. KELLAM. Well, gentlemen, it is difficult for me to read
the two sections and come to a conclusion that is absolutely free
from doubt. The difficulty has developed among ourselves since
we came here. Some gentleman of the Commission yesterday
suggested a question as to the power of this Commission with
reference to the public records of the Territory, and it was a
matter that was laid aside, and this afternoon was discussed a little
among ourselves. I am not inclined to the same conclusion that
Mr. CALDWELL is. I do not know exactly how to read these two
sections and make them absolutely harmonious, but "the archives,
records and books of the Territory of Dakota shall remain at Bis-
marck—until an agreement in reference thereto is reached by said
states." Now, I am in doubt as to whether those words "by said
states" were used with great deliberation or not; whether that
provision means as it would mean if the word "proposed” were
inserted between the words "said" and "states." In several places
in this bill North Dakota and South Dakota are referred to as
states. There would be perhaps less doubt as to the meaning of
this if it read, "by said proposed states." The question with me
is whether section six should be read as explanatory, as auxiliary,
to section five.
"The State of South Dakota shall be admitted as a state in the Union
under said Constitution as hereinafter provided; but the archives, records and
books of the Territory of Dakota shall remain at Bismarck, the Capital of
North Dakota, until an agreement in reference thereto is reached by said
states."
Then the very next section provides how an agreement may be
reached by said proposed States. If the view of Mr. CALDWELL
is correct, there is very little force in the words used in section
six, as it seems to me. This Commission is charged with the duty
of agreeing upon an equitable division of all property belonging
to the Territory of Dakota. That is one of its duties. Another
is, it is charged with the duty of agreeing upon a disposition of
all public records. Now, is this the agreement that is referred to
in section five? An answer to the question in the affirmative, of
course, would dispose of all doubt; and I am strongly inclined to
that interpretation-to that construction.
How far does section five qualify the power of this Commission
672
JOURNAL OF THE JOINT COMMISSION.
as to a disposition of the public records, when it says that they
"shall remain at Bismarck until an agreement in reference thereto
is reached by said States"? I am inclined to the opinion that
the agreement referred to in section five is the agreement provided
for in section six. I would be very well satisfied to come to a dif-
ferent conclusion, because it would, of course, consequently, re-
lieve us of a part of the work that would devolve upon us by the
view I take. I do not think that any of us have given the matter
as much thought as, perhaps, the subject demands. It was the
subject of discussion among ourselves for perhaps half an hour
this afternoon. There was a diversity of opinion developed, and
we said "when our friends from North Dakota come in, we will
ask their views upon this question"; that is as far as we have
gotten. My own judgment is that it becomes a part of our duty
to dispose of the public records of the Territory of Dakota, but
that they shall remain at Bismarck until such conclusion is
reached, and such conclusion is made operative by the organiza-
tion of the two state governments.
Mr. NEILL. Mr. CHAIRMAN: In studying those two provi-
sions, it seemed to me, while the first was explanatory to a certain
extent, and placed a limitation with regard to the time of removal
of those records, that the second provision paved the way by which
that agreement should be arrived at and the proper division of the
records made. There is this peculiarity about the "Omnibus
Bill” and the authority under which we are to make an agree-
ment, as compared with other acts of the same kind. The very
passage of this act in itself almost created two states. It was not
one of those acts that provided in a provisional way for statehood,
that have so often been granted to territories, but the fact that it
never again returns to Congress, but that each becomes a state by
proclamation of the President, shows that we are treated more as
organic states from the moment this act of Congress was promul-
gated than territories in former cases have been. So that the use
of this word "state" in this first section becomes a matter of easy
use, and so it has that lighter sense that our Chairman has just
alluded to. It seems to me that the intention of the bill is that
we should come to an agreement in regard to all property, with
regard to all liabilities, and with regard to records and everything
else pertaining to these two states before we take that final vote
of ratification; and that this is only a part of the work of this
Commission to see that this work is arranged for, and that Con-
JOURNAL OF THE JOINT COMMISSION.
673
gress had it in mind that unless it was fully complied with, and
that we agree upon how everything should be divided, that we
could not enter the Union. They sort of hold this over us as a
check, to arrange all these matters preliminary to statehood; and
that upon a final vote upon our Constitution the work is com-
pleted. To me it seems very plain and very urgent that this Com-
mission prepare for the disposition of those records so that it will
be a final settlement. Suppose we do nothing in regard to them,
and it afterwards comes up between the two states, and the State
of North Dakota does not see fit to agree, how can the State of
South Dakota compel her to?
Mr. PURCELL. Suppose North Dakota does not become a
State, would this Commission, acting on the part of South Dakota
have any right to bind them by this agreement? Any agreement
that we might arrive at now would be contingent upon the two
Constitutions being ratified.
Mr. NEILL. Certainly.
Mr. CALDWELL. Yes, sir.
Mr. ELLIOTT. That is it, exactly.
Mr. PURCELL. My argument was upon this theory: That
in case the Constitution of North Dakota should not be ratified,
then section five would apply that it was intended to prevent
this Commission now from taking any action in regard to the dis-
position of that property until both Constitutions had been rati-
fied, and then it be done by the States. If either of these Consti-
tutions should fail to be ratified, no one would claim that the
action of this Commission would bind the Territory at all.
Mr. CAMP. And yet, for all that, the duty devolves upon this
Commission, plainly, of making an agreement-arriving at some
agreement for the disposition of these records. My idea, briefly,
is this, upon that subject: We are to go on as a Joint Commis-
sion and agree, if possible, as to the disposition to be made of
the records. For instance, we may agree that all records
which pertain exclusively to South Dakota shall be removed to
the Capital of South Dakota when established; that all records.
which pertain exclusively to North Dakota shall remain at the
Capital of North Dakota; that all records which pertain partly to
the North and partly to the South-for instance, the Treasurer's
books, I suppose-shall remain, we will say, at the Capital of
North Dakota, but that their contents shall be copied and cetified
and exemplified; and that the copying of them shall be paid for
43
674
JOURNAL OF THE JOINT COMMISSION.
in such manner as we shall agree upon, and the copies shall be
taken to South Dakota. Now that will be our report to the two
separate Conventions. That report, so far as the matter of the
records is concerned, those two Conventions are at liberty to adopt.
or not. If those two Conventions severally adopt our report as to
the records and make it a part of the Ordinance of the two pro-
posed states, and the Ordinance of the Constitution of the two
states is ratified by the people of the two states, and the Presi-
dent thereupon issues his proclamation, then our agreement has
become the agreement of the two states; and then section five
comes into play and the records may be removed and transferred
accordingly. But I do not understand that any agreement which
we may make with regard to the records is binding until so rati-
fied by the people. At the same time we are under an obligation,
by our appointment, to make an agreement with regard to those
records.
Mr. CALDWELL. Mr. CHAIRMAN. The last speaker has al-
most stated my judgment in regard to the matter. My principal
point is this: That while we may make a quasi agreement here—
an agreement which is merely a provisional one—an agreement
which is contingent upon subsequent action in regard to these
books, archives, etc., that that agreement which we make in regard
to the debts and liabilities is positive and final. We may here
go to work and propose or suggest that a certain disposition shall
be made of these records; but if either state should see fit to, by
its Legislature, take different action, our suggestion or agreement
would not be binding upon the Legislature. I think that is a
matter which is reviewable by the legislatures of the respective
states. I think, however, that it would not be only proper, but
our duty to consider the matter and to suggest to our respective
commonwealths what ought to be done-that is, simply come to
an agreement which does not bind either party like the agree-
ment which we make with reference to the debts and liabilities,
and which is subject to review by the Legislature of the State
when organization is complete; otherwise if we had power to
make an agreement which is final, the moment we make it these
records are liable to removal, whether North Dakota should
adopt her Constitution and thus become a state, or whether she
should reject this Constitution and the one hereafter that is con-
tingently provided for and remain a territory; and I doubt if any
action that we could take would be in any sense binding upon
JOURNAL OF THE JOINT COMMISSION.
675
North Dakota in the event of her remaining a territory. She
would remain a territory and would be entitled to these records; and
whatever South Dakota as a state had of them she would have to
have as copies of them. And, as I stated this afternoon, in the
casual discussion of the matter, it seems to me that there is in-
herent evidence in the construction of the act as to the method by
which these two provisions were introduced. It seems to me that
section six is, as it was originally prepared by the author, and
that section five,after having been prepared by the author, was modi-
fied by the insertion of the clause beginning with, "but the arch-
ives, records, etc., shall remain at Bismarck." I think that that
was injected after its completion by the author; and that the pur-
pose of its injection was that it should controvert the declaration
of section twenty-eight of the Ordinance and Schedule of the
Sioux Falls Constitution of 1885. Section twenty-eight declares:
SEC. 28. All the existing archives, records and books belonging to the
Territory of Dakota shall belong to and be a part of the public records of the
State of Dakota, and be deposited at the seat of government of the said State
with the Secretary of State.
And it seems to me that the purpose of that section was to pre-
vent any possible question arising in the event of this section
twenty-eight being readopted by South Dakota; so that it was an
actual, positive insertion of the provision with a definite and
actual purpose, which purpose was, as it says, to prevent its removal.
until there should be an equitable arrangement arrived at by both of
the independent commonwealths after they had been established
as States, and that being the case, it seems to me, that our powers
in regard to the books, records and archives are merely advisory;
that there is not anything which we can do that positively binds
either the State of North Dakota or the State of South Dakota,
and certainly nothing that could bind the Territory of North Da-
kota and the State of South Dakota.
Mr. McGILLYCUDDY. Mr. CHAIRMAN: I would suggest that
it is not a question of what we may do in regard to the recom-
mendation as to the disposition of these records, but article six
clearly states that it shall be the duty of this Joint Commission
to divide these records. Now, of course, the ultimate result of
what we shall determine on here is contingent on the coming in as
a State of South Dakota. All the various public buildings and
the bonded debt are now divided practically by their location; but
the present location of the records is at Bismarck, and it seems to
676
JOURNAL OF THE JOINT COMMISSION.
me the object of this section five was to prevent this Commission
taking up these records, and particularly for the reason that in
South Dakota to-day there is no officer authorized by law to re-
ceive and care for those records. Supposing they were divided
and taken to South Dakota, and in the event of this failing and
the President not bringing the State in by proclamation, whoever
wrote that bill could easily foresee the danger of these records be-
ing scattered and lost, and the Territory losing the benefit of
them. But it seems to me that we have a clear duty to make a
recommendation for the future State to act upon.
Mr. BROTT. Mr. CHAIRMAN: It does not say we shall “divide”
the records, but make some "disposition."
Mr. HARRIS. Mr. CHAIRMAN: Perhaps the history of this
Omnibus Bill might throw some light on the subject. This bill
was a matter, of what we might call, bargain and sale between two
parties the democratic party contending for one thing and the
republican party another; and the agreement was reached by which
we have this bill. The republican party were contending for the
admission of South Dakota under the Sioux Falls Constitution,
immediately after the vote in May, and they expected to have that
nserted in this bill-they expected to have South Dakota admitted
after she had voted in May, under the Sioux Falls Constitution,
and it was found that the agreement could not be reached bring-
ing them in at that time; that it would be necessary in order to
pass this bill at all, that the whole question should be voted upon
again in October, at the same time that the other constitutions by
the other states were submitted to the people-that it must be
submitted again with the separate questions. Now, I agree with
Major KELLAM that the use of the word "state" there may not
have had just that interpretation or that intended meaning, and
that it may not have been just the interpretation we are putting
upon it, and that might have been reached by "said proposed
states” as he suggests. This agreement was reached hurriedly in
regard to this bill-reached after an all night's session of the men
in charge of it, and it had to go in at the next morning's session,
and there may have been part of this bill that intended that South
Dakota should have been admitted sooner, and this provision put
in here in order to prevent any records and archives being re-
moved from North Dakota and taken to South Dakota in that
case; and the bill may not have been drawn to cover this whole
thing. I am inclined to the opinion that the language in section.
JOURNAL OF THE JOINT COMMISSION.
677
five and the language in section six, as interpreted together, and
as interpreted with all of section five, intended that this Commis-
sion should agree as to the disposition of these records, and that
it should be submitted to a vote of the people, although it does not
say so in express language, and upon their ratification that that
disposition should be made of these records. Of course if either
party to this agreement should fail to ratify their Constitution this
would not be binding, and some other disposition would have to
be made, but it says plainly in section six that this Commission
shall make disposition of the records.
Mr. CAMP. Mr. CHAIRMAN: In order that the matter may be
brought before the Commission I introduce the following motion:
Resolved, That any agreement hereafter arrived at by this Commission
relative to the records of the Territory of Dakota shall be reported by the com-
mittee from North and South Dakota to their respective conventions, with the
recommendation that the same be made a part of the Schedule or Ordinance to
be submitted with the proposed Constitution for ratification by the people of
North and South Dakota respectively.
A VOICE. I second the motion.
Mr. PRICE. Mr. CHAIRMAN: I move you, sir, that the consid-
eration of this motion be postponed until the next session of this
Joint Commission, to-morrow.
Mr. PURCELL. Mr. CHAIRMAN: I second Mr. PRICE'S mo-
tion.
The CHAIRMAN of the Joint Commission: Mr. PRICE moves
that this motion of Mr. CAMP be made a special order for the next
meeting, at the opening of the session. As many as are in favor
of the motion will say aye; contrary, no.
The motion prevails, and the resolution introduced by Mr.
CAMP is a special order at the opening of the next session of this
Joint Commission.
Mr. SPALDING. Mr. CHAIRMAN: It seems to me quite clear
what was intended by this act; and it seems to me that section
five was intended to be read in connection with section six, and
that the intention was that it should mean the same as though it
read like this:
"But the archives, records and books of the Territory of Dakota shall re-
main at Bismarck, the Capital of North Dakota, until an agreement in refer-
ence thereto is reached by said states; and it shall be the duty of the Constitu-
tional Conventions of North Dakota and South Dakota to appoint a Joint
Commission to make such agreement."
678
JOURNAL OF THE JOINT COMMISSION.
And that the two should be read together. It seems to me that
those words are synonymous there. It does not mean the books
in the Territorial Library, it means the books of record—the
same class which is referred to previously there-the archives,
records and books; all books of record. Then in section six in-
stead of referring to them separately, it refers to them
all together under the words "public records," and it
would seem from the way this reads, to me, that it was
not intended as essential that we should incorporate the
agreement which we may arrive at regarding the books of record,
in the Constitution, but that we should only incorporate so much
of our agreement as relates to our debts and liabilities and mat-
ters of that nature in the Constitution; that if we make an agree-
ment that is final and binding it is only subject to our becoming
states, and that these records and books cannot any of them be
removed unless we do each of us become states-so that our
office is to agree upon a division, not only on the debts and liabil-
ities, but also of the records; and that part of the agreement re-
specting the liabilities shall be incorporated in the Constitution,
and not necessarily the other part of it.
Mr. SCOTT. Mr. CHAIRMAN: I think it would be proper for
us to agree upon a time to which we adjourn, and have a regular
hour of meeting each day.
Mr. PURCELL. Mr. CHAIRMAN: I suggest that we meet at
10 o'clock in the morning.
Mr. SCOTT. Well, we have considerable work in committee to
do, and I would suggest that if we can meet here right after the
adjournment of the Convention it would give us all the work we
will agree to do. Now, we to-day have had a two-hours' session,
and I think that is quite enough.
Mr. PURCELL. I accept the amendment that we meet here
immediately after the adjournment of the Convention, and so
make the hour at 4 o'clock, or 3:30.
Mr. SPALDING. I would suggest that we meet in the Attor-
ney General's room instead of here. This may discommode the
Governor.
Mr. CALDWELL. He has given us permission to meet here,
and he is away.
Mr. PURCELL. Mr. CHAIRMAN: I make a motion that we
meet here at 3:30 o'clock every day.
Mr. GRIGGS. I think it ought to be earlier than that.
JOURNAL OF THE JOINT COMMISSION.
679
Mr. CALDWELL. Yes. While we are disposed to do the ut-
most that could be reasonably expected, yet at the same time our
Convention is simply drifting along, waiting for our return; and
if it would be a possible thing for the gentlemen from North Da-
kota to meet. earlier than that, it would be a very great con-
venience, not only to us, but also to the members of our Conven-
tion at home.
Mr. PURCELL. I think from the statement you make that
we are disposed to accommodate you, and I would suggest that we
meet at 3 o'clock.
Mr. BROTT. Why can't we have a two-hours' session in the
morning?
Mr. KELLAM. It may be that your committee meetings are
arranged for to-morrow so that you cannot avoid them; but if the
gentlemen of this Commission can reasonably be excused from
their committee meetings, it is important, of course, for us to fa-
cilitate our work here as rapidly as possible, on account of our
Convention. They are practically through with their work at
Sioux Falls, and must remain in session throughout our absence;
and, while we do not feel like pressing the matter at all, yet we do
feel like saying that all the time you can reasonably give us, it
will accommodate us.
Mr. PURCELL. Well, to-morrow we will arrange to have our
committee meetings at such time as will not interfere with the
meetings of this Commission.
Mr. SPALDING. All the committees that I belong on meet in
the morning.
Mr. NEILL. While you gentlemen are no doubt very much
engaged in your committee work, it would be better for you to
crowd as much of your work in this committee now, and give your
work to the other committees later on.
Mr. CAMP. Are we going to profit by having long sessions of
this Commission? Every form of work is not expedited by hav-
ing long sessions, but sometimes by doing the work in committee
and getting the material ready.
Mr. KELLAM. Well, gentleman, it will be satisfactory for us
to-morrow to meet at 3 o'clock.
The CHAIRMAN of the Joint Commission: The question is
now upon the adjournment until to-morrow afternoon at 3 o'clock
680
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at this place. As many as are of the opinion that the motion pre-
vail will say aye; contrary no.
The ayes have it; the motion prevails, and the meeting is ad-
journed until to-morrow at 3 o'clock p. m.
SECOND DA Y.
BISMARCK, Wednesday, July 17, 1889.
The Commission met at 2:30 p. m., Mr. CAMP in the chair.
Mr. KELLAM moved that two assistant secretaries be selected to
assist in the meetings during joint sessions.
Which motion was carried.
W. G. HAYDEN was nominated by the North Dakota Commis-
sion and L. M. MCCLAREN by the South Dakota Commission, and
both were elected.
Under head of Unfinished Business, call was made for the res-
olution offered yesterday by Mr. CAMP. A vote was called for,
and the resolution was lost by the following vote: South Dakota
voted yeas, 2; nays, 5. North Dakota, yeas, 6: nays, 1.
The following resolution was offered by Mr. CALDWELL:
Resolved, That any agreement arrived at by the Joint Commission re-
garding disposition of the public records of the Territory shall be communi-
cated by the Representatives of North Dakota and South Dakota to their re-
spective Conventions, to be by them communicated to the Legislatures of the
two States for action in regard to such disposition.
Upon motion of Mr. PURCELL, the resolution was laid on the
table.
Mr. KELLAM. It seems to me that we should discuss in an
informal way some plan for making the division of property. For
myself I should be glad if we could relieve ourselves somewhat of
this formality. It does not seem to me that we are near enough
to each other; it is a little too cold-blooded. I would like to have
a man say what he thinks in specific terms; if he has a thought,
express it, but without so very much formality. I get through
my business easier that way than any other, and my experience
JOURNAL OF THE JOINT COMMISSION.
681
satisfies me that we will get along faster than if we attempt to ob-
serve very much proper form in our deliberations. We have got to
make a fairly intelligible record, but I still think that the less for-
mality and the less coldness we can have about our consultations
and discussions, the quicker we shall arrive at an understanding
between ourselves. I have simply expressed in a general way the
feeling of our people. We have not any plan. We came here sọ
far as I know without any discussion whatever as to what would
be the easiest or most expeditious or the fairest way to get at the
result that we are after. Since we have been here we have talked
in a general way of the possible methods that might be pursued,
but we have no plan-no course marked out that we desire to pur-
We are all at sea as to what particular method and line to
work on, and it is for this purpose that it is desirable for each gen-
tleman here if he has an idea as to how we can most directly get
at the division of this property and the division of these liabilities
in the most business like way, to state his views.
sue.
Mr. SCOTT. Have you any suggestions as to methods?
Not any.
Mr. KELLAM.
There might be two or three
methods, but I have no choice. Of course I desire that we shall
reach a reasonably correct result-not a result that will be mathe-
matically correct, for I don't suppose there is any gentleman here
that expects a settlement by this Commission which will be math-
ematically correct. That will be without the range of possibility.
Further than the general thought of taking each institution and
putting upon it its proper indebtedness, and turning it over to the
new State, I have no plan. I suppose that in discussing this
matter each gentleman must speak for himself, for in speaking on
this subject I don't presume to be speaking for our Commission.
Mr. SPALDING. I supposed when we entered into this in-
formal talk we were to get down to some definite basis, but so far,
with the exception of the remarks of Major KELLAM, the sugges-
tions have been mere glittering generalities. It seems that if we
are ever going to arrive at any conclusion, it is necessary that we
establish a start on some principle on which we are going to work,
and then "hew to the line, and let the chips fall where they may."
I don't believe that there is a man in this Commission who has
any desire or wish to accomplish any result here which shall not
be as near as possible equitable and fair to both parts of this Ter-
ritory and both of the incoming states. I don't believe that any-
one of us was sent here for any such purpose, and it does not take
682
JOURNAL OF THE JOINT COMMISSION.
i
any talking to convince me that we were sent here to arrive at a
fair and equitable result. I don't believe that we can split dimes
or nickels, and the only result we can expect to arrive at will be
such as under all the circumstances will be equitable, and follow
the lines of equity. The first thing, it seems to me, will be to ar-
rive at some rule on which we are to proceed, and then we can
commence with one institution or more, and figure out our basis
or conclusions from our basis. That was the object, as I sup-
posed, of this informal discussion, and I would like to hear from
Major KELLAM or Mr. CALDWELL or Mr. PRICE as to what would
be such an equitable rule to start on.
Mr. PRICE. It seems to me that we would like to hear from
you on that matter.
Mr. SPALDING. I mention Mr. CALDWELL because there is
no man on our Commission that has had any connection with pub-
lic institutions or knows anything about them-what the public
institutions are, or the system of bookkeeping under which they
work, or anything connected with them. Mr. CALDWELL is the
only gentleman on the South Dakota Commission who has been
so connected with the public service. In my remarks I have
mentioned him because he is better posted and better able to
speak and advance the ideas that we want.
•
Mr. CALDWELL. Well, the Territory has a number of pub-
lic institutions, and there are more in the South than in the
North. It is a fact that the Territory has not paid anything on
these; the bonds are out, and so far as the institutions are con-
cerned, the commonwealth which takes the institutions and pays
these bonds, pays for the institutions. It would seem to me that
an entirely fair basis would be something like this-let South Da-
kota take what public institutions and public buildings may be lo-
cated within her borders, and become responsible for the indebt-
edness which has been incurred, and let North Dakota take such
public institutions as are included in her territory, including the
Capitol, and let North Dakota pay the indebtedness on them. That
is the matter in a nutshell, as it has been suggested to me by an
examination of the matter. It seems to me to be a perfectly fair
proposition for the reason that whatever one commonwealth gets,
it gets something that it will have to pay for itself. These bonds
are all out, and the new State will have to ultimately assume them
and pay them.
Mr. SCOTT. I ask for information-is it a fact that all the
JOURNAL OF THE JOINT COMMISSION.
683
public institutions in the Territory have been bonded for the full
payment of the institutions-for what they cost the Territory, or
has the Territory from time to time made certain appropriations
to certain public institutions which have been used in the con-
struction fund?
Mr. CALDWELL. I would say that there has been paid by
the Territory for the construction, or for matters pertaining to
construction of public institutions, of South Dakota, otherwise
than from the proceeds of bonds, about $70,000. For public in-
stitutions in North Dakota there has been paid, otherwise than by
bonds, for matters pertaining to the construction or permanent.
accounts, or for something which becomes part of the property,
$143,000. So that there has been paid out of the general funds
of the Territory, as shown by the Auditor's reports, for a series of
years, ever since the Territory has had an institution, about $143,-
000 for construction, or furnishing, or betterments or repairs for
North Dakota, and $69,900 for South Dakota.
Mr. PURCELL. Have you the figures for each institution?
Mr. CALDWELL. I have the figures somewhere. I will read
here a list of the institutions. The first established was the Yank-
ton Insane Hospital in 1881, $40,000 worth of bonds; in 1883 $77,-
500, and in 1887, $92,500 worth of bonds. I will say without going
into details that the bonded indebtedness of institutions in South
Dakota is $666,700 up to 1888. That takes into account the insti-
tutions already in existence, and it does not take in the Soldiers'
Home. For North Dakota institutions the bonded indebtedness
is $433,600. That makes in round figures $233,000 more of bonded
indebtedness for South Dakota than for North Dakota. But the
query of Mr. SCOTT was as to how much had been matters of cur-
rent appropriation that had not been realized from the sale of
bonds, but paid out of the general funds of the territory. I would
say again that the amount is $143,000 for North Dakota and
$69,000 for South Dakota. A little less than half as much has
been paid for North Dakota institutions out of the general funds,
than for South Dakota. I would say on personal honor, that in
making this proposition there is not the least design or intention,
nor as I believe the least opportunity, for either section to have
the advantage of the other, other than as is perfectly plain on the
face of it. I have examined the figures, and as the gentleman
said, I had charge of the accounts of the Territory for a couple of
years, and have paid more or less attention to such matters since,
684
JOURNAL OF THE JOINT COMMISSION.
and with this knowledge of the condition of affairs, and with a
disposition to be fair, I have made this suggestion. It seems to
me to be perfectly fair and equitable as between the two common-
wealths so far as the division of the public institutions and the in-
debtedness incurred in their construction, are concerned.
Mr. SCOTT. If we establish a general proposition as you sug-
gest, then would it not be necessary to take up each institution by
itself, see what the bonded indebtedness for that particular insti-
tution was, what the cost of construction was, and what means
were appropriated to each particular institution out of the current
funds that is not included in the bonded indebtedness?
Mr. CALDWELL. No, that is not necessary. The money you
speak of that did not come from the sale of bonds, has been paid
out of the current revenues of the Territory.
Mr. SCOTT. I don't think you catch my point. You say that
we have had in North Dakota $143,000 for our institutions in ad-
dition to the amount realized from the sale of their bonds, while
you in South Dakota have had only $69,000.
Mr. CALDWELL. I, as a South Dakota man, knowing that
fact, and desiring to make this adjustment without any red tape,
would not ask that we go into minutia. I am willing that South
Dakota shall take the property in South Dakota on the basis I
have suggested, and let the North have the benefit of the extra
money that her institutions have had out of the general funds.
This is to be borne in mind, that when the Commission shall go
to work and fix some definite basis of division, there arises a
new equity for each side in the case. While in general equity we
may agree on a basis such as I have indicated, that is that each
commonwealth shall take the institutions located within its
borders and assume the indebtedness which has been incurred by
the Territory in regard thereto-when we do that, in my judg-
ment that will prove to be equitable if we agree to it. If on the
other hand we determine that our basis shall be that we will figure
and figure and figure, until we determine the precise value of all
these institutions, then if there should be any item overlooked by
this Commission, the result would be inequitable to that extent,
and if we should go into the matter of determining all these de-
tails, we would, as I say, arrive at a conclusion that would be in-
equitable in so far as we deviated from the standpoint. To illus-
trate, this question came before the Auditor's office, not only
when I was Auditor, but every year, as to the matter of equaliz-
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685
ing the taxes between the various counties. There were two
methods of going about this-for instance the matter of
equalizing for territorial purposes with reference to the lands
of the Territory. There was one way by saying the average
acre of land in every county shall be regarded as of the
same value as the average acre in every other county. If that
should be determined on as a basis, it was with entire equity that
the average acre of land in Cass County should be regarded as of
the exact value of the average acre in Burleigh or Stutsman or
Potter or Minnehaha. Of course, it is a fact, that is known to
every citizen, that this is not the case. But if
But if you should attempt
to take that fact into account and undertake to adjust with refer-
ence to what is the actual value of the average acre in these coun-
ties, necessarily no Territorial equalizing board could know any-
thing about it; and if you establish that as a principle and
equalize on that basis, in those cases in which you would charge
one county a higher valuation than the real merits of the case de-
manded, so far you would do an injustice to that county, which you
would not do if you took the general basis referred to. So in this
matter we may make a general basis, as I have said, and then the
details will be a matter of very small concern. If we go into all
the details, we may figure and figure and figure, and when we get
done we will not have included all that should be included on the
basis which we have adopted, and in so far as we may have
omitted, so far an injustice will have been done. I am not stick-
ling on this matter, further than to say that, in my candid judg-
ment, after such an investigation of the question as I have been
able to give, the basis proposed would give us the quickest results,
and at the same time give us results nearest to equity.
Mr. SPALDING. Your idea is to let North Dakota take the
North Dakota institutions and assume the bonds, and South Da-
kota take the South Dakota institutions and assume the bonds,
regardless of whatever cost there may have been attached to them.
What would you do with regard to any other assets or liabilities?
Mr. CALDWELL. Whatever each gets it has to pay for.
These institutions were built almost entirely with bonds.
Mr. PRICE. The law provides that each State shall assume
the bonds for the institutions located within its borders.
Mr. SPALDING. You propose then, that North Dakota shall
take North Dakota institutions and South Dakota take South Da-
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JOURNAL OF THE JOINT COMMISSION.
kota institutions, and each State assume the indebtedness of the
bonds, and then that we don't figure any difference?
Mr. CALDWELL. That is what I propose, so far as the insti-
tutions are concerned. There are other matters of indebtedness
that will come up, but I have been speaking now about the in-
stitutions.
Mr. SCOTT. Do you know what the floating indebtedness of
the Territory is now?
Mr. CALDWELL. There is none. There will be, however,
shortly. I understand that the funds are now exhausted, and
have been for some days, and there is no money with which to pay
warrants. It will be necessary for the Governor and the Treas-
urer and the Auditor to make a temporary loan for the purpose of
meeting the obligations of the Territory.
Mr. SCOTT. What do you propose to do with the delinquent
taxes due from counties in North Dakota and South Dakota?
Mr. CALDWELL. In regard to that I would say let the de-
linquencies due from counties in North Dakota be made payable
to North Dakota, and those from South Dakota let them be pay-
able to the State of South Dakota.
Mr. SCOTT. In other words, North Dakota should, in your
opinion, assume the delinquent taxes of North Dakota, and charge
up that amount.
Mr. CALDWELL. There is no charge about the matter. The
account of the county will be due to the State of North Dakota
instead of to the Territory of Dakota.
Mr. SCOTT. That might be unjust. South Dakota may have
nearly paid her taxes, while we may be largely in default. In
our case we have had, let us say, the benefit of a large amount of
your money; it has gone into our public institutions.
There may
be $30,000 due from North Dakota counties for delinquent taxes,
and there may be $60,000 due from South Dakota. In case it is
like that, and you get the $60,000 and we get the $30,000 what will
we have in return for the difference between the $60,000 and the
$30,000.
Mr. CALDWELL. Of course I am not empowered to speak
for the Commission, and I have as an individual member made
the suggestion I have with reference to the public institutions.
It seems to me that it might be wise for us to attend to these
questions one at a time. They cannot have any relation to each
JOURNAL OF THE JOINT COMMISSION.
687
other, and all I started out to do was to give my opinions as to the
best way to adjust the matters of the public institutions.
Mr. NEILL. When you suggested the idea of each state assum-
ing the bonded indebtedness of its public institutions, you meant
to include in the value of that institution the money that had been
appropriated out of the general fund?
Mr. CALDWELL. I suggested that each state take its public
institutions with all its appurtenances—whatever money it may
have had out of the general fund, let it go with it. I was person-
ally willing to give to North Dakota the advantage of which I
have spoken.
Mr. McGILLYCUDDY. It is your intention, then, that we
should deal with the public institutions first, and finally dispose of
them before we pass on to anything else?
Mr. CALDWELL.
thing to do.
It seemed to me that that would be a wise
Mr. PURCELL. How do your institutions in the South com-
pare with those in the North? Are they equally good or bet-
ter?
Mr. CALDWELL. I don't know about that. Your insane
hospital is more of an institution than ours. I believe so, though
it has been a long time since I have seen it. I simply know as to
the bonds that were issued for the two.
Mr. PURCELL. The statements you made as to the bonds
that have been issued, and the sums of money that have been paid
for the institutions out of the general funds of the Territory, are
all a matter of record? Your information was gained from the
records?
Mr. CALDWELL. Yes; there is in the statements of the Aud-
itor a summary of the expenditures for each institution.
Mr. PURCELL. Is there a record anywhere showing whether
or not appropriations made for maintenance were used for con-
struction?
Mr. CALDWELL. Nothing but the vouchers in the office of
the Anditor.
Mr. PRICE. The acts of the Legislature show that money
was appropriated for certain specific purposes.
Mr. PURCELL. I believe that it was the impression of some
of the members that that there was a portion of the maintenance
fund that had been used in construction.
Mr. CALDWELL. If there has been, I know nothing about
688
JOURNAL OF THE JOINT COMMISSION.
it. I have heard an intimation to that effect, but there could not
have been enough of it to have amounted to any great figure. It
would be well nigh impossible that anything of any dimensions
could possibly be so diverted, for every item that comes to the Audi-
tor's office has to specify the party to whom the payment is made,
not only out of the maintenance fund, but out of the construction
fund. Not only has the amount to be specified, but the precise
article, and of course no Auditor would pass a voucher, which, for
instance, should be drawn on fuel or lights fund, or clothing-draw
his warrant on a voucher which showed that it was for digging a
trench or erecting a wall.
Mr. SPALDING. Have any of the bonds issued for any of
the institutions been paid?
Mr. CALDWELL. No sir. There have been $95,000 worth of
bonds refunded, but the amount is the same.
Mr. CAMP. Has there been any amount covered back into
the Treasury?
Mr. CALDWELL.
No; there are some balances still unex-
pended, and that would be a matter likewise for adjustment. This
would have to come in in the question of the adjustment of the
public institutions, and it would have to be agreed upon that the
title of the institution should pass to the State, and that the State
should assume the indebtedness, and that it should likewise have
the benefit of unexpended balances. That would be particularly
the case with reference to the Insane Hospital at Yankton. There
is some $30,000 to $40,000 of the proceeds of the bonds, still in the
treasury. Of course this should go to South Dakota, as the State
of South Dakota will have to pay the bonds from which this
money was realized.
Mr. SCOTT. Where would the money go?
Mr. CALDWELL. It is now in the treasury. There are some
balances which were in the treasury a short time ago which have
been expended since, and on due vouchers, and in the regular way.
Mr. CAMP. That $143,000 includes the Capitol warrants?
Mr. CALDWELL. I don't know. I think it includes the $23,-
000 or $24,000 paid out of the general fund for furniture, carpets,
plumbing, which have been paid for out of the general funds of
the Territory.
Mr. HARRIS. Of course it does not include the Capitol war-
rants which were funded?
Mr. CALDWELL. No; the act creating them fixes the payment
A
JOURNAL OF THE JOINT COMMISSION.
689
on the State of North Dakota. It becomes a part of the contract
of the purchaser, that he shall look to the State in which the in-
stitution is located, for payment of his bond.
Mr. SCOTT. I don't know how the other members of the
Commission feel, but it looks to me somewhat as follows: South
Dakota has the Yankton Asylum, the Reform School, the Peni-
tentiary, the Soldiers' Home, the Agricultural College, the School
of Mines, the University at Vermillion, the Normal Schools at
Madison and Spearfish, and the institutions in the North are the
Capitol at Bismarck, the Insane Asylum at Jamestown, the Uni-
versity at Grand Forks, and the Penitentiary at Bismarck. We
have thus four institutions to about twice as many in South Da-
kota, and yet it would seem that we are bonded for $433,000 and
South Dakota for $666,000. It occurs to me that we are getting
the worst of the bargain, if we get these institutions and assume
so much indebtedness.
Mr. CALDWELL. But you must remember that our institu-
tions are many of them much smaller than yours. You have one
with bonds a great deal larger than any one of ours-the James-
town Asylum, with bonds of $266,000.
Mr. SCOTT. What is the other property belonging to the
Territory which we have to divide?
Mr. CALDWELL. There is nothing but little driblets. There
are the books for distribution to the counties in the Secretary's
office, the Revised Laws, Session Laws, fittings and furnishings of
the general offices, the Railroad Commission, the general offices of
the Board of Health, the Adjutant General, the Superintendent
of Public Schools, and the Territorial Library. Of course, the
institutions are the big thing to be divided.
Mr. PURCELL. Your institutions, you say, are smaller?
Mr. CALDWELL. Yes; there is the Rapid City School of
Mines, which is only $33,000; the Plankinton Reform School, only
$30,000; the Spearfish Normal School, only $25,000; the Madison
Normal School is $44,100.
Mr. SPALDING. The bonds cover all that have been paid for
these institutions except the amounts referred to that have been
paid out of the general fund?
Mr. CALDWELL. Yes.
Mr. SPALDING. And that amount out of the general fund in
North Dakota has been $143,000 and in South Dakota $69,900?
44
690
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. The money for the Soldiers' Home was derived
from the sale of bonds?
Mr. CALDWELL. Yes; and there has been nothing done with
that institution yet.
Mr. SCOTT. Are there not other articles of property for us to
divide—the Militia appurtenances?
Mr. CALDWELL. I believe that those don't belong to the
Territory.
Mr. SCOTT. I presume that it will be necessary for us to agree
on some general basis. We cannot go into details until we get
some general understanding as to how we shall arrive at cur re-
sults. It is 5 o'clock now, and I don't presume the members of
either Commission are ready to vote on the matter.
Mr. CALDWELL. As I have been doing the chief part of the
talking I should like to hear from the gentlemen on the other side
as to how my suggestions strike them. Of course this is a merely
informal talk.
Mr. PURCELL. Speaking for myself, your experience in these
matters enables you to answer questions more rapidly and with
greater accuracy than any other member of the Commission. I
don't think that any member of the North Dakota Commission
has given much attention to the affairs of the Territory, so far as
its public institutions are concerned. Many of the matters you
have stated here were entirely new to me. Before we take any
vote or definite action on the matter I should like to be able to
inform myself thoroughly as to the appropriations for the build-
ings, and probably that is what every member of the North Da-
kota Commission would like to do.
Mr. GRIGGS. As I understand it you propose to take up each
institution by itself and dispose of it by itself.
Mr. CALDWELL. Agree on a general basis first as to what
we will do.
Mr. GRIGGS. Take up Yankton asylum, for instance, and
dispose of that and then take up another.
Mr. CALDWELL. It would dispose of all of them to make
that general provision that I have suggested.
Mr. GRIGGS. Yes, but there is a certain amount of money
that has been used out of the general fund of the Territory.
Mr. HARRIS. Yes, but they are willing to call that a stand-off.
Mr. CAMP. That proposition if it is accepted will settled a
great many questions, and it is one of exceedingly large impor-
JOURNAL OF THE JOINT COMMISSION.
691
tance, and one that we should not pass on without being sure of
our ground. I assume that it was hardly expected that we should
decide it to-day.
Mr. CALDWELL. No, certainly not. While I have been
speaking I wish it distinctly understood that I have been speak-
ing merely for one member of the South Dakota Commission, ex-
pecting that every member would express himself in regard to it.
Mr. KELLAM. As the Chairman has indicated, if such a plan
as has been suggested should be ultimately adopted it will dispose
of one of the largest items we have to deal with. Still, I want to
say for myself that these figures from Mr. CALDWELL are many of
them entirely new to me, and I would not want it to be understood
that this was a proposition we had discussed and agreed on. But
this thought had occurred to some of us, as doubtless it had oc-
curred to some of you, that as each institution had been entirely-
with perhaps a very small payment out of the general fund-had
been substantially built from the proceeds of bonds that are still
unpaid, and as the Legislature in authorizing the issuance of the
bonds, had in such cases, except one, provided that in case of
division the bonds should be assumed by that part of the Terri-
tory within which the institution was located, a very simple way
of disposing of this question and one that on the surface at least
looks fair, would be for each part of the Territory north and south,
to take the institutions within its borders and pay the bonds. By
so doing they would be simply building their own institutions. It
would be precisely as though South Dakota had built her institu-
tions and North Dakota hers. Each would have just the insti-
tutions it had built and paid for. I did not know of these pay-
ments out of the general fund. It is new to me. With what light
I had had on the subject and with what thought I had given it, it
had seemed to me that the Legislature had contemplated that would
be the simple effect-that North Dakota would take her institu-
tions and pay for them and South Dakota would do the same with
hers. If after an examination of this subject it should be found
that this was a fair way to dispose of these institutions and the
liabilities growing out of them, it will relieve us of a great deal of
work that might come to us if we started out and adopted some
other plan. I started out to say that this plan as outlined by Mr.
CALDWELL had not been agreed on by us, and it might be that all
of us would not agree with Mr. CALDWELL as to what was the best
692
JOURNAL OF THE JOINT COMMISSION.
way to get at this matter. Anyhow I think that it is a matter of
sufficient importance for us to take a little time to think it over.
Mr. HARRIS. To my mind we will get through with our la-
bors a good deal quicker if we take plenty of time to consider this
basis, and when we are satisfied we can go ahead. For myself I
have not had time to give this matter a great deal of thought.
We have all been busy with Convention matters and committee
work, and have had to give a great deal of time and attention to
them, and I think we had better give plenty of time to the consid-
eration of this question. When the basis is agreed on I think it
will not take us long to settle the details.
Mr. CALDWELL. I would say that I have gone through the
Auditor's report and just noted down the amount paid as shown
by the reports for each biennial period from 1880 to 1888. The
amount paid by Auditor's warrants for construction or improve-
ments or repairs or furnishing of the several institutions, and the
amount paid for maintenance-we just noted it in two columns,
and then we just added up what the reports of the Auditor showed
to have been the expenditures for this series of years, and then,
knowing what had been the bonded indebtedness of these institu-
tions, we subtracted the amount of the bonds from the amount
that had been paid, and found these balances of which I have
spoken-$143,000 more paid for North Dakota than is represented
by bonds, and $69,000 paid more for South Dakota institutions by
his warrants on the general fund or the bond fund. Of course it
is possible, though I don't see how it is possible, that some other
showing may be made, but where and how I don't see.
Mr. GRIGGS. You would not know of any other funds but
the bond fund and the general fund?
Mr. CALDWELL. There could not have been any other paid
by the Territory. There could not have been anything paid ex-
cept on the Auditor's warrant, and the Auditor's warrants show
these amounts as stated.
Mr. KELLAM. When we have decided upon our basis, we can
go to work. If we decide to adopt this plan it removes a good
deal of difficulty, and it makes our work a good deal shorter. For
that reason I would not feel like shortening the time for delibera-
tion over this question. Let this question be decided intelligently,
and if it is decided that this is a fair plan for both sides, we will
have comparatively little else to do. We should feel obliged if
you feel that you could have a session to-morrow afternoon. We
JOURNAL OF THE JOINT COMMISSION.
693
are away from home. We want to stay as long as may be neces-
sary to do this work carefully and deliberately, but at the same
time we would like to have an hour set for meeting to-morrow
afternoon.
Mr. HARRIS. If we can meet to-morrow afternoon we can
decide this preliminary question, but if we can't decide it then, we
can take more time. If we can possibly get at it then, it would be
well for us to do so.
Mr. PURCELL. I move that we adjourn till to-morrow at 3:30
in the afternoon.
The motion was seconded and carried.
THIRD DAY.
BISMARCK, Thursday, July 18, 1889.
The Commission was called to order at 3:30 p. m.
A. G. KELLAM in the chair.
Mr. KELLAM. When we adjourned yesterday, I think we
were informally discussing plans to see if we could agree upon
some starting point, or basis from which to work, in the division
of the property of the Territory, and particularly the institutions
of the Territory and the debts incident to them; and I suppose
unless some other course is indicated, perhaps it would be well
enough to take them up and dispose of them in some way.
Mr. CALDWELL. Owing to an error, which I had no oppor-
tunity for knowing, there was a very large bull in the figuring I
stated to the Commission yesterday. I stated here yesterday that
there had been paid for South Dakota institutions, for instance, on
account of bonds issued therefor, about $70,000, while there had
been paid to North Dakota institutions in excess, or bonds which
were issued, $143,000. The error arose from including in one of
the columns a very large account which had no business 'there, and
which arose in this manner: Looking over the figures we called
out the amounts and the gentleman who assisted me copying two
columns with reference to construction and with reference to
;
694
JOURNAL OF THE JOINT COMMISSION.
↓
maintenance in the construction column, a considerable item, which
thereby of course increased that amount. Further, there was in-
cluded also in the figures which I reported an account which was
subsequent to the date, the 30th of November, 1888. There were
including in the figures I stated, some other items that came in
after that time; and I would state that on a re-examination of
the figures, very carefully, shows that instead of there being, as I
stated yesterday some $73,000 difference between the excess of
construction of value and the bond value, and between the two
States, that the excess is only about $3,000. That is to say that
up to the 30th day of November, 1888, the North Dakota institu-
tions had had for construction purposes about $3,000 more than
the South. The difference between the construction cost and the
bonds issued is about $3,000 in favor of North Dakota. I make
this as a personal statement. Of course the gentlemen will under-
stand I have no purpose in misleading anybody. I had gone to
work, compiled these figures, and at the time I made the state-
ment I believed it to be correct.
Mr. PURCELL. Your investigation was made with reference
to appropriations made to the different parts of the Territory, that
would go to make up the permanent property of the institutions-
permanent improvements?
Mr. CALDWELL. Yes, sir.
Mr. PURCELL. Is it your understanding that the direct ap-
propriations made for permanent improvements to North Dakota,
not counting the bonded indebtedness, in excess of those to South
Dakota is $3,000?
Mr. CALDWELL. No, sir; 1 meant the excess of the
amounts that is, you will take and charge against North Dakota
the total amount paid from any source whatever for public im-
improvements; you will then subtract from that the total amount
provided by bonds, and that subtraction or amount, the remain-
der, would indicate what had been paid out of the general fund.
The same way, if you take the institutions of South Dakota; and
these amounts paid upon these institutions out of the general fund
for South Dakota and North Dakota, the total will be about $3,000
more for North Dakota than South Dakota.
Mr. HARRIS. There is a bond fund still there-that has not
all been used?
Mr. CALDWELL. No, it was not all used the 30th of No-
vember, 1888.
JOURNAL OF THE JOINT COMMISSION.
695
Mr. HARRIS. There was, say, $100,000 bonds of real estate
sold for the Insane Hospital at Yankton; there was only $75,000
worth of them used; there has been out of the general fund appro-
priated so many dollars to that institution-$25,000 say; there is
a bond fund and a general fund, $125,000; now, if you subtract
your $100,000 worth of bonds from that, it is not going to
give-
Mr. CALDWELL. No; that is the statement I made yester-
day, only to the 30th of November, 1888.
Mr. CAMP. Then, there is a good amount of premium on
bonds.
Mr. KELLAM. If there is an unexpended balance of the
Yankton Insane Asylum of $25,000 and South Dakota takes the
asylum and assumes the indebtedness, of course, it would take
the unexpended balance. So with the North Dakota institution;
it would assume the indebtedness-assume the payment of the
bonds that belonged to it; but if there was still an unexpended
balance in the Treasury arising from the sale of any appropria-
tion, of course, that institution would take and have the unex-
pended balance. That would be my idea.
Mr. HARRIS. If there had been $100,000 bonds sold for
$100,000; $75,000 bond fund paid in that institution, and $25,000
of general fund paid would make $100,000 paid into that institu-
tion; if you take the amount of bonds from the whole amount
paid there is a difference of $25,000 remaining to that institution
that you propose to turn over to them.
Mr. PURCELL. Upon the basis suggested by Mr. CALDWELL,
I have made some investigation and if you will permit me for a
moment I will give you the benefit of my research. For instance,
these are taken in many instances from the Session Laws. Take
the Sioux Falls Penitentiary first; chapter twenty-three, Session
Laws of 1881, makes an appropriation for office furniture,
stoves, fuel, lights, incidental expenses of the prison including nec-
essary traveling expenses, of $7,000. That shows on the Treasurer's
books. It is difficult to separate that item or to show just what
part of it was expended for furniture for the office, stoves, lights,
etc. It is very difficult-it cannot be done from the Treasurer's
books as I understand it. Session Laws of 1883, there was an
appropriation made of $2,500 for farming implements, temporary
stables for that institution; for temporary yard walls, $1,500; fur-
nishing residence of warden, $1,000; making in all that year for
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JOURNAL OF THE JOINT COMMISSION.
that institution, $12,000. For the hospital at Yankton 1879, to
Governor Howard for money advanced by him in the erection of
the hospital, $2,386.30. Chapter three of the laws of 1879 to com-
plete buildings, $3,900. For erection of prison walls, $10,000;
for repairs and improvements in 1881, $1,500; for improvements
on farm, $2,500. Chapter five, Session Laws of 1883-appropriation
for repairs and improvements, $2,500; improvements of farm, $3,000,
improving grounds, $1,000. Chapter nine, Session Laws of 1885;
for repairs and improvements for hospital, $2,500; for improvement
of hospital farm, $3,000; for improving hospital grounds, $2,500;
for completing and furnishing building, $3,250; for building ice
houses, extension of barn, slaughter house, root and hen house,
fitting basement for the amusement of patients, $4,000; for pur-
chase of teams and conveyance of patients, $700; for improving
sewerage, $1,500; by amount due contractors, $520, making in all
$44,756.30 amount of appropriations made for direct improvements
which are not represented by the bond-the bonded indebtedness
of that institution $210,000.
Take the University of Vermillion: Appropriations made in
the year 1883 for apparatus, $1,000; for improving grounds, $500;
for the year 1885 appropriations as follows: Library, $1,000; for
apparatus, $1,000; for dormitory and water works, $10,000; for the
year 1887-apparatus, $3,000; for library, $1,000; for heating and
furnishing east wing of University, $1,000; making in all $18,500
for the University of Vermillion besides the bonded indebtedness.
The Agricultural College, I presume, is at Brookings. In 1887
there was appropriated for apparatus and mathematical instru-
ments, $400; for wells, cisterns, water tank and steam power pump,
$1,800; for steam heating appliances for 1885 and 1886, $1,996; for
material and labor furnished on the third story of the young ladies'
dormitory, $1,059; making in all $5,255 of direct appropriations for
the Agricultural College, besides the bonded indebtedness, $97,500.
The Madison Normal School: In 1885 an appropriation for suita-
ble buildings of $5,000; for library in 1887 of $500; making direct
appropriations of $5,500 besides the bonded indebtedness of $49,-
400. The Normal School at Spearfish appropriation in 1883 for
for suitable buildings, $5,000; in 1887, library apparatus, $800; in
addition to the bonded indebtedness of $25,000. Take the School
of Mines for fuel and light, apparatus and 'furniture, there was
appropriated $2,500. For the year 1887 there was appropriated
for water works, electricity, library, fuel, $3,000.
JOURNAL OF THE JOINT COMMISSION.
697
It is difficult, as I stated with reference to the items, to separate
what part of this item was furniture; what part for water-works,
and how much for library.
The Deaf and Dumb Asylum, during the year 1881, appropri-
ation for the purpose of building $2,000, has a bonded indebted-
ness of $51,000. There was appropriated for the Reform School,
in 1887, $12,000 for current and contingent expenses; and the law
provided, at the time this appropriation was made, that this
amount should be expended as the trustees of that institution saw
fit. We are unable to find just what proportion of that fund
was used for permanent improvements.
The whole amount of direct appropriations made, taking into
consideration those items which we were unable to separate, South
Dakota has received $99,311.30 of direct appropriations for her
institutions other than that which is expressed by the bonds. I
desire to say the $12,000 I spoke of is not included in this $99,-
311.30. The Reform School I did not include.
The North Dakota public institutions have received the follow-
ing direct appropriations:
Insane Hospital, 1885, for repairs and improvements, $2,500; for
improvement of Hospital farm, $3,000; for improving grounds,
$1,000; for farm stock, horses, cows, hogs and fowl, $2,000; for
farm implements, $1,000; purchasing team and conveyance for
patients, $700. In 1887, received appropriation for repairs and
improvements, $3,000; for musical instruments for amusement of
patients, $2,500; finishing basement, $2,500; for pig pens, hennery,
etc., $800; for elevators, $850; for storm windows, porches, etc.,
$1,500; for machinery and tools for shops, $800; making in all
$23,150 of direct appropriations, besides the bonded indebtedness
of $266,000.
The Bismarck Penitentiary, in 1885, received for team and
tools, $1,214; it has a bonded indebtedness of $93,600.
The North Dakota University for 1883: appropriation for ap-
paratus, $1,000; improving grounds, $400; in 1885 for laying water
mains, $10,000; in 1887 for natural science, chemical and physical
apparatus, $3,000; for museum, $2,000; for library, $2,000; making
in all $18,400 that the North Dakota University received of direct
appropriations. The whole amount which those three institutions
have received of direct appropriations, is $42,764. In that I have
not included the $2,224.40 which has been expended for furniture,
etc., in this building here; if that was included it would amount
45
698
JOURNAL OF THE JOINT COMMISSION.
to $64,988.40, as against those received in South Dakota of $99,-
311.30.
Mr. NEILL. Are those the actual amounts drawn out of the
Treasury?
Mr. PURCELL. They are the amounts appropriated by the
law and I think have been applied.
Mr. NEILL. May and may not.
Mr. PURCELL. Of course, in addition to these there should
be due to the different instituitons any appropriations made last
year not paid to them, up to the present time, or such a time as
we agree upon. This investigation was made entirely upon the
basis talked.
Mr. KELLAM. I understand there are several items you are
unable to separate?
Mr. PURCELL. There are three; one of the Sioux Falls Pen-
itentiary, for stoves, fuel, light, incidental expenses of the prison,
pay of contractors and traveling expenses of $7,000; that is one.
Then there are two others one of $2,500, and the $3,000 more ap-
propriated to the School of Mines for electricity, water works,
fuel, light, etc., which of course we are unable to separate at
present. Then I desire to say that we are entitled to a reduction
in North Dakota from the amount of the $7,000 coming back from
the Penitentiary at Bismarck and the Asylum.
Mr. SPALDING. Is not there one item in the Insane Asylum
at Jamestown which is in the same uncertain conditions as those
mentioned in South Dakota, covering appropriations for the pur-
chase of musical instruments for the amusement of patients?
That is one of the items we have been unable to separate.
Mr. CALDWELL. I would say in reference to the figures.
which have been reported by me as correct, that it is at least to be
supposed that the expenditures of the Territory for any purpose
are to be found in the reports of the Auditor's office of the Terri-
tory. There is no other way by which money, even if it may have
been appropriated by the Legislature, could get out of the Terri-
torial Treasury. The only way it could be obtained is by the
warrant of the Auditor, and I have here the reports of the Audi-
tor of 1880, November 30, coming up to November 30, 1888. In
each of these reports the officers give a summary of the expendi-
tures for such purpose as he has drawn warrants; and accepting
it as a fact that money for any of these purposes in construction
or maintenance, or for any other purpose indicated, by any of
JOURNAL OF THE JOINT COMMISSION.
699
these institutions could only have been by the Auditor's warrant,
I submit that these reports should show actually what has been
expended.
Mr. HARRIS. Will that show
Mr. CALDWELL. We will take the Auditor's report for the
biennial period ending November 30, 1882. He says in here, "as
provided by law and in compliance therewith, I have the honor to
submit herewith report of transactions of this office from Novem-
ber 30, 1880, to November 30, 1882." Gives the total amount of
warrants issued, so much and upon the following accounts. And
then, furthermore, this volume contains the details of these ex-
penditures, both the running account of the warrants drawn, ar-
ranged with reference to their sequence by number, and, also,
account with each of the respective institutions, and the objects
for which money could be drawn from the Treasury. And, I say,
taking that statement there, and I have checked opposite each
item the letter "C" to indicate that it went into the construction
account, have taken up the report for the period ending Novem-
ber 30, 1882. Following that is the report given here, ending
November 30, 1884, noting the amounts actually expended, and,
of course, there could not have been any expended otherwise.
Take the amounts reported by the Treasurer having been expended
during the period between November 30, 1882, and November 30,
1884. Then, also, take up the Auditor's report for the period end-
ing November 30, 1886, and I find here a summarized statement
of the expenditures which were probably charged against the Ter-
ritorial Treasury; and taking up then the report of the Auditor
for the succeeding biennial period in November, 1888, which is
the last report issued. Taking those various items it makes
an expenditure of $464,199.44 on behalf of the construction of
institutions in North
North Dakota; or improvements which
might be properly charged as connected therewith-repairs
and improvements. As I say, the amount for such items is $464,-
199.44. That includes, as I say, the source from which the money
was derived against which the Auditor should draw his warrant;
could have been from bond or general fund, as there is nothing in
his report to indicate the difference. He would head his books
to each institution for such money as had been appropriated by
the Legislature, regardless of where it came from. The Legisla-
ture not only was required to provide for the issue of bonds for a
particular institution, but it was also required to appropriate the
700
JOURNAL OF THE JOINT COMMISSION.
proceeds thereof; and when the proceeds were appropriated they
became, so far as the Auditor's office was concerned, the general
fund of the Territory, and against the general fund the Auditor
was to draw his warrant. He would, of course, indicate upon his
warrant the fund to which it was to be charged by the Treasurer,
but whether the money came as the proceeds of bonds or whether
it came as the ordinary revenue of the Territory, his warrant
would not indicate that fact. If his warrant would indicate, say
that the Treasurer was to pay this amount, and the Treasurer
could not pay any amount, he could
could not pay it in
any other manner. I say all these various warrants of
the Auditor for these various appropriations indicate
that the construction of these several institutions, the total
amount for North Dakota to be $464,199.44, and the total amount
for South Dakota institutions, $694,812.39. If, now from this total
expenditure by warrants of the Auditor, if from that there be
subtracted the bonded indebtedness incurred by the Territory on
behalf of the institutions of North Dakota, that bonded indebted-
ness, $433,600 up to the time that this account came down to,
there would be left as having been appropriated on behalf of
North Dakota institutions from the general funds of the Territory,
$30,599.44; and if there be subtracted from the total expenditures.
for construction in South Dakota the amount of bonds issued for
South Dakota institutions the remainder would be $27,612-a dif-
ference of about $3,000. As it would seem to me what has been
paid out by this Territory is the record, and that officer of the
Territory whose business it is to report exactly what his warrants
have been drawn for and what the object has been, that the pre-
sumption is of course that they have been paid.
Mr. HARRIS. What would be done with unexpended balances?
Mr. CALDWELL. They would go with the institution.
Mr. HARRIS. Take the Insane Hospital at Yankton: I think
there was a large unexpended balance the 30th of last November.
If there were $100,000 of bonds sold for $100,000 in cash and that
went into the Treasury, and when $75,000 had been paid out, and
there also had been appropriated out of the general fund $25,000
it would only show on the Auditor's books $100,000; and when you
subtract that $100,000 bonds from that there would be nothing
left, while there would still be $25,000 in the Treasury owing to
the Yankton Insane Asylum, which would be a discrepancy of
$25,000.
JOURNAL OF THE JOINT COMMISSION.
701
Mr. CALDWELL. There are several balances. Here is $7,000
balance I believe direct appropriations for the Jamestown Asy-
lum.
Mr. CAMP. We were merely testing the accuracy of your re-
ports.
Mr. CALDWELL. I give the bonds accurately reported by
the Auditor.
Mr. CAMP. Then we want the amount not represented by
bonds. The result is $50,000 out of the way.
Mr. CALDWELL. I was going to say there was a considerable
amount of bond balances in the Treasury for institutions.
Mr. CAMP. We were merely testing the accuracy of your
figures.
Mr. PURCELL. In the South you have ten while in the North
we have four. Now you will get ten institutions and we four.
You will only assume about $200,000 more of debt than we are
and you are getting these institutions for $200,000.
Mr. KELLAM. It must be their cost.
Mr. PURCELL. If you take the cost, it will reach nearly
$400,000.
Mr. KELLAM. I think this is the very thing we are trying to
get at.
Mr. HARRIS. If there is $100,000 sold for this institution,
$25,000 taken out of the general fund, the $25,000 that remains
in the treasury, if you will add that to the amount expended and
then subtract the bonds, you will find it makes a difference of
$75,000.
Mr. CALDWELL. My statement comes up to the last biennial
statement issued by the Territorial officer.
Mr. HARRIS. That will not make a particle of difference in
the argument.
Mr. SCOTT. What is the matter with our figures? If it is a
fact, and I believe it is, that the Treasurer has charged up or
credited the institution with the amount of each appropriation,
and that the balance up to that time, to which Mr. CALDWELL
refers, shows that all those appropriations have been paid, is it not
a fact, nevertheless, then, that there has been paid out of the gen-
eral fund the amount which we have shown by this statement? Is
it not a fact, then, that there has been appropriated to the South
Dakota institutions so much more than to the North out of the
general fund; and, as Mr. HARRIS just suggested, if that money
702
JOURNAL OF THE JOINT COMMISSION.
has been spent, there is still a credit to the institution, and by the
terms, to be turned over to the institution as unexpended
balances.
Of
Mr. SPALDING. It seems to me a very simple matter.
course, such as are taken from the reports of the appropriations
made by the Legislature are correct, which can be rightly ascer-
tained. If there are any satisfactory to you and others are not,
part of these funds left in the Treasury, it seems to me all there
is to do is to examine the books and see whether this is true or
not, and deduct it from the figures Mr. PURCELL has presented.
Mr. CALDWELL. Of course, if it be the desire to go into all
those details which are indicated, and if that be fixed as the basis,
so far as I am concerned I am perfectly willing with the exception
that I should dislike to be detained here for a month or the time
which it would involve. Now, for instance, just as a matter—
with regard to the figures presented by Mr. PURCELL. He has
charged against an institution in South Dakota, I believe it is the
Sioux Falls Penitentiary, $10,000 which was never expended.
And I maintain that the reports of the Auditor show what have
been the expenditures, and it is the proper, readiest and most
equitable method of determining the matter.
Mr. SCOTT. Would not the Treasurer's books show what be-
came of that $10,000?
Mr. CALDWELL. There never was anything come of it.
Mr. SPALDING. Then the Treasurer's books would show that
was still on hand.
Mr. CALDWELL. Yesterday, when I believed as firmly as I
would believe anything that there was a difference of $73,000 in
favor of North Dakota, and which conclusion I had arrived at by
an error, I was still willing, so far as I was concerned, to make a
settlement by a broad general basis. To go upon a basis of going
into all these details is to go upon a basis which cannot be demon-
strated how far any particular expense, and as I say, I maintain
that the actual expenditures of the Territory are the proper and
just and equitable basis upon which to determine how much of the
public fund has gone into those institutions.
Mr. PURCELL. Yesterday when we were talking about a
basis the Commission will recollect, we were taking into considera-
tion appropriations made for permanent improvements, for re-
pairs and for betterments connected with the institutions. When
Mr. CALDWELL made his statement that the institutions of North
JOURNAL OF THE JOINT COMMISSION.
703
sur-
Dakota had received $73,000 more appropriations for permanent
improvements than South Dakota, I was somewhat
prised, because the institutions of South Dakota were
formed, managed and had been running two or three years and
some five years prior to the location and erection of any institu-
tion in North Dakota. Now, the institutions in North Dakota have
been running, some since 1883, some since 1885, one, 1887, so
the institutions in North Dakota have not existed as long as the
institutions in South Dakota. And therefore, when that state-
ment was made, I commenced, with others, to investigate that
statement, and found it was incorrect. And the basis he stated
this Commission to settle upon was incorrect. So far as we are
concerned in the North, we are willing to consider each, as I said
before, that the basis of this settlement shall be upon the appro-
priations received for building, repairs and permanent improve-
ments. Now, it won't require any great length of time to ascer-
tain, either from the books of the Auditor or the Treasurer, in
connection with the present, that have been made by the different
Legislatures, the amounts appropriated and the amounts that have
been paid. I don't know of any institution either in North or
South Dakota, with one exception, that has failed to eat up its ap-
propriation. So it seems to me there can be no delay in this mat-
ter by standing upon the basis that Mr. Caldwell has announced,
and investigate the amounts.
Mr. HARRIS. It will not take half so long to take the Session
Laws as it would to go on with this discussion about warrants.
Mr. CALDWELL. I have done both things. That is, I
undertook to that is go by the appropriations, and it was per-
sonally known to me there had not been an expenditure of the
money appropriated; and it was known to me that when you did get
an appropriation it didn't indicate what the respective institution
had cost the Territory, so I went to work for the purpose of dis-
covering precisely what they have cost the Territory; and that is
shown exactly down to the penny by these reports of which I
speak.
Mr. CAMP. The gentleman who spoke last gives a statement
that the amount of bonded indebtedness of North Dakota institu-
tions is about $433,000; the total amount expended about $466,000;
that leaves a balance of about $33,000 which would indicate by his
way of figuring it, the amount of direct appropriations to those
institutions. Now, the amount of direct appropriations made by
704
JOURNAL OF THE JOINT COMMISSION.
the Legislature for permanent improvements is, including the
$22,000 which he includes, $60,000. Now, I don't think any gen-
tleman present will believe for a moment that the three institu-
tions of North Dakota have left unexpended balances of general
appropriations to the amount of $33,000 in the Treasury or any-
thing like it. I believe the statement shows that there is a
mistake, that there is an error in figuring from the Auditor's
reports. I have not the slightest doubt that a man
can go to work and from the Auditor's reports find out
just what amounts have been expended from the general
appropriations for improvements and construction; but it takes a
very careful examination to do it, for the reason that you must
figure up the premium on bonds; you must know just what bal-
ances from the bonds are remaining on hand. It would have to
come out, as Mr. HARRIS stated. Supposing bonds issued for
$50,000, and they sell at a premium of $2,000; there is $52,000.
Then, there is a general appropriation made for running and perma-
nent improvements of $500. Well, take up the Auditor's reports and
it shows the list of warrants issued for construction and perma-
nent improvements on that institution of $52,500. Mr. CALDWELL
subtracts the bonds from that and it leaves $2,500, amount appro-
priated for that institution out of the general fund. It is abso-
lutely wrong, because if the general appropriation has been used
up, the balance in the treasury, when South Dakota assumes that
institution, it is entitled to. I believe it is a very hard task to
obtain from the Auditor's reports the exact amount appropriated
and expended for those institutions out of the general fund.
·
Mr. KELLAM. I came to discharge this work, perhaps, as
poorly qualified with experience with public institutions - what
they had cost and what would be a fair and reasonable settlement
between the two sections of Dakota with reference to them
as per-
haps any man in either of these Commissions-in either part of this
Joint Commission. I had a general idea and I still have it, as I ex-
pressed at the opening of the work of this Commission, that the
only way in which we can arrive at a satisfactory settlement and
possibly a settlement at all, is to do it in a general way without
any effort upon the part of either side to be mathematically cor-
rect in all results. You know if we are to figure the exact cost of
each one of these institutions and then turn it over to the new
state within whose boundaries it is located, then to be fair we must
make an inventory of the value of that property when it is so
JOURNAL OF THE JOINT COMMISSION.
705
turned over. The institutions of South Dakota, as stated by Mr.
PURCELL, have been running many years, have served the entire
Territory. Of course, it is a fact that all understand, one as well
as another, that the longer a building stands, the older it is in the
ordinary way, it will depreciate. Now if we are to make a mathe-
matical investigation of exactly what each one of these institu-
tions has cost, and make that a basis upon which to settle these
matters, then must we not further go into the work of inventory-
ing the valuation of these institutions, how much each one has
depreciated by the use which it has been put to for the benefit
of the entire Territory? Of course, each section has had
some use of these institutions. Then to go still farther,
would it not be necessary to make exactly a
mathematically correct disposition of this matter, to
see where the taxes came from that paid for these institutions. I
only suggest this in a general way, and if it involves the labor of
a week, we have come here to do it; or three months, we have come
here to do it. There is nothing for us to do except to agree upon
some plan and go to work and do that and get at the end. But
my judgment is I have not got a head for figures. The only way
we can avoid differences that will be, as they seem to me now well
nigh unsurmountable, will be in a general way, honorable to both
sides and fair to both sides, if we can conclude what it is, and dis-
pose of these institutions and the debts that are upon them. I just
came here with the idea that the appropriations from the general
fund for the construction of these institutions would be in favor
of South Dakota; that there had been more taken out of the gen-
eral fund for the construction of South Dakota institutions than
for North Dakota institutions. I had no idea how much. But
I think all these years when the South Dakota institutions were
the only institutions in the Territory and were serving the pur-
pose of the entire Territory that they greatly depreciated in value
and were not worth so much; that it would be fair to let South
Dakota take its institutions, pay its bonds; and North Dakota
take its institutions and pay its bonds. I don't mean to
say I think this is fair towards either State, but I came here with
that in my mind, that a general broad gauge way of disposing of
this question would be fair for both States.
Mr. PURCELL. It is true, as you have suggested, that prior
to the erection of public institutions in North Dakota the whole.
Territory had a right to the use of the buildings erected in the
706
JOURNAL OF THE JOINT COMMISSION.
South; but the basis upon which we figure-we don't figure the
appropriations made to maintain those institutions, and, therefore
the use of the institution during the time it has been a Territory
is not taken into consideration, for the reason that the whole Ter-
ritory contributed towards the maintenance. Now, as to the de-
preciation in value of these institutions. This has been indica-
ted by the basis upon which Mr. CALDWELL suggested, because
each year the Legislature has made appropriations for repairs,
and therefore it is presumed the institutions are in as good con-
dition to-day as when originally built, for the reason that when-
ever there has been a defect, application has been made to the
Legislature, and it is for that purpose that the appropriation
covering repairs has been made. It is true that the appropria-
tions vastly exceed those made in the South to those made in
North Dakota institutions, but we have not taken that; we have
figured from the basis Mr. CALDWELL suggested going for per-
manent improvements. And, therefore, if the appropriations
made for improvements, and those appropriations were used in
this respect, it is presumed the institutions are in as good condi-
tion to-day as when originally built.
Mr. KELLAM. Would you think this is true, with your knowl-
edge, that a building of say ten years is as good as a new building?
Mr. PURCELL. Not as a general statement.
Mr. KELLAM. And many of these items charged against
South Dakota are for repairs?
Mr. PURCELL. Yes.
Mr. KELLAM. Now you ask us to take the buildings at the
original cost and pay for the repairs.
Mr. MCGILLYCUDDY. It is a fact, Mr. PURCELL, there are a
few of these buildings in Dakota built five years ago, and you can
build the same for 25 per cent. less.
Mr. KELLAM. I think that your suggestion, Mr. PURCELL, is
perhaps, to make us pay what the buildings originally cost, and
then when I suggest depreciation, you say that the appropriations
from the general fund have kept up the repairs.
Mr. PURCELL. These institutions have had appliances, ap-
paratus, etc., and it has therefore been continually increasing, and
I would make a general proposition now, that there are not one of
your institutions in South Dakota, or in the North, but what is
worth more to-day than when originally built, because the repairs
and improvements made enhance its value.
JOURNAL OF THE JOINT COMMISSION.
707
Mr. KELLAM. On that question I could not express an in-
telligent answer. I am not near any of these institutions, and
know nothing about them only in a general way, that buildings by
their use do depreciate, and that these buildings up to this time-
that these institutions are the institutions of the entire Territory,
and each section has the equal use of them. Now if we take
these institutions at what they cost, the party taking the older in-
stitutions will suffer most.
Mr. PURCELL. Your institutions are not very aged. The
appropriations for Sioux Falls Penitentiary were made in 1881,
some in 1876; Hospital for Insane, 1879, in 1881 and 1883; and
your University at Vermillion in 1883; Agricultural College in
1887. So a great many of them have been recent.
Mr. KELLAM. But of course we all know that upon a build-
ing costing $100,000 the percentage of depreciation would have
to be very small to make a difference of ten, fifteen or twenty
thousand dollars; that in case of a dwelling house or a business
house of any kind, that there is a certain depreciation.
Mr. PURCELL. Of course we did not take into consideration
the amount of labor performed, and I understand there has been
fifteen or twenty thousand dollars performed of that work by the
prisoners alone, that don't show. You have got the benefit of that.
Mr. KELLAM. This discussion, gentlemen, only fortifies me
in the thought that if we undertake to start ourselves over this
thing I cannot tell how long it will take to settle. I still believe
that the right way to get at this thing is to do it in a broad gauge
way.
Mr. HARRIS. South Dakota has had much the largest use of
them and North Dakota paid half the taxes.
Mr. KELLAM. We would have to go into that also. I can
see very plainly that South Dakota may have had greater appro-
priations; that would be very proper to be considered; then where
did the money come from that started these institutions? I don't
know where the balance lies. I don't know in whose favor or to
whose disadvantage this would be, but I can see, I think, that
the complication would be intricate and one thing lead to an-
other.
Mr. HARRIS. I don't think there is a man in the room who
wants to go into that business-I don't think there is one of us
wants to go into that. It has been brought out in the informal
discussion of this question and the methods by which it could be
708
JOURNAL OF THE JOINT COMMISSION.
done. We take exception, of course, to Mr. CALDWELL's method,
and I think justly so to another method.
Mr. KELLAM. I want to say now that, as I intimated when I
came here, and until Mr. CALDWELL suggested those figures, I sup-
posed there had been more money used out of the general fund
for South Dakota than for North Dakota. When Mr. CALDWELL
made that suggestion of figures they surprised me, and I can see
now very readily how he may have made the error. I was much
surprised, because I supposed the fact was directly to the contrary.
Mr. NEILL. Mr. KELLAM's proposition was one of his own,
and it was not the deliberate expression of the South Dakota
Commission. It has occurred to some of us of the South Dakota
Commission, and a great many others and to our Constitutional Con-
vention, that the institutions being placed where they were, each
State would be expected to assume its own proportion to the value
received. Now a proposition was made something like this: That
each state assume its own institutions for the debt upon it. Then
there came in a very awkward matter of general appropriations,
there being the debt as represented by the bonds issued to pay
for those institutions. Now to deduct the amount of bonds in the
case of each institution from the total cost, was not, I don't think,
in Mr. CALDWELL's mind or in any of the rest of us to presume
that all the bond money had been used in the construction of
these institutions, etc. I simply entertained that proposition
hoping he was simply drawing that balance to show that we were
paying full value for the amount of bonds we were assuming, or
in other words, to show the actual cost of these institutions or the
actual worth of them to each State respectively. With regard to
what the unexpended balances were, he took that method to show
the cost and worth of these institutions to each State, because ap-
propriations may have been made here by the Legislature at differ-
ent times, and having been made they have never been supplied,
and our only method of determining the actual cost of these build-
ings was by resorting to the warrants actually issued and paid.
The statement we find in the Auditor's and Treasurer's reports.
Now, the general principle of settlement remains the same. It
seems to me fair and will avoid a great deal of work.
Mr. SCOTT. Mr. CALDWELL says further--we have bonded
our institutions for $100,000. We have not used the proceeds of
those bonds, and we get, say $25,000 from the Territory. Now
we have got $25,000 balance due us on our bonded indebtedness,
JOURNAL OF THE JOINT COMMISSION.
709
and we have that $25,000 turned over to us, when you have really
got the institution, which is worth $100,000, and which has cost us
$25,000 out of the general treasury, and yet you want the $25,000
surplus. Now, there is where it seems to me an error comes in on
the basis of Mr. CALDWELL'S figuring. Now, in addition to these un-
expected balances, if there had been any appropriations the Treas-
urer's books show a credit of the amount appropriated; and if it
has been used, has the appropriation been charged off, or does it
still stand as a credit to the institution?
Mr. SPALDING. I was going to remark we were here to set-
tle this as we would do our own business. Now, my idea was, the
first thing for us to determine before entering into the calculation
of the actual worth of any of these institutions—we don't know
where the figures would fall-we should settle our basis. But we
have branched into the cost of these institutions, and our argu-
ments and our judgments seem to be more or less prejudiced.
And it seems to me that the amounts are so great and the difference
may be so great that the only way we can do is to figure on the
value; that the only way we can base an estimate of what
any of these institutions are worth will be presumably
correct, as near as we can hope to arrive at, by
figuring what they cost. If there have been frauds in South Da-
kota, there have been frauds in North Dakota. If there are any
items we cannot determine accurately, any appropriations we can-
not determine exactly what they were used for, if there are any
in South Dakota, there are also some in North Dakota. They are
only small amounts anyway. We can arrive nearly, it seems to
me, and the only way, it seems to me, inasmuch as there are bonds
outstanding, to strike a balance. Now in regard to the age of the
institutions: They are all new institutions-the depreciation in
value is very smali-none over eight years old. It can be but a
small depreciation in value; and when we get down to that basis,
it seems to me about as far as we can go. I believe that if we
were to go further it would show a vastly greater difference in
favor of North Dakota than it may show now; but my idea would
be not to follow it, for when we get the cost of an institution we
have gone as far as anybody can expect us to do. Let it go at
that.
Mr. CALDWELL. I was going to say in regard to the Treas-
urer's books, that there are simply two divisions of the funds of
the Territory upon the Treasurer's books, one bond account and
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JOURNAL OF THE JOINT COMMISSION.
the other general fund account. So it would be impossible to tell
by an examination of the Treasurer's books as to the condition of
these especial appropriations. The only way that can be deter-
mined is from the Auditor's books. The Auditor reports to the
Legislature biennially the transactions of this office-gives in one
part of his reports simply the warrants with the date and amount
included under the heads as fixed in the appropriation bills. Then
he continues his report with a general statement regarding that
matter, the general summary; in that he groups the titles of these
various items, as Agricultural College, construction, $21,673.12-for
the period ending November 30th, 1884. And, Hospital for Insane,
$3,666.20, etc. Hospital improvements, $2,463.57.
Mr. SCOTT. Does it show whether that was paid out of the
bond account or whether there was an appropriation?
Mr. CALDWELL. No, sir.
Mr. SCOTT. Does it show in any place?
Mr. CALDWELL. It would show probably a credit by bonds.
in the detail account.
Mr. PRICE. It occurs to me that we have been fruitful of only
one thing, and that is, mere talk. It also occurs to me, from senti-
ments expressed by the Joint Commission, that there is only one
way to arrive at a proper solution of the question. The gentle-
men from North Dakota present one statement; Mr. CALDWELL,
from the South, presents another statement. There is a wide dif-
ference apparently in these two statements as to the value of the
public institutions, bonded indebtedness and cost of construction.
Until we arrive at some definite conclusion as to what these insti-
tutions have cost, and the amount of bonds issued for the purpose
of construction and as expended from the general fund, we
perhaps can go on talking till "Gabriel blows his horn" and we
will effect nothing. I am of the opinion, gentlemen, that there is
but little difference in these figures, and I have watched the state-
ments carefully. I know, personally, some things included in the
statement made by the gentlemen from the other side are erron-
eous. The $10,000 appropriation which has been referred to has
never been expended. There are other matters that have not been
expended. I want to move you, Mr. CHAIRMAN, that the Secretar-
ies of this Commission be instructed to prepare, jointly, a report
of the amount of bonds issued for each public institution in Da-
kota, the amount appropriated out of the general fund; and, also,
JOURNAL OF THE JOINT COMMISSION.
711
?
unexpended balances in favor of such institutions, and report to
this Convention at its next session.
Mr. SPALDING. I second the motion.
Mr. KELLAM. The question is upon the motion of Judge
PRICE. Are you ready for the question?
"Question; Question!"
Mr. KELLAM. Your motion is that the Secretaries of this
Joint Commission prepare a statement and report to this Commis-
sion at its next session, giving the amount of bonds issued for
each public institution in Dakota, and the amount of money ex-
pended or appropriated out of the general fund.
Mr. SCOTT. To what date?
Mr. HARRIS. Including the the Legislature of 1889.
Mr. CALDWELL. These unexpended balances bring it up to
about the 12th of March.
Mr. HARRIS. Let them get everything except the Legisla-
ture of 1889. It states, the "Secretaries;" as you said, the “Sec-
retaries."
Mr. KELLAM. I presume Mr. HAYDEN is familiar with the
books, and MCCLAREN, also.
Mr. HARRIS. The appropriation will show just what it was
for.
Mr. CALDWELL. It would be as Mr. PURCELL said; and
there are some there it would be impossible to tell what part of it
had been used unless we could get the warrant and examine the
vouchers; and to do that, if we have a session to-morrow, these
Secretaries will not be anywise near ready to report.
Mr. HARRIS. I think we can knock them out without any
trouble. Appropriations made and expended for maintenance
Mr. CALDWELL. You can't tell whether some are for ordi-
nary supplies—you can't tell whether it is for paying a company
for so many gallons, or per diem, or for meat, or pies, or for hy-
drants, etc., for the institution.
Mr. SPALDING. We want some of those things.
Mr. HARRIS. Those things we cannot determine we can wipe
out.
Mr. KELLAM. The question is upon the motion of Judge
PRICE. All in favor of the motion say aye; contray, no.
Mr. KELLAM. The motion prevails.
Mr. HARRIS. I move we adjourn.
Mr. KELLAM. Before the motion is put I want to say a word
712
JOURNAL OF THE JOINT COMMISSION.
very carefully in behalf of our own Commission. Two or three
thoughts have occurred to me with reference to facilitating our
work. We know we have been getting along slowly. We, of
course, have come to stay, but we want to get away as soon as we
can with due regard to this work, and if you gentlemen can ar-
range amongst yourselves for a longer session, or fix it in some
way so as to give to this work as many hours as is possible, con-
sistently with your duties above, I think it would oblige the Con-
stitutional Conventions and both parties of this Joint Commis-
sion.
Mr. CAMP. I can meet in the morning or at night.
Mr. KELLAM. I was going to say, your Constitutional Con-
vention only meets in the afternoon; in the future after we have the
report of these Secretaries and a starting point, then, as far as you
gentlemen can arrange to give us hours we will be obliged to you.
We realize you have conflicting claims upon your time here.
Mr. SPALDING. I don't think it pays to come to figures now,
but if we can get a basis, then when we get the figures it will not
be but a few minutes.
Mr. KELLAM. The motion is to adjourn.
Mr. CAMP. If there is any business we can transact, any
further talk we can have together that will bring us nearer a basis
I am sure we are ready to spend an hour.
Mr. CALDWELL. It is a fact that the figures that are pre-
sented here, only thirty-four to thirty-five thousand difference,
sixty-four thousand from ninety-nine thousand, my figures are
about three thousand the other way, and I want to say that these
figures are taken from the identical source from which these gen-
tlemen will have to go, and there is no other source; and that it is
demonstrated here that in one single lump $10,000 that ought not
to be there-$10,000 for the Penitentiary at Sioux Falls, which
never went on the Auditor's books. By looking over the Auditor's
books there is only $25,000 difference between us. I say take the
figures Mr. PURCELL has presented here, and which figures I know
are correct, and by taking off the $10,000, why, there is all there
is between us, and if we take and adopt that proposition, which is
that each commonwealth take the institution within it, together
with the balances that may be in its favor, and take and pay the
bonds issued on account of that institution. Now, as I say, there
is only-taking even the figures which Mr. PURCELL has submit-
ted-there is only $25,000 between us.
*
JOURNAL OF THE JOINT COMMISSION.
713
Mr. HARRIS. Our only objection is at the method in which
you arrive at your totals.
Mr. CALDWELL. It was regardless of the figures that I
made the proposition; and this matter of figures has cut no figure
whatever in my judgment as to what is the best possible basis for
us to adopt.
Mr. MCGILLYCUDDY. Appoint some committee to go into
some room and come to some conclusion and refer it to this Com-
mission to adopt.
Mr. KELLAM. If there is no objection the motion to adjourn
is withdrawn. As I recollect the $25,000 appropriation, I recol-
lect, I think-for what institution was it?
Mr. PURCELL. For the Reform School, miscellaneous ex-
pense
Mr. KELLAM. Expenses don't absolutely include the idea of
being improvements.
Mr. PURCELL. It might have been for improvements-water
works. Section 137, there is $9,000-
Mr. CALDWELL. That is an appropriation for maintenance-
an appropriation for maintenance of our Reform School at Plank-
inton; section 136 is a matter of construction.
Calls of Mr. PRESIDENT; Mr. CHAIRMAN.
Mr. CALDWELL. This may sound somewhat-but I will
agree to sit down with any two North Dakota gentlemen. But I
believe we could take these two statements of figures and resolve
them into the same identical thing.
Mr. SPALDING. I don't want to bother our brains over figur-
ing the thing out, we have got our Secretaries to do that.
Mr. PURCELL. Said sum of $12,000 or so much thereof as
may be necessary shall be expended for the proper management
and for them suitable officers, servants and for such other expenses
as may be neccessary.
Mr. HARRIS. That is not included.
Mr. KELLAM. Mr. PURCELL suggests it might be included.
Mr. CALDWELL. The construction is entirely different.
There is maintenance and general expenses.
Mr. HARRIS. If there is nothing further I renew my motion.
Mr. CAMP. I would suggest that during the recess, if possible,
each Commission consider the question of proposing to this Con-
vention a basis of settlement which will cover the whole field of
the Territorial assets, liabilities and indebtedness.
46
714
JOURNAL OF THE JOINT COMMISSION.
Mr. KELLAM. Just this one question, or as to library and
property?
Mr. CAMP. Yes, of property of every kind except the archives
and records.
Mr. HARRIS. I move we adjourn until 3 o'clock to-morrow.
Which motion prevailed and the Commission adjourned.
FOURTH DAY.
BISMARCK, Friday, July 19, 1889.
Commission met at 5 o'clock p. m., Mr. SPALDING in the Chair.
Mr. SPALDING. GENTLEMEN: What is your pleasure?
Mr. KELLAM. I think we are all interested in the report the
Secretaries have to present to us, and they are ready to report.
Mr. SPALDING. I have not seen the report of the Secreta-
ries, and didn't know as they had one.
"Statement of amount of bonds issued for each, premium, re-
port of unexpended balances, etc."
Mr. HAYDEN. Taking South Dakota, the bonds for Yankton
Asylum, $206,954.79—the net amount that has been received for
the bonds in cash and, paid into the Treasury. There has been
appropriated out of the general fund $45,256.30; total $252,211.09
for the Yankton Asylum. There is in that a bond fund still on
hand, unexpended, of $3,756.83; $425.62 is unexpended up to the
beginning of the present year; March some time, first of March,
the time of the adjournment of the Legislature. Net cost of the
institution, $248,025.45.
Of the Reform School: Bonds and premiums, $30.156. There
is nothing appropriated for the Reform School, simply the in-
debtedness of $30,156.00. There is still on the books a credit of
$156.00, they having simply used $30,000 of bonds.
The School of Mines: Bonds and premiums, $33,320. Appro-
priated for school, $5,500-making a total of $38,820, of which
there is still on hand to credit of bond fund, $179,91; and credit
JOURNAL OF THE JOINT COMMISSION.
715
of appropriation, $572,30; making a net total of $38,070.79 for the
Reform School.
Spearfish Normal School: Amount of bonds and premiums,
$25,130; appropriations, $5,800; total, $30,930, It has all been
expended, no credits.
Madison Normal School: Bonds and premiums, $49,763; ap-
propriations, $5,500; total, $55,263; on hand, $536.55 to the credit
of bond account, leaving net amount, $54,726.45.
Agricultural College: Money received from sale of bonds,
$98,423.40; appropriations, $5,255; making a total of $103,678.40,
of which there is on hand to the credit of the bond account,
$231.65, making the net total $103,446.75.
The Deaf Mute School: Bonds and premiums, $51,631.60; ap-
propriations, $2,000; total, $53,631; of which $59.60 is to the credit
of bond account, leaving net amount $53,562.
University of Dakota at Vermillion: Net amount received
from the sale of bonds, $75,156; amount appropriated, $18,500;
total, $93,656; of which there is to the credit of appropriations
made, $643.25; leaving net amount, $93,012.75.
To the Sioux Falls Penitentiary: Net amount of bonds, $96,-
475.05; appropriations, $5,000. This has all been expended.
For North Dakota-Jamestown Insane Hospital: Amount of
bonds and premiums, $266,545.60; appropriations, $23,150. Total,
$289,695,60. To the credit of bond fund, $6,379.30; to the appro-
priation account, $290.81; net amount, $283.025.49.
Bismarck Penitentiary: Bonds and premiums, $94,067.20; ap-
propriations, $3,464; total, $97,531.20. There is a credit to the
bond account of $7,000, leaving net amount, $90,531.20.
The Grand Forks University: Bonds and premiums, $75,016.71;
appropriations $18,400; total, $93,476.71; of which there is to
the credit of the bond account, $930.99, and to the credit of appro-
priation account, $504.84, leaving net amount, $91,981.88.
The Capitol. Of course you know this is in here simply the
building. Bonds and premium, $83,507.46; appropriations for
furnishing, improvements, etc., $24,866.43; total, $108,373.89.
There are no credits. There was one or two items we could not
determine, whether to premiums, improvements or current ex-
penses. The $5,500 in part of School of Mines appropriation it
is impossible to tell unless we go to the place itself; and there is
also in North Dakota, $2,250 in the Bismarck Penitentiary for in-
cidentals and repairs; the appropriation was made; but how much
716
JOURNAL OF THE JOINT COMMISSION.
for incidentals we cannot tell. Appropriations for South Dakota,
$92,811.30; net, $91,170.13. North Dakota appropriations, $69,-
084.78.
Mr. PURCELL. In your balance did you take into considera-
tion the $10,000 spoken of?
Mr. HAYDEN. No, we did not. But that $10,000 has never
been used.
Mr. PURCELL. Anything in relation to the $12,000?
Mr. HAYDEN. No, we have not had time to examine; that
was not figured into yesterday, and we have not examined the
books to find out except what shows in the reports. Where an
appropriation was made for repairs and improvements we figured
it in.
Mr. MCGILLYCUDDY. Are repairs proper improvements in
the building-did that enter into the building? It is supposed
when you repair a building-if you improve the building that is
one thing; but repairs are simply supposed to put that building in
the original position, not to add to its value. Draw the line on
what is repairs and what is improvements.
Mr. HARRIS. Did you take into consideration the question
of the $7,000 of the Bismarck Penitentiary?
Mr. HAYDEN. That is deducted in the bonds, taken into con-
sideration in the net.
Mr. HARRIS. So that $7,000 remains as unexpended balance?
Mr. HAYDEN. Still remains as unexpended, simply stands as
a balance on the books,
Mr. SPALDING. Leaving out of consideration the bonds en-
tirely, and take only into question such appropriations as were
made for construction or improvements and repairs, there is a dif-
ference of $22,000.
Mr. HAYDEN. That is, I didn't figure it exactly,
Mr. PURCELL. There is one matter I want to call attention
to, in figuring up the indebtedness of the different portions of the
Territory. There are at present pending, in nearly every county
in North Dakota in which there are railroad lands, suits against
county treasurers, to recover back taxes received at sales of this
land, railroad lands, and a great deal of this tax has been paid in
in the different counties, and most of it-the territorial-tax has
been paid in to the general fund and been expended generally
throughout the Territory. North Dakota, of course, received her
proportion, and South Dakota its proportion. There is a division
JOURNAL OF THE JOINT COMMISSION.
717
of opinion among the lawyers of the Territory as to whether judg-
ment will be recovered against the counties. If judgments are re-
covered against the different territorial county treasurers to re-
cover back the taxes, of course the counties in North Dakota will
have something to pay back. At present I am unable to say to
what these taxes amount; but if the counties have to refund those
taxes, the Territory as a whole would be required to refund to the
county whatever proportion of the taxes the Territory received.
This condition does not exist in South Dakota, in consequence of
the Northern Pacific Railroad grant. I simply mention this be-
cause in my judgment it perhaps may be an item we ought to con-
sider in making this settlement.
Mr. KELLAM.
Have you any idea of the amount?
Mr. PURCELL. I have not.
Mr. CALDWELL. Has the railroad paid the taxes?
Mr. PURCELL. No, sir, and the treasurer has gone on and
sold. The railroads have not paid the taxes, but the purchaser at
tax sales have paid the taxes. Many persons have gone on and
purchased railroad lands. Now, the parties who bought at tax sale
have sued the county to recover back the taxes they have paid at
tax sale for railroad lands, because the Supreme Court of the
United States has held that no lands conveyed to the Northern
Pacific Railroad Company by this grant; that is, the title to these
lands have not passed until survey fees have been paid. Many of
these lands have been sold and the money not been paid in by the
Railroad Company, but by purchasers, and the suits are now
brought in the name of the purchaser against the counties for
selling those lands.
Mr. PRICE. To settle between the individual and the county?
Mr. PURCELL. I say this again to illustrate. In the county
of Cass, and in our county of Richland, the board of commission-
ers have refunded these taxes up to a certain period. Whatever
has been refunded, the Territory should bear that proportion
which it received from the sale of those lands. Of course in
every county the Territory had a portion of taxes due it, and it
has received its proportion. Now, if those suits recover judg-
ment, of course the county will have to pay back to the purchaser
the amount received at the tax sale, and, perhaps, with interest.
Therefore, the Territory as a whole ought to reimburse the county
for the proportions it received.
Mr. NEILL. Is it not a fact that of that money paid from
718
JOURNAL OF THE JOINT COMMISSION.
those counties, 30 per cent. has been repaid and 70 per cent. paid
back to those counties already?
Mr. PURCELL. I don't know that it is. I simply bring this
up for consideration. But if the counties of North Dakota are
required to pay back, then the Territory as a whole, North and
South Dakota, should reimburse.
Mr. KELLAM. That would be fair, it seems to me. But the
same rule would apply to individual taxes. This is the case of
taxes arising from the Northern Pacific grant or illegal assess-
ment upon these lands. No different rule would apply to those
than to any other case of illegal assessment and consequent refund-
ing. This is something we know of and is a large amount.
Mr. PURCELL. I don't think the board of county commis-
sioners can rebate any taxes, part of which is due to the Terri-
tory. The board cannot rebate the tax due from an individual to
the Territory. Then if the board has used any taxes it has done
so illegally.
Mr. KELLAM. I mean where the courts have decided the
basis of assessment was illegal and the money should be returned;
that that would be a similar case to this.
Mr. SPALDING. In Stutsman county alone there are about $70,-
000 involved in the suits of individuals to recover money paid at
tax sales. This has been tried in the district court and decision ren-
dered against the county. It has gone to the Supreme Court of
the Territory, and the decision of the lower court has been af-
firmed. And the county of Stutsman has now taken it to the Su-
preme Court of the United States, and there it is at this time.
There is a somewhat smaller amount involved in Barnes county.
About $19,000 in Cass county. I don't know how much in Rich-
land county; some in Traill county, and so on in those counties,
large amounts, and they are awaiting the action of the Supreme
Court of the United States on the Stutsman county case.
Mr. KELLAM. That is about as I understood the history of
the matter.
Mr. PURCELL. Of course since the gross earnings law went
into effect this would not apply. But there are numerous pur-
chasers of those lands from the railroad company, and the decis-
ion of the Supreme Court of the United States not only extends
to all lands which the railroad company still contest, but it ex-
tends to all lands sold by them to individuals upon which the sur-
vey fees have not been paid. And there are now many suits
JOURNAL OF THE JOINT COMMISSION.
719
pending in the name of individuals, residents of the county to re-
cover taxes paid by them.
Mr. HARRIS. I would like to inquire from the gentlemen of
the South Dakota Commission (we have discussed the matter some-
what and have not come to any conclusion), what their idea is,
and their conclusions with regard to the appropriation, made at
the last session of the Legislature for the running of the Territo-
rial institutions. Whether or not they think we should come to
some settlement now, and that the taxes in the future collected
from the counties embraced in South Dakota shall go towards
maintaining institutions in South Dakota, and taxes from the
counties in North Dakota go towards maintaining our institutions.
from this time, and if we shall pay any deficiency there is in North
Dakota, how much assume, and pay what deficiency; in what man-
ner or what form can we arrive at a settlement of the matter?
That is, how long shall these institutions run together, be managed
by a partnership of North and South Dakota?
Mr. ELLIOTT. We would inquire from the gentlemen of
North Dakota whether or not they have any proposition to make.
If they have, we would like to hear it.
Mr. HARRIS. I am satisfied that so far as the North Dakota
Commission is concerned, they have not arrived at a division.
don't know whether we have the power to do that.
Mr. KELLAM. I didn't get your proposition, but if I under-
stand it, would we have authority to divide these institutions as
you suggest.
Mr. HARRIS. That is the point for the discussion of the
Commission. But if not, then what kind of a deal are we going
to make? We are going as far as we go in shape; and this ques-
tion that will have to come up as to how far we have authority,
how this thing is going to be in regard to the appropriations and
totals expended, as to how far this Commission can fix it, is a
question we have to settle. We are getting, in regard to the
bonded indebtedness and other matters, in shape where there will
be no trouble to settle. One question we will have to settle is
when and how this Commission has to deal with these running
expenses of the institutions of our Territorial government, and the
basis which we will propose to the two States on which we shall
settle. As far as I am concerned I am at sea on that question.
·
Mr. CALDWELL. A feature of this settlement, it would seem
to me, that ought to be considered at this time is the division of
720
JOURNAL OF THE JOINT COMMISSION.
the public institutions, and matters pertaining thereto. I would
offer the following resolution:
Resolved, That in the division of the Territorial institutions and the prop-
erty pertaining thereto, the following basis shall be adopted by this Commis-
sion: The title to any public institution, together with all hereunto belonging
or appertaining, shall vest in the particular State in which it may be located;
and said State shall, in consideration thereof, assume all bonds, debts, liabili-
ties and obligations whatsoever incurred by the Territory of Dakota on ac-
count of or in relation to the said institution; and'any unexpended balances or
appropriations payable or to become payable for such institution, shall accrue
and be a credit to such institution upon the books of their respective States.
Mr. PURCELL. As I understand, that is the same in effect,
we have under consideration.
Mr. CALDWELL. I thought I would formulate something
and then let others be also considering.
Mr. PURCELL. I do not think that at present we of the North
are prepared to vote on that resolution, because we have been
getting our information from our accounts here, and until such a
time as we had an opportunity of thoroughly investigating the re-
sult I would not be in favor of supporting it.
Mr. HARRIS. There is another matter in that resolution, it
seems to me, that is contrary to the method on which we have been
arriving at figures. He says, "any unexpended balances or appro-
priations" which have ever been made to any institution shall be
turned over to that institution. Now we find an appropriation of
$10,000 made to the Sioux Falls Penitentiary; this had not been
taken into account, yet our figures agree to that credit of $10,000.
We find various appropriations and unexpended appropriations
for the other institutions; it seems to me unexpended appropria-
tions should not be cancelled so far as our settlement is concerned.
So far as appropriations are concerned I don't see how we can get
to work and give more appropriations than were appropriated, and
pay them over to the institution. On that question I don't believe
we are prepared to vote; and for this reason we ought to go through
the whole basis of settlement. Bring every question which will
come before this Commission up for discussion, so we can arrive
at a basis of settlement of the whole matter together. We may
not be able to reconsider it in the future.
Mr. CALDWELL. The $10,000 to which the gentleman refers
was not for the Sioux Falls Penitentiary at all. It was an appro-
priation simply for the building of a prison before a place for a
prison had been located; and so far as any appropriations unex-
}
JOURNAL OF THE JOINT COMMISSION.
721
pended as balances of appropriations may be concerned, they are,
by the rule of the Auditor's office, now covered in as soon as a new
appropriation is made.
Mr. KELLAM. I myself would not be in favor of adopting
Mr. CALDWELL'S resolution at this time. I do believe in settling
matters so far as we can come to a conclusion, and laying to one
side as so much disposed of. I believe so far as when we come to
an understanding upon a settlement of these institutions and the
property, etc., we should pass some kind of a resolution and call
that matter disposed of. But a resolution covering this should be
more carefully drawn than even Mr. CALDWELL can, without delib-
eration. This is an important matter we have to deal with. My
idea is when we take this matter up and come to an agreement,
then one or two gentlemen on each side should be appointed to
formulate that in some shape so it will cover all the questions
we design to have settled. I believe in that way of doing with
these institution and the indebtedness. I believe in this way of
doing, in taking up independent subjects, so far as they are inde-
pendent, and dispose of them, one at a time, not perhaps without
any power upon the Commission to reconsider, but call them, for
the present, disposed of. I have no objection, and perhaps it
would be as well, that if there are other questions connected with
this as to make the disposition of this inconvenient without having
the other discussed, discuss that in an informal way, but to reach
a conclusion as rightly as we can upon the different items of this
business, and let some gentlemen be selected to put our conclu-
sions into right shape and have it reported to the Joint Commis-
sion, and let us see if that expresses just what we have to do. But
I myself think that resolution is too hastily drawn.
I have as
much confidence in Mr. CALDWELL as in any particular gentleman,
but this is a matter that should be carefully covered.
Mr. CALDWELL. My proposition in offering this resolution
was this: We have been considering a single topic of this matter
of distribution, and I thought if there was something formulated
before the House, the Commission could then take action if they
saw fit. So far as I am concerned I don't care how many accounts
may be brought up, but it seems to me the work of the Commis-
sion could be better carried forward by taking the things in their
order.
Mr. HARRIS. I think finally we will fully be able to arrive at
722
JOURNAL OF THE JOINT COMMISSION.
a settlement by a lump settlement, and for that reason I don't see
how we can settle individual things separately.
Mr. KELLAM. My idea is, it would not be in one lump, be-
cause we could not dispose of the public library, safe in the Treas-
urer's office, and unexpended balances in a lump. We have got to
classify these in departments. That was my idea.
Mr. PRICE. For the purpose of getting this thing in proper
shape before the Commission I want to move the adoption of the
following resolution. It seems to me the matter may not cover
the whole thing, yet we can take a vote upon this thing, and then
perhaps the gentlemen on the other side may have some sugges-
tion in its place, if it is not adopted. But if we are going to do
business, we have got to do it in a business like way. It seems to
me if we attempt to do business things at once we will progress
very rapidly in the work we have to do. The substance of this
resolution is that each part of the Territory shall take the prop-
erty located within its boundaries. Now, that is all there is of it.
It seems to me fair and it ought to be adopted.
Mr. SPALDING. It seems to me we have discussed this sub-
ject of public institutions, and have got figures on each, so that
each of us now know where, or understand where the institutions
stand in the respective parts of the Territory, and unless we dis-
cover a mistake had been made, or some reason for changing the
general result, we can readily lay that matter aside now, and dis-
cuss some other item like this that was lately suggested.
Mr. PRICE. I move the adoption of Mr. CALDWELL'S resolu-
tion.
Mr. SPALDING. The Clerk will call the roll.
Mr. CALDWELL. I was going to say I simply introduced
this resolution for the purpose of bringing the matter before the
Commission, and if there are any suggestions in the way of amend-
ment or anything like that, it would be a proper proceeding, of
course, to so amend it. Of course I have no consideration except
a desire to bring that matter to a focus, which it seems to me has
been discussed.
Mr. PRICE. I want to add this; that I don't understand the
resolution to be final until, even if adopted by this Commission.
If I understand the Omnibus Bill correctly, after we have arrived
at a final distribution and absolute settlement, then the resolutions
and articles will be adopted to be made a part of the Constitution
so far as the date is concerned; but this is simply to show the feel-
JOURNAL OF THE JOINT COMMISSION.
723
ing of the Commission upon this manner of settlement, not as
the final.
Mr. PURCELL. According to the basis that has been formerly
talked, the figures show that South Dakota has received an ex-
cess in appropriations of $22,000. Now is it your intention that
North Dakota shall not receive back any portion of that $22,000?
If it is, I, for one, am opposed to the passage of this resolution,
because I don't feel I have any right to give $11,000 of $22,000.
Whatever the difference is that exists in favor of South Dakota
over and above North Dakata, I think some reimbursement
should be made. In my judgment, every member of this Com-
mission knows that for the last ten or fifteen years at least, South
Dakota has received a large amount of appropriations for main-
I think it will not be contradicted; the institutions in
the South have been sustained by an equal amount of taxes paid
from the North, and we have not had the benefit or use of them
as we might have had. Still the maintenance has been paid, both
North and South, from the Territory at large; and I think by a
fair comparison, you will find the people of the South have had
the benefit to a greater extent than the people of the North. I
am stating this as a reason why at the present time I am not in a
position to vote for this resolution. I desire to know just how
much stands appropriated to each section, what proportion of that
has been used in South Dakota and North Dakota, and would like
to be informed upon the amount of taxes each section has paid,
so when settlement is made, we can return to the Convention and
justify our acts. So when we return to our constituents we can
show to them that settlement was made, and the full understand-
ing of the affairs of this Territory, and the use that the people
have had, and that no one can say we have gone at this blindly.
Mr. HARRIS. I think exactly as Mr. PURCELL does in regard
to this difference in direct appropriations for repairs and construc-
tion of the institutions. There is a difference of $22,000. Did we
merely wipe this out and settle on the basis of this resolution we
would fix the matter of these institutions, the largest account we
have to deal with; and immediately the other subjects Mr. KEL-
LAM mentioned, public library, safe and those things here in North
Dakota, and that was my reason for saying we could discuss these
matters, laying them aside and discuss other matters, and then we
would be ready to settle. I don't think, as the matter stands, that
we can afford in any way to adopt this resolution, and for that
724
JOURNAL OF THE JOINT COMMISSION.
1
reason I am not in favor of it. I want to settle just as favorably
with South Dakota, and as easy and as quick as we can; but in order
to arrive at that we must not hasten and we must not adopt such
a resolution as this that we might not want adopted twenty-four
hours from now.
Mr. SPALDING. Any further remarks?
Mr. CALDWELL. If I thought any business man or any
citizen of ordinary judgment would most certainly be of the opin-
ion that the institutions of South Dakota have not depreciated
upon the whole more than $22,000 worth since these appropria-
tions of which you speak; if the difference in depreciation of
value between South Dakota institutions during the time since.
construction, and North Dakota, is not very much more than
$22,000, I would not ask North Dakota to settle upon the basis.
referred to in the resolution. There is nothing about it I can see,
that is asking them to forego a single just claim they may have in
regard to the matter.
Mr. SPALDING. Any further remarks? If not the Clerk will
call the roll. All those in favor of the resolution will answer aye;
those opposed, no.
Camp, absent; Harris, no; Purcell, no; Sandager, no; Scott, no;
Spalding, no; Kellam, no; for the reason expressed. I think the
resolution ought to be more carefully drawn.
Brott, yes; Caldwell, yes; Elliott, yes; McGillycuddy, yes; Neill,
no; Price, yes; 8 nays and 5
and 5 yeas.
Mr. SPALDING. The resolution not having received a ma-
jority of both Commissions, is lost.
Mr. McGILLYCUDDY. I move a committee of four, two from
North Dakota and two from South Dakota Commission, to meet
and draw up a resolution bearing upon the settlement of public
buildings.
Mr. SCOTT. I am not in favor for the reason above stated. I
don't believe we are ripe for that yet. I don't believe we can
draw up a resolution that will be carried, at the present time. I
think it would only be labor for nothing, until such a time as we
are ready to draw up and agree.
Mr. NEILL. In my opinion we only get into confusion our-
selves on this subject, until we get some basis of agreement. In
one sense I would have liked the introduction of the resolution we
have just voted down; it preserved something for the future.
in my view we will have to settle this matter step by step until
JOURNAL OF THE JOINT COMMISSION.
725
the consummation of all. We will then have to settle these mat-
ters by adopting and having a contract. To begin upon public
institutions, that subject we can reduce almost to a mathematical
precision, it seems to me. It was evident to my mind this reso-
lution was not satisfactory to my brethren of the North, and for
this reason I voted against it, thinking they from the North would
suggest something in its place. If they are not prepared to do
so now, my suggestion would be that we continue our efforts
towards this work, until we are satisfied we have sufficient knowl-
edge of every question bearing upon the subject, and then formu-
late our work. Now, it is necessary to take into this matter, that
we look into the maintenance. I say, let it go on. Let us hasten
that work until we know what there is about it.
sary to divide this money, or to separate our own, let it be done.
But let us decide this matter as we will have to decide in the end;
because it seems to me that the inference, that this cannot be de-
cided without something hinging to it, does not strike my mind
as fair. I feel that there is an honest solution to every one of
these subjects which come before us. I trust we may continue in
the work, looking up this subject we are at until we finish it in
this general way, at least, until we formulate our basis of division.
If it is neces-
Mr. KELLAM. I feel some as Mr. NEILL expresses it and as
suggested by Mr. PURCELL, that an intelligent and fair settlement
of this matter can only be made, if the information which he sug-
gests should be obtained; then the quicker we get at that infor-
mation the quicker we come to a solution of this question. Now
I don't look at this matter precisely as brother PURCELL does. The
Territory of Dakota is an entire institution. Its Legislature is
made up from representatives from various portions of one entire,
complete entity-one territory. North, south, east and west have.
its share and representatives in the Legislature. They located
these institutions where, in their judgment, they will do the most
good to the Territory at large. It certainly is the theory of the
location, that they are located where they will best serve the inter-
ests of the Territory. The money must be expended where the
institutions are located. It would be useless, impossible, as it
looks to me, to weigh the advantages of Sioux Falls as against
Jamestown or Bismarck, or some other town for the location of
the public institutions. It seems to me thus from our figures we
could not positively get any basis to compute; we could not arrive
at any specific calculation from such; neither would it look to
726
JOURNAL OF THE JOINT COMMISSION.
the
me as though we could get very satisfactory results from trying
to ascertain from the records how many convicts from the North
or South had been in the Penitentiary at Sioux Falls or Bismarck,
or how many in the Yankton Asylum. Then we would have to
go to work and ascertain where the taxes had come from that had
started these institutions. And while I don't know what might
be the result, I am just as blind about these last figures we have
developed here to-day. I say if we in discussing this subject
cannot come to a conclusion, we cannot vote satisfactorily to our-
selves upon this division question without this information, then
let us take steps to get that information. And if any gentleman
thinks he will be better satisfied by adopting some plan which
will rest upon such figures as we have talked about and suggested,
then I think he ought to present a proposition to this Commis-
sion, and have such figures ascertained and report it here, so we
can make some progress in the settlement of these questions. I
am always willing to discuss all these matters in the most in-
formal shape. I like informality and if there is any advantage to
be gained by talking on these questions, do so, and as quick as
we dispose of one question take up another. That, as rapidly as
we can reach even a general conclusion upon any of these ques-
tions that we say we can probably settle upon that, and lay it aside.
All I intended to suggest was that if any gentleman is of the opinion
that he requires this information before he can dispose of these
questions, then he ought to present some plan or proposition for
getting such information, so we may be gradually getting some-
thing to work upon.
Mr. PURCELL. Mr. HAYDEN, in making up your report upon
the indebtedness of North Dakota, how much did you figure the
bonded indebtedness of this building? The Capitol.
Mr. HAYDEN. We figured in those warrants at the face of
them.
Mr. PURCELL. Is it not a fact that about $30,000 of those
refunded warrants represent accrued interest upon the debt on
this building?
Mr. HAYDEN. I don't know just the amount-we have the
figures or a part of it. How much was interest the Treasurer
could not tell. There is $21,000 interest and there is $8,000 more,
but how much of it is interest I don't know.
Mr. PURCELL. I submit that that portion which represents
interest, should be a charge of the whole Territory, for the reason
JOURNAL OF THE JOINT COMMISSION.
727
that the bonded indebtedness of the South, as well as in the
North, has been paid out of the general fund; and this was interest
accumulated and not paid out of the general fund. And inasmuch as
the interest on the bonds in the South, and other bonds in the
North have been paid out of the general fund, that portion which
represents interest, should be borne equally.
Mr. CALDWELL. The terms of the act refunding these Cap-
itol warrants specifically says, that the amount thereof, whether
for face or the original claim, or for interest, shall be assumed by
North Dakota.
Mr. PURCELL. Then I ask that the interest paid on the
bonds in South Dakota should be taken into consideration,
whether the act provides, or whether it does not. It has been the
understandinng that the interest upon the indebtedness has been
born by the whole Territory, and inasmuch as this $21,000 repre-
sents interest, that we should have the same remedy.
Mr. CALDWELL. And, furthermore, this is in the nature of
a guarantee on the part of the Territory, and the Territory is to
have recoupment of whatever she is out, whether upon the face.
of these warrants, or upon the interest thereof, or out of the sales
of the Capital property. The general fund of the Territory ought
to have that credit. It is not, of course, the case with these
other institutions. It is not payment, direct and absolute, out of
the general fund of the Territory. It is a payment provisional.
Mr. PURCELL. I desire to say that this act provides that
when the Capitol property is sold, that the proceeds realized from
sales, go into the treasury. But this fact exists that the deed from
the railroad company to the Territory of this property says-has
a clause that when this property ceases to be used for Capitol pur-
poses that it reverts to the railroad company. Now, like yours,
the question of the Capital of North Dakota is not settled, and it
may be in the future that the Capital may go somewhere else, and
as soon as it does go, this building, together with this property
reverts to the Territory, and will not only revert to the railroad
company. And the gentlemen very well understand that the Ter-
ritory has sold lots wherein it has warranted the title to different
parties, and it is a question as to whether the Capital remains here.
If the Capital leaves here we not only lose the building but refund
the money that has been paid to us.
Mr. KELLAM. Of course the answer is that you have the
Capital. If you regard it as sufficient consideration to move it
728
JOURNAL OF THE JOINT COMMISSION.
somewhere else, why it is a business proposition. It is worth so.
much. It is a business transaction. North Dakota has the Capi-
tal. If she wants it somewhere else, why, do so. It looks to me
like a business proposition.
Mr. HARRIS. As I understand the question in regard to this
interest
Mr. KELLAM. I want to say that while I don't know any-
thing about it, if these refunding warrants actually represent in-
terest on an indebtedness North Dakota has to assume in this di-
vision, then it only seems to me that so far as it does represent
interest, it should be taken to account-that is that the interest on
this Capitol indebtedness should be paid by the entire Territory
to the same extent that the interest on these other funds are paid
up to some time. I don't see any reason why it should not.
Mr. HARRIS. I was going to explain. There were something
in the neighborhood of $55,000 worth of these Capitol warrants,
drawn by the Auditor, on the Treasurer on the Capitol fund. There
was no money. They were presented to the Treasurer and regis-
tered as not paid, and by operation of the law of our Territory,
from the date of registry they drew 10 per cent. interest. At the
time of the refunding of these warrants, when the warrants were
taken up the aggregate amount was $55,000. And I understood it
was this, that as the Territory, the whole Territory, had paid the
interest on the bonds in North and South Dakota, it seems there
was an equitable claim in regard to this interest that the whole
Territory should pay the interest on these warrants.
Mr. SCOTT. Was the Territory responsible for the warrants?
Mr. PURCELL. No, sir; the Territory was not responsible for
anything, but the Legislature assumed the debt. Of course those
making a claim had an equitable claim.
Mr. HARRIS. I know the Commission who audited these
claims was declared a legal Commission; and the Auditor who
issued the warrants and signed them a legal Auditor; and that the
Legislature of the Territory of Dakota declared this Commission.
legal and its acts legal by accepting the report of this Commission,
accepting the work of the Commission; the discharge of the Com-
mission and proceedings to further continue the work which this
Commission had before that time had in their possession. That
these warrants were declared legal by the Legislature and assumed
as a debt of the Territory.
Mr. CALDWELL. Is the Territory or State in which the city
JOURNAL OF THE JOINT COMMISSION.
729
of Bismarck is located liable for the payment of principal and in-
terest on the said refunding warrants?
Mr. HARRIS. They were made legal by the Territory; they
were made legal by the acts of the Legislature before this refund-
ing act was passed.
Mr. CALDWELL. Unquestionably legal against a particular
fund in the Territory, which fund was to be supplied in a particu-
lar manner.
Mr. SPALDING. It seems the drift of this matter is this, that
the Territory has had the use of all the territorial institutions for
which there has been bonds issued, and it has in effect paid the
interest on those bonds as they became due for the use of them.
They have had the use of these buildings, but they didn't pay the
interest on the outstanding indebtedness as it became due because
it was not to be paid in a specified time. Now what would be the
position provided there was no public institution on which bonds
had been issued and for which interest had not been paid when it
became due? In making this settlement we say that that part of
the Territory or new State in which an institution is located should
assume half the past due interest. We think it should be divided
between the two parties.
Mr. CALDWELL. Whatever power made the general fund of
this Territory liable for this principal and interest on these war-
rants which were payable previous to that time only out of a
fund, it is a fact, as the Journal of the last Assembly will show,
that the matter of the adoption of this act was referred directly
to the North Dakota members, and that they by an overwhelming
majority agreed to the obligation that these warrants should be
made a charge upon the general fund of the Territory. That
should be considered, in case of division, as a change upon their
particular section of it.
Mr. PRICE. I move we adjourn until to-morrow at 1 o'clock.
Motion seconded and carried.
Mr. SPALDING. Adjourned until to-morrow at 1 o'clock,
July 19th.
Mr. KELLAM I think you will begin to see that if it is a
possible thing you ought to give us more time. It was 4:30
this afternoon and we have not been in session two hours.
Mr. HARRIS. I think we ought to have morning sessions.
Mr. KELLAM. I think, under the circumstances, you
ought to.
47
730
JOURNAL OF THE JOINT COMMISSION.
Mr. PURCELL. I second the motion for 10 o'clock to-morrow
morning.
Mr. SPALDING. Those in favor of the motion will say aye.
The motion is carried and we adjourn to meet at 10 o'clock,
July 20th.
FIFTH DAY.
BISMARCK, Saturday, July 20, 1889.
Commission met at 10:40 o'clock a. m.
All members present except Messrs. GRIGGS, SPALDING and
CAMP. All South Dakota members present. Mr. KELLAM in the
chair.
Mr. KELLAM. We have no rules, of course, and unless the
minutes of the last session are called for—it has not been usual to
read them—I suppose we have the same business on hand as we
had at our last meeting.
Mr. PURCELL. I would like to inquire if there are any claims
against the Territory.
Mr. CALDWELL. I talked with the Auditor and Treasurer
about it, and it is their judgment there will be about $240,000 be-
fore November; the total amount about $240,000. About $240,000,
I believe, the middle of November.
Mr. PURCELL. That will be necessary for these institutions
to incur.
Mr. CALDWELL. No regular appropriations made; the
amount of claims that I found by the middle of November, will
amount to about $240,000, and that will only be about $100,000 to
$125,000, etc., revenue within that time.
Mr. PRICE. About $125,000 amount deficiency upon that will
be by the time we get through.
Mr. PURCELL. Are there any unadjusted claims and what
do they amount to?
Mr. CALDWELL. I don't have the records; the intitutions
have them-running up I don't believe to exceed $10,000 or $12,-
JOURNAL OF THE JOINT COMMISSION.
731
000 in all. There are some in Grand Forks, some in Jamestown
and some at Vermillion.
Mr. KELLAM. Also a claim at Yankton. All I know about
it is that Mr. HARRIS, representing the Yankton district in our
lower convention, called my attention to an unliquidated claim,
and I asked him to put it in shape so that it might be taken into
account. Day before yesterday I received a package with the
original contract and a letter from one of the trustees of the hos-
pital, saying, I think, his figures were about $1,750 equitably due
to the contractors, but there was no money when the work was
finished to pay it and it stood in that condition. I suppose that
was the character of claims?
Mr. PURCELL. That is the character I inquired about.
Mr. KELLAM. So far as claims for current expenses I sup-
pose would be covered by some general agreement.
Mr. CALDWELL. That point was provided in that resolution
I offered yesterday-each State should assume the debts and ob-
ligations incurred by or for any of the institutions located in the
respective States.
Mr. PURCELL. Mr. GRIGGS has a claim as Railroad Com-
missioner of about $750.
Auditor McMANIMA. I will call attention to that. There are
some claims, expenses of the Railroad Commission; Mr. GRIGGS
has a claim, and Mr. Smith, I think, although he never presented
his to the office, for traveling expenses after the appropriation was
exhausted last year. The expenses will not exceed $1,500.
Mr. CALDWELL. There is one claim I think would be per-
fectly proper for this Commission to consider, and that is the
claim of Mr. Long for this Legislative Hand Book, amounting to
0. That would be a claim against the entire Territory, and
allowed by the Legislature, but the Governor allowed the bill to
lapse; did not sign it, and the books have been used by the Terri-
tory. I know they were distributed to the Constitutional Conven-
tion at Sioux Falls, and I think up here. And it is a claim which
ought to be considered.
Mr. PURCELL. I think that is in the same position as Mr.
GRIGGS' and Mr. SMITH'S is.
Mr. HARRIS. More adjudicated as the Legislature passed
upon it.
Mr. PURCELL. Mr. Bly, the hotel keeper, has a claim for
rent of the cinch room for members of the Legislature.
732
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. The points suggested by Mr. CALDWELL-seems
to me to be a good point to bring up now and settle. He states by
November-by the middle at least there will be $240,000 of ex-
penditures on account of the various institutions, and only about
$120,000 to $125,000 collected.
Mr. CALDWELL. For all purposes?
Mr. SCOTT. There will be a deficiency of some $115,000. We
have got to come to some settlement about that, and the question
is what arrangement is best to make.
Mr. CALDWELL. I would say that Brother BAILEY is here
to-day and would like to leave to-night; and if there is any infor-
mation the Commission would like from his department, it would
be convenient to him if the matter were questioned now, although
he would instruct his deputy, Mr. Claussen, of course, to furnish
whatever might be necessary. There are some matters coming
before this Commission regarding a matter the consideration of
which has been postponed; that is, the transcription of the records
of his office, and of such records of the Auditor's office as would
be necessary to start the respective States going.
Mr. SCOTT. If we come to some agreement about the records
then would it not be time to start about the transcribing? I pre-
sume they can get some additional help in each one of the offices.
Mr. CALDWELL. Yes, but the transcribing of the records, of
course, all that would be a charge upon the respective States. It
could not be paid out of the appropriation for the expenses of the
Convention.
Mr. KELLAM. It seems to me the matter of disposing of the
records, we ought to consider and dispose of amongst the earliest
questions, because if the determination is that we must make
some provision for records for both States, it would require some
little time to make those records, and then they can be made. Of
course, books will have to be gotten, and that can be done at once.
It will take some little time to get these books, get them prepared,
made, and get them back here.
Mr. CALDWELL. Of course the records of the Territory will
be the common source from which the records of the two States
may be compiled. As I understand it, the presence of the Terri-
torial records at Bismarck would not be the possession by the
State of North Dakota of the records, or of any part thereof, and
that it would be as necessary to provide the transcription for
North Dakota as for South Dakota.
JOURNAL OF THE JOINT COMMISSION.
733
Mr. SCOTT.
What do you want two copies for?
Mr. CALDWELL. We would not need two copies, but neither
North or South Dakota would have any right to claim the origin-
als as the property of the Territorial officers respectively. I feel
very much as I expressed myself the other day, that this is im-
portant and ought to be gotten at early at least, because if our
determination is that there must be copies for either North or
South Dakota of these records, the other holding the originals, it
would take some time to do that, and it seems to me to be a neces-
sity that we make provision for at least such records as will enable
the two States to start on their statehood avocations. The Secre-
tary of State, the Auditor, nor the Treasurer nor the Governor,
neither will have a successor in office. Neither the Governor of
North or South Dakota, the successor of the Governor, nor the
Treasurer or the successor of the Treasurer. Now suppose these
States are established without any disposition having been made
or having any provision made for any basis to start upon for the
new Treasurer, for instance. These archives and records are
required to be left in the city of Bismarck, but the North Da-
kota Treasurer would not succeed to the possession of the territor-
ial books any more than the South Dakota Treasurer. It would be
a question for the Treasurer himself to determine what he would
do with these books. There would be no title passing from him
to the successor. Then how would the new State Treasurer com-
mence his work? Suppose a warrant was drawn upon him; how
would he know whether it was paid or not. Same with the Ter-
ritorial Auditor--he would have nothing to start upon. The Au-
ditor, of course, would not be authorized in turning over his
books to the North Dakota Auditor any more than to the South
Dakota Auditor. It looks to me for these reasons that it is
almost a case of necessity-absolute necessity-that at least some
temporary provision be made for such record as will be necessary
to start the several State officers. I don't see how it can be done
without. If these books remain-although they remain in Bis-
marck, of course, that don't help the North Dakota state govern-
ment any more than the South Dakota, because there would be
no——the Governor, the Treasurer or the Secretary would have
no more claim to the possession or use of these books simply be-
cause they were in Bismarck, than the South Dakota officers
would have. There would be no advantage in the one side or the
734
JOURNAL OF THE JOINT COMMISSION.
other, but there would be absolutely a lack of any material to run
the new state governments with.
Mr. PURCELL. It is your idea, Major, that the present Treas-
urer, or the present Auditor, have a right to dispose of these
records?
Mr. KELLAM. I don't mean they have any right to dispose
of them-merely the right to hold them.
Mr. PURCELL. It seems to me that the records are part of
the common property of this Territory, as much as the public in-
stitutions are; and no man would say that the proceeds of any-
or the Yankton Asylum should have a right to make any disposi-
tion of these institutions in case the State or this Commission
failed to do anything with it. It does not become their property.
Now I think that is it, when it says the records shall remain at
Bismarck and disposition shall be made by the two States or by
this Commission. I was of the opinion the two States should
make some disposition, and as was suggested by Mr. ScCOTT, there
would be no necessity for two copies, if for instance the two States
could agree what record should be transcribed and the copy so
made go to South Dakota, and the original records become the
property of North Dakota. I think the two States should agree
that the original records of the Territory shall remain here and
become the property of the Territory—you taking the copy.
Mr. CALDWELL. I don't think we have any authority in the
matter; and that no process would lie against the Auditor or the
Treasurer of this Territory to require him to take and do with
those records, except as he wished. And if the Auditor of this
Territory, or the Treasurer or Secretary of this Territory should
hold that they are the custodians, which, of course, they are, and
required by law to turn them over to their successors, and cer-
tainly the corresponding officers of the entire commonwealth be-
comes the political successor of these. If the Auditor of this Ter-
ritory should say, "here; I am the custodian of these and I don't
propose to turn them over," no agreement we can arrive at can
effect that.
Mr. KELLAM. Do you mean, Mr. CALDWELL, that in your
judgment there must be two copies made, one for North Dakota,
and one for South Dakota?
Mr. CALDWELL. If the Auditor of this Territory says, "I am
the custodian of these and I cannot turn them over," to any person
JOURNAL OF THE JOINT COMMISSION.
735
who is not legally his successor, I think he is perfectly justified
in that conclusion.
Mr. PRICE. The officer dies when the office dies.
Mr. PURCELL.
Yes.
Mr. CALDWELL. Then who becomes the custodian of the
records?
Mr. PURCELL. It then becomes the common property of
North and South Dakota.
Mr. CALDWELL. When the two States go to work, and their
Legislatures make provision, why, then they become the legal
successors--the parties designated by these States to receive these
records become the successors, and it would be wrong to turn them
over.
Mr. HARRIS. This is my idea. I don't think the State has
anything to do with it. It provides that this Commission shall
make disposition of these records, and I believe they intended we
should do it.
Mr. MCGILLYCUDDY. If the Commission never provides for
a disposition of the records you will never hear the end of it.
Mr. HARRIS. The records of this whole Territory are neces-
sary to the running of the State of South Dakota, and necessary
to the running of the State of North Dakota. The records of the
Auditor's, Treasurer's and Secretary's office are the common
property, and they will be just as necessary for the one as the
other; and the first day these States start in to do business it is
necessary to have these things, in my judgment. As an individ-
ual of this Commission, my idea is this: We should provide for
the transcription of the records of each of these different offices,
and settle as to whether the original shall remain at Bismarck or
go to South Dakota, or where the certified records shall stay.
When we have one record completed and the other State has the
other record completed, we have all there is in these records; all
that is necessary for either State to have in the running of their
business. One will become the property of South Dakota, the
other of North Dakota, they having a basis to start from at once;
and all there is for us to do is to make the transcription, agreeing
which side shall keep original and which the certified copy.
And the same thing may occur as to some of the acts and bills in
the Secretary's office, if it is necessary that they be transcribed.
Mr. PRICE. GENTLEMEN: Congress certainly meant some-
thing or it meant nothing, when it passed that Enabling Act.
736
JOURNAL OF THE JOINT COMMISSION.
There is, apparently, a conflict between sections five and six of the
act, but we have got to read them together and construe them to-
gether. It is patent to my mind that they intended to clothe this.
Commission with power to make final disposition of these records;
and it seems to me my position is well taken and for this reason,
Congress had this in view, that this Commission would be binding.
They were to examine into the affairs of the Territory, and the
division between the two sections thereof. Then Congress went
on and further said, in my judgment, that these gentlemen, having
examined into the affairs of both sections of the Territory, the
public institutions and all the business relations existing between
them, they are better enabled to say where these records shall go.
Another thing, if this disposition of the records was not made,
we would, upon the assumption of statehood-there would be a
complete block-we would have nothing to do business with. They
say, this Commission will meet and they shall provide for these
records and say which shall go to South Dakota and which to
North Dakota so, when we are admitted to become States, we are
ready to go on in business and transact business. I presume there
will be no dispute on that proposition from the gentlemen on the
other side, and if the records are transcribed, the expense will be
borne equally by North and South Dakota; and we can decide it,
perhaps, that some of the originals shall go to South Dakota and
and some of the originals may remain in North Dakota. Now
that is all I have to say.
Mr. CALDWELL. Mr. CHAIRMAN: I don't see in this act,
anywhere, anything that either directly or by inference, can be
regarded as providing for any transcription whatever. Whatever
reference there is made here as to the original records, it seems.
to me that it would be straining the point very much to attempt
to say that this act does anything further or other than simply
give this Commission authority to agree as to which State may
have each particular record -not a transcription thereof.
Mr. PRICE. Let me ask you a question: Are you receding
from the position you took a while ago, that the records must be
transcribed for both States?
Mr. CALDWELL. I said whatever transcription there was,
that that book shall, when we come to be separated, go to North
Dakota, and that record may go to South Dakota.
Mr. PURCELL. May we not say a copy of it shall go?
JOURNAL OF THE JOINT COMMISSION.
737
Mr. CALDWELL. No, sir. What would give a copy any
validity?
Mr. SCOTT. Why, a certified copy will be just as good.
Mr. CALDWELL. Who is going to require of the Treasurer
or Auditor that he shall make certified copies?
Mr. SCOTT. This Commission.
Mr. CALDWELL. In case they say, "Gentlemen where is-
Mr. PURCELL. Make a provision for it.
""
Mr. CALDWELL. How is this Commission going to provide
for this?
Mr. SCOTT. That is what we are here for.
Mr. CALDWELL. That is what we are here for. If they
say "Where are my fees?" there is no power to compel them to pay
it. By the very terms of the act these records must remain at
Bismarck.
Mr. PURCELL. On your same line you might say the respec-
tive conventions would refuse to meet. Everybody is supposed
to lend their assistance.
Mr. CALDWELL. Unquestionably, but there are certain
considerations which these gentlemen are perfectly justifiable
in asking shall be first met.
Mr. PURCELL. If we provide for payment it becomes nec-
essary, obligatory upon the Legislature to provide for payment.
Mr. HARRIS. It is the only way South Dakota can get any
place to start.
Mr. CALDWELL. The only way is by the action of the Leg-
islature of the State that so accepts it.
Mr. SANDAGER. Transcribe one for South Dakota or North
Dakota.
Mr. CALDWELL. I say whether one or two, they will have
to be accepted by consent. There is nothing that gives a tran-
scribed record any validity whatever as the record of this State,
except the action of the State.
Mr. PURCELL. The action of Congress says we shall make
disposition. What is meant by "disposition?"
Mr. CALDWELL. It means disposition of particular books.
Mr. MCGILLYCUDDY. Are the books all separated?
Mr. CALDWELL. No, sir; they are not. Everything is taken.
Mr. PRICE. That would be against your proposition.
Mr. HARRIS. There is just one way to look at this business.
If the States are to wait until after the other Legislatures meet,
738
JOURNAL OF THE JOINT COMMISSION.
and then make provision for this, you can imagine into what a
snarl we will be placed. And I don't imagine the Omnibus Bill
intended anything of this kind. They knew it would be necessary
for each of these States to have the records to start on, with the
common records of this Territory when the States are divided and
cut in two, and it will be just as much one part as the others. They
intended that this Commission should make such disposition of
these records as would enable the States to start out in an ordinary-
and business-like manner, and they intended that we should refer
this to each of our Constitutions, and if the Constitutions are
adopted it becomes obligatory upon the Legislature to make pro-
vision for the payment of this work that has to be done. This is
my idea about it, and I don't believe the Treasurer or Auditor
would refuse to go ahead on this basis. We say transcription
shall be made of all records in the Treasurer's and Auditor's office,
one part going to South Dakota, and that the Legislature shall pro-
vide for payment. I don't believe there will be any trouble what-
ever in having these records transcribed, and having the States put
in a position where they can begin in an orderly and business-like
manner. That this Commission should have this power and as-
sume that power, and when their acts are ratified by the people of
the different sections there can be no question about what the
Legislature will have to do.
Mr. McGILLYCUDDY. I have a suggestion, that if this Com-
mission does not take some action, this thing will result in letting
the records remain at Bismarck. After the Legislature assembles
they will say, such records are in the possession of North Dakota;
if these gentlemen of South Dakota want copies, let these gentle-
men make proper provision for transcibing, and thus throw the
whole burden on South Dakota. It is more necessary for South
Dakota to make some provision than North Dakota.
Mr. KELLAM. That would not follow for this reason, that the
records will not be in the possession of North Dakota any more
than South Dakota. The records of the Auditor's office; suppose
that the territorial government ceases to exist with the present
Auditor, as Auditor he would have no successor to whom to turn
these books over. What would be his duty, but to retain posses-
sion of them? I don't know what he would do. I should put
them in a bank and seal them; I think that is the disposition that
should be made of them. I think, as Mr. HARRIS and I stated,
there is one thing for us to do-make provisions for the transcrib-
JOURNAL OF THE JOINT COMMISSION.
739
ing of these records. If it is desired, let it go into the Constitu-
tion so as to impose upon your Legislature to make ample com-
pensation for these officers. But it is an absolute necessity that
we put these new States in possession of such records at the very
start, that they will be able to commence business. If we don't
do it, this Omnibus Bill is a misnomer. The object was to divide
this Territory, to make it into two States and put them into oper-
ation. They cannot go into operation without these records.
Mr. PURCELL. Don't you think this Commission has the
power to make any division of the property and of the debts, and
also have a general power as to the records, etc., and say that copy
shall be made, and say North or South Dakota shall take that copy,
or the original?
Mr. KELLAM. I would not hesitate about that at all.
Mr. PRICE. Now, it is, perhaps, true, if the Territorial Audi-
tor of every Territory has no successor in office, that he might,
perhaps, have control of these records and could place them in a
vault. And that is just why I want this Commission to make dis-
position of these records and avoid a law suit.
Mr. HARRIS. I can't see how putting them in a vault would
help either North or South Dakota.
Mr. SCOTT. Now, suppose he did seal them up and put them
in a vault; then, why, what authority would the bailee-would
he ever have to surrender them to any person? He received them
from Mr. Bailey, the treasurer, and put them in the vault. He
said the Territory receives them from Mr. Bailey, and Mr. Bailey
has given no authority to have them delivered up. Where would
the authority come from afterwards? It seems to me that we are
in just a little the best position, because the records have got to
remain here. We have records here applying to the whole Ter-
ritory, and which refer exclusively to South Dakota, which will
never be of any particular use to us. The records of the institu-
tions, vouchers on which money has been paid, which will be nec-
essary for the continuing of the business of this institution, but
when separated and existing as independent state governments,
we will have no use for these. There are those which apply ex-
clusively to South Dakota-charter of the city of Yankton, or any
city you have in South Dakota. Then, again, we have documents
of similar character relating to similar institutions in the North,
for which you have
use whatsoever; and special
charters and special
applying to the North.
no
acts
740
JOURNAL OF THE JOINT COMMISSION.
If you desire copies of all these, let copies be made. Of the rec-
ords which relate to both, and which all the Territory is interest-
ed in, and must have copies, let copies of these be made, and then
let us decide whether we shall have the copies or you, and that
North Dakota shall pay half and South Dakota pay half. I don't
see that we can arrive at any other understanding. It seems to
me to be the common sense view.
Mr. NEILL. There is a point here we must determine and that
is whether or not we are going to make any disposition of these
records. We may discuss how we will do it, and we can discuss
whether we will do it at all or not. But to bring this matter be-
fore the Commission I wish to offer the following resolution:
Resolved, That disposition of the public records of the Territory of Da-
kota be made with the idea of starting out two new States in public busi-
ness.
Mr. KELLAM. I would say
The motion is seconded.
Mr. CALDWELL. I would say there is upon the Files of this
Commission a resolution covering this matter which is upon the
table for consideration.
Mr. NEILL. This is simply whether we are going to do any-
thing with the records or not.
Mr. HARRIS. Will the Clerk read the former resolution.
The Clerk read the resolution as follows:
Resolved, That any agreement hereafter arrived at by this Commission
relative to the records of the Territory of Dakota shall be reported by the
committees from North and South Dakota to their respective Conventions,
with the recommendation that the same be made a part of the Schedule or Or-
dinance to be submitted with the proposed Constitution for ratification by the
people of North and South Dakota respectively.
Mr. SCOTT. Is it not proper that we should do that? We
don't want any question to arise. We don't want any question to
arise but what North Dakota will pay half.
Mr. NEILL. This is the point, whether we are going to make
any disposition of these records. Settle that and then the manner
or pay will come up very naturally.
Mr. HARRIS. The Omnibus Bill says we shall dispose of
them.
Mr. CALDWELL. It is a question, what shall be regarded as
"disposition."
Mr. PURCELL. In order that the State of North Dakota can-
JOURNAL OF THE JOINT COMMISSION.
741
not take any advantage by reason of the bodily presence of the
records here, it will have to be regarded that these records are not
the property in any sense by reason of their being here, of the
State of North Dakota.
Mr. PRICE. We do not contend that.
Mr. CALDWELL. And the observation of Mr. SCOTT on the
other side, that there is some advantage in favor of North Da-
kota, by reason of the records being at the Capital of North Da-
kota, it seems to me might be said as a matter of advantage, the
fact that the officers in charge, or at least a considerable majority
of these records, are in possession of citizens of South Dakota;
and I make the point, that so far as these records are concerned
in order to prevent anything like a snatch upon the books of this
Territory, that they must be regarded as remaining in the posses-
sion of the officers-of the respective officers-and if there is any
different disposition, if there is to be a transcription, then it is as
necessary for North Dakota to have a transcription as it is for
South Dakota to have a transcription.
Mr. PRICE. That is to be decided further on.
Mr. KELLAM. Your views, of course, seem to be a little ad-
·vanced from most of ours. Will you just state what in your judg-
ment this Commission should do with reference to these records?
Mr. CALDWELL. My judgment as to what this Commission
should do in regard to these records is that there shall be trans-
cribed copies made of such as are necessary in order that the two
States may begin business.
Mr. KELLAM. What would you recommend be the action
in regard to those not wanted?
MR. CALDWELL. That such portion of the records as might
be required by the representatives of North Dakota, as essential to
the establishment of business-we say of the State of North Da-
kota-that that part should be transcribed for their use. That such
portion of the Territorial records as are necessary for the use of
the Treasurer of South Daokta, as may be determined upon to be
necessary by the Commission from South Dakota, should be trans-
cribed and turned over to them, and that the original records.
should remain in the possession of the Territorial officers until the
respective States take steps in regard to them. And here they
would naturally want to know whether it was definitely transcribed
or not. "And until said State officers are elected and qualified
under the provisions of each Constitution, and the States respect-
742
JOURNAL OF THE JOINT COMMISSION.
ively are admitted into the Union, the Territorial officers shall con-
tinue to discharge the duties of their respecttve offices in each of
said territories."
Mr. PRICE. Certainly, a man could not enter upon the dis-
charge of the duties of an office until qualified. I want to offer
the following as a substitute to the one offered by Mr. NEILL:
Resolved, That it is the sense of this Joint Commission that the Commis-
sion should make disposition of the records, archives and books of the Terri-
tory, as provided in section six of the Enabling Act; that they determine what
records each of the new States should have, and when a final disposition there-
of should be agreed upon an agreement shall be drawn and incorporated in the
Schedule and Ordinance of the Constitution of the States of North Dakota and
South Dakota and submitted to the people for ratification or rejection.
Mr. BROTT. I second that motion and move the adoption.
Mr. SCOTT. Will the gentleman please read the resolution
again?
Mr. PRICE read as follows.
Resolved, That it is the sense of this Joint Commission that the Commis-
sion should make disposition of the records, archives and books of the Terri-
tory, as provided in section six of the Enabling Act; that they determine what
records each of the new States should have, and when a final disposition there-
of should be agreed upon an agreement shall be drawn and incorporated in the
Schedule and Ordinance of the Constitution of the States of North and South
Dakota and submitted to the people for ratification or rejectment.
Mr. KELLAM. The question is upon the adoption of that
resolution. That should be considered, gentlemen, in connection.
with the resolution offered by Mr. Camp.
Mr. CALDWELL. "Resolved, That it is the sense of this
Joint Commission that the Commission should make disposition.
of the records, archives and books of the Territory, as provided in
section six of the Enabling Act; that they determine what records
each of the new States should have, and when a final disposition
thereof should be agreed upon an agreement shall be drawn and
incorporated in the Schedule and Ordinance of the Constitution of
the States of North Dakota and South Dakota and submitted to
the people for ratification or rejection." Now I submit that this
resolution springs really from a different construction of the pro-
visions of section six, but I will call attention to what I regard as
the difference. This resolution says, "It is the sense of this Joint
Commission that the Commission do make disposition of the re-
cords." Now the end of the act says that they shall agree upon a
disposition of the records. My point is this, that the Commission
JOURNAL OF THE JOINT COMMISSION.
743
has not the power to absolutely take and convey from the Terri-
torial officers of this Territory the absolute right and title to the
possession of these records by the said officers. The point is this,
that we shall consider and agree among ourselves upon a basis,
and that that agreement shall be final only when it is ratified by
the States, as States. The point I have maintained all along is
that the disposition of the records as under the provisions of sec-
tion six must be made by the States; and that whatever we do is
merely advisory to these respective States, with no other validity
than this, that these gentlemen having been appointed for this
special purpose have duly considered all the matters pertaining to
the records; that they were either present where the records were
kept or had an opportunity to examine them and they ought to
know what ought to be done; and that we are merely the commit-
tee of our respective sections.
Mr. PRICE. How will these States proceed to do business
without having records?
Mr. CALDWELL. So for as transcription is concerned any
validity which that transcription can have must be simply by con-
sent, and that if any person should attack them, nobody could
take and show they possessed any binding force. The only thing
that can give legality to the transcription of the records of this
Territory for the use of the officers of the respective States, is the
action of the States themselves through their law making power.
Mr. PRICE. Let me ask you, supposing, as we contemplate,
this matter is incorporated in the Schedule and Ordinance of the
Constitution and submitted to a vote of the States. Does not that
give it the required validity? I think the voice of the people is
as strong as anything.
Mr. PURCELL. When this matter was up on Mr. CAMP's res-
olution it was new, and I was of the opinion this matter would
have to be referred to the respective States to be dealt with; but
since that time, in reading over the entire act from beginning to
end, it seems to me the course the United States intended was
that the Territory should divide, and that the divided portions
should take on statehood. Now, to effect that, required the ap-
pointment of Commissioners of the respective Conventions to
meet here and agree upon certain things. It directs that this
Commission, who not only agree upon the public records, but it
also directs that we shall agree upon a division of the property.
If the position of Mr. CALDWELL is well taken, the agreement we
744
JOURNAL OF THE JOINT COMMISSION.
make here with reference to the indebtedness and apportionment
of the property is of no validity, because, as he says, if we do
agree we must wait until the Legislature ratifies it. That is not
my construction of section six, because section six says, "after the
appointment of the different Commissions it shall be their duty
to assemble at Bismarck, the present Capital of said Territory,
and agree upon an equitable division of the property." Now, do
you say, when we agree upon an equitable division of the prop-
erty, that our agreement is. to be ratified by the Legislature?
Mr. CALDWELL. I do most certainly, and it is the only
thing they could provide that shall be taken to give validity, by
the action of the people. There is no reference whatever-most
certainly, to the agreement which we make respecting the terri-
torial debts and liabilities. Then go to work and make a special
provision and incorporate that in each of the State Constitutions
and each of the said States obligates themselves to pay the same
as it had been concurred in by each State respectively. Most
certainly an expression in regard to one point is execution in re-
gard to the rest. While I am no lawyer, I have still managed to
pick up, that as a matter of jurisprudence and the fact that it
makes that provision with reference to such an agreement as we
are arriving at, concerning the debts and liabilities, strengthens
my decision very materially that such an agreement as we ar-
rive at regarding the separation of the records of this Terri-
tory, that the records, those which we have undertaken to divide,
to dispose of, must remain at Bismarck until an arrangement for
their final and ultimate and binding disposition is made by the
two States. There is one provision in there in regard to what we
shall arrive at concerning the debts and liabilities, and there is
another regarding the agreement which we may arrive at concern-
ing the archives, books and records. And as I said at the begin-
ning of the consideration of this question when it was postponed
the other day, it was fair to suppose that the injection of that re-
quirement concerning the records and books remaining at Bis-
marck was for the purpose of contravening what might possibly
be the result of any of the acts of the Convention at present in
session at Sioux Falls, in regard to section twenty-eight of the
Schedule and Ordinance of the Constitution of 1885. Section
twenty-eight is precisely in the language of this provision. Sec-
tion twenty-eight reads as follows:
JOURNAL OF THE JOINT COMMISSION.
745
SEC. 28. All the existing archives, records and books belonging to the
Territory of Dakota, shall belong to, and be a part of the public records of
the State of Dakota, and be deposited at the seat of government of the said
State with the Secretary of State.
Mr. PRICE. You don't suppose they would do anything of
that kind.
Mr. CALDWELL. I don't believe it was written in by the
author of the bill, for the reason that the author of the bill, as I
understand, was one of the expectant senators of the State of
South Dakota, and he went to work, as I believe-in section five was
a suggestion of his part of the original draft of the bill, but that
somebody suggested the introduction of this portion, section five of
which I speak, in order that those records might remain here.
Otherwise they might have been removed to the seat of Govern-
ment of South Dakota. And the more I consider the question,
the more I feel that so far as the records, so far as the records,
the books are concerned, that they are no more a question-no
more to be regarded as the property of North Dakota than of
South Dakota, and that any arrangement which we may arrive at
will have to be taken and given validity by the action of our re-
spective States.
Mr. HARRIS. Mr. CALDWELL said before, the disposition
would be to make two copies of these records; that will incur a
liability, and this is a liability that will have to be assumed by
those two States, which these Conventions will have to submit to
the people and have it voted upon, and when it is voted upon it is
obligatory upon the Legislature to pay that liability—to pass laws
providing for the payment of that liability. But I don't believe
the authors of this Omnibus Bill ever intended to place these two
States in the position which Mr. CALDWELL would place them, and
I don't believe it is necessary for us to go to the expense of mak-
ing two transcriptions of these records. I believe a certified copy
of these records is just as good as the original, and it is very little
moment which party has the original and which has the certified
copy. I believe when this Commission has arrived at a disposi-
tion of these records that will enable the two States to start off in
a business like manner, and put that into the Schedule of their
Constitution; if it is adopted it gives it all the validity that is ne-
cessary; and all that is necessary is for the Legislatures of the
respective States to provide for the payment of the liability in-
curred by this disposition.
48
746
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL. In any event, it seems to me anything
like a settlement of this question would not be advisable at this
time, even to the adoption of any of the resolutions offered, for
the reason that suggestions of one kind and another, particularly
in reference to the distribution of such property as pertains to
public institutions, has been held in abeyance here; and so far as
I am concerned, I am ready to go to work. I am just as anxious
this should be held in abeyance, if any advantage there may be if
they be held in abeyance, as well as other questions voted in abey-
ance here.
Mr. PRICE. Every gentleman of this Commission ought to
understand this, that nothing is binding here until the final
agreement is made, when each member of this Commission must
sign it.
Mr. CALDWELL. And, Mr. CHAIRMAN, I ask that this be
kept in mind, that if that resolution be adopted, what does it re-
quire to do away with each a majority vote of both sections? It
stands then as the action of this Commission. It is clinched as
the action of this Commission. So far as I am concerned, I am
ready to clinch.
Mr. NEILL. It was simply intended to do this business when
we get ready. I simply want to know what the opinion of this
Commission is with regard to section six.
Mr. SCOTT. I should say this matter has been brought up en-
tirely at the suggestion of the CHAIRMAN of your Commission,
suggesting it was proper we proceed to do something with the
records. If the South Dakota gentlemen want to go ahead and
consider this question, and come to some conclusion or agreement
on it, why we are ready to do so-at least I am.
Mr. MCGILLYCUDDY. We are ready.
Mr. PURCELL. I stated I was unfamiliar with the question,
and wanted time to consider it; but I have changed my mind, that
this Commission has the right to make disposition of these records
-is to agree here upon what disposition shall be made. And,
feeling as I do, the resolution offered by Mr. PRICE seems to me,
to bind us to nothing that it is the judgment of this Commission
we have a right to make disposition.
Mr. HARRIS. Take what time is wanted; we are ready to vote
at any time.
Mr. SCOTT.
You, gentlemen, are away from home, and we are
not to a day or a week, and if you want to take some time, all
JOURNAL OF THE JOINT COMMISSION.
747
right. It is not to our interest to urge anything along unless you
are anxious to have it determined. The only difference I can see
between Mr. CAMP'S resolution aud this of Mr. PRICE, he says,
"Resolved, That it is the sense that we do dispose;" Mr. CAMP says,
“in case we agree upon a disposition, it shall be done so and so.'
This says we agree to determine upon some disposition, and that
is the only difference I can see between the two resolutions.
""
Mr. PURCELL. If we go ahead and make this disposition and
anybody is injured, an injunction can be obtained; and if our
action is null and void, no harm is done.
Mr. NEILL. What I want to know is if this is our duty or not.
Mr. PURCELL says be believes it is obligatory on us to agree, and
that is what I say, and said all the time.
Mr. McGILLYCUDDY. That is the first time I have heard
you say so.
Mr. CALDWELL. Then you have not had your ears open.
The Stenographer's records show that we have never talked any-
thing other than that we should agree, although I have opposed
the proposition that we should make a disposition settled, final and
absolutely decisive. I cannot see our power to do it.
Mr. PRICE. We are not going to do it. We will submit it to
a greater power than we are.
Mr. CALDWELL. Then we take and assume as is assumed by
this resolution, a power that is not possessed. We say "It is the
sense that we should make disposition."
Mr. NEILL. That is what the law says.
Mr. CALDWELL. No, sir.
Mr. PRICE. You can put the word "agree" in and we will all
vote for it.
Mr. HARRIS. I wish to call your attention to the fact it does
not say we shall make disposition of the public indebtedness.
Mr. CALDWELL. Certainly not.
Mr. HARRIS. We only say that agreement, ratified by the
people, places the Legislature in a position where they have to do
it, and that is all we want.
Mr. CALDWELL. Exactly. And I have not maintained any
other thing. There is a very grave difference between our acting
here in an advisory capacity and our acting here as the final arbi-
trator of the question.
Mr. PRICE. The difference between you, Mr. CALDWELL, and
748
JOURNAL OF THE JOINT COMMISSION.
I, is that I want to fix it here so the States can commence busi-
ness.
Mr. HARRIS. The Omnibus Bill sends us here to be the final
arbitrators.
Mr. KELLAM. I want to suggest the Stenographers cannot
get any kind of a statement in such a meeting as this.
Mr. ELLIOTT. I move we adjourn until 2 o'clock.
Mr. KELLAM. I want to say a word. I don't like any of these
resolutions, and I don't mean to be hypercritical. I think this, all
there is between us grew out of heated expressions. I would not
be in a rush to resolve it is the sense of this Commission to do just
what the Omnibus Bill says we shall do. Now, a resolution saying
it is the sense of this Commission we do that, don't amount to
anything.
Mr. PURCELL. It keeps up a discussion.
Mr. KELLAM. Our resolution ought not to be stronger than
the Omnibus Bill. A resolution covering an important matter
should be carefully drawn, and I have the same opinion as has
been expressed by Messrs. PURCELL and PRICE. We want to
know what the judgment of this Commission is upon the ques-
tion. There is not an agreement. My judgment is that it is the
province of this Joint Commission in execution of the duty im-
posed upon us by act of Congress, under which this Commission
is created, to provide for copies of such public records as will, in
the judgment of this Commission, be required and necessary for
the proposed States of North Dakota and South Dakota to in-
augurate and continue such States respectively, in their several
departments; that an agreement be made by this Commission as
to disposition of both original and copies. Then attach to that
the resolution of Mr. CAMP, and that resolution be reported to the
Convention, incorporated into the Schedule and submitted to a
vote of the people.
Mr. PURCELL. I don't see how it differs.
Mr. KELLAM. This resolution says "This Commission shall
agree upon a disposition." That is precisely the language of the
Omnibus Bill. If we vote it down, we simply say we won't dis-
pose of the duty imposed on us. If we adopt it we simply state
in general terms, a repetition of what the Omnibus Bill says.
Mr. PURCELL. Of course, there is a matter to decide what
the Omnibus Bill is.
Mr. KELLAM. Mr. CALDWELL will hardly say that a resolu-
JOURNAL OF THE JOINT COMMISSION.
749
tion, exactly repeating the language of the Omnibus Bill, is a
proper resolution-if an exact copy of the Omnibus Bill is pre-
sented here, he would vote against it. We have not taken one step
in the direction of what our duties are. We have simply, stated we
shall do what the Omnibus Bill says we shall do. The language
of the resolution is precisely the language of the Omnibus Bill.
The simple point is not there, how shall we dispose of that duty
-how far does it go? That resolution, either adopted or rejected,
does not help out; it merely says, it is the judgment of this Joint
Commission that we discharge our duties under the Omnibus Bill.
Mr. PRICE. That is where the discussion comes.
Mr. KELLAM. Then will the Commission adopt one or the
other. When we in general terms repeat the precise language of
the Omnibus Bill, it does not help us at all. We might just as
well say this: The Commission having met here we will discharge
our duties under it, as to say, we will agree to a disposition of the
public records. If there is a difference of opinion as to what that
duty includes, how executed, than it seems to me some action of
this matter looking in that direction will amount to something. If
we simply adopt a resolution reading the exact language of the
Omnibus Bill I don't think it amounts to anything. I will offer
the following:
Resolved, That it is the judgment of this Joint Commission that in exe-
cution of the duty imposed upon this Commission by Act of Congress under
which this Commission was created, that this Commission should provide for
copies of such public records as will in the judgment of this Commission be
required and necessary for the proposed States of North Dakota and South
Dakota to inaugurate and continue such States respectively, in their several
departments; that an agreement be made by this Commission as to disposition
of both original and copies.
Mr. CAMP offered the following:
"Any agreement hereafter arrived at by this Commission relative to the
records of the Territory of Dakota shall be reported by the committees from
North and South Dakota to their respective Conventions with the recommen-
dations that the same be made a part of the Schedule or Ordinance to be sub-
mitted with the proposed Constitution for ratification by the people of North
and South Dakota respectively."
Mr. PRICE. That it be made a part of the Schedule and Or-
dinance?
Mr. KELLAM. That such agreement adopt the resolution of
Mr. CAMP, and shall be reported by the committees from North
and South Dakota to their respective Conventions, with the recom-
750
JOURNAL OF THE JOINT COMMISSION.
mendation that the same be made a part of the Schedule and Or-
dinance, to be submitted to the people of North and South Da-
kota respectively.
Mr. PRICE. I can't see any difference between the resolution
of mine. I am perfectly willing. I will vote on that.
Mr. KELLAM. Mr. NEILL'S resolution says we shall make dis-
position.
Mr. NEILL. I don't care for my resolution.
Mr. HARRIS.
I think
I want it done with deliberation.
Mr. KELLAM.
How would
it be for two or three gentlemen during the recess, to formulate
what seems to be the prevailing idea with reference to these rec-
ords, and report it to this afternoon's session?
Mr. ELLIOTT. I think it would be a good idea, and I would
make a motion that the Chair appoint a committee of three, and
formulate a resolution and present it to this Commission at its
next meeting upon this subject.
Mr. McGILLYCUDDY. And that the Chairman be on the
committee.
Mr. ELLIOTT. I agree to that.
Mr. HARRIS. I second the motion.
Mr. KELLAM. As many as are of the opinion this motion
should prevail, say aye; opposed, no.
The motion is carried.
Mr. HARRIS. Our Convention meets at 2 o'clock; important
matters, and I don't like to be away.
Mr. SCOTT. Suppose we have a meeting at 8 o'clock to-night.
Mr. HARRIS. I have another meeting that would prevent my
meeting from 8 to 9.
Mr. KELLAM. Could we adjourn until a later hour this
afternoon?
Mr. HARRIS. I think by 3:30 o'clock.
Mr. SCOTT. That is just the trouble with me.
Mr. McGILLYCUDDY. There ought to be some provision
made. I think a mistake has been made by placing these gentle-
men on committees. We are entirely free from committee work.
Mr. HARRIS. That does not relieve us from the fact that we
are on committees.
Mr. PURCELL. It was at our request that some of us went on
committees.
Mr. ELLIOTT. So far as we are concerned, we are materially
JOURNAL OF THE JOINT COMMISSION.
751
interested in the acts of our Convention. We are interested in
the reports of the judiciary and legislative apportionment commit-
mittees. Now, so far as I am concerned, there is no man to repre-
sent my county in that Convention. Other gentlemen are in the
same condition. Now, if you gentlemen could give us a little more
time it would be a great accommodation to us and we would feel a
great deal better over it. We are afraid our committees will re-
port before we get through. I see by this morning's paper that a
number of committees are to report next Tuesday. We are inter-
ested in these reports, just the same as you are interested in the
proceedings of your Convention. Of course, you have more work
to do than our Convention has to do; but, at the same time, we
are just as much interested as you are in yours. Now, so far as
we are concerned, we are in this situation: supposing we get home
to our Convention, and what is done is done contrary to the
wishes of our constituents, they will say, you had no business to
go up on that Commission. We are interested in these matters
just the same as you are, and I would ask that you give us all the
time you can so we can get through as soon as possible.
Mr. McGILLYCUDDY. We are here sure.
Mr. ELLIOTT. We were relieved of the duties of the Conven-
tion and accepted this.
Mr. PRICE. We have a recess over Sunday. Want to see the
prize fight.
Mr. KELLAM. I will state that I think it would be the same
to the gentlemen of North and South-to their interest that we
give more time to this, and it is suggested we now adjourn until
Monday morning at 10 o'clock. They will, in the meantime, ask
the Convention to give us the entire time until we finish.
The CHAIRMAN. Gentlemen, this Committee, the appoint-
ment of which is imposed upon the chair. Have you any sug-
gestions?
Mr. PURCELL. We suggest Mr. SCOTT on our side.
Mr. ELLIOTT. I think we had better appoint two on our side.
Mr. MCGILLYCUDDY. Might appoint as the third part, Mr.
CALDWELL.
Mr. CALDWELL. Of course, I cannot be expected to furnish
the necessary discrimination, but Major KELLAM has stated pre-
cisely what would be my view about it.
Mr. KELLAM. In view of the last expression from Mr. CALD-
WELL, the chair will appoint Mr. CALDWELL.
752
JOURNAL OF THE JOINT COMMISSION.
Mr. PRICE. I move we adjourn until 10 o'clock Monday morn-
ing.
The motion is seconded and carried, and
Commission adjourns.
SIXTH DAY.
BISMARCK, Monday, July 22, 1889.
The Commission met at 10 o'clock a. m.
All the members of South Dakota Commission present; Messrs.
Spalding, Camp, Griggs and Scott of the North Dakota Commis-
sion absent.
In the absence of Mr. CAMP, Mr. HARRIS takes the Chair.
Mr. CALDWELL. This is prepared after a consultation with
Mr. SCOTT of North Dakota, and it was arranged by joining the
resolution offered by Mr. KELLAM with the one previously offered
by Mr. CAMP, with such changes in the phraseology as was neces-
sary.
Resolved, That it is the sense of this Joint Commission that in execution
of the duty imposed upon it by the Act of Congress under which it was created
relating to the disposition of the public records, it should provide for copies of
such records as will, in its judgment, be required and necessary for the proposed
States of North Dakota and South Dakota to inaugurate and continue such
States respectively in their several departments, and that an agreement be made
by this Commission as to the desposition of both original and copies, and that
such agreement shall be reported by the committees from North Dakota and
South Dakota to their respective Conventions, with the recommendation that
the same be made a part of the Schedule and Ordinance to be submitted with
the proposed Constitution for ratification by the people of North Dakota and
South Dakota respectively.
Mr. PRICE. I suppose it was agreed upon that each section
should bear half the expense.
Mr. CALDWELL. That is to be arranged in the recommen-
dation to the respective Conventions.
Mr. PRICE. That is all right-so it is understood. Mr.
CHAIRMAN, I move the adoption of the resolution.
JOURNAL OF THE JOINT COMMISSION.
753
Mr. PURCELL.
There is no quorum on the other side, but I
presume there is no objection.
Mr. HARRIS. I think that will be satisfactory to everybody.
Mr. KELLAM. Mr. CHAIRMAN: This matter has been pretty
thoroughly discussed, and it seems to be the opinion of all that
this is, substantially, the judgment of all. I move that a commit-
tee of two from each side of this Commission be appointed, whose
duty it shall be to examine and recommend to the Commission.
what records should be copied under the provisions of this reso-
lution.
Mr. HARRIS. That motion receive a second?
Mr. ELLIOTT. I second that motion.
Mr. KELLAM. I want to say in regard to this motion now, I
thought if there was somebody here who could agree upon that,
they could be at work as soon as we adjourn. We cannot do very
much at this session.
Mr. PURCELL. Does your motion limit the number?
Mr. KELLAM. That is the idea I had—I am not particular.
Would you have it different? .
Mr. PURCELL. Mr. HAYDEN is better qualified than any one
of our Commission.
Mr. KELLAM. There would be no objection to Mr. HAYDEN
working with the committee. I think the records would, perhaps,
be better with the help that is made from the Commission.
Mr. HARRIS. I think the Assistant Secretaries can do a good
part of the work.
Mr. PRICE. Let them have such assistance as they want.
Mr. KELLAM. They doubtless would have to select different
parties. Would there be any objection to acting upon this motion,
and then at any time you can make a selection so they can be at
work.
Mr. SANDAGER. Do you suppose the business members of
our committee will come here direct from the train?
Mr. PURCELL. I think that they will.
Mr. SANDAGER. I don't think until they come here we
ought to take any action.
Mr. HARRIS. I think there will be no trouble about this.
Mr. KELLAM. We might adjourn then, until afternoon. Of
course, with no quorum here on your side we can do no business,
and we might as well relieve the stenographers, and we might,
754
JOURNAL OF THE JOINT COMMISSION.
however, discuss matters, and we can do it in an informal way
without making a record of it.
Mr. HARRIS.
business done.
Mr. PRICE.
Library.
I think that would be well, as there can be no
Then discuss the condition of the Territorial
Mr. HARRIS. I was going to say-
There being no quorum present of the North Dakota Commis-
sion, the Commission had an informal discussion on various mat-
ters, without having a record made.
After discussion the Commission adjourned to meet at 2 o'clock
p. m.
Commission called to order at 2 o'clock p. m., by Mr. CAMP.
All South Dakota members were present. All of the North
Dakota Commission were present except Mr. GRIGGS.
Mr. CAMP. I believe there was a sub-committee appointed
at the last meeting, to report to this Commission. That will be in
order. The Secretary will please call the roll.
Mr. HAYDEN called the roll. All South Dakota members present.
Mr. GRIGGS of the North Dakota Commission was absent.
Mr. HAYDEN then read the following report:
Resolved, That it is the sense of this Joint Commission that in execution
of the duty imposed upon it by the Act of Congress, under which it was
created, relating to the disposition of the public records, it should provide for
copies of such records as will, in its judgment, be required and necessary for
the proposed States of North Dakota and South Dakota to inaugurate and con-
tinue such States respectively in their several departments, and that an agree-
ment be made by this Commission as to the disposition of both original and
copies, and that such agreement shall be reported by the committees from
North Dakota and South Dakota to their respective Conventions with the re-
commendation that the same be made a part of the Schedule and Ordinance, to
be submitted with the proposed Constitution for ratification by the people of
North Dakota and South Dakota respectively.
Mr. CALDWELL. I would say it is the resolutions offered by
Mr. KELLAM and Mr. CAMP, with such changes as was necessary.
I would move the adoption of the report.
The motion is seconded.
Mr. CAMP.
will be called.
You have heard the motion, gentlemen. The roll
JOURNAL OF THE JOINT COMMISSION.
755
The roll was called and all members voted aye, except Mr.
GRIGGS, who was absent.
Mr. CAMP. Under the rule the resolution is adopted.
Mr. PRICE. I move a committee of two be appointed by this
Commission-be appointed to report to this Joint Commission
how the records shall be divided.
Mr. CALDWELL. And what is necessary to be transcribed?
Mr. PRICE. Yes.
Mr. CAMP. In carrying out this resolution?
Mr. PRICE. Yes, sir, and the cost of the same. Motion is
seconded.
Mr. SCOTT. Would it not be better to make it a committee of
two from each side?
Mr. PRICE. I am not particular. The clerks can go with
them.
Mr. CAMP. The Stenographers have that motion, but perhaps
it would be as well to have it in writing.
The resolution was read as follows:
Resolved, That a committee of two, one from each Commission, be ap-
pointed to examine and report to the Joint Commission what books and rec-
ords it will be necessary to transcribe, and to also report the probable ex-
pense of the same.
Mr. CAMP. You have heard the motion. Are there any re-
marks? If not, the Secretary will call the roll.
All members present voted in the affirmative. Mr. GRIGGS was
absent.
Mr. CAMP. Under the rule the motion is carried. I will ap-
point as that committee, from South Dakota, Mr. CALDWELL, and
from North Dakota, Mr. HARRIS.
Mr. HARRIS. I suggest that you can excuse us, and we can
go at the business.
Mr. CAMP. You are excused.
Mr. SCOTT. I would suggest that we dispose of the record part
of the business-as to who shall have the original and who shall
have the copies. I think, as soon as this Commission determines
that, then we will be in a position to definitely decide the matter
of public records, and then we will be enabled to finish any other
branch of the subject. I make a motion to that effect.
Mr. PRICE. I second that motion. I can speak for myself,
and say, as far as I am personally concerned, I don't care how
these records are divided, whether South or North Dakota has the
756
JOURNAL OF THE JOINT COMMISSION.
transcribed records. I should be perfectly willing to cast lots to
see which should have one and which the other.
Mr. BROTT. I should say further, I would leave it to the
North Dakota Commission to say who should have the originals.
Mr. SCOTT offered the following resolution:
Resolved, That we now proceed to determine as to who shall have the
copies of the public records and who the originals, upon its being ascertained
what records must necessarily be copied.
Mr. CAMP. You have heard the motion; are there any re-
marks?
Mr. MCGILLYCUDDY. I would like to ask Mr. SCOTT if that
provides for disposition of all the records.
Mr. SCOTT. That is intended. I take it for granted South
Dakota should have such records as pertain exclusively to South
Dakota. Copies pertaining to both North and South should be
made, and this resolution merely covered who would retain the
originals and who should have the certified copies.
Mr. McGILLYCUDDY. Are there any records that do not
properly pertain wholly to either North or South Dakota, and still
that will not be necessary to copy?
Mr. SCOTT.
determine.
I presume that remains for this Committee to
Mr. SPALDING. It seems to me it would be well to defer ac-
tion on your resolution until the Committee looks up the records,
and report how many and what they are. I don't know what con-
dition they are in. If they are in a good condition it is one thing,
and if in a poor condition it might be another.
Mr. McGILLYCUDDY. I don't think that motion fully covers
it. There are some of the records that do not pertain wholly to
either side, and still there are some not necessary to copy.
Mr. CALDWELL. It seems to me it would be better to let
this committee report what the condition of the records may be,
as to the necessity for transcription, etc., and after that committee
reports this matter suggested by Mr. Scorr's motion would come
up, and the Commission would have such information as it de-
sires to have.
Mr. SCOTT. Of course it is immaterial to me. It only applies
to such records as are copied, what we shall do with them, who
shall retain the original and who have the certified copy. But it
is immaterial to me.
Mr. CALDWELL.
I would move the consideration of this
JOURNAL OF THE JOINT COMMISSION.
757
resolution be deferred until after the report shall be made by the
special committee appointed to examine the records.
The motion was seconded.
Mr. CAMP. You have heard Mr. CALDWELL'S motion, the
Clerk will call the roll.
The roll was called and those voting in the affirmative were:
North Dakota-Messrs. Camp, Harris, Purcell, Sandager, Spald-
ing-5.
South Dakota-Brott, Caldwell, Elliott, McGillycuddy, Neill-5.
Those voting in the negative were:
North Dakota-Mr. Scott.
South Dakota-Messrs, Kellam and Price.
Mr. Griggs being absent.
Mr. CAMP. Under the rule the motion is carried, and the reso-
lution is laid on the table awaiting the report of the committee.
Mr. KELLAM. Another item I suppose we should dispose of
would be the Public Library; and if no gentleman has a plan or
proposition looking to the division of that, and if it seems to be
the judgment of the Commission, we can dispose of it more intel-
ligently by having some sort of an idea of its value. Would it not
be necessary, or at least desirable, to have a committee appointed
to examine the library and report what, in their judgment, is its
value? I made inquiry of the Secretary this morning, and he
says he has no list or inventory of the books, and don't know what
is there except that all is there the Territory has; that he is mak-
ing an effort through his office to fill up the series of reports or
contributions from different States, and is occasionally receiving
accessions to the library, but has no foundation for making an
estimate by number of volumes or their value.
Mr. NEILL. The Secretary of State?
Mr. KELLAM. Yes.
Mr. CALDWELL. He is the Librarian.
Mr. KELLAM. I don't make it as a motion, but as a sugges-
tion to see whether any gentleman has any different views of the
easiest way to get at that matter.
Mr. CAMP. According to all reports the Library has already
been sufficiently divided.
Mr. KELLAM Have to be divided again.
Mr. CALDWELL. Yes, and separated.
Mr. PURCELL. If you gentlemen of the South should hap-
758
JOURNAL OF THE JOINT COMMISSION.
pen to get it, I would advise you to go to the Library at Yankton
and you will find the major part of it, with Tripp & French.
Mr. PRICE. We will have to leave Tripp out, PURCELL, he is
a Democrat.
Mr. NEILL. Do you mean to say a Democrat could not steal?
Mr. PRICE. He can, but he won't. I presume all the public
documents supplied by the authorities at Washington could be
very generally duplicated.
Mr. SCOTT. The Journals of the different States can be du-
plicated.
Mr. HARRIS. I think Mr. KELLAM'S way is the proper way to
do this, find out the condition it is in and report to the Commis-
sion.
Mr. CAMP. Would it not be well to include copies of records
that are here, the House and Council Journals compiled-that is,
the Session Laws.
Mr. KELLAM. I have no objection to them.
Mr. PURCELL. I second the motion.
Mr. CAMP. You have heard Major KELLAM's motion. If there
are no remarks the Secretary will call the roll.
The roll was called, and all members voted in the affirmative.
Mr. CAMP. The motion is carried. Of how many shall the
committee consist?
Mr. KELLAM. I think two would be sufficient. I suggest
Mr. PRICE of the South Dakota Commission.
Mr. PRICE. I was just fixing that up. The majority suggest
Major KELLAM on the part of South Dakota.
Mr. CAMP. And the North Dakota Committee suggest Mr.
SCOTT's name.
Mr. KELLAM. I would prefer you go on that Committe, Mr.
PRICE.
Mr. PRICE. I would prefer you would, Major.
Mr. CAMP. Mr. SCOTT and Mr. KELLAM will comprise the
Committee.
Mr. PRICE. I don't know but we ought to appoint a commit-
tee to examine and report to the Commission about any other
property lying around loose. I don't know that there is any.
Mr. PURCELL. I suppose there is some property belonging
to the militia.
Mr. CALDWELL. It might be in the Adjutant General's re-
port. There is some little property connected with these head-
JOURNAL OF THE JOINT COMMISSION.
759
quarters such as Railway Commission, Commissioner of Immi-
gration, Superintendent of Schools, and there were lists sent out
to the various officials who have charge of this kind of property,
to make a return for the benefit of the Commission. I would say
I received a telegram from the Secretary of the Railway Com-
mission. I don't know what it takes me for "Please ship furni-
ture Railway Commissioner office to me at once.'
Mr. HARRIS. I move-think the suggestion that a committee
be appointed to look up this militia business a good one.
Mr. SCOTT. This includes a part taxed up to North Dakota
for the Capital?
Mr. CALDWELL. Except what is in the office of the Com-
missioner of Immigration. By the way, there is a lot of it
brought up here from Yankton that has not been included. A
miscellaneous lot of stuff. Perhaps a sub-committee could make
it a special matter and inform the Commission regarding it. I
think Mr. PURCELL'S motion, making it a general motion in re-
gard—we might make one, say in regard to the militia business
and another in regard to the miscellaneous property.
Mr. HARRIS. I was thinking, if we could get committees
enough the Commission could adjourn.
Mr. KELLAM. I would say, I think the second day we were
here the matter of supplies of the officers' headquarters was sug-
gested. Very little was known about whether they had any prop-
erty that ought to be taken into account in this division, and our
Secretary wrote letters to each one of these departments asking
them to report what property belonged to the Territory they had
in their several offices or under their charge, and we have, I think,
responses from nearly all. I got four this noon in the mail.
Some of them have little or none, others have some property.
If the committee should wish these letters should be turned
over
Mr. PURCELL. And part of this furnish part of that incurred,
any indebtedness incurred for furniture?
Mr. KELLAM. What property I had reference to was in the
hands of the Adjutant General. I know he has a type writer and
desk. I presume there are several officers whose headquarters
have property of a similar character. That is what I had in my
mind.
Mr. CALDWELL. I just asked Mr. Quinn, ex-Secretary of
the Railway Commission with regard to what property that body
760
JOURNAL OF THE JOINT COMMISSION.
had, and he said it consisted of a desk and type writer. And none
of that has been included. There is also some property in the
office of Commissioner of Immigration.
Mr. SCOTT. There are probably two or three type writers
there.
Mr. CALDWELL. I don't know, we have got a statement here.
Mr. SPALDING. My impression is I heard at the time it cost
about $1,600 for the Immigration Commission. It is only an im-
pression, however.
Mr. CALDWELL. There has not been any $1,500 or $1,600
put in that. I don't know how much it is.
Mr. SPALDING. Mine was only an impression I heard at the
time.
Mr. HARRIS. I move a committee, one from North and one
from South Dakota be appointed to examine the records as to
militia property.
Mr. BROTT. Why not have it include the other property?
Mr. CAMP. I think, perhaps, they would have a good deal to
do to find out just what property belongs to the malitia, and that
would be sufficient for them. The Secretary will call the roll.
Mr. CALDWELL. This is all immaterial.
Mr. CAMP. If there is no objection we will vote viva voca,
and roll call will be suspended. Those in favor of the motion will
say aye; those opposed, no. The motion is carried unanimously.
I will appoint Mr. SANDAGER and Mr. MCGILLYCUDDY as that com-
mittee.
Mr. KELLAM. I move the appointment of another committee
whose duty it shall be to report what other property belonging to
the Territory should be disposed of by this Commission, not cov-
ered by these appointments.
Mr. CAMP. Any choses in action.
Mr. KELLAM. Different property distributed around. Move-
able property.
Motion is seconded, and carried unanimously. Mr. CAMP and
Mr. NEILL appointed as such committee.
Mr. CAMP. Mr. NEILL and myself then, will constitute that
committee.
Mr, CALDWELL. Mr. CHAIRMAN: It has been suggested to
me by a gentleman, formerly a resident of the Territory, that there
was an act passed by Congress granting, I believe, seventy-two
sections of land to the Territory of Dakota for university pur-
JOURNAL OF THE JOINT COMMISSION.
761
poses; and whether it has been selected or not I don't know. I
think there is a reference to the matter in the Omnibus Bill.
Mr. HARRIS. You don't refer to Ex-Governor ORDWAY?
Mr. CALDWELL. No, to Mr. FLANNERY.
Mr. SCOTT. While I think of it I will suggest-I have been
informed there is $6,000 coming to the Territory from the Federal
Government for military purposes. It would be well enough to
investigate that matter and see whether or not it is a fact.
1
Mr. CALDWELL. Section fourteen of the Omnibus Bill:
"An act to grant lands to Dakota, Montana, Arizona, Idaho and
Wyoming for university purposes are hereby vested in the States
of South Dakota, North Dakota and Montana, respectively, if such
States are admitted into the Union as provided in this act, to the
extent of the full quantity of seventy-two sections to each of said
States."
Mr. SCOTT. Section fourteen says: "There are hereby vested
in the States of North Dakota, South Dakota and Montana."
Mr. CAMP. Is there anything else we can do?
Mr. HARRIS. There may have been a portion of that land se-
lected.
Mr. CALDWELL. It would not amount to anything. Noth-
ing for us to determine. Each State would select its own. There
is another matter that possibly ought to have an investigation
made, and that is concerning existing accounts against the Terri-
tory, as for instance, there is a matter that was spoken of here
some time ago, and I think it proper for this body to consider
such an account as that of Mr. Long, for this Hand Books ac-
count of $1,500.
Mr. HARRIS. Three accounts from the Railroad Commission.
Mr. CALDWELL. This account of the artesian well business
for the Yankton Hospital. If it is of that kind we might have
before the Commission--have something like a definite report, so
far as that can be found.
Mr. PRICE. Of that, $37 I didn't get.
Mr. KELLAM. I would make the committee of the unem-
ployed members.
Mr. SCOTT. There will be another, I think, for something.
Mr. CALDWELL. I move a committee of two-one from
each side-be appointed for the purpose of collecting information
and classifying it regarding claims that may exist against the
Territory, and claims in favor of the Territory.
49
762
JOURNAL OF THE JOINT COMMISSION.
Mr. PURCELL. I second the motion.
Mr. CAMP. You have heard the motion; are there any re-
marks? If not, those in favor of the motion will say, aye; those
opposed, no. The motion is carried unanimously. Committee of
North Dakota name Mr. SPALDING.
Mr. KELLAM. We suggest Mr. PRICE.
Mr. CAMP.
Committee.
Mr. SPALDING and Mr. PRICE will comprise that
Inasmuch as it has been sug-
Mr. SCOTT. Mr. CHAIRMAN.
gested to our Committee that there has been, and there is allowed
by act of Congress, a certain annual grant for the purpose of per-
manent improvements of the Agricultural College at Brookings, I
suggest a Committee be appointed to see how much the College
has received, and put into the permanent improvement fund, from
the federal government. That would come in under our old in-
vestigation, what amounts had been expended for permanent im-
provements.
Mr. CALDWELL. You make that as a motion?
Mr. SCOTT. Yes.
Mr. CALDWELL. As that pertains to a matter which has
been postponed, why it would seem to me to be a proper thing to
have that come up when the matter of Public Institutions come
up.
Mr. SCOTT. That will take time and we might as well have
the facts now.
Mr. CALDWELL. If the plan should be adopted, as it seems.
to me proper, that each institution, each State would take such
institution as might be located within its boundaries, that could
not cut any figure; and in any event it is such a claim as, what-
ever advantage there may have been in regard to it, has been
for the advantage of the entire Territory, and that it could not
properly cut any figure in the matter of distribution. Of course,
if any gentleman desires to secure information concerning that
But it
matter, it unquestionably would be his privilege to do so.
would seem to me to be recommended by this Commission, of the
principle which, as the case stands now, I would not think a mat-
ter of proper consideration.
Mr. KELLAM. We have not agreed upon a plan of distribu-
tion.
Mr. CALDWELL. I understand that, but think it would in-
JOURNAL OF THE JOINT COMMISSION.
763
volve work, and would not be the proper thing to consider prior
to that time.
Mr. HARRIS. Of course this is a matter of assumption on
your part. Now, I should think from what you indicate that, in-
asmuch as the institution to which this money has been appro-
priated and money has been used as permanent improvements,
and inasmuch as it is within the boundaries of South Dakota, and
will become the property of South Dakota, and inasmuch as this
money was donated by the entire Territory, we certainly would be
entitled to something on that ground. It seems to me there ought
to be no objection on the part of the Commission to getting at the
figures.
Mr. BROTT. I think the gentlemen misapprehends the pur-
pose for which the money was appropriated. As I understand it
was for the purpose of a United States Experimental Station, and
the money was used for that purpose. It was for the purpose of
the United States station at that point, and the money was ex-
pended for that purpose.
Mr. CALDWELL.
CHAIRMAN.
Not a Territorial institution at all, Mr.
Mr. KELLAM. This donation from the general government
cost the Territory nothing, no matter how it may have been ex-
pended. It would come in the division of these institutions no
more than the $100,000 donated toward the building of the Capi-
tol at Bismarck. But if it is desired to have this information it
would be better to provide for it now. But that would have been
my view, if the general government appropriated one, two or three
thousand dollars for that purpose, and it has cost the Territory
nothing; it would be upon the same plane with the $100,000 which
was put in the Capitol here, and that neither should be taken into
account. But if the information is desired, we may as well pro-
vide for it now.
764
JOURNAL OF THE JOINT COMMISSION.
SEVENTH DAY.
BISMARCK, Tuesday, July 23, 1889.
Commission met pursuant to adjournment.
The various committees not having completed their respective re-
ports, no business was transacted, and the Commission adjourned
to meet July 24th.
1
EIGHTH DAY.
BISMARCK, Wednesday, July 24, 1889.
Commission was called to order with Mr. KELLAM in the Chair.
The roll was called, and all members present except Messrs.
GRIGGS and SPALDING of the North Dakota Commission.
Mr. KELLAM. Mr. CAMP, shall we wait for absent members?
Mr. CAMP. I don't think it is best.
Mr. KELLAM. At our last meeting several sub-committees
were appointed, and if it is the pleasure of the Commission it
might be well to hear the report of such committees as are ready
to report. Mr. SECRETARY, will you give us these committees ?
Mr. HAYDEN. Yes, sir. The first was a committee of one
from each side, appointed to examine and report to the Joint
Commission what books and records would be necessary to be
transcribed, and also report the probable expense of the same.
Who were on that committee?
Messrs. CALDWELL and HARRIS.
Mr. KELLAM.
Mr. HAYDEN.
Mr. KELLAM. Are you ready to report?
Mr. HARRIS. Mr. CHAIRMAN, AND GENTLEMEN OF THE COM-
JOURNAL OF THE JOINT COMMISSION.
765
MISSION:
Mr. CALDWELL and I, with the assistance of the Assist-
ant Secretary, have gone through all the offices and made a list of
all the property, records and vouchers contained in the Secretary's
Auditor's, Treasurer's and Governor's office, and we have the same
here, with the recommendation as to what we consider necessary
to be copied. As to the expense, we have not made an estimate.
Mr. KELLAM. Is this the list of books and records you re-
commend to be copied?
Mr. CALDWELL. No, that is what we found.
Secretary's office: Election returns, Constitutional Convention,
1889, and local option, 1887, applications and bonds, notarial com-
missions, enrolled bills of general and local application, applica-
tions for pardon, articles of domestic incorporation, papers relating
to organization of counties.
Auditor's office: Vouchers of local application, one bond regis-
ter, county bonds, South Dakota.
Treasurer's office: One warrant register, to go to North Da-
kota; letters to be divided by counties, and vouchers and receipts
the same; bonds, coupons paid, railroad reports of gross earnings;
cancelled bonds, South Dakota.
Public Examiner: Records, to go to sections where located.
Board of Agriculture: Records.
Dental Examiners:
Records.
Board of Pharmacy: Records.
Governor's office: Census returns, two volumes visitors' regis-
ters, official correspondence, requisition papers.
Mr. CALDWELL. There might also be added one volume of
executive records. This is what we recommend to be copied.
Treasurer's office: Three cash books, one journal, two ledgers,
two old books-journal and cash book and ledger. One bond
register.
Secretary's office: Two volumes railroad deeds, mortgages and
leases, twenty-seven volumes foreign and domestic incorporation
records, one general executive record, one record of appointment,
one record of elections.
Auditor's office: Six volumes appropriation records (ledgers),
one volume executive record, one volume insurance record, 1889,
articles of incorporation, domestic and foreign insurance com-
panies.
Governor's office: One requisition record, one executive
record.
766
JOURNAL OF THE JOINT COMMISSION.
Adjutant General's office: Record books.
Supreme Court Records: Record books.
Mr. CALDWELL. There are, also, in the Auditor's office,
some books which we noted, containing official correspondence in
the office, and including the ruling of the office upon questions.
There is a considerable amount of that matter that might be de-
sirable, but the question with the committee was as to whether or
not the expense of copying it could be vested with any advan-
tage; so that matter was referred to the Commission.
Mr. PRICE. Is that all the report? I move the adoption of
the report.
Mr. CALDWELL. You have our recommendation of what
matters should be copied, and the other matters referred to the
Commission.
Mr. SCOTT. Hadn't we better report, and the report be placed
on file, and then discuss the matter, item by item. If the report
contains a recommendation as to what shall be copied and it be
adopted, then would not that be a final action?
Mr. CALDWELL. I think we better consider the matter.
Mr. ELLIOTT. The report is received when it gets into the
hands of the Secretary. The only mention is that it be adopted;
then it brings it up for discussion and amendment if the Commis-
sion see fit to amend it.
Mr. KELLAM. The question is upon the adoption of the re-
port. Are you ready for the question?
Mr. HARRIS. I suppose there is something like 100 more
records there. We made this report supposing that the Commis-
sion would take up the report and discuss the method of disposing
of a great many of these records that are necessary to be copied.
They are of some value, and their disposition will have to be made
by this Commission. No doubt Mr. CALDWELL and I could take
that list and say what we thought would be the proper disposition
of them, but it seems to me that that should be left to this Com-
mission, and the records taken up as they are in this list
and disposed of. Maybe some gentleman will attach more value
to the records than we did, and I think the proper way is to take
them up in the Commission.
Mr. PRICE. I will take back my motion, and move that this
be referred back to the committee to recommend what is necessary,
and what is not necessary.
Mr. CALDWELL. It was the purpose of the committee in
JOURNAL OF THE JOINT COMMISSION.
767
the discussion of these various points to make a suggestion, and
as a matter or suggestion, or as a matter pertaining to the disposi-
tion of these records I will make a statement followed by a motion
It
in regard to the miscellaneous archives of the various offices.
was thought by the committee, and will doubtless be thought by
the Commission, that those archives that cannot be distributed
with reference to the locality to which they particularly apply, as
for instance the vouchers in the Auditor's office that apply to the
public institutions, allowing them to be distributed with reference
to the locality of the institution. And there are many other mat-
ters that can be similarly disposed of. But after all that is dis-
tributed there still remains a considerable body of stuff which
applies to the Territory at large. My suggestion would be that
these various records can be grouped into lots. For instance,
there are the original bills as introduced in the various sessions
of the Legislature, the files of which are nearly complete, and
those things should constitute one lot. They apply exclusively to
neither section. And there are enrolled bills and official
copies.
There are some of these which could be locally
distributed, as for instance, the charters of cities and matters per-
taining to the organization of individual counties. And, as I say,
they can be locally distributed. But after all that is done there
would remain a considerable part of the statutes that would be
undisposed of, and my suggestion would be this: That these
various things be grouped into lots; there be a formal list made,
and that then the representatives of the respective sec-
sions should agree that lots should be drawn for the
first choice out of these groups; that the section
the section that
secures the first choice should make a selection of one
group, and then the other section should make a selection of the
next group, and by that means all the archives of the Territory
would be formally disposed of, and there would not be anything
left without any custodian. And I would move you Mr. CHAIRMAN,
that the various records, which it shall be determined cannot be
distributed with reference to any locality to which they particu-
larly apply, shall be arranged in groups or lots, and that selection.
of them shall be made alternately by the representatives of North
Dakota and South Dakota respectively, and that the first choice
shall be determined by lot.
Mr. SCOTT. I second the motion of Mr. PRICE.
Mr. CAMP. Mr. CHAIRMAN: It seems to me that, perhaps, at
768
JOURNAL OF THE JOINT COMMISSION.
3
+
this stage it is hardly necessary to refer the matter back to the
committee. It seems as though we might take up this matter. I
was about to move we consider the report, but this I cannot make
as an amendment to this motion.
Mr. KELLAM. I understand the question under discussion is
the motion for adoption of the report. Mr. PRICE suggested he
would withdraw it, but it could hardly be withdrawn without the
consent of the Commission. I don't care what particular ques-
tion is considered.
Mr. CAMP. Then I will offer an amended motion that we pro-
ceed to consider the report so we can get in these various amend-
ments as we go along.
Mr. SCOTT. I understand that was the report that was re-
ferred to the Commission.
Mr. CALDWELL. That is unquestionably the case, Mr.
CHAIRMAN. The discussion now is upon the motion to adopt the
report.
Mr. PRICE. I am not particular at all. The object of my
motion was to have it referred back to the committee, and have
them report instead of having speeches made here. Brother
CALDWELL has gone on and made his speech already. I am not
captious at all. If the committee thinks this is the best way,
with the consent of everybody I will withdraw my motion.
Mr. NEILL. Take up this report, and after we have expressed
our views on each subject, refer it back to the committee for their
disposal. I suggest we take up this matter.
Mr. KELLAM. I consider it is now for discussion, and if any
views are developed here from which we regard it advisable to re-
fer back, we can refer it back with instructions, but that the whole
matter is before us now.
Mr. CALDWELL. This committee has made a report, and
made a recommendation in regard to certain things, and in regard
to other things has referred it to the Commission, and now I have
made the motion which I have. It is perfectly regular.
Mr. CAMP. I would like to ask Mr. CALDWELL what records
will be needed for immediate use by the State, we will say of
South Dakota, before the first Legislature can meet.
Mr. CALDWELL. Well, I should say those for immediate
use and which would be absolutely necessary that each State
should have, would be a copy of the last appropriation ledger in
the office of the Auditor, and the cash book, ledger and journal in
JOURNAL OF THE JOINT COMMISSION.
769
1
;
the Treasurer's office containing a statement of the condition of
the accounts at this date. Is there anything else that you think
of Mr. HARRIS?
Mr. PURCELL. Might want the reports from the different
institutions. I presume they are printed.
Mr. CAMP. Mr. CHAIRMAN: In thinking of this before the
Commission met, I had formulated a little statement, reduced to
writing, but do not have it in my pocket. It is this, that this Com-
mission should rep ort and recommend to the Constitutional Con-
ventions that they adopt a clause something like this: That all
the public records referring exclusively to South Dakota should
be delivered to the proper authorities of South Dakota; and the
records pertaining exclusively to North Dakota should be left at
the Capital of North Dakota, and that South Dakota should have
the power to say what other records it should have copied, and the
expense of copying them should be borne equally; and that for
the purpose of dividing the records the first Legislatures of each
State should appoint a committee of two or three who should as-
semble here and divide the records; and if the North Dakota com-
mittee could not agree with the South Dakota committee that a
particular record pertained exclusively to North Dakota or South
Dakota, then they should have the power to say that record should
be copied, and North Dakota should bear half the expense. My
idea is this: If this Commission goes into the labor of actually
going into the archives of the Secretary's office and dividing those
bills, and then goes into the Auditor's office and goes through the
labor of dividing the vouchers, it is going to detain us; and it
seemed to me we should recommend a basis of division, and that
the particular act of division could be done for us by a committee
appointed for that purpose. But, of course, we should provide
for copying such records as Mr. CALDWELL just stated are needed
for the immediate use of the separate States. I don't know how
that will strike the Commission, but I believe it would save us a
good deal of time.
Mr. PURCELL. What is the resolution adopted the other day?
Mr. KELLAM. It strikes me that that this report covers more
ground than that resolution did. Will the Secretary read the res-
olution?
The Secretary read as follows:
Resolved, That it is the sense of this Joint Commission that in execution
of the duty imposed upon it by the act of Congress under which it was created,
770
JOURNAL OF THE JOINT COMMISSION.
relating to the disposition of the public records of the Territory, it should pro-
vide for copies of such records as will in its judgment be required and neces-
sary for the proposed States of North Dakota and South Dakota to inaugurate
and continue such States respectively in their several departments.
Mr. PURCELL. Just there. That would simply apply to the
records.
Mr. CALDWELL. I think there is some others.
Mr. PURCELL. Would it be well to have the assessment roll?
Mr. CALDWELL. The assessment roll is entered upon the
books of the Treasurer we speak of. These books show what the
claim of the Territory is against the several counties, and what
assessment was made.
Mr. PURCELL. Would these books you have just mentioned
cover that part of his resolution?
Mr. CALDWELL. That was my idea it would. So it would
become possible for either side to commence business.
Mr. HARRIS. If I am not mistaken there is an assessment
roll in the Auditor's office, and a duplicate in the Treasurer's
office, and I think we can divide by North Dakota taking one copy
and South Dakota the other.
Mr. PURCELL. I was going to suggest, as far as you have
mentioned only those books which would perhaps show the
amounts that would be due to the proposed States, would it not
be well, also, to take such as would show the indebtedness?
Mr. CALDWELL. Some books show both. They are just the
same as books of a firm. When a firm uses a new set of books, it
brings over all the old balances. The details, of course, remain
in the old books, and balances come over.
Mr. PURCELL. You might read the balance of it now.
CAMP was not here when that was put through.
The Secretary reading:
Mr.
And that an agreement be made by this Commission as to the disposition of
both original and copies. And that such agreement shall be reported to the
committee from North Dakota and South Dakota to their respective Conven-
tions, with the recommendations that the same be made a part of the Schedule
and Ordinance, to be submitted with the proposed constitutions for ratification
by the people of North Dakota and South Dakota respectively.
Mr. PURCELL. I think that should cover it.
Mr. SCOTT. I think the best plan to pursue is Mr. NEILL'S,
and then the actual manual labor can be performed in the manner
suggested by Mr. CAMP.
JOURNAL OF THE JOINT COMMISSION.
771
Mr. CALDWELL. When we come to a consideration of these
several items we can allot it to this general basis. When you
take up a single item you can tell what comes next.
Mr. CAMP. I think we could determine a general principle,
and leave it to the Legislature to do the work.
Mr. PURCELL. Of course, as I understand it now, it is to
make some disposition of these records that the States will have
to have at once, and the balance can be left to the Legislature.
Mr. SCOTT. We ought to be able to determine who shall have
each record, to-day, and then the actual labor of the division can
be made at any time.
Mr. HARRIS. I think we should determine to-day what is
necessary to be copied, because the copying should be done. It
takes time.
Mr. McGILLYCUDDY. Would it not be necessary to deter-
mine and settle upon some basis for dividing? If it is the inten-
tion of this Commission to settle on a basis and let the Legisla-
ture appoint a committee to carry it out, it would require a joint
commission on the part of these Legislatures, and do our work
over again.
Mr. NEILL. How would it be if this Commission should start
in and agree what should be copied?
Mr. HARRIS. That is my idea, to make a disposition of those
the States need at once.
Mr. CALDWELL. I believe that is what is under considera-
tion.
Mr. HARRIS. Seventeen volumes Domestic Incorporation
Records. Would it be necessary that those be copied?
Mr. CALDWELL. I doubt whether it would be necessary
now.
Mr. HARRIS. My idea was, if it was absolutely necessary for
them to be copied sometime, that now is the time to do it.
Mr. PURCELL. Is there many containing powers and privi-
leges that have become extinct?
Mr. CALDWELL. Yes, sir, because the life of a corporation
is twenty years. Some of these extend back thirty-two years ago.
Mr. PURCELL. It seems to me we ought to in some way leave
out those obsolete.
Mr. HARRIS. The difficulty is to determine what is obsolete
and what is not necessary.
Mr. PURCELL. Let the Legislature make some disposition.
772
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL. That would be my idea. Let them ap-
point a commission. And then there is another consideration,
and that is this, that there are really two records in the Secre-
tary's office; there is the original charter as filed by the corpora-
tion, and then there is a copy as recorded in these books. So one
side are temporary books and the other side original files. This
is not the case, however, with reference to the articles of incorpor-
ation of insurance companies. They are merely filed in the office
of the Auditor.
Mr. PRICE. Mr. CHAIRMAN: It seems to me the gentlemen
of this Commission are talking directly the opposite they talked
the other day. It was decided then that it was the privilege of
this Commission to make disposition of these records. Now, the
tenor of the remarks made to-day is this, by gentlemen who took
the other decision in this, we must refer this to the next Legisla-
tures. We are practically saying this Commission has no busi-
ness to make disposition, but leave it to the Legislatures of the
new States. I cannot recede from the position I took at that time;
and it seems to me if the object is to leave it to the Legislatures
to avoid expense, that we are saddling an additional expense upon
the States, because, as has been intimated here, it is absolutely
certain that if this Commission does wind its business up and dis-
pose of it as they think of deciding to-day, the new States will
have nothing to commence business with when they come into
the Union. We have decided it is our prerogative to make this
disposition, and it seems to me we ought to go ahead in a business
like manner and do it.
Mr. CALDWELL. At least so far as I am concerned there has
not been the least intimation or intention of intimating any reces-
sion from the position taken the other day. Not a thing I have
suggested here to-day is in the least degree contrary to the resolu-
tion which was adopted. This resolution says: "It is the sense of
this Joint Commission that in execution of the duty imposed upon
it by the act of Congress under which it was created, relating to
the disposition of the public records, they should provide for
copies of such records as will, in its judgment, be required and
necessary for the proposed States of North Dakota and South Da-
kota to inaugurate and continue such States respectively in their
several departments." Now, the suggestion of Mr. CAMP, which I
think is fair and wise, is that we shall provide for such copies as
would be necessary for either State to take and turn over to its ap-
JOURNAL OF THE JOINT COMMISSION.
773
6
propriate officers to commence the business and the affairs of the
respective commonwealths. There are a whole lot of things,
while they are indispensable to the State and have been a part of
the records of the Territory, are not at all necessary for inaugur-
ating and continuing anything pertaining to any department of
the government of either State; as for instance, these corporation
records. What in the world have they to do with the business of
these States? Not a thing. Take a whole lot of the records of
these various offices-have they anything to do with the business
we have devolved upon these States? The only thing in my judg-
ment that really pertains to the business with these States is the
records of which I have spoken, which show the accounts to date—
accounts of the various debtors of the Territory, and, of course, it
will be necessary to cover those in order that the State may com-
mence business. But these very things have no reference what-
ever with the business of the States, and I say, therefore, there
has been no recession made.
Mr. PRICE. I don't want to prolong this discussion. If the
theory advanced by Mr. CALDWELL is true, then we have no busi-
ness dividing the Public Library. We have no business taking
into consideration any of the property of this Territory. Why?
Simply because the Legislature can hereafter decide to whom this
property shall go, and which State shall have it.
Mr. CALDWELL. It no
Mr. PRICE. That is the suggestion of Mr. CAMP, and you in-
dorse the suggestion. I seems to me this Commission should be
just what the Omnibus Bill says it shall be; and the object and
intention of the Omnibus Bill was, undoubtedly, to avoid expense
in the future, and this Commission should make disposition of
the property. Gentlemen, it seems to me while we are here to do
business we should do it.
Mr. GRIGGS. (Who came in after the Commission was called
to order.) As I understand you, Mr. CALDWELL, you want to take
what books are needed so the States can go ahead? Your view is,
it would take too long to transcribe the whole of them.
Mr. CALDWELL. It not only would take too long, but does
not come under that resolution introduced the other day.
Mr. MCGILLYCUDDY. I suggest that we get down to busi-
ness, and have this committee report what books it is necessary to
copy to permit the States to go on with their business. Next, the
necessary books of the Auditor's office will have to be copied for
774
JOURNAL OF THE JOINT COMMISSION.
future use, and make some disposition of the records that don't
have to be copied. We keep dodging around.
Mr. GRIGGS. How would you ascertain that fact?
Mr. MCGILLYCUDDY. The committee should know what
should be copied to enable us to start in.
Mr. NEILL. I think the way to do business is to keep to our
text. The committee has reported certain measures; what records.
are to be copied. It is simply necessary for this Commission to
go on now and finish this work. Now we have something to work
on, and I am in favor of keeping right on with this and finish-
ing it.
Mr. PRICE. Why can't we agree to copy those recommended
by the committee, and that the officers proceed to copy them-
those that will be necessary?
Mr. HARRIS. We discussed this matter of corporation rec-
ords, fully. The sixteen books relating to domestic incorpora-
tion records, we decided it would be necessary to have them.
copied. The only thing we are driving at now is the time when
to copy. My impression is, if they are to be copied at all, the
time to copy them is while we are copying the other books. The
Secretary of the Territory, who is now in custody of the office,
can put men to work and have these records copied now much
more conveniently than he, or the Secretary of State, or someone.
else who may have the custody of this office. If it is necessary
to copy these seventeen volumes and the ten volumes of foreign
corporation records, I think we should make provision for their
copying now. That this is what this Commission is for; and if
we decide it is necessary to have them copied, that it should be
done now.
Mr. CAMP. Mr. CHAIRMAN: The question in my mind is the
question of power. I believe we are exceeding our power when
we provide for the copying of any of these records but those
which it is absolutely necessary to copy. So far I am willing to go;
but I am not willing to strain our power any further, because we
cannot here make an agreement as to copying these records
which will be binding upon the States--upon either State.
Mr. PURCELL. The resolution contemplates we shall arrive
at an agreement and submit it.
Mr. CALDWELL. It provides, also, we shall ourselves order
the copying commenced.
Mr. PURCELL. Only those which are needed.
JOURNAL OF THE JOINT COMMISSION.
775
Mr. CAMP. My suggestion which I have now reduced to writ-
ing, was this:
of;
Resolved, That all records pertaining exclusively to South Dakota be
turned over to South Dakota; that all records pertaining exclusively to North
Dakota be left at the Capital of North Dakota. That so much of all other
records, not above provided for, be copied as South Dakota shall demand copies
the expense of such copying to be borne equally by the two States. That
the first Legislatures of North Dakota and South Dakota appoint a committee
of three from each Legislature who shall meet at the Capital of North Dakota
and divide the records as above provided, and for coyping as above provided of
any records as to which a majority of both committees cannot agree that they
relate exclusively to South Dakota, and which the committee from South Da-
kota shall require to have copied.
Mr. McGILLYCUDDY. You provide in there for the disposi-
tion of those records not necessary to be copied? As Mr. CALD-
WELL explained, there is a large matter that does not apply to any
section.
Mr. CAMP. I am willing to add, that all other records not
copied and not pertaining exclusively either to North or South
Dakota, shall be divided into lots determined by the committee.
Mr. KELLAM. Gentlemen, the question is still upon the
adoption of the report of this committee.
Mr. PURCELL. It seems to me the resolution of Mr. CAMP
was covered by the other resolution.
Mr. KELLAM. I guess you have come in since the passage of
that resolution, Mr. GRIGGS?
Mr. HARRIS. He was here when the resolution was origi-
nally offered.
Mr. CALDWELL. Mr. CHAIRMAN: I move you that the com-
mittee to which was referred this matter of securing a list of the
books and records, be requested to suggest to the Commission
such books as are absolutely necessary should be transcribed in
order that either State should be in possession of the originals or
copies, in order that it may inaugurate business, and that it be
requested to suggest an agreement as to distribution of other
records.
Mr. CAMP. I second that motion.
Mr. PRICE. I second that motion, too.
Mr. KELLAM. Let us see what condition we are in. The
question before the House is the adoption of the report of this
committee. Do you offer your motion as an amendment?
Mr. CALDWELL. As a re-amendment of this report.
+
776
JOURNAL OF THE JOINT COMMISSION.
Mr. KELLAM. If it is a motion to recommit, of course, it will
be in order.
Mr. CALDWELL.
Mr. KELLAM.
Yes.
The question is to recommit this to the com-
mittee, that they suggest in writing to this Commission the books
and records that are necessary to be transcribed or copied, and
furnished to each of the new States, in order to start the business
of the States respectively..
Mr. CALDWELL. Together with the suggestion as to the
distribution of other books and records not covered by this mo-
tion.
Mr. KELLAM. Gentlemen, this is now the question before
the Commission.
Mr. SCOTT. Mr. CHAIRMAN: Now, we have a list of the proy-
erty which is necessary to make a disposition of. That list is be-
fore us.
If it is recommitted we will have to go over it again.
We can take up this, item by item, and say whether they are the
only ones or not. We can see what copies it will be necessary to
make a record of as we go over these items, and we can see what
pertain exclusively to North or South Dakota, and what is not
necessary to make disposition of. We can arrive at a settlement
of the whole as soon as the sub-committee can, and then it will
have to come back here again. If we come to a conclusion it is
necessary to copy them, there is no question but what it will be
ratified and accepted by the people; and I don't know what's the
use of re-committing and having it come back to the Commis-
sion.
Mr. CALDWELL. Mr. CHAIRMAN: The report of this com-
mittee in its present condition is merely states that there are in
the Treasurer's office five cash books, and in the Auditor's office
seven warrant registers, and such a matter. Now, there is not be-
fore this Commission and there could not have been before the
committee anything without an examination. It seems wise that
they should take some action as to which of those registers or
cash books would be necessary in order that the States could be in
position to go ahead with their business. And this the committee
can take and examine, having had the light of this discussion, and
very readily, it seems to me, suggest something that can be acted
upon by this Commission.
Mr. NEILL. I am opposed to the re-committal of this report ·
for the reason that we can much more readily dispose of the mat-
JOURNAL OF THE JOINT COMMISSION.
777
ter by keeping the report before us, and check up these matters
by amendment, and dispose of them as we see fit under motion
for adoption. The principle I am very much opposed to, and
shall never vote for so far as the work of this kind can be com-
pleted and referred to our Conventions, and through them for rat-
ification. I am willing to carry it out and take the responsibility
for it, and I never want to go home to my constituents and be
forever damned. I want to see these records disposed of now,
according to our best judgment, and I am satisfied our people will
be satisfied with the result. We have a list of all those different
records. If we had gone on and discussed them, I venture to say
two-thirds would have been disposed of now. Just so long as we
keep discussing the matter in this Convention, we will never
reach a conclusion. It has got to be brought down to a basis.
Let us provide for what records must be needed immediately—
those that are necessary to be copied can be copied, and the others
can be disposed of now as well as by any future Legislature. I
am opposed-
Mr. PRICE. I am not afraid of being politically damned, or
anything else. But it seems to me it has been demonstrated that
this cannot be straightened under the plan suggested by Mr.
NEILL. Now, it seems to me that this resolution offered by Mr.
CALDWELL is very plain, indeed; that it instructs this committee
just what to do. Then we will be prepared to offer amendments
to it. Their report will come in in such shape we can offer amend-
ments to it. I believe that it is the business of this Commission
to make disposition of these records. I don't think there is any
tangible report there.
Mr. CALDWELL. Of course it has to be presumed that the
committee that has actually gone and looked up these books, will
have a better idea as to the wants involved in the matter of dis-
tributing them, than those who have not had such an examination.
Mr. PRICE. That is the point, and this committee was not
certain as to what the idea of this Commission in regard to many
things was, and to have gone to work and made a lot of sugges-
tions here that the Commission could not have had before it, was
clearly wrong. I think after having the matter discussed here,
the purpose of my motion was merely that this committee, having
in a sense been instructed by this Commission, could now go to
work and definitely suggest that it would be still necessary that
the original resolution should be carried out.
50
778
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. - We have got the list of these books and we can
inquire of you.
Mr. CALDWELL. I could not tell without further examina-
tion.
Mr. PRICE. When you make up your final agreement if it is
incorrect it will have to be-
Mr. CALDWELL. The circumstances were these: That we
could not go into the Treasurer's office until the meeting of this
committee. We didn't understand then that we could have the
time to examine and see that only certain records were necessary
in order that the business of the States should be inaugurated.
Mr. CAMP. I certainly hope that the motion will prevail, be-
cause the matter having been discussed, the committee can agree
upon it in good shape.
Mr. CALDWELL. Will the stenographer read the motion?
"I move you that the committee to which was referred this mat-
ter of securing a list of books and records, be requested to suggest
to this Commission such books as are absolutely necessary should
be transcribed in order that either State should be in possession
of the original copies, in order that it may inaugurate business,
and that it be requested to suggest an agreement as to distribu-
tion of other records."
Mr. PURCELL. That seems to be all right.
Mr. KELLAM. It seems to me the only difficulty that we en-
counter now, we encountered from the start, and it will be con-
stantly with us--the original question as to what is the power and
duty of this Commission in the distribution of the public records.
It seems to me as a starting point we ought to determine whether,
in our judgment, the duty imposed upon us by the Omnibus Bill
is to make a complete distribution and agreement as to disposition
of all the public records of the Territory; whether that imposition
of duty is large, covering all the records of the Territory, or
whether we propose to dispose of this question upon the ground
of necessity, and not upon the ground that it is a duty imposed
upon us by act of Congress. Mr. CAMP has suggested that he has
grave doubts as to the power of this Commission to provide for
the copying of any records at all; and that he only consents to it
on the ground that it is a necessity in order to inaugurate the new
State government, and to consent only so far as such necessity is
apparent. My own judgment is that it becomes the duty of this
Commission to dispose, by agreement, of this entire question of
COMMISSION.
JOURNAL OF THE JOINT COMMISSION.
779
the public records, just as much as of the entire question of any
other public property. And if that should be the judgment of
the Commission then, of course, we will not discharge that duty
by simply providing for the immediate necessities of the new
States. If it is the judgment of the Commission that what we do
with reference to preparing copies of these records is simply the out-
growth of the necessities of the situation, then, of course, the more
closely we confine ourselves within those necessities, the better
and wiser it will be for us. But if we do it under the provisions.
of sections five and six of the Omnibus Bill, then I think we should
go at it and dispose of the whole question. And it seems to me this
is the fundamental question we should determine in our judgment
before we can intelligently dispose of this question. If we don't,
we will get a little too far, and then undertake to recede a little,
and then, as we get into it further, recede again, and it will be
working back and forth until we come to a conclusion upon the
basis upon which we are acting. We ought to recognize the fact
that we can violate our powers a little, and we can a good deal. I
think brother CAMP's notion is we have no legal power to make
disposition of these records; but, from the necessities of the situ-
ation, we will go a little way beyond our power, but restrain our-
selves as much as we can. In my own judgment, it is the duty of
this Commission to provide for all these matters, and that it is the
duty of this Commission to do so instead of deferring and leaving
it to future legislators. I think we can do it as economically, in-
telligently and as legally. Still there is a doubt in both sections
of this Commission as to what is our power with reference to these
records under the Omnibus Bill, and it seems before we can intel-
ligently pass upon these questions, that we should determine
amongst ourselves how much power we have with reference to the
distribution of these records, and whether that power to dispose
involves the reproduction of the records.
The CHAIRMAN. The question is upon the motion of Mr.
CALDWELL to recommit this report. Are you ready for the ques-
tion? The Clerk will call the roll.
Purcell, yes; Sandager, yes; Scott, no; Spalding, (absent); Kel-
lam, no; Brott, no; Caldwell, yes; Elliott, no; McGillycuddy, yes;
Neill, no; Price, yes. South Dakota four noes, three yes. North
Dakota three yes, two noes.
Mr. KELLAM. The motion under the rule would be lost.
780
JOURNAL OF THE JOINT COMMISSION.
Mr. PRICE. I would like to have some gentleman go ahead
and tell us how to get out of it.
Mr. KELLAM. My own judgment is that this motion should
be recommitted, upon the basis that we all agree upon as the
proper motion. The report of this Committee is indifinite as Mr.
PRICE suggested. There is really nothing that a motion to adopt
will confirm. The report is so indefinite that should we adopt it,
I don't know what we would adopt. I am in favor of sending this
back to this Committee for a more definite report and recommend-
ation, but I am not in favor of referring it with the restricted in-
structions that Mr. CALDWELL's motion covers.
Mr. CALDWELL. Mr. CHAIRMAN: Of course, any report made
by this Committee, or what has been reported, could not be the
definite action of this Commission. Between these two reports
there will be certainly sufficient information-there would have
been in the report—to bring the matter definitely step by step be-
fore the Commission, and if there was any suggestion of the com-
mittee which the Commission did not see fit to confirm, it could
vote it down. If any way it seemed to restrict the powers of this
Commission, it could be enlarged.
Mr. SCOTT. Why not dispose of our powers here, now? I
have the opinion we have the power to make full disposition, and
that it is necessary to make disposition of the records. We cer-
tainly can do it as well as the Legislature. For my part, I am in
favor of taking this matter in hand and making full disposition
of it.
Mr. PRICE. That is what I supposed we were disputing
upon.
Mr. CALDWELL. There was nothing in my motion contrary
to any such idea.
Mr. KELLAM. Then I didn't get the correct idea of the mo-
tion. I thought you said such papers and records as were abso-
lutely necessary.
Mr. CALDWELL. That there should be a report of this Com-
mission under the resolution as originally adopted, and that there
should be, also, a disposition of those other records. Let the
committee report what is regarded as necessary to copy, in order
that the Commission might have before it the necessary informa-
tion, and could definitely act and handle it, that this information
should be before it, and my idea in making such motion was
nothing but that.
JOURNAL OF THE JOINT COMMISSION.
781
Mr. PURCELL. I offer the following resolution:
Resolved, That we make a complete and certified copy of all the records
in their respective departments.
Mr. PRICE. I want to offer an amendment.
Mr. PURCELL. Except those records pertaining exclusively
to North Dakota or South Dakota.
Mr. PRICE. I will offer the following:
Resolved, That the report of the committee on disposition of public records
be referred back to said committee with instructions to report to the Joint
Commission what records should be copied, together with a suggestion as to
what disposition should be made of other books, records and files in the sev-
eral Territorial offices.
Mr. CALDWELL. That covers everything. I presume there
are some matters in these offices that are not necessary to be
copied for either State.
Mr. KELLAM. Mr. PRICE offers as a substitute to Mr. PUR-
CELL's resolution, the following:
Resolved, That the report of the committee on disposition of public records
be referred back to said committee with instructions to report to the Joint
Commission what records should be copied, together with a suggestion as to
what disposition should be made of other books, records and files in the sev-
eral Territorial offices.
The CHAIRMAN. The question is upon the adoption of the
substitute. Are you ready for the question?
Question. Question.
Mr. KELLAM. The question is upon the adoption of the sub-
stitute. The clerk will call the roll.
Camp, yes; Griggs, yes; Harris, yes; Purcell, yes; Sandager,
yes.
Mr. SCOTT. I would ask for information, whether this re-
ferring to this committee, whether it is to go with the idea, with
the understanding that only those books will be recommended for
copying for immediate use, or refer all the books that in their
judgment will necessarily have to be copied, whether for immedi-
ate or ultimate use? .
Mr. PRICE. That is my object, for immediate and ultimate
use.
Mr. HARRIS. Everything that in the judgment of this com-
mittee, will have to be copied; and that we are to report all the
books in our judgment will be necessary to be copied, books,
vouchers, records, papers of all kinds; and also recommend the
disposition of the balance.
782
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. I vote yes. Spalding, (absent); Kellam, yes;
Brott, yes; Caldwell, yes; Elliott, yes; McGillycuddy, yes; Neill,
yes; Price, yes. South Dakota, seven yeas. North Dakota, six
yeas; one absent.
Mr. KELLAM. The next thing is the next committee that is
ready to report. There are several other committees appointed-
I don't recollect what they were. Have you any reports, Mr.
SECRETARY?
The Committee on Miscellaneous Property submitted the fol-
lowing report.
BISMARCK, D. T., July 23, 1889.
TO THE JOINT COMMISSION. GENTLEMEN: Your committee to whom was
referred the matter of listing the property belonging to the various Territorial
offices beg leave to make the following report:
Public Examiner, North Dakota………..
Territorial Veterinarian, as per statement.
•
Railroad Commissioners, Watertown, South Dakota.
Board of Health, South Dakota.
Board of Agriculture, North Dakota.
Board of Agriculture, South Dakota.
·
Adjutant General, as per statement, South Dakota.
Commissioner of Immigration.
Railroad Commission.
• •
Desks, third floor Capitol (old)..
Treasurer's office-safe....
Treasurer's office, scales, measures, etc.
•
•
• •
•
$$
16 50
10 00
45 00
95 00
175 00
150 00
50 00
500 00
300 00
110 00
•
130 00
14 00
187 00
125 00
·
60 00
$1,967 50
Auditor's office, type writer and caligraph.
Secretary's office, desk and safe.
Board of Pharmacy..
Superintendent of Education, North Dakota.
Superintendent of Education, South Dakota.
South Dakota Fair, per statement...
Respectfully submitted,
HENRY NEILL, Committee.
E. W. CAMP,
Mr. PURCELL. What was the purpose of the committee?
Mr. HAYDEN. To ascertain the value of any other property
not enumerated in those assigned to other committees.
Mr. KELLAM. Have you the Adjutant General's statement?
Mr. CAMP. Ninety-five dollars. We have his statement here
and we took the amount from his statement.
Mr. BROTT. I move the adoption of the report.
Mr. KELLAM. In these returns did the several staff officers
inventory the property or give the value of it.
JOURNAL OF THE JOINT COMMISSION.
783
Mr. CAMP. They inventoried it.
Mr. KELLAM. It is not material. The only thought I had
was we could then determine each item.
Mr. NEILL. They are all listed.
Mr. KELLAM. Gentlemen, the motion is upon the adoption
of the report of this committee. As many as are of the opinion
the motion should prevail, say aye. The motion is carried.
Mr. KELLAM. There was also a committee on the Library.
Mr. SCOTT. I would say in reference to the report of the Com-
mittee on Library, that we have made no written report. We have
here a list of the books in the Territorial Library, including all
public records and documents. We didn't take into consideration
the reports of the various departments of the United States Gov-
ernment which are there, the reports of the various State govern-
ments which are there, and State Session Laws and public docu-
ments of the State. We simply inventoried the law books in the
Library together with any miscellaneous books that were in the
Library of any value. We have not been able to put a value upon
them for the reason that we have only two complete sets of law
reports in the Library, Equity Reports and the other, I believe,
is the Kansas Reports, and the balance are in this shape: Ala-
bama, volumes from 45 to 87 inclusive; Mississippi, 48, 49, 51, 52
53, 54, 55 and 56; Arkansas, from 22 to 45; Illinois, 1 to 123 in-
clusive. We find there is on hand sixty-two old volumes in worn
condition. They are of very little or no value to any State Li-
brary. There are also 581 volumes Compiled Laws on hand, and
the committee recommend that those be divided between the re-
spective States; and, also, we have on hand a number of the
Session Laws of 1889, and we recommend that they be divided
between the respective States of North Dakota and South Dakota.
And so far as the Library is concerned, we recommend that North
and South Dakota place its own value upon that Library and that
whichever wants it the worst and is willing to pay the most for it,
pay one-half of the value placed upon it to the other State.
Mr. PURCELL. That report includes those books in Yank-
ton?
up.
Mr. SCOTT. No.
Mr. MCGILLYCUDDY. Appoint a committee to hunt them
Mr. NEILL. How would it do to make Yankton a present of
the library?
784
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. I would say the Secretary made a statement to
us, which I didn't agree with him, that is that any person has a
right to come to the Library and take a volume out of the Li-
brary by merely leaving his receipt for it. It does not seem to
me that is the intent. They can come here and look up the au-
thorities, but not take' the works outside of the Capitol building.
Mr. PRICE. I guess we better take some with us.
Mr. CALDWELL. I would ask upon what basis these books.
-Compiled Laws-shall be distributed. Equally to each section?
Mr. SCOTT. That is what we recommend.
Mr. KELLAM. I thought the 1889 Session Laws had been
distributed under the provisions of the law.
Mr. PRICE. I move the adoption of the report.
Mr. NEILL. I second the motion.
Mr. KELLAM. I was going to suggest to Mr. SCOTT we have
a little more time in detail. I don't know any other way than be-
fore we get through with this work for each party to put in a
sealed bid (as we understand what that means) for the Library;
the one section giving the most for it, it should go there. Of
course, by fixing it in that way they should put the full value
upon the Library, and the one placing the highest value upon the
Library, should have it by paying one-half of the value.
Mr. CAMP. I suggest the report be reduced to writing.
Mr. SCOTT. I presume the Stenographers have it.
Mr. KELLAM. The question is upon the adoption of this re-
port.
f
Mr. CAMP.
I move it be deferred until reduced to writing.
The motion was lost.
The report was adopted.
Mr. McGILLYCUDDY. The Committee on Militia Property
is not ready to report. We could get no information from the
Adjutant General's office. We could get no report. Would say
the following telegram has been addressed to the Adjutant Gen-
eral:
OFFICE JOINT COMMISSION,
BISMARCK, DAK., July 22, 1889.
J. E. HUSTON, ADJUTANT GENERAL, REDFIELD, DAKOTA:
Please have report made by mail without delay, covering all ordnance
stores, arms, ammunition, etc., pertaining to military organization Dakota, prop-
erty of United States or Territory. Indicate where property is stored, names
of officers or individuals responsible for same, and estimated value.
V. T. MCGILLYCUDDY, Committee.
A. SANDAGER.
JOURNAL OF THE JOINT COMMISSION.
785
We have received no answer, I don't suppose it will be over
three or four days. There is no way of getting anything here.
Mr. PURCELL. There are some guns out here.
Mr. McGILLYCUDDY. I don't know who they belong to.
I don't know who is responsible for those arms.
Mr. SCOTT. I suggest the committee report if they ascertained
where there is anything due from the United States Government.
I understand there is an appropriation of $6,000 coming to the
Territory so long as it remains a Territory, for military purposes.
Mr. KELLAM. This committee reports progress and asks for
further time.
Mr. HAYDEN. Committee on Claims-Mr. PRICE and Mr.
SPALDING—is the next one on the list.
Mr. PRICE. Will state I saw Mr. SPALDING immediately after
the adjournment of the session and indicated to him I was ready
to commence the labor of the committee, but he went home the
day previous and had been eating string beans, and indicated he
was not feeling well enough to discharge his duties, and I told
him I would act on his pleasure. And I have not seen him since.
I will state further, gentlemen, that I organized myself into a
committee of one and have made an expedition. I find there may
be a good many unliquidated claims againet the Territory, but
there is no record in the Auditor's or other offices, and it occurred
to me it might be well to act on the suggestion of the Auditor,
inasmuch as there are a great many claims unliquidated, and that
would be to recommend to our respective Conventions the ap-
pointment of a joint commission of the Legislatures of the re-
spective States to pass upon these unliquidated claims. I don't
think it would be within the scope or within the power of this
Commission to say that these unliquidated claims should be paid,
but we might recommend action by the respective States. I find
Brother GRIGGS has a claim against the Territory, and Smith, of
Huron; and Mr. Long has a claim against the Territory for pub-
lishing Long's Hand Book. Of course we are not a legislative
body, and I don't think we could take any action for the payment
of these claims. We could, however, refer them to the respective
States, and they could then be referred to a commission appointed
by the Legislators. This is only a partial report. I saw Brother
SPALDING to-day, and we will present, perhaps, a written report at
the next session.
Mr. CALDWELL. Mr. CHAIRMAN: I believe it has been set-
786
JOURNAL OF THE JOINT COMMISSION.
tled as a fundamental principle pertaining to the powers and duties
of this Commission, that it must make an absolute, definite and
final disposition of all these things; and it would seem to me that
the suggestion in reference to the subsequent commission would
be in contravention of what has been fixed as the principle that
would be necessary to adopt.
Mr. PRICE. I want the Commission to understand that this
was not my suggestion, but the suggestion of the gentleman who
occupies the same position Mr. CALDWELL did at one time. It
seems the minds of some are for referring things to future Legis-
latures. Really, this committee has absolutely nothing to do. In
my judgment we cannot report anything. While there is a lot of
things against the Territory, as I before stated, there is no record.
There is nothing that properly comes before this committee.
Mr. CALDWELL. Mr. CHAIRMAN: I have here one of the
provisions of the Enabling Act, section six. I believe that this
Commission must adjust and agree upon the amount of debts and
liabilities of the Territory.
Mr. PRICE. Let me suggest this: There is no claim properly
filed. I submit there is nothing for us to take action upon.
Mr. PURCELL. Mr. PRICE's theory is he is not going to run
around this country and find out claims. He has got claims
against the Territory.
Mr. PRICE. The Auditor informed me when a claim is re-
jected it is returned and no record made of it.
Mr. HARRIS. With regard to Mr. Long's claim, he gave me
a copy of the bill and copy of act passed last winter by the Leg-
islature, and, while I will not be certain, I think that it was passed
and was allowed to go into the "soup" by the Governor of the
Territory. The record is there. I handed it to Mr. SPALDING,
who has it.
Mr. PURCELL. Why would it not be well to make a report
of those claims we can tell, existing against the Territory. For
instance, the claim of Mr. Long, Mr. Smith or Mr. GRIGGS, and
what other claims we can find.
Mr. PRICE. I am still with Brother SPALDING, and ask for
time.
Mr. NEILL. I would like to inquire what the status of a claim
would be if the claim should be presented after the Territory had
been divided. Where would they come in?
Mr. PRICE. For fear I might be on the bench I decline.
JOURNAL OF THE JOINT COMMISSION.
787
Mr. SCOTT. They would be in the same position as copart-
ners; they could recover of North or South Dakota.
Mr. KELLAM Could not get service.
Mr. SCOTT. Present it to the Legislature.
Mr. KELLAM.
Mr. PURCELL.
Perhaps we can settle it.
Of course, the claim of Mr. Long is no better
than the others. My idea is those claims we could ascertain
should be brought before us, and we could then decide what to do
with them.
Mr. KELLAM. I think the suggestion of Mr. PURCELL is a
good one, that so far as this committee can get information about
existing claims it would be well to present them to this Commis-
sion, so we can have some idea of what they are, and then if we
want to make any recommendation in regard to consideration of
the claims hereafter we can do it.
Mr. PRICE. Very well, we will make a written report.
Committee on Federal Appropriations-Messrs. PURCELL and
ELLIOTT.
Mr. PURCELL. I believe we were to look up the Federal Ap-
propriations. I desire to say we have been at work very hard.
We have come to the conclusion we cannot make a detailed report
without taking a trip to Washington and examining the records
there, and see what appropriations have been made, and if the
Commission feel like making provision for transportation, we
would go to fully complete this report. But we ran across a little
book to the Governor, and from that we are compelled to make
our report. There was $15,000 appropriated by the United States
to the Government Experimental Station at Brookings. There
has been $9,126.17 of that expended for permanent improvements,
as I figure it. The items of this calculation are as follows:
Teams and harness...
Horticultural implements and tools..
Seeds, trees and plants....
Hot beds, marking targets, etc..
Plant house..
.
Library books, periodicals and cases
Office furniture..
Chemical supplies and apparatus..
Meteorological instruments..
• •
Entomological supplies and apparatus.
899 30
706 60
702 60
•
•
134 13
3,000 00
1,391 13
283 00
1,141 15
58 85
391 37
Making in all $9,126.17 of the $15,000 which has been used just as
has been indicated by the appropriation. Besides, I am informed
788
JOURNAL OF THE JOINT COMMISSION.
there was a donation of 640 acres of land to the Insane Asylum at
Yankton; and there are some other donations, I am informed, that I
am unable, at present, to give any satisfactory information in re-
gard to. It is particularly difficult to ascertain these things, be-
cause there seems to be no record made of them, and what we got
is simply from this small report.
Mr. ELLIOTT. Our duty simply pertained to the Brookings
institution, under the motion.
The following letter was now read:
DAKOTA AGRICULTURAL COLLEGE,
BROOKINGS, SOUTH DAKOTA, July, 19 1889.
HON. J. H. DRAKE, SECRETARY JOINT COMMISSION:
DEAR SIR: Thinking something more in detail may be needed than I was
able to telegraph you in answer to yours of this afternoon, I write this line
and send you some documents. The United States funds are for the mainte-
nance of a United States Agricultural Experimental Station for Dakota. By
the act of March 2, 1887, organizing those stations, $3,000 the first year may be
used for building, and $750 each year thereafter. In the two years of our ex-
istence we have used these sums; $3,750 for buildings. We have also used
about $1,500 for library and chemical aparatus, and a few hundred for sundry
other permanent improvements. The balance due has been used for such cur-
rent expenses of maintenance as seed, labor, salaries, printing and distributing
bulletins, alike for the two Dakotas. I enclose copy of Congressional Act, and
of first annual report. Trusting these will be satisfactory and sufficient,
I am respectfully,
LEWIS McLouth,
•President of College and Director of Experimental Station.
P. S.-It is possible on a close classification that $7,000 may be counted
for permanent improvements. It is a little difficult to draw the line.
L. M. McL.
Mr. CALDWELL. The language of the act would indicate
that this property is not, to any extent, whatever the property of
the Territory, nor would it become the property of South Dakota.
It remains the property of the United States; and upon the divi-
sion of the Territory of Dakota into two States, the State of
North Dakota could at once procure from the United States pre-
cisely these same appropriations which South Dakota has had; so
that it would seem to me that it could not be a claim to any ex-
tent whatever, that South Dakota should be required to account
to North Dakota for whatever it may have received in the way of
permanent improvements, furnishing or maintenance of this ex-
perimental station, which as I said before, is distinctly the Fed-
eral Station.
JOURNAL OF THE JOINT COMMISSION.
789
Mr. PURCELL. I don't see how you can consider it in that
way. It is not a separate and distinct institution. It shall be
allowed to use one-fifth of any other appropriation at any time
for permanent improvements in connection with the College.
Mr. BROTT. That has reference to the Station.
Mr. SCOTT. I presume that will come up for discussion.
Mr. PURCELL. The sum of $15,000 of appropriations is made
to the State or Territory. This Station is made in connection
with the institution already established in the State or Territory,
and I believe is run in connection with the College.
Mr. CALDWELL. Certainly, but it may be as I understand
it-if there be
Mr. HARRIS. Mr. CHAIRMAN: As this question will come up
in connection with the public institutions, I move the report of
this committee be accepted and adopted.
The motion was seconded.
Mr. KELLAM. The motion is upon the adoption of the report
of this committee.
Mr. PURCELL. I ask leave that the report be put in writing.
The Major and I will get together and draft it.
Mr. HARRIS. I withdraw the motion then. I move you we
adjourn.
Mr. CAMP. Now, gentlemen, how long will it take to finish
up this sub-committee business?
Mr. CALDWELL. I should say probably four or five hours.
Mr. HARRIS. I think so; we will have to go into the offices
and examine more carefully. We were to meet at 2 o'clock yes-
terday, and a matter came up in our Convention in which we were
interested where the vote was 31 to 31, and the Chairman had the
deciding vote. It was a matter in relation to counties and county
seats which, if it had carried, would have made it possible to relo-
cate and move any county seat in North Dakota, and it was neces-
sary for us to be there. And I don't know but something of the
same kind may come up this afternoon. Now, the continuation
of that same part of the Constitution will come up this afternoon,
and if we could fix that up in time for this sub-committee to re-
port, and fix them up this evening-
Mr. CAMP. We will be through with the work by 3:30 o'clock.
Mr. HARRIS. Make it then, 3:30 o'clock. I want to get
through with this work as soon as possible.
Mr. CALDWELL. I would suggest consideration of the fact
790
JOURNAL OF THE JOINT COMMISSION.
that the Convention of South Dakota is lingering along, simply
awaiting the result of the work of this Commission.
It is ap-
proaching harvest time down there, and many of our members of
our Convention with us are agriculturalists and want to be at
home, and anything that can be done to hasten our getting away
would be particularly acceptable on that account. Of course, there
are some things down there-matters in which members of this
Commission are quite interested in, and that we are necessarily
away from there.
It seems to me it might be possible for the
gentlemen in the matter that has been referred to by Mr. HARRIS,
to pair with some members of the Convention, who would be up-
on the other side with regard to the questions that would arise.
Mr. SCOTT. Can we do anything this afternoon, anyway, un-
til the reports are made? I have a suggestion to offer-I don't
know whether it will be acceptable. Supposing each Commission
prepares an offer as to basis of lump settlement of the division of
the Territorial assets, covering everything but the records. For
instance, let us make a proposition covering the whole business in
a lump.
Mr. CALDWELL. That could not be of any value unless it
should go quite largely into the details as to consideration by
which the respective parties had arrived at a conclusion.
Mr. SCOTT. You can state the reasons which induced you to
arrive at your conclusion.
Mr. KELLAM. I would favor the suggestion; I would favor
the idea of each side preparing what it regarded as a fair and
natural basis, a fair plan to dispose of these questions, save the
public records, making it as a proposition to be considered by the
other side in Joint Commission.
Mr. McGILLYCUDDY. I am in favor of that.
Mr. KELLAM. The details would be discussed. We would
develop the fact we could agree easier, or we could not at all.
Mr. CAMP. Can't we have a meeting this evening at 7:30
o'clock.
Mr. PURCELL. We have a meeting of the Legislative Com-
mittee at that time.
Mr. CALDWELL. There is Ordway's reception.
Mr. HARRIS. That is to-morrow night.
Mr. HARRIS. If this proposition of Mr. SCOTT is looked upon
favorably, it seems to me perhaps we would make as much head-
way by adjourning until to-morrow morning at 10 o'clock.
JOURNAL OF THE JOINT COMMISSION.
791
Mr. HARRIS.
Make it 9 o'clock.
Mr. PRICE. Any time after 7 o'clock in the morning would
I move you-
suit me.
Mr. KELLAM. If we meet at any time before 9.30 we will
have to meet at your rooms. It is to be understood that each side
will get down to a candid, actual business proposition, not merely
to make a proposition for the sake of doing up the other side par-
ticularly. It seems to me that would be a very fair way of start-
ing the thing. Now, in regard to some of the matters, I would
not be prepared to give my consent to another basis than the one
I have already suggested.
Mr. SCOTT. If any proposition is made it should be busi-
ness.
Mr. CALDWELL. So my idea would be, for instance, each
side make a sort of a general proposition covering all these things;
each side making a proposition in regard to the various lump
items. We will say, here are the public institutions, let there be
a proposition in regard to them. Then a proposition with regard
to the division of other indebtedness of the Territory, which will
necessarily arise before division can take place. It will be neces-
sary for the Territorial Government to negotiate a loan which will
have to be taken care of. And another consideration has been
urged here, the rebate of taxes paid by these various North Da-
kota counties, which cases are now in the Supreme Court, and
things of that kind; and so the necessity of making it broad to
cover all these things. It seems to me the proper way would be
to make a proposition in regard to the various items.
Mr. KELLAM. My idea would be with the view that each
side has come here for the same purpose, and that is to make a
reasonable and fair settlement of these matters, and that all these
matters have been pretty thoroughly discussed, and now the
speediest way we can settle, if we can settle at all or not, and if
we can, upon what basis, will be sooner developed by each side
formulating its idea of what a fair settlement would be, than in
any other way. Of course, this proposition would have to be in
departments. They might have to be in sections.
Mr. CALDWELL. Be in departments so it can be considered
in detail.
Mr. SCOTT. We have now discussed each particular detail of
this and have got facts and figures. My idea was to suggest a
proposition which would cover these things as a whole. Each
792
JOURNAL OF THE JOINT COMMISSION.
1
side could say how they arrived at their conclusion, and see,
whether or not, the reasons were good ones and whether
or not, the proposition as a whole was, under the circum-
stances, the easiest way out of it, and add all these matters into
one proposition.
Mr. KELLAM. Of course, that would necessarily
Mr. PURCELL. The proposition should go into detail.
Mr. CAMP. You take up the Library and make a proposition
in regard to that.
Mr. CALDWELL.
For instance, proposition with regard to
the public indebtedness of the Territory. A proposition with re-
gard to the other property than that included in the public insti-
tutions.
Mr. HARRIS. I don't think that was Mr. SCOTT's idea--
his idea was a general idea of settlement. These different things,
of course, would have to go in the detail-to be in one proposition
or settlement. There might be details that would be referred to
by South Dakota we might object to. There might be details the
other side might object to. There might be details not objected
to by either party, and in that way we can arrive at a settlement.
Mr. PRICE. It was my original idea we ought to settle one
thing at a time, but I don't know but what this is a pretty good
plan.
Mr. CALDWELL. Each side to arrange. This proposition,
of course, does not bind anybody to anything, but would be a help
toward promoting the purpose for which we are assembled, and if
Mr. SCOTT makes that as a motion I would second it.
Mr. SCOTT. I am in favor of anything that will assist a speedy
settlement. If this will do it I am in favor of it. If not, I am
not in favor of it. I am inclined to think it will.
Mr. SANDAGER. It seems to me there are some important
questions on which we have not been able to get anything definite
to start, for instance the military.
Mr. KELLAM. It will develop what points of difference
there is.
Question.
Mr. KELLAM. The only thing I would like to have discussed,
if it is necessary, is that both sides get about the same idea what
shape this proposition is going to take.
Mr. SCOTT. My idea is this. We will take the difference.
On one account you are indebted to us so much; on another you
JOURNAL OF THE JOINT COMMISSION.
793
are indebted to us; the total between those accounts would be so
much. We say—here, you have your institutions, we have ours;
you assume yours, we assume ours, as settlement in full; we take
our personal property, you taking yours; you are indebted to us
so much, we are indebted to you so much.
Mr. HARRIS. I second the motion of Mr. SCOTT.
Mr. KELLAM. The motion of Mr. Scorт is that each sec-
tion of this Commission submit, at the next joint session to-mor-
row morning, a proposition of settlement involving all matters ex-
cept the distribution of the archives and records of the Territory.
The question is upon this motion. Are you ready for the ques-
tion?
Question.
Mr. KELLAM. The Clerk will call the roll.
All members voted in the affirmative. Messrs. SPALDING and
NEILL absent.
Mr. KELLAM. The motion is carried.
Mr. HARRIS. I move we adjourn until 9:30 o'clock to-morrow
morning.
The motion was seconded and carried, and
The Commission adjourned.
NINTH DAY.
BISMARCK, Thursday, July 25, 1889.
The Commission met at 10 o'clock a. m. E. W. CAMP in the
Chair.
Mr. CAMP. The Clerk will call the roll.
All members present except Messrs. HARRIS and SPALDING.
Mr. CAMP. There were to be two propositions submitted this
morning-one from North and one from South Dakota.
Mr. McCLARREN, Clerk of the South Dakota Commission read
the following proposition of the South Dakota Commission, as
follows:
51
794
JOURNAL OF THE JOINT COMMISSION.
PROPOSITION OF SOUTH DAKOTA COMMITTEE.
Public Institutions. Each State shall take the institutions located within
its boundaries, with its appurtenances, furniture, etc., and shall assume the
payment of all indebtedness against the Territory, on account of such institu-
tions respectively.
That any unexpended balances, either from bonds or direct appropriations,
remaining in the Territorial Treasury at the date of dissolution of the Terri-
torial government, shall follow the institution on whose account such bonds
were issued or appropriation made, and go to the State which takes such in-
stitution.
Miscellaneous Property. All other items and articles of personal property,
except the Territorial library and records, shall be divided equally between
North and South Dakota.
Territorial Library. Each Commission shall submit a sealed proposition
stating a sum certain at which it is willing to take said library, including such
books, records and volumes as may be added thereto up to the time of the dis-
solution of the Territorial government, and the library as aforesaid shall go to
the section whose bid as above provided, is the highest, and at the amount so
bid, and such sum shall be accounted for in the settlement to be made by the
Joint Commission. This disposition shall also include the library in Auditor's
office.
An arrangement shall be made by this Commission with the Territorial
Auditor by which he shall keep and abstract the assessment returns from the
several counties of the Territory in two classes or groups, putting and keeping
the counties of North Dakota in one class, and the counties of South Dakota
in another class, and such distinction and separation shall be maintained and
preserved through the Auditor's and Treasurer's office, to the end that all taxes
paid into the Territorial Treasury, from such assessment, by the counties of
North Dakota and South Dakota respectively, shall be kept separate and dis-
tinct from each other.
Any and all claims of the Territory against counties on account of delin-
quent taxes shall go to and belong to the State within which such counties shall
be located; and all credits for taxes overpaid by counties shall likewise go to the
State within which such counties may be situated.
Aná balances of cash remaining on hand at the termination of the Terri-
torial government, and not otherwise covered by this proposition, or appropri-
ated by law, shall be equally divided between North and South Dakota; and
all indebtedness, except as otherwise herein provided, shall be assumed and
paid by North Dakota and South Dakota, share and share alike.
Mr. PURCELL. Read that first statement again.
Mr. KELLAM. "Each State shall take the institutions located
within its boundaries, with its appurtenances, furniture, etc., and
shall assume the payment of all indebtedness against the Terri-
tory on account of each institution respectively. That any un-
expended balances, either from bonds or direct appropriations
remaining in the Territorial Treasury at the time of dissolution
of the Territorial government, shall follow the institution on
JOURNAL OF THE JOINT COMMISSION.
795
whose account such bonds were issued or appropriation made,
and go to the State which takes such institution."
Mr. HAYDEN read the following:
PROPOSITION OF NORTH DAKOTA.
To the Joint Commission:
The Committee from North Dakota makes the Joint Commission the fol-
lowing proposition:
All public institutions and buildings located in South Dakota shall be the
property of South Dakota, which State shall assume and pay all the bonded
indebtedness arising out of and issued for their construction, and the same as
to North Dakota, except the Capitol at Bismarck. All personal property and
miscellaneous effects now in South Dakota, except militia outfits and accoutre-
ments, shall be the property of South Dakota; and all of the same in North
Dakota, except militia outfits and accoutrements, and also excepting the furni-
ture and fixtures of the Capitol at Bismarck, shall be the property of North
Dakota. The State of South Dakota shall pay to the State of North Dakota,
as a full settlement of unbalanced accounts, and of all claims aganst the Terri-
tory arising out of the unlawful taxation of the Northern Pacific Railroad
lands, which claims shall be assumed by the State of North Dakota, the sum of
$60,000. Should South Dakota desire the State of North Dakota to assume
the ownership and control of the Capitol at Bismarck with its furniture and
fixtures, including all claims against the Territory arising out of the acceptance
of the grant of lands made to the Territory for capital purposes, and further to
assume its bonded indebtedness, the State of North Dakota will do so upon the
payment by South Dakota to North Dakota the sum of $40,000. All other un-
ascertained and unliquidated debts of the Territory of Dakota shall, when
proved, be borne equally by the States of North Dakota and South Dakota.
And all claims in favor of the Territory shall accrue to the benefit of the re-
spective States in like proportion. The State of North Dakota shall be entitled
to all delinquent taxes due the Territory at this date from counties located in
North Dakota, and the same as to South Dakota. From and after March 11,
1889, the State of South Dakota shall be credited with all taxes collected from
counties within its boundaries, and charged with all moneys paid out by the
Territory for appropriations made to the public institutions situated therein
and one-half of all other expenditures, and the same as to North Dakota.
Mr. PRICE, How about the Public Library? I presume that
is generally understood?
Mr. CALDWELL.
committee.
That would come here on report of the
Mr. CAMP. We are perfectly willing to let the Public Li-
brary go as suggested.
Mr. SCOTT. Yes, that was the understanding.
Mr. CAMP. I think it was.
Mr. KELLAM. Suppose you read that again.
Mr. CAMP. Gentleman requests that the offer of North Da-
kota be read again.
796
JOURNAL OF THE JOINT COMMISSION.
Mr. BROTT.
Please read it a little slower.
The proposition was re-read.
Mr. CALDWELL. I suppose, Mr. CHAIRMAN, of course there
will be necessity for each side to have time to consider the propo-
sition made by the other side; and I would move you that further
consideration of the propositions be postponed.
Mr. SCOTT. I suggest our Clerks be instructed to make copies
for the use of the respective members of the Commission.
Mr. PRICE. Each member would like to have one.
Mr. CALDWELL.
Mr. KELLAM.
Yes.
Now we have a definite proposition from each
side, and, of course, the propositions will be more fully and intel-
ligently considered after they have been discussed by each side by
ourselves, and it occurs to me perhaps we better take a recess, or
adjourn until such later hour in the day as we can agree upon
meeting, giving each side an opportunity by itself, to discuss these
propositions.
Mr. PRICE. We might take this report of Messrs. CALDWELL
and HARRIS.
Mr. KELLAM. If we can dispose of these propositions and
reach an agreement upon the grounds covered by these proposi-
tions, why we have got the greater part of our work accomplished.
I don't care particularly how it is done, but it occurs to me that
we have got to give more thought and attention to this than to
any one subject; and that the Library being disposed of as we
have subsequently agreed, it leaves only the matter of the records.
Now, I suggest that we better put it in the shape of a motion, but
I would like to hear how the gentlemen of the other side feel
about the matter.
Mr. NEILL. How long would you want to take that recess
for?
Mr. KELLAM. My thought was until sometime this afternoon
when these other gentlemen would be sufficiently at leisure to
make an appointment.
Mr. SANDAGER. Would it be well to hear from the sub-
committees who were to look into some of the affairs, such as the
Library?
Mr. PURCELL. There is no question about that, Mr. SANDA-
GER; we have practically agreed, and we are to bid for it and the
highest takes it.
Mr. KELLAM. Might we hear this report of Mr. CALDWELL,
JOURNAL OF THE JOINT COMMISSION.
797
and HARRIS. Mr. HARRIS isn't here, Probably during the after-
noon by discussing these propositions amongst ourselves we can
reach, upon each side, some point to which each side would be
willing to go in coming together, but as I say, I am not captious,
and don't care which plan we adopt, only Mr. HARRIS is not here
and there are a good many questions arising in the discussion of
that report, and we should like to hear from Mr. HARRIS. I am
in the same condition Mr. CAMP is in regard to the military prop-
erty. My idea was it did not belong to the Territory. There may
be a liability to the general government on account, for these, but
I suppose these arms still belong to the general government.
Mr. SCOIT. It is a fact the general government appropriates
so much each year. I was talking to the Colonel of the First Reg-
iment here-North Dakota-and he stated to me there was an ap-
propriation of $6,000 from the general government each year.
We had received about $19,000 or $20,000 material from the gen-
eral government that had been charged up to the Territory, but
had not been paid. He thought about $6,000 due from the federal
government to the Territory, provided we looked out for it and
got it before we went in as a State, because then the appropria-
tions cease.
Mr. SANDAGER. I believe these appropriations are all due
to the several companies, wherever located. I know our company
at Lisbon are expecting an appropriation.
Mr. SCOTT. That is from the Territorial government.
Mr. PRICE. The Committee on Military Affairs might wire
the authorities at Washington.
Mr. McGILLYCUDDY. I had a letter yesterday from the
Adjutant General.
V. T. MCGILLYCUDDY, BISMARCK, DAKOTA:
ADJUTANT GENERAL'S OFFICE,
REDFIELD, July 23, 1889.
DEAR SIR: Yours of the 22d is received. Will write Gen. Carpenter,
Chief of Supply, Watertown; Col. R. J. Wood, Chief of Ordnance, Sioux
Falls, and Major Joseph Hare, Ordnance Officer, Bismarck. There was no
report made last year. Will be impossible to make a true one now.
Respectfully yours,
J. S. HUSTON,
Adjutant General.
I don't suppose when we get that report we will know any more
than we do now.
Mr. KELLAM. I suppose Mr. CAMP-I noticed the reading of
798
JOURNAL OF THE JOINT COMMISSION.
this by Mr. HAYDEN-I suppose this exception of military outfits
applies to both sections?
Mr. SCOTT. Yes, it says the same as to South Dakota.
Mr. KELLAM. That probably will cover it.
Mr. PRICE. It occurred to me this might be added "equally
divided between the two States."
Mr. SCOTT. I am informed there are eight pieces in the First
Regiment in North Dakota, and thirteen pieces in South Dakota.
Mr. KELLAM. Twenty-one pieces?
Mr. PRICE.
Yes.
Mr. SANDAGER. Telegraph to the Secretary of War at
Washington, and try and see what is coming and what has been
delivered.
Mr. McGILLYCUDDY. Is there anything we can refer to?
There ought to be some way of finding out. At the Capital of
Dakota there ought to be some way of finding out.
Mr. SCOTT. The Adjutant General ought to know.
Mr. McGILLYCUDDY. Unless we have something it will take
a very long telegram to send it intelligently, unless we have some
basis to go on. I think the shortest way would be for the Com-
mission to go to Redfield.
Mr. CALDWELL. He don't know anything about it.
Mr. McGILLYCUDDY. Is it not strange there is nothing in
the records here?
Mr. CAMP. I think the Adjutant General could tell how many
arms had been delivered to the Governor and other officials of the
Territory of Dakota; how many had been debited to the Territory,
and how much appropriations the Territory had been credited
with.
Mr. PRICE. You certainly can get that information by wire
from Washington.
Mr. McGILLYCUDDY. Wire the Secretary of War, then.
These arms-do they become the property of the Territory?
Mr. PRICE. That is what we appointed you for.
Mr. SCOTT. Get their arms from the Territory.
Mr. CALDWELL. Not their arms—it is just the clothing.
Here is the law: Resolution approved July 3, 1876.
Resolved, etc., That the Secretary of War is hereby authorized to cause
to be issued to the Territories, and the States bordering thereon, such arms as
he may deem necessary for their protection, not to exceed 1,000 to said States
each; Provided, That such issue shall only be from arms owned by the govern-
JOURNAL OF THE JOINT COMMISSION.
799
ment which have been superceded and no longer issued to the army; Provided,
however, That said arms shall be issued only in the following manner and
upon the following conditions, namely: Upon the requisitions of the Governor
of said States or Territories, showing the absolute necessity of arms for the
protection of the citizens and their property against Indian raids into said
States or Territories; also that militia companies are regularly organized and
under the control of the Governors of said States or Territories, to whom said
arms are to be issued, and that said Governor or Governors of said States or
Territories shall give a good and sufficient bond for the return of said arms,
or the payment of the same at such time as the Secretary of War may des-
ignate.
Mr. CAMP. That is not the law we want.
Mr. MCGILLYCUDDY. Then these don't cost the Territory
anything unless they are lost. If North Dakota has not got enough
you-
Mr. KELLAM. Mr. CAMP suggests this is not the law under
which these arms are obtained.
Mr. SCOTT.
South Dakota has more than we have.
Mr. McGILLYCUDDY. That comes right down to the same
proposition.
Mr. CALDWELL. Here is another law approved February
28th, 1887:
That the Secretary of War be, and he is hereby directed to cause the Ter-
ritory of Dakota to be credited on its ordnance account with the sum of $27,650
upon the delivery to the United States, at such place as the Secretary of War
may direct, of all such arms and other ordnance stores remaining in the custody
of said Territory of issues thereof under said act.-Approved February 28,
1887.
Mr. MCGILLYCUDDY. Has that been complied with?
Mr. CALDWELL. There is nothing in the possession of the
Territory
Mr. MCGILLYCUDDY. I don't see what we are trying to get
at. There is something back of this, and why don't somebody
come out and state it. There is an idea that somebody has got
ahead on this arm business.
Mr. CAMP. I think there is another provision of the law we
have not found yet.
Mr. SCOTT. Do you claim, Mr. CALDWELL, that these arms
the companies have do not belong to the Territory?
Mr. CALDWELL. Yes, they don't belong to the Territory.
Mr. SCOTT. To whom do they belong?
Mr. CALDWELL. To the government.
800
JOURNAL OF THE JOINT COMMISSION.
Mr. SANDAGER. They are charged up to the Territory.
Mr. CALDWELL. They are charged to the government.
Mr. McGILLYCUDDY. Who gave the bond?
Mr. CAMP. Governor Ordway.
Mr. CALDWELL. That has been released.
Mr. McGILLYCUDDY. While Church was Governor?
Mr. CALDWELL. Yes, Governor Church got these.
Mr. CAMP. We understood that there was another matter;
that there was $6,000 appropriated to the Territory every year for
That is what we have understood.
arms.
Mr. CALDWELL. It is an original appropriation-I think
$3,500 to South Dakota and $2,500 to North Dakota. It has been
divided already.
Mr. CAMP. When was it made.
Mr. CALDWELL. Why, just this year, appropriation by
the general government to all the States having a militia. It has
been divided between the States.
Mr. BROTT. I think we better follow Mr. KELLAM'S sugges-
tion and have a recess.
Mr. KELLAM. If we can develop anything here we will have
that disposed of. It is a matter I don't know anything about.
Mr. CALDWELL. That is not for arms, it is for general
maintenance, as I understand it.
Mr. McGILLYCUDDY. Who did you purchase the arms from?
Mr. CALDWELL. All the arms used by the militia in the
Territory are United States arms, of whatever date. No other
used. I don't think the United States government ever issues
arms not in use.
Mr. SCOTT. I don't believe-but I believe they give the
latest style of rifle.
Mr. MCGILLYCUDDY. The old '63.
Mr. SANDAGER. We have a better one down home.
Mr. HAYDEN. Those are different from what the companies
have now.
Mr. SCOTT. Can't you look it up Mr. CALDWELL and see if
that $6,000 has been received, and whether North Dakota has her
share and South Dakota her share?
Mr. CALDWELL. An Act to amend section 1661 of the Re-
vised Statutes, making an annual appropriation to provide arms
and equipments for the militia:
JOURNAL OF THE JOINT COMMISSION.
801
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That section 1661 of the Revised
Statutes be, and the same is hereby amended and re-enacted so as to read as
follows:
SECTION 1. That the sum of $400,000 is bereby annually appropriated for
the purpose of providing arms, ordnance stores, quartermaster's stores, and
camp equipage for issue to the militia.
SEC. 2. That said appropriation shall be apportioned among the several
states and territories under the direction of the Secretary of War, according
to the number of Senators and Representatives to which each state respectively
is entitled in the Congress of the United States, and to the territories and
District of Columbia such proportion and under such regulations as the Presi-
dent may prescribe; Provided, however, That no state shall be entitled to the
benefits of the appropriation apportioned to it unless the number of its regu-
larly enlisted, organized, and uniformed active militia shall be at least 100 men
for each Senator and Representative to which the state is entitled in the Con-
gress of the United States. And the amount of said appropriation which is
thus determined not to be available shall be covered back into the Treasury.
This appropriation of $400,000 to the states and territories is to
be distributed according to the judgment of the President. It
was divided between North Dakota and South Dakota, and I think
it was something like $2,700 to North Dakota and $2,300 to South
Dakota.
Mr CAMP. Do you know how it was the year before?
Mr. CALDWELL. No, I don't.
Mr. CAMP. There was a bond of $19,000 put up.
Mr. CALDWELL. There is that $27,500.
Mr. CAMP. I don't think that covers it.
Mr. CALDWELL. Covers all charges against the Territory
up to that date, February 1, 1887.
Mr. CAMP. Now what page is that, that Act of February 28,
1887?
Mr. CALDWELL. Here is a preamble to that act:
WHEREAS, It appears from the records of the Ordnance Bureau of the War
Department that the Territory of Dakota stands charged with the sum of $27,-
650 for ordnance and ordnance stores issued to said Territory during the year
1887, under the provisions of the act of Congress approved April 7, 1886, entitled
"An act to provide arms and ammunition for the defense of the inhabitants
of Dakota Territory," all of said ordnance and ordnance stores having been
drawn by the Territory of Dakota and used for the purpose of aiding the gen-
eral government in the protection of the borders of said Territory against In-
dian invasions and depredations; and,
WHEREAS, Said ordnance was issued to the inhabitants of said Territory as
in said act directed, and all of the same has been lost and rendered useless iu
service; therefore,
Be it enacted, etc., That the Secretary of War, etc., etc.
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JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. Ordway's bond was given in 1882, so this credit
was on those old arms.
Mr. ELLIOTT. Mr. CHAIRMAN: In order that the Commis-
sion may have time to consider the propositions submitted this
morning by North Dakota and South Dakota, I move we adjourn
until 3 o'clock this afternoon.
Mr. PURCELL. Make it 3:30.
Mr. ELLIOTT. Well, 3:30.
Mr. CAMP. That motion seconded?
The motion was seconded.
Mr. CAMP. You have heard the motion; all in favor say aye.
Carried. The commission stands adjourned until 3:30 o'clock
p. m.
The Commission was called to order at 3:40, Mr. CAMP in the
chair. South Dakota members all present. North Dakota mem-
bers all present except Mr. SPALDING.
Mr. CAMP. Gentlemen of the Commission, the time to con-
vene has arrived.
Mr. CALDWELL. Mr. CHAIRMAN: I have been giving con-
siderable time to considering this proposition as submitted by
North Dakota, and, as is always the case in consideration of any
document, there may arise questions as to construction, and, so
far as I am concerned, I would like to request a more complete
explanation of certain portions of this proposition, in order that
I may know exactly what the proposition may be.
Mr. CAMP. It would be well to state-
Mr CALDWELL. Yes, I was going to say, for instance, I
would like an explanation of this paragraph: "The State of
South Dakota shall pay to the State of North Dakota as a full
settlement of unbalanced accounts and of all claims against the
Territory arising out of the unlawful taxation of the Northern
Pacific railroad lands, the sum of $60,000."
Mr. PURCELL. Mr. CALDWELL, I think I stated the matter,
which, perhaps, has been incorporated in the proposition, that
numerous lands belonging to the Northern Pacific Railroad Com-
pany had been sold by different counties in North Dakota for
taxes. In many of the counties the county treasurer was en-
joined from selling those lands, which actually belong to the rail-
JOURNAL OF THE JOINT COMMISSION.
803
road company now. To some lands the injunction did
not apply, but those lands which had been sold by the
Northern Pacific Railroad Company to actual settlers was taxed
and sold; and the purchasers at these sales in some of the coun-
ties have instituted actions against the treasurers to recover back
the taxes paid. An estimate has been made of the amount of
taxes that the Territory has received during the period, and by a
rather conservative estimate we fixed upon the sum of $60,000, as
our statement shows. In my county suits are pending against the
county treasurer; in the County of Stutsman suits are pending,
and in other counties in North Dakota suits are now pending
against the county treasurers to recover back the taxes which were
realized from the sales. The $60,000 is not alone for taxes; it is
for the balance, as I understand, or difference in direct appropria-
tions made between North and South Dakota, and other things.
Mr. CAMP. I will state in regard to the matter of taxes. In
the first place, sales of lands for the taxes of 1880 and 1881 were
enjoined, and the temporary injunction was dissolved and the
lands sold in the fall of 1882, and in Stutsman county the sales
and interest up to date amount to somewhere between $70,000 and
$80,000 claims against the county. The case of Wallace vs. Stuts-
man county, which involves $35,000 of these taxes, went against
the county in our Supreme Court, and it is now upon appeal to
the United States Supreme Court, and if the United States
Supreme Court sustains the Supreme and District Courts of the
Territory, Stutsman county will have to rebate to the holders of
these tax certificates, between $70,000 and $80,000, and it may be
a little over $80,000. Of course, a portion of that money was for
Territorial tax and was turned into the Territorial Treasury;
Stutsman county made a claim against the Territory for that,
at least a claim by a credit of that amount. That amount so
paid to the Territorial Treasurer will probably be from $7,000 to
$12,000. I cannot give the figures now although I did know them
two years ago. And the same way with Barnes county and other
counties along the line of the Northern Pacific railroad.
Mr. CALDWELL. How many counties are there involved that
way?
Mr. CAMP. The counties of Barnes, Foster, Griggs, Steele,
Traill, Richland, Ransom, Eddy, Wells, and I think Logan, little
of Eddy, Burleigh, part of Emmons and Stark.
Mr. PRICE. Makes twenty counties.
804
JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. Then there is another claim which those counties
have. Taxes now delinquent from the counties of North Dakota
are on account of these same taxes levied upon railroad lands,
never collected; some years the lands were sold for taxes and some
years the tax was not collected. Of course if not collected they
stand against the county, so it makes our delinquent tax list from
North Dakota very large-equal to the whole delinquent taxes of
South Dakota which has been running for years back. Probably
two-thirds of the delinquencies are on account of these railroad
lands which were assessed upon the assessment on which we are
charged in the Territorial Treasury and never collected, the courts
having enjoined us from collecting.
Mr. CALDWELL. Up to what time do you say this condi-
tion-
Mr. CAMP. Until now, because after the lands had been made
taxable by act of Congress, the railroad companies, under the gross
earnings law, enjoined the sales of the lands last fall, and the case
was before the court at the last term at Yankton and is still pend-
ing. It may be we can collect these taxes for 1887; but prior to
1887 they were not taxable. And for 1887 and 1888 the railroad
claims they were non-taxable by virtue of the gross earnings law.
That is the way the case stands.
Mr. HARRIS. I would say the railroad companies enjoined
the county treasurers from selling these lands for taxes at public
sales for delinquent taxes, and that the tax of 1887 against the
counties along the line of the Northern Pacific Railroad to-day is
the bulk of their public taxes.
Mr. CALDWELL. If that be the case, we of South Dakota
are asked to remunerate North Dakota to the extent of $60,000 for
unbalanced accounts and claims against the Territory, arising out
of unlawful taxation of the Northern Pacific Railroad lands, and
the difference is included within this proposition-a provision
that in case of payment of the delinquent taxes they shall go to
North Dakota.
Mr. CAMP. Yes, where the land tax will never be paid. There
are delinquent taxes from Barnes and Stutsman counties which
are legal; but the Territory can never collect those taxes which
are illegal and which the courts have enjoined from collecting and
cancelled the certificates.
Mr. CALDWELL. Then this provision in regard to the al-
lowance to North Dakota for taxes unlawfully assessed against
JOURNAL OF THE JOINT COMMISSION.
805
the Northern Pacific Railroad lands is to apply, then, only to
monies that is actually paid by the respective counties to the Ter-
ritory?
Mr. CAMP. Not only that, but if you deduct from the delin-
quent taxes of North Dakota those which are delinquent because
illegal, there will be a large balance due North Dakota from South
Dakota on account of the difference in delinquent taxes.
it
Mr. CALDWELL. Well, it is possible that might have been
the case. At the same time admitting that to be the case, I would not
see what figure it would cut. But in regard to one county, Lawrence
county, which owes the Territory, according to the taxes of the
Territory a very large balance, some $35,000, it is a fact that Law-
rence county has, in regard to that matter, almost an entire set-
off. That is to say: That owing to the fact that the charge of
the Territory against any county for taxes is based upon the orig-
inal assessment as made by the assessors and returned to the
clerk without any deduction as made by the Equalizing Board;
that return thus made is sent to the Auditor and is the basis for
the Territory's claim against the county. The Equali-
zation Board may then come in, as has done upon the
application of parties assessed, and make deductions from
the assessments as returned by the assessor.
At the time I was
Auditor of the Territory, I sought to get these delinquiencies off
the books, such delinquencies as were attributable to the differ-
ence between the original assessment and the equalized assess-
ment, and in a large number of counties I succeeded in doing so;
and in some of these counties you speak of, in some of these coun-
ties, I arranged with them so they took the account up. They got
credit for all these irregular assessment of railroad lands. And I
urged Lawrence county, its clerk and the treasurer and the chair-
man of the board of supervisors, that they should likewise take
the steps which are necessary in order to have the books of the
Territory show the actual, legitimate condition of the
accounts, but they simply neglected to do so. I was, however,
personally assured by the chairman of the board of supervisors,
and by the clerk of the county, that there had been instances in
which over $1,000,000 had been stricken from the county tax
list subsequent to the time at which the return had been made
by the county to the Territory. So that this delinquency in the
case of Lawrence county, and in the case of many other counties,
does not show any real claim against the Territory-against the
806
JOURNAL OF THE JOINT COMMISSION.
=
county, but merely show that there was a difference between the
original assessment as made by the assessor and returned to the
Territorial Auditor, and the assessment as corrected by the Board
of Equalization.
Mr. PURCELL. Is it not a fact the bonded indebtedness of
Lawrence county to-day exceeds $100,000.
Mr. SCOTT. I thought the law says they don't change the list
sent in by the assessor.
Mr. CAMP. You mean to say the county auditor of Lawrence
county sent in to the Territorial Auditor the abstract of the assess-
ment rolls of that county previous to the equalization?
Mr. CALDWELL. Yes; and that is so with regard to many
counties, and that fact was called to the attention of the Legisla-
ture in the report of the Auditor in 1886.
Mr. PURCELL. You speak of counties similarly situated in
South Dakota.
Mr. CALDWELL. Yes, sir. I don't remember the counties.
whose accounts with the Territory were credited as I have ex-
plained.
Mr. PURCELL. Is it not a fact that one of the counties is
Minnehaha?
Mr. PURCELL. There must be certainly, I should say, twenty
counties whose accounts were thus corrected.
Mr. SCOTT. I notice the Barnes county list was not corrected.
She appears to be delinquent about $8,000 now, and nearly all of
that delinquency is caused by the illegal assessment of Northern
Pacific Railroad lands. I don't think the Territory will ever get
$1,000 out of it.
Mr. CALDWELL. The matter was called to the attention of
the Legislature in the report of 1885. It is further directed that
the county board, after the return has been made to the Territor-
ial Auditor and the account of the Territory against the county
has been determined by the amount of our assessment as thus re-
turned, that the county board may, by exercise of specific power
given them by the statute, abate assessments in particular in-
stances. These abatements have not been reported to the Terri-
torial Auditor and there has been no credit to the county. The
county is merely the collection agent of the Territory.
Mr. KELLAM. Now, Mr. CHAIRMAN, I don't know whether or
not this will lead us to a solution of the difficulty, but is this what
you want or what you mean by your proposition, that whatever
JOURNAL OF THE JOINT COMMISSION.
807
loss the Territory sustains by reason of the illegal assessment of
the Northern Pacific Railroad lands should be borne equally by
both sections of Dakota, by North and South Dakota?
Mr. CAMP. That, perhaps, would be part of it, but part ap-
pears as already lost, that is those claims for delinquent taxes
which have never been paid in. That is all lost and has increased
our list so it is equal to that of South Dakota. Remove from that
delinquent list the part that cannot be collected by reason of the
illegal assessment, and our delinquent taxes are much smaller
than those of South Dakota. We think this should be a claim in
our favor against South Dakota.
Mr. KELLAM. If the counties within which these illegal as-
sessments have taken place have on that account failed to con-
tribute their share towards the Territorial revenue, how has it
been to the disadvantage by the overpayment from the southern
counties towards the revenue of the Territory?
Mr. CAMP. Each part of the Territory has been contributing
taxes, but we say South Dakota is delinquent in its contributions
$60,000.
Mr. PURCELL. In other words, the Major's statement would
be true if taxes were apportioned for a certain territory, but where
they are apportioned generally, and North Dakota pays her taxes
and South Dakota doesn't, it increases the rate on North Dakota
as well as for South Dakota counties who have paid them. If
the taxes were levied with regard to the dividing line between
North and South Dakota, and we each had a proportionate share
to raise, then your proposition would be true; but we are taxed
generally throughout the Territory. Now, there is a certain por-
tion of that district in each State, or Territory, that does not pay
its taxes, and consequently leaves so much more to raise, and,
therefore, whatever goes to make up the deficiency comes out
of the whole Territory in a body, and we pay our proportion of
that.
Mr KELLAM. Is that equally true on account of the illegal
assessment of railroad lands?
Mr. CAMP. There is no other way of looking at it.
Mr. PURCELL. Because we were under no legal obligation
to pay those taxes.
Mr. CAMP. The way I look at it is this: We are dividing the
assets and liabilities of the Territory. One of the assets is this
claim for delinquent taxes. That claim appears upon the books.
808
JOURNAL OF THE JOINT COMMISSION.
to be equal between the counties of North and South Dakota;
that is, if the assets were divided and we were given the claims
against the North Dakota counties and you the claims against the
South Dakota counties we would have equal claims; but in figur-
ing we must deduct from the claims against the counties of North
Dakota so much as is due to illegal assessment and taxation.
That would leave us a claim against the counties of North Dakota,
we will say for example, $25,000, while you have a legal claim
against the counties of South Dakota of $60,000, so the assets
would not be divided equally so far as that is concerned, but would
result in a charge in our favor of one-half of $35,000.
Mr. HARRIS. These illegal taxes have been declared illegal
by the Supreme Court of the United States.
Mr. KELLAM. Yes; I understand a part of this question has
been disposed of by the court, but not entirely. My thought was
this: Conceding that there was to be a loss, to make an agreement
upon the part of both Commissions that whatever loss occurred to
the Territory on account of these illegal taxes having to be rebated,
that that should be borne by the Territory at large. It is evident.
that no calculation can at this time be made by either, because one
part of the question is still pending in the court. Now in that sit-
uation of affairs it would occur to me to be the only way to dis-
pose of the question, if it is agreed that it is a proper matter to be
taken into account, to make a general agreement that whatever
loss occurred to the Territory by it being compelled to refund
these taxes, that they should be entailed upon the two States
share and share alike. If we were to sit here for two weeks we
could not make any mathematical calculation of the amount of
that loss. In the first place there is this undetermined question
in the Supreme Court that stands in the way, and in the next
place it is one of those things we cannot tell because it is to be
developed in the future.
Mr. SCOTT. This question arises to my mind, and it is this,
that undoubtedly the suits will be determined against the counties,
and if they are determined against the counties, I don't know that
there is any particular method of procedure that the county can
take against the State or Territory as a whole in which to recover
for the amount that they paid to the Territory; and, of course, it
would be our duty here, knowing this state of facts, to make some
provision by which that can be done, and that amount returned to
the counties that paid their proportion into the Territorial Treas-
JOURNAL OF THE JOINT COMMISSION.
809
ury. Supposing the suits were determined and the county had a
judgment against them for $50,000 or $60,000, and supposing that
the pro rata they paid into the Territorial Treasury was
$5,000, what way would the county have of compelling the
Territory to refund that amount? But supposing we
are divided into States of North Dakota and South Dakota,
what claim in law has that county to have that money refunded?
They would have to sue their claims and leave it to the Legisla-
ture to fix it. Suppose the Legislature of South Dakota said, "It
it is a matter we don't feel disposed to pay," what power would
there be in the county to compel South Dakota, or even North
Dakota, to refund that money? I am satisfied in the estimate we
have made we have placed it very much lower than the true re-
sults will be found to be when the matter is determined. I know,
myself, of suits aggregating full $80,000, and that is not nearly all
of the claims against Barnes county for lands which were sold on
which the taxes have been illegally assessed and the purchasers
hold tax certificates. And the same state of facts exist in all the
counties referred to. Of course the item of $60,000 was not all
made up of that, and I am satisfied we have got it a great deal
lower than it actually is.
Mr. CAMP. Then you are doing yourselves an injustice.
Mr. SCOTT. I take this into consideration, that some of these
taxes—a party owning a tract and he finds $150 taxes against that,
rather than bringing his action to clear the title and set the taxes
aside, he will pay the taxes and, of course, some of the taxes will
come in that way.
Mr. PURCELL. Our county has paid back already over
$8,000.
Mr. SCOTT. Our county has paid $5,000.
Mr. KELLAM. What question is involved in that suit?
Mr. CAMP. It depends entirely upon the construction of one
section of the statute. Of course, in this case the treasurer, having
paid over the money he is not liable, and the suits are brought
against the county.
Mr. PURCELL.
That is the same suit that is brought in our
county, and I presume in your county.
Mr. HARRIS. You can readily see where this matter will run
to-at least we can approximate it. In Stutsman and Barnes
counties alone there is at once $150,000 involved in these suits,
and there are eighteen other counties included, some of the
52
810
JOURNAL OF THE JOINT COMMISSION.
largest counties in Dakota, Cass, Richland, Traill, Eddy, Foster,
Burleigh, two-thirds of Emmons, McLean, Billings, Stark, Ran-
som, part of Sargent and all of LaMoure, part of Dickey, all of
Logan, part of McIntosh, some north of the track. You can
readily see that the amount of these taxes which has been sold,
on which suits have already been or will be brought, will run up
in the neighborhood of half a million dollars, and while this
matter is undetermined finally, it has been determined by the
District Court, and that has been affirmed by the Supreme Court
of the Territory of Dakota, and has been carried to the Supreme
Court of the United States, and we, at present, can only take it
for granted, or presume, that the United States Supreme Court
will affirm the decision of the courts below.
Mr. KELLAM. What question is now pending in the Supreme
Court of the United States?
Mr. HARRIS. It is the gentleman from Stutsman county
can state it better than I can.
Mr. KELLAM. I understood his claim was still undeter-
mined-
Mr. CAMP. It is in the Supreme Court of the United States.
Mr. KELLAM. You spoke of the Supreme Court. I thought
you meant the Territorial Supreme Court.
Mr. CAMP. No.
Mr. PURCELL. There is another claim. Auditor Ward in-
structed his assessors to assess every acre of railroad land. It
was and the treasurers were enjoined from collection and sale, and
that is the question I understand was argued in the Supreme
Court at Yankton which stands against these lands.
Mr CAMP. I would like to say as to the probabilities of the
case, I think there is hardly a case in which the United States
Supreme Court have reversed a state court, where the question
involved was the construction of the local statute.
This is en-
tirely on the local statute.
Mr. KELLAM. I want to say, gentlemen, that I do not wish
to be understood as questioning the statements you gentlemen
make. My suggestions were simply to meet any square, equita-
ble claim, as it would be. Suppose we make this allowance of
$60,000, and then the Supreme Court of the United States re-
verses the decision of the Territorial Supreme Court; then in
what position would that leave us? How could we justify our-
selves? It seems to me if we make an agreement that whatever
JOURNAL OF THE JOINT COMMISSION.
811
the Territory does lose on account of these illegal assessments,
we (South Dakota) shall bear one-half, and North Dakota, one-
half. That is, we would leave matters just as we would be if the
Territorial existence continued.
Mr. PURCELL. That would leave a matter upon which we
have not settled the liabilities.
Mr. KELLAM.
Well, it is contingent now.
Mr. PURCELL. If the Supreme Court of the United States
should hold these taxes were legal, or they should hold they must
pay back, then we have got to come to your Legislature and ap-
peal to them.
Mr. KELLAM. Suppose they hold the other way we have to
give you $60,000. I say we ought not to be asked to settle a lia-
bility that is contingent in existence and undetermined in amount,
by an agreement upon any sum; but that the fair thing is to say,
"Here is a contingent liability of undetermined amount; if proved
to be an actual liability, whatever the amount is, we will pay half
of it." I don't see any escape from that being a fair proposition.
Because if you ask us to agree upon paying a specified amount,
you ask us to assume that amount you gentlemen give us, while
we have no doubt it is the best you can make at this time-pre-
sume it is a fair estimate-still it puts in a disadvantage with re-
gard to contingent—as actual liability, and if it should eventually
turn out it was not a liability, then where would we be?
Mr. PURCELL. These claims exist to-day because the counties
have paid back.
Mr. KELLAM. Yes, but that is all covered by the agreement
I have suggested, that whatever the loss to this Territory, it would
be treated the same as if the Territorial government had been
continued.
Mr. PURCELL. For the payment of this $60,000, it can be
understood that in case the Supreme Court of the United States
holds that the taxes were not due, should not be refunded, of
course, the Territory or State of North Dakota would return to
you your portion of it. But there is already a claim in our favor
from South Dakota for that part of it which the counties have al-
ready refunded, and, of course, many of the counties relying upon
the decision of the Supreme Court of this Territory, have paid
back much of these taxes, so we are out that money.
Mr. KELLAM. It looks to me if we now, here, undertook to
812
JOURNAL OF THE JOINT COMMISSION.
pay one-half of the liability, whatever it is, that this would be
fair.
Mr. PRICE. It seems the objection of Mr. PURCELL could be
covered by incorporating in the Schedule and Ordinance of the
proposed Constitution an article empowering the Legislature to
refund to North Dakota any sum that may be determined to be
due her.
Mr. PURCELL. You see it leaves the whole question open
for discussion, and there is no settlement of it whatever. I think,
as the most of those attorneys do who have investigated this ques-
tion, that perhaps the Supreme Court of the United States will
sustain the Territorial court.
Mr. PRICE.
You know how uncertain it is.
Mr. PURCELL. If they do, we have got to establish that claim
to the satisfaction of South Dakota; we have got to come to your
Legislature and do everything necessary to get that bill through
to get the money. Now, it may cause us to do all that, $9,000 or
$10,000 to recover back this money from South Dakota; and the
purpose of offering it here in that manner, is that while we are here,
to settle up all these matters. The Supreme Court of this Terri-
tory having said they shall refund the money of the county, and
having refunded at least part of it, establishes the fact that the
claim is just and we have shown our good faith and are entitled to
the amount paid back. So here is our claim against South Da-
kota.
Mr. KELLAM. You speak of the difficulty and expense of
proving the claim before the Legislature of South Dakota.
Would you think this Commission would be justified in doing-in
allowing this claim?
Mr. PURCELL. The purpose of making it here was putting
it in such shape it can be verified. Whatever evidence is neces-
sary.
Mr. PRICE. I don't think, Mr. PURCELL, you should advocate
such a plan until judgment was recovered.
Mr. PURCELL. There is judgment, Mr. PRICE, in this case.
Mr. PRICE. But it is pending in the Supreme Court of the
United States.
Mr. PURCELL.
Mr. CALDWELL.
court?
Many counties have refunded.
When was it decided by the Territorial
Mr. PURCELL. May, 1888.
JOURNAL OF THE JOINT COMMISSION.
813
Mr. CALDWELL. Has there been any claims against the Ter-
ritory for such money as was rebated in the payment of Terri-
torial taxes?
Mr. PURCELL. I don't know.
Mr. CAMP. Our county has not made a claim because they
appealed, you know.
Mr. SCOTT. Our county has a claim, but I don't know if it
has been presented. They have been talking about it.
Mr. CALDWLLL. It is not a claim against the Territory as
the county-
Mr. SCOTT. It is.
Mr. HARRIS. When the Supreme Court of the United States
disposes of the matter.
Mr. CAMP. In equity they ought to get it back from the Ter-
ritory. Our county board at first admitted their liability for the
amount paid, and were willing to settle it at a certain per cent.
with our clients.
Mr. CALDWELL. Well, in any event, a large part of this lia-
bility would be interest, penalty and cost on the delinquent taxes.
Mr. CAMP. It would be, of course, a good deal interest.
Mr. CALDWELL. Penalty, too?
Mr. CAMP. Penalty.
Mr. KELLAM. There is nothing allowing penalty to go to the
Territory.
Mr. SCOTT.
Of course, the amount refunded would be the
amount actually paid.
Mr. CALDWELL. That would involve the original tax and
penalty for non-payment, and, also, the interest which delinquent
taxes draw, and likewise the cost of advertising and selling the
same.
Mr. CAMP. They are small, however.
Mr. CALDWELL. It would be the usual proportion.
Mr. CAMP. These lands are sold in large tracts.
Mr. CALDWELL. The costs apply to each forty acre tract;
the penalty applies to the amount, and the interest to date.
Mr. PURCELL. The Territory would only have to pay back
what it received.
Mr. CALDWELL. The proportion which the Territorial tax
would bear to the sum total which the county would have to re-
fund, would probably not be over one or two per cent.
Mr. SCOTT. I think probably one-eleventh-
814
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL. It could not be one-tenth, because the rate
of taxation—average rate for Territorial purposes, even the sale
of the taxes—the average rate of taxation for Territorial purposes
is at the greatest only but one-tenth of the total that has to be
paid. Taking 30 per cent. interest and the penalty, all that
would make the amount that would have to be refunded double
the amount of the original tax.
Mr. SCOTT. Of course the interest on the money paid into
the Territory should be-that would have to be paid back.
Mr. CALDWELL. No.
Mr. SCOTT. I don't see why it should not.
Mr. CALDWELL. Well, the matter of taxes having been
thus generally discussed-I infer from an observation of Mr.
PURCELL that this expression here, although it would seem at
first-this expression, "unbalanced accounts," so coupled with the
word "claims," and referring to the taxation of the Northern Pa-
cific Railroad lands-I infer, however, that "unbalanced accounts"
means something else.
Mr. PURCELL. There was a difference in direct appropria-
tions of about $22,000 you had more than we had. We charge
you with half of that.
Mr. KELLAM. What is that? I remember the $22,000 you
spoke of.
Mr. PURCELL. That is the difference in the direct appropri-
ations.
Mr. CAMP. Yes, taking out the $22,000 for Capitol, then it
would be $44,000 difference.
Mr. PURCELL. Of course $22,000 difference; but in addition
to that you had charged us with appropriations of $22,000 for the
furniture of this building.
Mr. CALDWELL. That was one of the points that was ques-
tioned when we came to examine this. I was of the opinion that
the paragraph meant that the State of South Dakota should pay
to the State of North Dakota as for settlement of unbalanced ac-
counts against the Territory.
Mr. PURCELL. It means unbalanced accounts of any claims.
Mr. CALDWELL. I don't know; but, nevertheless, if Auditor
Ward would not infer that the record, that the unbalanced ac-
counts has reference to the unlawful taxation of Northern Pa-
cific railroad lands
Mr. HARRIS. But this
JOURNAL OF THE JOINT COMMISSION.
815
Mr. CAMP. It don't make any difference, we understand it.
Mr. KELLAM. They have told us what they mean by it.
Mr. NEILL. I might ask if personal property and miscellane-
ous effects now in South Dakota, shall be the property of South
Dakota? If it means that, some property here in the Capital, for
instance, in the office of the Commissioner of Immigration, has
been divided, part taken down and part here, yet if it means to
allow to take that part down to that office-
Mr. SCOTT. That is what I understood. I suppose it would
imply that.
Mr. CAMP. They listed part of it as up here, part down there,
NEILL.
Mr. NEILL. If you allow that, the balance of it to be sent
down there, then there would be about $600 out of that $2,000 in
South Dakota, the balance of it in North Dakota offices.
Mr. KELLAM. Now we have discussed that matter of delin-
quent taxes-
Mr. SCOTT. There is another matter, balance of $22,000, ap-
propriations for permanent improvements, and then there is that
$9,000 to the Brookings institution.
Mr. CALDWELL. I am glad that this inquiry was—we will
see just
Mr. SCOTT. Well, half of it.
Mr. ELLIOTT. The President says there has only been $7,000
expended there.
Mr. SCOTT. Mr. PURCELL, isn't it over $9,000?
Mr. PURCELL. That is what is shown by his report.
Mr. ELLIOTT.
he can get at it.
But his letters show about $7,000 as near as
Mr. PRICE. Then this $60,000 includes the $22,000 and the
$9,000 to the Brookings College; now is there anything else?
Mr. CALDWELL. $22,000-$29,000.
Mr. PURCELL. No, not $29,000. We put in $4,000 as the
share of the Brookings College; $4,500, leaves $26,500.
Mr. CALDWELL. So it makes $26,500 as the share.
Mr. PURCELL. Difference in appropriations to the Brook-
ings College.
Mr. CALDWELL. That makes $2,650 to be subtracted from
$60,000-$33,500 on the score of this railroad land business.
Mr. KELLAM. No, $22,000 and the $9,000; if one is divided
the other is.
816
JOURNAL OF THE JOINT COMMISSION.
:
Mr. CAMP. We put the Capitol furniture in another deal, and
that is no part of this.
Mr. CALDWELL. Twenty-two thousand dollars excess of
construction appropriations for South Dakota?
Mr. CAMP. There is $44,000 in excess.
Mr. KELLAM. The Capitol is not separate.
Mr. PURCELL. In making up the direct appropriations there
was included only amounts $22,000; for this furniture we took
at $22,000, leaves a difference of $44,000.
I understand now.
Mr. KELLAM.
Mr. HARRIS. The $44,000 wants to be cut in two in the mid-
dle, $22,000. The difference in the direct appropriations as made
by our Assistant Secretaries, $22,000; then $22,000 was put into
that for furniture and stuff at the Capitol which was charged to
North Dakota in this statement. That leaves $22,000 difference
between the two sections. Taking them and putting them to-
gether leaves $44,000; that cut in the middle would be $22,000;
and the $9,000 cut in two in the middle would leave $4,500.
Mr. ELLIOTT. That is the way I understand it.
Mr. CALDWELL. Thirty-two thousand five hundred dollars
on the question of railroad-Northern Pacific Railroad taxes, ex-
clusively?
Mr. CAMP. Yes.
Mr. KELLAM. Now I want to ask if we all understand re-
specting claims with regard to delinquent taxes. There was a dif-
ference between our propositions with respect to the time of com-
puting settlements and balances.
Mr. CALDWELL. Major, before we go into that we may—
well that will come up.
Mr. KELLAM. I don't care
Mr. CALDWELL. That will come up with regard to another
matter. I have nothing to say.
Mr. KELLAM. I was going to make another inquiry.
You
fix the date of the division of these accounts at March 11th.
We fixed it in our proposition at the dissolution of the Territorial
existence.
Mr. SCOTT. March 11th, because that was the date the new
appropriations for the fiscal year was made; beginning of the
year.
Mr. HARRIS. As I understand, the appropriations made at
that time, the taxes coming under the assessment which is now
JOURNAL OF THE JOINT COMMISSION.
817
made by the counties, which will be reported here. I think the
intention was that the division should be made at the time, as
there is nothing coming in on these taxes at all this fall, and they
should be kept separate.
Mr. KELLAM. "From and after March 11, 1889, the State of
South Dakota shall be credited with all taxes collected from
counties within its boundaries and charged with all monies paid
out by the Territory for appropriations made to the public insti-
tutions situated therein, and one-half for all other expenditures.
And the same as to North Dakota." Under that proposition
what would become of taxes that don't come from the counties—
railroad taxes.
Mr. SCOTT. I presume the railroad tax of North—of South
Dakota would go to South Dakota and the railroad tax of North
Dakota go to North Dakota.
Mr. CALDWELL. It would not under this proposition.
Mr. KELLAM. The question of-there is nothing said about
railroads in our proposition. -
Mr. SCOTT. That was my understanding.
Mr. PURCELL. All taxes of the different localities.
Mr. SCOTT. I don't know who would have the best of the
deal.
Mr. KELLAM. I don't know, but, of course, there is a large
revenue that comes from the railroads, and there is the tax com-
ing from the counties, and that would leave the matter of revenue
from railroads entirely undisposed of.
Mr. SCOTT. It was my understanding we should cover the
whole tax which accrued anywhere within the boundaries of North
Dakota, and the same as to South Dakota.
Mr. KELLAM. Why would that plan have any advantage over
the plan of closing up the books at the close of the existence of
the Territorial Government, making division as of that time?
Wouldn't that be the natural time at which settlement should be
made?
Mr. McGILLYCUDDY. What right have we to go back of
that time?
Mr. KELLAM. I have no idea, at all, which State would gain
or lose by it, but I had no other idea that our agreement would be
effective or contemplate its being effective, until the date of the
dissolution of the Territorial Government. It seems to me this is
the natural and appropriate time for us to figure towards.
818
JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. Of course, the present officers of the Territory are
fair and honorable men; and yet the Auditor and Treasurer are
of South Dakota, and they would probably lean towards any
benefit they might confer upon South Dakota.
Mr. KELLAM. Do you know in any way in which they could?
Mr. PURCELL. As I understand it, there is no officer that
knows the amounts paid in from the different sources except the
Treasurer, and there is no check on the Treasurer for the amount
he pays except the Auditor when he pays out for appropriations
for his warrants. Of course, we are supposed to take his state-
ment as to the amount of monies he receives from the railroads.
We cannot do anything else.
Mr. SCOTT. I understand the Northern Pacific Railroad has
paid into the Territorial Treasury in lieu of all taxes assessed
against its lands, which it now holds, quite a considerable sum of
money. Nevertheless those taxes still stand charged against those
lands and the delinquent taxes still stand against our counties, so
we have quite a large amount of taxes coming due, and if they are
to be in lieu of all other taxes against the lands
Mr. KELLAM. That is coming back to the old question.
Will that help us out of the question now?
Mr. SCOTT. It is just a new phase of the question that
struck me.
Mr. CAMP. If we leave the question open as to when the set-
tlement should be dated, who is going to make it?
Mr. KELLAM. Date it at a time to give the Territorial offi-
cers an opportunity to close their accounts.
Mr. SCOTT. I don't know whether it would be to the benefit
of North or South; but is there anything interfering?
Mr. KELLAM. I don't know that there is, but it strikes me to
be an unusual thing.
Mr. CAMP. Suppose you make it in the way you propose, and
make an agreement that at the time South Dakota shall stand one-
half of the indebtedness then existing, and North Dakota the oth-
er half. There must be some way of dividing; of ascertaining the
exact amount of that indebtedness, and certifying it to the Legis-
lature.
Mr. KELLAM. I don't know as I understand you.
Mr. CAMP. There must be some way of certifying that to the
Legislature. If we could make a settlement now, to-day, we
would know just what amount of indebtedness there was, and then
JOURNAL OF THE JOINT COMMISSION.
819
any institution we kept separate from now on, why any indebted-
ness arising on account of South Dakota institutions would be
made by South Dakota, and the same of North Dakota.
Mr. CALDWELL. The difficulty would be, we have no con-
trol over the Territorial offices, these Territorial officers,
whether they come from South
Dakota
or North Dakota,
with these taxes
they are the ones who are to credit
collected—they are the only persons who could tell whether
they are from counties or railroads, or whatever source,
and they are the only officers who can indicate what pay-
ment was made, and for what and to whom paid. The result of
which would be it would require two calculations one as to the
condition on the 11th of March, 1889, and the other at the final
wind-up; and it would be no more than fair that taxes were deter-
mined at the final wind-up, than part of it now and part then.
Mr. McGILLYCUDDY. Continue this Commission until that
time.
Mr. CAMP. We have got to get something into our Constitu-
tion.
Mr. NEILL. Keep us on until that time.
Mr. MCGILLYCUDDY. There should be some provision.
Mr. CAMP. I suggest we draw up a statement covering the
contingent liabilities on account of the railroad land taxes paid in,
and counties may have to refund.
Mr. KELLAM. I don't know as the members of the Commis-
sion would agree with me, but it simply occurred to me it would
be a fair way of disposing of the matter, that if there was a lia-
bility we should all pay it. My idea is that the nearer we can
come to keeping the Territory together as a unit until the time of
dissolution, and then each assume its proper share or proportion
of its debts and liabilities, providing for contingent liabilities,
the nearer we will come to a fair settlement. Now, as suggested
by Mr. CALDWELL, I don't see what advantage there would be in
making this balance sheet on the 11th day of March, because the
same officers would have control of these various departments.
After the settlement they will have the same opportunities; they
would have the same opportunities for favoring their section under
one plan as the other.
Mr. HARRIS. I think not, Major.
Mr. KELLAM. We can't make a new law; we can't legislate;
we can't impose duties; we can't furnish new books; we can't im-
820
JOURNAL OF THE JOINT COMMISSION.
pose different duties on these officers than the law now imposes
on them. Now the statute even goes so far as to describe the
form of some of their books; they can't depart from that under
instruction from this Commission.
Mr. NEILL. Simply by getting them up. Just as easy for
them to do it one way as the other.
Mr. HARRIS. I think the idea was the appropriations made.
at that time and the taxes levied-made by the assessment now
coming in, this thing could be kept separated easier now than
afterwards.
Mr. KELLAM. We are still a Territory, and may be for ten
years yet. All the revenues from the various sources of the Ter-
ritory still belong to the Territory; and until the Territorial ex-
istence is terminated; and for us to undertake to say now they shall
be divided six months, or eight months, or a year before that takes
place, I doubt the wisdom of undertaking to do it. The railroad
taxes belong to the entire Territory; it belongs to the two States
made out of it. For myself, and I presume such would be the
case with each individual of the Commission, before agreeing that
the railroad taxes should be divided in accordance with the locality,
each would want to know whether your or my section was at a dis-
advantage. For myself, I would say, no, for the very reason they
belong to the Territory, and it is the property of the Territory.
The railroad taxes, and other taxes actually belong to the Terri-
tory as a unit.
Mr. PURCELL. Is that so? Part paid to the county?
Mr. KELLAM. Yes, but the 30 per cent. belongs to the Terri-
tory.
Mr. CALDWELL. And, furthermore, in regard to this matter
of separation of the accounts, etc., with reference to North and
South Dakota, I went to the Auditor and requested that he make
out an abstract of the assessment roll with reference to the coun-
ties of North and South Dakota; but he doubted whether it would
be the proper thing to do.
Mr. KELLAM. He said if it was the judgment of this Com-
mission he would make it in the usual form, and also make sepa-
rate sheets and return to the Treasurer, so any agreement we
reached should be carried out. I didn't mean to interrupt you; but
the law prescribes the form in which he should do his business.
Still, of course, if an arrangement of that sort should be made
here he would recognize it. I doubt, friend PURCELL, the pro-
JOURNAL OF THE JOINT COMMISSION.
821
priety of asking any of these three or four officers to separate the
sources of revenue in advance of what the statute now requires.
Mr. CALDWELL. In fact it could not be done so as to effect
anything because there are many institutions that have to be borne
on the part of the entire Territory, and they could not be sepa-
rated. They could be separated hereafter just as they have been
heretofore; that is, all the institutions so far they are concerned
payments to them can be determined at once.
Mr. KELLAM. I might say something ridiculous about this
matter; I don't know much about methods of doing business.
What shall be done with payments for South Dakota and North
Dakota payments for current expenses.
Mr. SCOTT. That is charged up half and half.
Mr. KELLAM. There would have to be three accounts.
Mr. CAMP. There is an account kept with each institution.
Mr. KELLAM. If it can be done fairly without disadvantage
to each side, I would not be particular.
Mr. SCOTT. Make the settlement as of March 1st, and we will
not have to meet again. Suppose we make an agreement; we have
got to trust these officers; if we make an agreement that upon the
taking effect of the President's proclamation, any money on hand
in the general fund, shall be divided share and share alike; if
there is any current debts they shall be assumed share and share
alike.
Mr. CALDWELL. The officers can only draw what the law
provides.
Mr. SCOTT. When the Legislature made an appropriation
last they made a certain amount for maintenance and a certain
amount for permanent improvements; now the institution has got
the right to use the whole of that amount the first year and the
second year for the purpose of making permanent improvements.
Mr. KELLAM. Cover that by any agreement you choose, each
institution having its
Mr. PURCELL. My idea was to figure up to the time of settle-
ment and see how we stood; if South Dakota had an excess, make
allowance for that. Of course, we can see advantages that might
be taken by the officers.
Mr. KELLAM. I can't see how they would have any better
facilities for taking any advantage in one case than another.
Mr. PURCELL. As Mr. CAMP suggests, that is their home
822
JOURNAL OF THE JOINT COMMISSION.
and they expect to return there after their term of office expires.
The Secretary has no funds.
Mr. CALDWELL. These appropriations are all for two years,
and they could not pay one-half of it in one year.
Mr. SCOTT. That has not been the rulings of the Auditor.
Mr. KELLAM. The appropriations of last winter have not
been paid up.
Mr. SCOTT.
Yes.
Mr. GRIGGS. In some cases they consume the full amount the
first year.
Mr. KELLAM. The appropriations of last year, were they not
to be divided? I think the appropriations were made for two
years.
Mr. HARRIS. I don't so understand it.
Mr. PURCELL. The law makes no limitation on it, as I under-
stand.
Mr. KELLAM. Of course, if one institution could do it another
could. It might not be policy for them to do it.
Mr. CAMP. The Auditor might have an inclination to disallow
certain warrants drawn for North Dakota institutions, as possibly
he already has.
Mr. KELLAM. Well, I don't know anything about that; still
if the law has appropriated that money they have a right to
draw it.
Mr. CAMP. They only draw it through the Auditor. He can
delay the game a great while if he wants to. They send for their
vouchers to the Auditor, and the only way they can get the Aud-
itor to allow them, if he don't want to, is by mandamus. Now, I
don't think, Major, the Auditor will do anything of that kind; but
at the same time we should leave ourselves at the mercy of the
Auditor of the Territory.
Mr. KELLAM. I should be better prepared to vote upon this
question when I see how it works.
Mr. SCOTT. I believe you will see that it is absolutely fair
and right.
Mr. HARRIS. Mr. CALDWELL and I discussed the railroad
matter as to where it could be determined; where it came from,
and I believe there was only one railroad, the Milwaukee & St.
Paul, and a little branch in Logan county.
Mr. BROTT. The Northwestern does.
Mr. CAMP. The Northwestern only runs up to Oakes.
JOURNAL OF THE JOINT COMMISSION.
823
Mr. CALDWELL. I don't see how this proposition here can
in any manner prevent the officers of this Territory from doing
that which is intimated they might possibly do. "From and after
March 11, 1889, the State of South Dakota shall be credited with
all taxes collected from counties within its boundaries." Credited
by whom?
Mr. SCOTT. Who would naturally do it?
Mr. CALDWELL. The officers of the Territory. "And
charged with all moneys paid out by the Territory for appropria-
tions made to the public institutions situated therein." Who is
to do that?
Mr. SCOTT. Who does that now?
Mr. CALDWELL. The Territorial officers.
Mr. CAMP. They get their money from the respective States.
Mr. SCOTT. He could pay out any money, taxes collected
from South Dakota for the maintenance of North Dakota.
Mr. KELLAM. Would that be your opinion, to make an
agreement binding upon the Auditor and Treasurer?
Mr. SCOTT. I have no doubt the Auditor and Treasurer
would do as is requested.
Mr. KELLAM. I don't know but they would.
Mr. BROTT. It would not be binding.
Mr. SCOTT. They can keep the books.
Mr. CALDWELL. They have to do such things; they would
be liable on their bond.
Mr. KELLAM. Suppose we do make an agreement of that
kind. There is no money in the Treasury to pay the appropriations
made to the institution by the Legislature, say the Jamestown
Hospital. Suppose the Legislature made an appropriation for the
Jamestown Hospital and there is no money in the Treasury com-
ing from North Dakota counties, but there is $50,000 in the Treas-
ury coming from South Dakota counties; now, should this agree-
ment justify the Auditor in refusing to honor that draft?
Mr. CALDWELL. Certainly not.
Mr. KELLAM. Suppose the Legislature appropriated $50,000
to the Jamestown Asylum, but it came from the South Dakota
counties; now here comes a voucher of the Jamestown Hospital
for $10,000 under that appropriation; now would the Auditor be
justified in refusing to pay that voucher?
Mr. SCOTT. What do they do now?
824
JOURNAL OF THE JOINT COMMISSION.
Mr. KELLAM. I say there is $50,000, but it came from the
South Dakota counties.
Mr. SCOTT. But what do they do now?
Mr. CALDWELL. Go to work and issue Territorial bonds.
Mr. KELLAM. Now there is money there, $50,000; I should
pay $10,000 to the Jamestown Asylum, but on account of that re-
quirement I can't do it. How long would it require; how long
would it take to require them to do it by mandamus?
Mr. SCOTT. They could issue the warrant to pay
Mr. KELLAM.
the Treasury?
Mr. SCOTT.
Could they issue a warrant on that $50,000 in
The chances are not one in five hundred that the
case would happen. The money comes in pretty evenly. About
an even number of counties between North Dakota and South
Dakota, and this is a supposition case.
Mr. CALDWELL. Well, that matter has been pretty thoroughly
discussed; but I would like to ask the basis of the paragraph.
"Should South Dakota desire the State of North Dakota to as-
sume the ownership and control of the Capitol at Bismarck with
its furniture and fixtures, including all claims against the Terri-
tory arising out of the acceptance of the grant of lands made to
the Territory for Capitol purposes, and further to assume its
bonded indebtedness, the State of North Dakota will do so upon
the payment by South Dakota to North Dakota of the sum of
$40,000."
Mr. PURCELL. That is made on the basis, Mr. CALDWELL, of
the fact that there are $82,000 worth of refunding warrants issued
now, which represent balances due contractors, etc., for work on
this building, and, also, $22,000 which represents the furniture in
the building, in all $104,000, that this Capitol stands to the Terri-
tory. Now, of course, we claim in the North, it is a contingent
asset; that, the people of North Dakota will vote upon the ques-
tion as to where the Capital shall be, and in case it is changed from
Bismarck, according to the conditions in the deed it ceases to be used
for Capitol purposes, that therefore it would revert to the mort-
gagors; and we take in connection with that, the fact that there has
been sold from this grant of land about $100,000 worth of real estate
for which warranty deeds were given, and that money used in the
construction of this building. In case this should not continue to
be used for public purposes and go back to the railroad company,
this land which has been sold, and for which warranty deeds were
JOURNAL OF THE JOINT COMMISSION.
825
given, would be clouded, and the Territory would have to make
good to purchasers of that land the purchase price with damages,
whatever that might be. So, taking into consideration the con-
tingent liability upon the warranties in these deeds, and the in-
debtedness already existing, we feel it would be no more than right
that South Dakota, who has had the use of it equally with our-
selves and during which time she has had the most of the govern-
ment, should pay to us $40,000. That is the basis of that proposi-
tion. Then, of course, we take upon ourselves the burden of pay-
ing the $80,000, and in case the Capital is removed we take the
burden of refunding what is advanced to the purchasers under
their warranties.
Mr. SCOTT. I would say in addition to that $40,000, there is
another sum something like $13,000 that would be South Dakota's
share, interest included in the bonded indebtedness. The Capital
is located here in North Dakota, and yet, unless the people of
North Dakota locate the Capital here it is of no use to North Da-
kota.
Mr. PURCELL. Then we take into consideration the fact that
you have no building situated in a similar condition. There was
a claim that we talked about the other day, an interest matter of
some $33,000, that ought to be borne by South and North Dakota
alike. We claim that $33,000 is included in and forms a part of
the $40,000, which leaves about $45,000 you should pay to us for
taking this institution off our hands.
Mr. SCOTT. I will state to the Commission that in justice to
Mr. HARRIS, that he is not at all responsible for that part of the
proposition, and, in fact, does not agree, that is, as to our standing a
part of this; being a citizen of Bismarck, naturally he thinks the
Capital should be located here and that North Dakota has no bus-
iness to change it. The rest of us on the Commission feel entirely
different; we all have aspirations, more or less, just the same as
you people in South Dakota, and for these reasons I merely de-
sire to place Mr. HARRIS aright before the Commission, that no-
body might seem to think he was not doing justice to his own side.
Mr. CAMP. I think it is patent to anybody that has walked up
to this Capitol and examined it, that this building will not remain
long the Capitol of any State.
Mr. NEILL. You don't hold South Dakota responsible for it?
Mr. PURCELL. You had a majority of the Commission that
located it.
53
826
JOURNAL OF THE JOINT COMMISSION.
Mr. ELLIOTT. That is true, but North Dakota money brought
it here.
Mr. HARRIS. North Dakota helped pay for it, too.
Mr. ELLIOTT. I believe I was a member at that time, and
tried to keep it at Yankton.
Mr. PURCELL. You can have it if you want it, too.
Mr. NEILL.
We have suffered enough already without pay-
ing for it any more.
Mr. CAMP. Irrespective of the question of moving the Capi-
tal, I don't think anyone will suppose, for a moment, that this
building which stands us in for $104,000 will remain for any
length of time the Capital of North Dakota; and if we have to
take up those refunding warrants, $82,000, why, we are paying
$100,000 more--$105,000 more for nothing.
Mr. PURCEEL. Besides our liability on the other deals.
Mr. HARRIS. Of course
Mr. SCOTT. Of course this is not the Capital of North Da-
kota--it is the Capital of Dakota. It says the records shall
remain at the Capital of Dakota, but it does not say the Capital
of North Dakota.
Mr. ELLIOTT. But you do assume by act of Legislature you
will assume the payment of these bonds.
Mr. PURCELL. You should not assume the Legislature of the
Territory would obligate the State. The State of Dakota would
not be obligated by it.
Mr. KELLAM. As soon as this matter was suggested the other
day I looked up the Journal of the House and Council, and I no-
ticed that when the bill for the assumption of this twenty—I
don't recollect the amount-this refunding, amounting to about
$83,000, when that was pending, it was referred to the members of
North Dakota, and that the bill was passed upon the understand-
ing, or something in the shape of a tacit agreement that the entire
$83,000 would be assumed by North Dakota in case of division.
The Journal discloses that.
Mr. SCOTT. Still, at the same time, as a proposition of law,
of course we want to do what is right; but as a matter of law
could the Legislature of the Territory legislate the State of North
Dakota into that?
Mr. KELLAM. No, but as a matter of law-
Mr. SCOTT. Would that make any difference?
JOURNAL OF THE JOINT COMMISSION.
827
Mr. KELLAM. I think it would make a difference in collec-
tion of the indebtedness against South Dakota.
Mr. CAMP. Simply have to go back to the old indebtedness.
Mr. KELLAM. Wouldn't it be in the nature of an ovation-
party accepting the contract
Mr. CAMP. Suppose that contract was illegal?
Mr. PURCELL. Suppose the State of North Dakota refused
to accept it; suppose you attempt to enforce one of these warrants
against the State of South Dakota, do you suppose it could be
done?
Mr. KELLAM. Why I-
It recites on its face that in case
of division of the Territory into two separate States, he shall look
to North Dakota for payment.
Mr. PRICE. Don't you suppose the bond against North Da-
kota could be enforced?
Mr. PURCELL. No, sir; not against North Dakota, or any-
body. The Major don't claim that.
Mr. SCOTT. Could not enforce them against-could he enforce
them against North Dakota.
Mr. KELLAM.
I should suppose so. I suppose if I had a
note against Mr. MCGILLYCUDDY, and I changed it for a note
against Mr. CAMP-
Mr. SCOTT. Yes, but Mr. CAMP don't give that note.
Mr. KELLAM. You had the Territorial note and gave it up
to Dakota, and in receipt, in case of division, it should be paid by
North Dakota.
Mr. CAMP. Yes, but North Dakota never signed that note.
Mr. PURCELL. In case I neglected to pay he would be en-
titled to go back to the original claim, and he would be allowed to
substitute in the place of the one who had a claim against the
whole Territory.
Mr. CALDWELL. The fundamental requirement in this Om-
nibus Bill is that the debts and liabilities of the said Terrritory
shall be assumed and paid by the said States respectively.
Mr. SCOTT. Yes, sir.
Mr. CALDWELL. Suppose we don't agree-suppose our
agreement don't cover all the libailities and debts against the Ter-
ritory, I don't suppose there would be any proclamation issued.
Mr. KELLAM. My view would be these would be claims.
against the Territory up to the time of the division.
828
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. Mr. CHAIRMAN: It is now nearly 6 o'clock, and
I move we adjourn until to-morrow morning at 9:30.
Mr. CAMP. Is there a second to the motion?
Mr. NEILL. I second the motion.
Mr. PURCELL. Then make it until 3:30. I second the motion
until to-morrow morning at 9:30.
Mr. CAMP. All in favor of the motion say aye. The motion is
carried.
TENTH DAY.
BISMARCK, Friday, July 26, 1889.
The Commission met at 10 o'clock a. m., with Mr. KELLAM in
the Chair.
All South Dakota members were present.
Messrs. HARRIS, SPALDING, SANDAGER and' PURCELL, North Da-
kota members, absent. There being no quorum, the Commission
agreed to meet at 3:30 p. m.
AFTERNOON SESSION.
The commission met at 3:30 o'clock and had an informal dis-
cussion for a time without a record being made of the same.
At 4:10 o'clock the roll was called, with Mr. KELLAM in the
chair.
All South Dakota members present. Messrs. SPALDING and
SANDAGER, of North Dakota Commission, absent.
Mr. KELLAM. Gentlemen, there is no special order of business
before us.
We have this matter of the disposition of this
property.
Mr. SCOTT. Suppose we take up that report of Messrs. CALD-
WELL and HARRIS.
Mr. CALDWELL. Mr. CHAIRMAN: I move that the chair-
man of these respective delegations, Messrs. KELLAM and CAMP,
be requested to confer regarding the matters in difference between
JOURNAL OF THE JOINT COMMISSION.
829
the respective delegations, and to, as near as possible, come to an
understanding thereupon, and to report said understanding to
this Commission for consideration.
Mr. ELLIOTT. I second the motion.
Mr. KELLAM. Gentleman, you have heard the motion; the
question is upon the motion of Mr. CALDWELL. Are you ready
for the question?
Mr. HARRIS.
Mr. KELLAM.
Question.
The Clerk will call the roll.
Camp, pass; Griggs, yes; Harris, yes; Purcell, yes; Sandager,
absent; Scott, yes; Spalding, absent; Kellam, pass; McGillycuddy,
yes; Caldwell, yes; Brott, yes; Elliott, yes; Price, yes; Neill, yes.
Six of South Dakota, and four North Dakota in the affirmative.
Mr. KELLAM. Under the rule the motion is carried.
Mr. PRICE. I move we adjourn until to-morrow morning at
9:30 o'clock.
Mr. SCOTT. I second the motion.
Mr. KELLAM. Do we want to know anything more?
Mr. CAMP. I don't know.
Mr. KELLAM. The question is upon the motion to adjourn.
As many as are in favor of the motion say aye. The motion is
carried, and we stand adjourned to meet at 9:30 o'clock a. m., July
27th.
830
JOURNAL OF THE JOINT COMMISSION.
ELEVENTH DAY.
1
BISMARCK, Saturday, July 27, 1889.
The Commission met at 9:30 o'clock a. m.
No meeting was held in the morning, the two chairmen still
consulting and not ready
not ready to report. Agreed to meet at 2
o'clock p. m.
AFTERNOON SESSION.
The Commission was called to order at 2:30 o'clock p. m., with
Mr. CAMP in the chair.
Mr. CAMP. Gentlemen of the Commission, you will please
come to order.
The Clerk will the roll.
Camp, here; Griggs, here; Harris, here; Purcell, (Mr. Griggs
presented the following proxy signed by Mr. Purcell, and votes
yes. "I hereby authorize delegate ALEX. GRIGGS to cast my vote
on all questions before the Joint Commission. Signed. W. E.
PURCELL.") Sandager, absent; Scott, here; Spalding, absent; all
South Dakota members present.
Mr. CAMP. I don't know of any question that will arise. I
don't think it will make any difference with the majority vote.
Mr. GRIGGS. In case we come to a final settlement Mr. PUR-
CELL will be in at the death.
Mr. CALDWELL. I don't know anything about it, but it
seems to me a proxy would hardly be regular.
dif-
Mr. CAMP. But I don't know as it will make any difference.
Mr. CALDWELL. No, I don't know that it will make any
ference.
Mr. CAMP.
Mr. BROTT.
Gentlemen, what is before the meeting?
Would like the report of the committee.
Mr. CAMP Mr. KELLAM is ready to report for that com-
mittee.
Mr. KELLAM. Now, gentleman, I want to say in behalf of
Mr. CAMP and myself, that of course this plan we suggest here is
JOURNAL OF THE JOINT COMMISSION.
831
not supposed to be what the agreement will be, even if we agree
upon this plan; but it is rather an outline of a general basis of
agreement we recommend to the Commission:
GENERAL PLAN OF AGREEMENT PROPOSED AND RECOMMENDED.
Public Institutions. Each State shall take the public institutions located
within its boundaries, with all appurtenances, furniture, etc., and shall assume
the payment of all indebtedness against the Territory, bonded or funded, on
account of such institutions respectively.
All other items of personal property and miscellaneous effects belonging
to the Territory, except the Territorial Library, and the Territorial Records
and Archives, shall be divided as nearly equally as possible between North and
South Dakota.
The State of South Dakota shall pay to the State of North Dakota $42,500
on account of the excess of Territorial appropriations, for the permanent im-
provement of Territorial institutions, which under this agreement will go to
South Dakota, and in full settlement of unbalanced accounts, and of all claims
against the Territory, of whatever nature, legal or equitable, arising out of the
alleged erroneous or unlawful taxation of Northern Pacific Railroad lands, and
the payment of said amount shall discharge them and exempt the State of
South Dakota from all liability for or on account of the several matters herein-
before referred to, nor shall either State be called upon to pay or answer to any
portion of liability hereafter arising or accruing on account of transactions
heretofore had, which liability would be a liability of the Territory of Dakota
had such Territory remained in existence, and which liability shall grow out of
matters connected with any public institution of the Territory situated or lo-
cated within the boundaries of the other State.
Neither State hall pay any portion of liability of the Territory arising out
of erroneous taxation of property situated in the other State.
Each committee shall make a sealed statement of the amount it is willing
to pay for the undivided half of the Public Library, and the one offering the
the larger sum shall take the Library at the sum so offered.
If, on investigation, it appears that the militia property is divided between
North and South Dakota companies in proportions nearly equal, then the prop-
erty is to remain in that State within the limits of which it now is; otherwise
it is to be divided as nearly equal as possible.
The final adjustment of accounts shall be made upon the following basis:
North Dakota shall be charged with all sums paid to the public institutions lo-
cated within its boundaries on account of the current appropriations since the
same became available; and South Dakota shall be charged with all sums paid
to public institutions located within its boundaries on the same account and
during the same time. Each State to be charged with one-half of the general
expenses during the same time. That all monies paid into the Treasury during
this period from about March 11th, to the time of final adjustment, from North
Dakota shall be credited to North Dakota, and all such sums paid in from
South Dakota for the same time shall be credited to South Dakota,
except that all railroad taxes paid into the Territorial Treasury
since the date above named for years prior to 1889 (that is the
part thereof going to the Territory) shall be equally divided
832
JOURNAL OF THE JOINT COMMISSION.
between North and South Dakota, and the railroad taxes for 1889 shall be dis-
tributed as already provided by law, except that so much of said tax as goes
to the Territorial Treasury shall be divided as follows: North Dakota shall
have so much thereof as is paid by railroads in North Dakota, and South Da-
kota so much thereof as is paid by railroads in South Dakota. If there shall
be any indebtedness at the time of final division, each shall assume its share
as determined by the amount paid to each section in excess of the receipts
from each section, and if there shall be a surplus at the time of such division,
each shall be entitled to the amount it has paid in over the above amount it
stands charged with.
The payment from South Dakota to North Dakota, or as much of it as pos-
sible, shall be made by South Dakota assuming North Dakota's share of cur-
rent liabilities at the time of final adjustment, including North Dakota's share
of cost of copying records.
It is further recommended that South Dakota and North Dakota pay one-
half each of all liabilities now existing but not audited and allowed, except
those incurred on account of public institutions.
Each State shall succeed to all rights of the Territory upon contracts for
public works within such State, or bonds to secure the completion of such con-
tracts.
Each State shall receive all unexpended balances of the bonds which it is
to pay whether such balances have been covered back into the Treasury or not.
Mr. ELLIOTT. Mr. CHAIRMAN: In order to get this proposi-
tion properly before the Commission, I move the adoption of the
report.
Mr. CAMP. Is that motion seconded?
Mr. SCOTT. Well, I will second it for that purpose.
Mr. CAMP. You have heard the motion. Are you ready for
the question?
Mr. CALDWELL. In order that there may be an exact
understanding as to the signification of certain references in the
report, I would call attention to the fact that there is—that rail-
road taxes may possibly need be determined in one or two ways;
that is to say, when we apply to certain tax, namely of 1888, we
might possibly mean either that it was the tax upon the gross
earnings of the railroad in 1888, or the year in which the tax was
to be paid. I would ask each signification is put to these various
names and then the report, this one we speak of, the 1889 tax,
is understood to mean the taxes that became collectible in 1889,
but which were levied upon the gross earnings of 1888.
Mr. CAMP. My understanding was it meant the erroneously
paid taxes under the law of March, 1883, I think.
Mr. CALDWELL. March 7, 1883.
Mr. HARRIS. That is, the 1888 taxes paid in in 1889.
JOURNAL OF THE JOINT COMMISSION.
833
Mr. CAMP. Now there were some taxes delinquent upon the
earnings of 1888, more than on those of 1887. This covers all
earnings on inter-state commerce up to that time, up to the end
of 1888.
Mr. CALDWELL. Just simply so there will be no misunder-
standing about it.
Mr. SCOTT. What is understood by the second section of that
report; by the first section which says, "all furniture, appurte-
nances," etc. I want to get at that with reference to the Capitol
building. All in the Capitol building is included under that term,
is it?
Mr. KELLAM. That was my thought. I didn't have any-
thing in my mind further than it would include the furniture of
the Capitol, as it includes the furniture of the other public in-
stitutions.
Mr. SCOTT. I didn't know. There was something said the
other day about some things I think was in the Capitol, such as
the safe.
Mr. KELLAM. There were a few things not covered; those
things were covered by this agreement by general appropriations.
Mr. HARRIS. Some furniture in the Railroad Commissioners'
office.
Mr. KELLAM. That is not part of a public institution. Any
part of the Capitol or furniture.
Mr. CAMP. For instance, there is a table and typewriter in
the Capitol; that is the Governor's office, and there is the Rail-
road Commissioners' office.
Mr. NEILL. We had that question up the other day.
Mr. SCOTT. I had reference more particularly, I think, the
most valuable articles was a safe in the Treasurer's office.
Mr. NEILL. Safe and scales.
Mr. KELLAM. I didn't have any particular thought of those
items; but that such items of furniture as properly and incident-
ally belonged to the Capitol, for instance, the furniture of the
Governor's office, Auditor's office, Secretary's office, remaining in
all those offices. They were proper and necessary to be kept at
the Capitol.
Mr. HARRIS. You included in that, the safe in the Treasur-
er's office?
Mr. KELLAM. I had no thought about that. I don't know
whether Mr. CAMP did or not.
834
JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. No, I didn't particularly.
Mr. CALDWELL. It would be my judgment, just viewing the
matter casually, that such furniture as had been purchased for of-
fices regularly maintained in the Capitol building, would be in-
cluded as a part of the furniture, and furniture we will say in the
Capitol building, offices which are maintained elsewhere; that that
furniture should go to that office. Of course, this Commissioner
of Immigration is maintained now at another point, and likewise
the offices of the Railway Commissioners; and it seems to me a
proper distribution of the matter would be to-that anything pro-
vided for the offices regularly maintained in the Capitol, that that
should stay there, and any of this furniture and property provided
for offices not maintained in the Capitol should be where the of-
fices are maintained.
Mr. GRIGGS. Where is the office of the Railroad Commis-
sioners now?
Mr. CALDWELL. At Watertown.
Mr. CAMP. As far as I am concerned I would be willing to
consider it that way.
Mr. SCOTT. So far as I am concerned I would be willing to
consider the furniture in the Commissioner of Immigration's office
the property of South Dakota, and if the Railroad Commissioners'
furniture is down there, would be willing to consider that; but the
furniture we have in the Capitol here belongs to us.
Mr. GRIGGS. That expresses my opinion exactly.
Mr. KELLAM. The furniture that is used as part of the Cap-
itol and its offices, and appliances, should be regarded as the fur-
niture of the Capitol. In regard to the furniture of the Railroad
Commission, I don't know how that is at Fargo, but at Aberdeen
or Watertown or anywhere else, of course, it would not be a part.
of the Capitol furniture.
Mr. HARRIS. I think that is what Mr. Scorr's idea was, too.
Mr. GRIGGS. The furniture that is here belongs to the Cap-
tol.
Mr. HARRIS. My understanding was if their offices are there,
the same as Commissioner of Immigration is at Aberdeen—if
their office is regularly established there, the furniture that is here
should go to the office.
Mr. SCOTT. Well, I would not quarrel about it.
Mr. CALDWELL. That would seem a fair thing to do. The
fact is, of course, for a considerable time the property of the Ter-
JOURNAL OF THE JOINT COMMISSION.
835
ritory—that is, these offices in order to run their business, ought
to have the furniture at the place the office is maintained.
Mr. GRIGGS. In all probability they have that down there.
Mr. NEILL. They have part, and expect to take the rest when
this Commission was appointed. They have referred the matter
to us asking us to ship it, but we have paid no attention until dis-
position was made.
Mr. GRIGGS. One of the Commissioners was here a short
time ago and used that room; and I think it is perfectly proper it
should be left there. I don't think it is right to take it away.
Mr. McGILLYCUDDY. How much does that amount to?
Mr. NEILL.
About $175.
Mr. MCGILLYCUDDY. The amount is so small I hardly
thought it worth arguing over-five minutes talk about it.
Mr. NEILL. It is not the value as much as the principle in-
volved. There is $2,000 listed and that is really all South Dakota
has got out of it. It is all we ask, and simply ask it to complete
these offices already established.
Mr. CALDWELL. It is necessary for them to conduct their
business, and they would have to take these or buy some other.
Mr. GRIGGS. It is here and the furniture is here. Gentlemen,
I think it is very wrong to move that furniture. The Capital is
located here and we can't help it. I think as it is we are sacrific-
ing enough if we get this proposition, because you gentlemen are
where the institutions you have in the South are worth very much
more than what we have in the North over and above the bonded
indebtedness.
Mr. MCGILLYCUDDY. It would come down to the question
who contributed the most, North or South.
Mr. PRICE. It seems to me entirely unnecessary to discuss
that.
Mr. NEILL. This matter was suggested the other day.
Mr. PRICE. As far as I am concerned I am willing to let
them have the furniture. I don't think we have much use for it
either.
Mr. GRIGGS. I will tell you one thing. We do have use for
Railroad Commissioners in North Dakota.
Mr. CALDWELL. Yes, that is right; you have.
Mr. ELLIOTT. No doubt of that at all.
Mr. CALDWELL. If we had railroad companies in the South
836
JOURNAL OF THE JOINT COMMISSION.
like you have in North Dakota, it would be a good thing. Up
here they try to do something for the benefit of their patrons.
Mr. BROTT. Of course the type writer should be where the
office is.
Mr. CALDWELL. I tell you now, the boys have made a most
excellent adjustment of things.
Mr. CAMP. The question is upon the adoption of the report.
We certainly ought to have more discussion.
Mr. McGILLYCUDDY. Does the adoption of the report
bind it?
Mr. NEILL.
Yes.
Mr. ELLIOTT. Now is the time to get your talk in.
Mr. CALDWELL. 1 ask simply to determine if the division-
Mr. PRICE. It is satisfactory to me; I would like to make a
speech as well as any man on earth.
Mr. KELLAM. Under this recommendation South Dakota
pays to North Dakota the lump sum of $42,500; that this payment
shall be liquidated in part by assuming certain indebtedness of
the entire Territory at the time of the dissolution; North Dakota
half, we take it and take a credit of $42,500; if the copying of
these records amount to $5,000 we pay the whole of it and take a
credit of $2,500.
Mr. SCOTT. I feel just this way, I want this thing straight-
ened up.
Of course, it was necessary to get a great many facts
and look the business up, and we were not posted. It took con-
siderable length of time to be in a position to make any proposi-
tion. I don't want to stand out for any small difference between
us, for I think the Territory is too great, and its resources are too
grand to let the Commission, an honorable Commission like this,
dispute over small sums. Now, our original proposition was an
amount in the aggregate, $100,000. I have discussed this matter
over with our Chairman, and the rest of the members of the
Commission have done the same. I want to see a settle-
ment. I thought that the settlement should at least be the round
sum of $50,000. It has, cutting it in two just exactly; and that is
the way I feel about it; and I should be in favor, so far as I am
concerned, of making the sum, if it was changed from $42,000 to
$50,000. But I really think then, that the boys from the South
here have got the best of us. At the same time I want to see the
settlement go through and without any further delay. We should
draw our stipulations up and be ready to report the early part of
JOURNAL OF THE JOINT COMMISSION.
837
next week and let you gentlemen get home to your duties there.
It is an inconvenience to us and I am sure much more of an in-
convenience to the members from the South. But I do think the
report should be so amended that $50,000 should be inserted in
the place of $42,500.
Mr. CALDWELL. There is just one question I would like to
ask in regard to this matter of railroad tax. Now it says in there,
the tax of 1889 shall be divided equally between North Dakota
and South Dakota. Does that mean according to where it came
from?
Mr. KELLAM. No, it doesn't say so.
Mr. CALDWELL. I mean the 1889 taxes divided according to
the sources from which it comes. Is the tax of 1889, understood
as including anything else than the assessment upon the gross
earnings of 1888?
Mr. CAMP. That is all.
Mr. CALDWELL. That is all.
Mr. CAMP. Due after March 11, 1889.
Mr. KELLAM. I think Mr. CAMP and I agreed to cover under
the first clause all taxes in arrears; that is, taxes that should have
been paid before 1889, and in the other, all taxes that should be
paid in 1889.
Mr. CAMP. Everything in arrears up to March 11, 1889. Every-
thing due or shall become due since March 11, 1889, as divided.
Mr. CALDWELL. As I understood it, the tax on the gross
earnings of 1888, and delinquents prior to that time, is divided
into two payments in 1889, one payment about the 7th of April,
the other about the 15th of August.
Mr. CAMP. The law says within thirty days after the passage
and approval of the act all arrears shall be paid.
Mr. CALDWELL. It was not the purpose to take or to divide
the penalties in two payments.
Mr. CAMP. No.
Mr. CALDWELL. That fixes that point.
Mr. NEILL. That's all straight.
Mr. CALDWELL. Yes.
Mr. CAMP. I would like to hear a more general expression
all around.
Mr. MCGILLYCUDDY. This $8,000, or $7,500, seems to be a
question in Mr. SCOTT's mind, the difference between $42,500 and
$50,000; you take and compare that to the amount involved; some-
838
JOURNAL OF THE JOINT COMMISSION.
!
thing over $2,000,000 is very small, hardly worth taking into con-
sideration. The Chairmen of the two committees of North and
South Dakota made at the request of the two committees as an arbi-
tration committee a report, and tried to come to some definite un-
derstanding. So far as I am concerned I am willing to stand by
it. But to raise that amount $500 I should certainly vote no.
Mr. KELLAM. I don't know whether I ought to say anything
or not, but it is only in reply to the suggestion of Mr. SCOTT. I
don't know which side would get the advantage, or whether there
would be any advantage, and I don't think that it is possible for
any man to tell which side would get the advantage whether we
settled upon the basis of no payment, each territory taking its in-
stitution without any payment either way, or whether we settled
upon the basis we suggested the other day, or settled upon the
basis of payment of $42,500. Now, I don't, for myself, agree to
the proposition of paying $42,500 because I believe that is just
the amount we ought to pay; but simply because we have agreed
upon that amount as a sort of compromise of the claims
of both sides. I know this, that at least two of the members of
our Commission only will consent to the amount of $42,500, be-
cause the matter was rather left to us, Mr. CAMP and myself.
These two gentlemen say we would like to vote no, because we
would like to be upon the record "no" when it goes South; but at
the same time, having entrusted this matter to you and Mr. CAMP,
if you agree to it, we shall. And I am satisfied this is the only
consideration for two of our members. I say again, I don't agree
to that, and I don't suppose Mr. CAMP does, and I don't suppose
any man on the Commission does, because he thinks it is the ex-
act amount between us. My own judgment would be that a fairer
settlement would be upon a much less sum, and still I don't know
as it would. I simply say we are delaying this matter un-
less we can approach each other in the spirit of com-
promise and concession, and we cannot make any settle-
ment. Now, when we came here we thought our proposi-
tion was a fair one. I have no doubt you thought your proposition
was a fair one. We naturally looked at these matters from our
different standpoints, and this amount we have arrived at, we did
it in an endeavor to reach a settlement of these adverse claims.
Now, I really think that the gentlemen of the North Dakota Com-
mission should sympathize somewhat with Mr. CAMP and myself
in this matter. This is the second time the matter has been left
JOURNAL OF THE JOINT COMMISSION.
839
with us, and the second time with rather a tacit understanding
that we, knowing the feeling of our respective Commissions, would
recommend such a compromise as would probably be acceptable.
All I intended to say was that two of our Commission are not at
all satisfied with the amount we have recommen led, and only do
it, as they say, for the sake of harmony and out of deference to
the judgment of the committee.
Mr. CAMP. GRIGGS, we have not heard from you yet.
Mr. McGILLYCUDDY. Forty-two thousand five hundred
dollars sounds better that $50,000. It seems to me there must
have been some-
I move that the report be
Now, it is not
Mr. GRIGGS. Mr. PRESIDENT:
amended so it will say $50,000 in lieu of $42,500.
Mr. SCOTT. Yes, I will second the motion.
out of disrespect for Mr. KELLAM or Mr. CAMP.
Mr. KELLAM. I will not charge up anything.
Mr. SCOTT. Our original proposition was $100,000, and, of
course, that is on our record, as it is on yours. Naturally, when
it comes to be investigated and looked over, the question will
arise, how is it the North Dakota boys came down from $100,000
to $42,500. Of course, it would be an easy explanation to say,
why, the South Dakota proposition was to call it square. Our
proposition was to have $100,000, and we just split the difference
for the sake of arriving at a settlement.
Mr. BROTT. Might say you started too high.
Mr. SCOTT. I don't think they are liable to do that,
Mr. CAMP. The question is on the amendment to the motion.
to adopt the report. Any further remarks? If not the Clerk
will call the roll.
Camp, I would like to pass; Griggs, yes; Harris, yes; Purcell,
yes (by Griggs); Sandager, yes; Scott, yes; Spalding, absent;
Kellam, no; McGillycuddy, no; Caldwell, no; Brott, no; Elliott,
no; Price, no; Neill, no.
Mr. CAMP. Under the rule the motion is lost. The question
recurs upon the motion to adopt the report of the committee. If
there are no further remarks the Clerk will call the roll.
Camp, yes: Griggs,
Mr. SCOTT. I would suggest the Clerk call the names of the
South Dakota Commission first.
Mr. NEILL. All right.
840
JOURNAL OF THE JOINT COMMISSION.
Kellam, yes; McGillycuddy, yes; Caldwell, yes; Brott, no; El-
liott, yes; Price, yes; Neill, yes.
Camp, yes; Griggs, Mr. GRIGGS. Well, out of respect to their
feelings I will vote yes; Purcell, yes (by Griggs as proxy for
Purcell); Sandager, absent; Scott, yes; Spalding, absent.
Mr. BROTT. I move we make this unanimous.
Mr. KELLAM. Mr. BROTT, this is for the South Dakota
Commission and not for the North Dakota Commission. It
would please me, still I don't think myself it is a settlement we
will get any glory out of down South. I don't want you to go
down there and say you protested against this. All our Commis-
sion rather have it unanimous.
Mr. BROTT. I will change my vote to yes.
Mr. KELLAM. I don't want you to do it if you don't want to.
Mr. BROTT. I can stand all the glory I will get.
Mr. CAMP. The next thing will be to draw up a formal agree-
ment which will be recommended to be adopted by the two Con-
ventions. But we have yet to find out about the militia and to
go into the details of this division of the property of the offices.
We had better arrange to-
Mr. CALDWELL. Would it not be well to have, at this time,
the report of the Committee on Records.
Mr. PRICE. I want to introduce this motion at this time:
"The Chairmen of the respective Commissions shall prepare and
and present to the Joint Commission the final agreement."
Mr. SCOTT. I second the motion.
Mr. CAMP. You have heard the motion. If there are no re-
marks, all in favor of the motion say aye; opposed, no.
motion is carried.
The
I think it would be a good plan to have the report of the Com-
mittee on Records.
The following report was read by Mr. CALDWELL:
BISMARCK, July 24, 1889.
To the Joint Commission of North and South Dakota:
GENTLEMEN: Your sub-committee appointed to suggest an agreement for
disposition of the archives, records and books of the Territory, as provided in
sections five and six of the Enabling Act, would respectfully recommend:
First. That certain records as herein indicated should be transcribed—
the originals to be allotted to one of the States and the copies to the other, by
such arrangement as may be arrived at by the Commission.
Second. That such books, files, etc., as refer particularly to either section
shall be allotted to that section, where a division of said files is possible.
JOURNAL OF THE JOINT COMMISSION.
841
Third. That in case of files, correspondence, etc., which shall refer to the
two sections in general; that such files, correspondence, etc., shall be
grouped in convenient lots, and said groups to be selected from by the respec-
tive sections alternately; the first choice to be determined by lot.
Fourth.
That where transcription is recommended, the expense thereof
shall be divided equally between the two sections.
Fifth. The more particular details as to this agreement are given below:
RECORDS TO BE TRANSCRIBED.
Secretary's Office: Two volumes Railroad, Deeds, Mortgages and Leases,
twenty-seven volumes Foreign and Domestic Incorporation Records, three No-
tarial Commission Records, one General Executive Record, one Record of Ap-
pointments, one Record of Elections.
Auditor's Office: Six volumes Appropriation Records (Ledgers), one Exe-
cutive Record, one volume Insurance Record, 1889, Articles of Domestic and
Foreign Insurance Companies.
Treasurer's Office: Three Cash Books, one Journal, two Ledgers, two old
books-Journal and Cash Book and Ledger, one Bond Register.
Governor's Office: One Requisition Record; one Executive Record.
Adjutant General's Office: Record Books.
Supreme Court Records: Record Books.
TO BE DISTRIBUTED ACCORDING TO LOCALITY.
Secretary's Office: Election Returns, Constitutional Conventions and
Local Option; Application and Bonds of Notarial Commissions; Enrolled Bills
of Local Application; Applications for Pardons; Articles of Domestic Incorpo-
ration; Papers relating to Organization of Counties.
Auditor's Office: Vouchers of Local Application; One Bond Register,
County Bonds, South Dakota.
Treasurer's Office: One Warrant Register, to go to North Dakota; Let-
ters to be divided by Counties, and Vouchers and Receipts the same; Bonds,
Coupons paid; Railroad Report of Gross Earnings; Canceled Bonds, South
Dakota,
Public Examiner: Records to go to section where located.
Boards of Agriculture: Records.
Dental Examiners: Records.
Boards of Pharmacy: Records.
Governor's Office: Census returns; requisition papers.
Commissioner of Immigration: (Nothing.)
TO BE DIVIDED BY LOT.
SECRETARY'S OFFICE.
No. 1. Correspondence, including Letter Files and Letter Books.
No. 2. Bills introduced in Legislature to date, House and Council Jour-
nals and Bill Books.
No. 3. Enrolled Bills of General Application.
No. 4. Applications and Affidavits of Foreign Loan and Building Asso-
ciations.
No. 5. Proclamations of Governors.
J
54
842
JOURNAL OF THE JOINT COMMISSION.
No. 6. Oaths of Office, Commissioners of Deeds.
No. 7. Oaths and Bonds of Territorial Officials.
No. 8. Articles-Foreign Corporations.
No. 9. Articles not Specified.
GOVERNOR'S OFFICE.
No. 82.
Two volumes Visitors' Registers.
No. 92.
No. 102.
Official Correspondence, Letter Files and Letter Books.
Lincoln Memorial.
No. 112.
Articles not specified.
AUDITOR'S OFFICE.
No. 10.
Warrant Register.
No. 11.
No. 12.
No. 13.
No. 14.
No. 15.
Warrant Stubs and Redeemed Warrants.
Vouchers other than those of Local Origin.
Six yolumes Insurance Records.
Letter Files and Letter Books.
Abstract of Assessment Roll. (One copy is with Auditor and
the other is with Treasurer.)
No. 16. Annual Statements and Correspondence with Insurance Com-
panies.
No. 1612. Articles not specified.
TREASURER'S OFFICE.
No. 17. Two Warrant Registers with Auditor's Receipts.
No. 18. Five Letter Books.
No. 19.
Stub Receipts given for Railroad and other funds paid in.
ATTORNEY GENERAL'S OFFICE.
No. 20. Letters and papers.
No. 21.
Commissioner of Immigration. Letters and Papers.
VETERINARY SURGEON.
No. 22. Letters and Papers.
RAILROAD COMMISSIONERS,
No. 2212. Letters and Papers.
BOARD OF HEALTH.
No. 23. Letters and Papers.
ADJUTANT GENERAL'S OFFICE.
No. 24. Correspondence, etc.
Respectfully submitted,
HARVEY HARRIS,
E. W. CALDWELL,
Committee.
Mr. CALDWELL. Supreme Court Records: With regard to
them I don't know what would be absolutely necessary to be
transcribed. The Committee asked Mr. HAYDEN to see the Super-
intendent of Public Instruction with regard to the records in his
JOURNAL OF THE JOINT COMMISSION.
843
office, and he says there are some two or three record books per-
taining indiscriminately to North Dakota and South Dakota, and
it is the judgment of Mr. ROSE that these ought to be copied.
Mr. CAMP. Is not there another department of Education
down South?
Mr. CALDWELL. No. There is a Board of Education, the
General Superintendent and two assistants, and the General
Superintendent is in North Dakota and the two assistants down
there. It is a Territorial Board of Education, really. I wanted
to say, at the time of the appointing of this committee, it was the
judgment of the Commission that these corporation records should
be copied, and so I coincided with brother HARRIS' views and re-
ported in favor of that. My judgment is against copying all those,
andI make this explanation in regard to that, that when I might
say something against it, that it might not seem inconsistent with
the recommendation. In regard to a good many, particularly of
the Domestic Corporations, the original articles as forwarded
to the office of the Secretary were returned to the party after
transcribing into the records of the office. It is only that consid-
eration that leads me to think there is a justification, probably, of
the copying of the records. Particularly is it the case with re-
gard to incorporation-charters of incorporations; and where the
corporations were doing a general business, why they in a busi-
ness way would send up here their original articles and keep a
duplicate; they would send up here their original articles, and out
of deference and request from them, the Secretary has in many
cases returned them.
Mr. CAMP. Would it not be possible to copy just the South
Dakota corporations?
Mr. CALDWELL. The difficulty would be the corporations
have secured the privilege of doing business in the Territory, and
there might be some question as to its powers under the charter.
It is a very close question and a great many considerations both
ways. To some it will be this: just a question of economy on
one side and possible use.
Mr. CAMP. There is another question I want to ask, and that
is, have you recommended those volumes which are necessary in
order that the States may respectively commence operations?
Mr. CALDWELL. That matter was-that distinction was
most emphatically sat down upon by the Commission by
the resolution I introduced, and was voted down; and then
844
JOURNAL OF THE JOINT COMMISSION.
the expression of the Commission was in favor of copying, not
only such books as should be necessary-absolutely necessary for
the respective States to commence business, but also to copy any-
thing that in their presumption might be desirable to copy here-
after.
Mr. SCOTT. I understood the committee would recommend
such as should be copied immediately-for immediate use, such
as must eventually be copied.
Mr. CAMP. That is what I supposed.
Mr. CALDWELL. We believed we were to report together.
It was Mr. HARRIS, I believe, who introduced the resolution,
and he said it was his object to take and recommend the copying
now of anything that would be necessary to copy.
Mr. HARRIS. My idea is this: The Territorial officials are
here and everything is in shape to do this work. If these States
are to go into operation and all these books, records and vouchers
in the offices are packed away, and these officials cease to have
them in custody and go back to their respective homes, we would
be in a bad shape to get this work done and have it certified to by
the men who have charge of the records. What is necessary to
be copied should be done now, before they leave the offices, and
can certify to the records.
Mr. ELLIOTT. That was my understanding at the time the
resolution was adopted. What records were necessary for the
States for their immediate use should be copied first.
Mr. SCOTT. Returning again to those twenty-seven books,
what size books are they?
Mr. CALDWELL. Of about 500 pages each, averaging three
folios to the page; cost about $150 apiece to copy them.
Mr. SCOTT. Now, what actual use, what legal use or necessity
is there for copying them?
Mr. CAMP. Why can't the State of North Dakota make the
corporations pay for them?
Mr. CALDWELL. They could not do that; they have secured
the vested right to do business in the Territory.
Mr. KELLAM. I confess in this matter that my views have
been modified back and forth two or three times with reference to
these records. I can see a great deal of force in the suggestion of
Mr. HARRIS, that what seems must be done first or last, might as
well be provided for now; and still I think that we are always
anxious to avoid as much expense for the two States as we can.
JOURNAL OF THE JOINT COMMISSION.
845
This thought occurred to me—I don't know now as I would be in
favor of it still it is a thought I think worth considering. To
select such books as are indispensable to both the new States to
inaugurate State governments in the several departments, which
would be I don't know sufficiently about the methods of book-
keeping to know, but suppose we select the last Journal
and Ledger, the one now in use in the Auditor's
office, and Treasurer's office and Secretary's office, as
they will be indispensible to each new State in starting
off in business, and then to make an agreement that either one
State or the other should hold the entire records of this Terri-
tory as trustee for both States without compensation further than
they individually may be entitled to fees for certifying, or the
copying as he is now, with the further provision that if at any
time within a stated term the Legislature of the State not having
the custody of the books, desires copies of them made, that then
such copies shall be made, and the expense borne equally by the
two States. It is hard for me to get over the force of the sugges-
tion of Mr. HARRIS; and still I know, speaking for myself and the
locality I go back to, I know that it is going to require a good
deal of argument on the part of this Commission to justify our
action in this Joint Commission, and you gentlemen say the same.
thing. Now, if we take such action in copying the whole com-
plete set, the first question will be asked, what is going to be the
expense? Well, I say, as nearly as we can esti-
mate, ten, twelve or fifteen thousand dollars. Well, what do
you get back for it; what necessity was
Now, I am anxious, for myself, to avoid that possible criticism;
and still to many men it would be a complete answer to repeat the
argument of Mr. HARRIS. I think the other plan the better of
leaving the entire records as they are except providing for such
copying as we shall need in South Dakota and North Dakota, or
else provide copies for North Dakota, and South Dakota take the
entire records, with the agreement that the State shall hold them;
shall be considered the trustee of the two States-each side hav-
ing equal access and being equally the property of both States;
with the agreement that within a stated time the State not having
them may indicate what copies they want, and that that shall be
the assertion of their right to have copies made whatever the ex-
pense is, and each State shall bear one-half the burden.
there for it?
Mr. CAMP. One item, twenty-seven volumes at 10 cents a
846
JOURNAL OF THE JOINT COMMISSION.
folio; we would have to pay $4,000 for copying those Corporation
Records.
Mr. KELLAM. Then there is another thing I don't like, Mr.
CALDWELL. Your judgment ought to be better than mine, but I
don't like the idea of "chopping" up those vouchers and paid war-
rants.. Of course, so far as the bonds are concerned, actually paid
and cancelled, if each State wants its own bonds, there will be no
objection to "chopping." I would rather it would go to one State
or the other. There would be no difficulty in the parties inter-
ested in any state applying for such information as they wanted
at the office, either in North or South Dakota.
Mr. SCOTT. Make it obligatory to those in possession to give
any information concerning them. It would be no greater trouble
for men in South Dakota to write up to Bismarck than to write to
any Capital in the Territory.
Mr. PRICE. No, but it would make a difference to South Da-
kota men who don't visit the Capital.
Mr. CALDWELL. Two records of the contents of warrants in
sequence-in one book they are entered in regular sequence by
their order.
Mr. KELLAM.
What is the object?
Mr. CALDWELL. I know it is a very frequent experience
that they will write to the office and want to know about a warrant
of a particular number; they ask you to what fund did you charge
warrant No. 22,312. Shows the necessity of being able to find
readily the warrant. If the warrant register go to one place and
the stubs to go to the other there would be the same information
in both sections.
Mr. CAMP. While you were reading that report this thought
suggested itself to me: that is the necessity of dividing up a par-
ticular office. You might arrange that all the reports, say of the
Treasurer's office, shall stay at one place; all the records of the
Auditor's office stay in another.
Mr. CALDWELL. Well, that same idea was suggested to us,
and the thought was this: that it is trusting so much of it to one,
that when the thing was done, why, the side which happened to
draw the longest straw would have much the best of it. I think I
would prefer the Secretary's office, if I had my choice.
Mr. CAMP. You could make a lump of two or three of the
minor offices. That is, a group together.
JOURNAL OF THE JOINT COMMISSION.
847
Mr. CALDWELL. Yes, I should regard the records of the
Secretary's office as the first choice.
Mr. KELLAM. Are there any questions for information going
to the Auditor, for instance, in which to answer he has to have ac-
cess to the records of either of the other departments.
Mr. CALDWELL. No, sir. Occasionally there are some
questions in which it is necessary to consult the records of both
the offices of the Auditor and Treasurer.
Mr. KELLAM. That is what I meant, whether there would be
any inconvenience resulting from a separation of these records—
putting the records of the Auditor North and the records of the
Secretary's office South; or whether there would be any advan-
tage in keeping these records together as kept now, or whether
there would be any inconvenience resulting from a separation of
the Auditor's office to one and the Treasurer's office to another.
Mr. CALDWELL. I don't think there would be any more in-
convenience than is incident to separation.
Mr. PRICE. I suggest to Mr. HARRIS that the extra expense
in having complete records of all the Territorial records will not
exceed $5,000.
Mr. SCOTT. Six thousand dollars.
Mr. PRICE. Say $7,000.
Mr. SCOTT. You could not have them copied for $20,000.
Mr. PRICE. It amounts to about 2 cents for every woman and
child in the Territory of Dakota. But this Commission is sent
here to adjust the affairs of this Territory. The records are part
and parcel, and everybody is interested, and everybody will be in-
terested. Now, here is something we ought to take into consider-
ation: If we don't provide for the copying of these records, just
as sure as the Legislature in North Dakota meets, just as sure as
the Legislature in South Dakota meets, some enterprising officers
will get a bill through the Legislature providing for the copying
of the records. They can go before the people with their pleas-
ure plan, and say they ought to have it. As long as we have got
to buy these records-it is only a question of time when we have
to buy them-I would like to have this debt divided. What be-
longs to one side belongs to the other, and nothing will satisfy me
except a complete record of everything.
Mr. SCOTT. Now, do you think a complete record of every-
thing could be made for $15,000?
Mr. CALDWELL. I don't think it could be made for $50,000.
848
JOURNAL OF THE JOINT COMMISSION.
•
Mr. PRICE. I was speaking of the Secretary's office-
Mr. CALDWELL. If we made a complete record of the Sec-
retary's office-what is there so far as a matter of history more
important than the proceedings of the Legislatures.
Mr. PRICE. They are all printed.
Mr. CALDWELL. There are four sessions that are not printed.
Mr. HARRIS. We are speaking of the original bills.
Mr. CALDWELL. You see-
Mr. CAMP. I would renew my original suggestion which is
the same the committee has suggested, that is, that the vouchers.
pertaining to the Yankton asylum go south, and vouchers per-
taining to North Dakota Hospital should stay here. The vouch-
ers for the Sioux Falls Penitentiary go south, and the vouchers.
for the Jamestown Asylum go north. So far all right. Then as
to other matters, those pertaining generally to the Territory, re-
main here; then South Dakota can provide for copying any it
chooses at its first session. That would cover those twenty-seven
volumes of Corporation Records, and then we provide for copying
so much as is absolutely necessary for the States to commence
business.
Mr. PRICE. That ought to be done at first, of course.
Mr. CALDWELL. That doesn't include more than half.
Mr. HARRIS. The expense would be very light for the records
for the States to begin business. If the first session of the Legis-
lature of South Dakota might make provision for having it done,
let us make provision here for North and South Dakota; however,
if the Legislature down there will make provision for having it
done, then all right, if the copies are worth more than the orig-
inals. There is a large volume of stuff in those Incorporation
Records, a great deal never used. Still the question will come
right up the first thing on being a State. They want copies of
those things-they can send to North Dakota.
Mr. SCOTT. They would have to send to the Capital of North
Dakota for them.
Mr. PRICE. The Auditor informs me that he gets inquiries
very frequently about matters that, without these records, the Au-
ditor could not get the desired information.
Mr. KELLAM. I am in favor of copying such records as are
absolutely necessary now; we then determine by lot whether the
records remain here or go to South Dakota; or I would be willing
to do as Mr. CAMP suggests, take the records of one office remain-
JOURNAL OF THE JOINT COMMISSION.
849
ing here; records of another office go South. All these records
are so independent of each other that they don't have to be used
in connection.
Mr. CALDWELL. They don't amount to anything.
Mr. KELLAM. That perhaps would be fair if they are inde-
pendent of each other.
Mr. PRICE. To get this before the Commission, I move that
this report he amended by inserting under the title "Records to
be Transcribed" the Warrant Register in the Auditor's Office.
Mr. CAMP. Just put that in writing, Mr. PRICE.
Mr. PRICE. I talked with the Auditor about this when the
matter was under consideration, and he told me there was a good
many vouchers in the office of a general nature that could not be
divided-those relating particularly to certain institutions could
be divided, and vouchers of a general nature could not be di-
vided.
Mr. SCOTT. It is evidently for the interest of these officials
to get as much transcribing as possible.
Mr. CALDWELL. He has taken up a lot of stuff that would
be an interesting thing to have, and I should personally very much.
like to have it, but it would make a stack of stuff; you can see a
vault full of it in there, going back to the beginning of the his-
tory of this Territory, and involving an amount of work nobody
can possibly estimate. Over 22,000 warrants, each a separate
voucher, and in some instances the entries will amount to 100;
take, for instance, the vouchers of the transporation of insane
patients to the hospitals; that voucher, it is a closely printed
blank, legal cap.
Mr. PRICE. What's the matter with using the blank?
Mr. CALDWELL. There are some would go to work and get
a different form. Each warden has a different form.
Mr. PRICE. If there are as many as you state we could prob-
ably get them.
Mr. CALDWELL. That probably amounts to 1,000 of them;
and so far as pay for transcribing, they will get just as much for
printed blanks as they do for written stuff.
Mr. PRICE. I believe our action would be approved by the
people of this Territory, by supplying each section of it with true
copies of the records of the Territory.
Mr. SCOTT. But such a mass of stuff as that, Mr. PRICE, I
don't believe we would be justified in copying.
850
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL.
Some of these records reach back to the
time when the Territory of Dakota included Wyoming and a good
share of Montana and Idaho.
Mr. PRICE. That is a nice matter of history. The Bible
reaches back a long ways, but it is a good thing.
Mr. BROTT. Very few read it.
Mr. SCOTT. What interest is it to North or South Dakota to
know how much a certain sheriff charged to the county two years
ago for bringing an insane patient to the Jamestown Asylum,
or taking them down to Yankton?
Mr. CAMP. That is going to the institution.
Mr. CALDWELL. No, there are general vouchers.
Mr. PRICE. If I can't get any second to the amendment, I
move the adoption of the report. I will explain about these war-
rant registers. These warrant registers show number and date of
the issue, to whom issued and on whose account. Now, these
stubs, my friend has a notion to divide into groups. They don't
show when the warrant was redeemed; it is not a complete record;
you take it separate and apart from the register and it don't
amount to anything.
Mr. CALDWELL. I would say in regard to that, here are the
reports of the Auditors going back as far as the warrant register;
they show identically the same information. There is a copy of
the warrant register showing the number of every warrant and
day issued, and person to whom issued and the purpose for which
it was issued, and the date of its redemption.
Mr. SCOTT. That would be complete enough.
Mr. GRIGGS.
Certainly.
Mr. PRICE. Well I make another motion. I move that the
original records be retained by North Dakota.
Mr. CAMP. The first motion is in order.
Mr. CALDWELL. Mr. CHAIRMAN: I am not now prepared
to vote for that report as it is, notwithstanding my name was signed
to it.
Mr. PRICE. I think we will settle this thing quickly if we
decide who is going to have the originals and who the copies.
Mr. CAMP. I don't think either side is entitled to all the
records.
Mr. PRICE. I think they ought to be copied together. That
is my judgment.
Mr. SCOTT. Why wouldn't this be a good suggestion: Let
JOURNAL OF THE JOINT COMMISSION.
851
the records that pertain exclusively to South Dakota go, and the
records pertaining exclusively to North Dakota stay here. Such
as are necessary, we can decide what are necessary to be tran-
scribed, for transcribing; as, to the miscellaneous records within,
that are in the Secretary's office, let us keep them; the miscellan-
eous records in the Auditor's office you take; you take the mis-
cellaneous records in the Treasurer's office; we take the miscel-
laneous records in some other place.
Mr. CALDWELL. Well, I would feel that the records in the
Auditor's and Treasurer's offices might do for a set, with the
records in the Secretary's office, possibly. I think I would prefer
the records in the Secretary's office because they are the proceed-
ings of the Territory from the beginning to the present time.
Therecords in the Auditor's office are incomplete.
Mr. CAMP. Make two lots of miscellaneous records, and we
choose, or you make the lots and let us choose.
Mr. CALDWELL. Well, that would be a fair thing. It seems
to me too much like separating a family.
Mr. NEILL. That is what we are doing.
Mr. ELLIOTT. That is what we are here for.
Mr. CALDWELL. I think these records ought all to be in
North Dakota or South Dakota. All that would be necessary to
transcribe in order that either commonwealth could inaugurate
and continue its business, which is the language of the first resol-
ution introduced or passed; in the Auditor's office the last appro-
priation ledger, because that shows not only the appropriations of
the last Legislature, but there is likewise brought forward to the
credit of the several accounts the balances which were available
at the close of the last biennial period.
Mr. PRICE. These pamphlets are just as good. What is the
matter of taking any of them?
Mr. CALDWELL. They only run to last November.
Mr. HARRIS. The fact of the whole matter is there are cer-
tain books absolutely necessary for the States to have in begin-
ning business. There are other records each of the States will
want, and the Legislature could not provide for that; but there is
a large mass of stuff we have provided shall be separated by lot,
each a block, of no value whatever, neither will be wanted by
either State except as a matter of history. And when the histo-
rian in ages to come goes back into all these vouchers, he will
take it out of a large volume of stuff. That is all it will ever be
852
JOURNAL OF THE JOINT COMMISSION.
used for. It seems to me we ought not to divide by lot, Mr.
CALDWELL. I didn't agree that is he didn't agree with me about
those incorporation records; we talked the matter over at that
time. My suggestion was, each office at least should have all that
stuff connected with that office, that it might not be separated.
Mr. CALDWELL. That is the conclusion I have come to.
Mr. KELLAM. What do you think of a suggestion something
like this:
Resolved, That the committee be requested to make examination and re-
port such books and records as it will be necessary for each State to have to
inaugurate its existence and business as a State, and that provision be made
by this Commission for copying such books and records, one State to have the
original and the other the copies; the expense of copying the same to be borne
equally by the two States.
And that all records and papers pertaining exclusively to institutions in
South Dakota shall be delivered to South Dakota. All records pertaining ex-
clusively to institutions in North Dakota shall be left in North Dakota. All
other records shall be grouped in lots so that the records of no one office shall
be divided, and each committee shall select alternately; the right of first selec-
tion to be determined by lot.
And the first Legislatures of the two States may provide for copying any
records to be sent to the other States, and the expense thereof shall be borne
by each State equally.
The theory of this is: There shall be copied only such books
as would be immediately necessary; then, that the records pertain-
ing to North Dakota institutions shall be left here, the records
pertaining to South Dakota institutions shall go to South Dakota,
and then the other records shall be grouped; that is, the Secre-
tary's office and the Auditor's office, so the records of each office
shall be together; the first selection to be determined by lot. The
first Legislatures of the two States may provide for copying any
records to be sent to the other State, and the expense thereof shall
be borne by each State equally. The Secretary's records may re-
main here and the Auditor's go south. Now, if South Dakota
wants copies of the Secretary's records it may have them by so
declaring by the Legislature, both States bearing equally the ex-
pense. If North Dakota wants copies of the Auditor's records it
may have them in the same way.
Mr. NEILL. Is it necessary that both Legislatures take
action.
Mr. KELLAM.
Mr. NEILL.
I think that is not the intention.
That is I—
Mr. KELLAM. That the Legislature not having any of these
JOURNAL OF THE JOINT COMMISSION.
853
records may get them by applying, and the expense be borne
equally by both States.
Mr. NEILL. I move the adoption of the resolution.
Mr. CALDWELL. There is
Mr. ELLIOTT, I second the motion.
Mr. CALDWELL. There is a matter not covered, pertaining
only to public institutions; there are many records, for instance,
special charters of cities, in the Secretary's office.
Mr. KELLAM. Public institutions-it provides for institu-
tions in North and South Dakota.
Mr. CALDWELL. But it wants to be broader.
Mr. SCOTT.
The resolution does not say so.
Mr. CALDWELL. It says public institutions, but that
Mr. SCOTT. Here is the report of the other committee,
which says what papers do pertain to North Dakota and South
Dakota.
Mr. NEILL. That can be taken as the-
Mr. KELLAM. Now, what records have you in your mind?
Mr. CALDWELL. For instance: In the Treasurer's office
there is-I mean in the Secretary's office there are, for instance,
the enrolled bills pertaining, those that are especially to South
Dakota; for instance, charters of cities or organized counties.
Mr. KELLAM. In that case you break up the records.
Mr. CAMP. That is true.
Mr. KELLAM. I don't think that ought to be.
Mr. CALDWELL. There is nothing that makes it desirable
to have the vouchers for the respective institutions in the other
State.
Mr. KELLAM. I prefer to strike them out. I prefer to keep
the records of each office intact.
Mr. CAMP. We shall want to have the vouchers of the Insane
Asylum for North Dakota, and you will want the vouchers of the
Insane Asylum at Yankton, and we won't care about the Insane
Asylum at Yankton. We havn't any use for them, and you won't
have any use for the vouchers of the Asylum at Jamestown.
Mr. SCOTT. None whatever.
Mr. CAMP. You take, for instance, the charter of the City of
Chamberlain; that, of course, has been printed, and nobody ever
refers to the enrolled bill.
Mr. CALDWELL. That is true, too.
854
JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. I don't happen to have a copy, but where it is
needed, the city has its own printed copy.
Mr. CALDWELL. Yes, that is true.
Mr. PRICE. I am opposed to the motion, for I think the rec-
ords ought to remain in North or South Dakota intact, and for
the further reason that, if I understand the duties of this Com-
mission, they are to make disposition of the records of this Ter-
ritory.
Mr. CALDWELL. Yes.
Mr. PRICE. I think that you are providing that the Legisla-
ture shall make disposition.
Mr. CALDWELL. We are disposing of the records if we
take and send some of them south and leave some of them up
here.
Mr. SCOTT. If you will make the motion you made some time
ago, I will second it.
Mr. PRICE. I don't know what it was now. I move the adop-
tion of this report, and it has a second.
Are
Mr. CAMP. This resolution I understand has been introduced
and seconded, and that is now the motion before the house.
there any remarks upon this resolution?
Mr. HARRIS. I will call the attention of the Commission to
another fact, the records of domestic and foreign insurance com-
panies.
Mr. CALDWELL. One hundred and fifty insurance compan-
ies and some charters include eight pages of law books, and some
more.
Mr. GRIGGS. Could they not be left at one seat of govern-
ment for reference?
Mr. CALDWELL. That is my judgment of it.
Mr. PRICE. I move further consideration be postponed until
9:30 o'clock Monday, because everybody has a different view; there
are no two men exactly alike.
Mr. BROTT. How will they be any nearer Monday?
Mr. PRICE. Well, stay here.
Mr. BROTT.
Decide now as well as we can Monday.
Mr. CAMP. I suggest we better refer it back to the committee
again and see if they can draw up a plan that will be acceptable by
the commission.
Mr. PRICE. You don't agree with Mr. CALDWELL on some
things. I agree with you on some things but not on all things.
JOURNAL OF THE JOINT COMMISSION.
855
Mr. CAMP. I see there is a diversity of opinion in referring
this back to the committee; they have not got very much light
from the discussion because there seems to be no prevailing opin-
ion to be a guide for them in drawing a plan.
Mr. NEILL. The subject is too complex with us who are not
familiar with the records, to determine what is important. Some
purposes of a more general nature because within the grasp of our
judgment, we can take definite action on that and know what we
are doing. Of course if we get down to detail as the committee
has been, we are trusting entirely to the judgment of the commit-
tee and know nothing about it ourselves; and that is why I in-
dorse the other resolution, because it is something that comes
within the scope of my knowlege.
Mr. HARRIS. Your Chairman made a proposition; it was re-
ferred back to them that this Commission wanted to know all the
plans and specifications included in it; we then prepared this de-
tailed statement.
Mr. KELLAM. Mr. CHAIRMAN: I move the further considera-
tion of this matter be postponed until Monday morning, and that
this committee be requested to report at that time what books or
records it will be necessary for the two States to have to inagur-
ate its existence. If we want it we will have it. Or will you in-
corporate that in yours.
Mr. PRICE. To please you, yes. I don't want you to under-
stand, however, that I am in favor of any such plan as that indi-
cated by Mr. KELLAM. I don't believe in it.
Mr. CAMP. The motion is that further action be postponed
until Monday morning at 9:30 o'clock, and at that time the com-
mittee, consisting of Messrs. CALDWELL and HARRIS, report to
this Commission what books and papers it will be necessary to
have copied in order that the two States may inaugurate their ex-
istence. Are you ready for the question?
Question; question!
Mr. CAMP. The Clerk will call the roll.
Camp, yes; Griggs, yes. Harris, yes; Purcell, yes, (by Griggs);
Sandager, absent; Scott,
Mr. SCOTT. What's the question.
Mr. CAMP. That further action be postponed until Monday
morning.
Mr. Scott, yes; Kellam, yes; McGillycuddy, yes; Caldwell, yes;
Brott, yes; Elliott, yes: Price, yes; Neill, no.
856
JOURNAL OF THE JOINT COMMISSION.
*
Mr. CAMP. Under the rule the motion is carried. Is there
any further business?
Mr. KELLAM. Is there any subject that requires further dis-
cussion.
Mr. HARRIS. Mr. CHAIRMAN: Another little subject-I
don't know but it is covered by reports of other committees.
There is a small library in the Auditor's office comprising statisti-
cal reports from different States and Territories. I understand
there is also a library of about the same size in the office of the
Commissioner of Immigration. It seems this subject might be
taken up and disposed of this evening.
Mr. CALDWELL. Mr. CHAIRMAN: As I feel about it now,
and what I am inclined to believe will be the ultimate judgment
of the Commission, these several offices, wherever they may be
located, all the records pertaining to them will go with it.
Mr. PRICE. I don't feel that way about it.
Mr. CALDWELL. And that wherever it goes it would be
proper that these reports remain with the other records, because
they are practically the records of that office.
Mr. PRICE. Why not offset one against the other? I move
the statistics of the Auditor's library-that one section shall have
them, andthe other shall have the miscellaneous books in the
Commissioner of Immigration office, and shall be decided by lots
which each shall have.
Mr. ELLIOTT. I second the motion.
Mr. CALDWELL. I move as an amendment that the libraries
in the respective offices be considered a part of the records of that
office, and be allowed to contiune the records wherever they
may go.
Mr. PRICE. It has been decided that we separate them.
Mr. CALDWELL. No, it has not been decided to separate
them.
Mr. KELLAM. If the idea has prevailed that the records of
each office shall be kept by themselves, and they are kept at one
place or distributed as provided for in this last resolution, then I
should be in favor of Mr. CALDWELL'S motion, that those books
which are incidental to each office should be kept with the office as
a part of the records of the office. I can hardly vote intelligently
on this question until I know what the general disposition is with
regard to chopping up these records.
JOURNAL OF THE JOINT COMMISSION.
857
Mr. SCOTT. I don't think we ought to take that up now.
Mr. KELLAM. It seems to me we cannot determine that until
we know what is to become of the records. Suppose this motion
prevails, and the Immigration books go south and the other rec-
ords are kept here; the Immigration books would not be of any
account. Suppose the Auditor's records-suppose we should de-
termine that we would take them and leave the records of
one office here-another should go south; if the Auditor's should
go south we would want those books of course, and the books sep-
arated from the office would be worth very little.
Mr. HARRIS. They are statistics of the different states.
Mr. PRICE. Probably all could be supplied.
Mr. KELLAM. Then wouldn't it be just as well to leave these
books to be disposed of with the office itself?
Mr. CALDWELL. I would move that the further considera-
tion of the resolution of Mr. PRICE be deferred until there be a
determination as to the records of the respective offices.
Mr. PRICE. I'll second the motion.
Mr. CAMP. All in favor say aye. The motion is carried.
Mr. CAMP.
There is the matter of the militia, and we can't
make a final agreement until we know about that.
Mr. MCGILLYCUDDY. Here is the report of the Adjutant
General.
Mr. MCGILLYCUDDY then read the following report of the Ad-
jutant General:
Report of Ordnance and Ordnance stores received and remaining in charge
of the Militia of the Territory of Dakota during the year ending December 31.
1888. (As near as I can give it.):
2 three-inch Wrought Iron Rifles.
2 Carriages and Libers complete.
2 Artillery Tarpaillins, 12x15 feet
2 Gunner Haversacks
6 Handspikes, trail
4 Lanyards for friction primers.
2 Priming Wires-field..
4 Sponges and Rammers
4 Sponge Covers, three-inch
2 Tube Punches
4 Thumb Stalls.
2 Tompions....
2 Vent Covers
•
•
2 Pole Pads (Can't find price).
•
.
·
•
• •
•
2 Pole Straps-pairs. (Can't find price).
Total
•
$ 450 00
325 00
$ 900 00
11 75
650 00
23 50
3 35
670
100
6 00
10
40
10
20
100
4.00
30
1 20
1 50
3.00
20
80
30
60
40
80
8998382
•
•
$1,597 20
55
858
JOURNAL OF THE JOINT COMMISSION.
Capt. Wm. K. Smith, Commanding Battery "A" supposed to be "responsi-
ble" for the above, Also ten, I think, Springfield Rifles-caliber, 45.
a950 Springfield Rifles, model 1884, cal. 45, $13.12 each..
50
do Cadet, $13 12 each.
500 Blanket Bags, $1 35 each.
•
D
500 do. shoulder straps, pairs, 56 cents.
500 Blanket Bag coat straps, pairs, 38 cents.
• •
500 Bayonet Scabbards, steel, Hoffman's att., 90c. each.
500 Cartridge Belts, woven, $1 00 each.
•
$
12,464 00
356 00
675 00
280 00
190 00
•
450 00
500 00
500 do plates, 25c. each.
125 00
500 Cartridge Boxes, $1 22 each..
610 00
500 Canteens, 53c. each..
265 00
500 do straps, 30c. each..
150 00
520 Gun Slings, (17 in Adjt. Genl's office, 20 rect'd for), 36c. each..
187 20
500 Haversacks, 88c. each...
440 00
500 do straps, 56c. each.
280 00
b100,000 Rifle Ball Cartridges, cal. 45, $18 50 per M.
20,000 Rifle Bullets, $5 45 per M.
• •
1,850 00
109 00
• •
20,500 Cartridge Primers, 60c. per M.
c200 Small Arm Powder-lbs., 18c per lb.
d125 Paper Targets, (A. B. and C.) average 5c. each..
150 Centers for paper targets, 2c. each..
1,000 Pasters.
51 Arm Chests, $6 00 each..
•
1 Hand Reloading Tools-set
2 Resizing dies (extra) $2 07 each.
200 Marksman's buttons (196 in Adjt. Genl's office)..
•
10 Sharpshooter's badges, (6 in Adjt. Genl's office), no acc't, $1 00,
1,000 Healess Shell Extractors, 30c. each..
1,000 Screw drivers, model 1879, 24c. each
1,000 Wooden Wiping Rods, 12c. each.
200 Tumbler Punches, 15c. each.
51 Spring Vises, 28c. each.
Total....
a Don't know where these are. At some college, I think.
b Probably from 80,000 to 86,000 expended or in hands of companies.
c I think very little of this is on hand.
d Greater number expended.
The above stores are either in the hands of the companies or the ordnancę
officers. Major Joseph Hare, Assistant Ordnance Officer at Bismarck, unloaded
and stored what was not issued at Huron in September, 1888.
Besides the above there are stored in the Capitol 944 (about 900 in boxes and
44 in racks in Governor's room) "condemned" Springfield rifles, model 1886,
calibre 50, and a lot of ball cartridges, calibre 50, stored at Bismarck in care of
Major Hare. (These guns and cartridges should be estimated and divided.)
There are also a lot of tents, of which I have never seen an invoice or any
account. General George W. Carpenter, of Watertown, could account for
them. Have written him to do so. Part of the number are in his charge at
Watertown, and part were shipped back to Bismarck for use on July 4th.
12 30
•
36 00
6 25
3.00
13
306 00
12 83
4 14
20 00
10 00
300 00
•
240 00
• •
120 00
30 00
14 28
$21,943 33
JOURNAL OF THE JOINT COMMISSION.
859
I have written General Carpenter, Watertown; Colonel B. J. Woods, Chief
of Ordnance, Sioux Falls, and Major Joseph Hare, Assistant Ordnance Officer,
Bismarck, for a report of such stores as they may be accountable for. I have
marked in red ink the probable expenditure of ammunition, etc.
Redfield, Dak., July 24th, 1889.
Respectfully submitted,
J. S. HUSTON,
Adjutant General.
Mr. SCOTT. That doesn't show where the arms are.
Mr. MCGILLYCUDDY. They got them from the Adjutant
General.
Mr. KELLAM. Do you know how many companies are in the
Territory?
Mr. HARRIS. Twenty-one; eight in North Dakota and the
balance in South Dakota.
Mr. MCGILLYCUDDY. If they were about forty or fifty to
the company, there would be about 950.
Mr. SCOTT. They don't run that many.
Mr. CALDWELL. The question is who owns this property?
Some of this is old stuff obtained by the Territory probably fifteen
years ago, and now no longer in use; no longer in use by the com-
pany.
Mr. SCOTT. Not good for anything.
Mr. McGILLYCUDDY. Good guns for riot, but the govern-
ment no longer uses them.
Mr. SCOTT. Would be good in case of riot?
Mr. MCGILLYCUDDY. All serviceable.
Mr. SANDAGER. We have not been able to get all the re-
ports in.
Mr. MCGILLYCUDDY. The question is, who does it belong
to?
Mr. SCOTT. Did you reach the Secretary of War?
Mr. MCGILLYCUDDY. No; it would take a month even if
you wired him to-day. You would not get an answer for two
weeks.
Mr. HARRIS. Don't he say part of the camp equipage was
shipped to Bismarck?
Mr. MCGILLYCUDDY. Yes, shipped back here for use the
4th of July. “Part of the number are in his charge at Water-
town, and part were shipped back to Bismarck for use on July
4th."
Mr. HARRIS. Didn't come then, I guess.
860
JOURNAL OF THE JOINT COMMISSION.
Mr. McGILLYCUDDY. There is some reason for making
this notation: "These guns and cartridges should be estimated
and divided.” He evidently recognizes this as the property of
the Territory; as being the property of the Territory.
Mr. ELLIOTT. I think that is so or he would not have made
that suggestion.
Mr. MCGILLYCUDDY. That is very evident.
Mr. HARRIS. Probably is. The rest of the stuff is in the
hands of the companies.
Mr. SCOTT. We could not distribute that even if we could
hunt them up, if companies have got it.
Mr. ELLIOTT. We could not make distribution of what the
company has.
Mr. CALDWELL. I suppose final adjustment can better be
made after we have complete returns.
Mr. McGILLYCUDDY. From those offices?
Mr. CALDWELL. I would like to call up the matter of mu-
tual boundary between North Dakota and South Dakota.
Mr. PRICE. I don't think we can do that; our Convention has
reported an article which has been fixed as a part of the Constitu-
tion.
Mr. BROTT. We have nothing to do with it.
Mr. CALDWELL. All right then.
Mr. CAMP. Don't bring up the question of boundary.
Here the two committees retired for consultation, and upon re-
assembling the following bids were opened and read:
The bid of South Dakota for the undivided half of the Territorial Library
is $4,000.
The North Dakota Commission value the Public
will pay South Dakota $750 for her half interest.
A. G. KELLAM,
Chairman.
Library at $1,500, and
EDGAR W. CAMP,
Chairmam.
Mr. KELLAM. I move we.adjourn until 9:30 o'clock Monday
morning, July 29th.
The motion was seconded.
Mr. CAMP. All in favor of the motion say aye. The motion
is carried and we stand adjourned.
*
JOURNAL OF THE JOINT COMMISSION.
861
THIRTEENTH DAY.
BISMARCK, Monday, July 29, 1889.
The Commission met at 10 o'clock a. m., but as the Chairmen
were not ready to report, no session was had.
The Commission met at 2 o'clock p. m., but as the Chairmen
were not ready to report the Commission adjourned to meet at 10
o'clock a. m., July 30th.
FOURTEENTH DAY.
BISMARCK, Tuesday, July 30, 1889.
The Commission was called to order at 10:30 a. m., with Mr.
KELLAM in the Chair.
Mr. KELLAM. Gentlemen you will come to order.
The Clerk will call the roll.
All members were present except Messrs. Spalding, Purcell
and Scott of the North Dakota Commission. All members of the
South Dakota Commission were present.
Mr. KELLAM. Gentlemen, my recollection is that the busi-
ness of the Commission stands about in this shape: There is a
pending resolution--a resolution adopted by the Commission, ask-
ing the Committee on Records to make a report, and it was also
referred by the Commission to Mr. CAMP and myself to prepare
an outline of the agreement, so far as the work of the Commission
had progressed, which shall be taken up. If there is no objection
we will hear the agreement so far as it is made, read.
Mr. CALDWELL. I suppose any member who, during the read-
862
JOURNAL OF THE JOINT COMMISSION.
ing, discovers anything that is not precisely clear to him, it will
be in order to interrogate in regard to it.
Mr. KELLAM. I think that is proper.
read it.
Mr. CAMP, will you
Mr. PRICE. It seems to me we will not make any headway
reading this over. It is prepared, and each member can read it
for himself. It will have to be submitted again when the other
members come, I suppose.
Mr. ELLIOTT.
now.
Yes, I don't see what headway we can make
Mr. BROTT. I think we can better dispose of the records now.
Mr. KELLAM. Two copies are made of this agreement; we
can pass it around. Our members have not seen it, except two or
three. Each man can read it, or read it in groups.
Mr. ELLIOTT. I think it would be better so. Get a better
understanding of it.
Mr. KELLAM. Gentlemen, as many as are not in favor of now
presenting and reading the Agreement will manifest it by saying
aye. Motion is lost. As many as are in favor of now hearing the
report of the committee appointed to make a list of records, will
say aye. Contrary, no. Motion is carried, and report of such
committee will be the order of business.
Mr. CALDWELL then read the following report:
Gentlemen of the Joint Commission:
BISMARCK, D. T., July 29, 1889.
Your sub-committee to whom was referred the duty of making a list of
such records in the several Territorial offices as in its judgment were necessary
for the respective States to have in their possession, in order that the officers
thereof could commence business, beg leave to report as follows:
In our judgment the records referred to, are to be found in the offices of
the Auditor and the Treasurer.
In the Auditor's office there is the Current Appropriation Ledger, which
contains not only the appropriations made by the last Legislature, but also the
balances of previous appropriations, and it therefore shows the condition of
every account up to date. There is also in said office a Warrant Register, in
which the more recent warrants, covering a period of probably three years,
have been entered in numerical sequence. This book may be said to be the
Journal of the financial transactions of the office, and is the book of original
entry. In addition to showing the number, date, payee and purpose of each
warrant, it shows also its date of cancellation. In the Insurance department
of the Auditor's office there is a record showing the names and residences of
agents appointed by the several companies in the different judicial districts of
the Territory, and, as undoubtedly each State will be required to know who is
JOURNAL OF THE JOINT COMMISSION.
863
authorized to represent any particular company, the transcription of this book
would be necessary even though its application can cover only two months of
statehooá existence, as it expires December 31st. From the same department
your committee would also recommend that there be procured a list of Insur-
ance companies entitled to do business in the several judicial districts of
the respective States. This information is nowhere collated in such form that
transcription would supply the desired information. It is our judgment that
copies of the volumes referred to above would enable the Auditor's office of
either State to inagurate business in its several departments.
In the Treasurer's office there are the following records which we would
recommend should be transcribed: The Ledger showing the receipts and ex-
penditures of the several bond funds and the general funds of the Territory.
Also the ledger showing the charges against the several counties by reason of
the assessments made upon property therein during recent years, and showing
likewise the payments made by said counties upon such assessments. Also one
cash book showing detailed receipts and expenditures during recent years.
Also one general bond register, giving the purpose for which bonds have been
issued, with their dates, denominations, etc.
HARVEY HARRIS,
E. W. CALDWELL,
Committee.
Mr. NEILL. I move the report of the committee be adopted.
The motion was seconded.
Mr. HARRIS. As that resolution under which this committee
was acting merely called for a statement as to the books which
were absolutely necessary to be copied to enable the States to
begin business, we have stated the books there that would be nec-
essary to be copied.
Mr. KELLAM. What do you mean by the motion to adopt the
report?
Mr. NEILL. I thought it meant the recommendation that
these especial books be copied, but it does not, so my motion is
hardly in order with the report; but I meant, we decide these
books should be divided. I move that the books reported by this
committee as necessary to the beginning of the respective States
be copied preliminary to that time.
Mr. ELLIOTT. You offer that as an amendment to the mo-
tion made by Mr. KELLAM at our last meeting; you know there
was a motion made to this effect at our last meeting, and in order
to vote intelligently upon that motion the committee was reap-
pointed to report to this Commission just what books were nec-
essary.
Mr. KELLAM. My recollection of the matter is as outlined
by Mr. ELLIOTT, that the resolution was offered here consisting of
part of which was mine and part Mr. CAMP's, and that the further
864
JOURNAL OF THE JOINT COMMISSION.
consideration of your resolution was postponed to the next session;
in the meantime it was referred back to the committee consisting
of Messrs. HARRIS and CALDWELL to furnish information that
would enable the Commission to decide what action to take on
your resolution.
Mr. ELLIOTT. That was the object exactly.
Mr. NEILL. In so far as the report goes the motion just made
may be used as an amendment to that report, or by itself.
Mr. CAMP. I suggest, in order to get it before us, that we
take the former resolution from the table.
Mr. NEILL. Well, I withdraw my motion.
Mr. KELLAM. The Secretary will read the resolution.
Mr. MCCLARREN here read the resolution as follows:
Resolved, That the committee be requested to make examination and re-
port such books and records as it will be necessary for each State to have to
inaugurate its existence and business as a State, and that provision be made by
this Commission for copying such books and records; one State to have origi-
nal and the other copies, and 'the expense of copying the same to be borne
equally by the two States. All records pertaining exclusively to institutions in
South Dakota shall be delivered to South Dakota. All records pertaining ex-
clusively to institutions in North Dakota shall be left in North Dakota. All
other records shall be grouped in lots so that the records of no one office shall
be divided, and each committee shall select alternately; the right of first selec-
tion to be determined by lot. And the first Legislatures of the two States may
provide for copying any records to be sent to the other state, and the expense
thereof shall be borne by each State equally.
Mr. CAMP. What record is there of the disposition of that?
Mr. KELLAM. My recollection is that some one made a mo-
tion that the further consideration be postponed until the next
session.
Mr. CAMP. This being the session that takes the place of the
Monday morning session, the resolution which is read is now be-
fore us for consideration.
Mr. CALDWELL. Mr. CHAIRMAN: I believe it would be
better to divide this resolution, and I will read such of it as I will
move its adoption. It is this:
Resolved, That the committee be requested to make examination, and re-
port such books and records as shall be necessary for each State to have to in-
augurate its business as a State, and that provision be made by this Commis-
sion for copying such books and records, one State to have the original and the
other the copies; the expense to be borne oqually by the two States.
I would move the adoption.
Mr. NEILL. Why not add to it the report of this Commis-
sion pertaining to the records?
JOURNAL OF THE JOINT COMMISSION.
865
稽
​Mr. KELLAM.
And that the books and records be as follows:
Mr. NEILL. In so far as that resolution was postponed to get
this information, I think now is the time to amend the resolution
by incorporating the new matter.
Mr. CALDWELL. I would offer this as a substitute for so
much of this resolution that "Provision be made by this Commis-
sion for copying such books and records as those which are speci-
fied in the report of the sub-committee; one State to have the
originals and the other the copies; the expense of copying the
same to be borne equally by the two States."
Mr. PRICE. Well, I support that motion.
Mr. KELLAM. Gentlemen, listen to the reading of the mo-
tion.
Mr. GOODNER reads: "Provision be made by this Commis-
sion for copying such books and records as those which are speci-
fied in the report of the sub-committee; one State to have the or-
iginals and the other the copies, the expense of copying the same
to be borne equally by the two States."
Mr. KELLAM. You move the adoption? If you are sure the
Stenographers have that. Gentlemen, Mr. CALDWELL offers as a
substitute the resolution just read by the Stenographer, and
moves the adoption; Mr. PRICE seconds the motion.
Are you
ready for the question?
Question; question!
The CHAIRMAN. As many as are of the opinion that the
motion should prevail, say aye; contrary, no. Carried. Gentle-
men, let us have this record appear. This motion was taken un-
der the roll of the adoption of this motion. The Clerk will call
the roll.
Camp, yes; Purcell, absent; Sandager, yes; Kellam, yes; McGil-
lycuddy, yes.
Caldwell, yes; Brott, yes; Price, yes; Spalding, absent; Scott,
absent; Elliott, yes; Harris, yes; Griggs, yes.
Mr. KELLAM. Under the rule the motion prevails.
Mr. CALDWELL. Then, Mr. CHAIRMAN, I move the adoption
of the second paragraph of this resolution as originally intro-
duced, as follows: "All records pertaining exclusively to institu-
tions in South Dakota shall be delivered to South Dakota. All
records pertaining exclusively to institutions in North Dakota
shall be left in North Dakota. All other records shall be grouped
in lots so the records of no one office shall be divided, (except as
866
JOURNAL OF THE JOINT COMMISSION.
herein provided for) and each committee shall select alternately-
the right of first selection to be determined by lot." I have in-
troduced in there, Mr. CHAIRMAN, the limitation "except as herein.
provided for," because the resolution by its own terms provided.
for division of the records from pertaining specifically to any par-
ticular institution.
Mr. NEILL. I second the motion.
Mr. CALDWELL. I would say, Mr. CHAIRMAN, I make that
for the purpose of indicating to the Committee on Agreement, the
general idea of the Commission and, of course, that it will be mod-
ified so as to make it come in as a plank in the agreement.
M1. KELLAM. That is the thing I was speaking of.
Mr. CALDWELL. It would be better, at least, to have it un-
derstood that this sub-committee on preparation of the agreement
should have the authority to change any of these documents so as
to make them tally.
Mr. KELLAM. That is the understanding. That is the gen-
eral plan of disposition of the records.
Mr. PRICE. I don't understand this thing yet, I want that.
read again.
Mr. HARRIS. All records pertaining exclusively to institu-
tions in South Dakota shall be delivered to South Dakota. All
records pertaining to institutions in North Dakota shall be left in
North Dakota. All other records shall be grouped in lots so the
records of no one office shall be divided, and each committee shall
select alternately; the right of first selection to be determined by
lot.
Mr. PRICE. Then do I understand that the records of the
Secretary's office shall be grouped together; all the books and
papers, one committee should select one lot. And the Auditor's
shall be grouped in one lot?
Mr. CALDWELL. Yes, that can be done. The idea was by
arranging in two lots as near equal as could be
Mr. PRICE. This with reference to miscellaneaus matter?
Mr. CALDWELL. Yes, just simply miscellaneous matter-
the files.
Mr. HARRIS. Then the question is, if that refers only to
miscellaneous stuff, what are you going to do with this list of rec-
ords and material which we divided the other day-would it be
necessary to copy them some time?
Mr. CALDWELL. There is a third plank in this resolution
JOURNAL OF THE JOINT COMMISSION.
867
that refers to that. That will come up for consideration when we
consider the third paragraph.
Mr. McGILLYCUDDY. "Except as hereafter provided."
Mr. ELLIOTT. Then, as I understand that resolution, South
Dakota would take the books and records of one office, North Da-
kota take another, and so on?
Mr. CALDWELL. That is the idea.
Mr. KELLAM. Let me suggest that this is an important mat-
ter. Only one of us should talk at a time so the Stenographers
can get a report. It might be necessary to refer to this discussion
by Mr. CAMP and myself to get the agreement, and these Steno-
graphers can't get any report of the discussion when there are two
or three talking at a time.
Mr. HARRIS. Then, if I understand the situation, this part of
the resolution does not refer to any such matter as we consider
will be necessary to be copied at some future time by action of
the Legislators of the respective States. Only to that matter
which it will not be necessary to copy any time.
Mr. CALDWELL. Exactly. That is attempted to be covered
by that portion of that resolution.
Mr. CAMP. I think the language, then, is too broad.
Mr. PRICE. I think so.
Mr. HARRIS. It says, "All other records shall be grouped
in lots-
Mr. CAMP. Let's see. If you read the third paragraph is it
conflicting?
Mr. NEILL. It seems to me there is a certain number of
books here that will have to be taken out if we cut on this resolu-
tion. Now, the other part of this resolution should be taken up
first, it seems to me.
Mr. KELLAM. Mr. HARRIS, will you be kind enough to read
the second aud third paragraph of that?
Mr. HARRIS. "All records pertaining exclusively to to insti-
tutions in South Dakota shall be delivered to South Dakota. All
records pertaining exclusively to inititutions in North Dakota
shall be left in North Dakota. All other records shall be grouped
in lots so the records of no one office shall be divided, and each
committee shall select alternately, the right of first selection to be
determined by lot. And the first Legislatures of the two States
may provide for copying any records to be sent to the other State,
and the expense thereof shall be borne by each State equally."
868
JOURNAL OF THE JOINT COMMISSION.
Now, Mr. CHAIRMAN, in my judgment the meaning of that reso-
lution is just this; that the records not included in the first clause,
which we have already passed and approved, shall be divided into
lots so no one office shall be divided; and the intention of the
resolution would seem to be they shall be taken to the respective
States; and then that when the Legislatures of the respective
States have made provision for their copying, such records as
remain in North Dakota, if the State of South Dakota wishes,
copies shall be made in North Dakota; and such records as were
South should be copied there.
Mr. KELLAM. That was my understanding.
Mr. ELLIOTT. That is my understanding.
Mr. KELLAM. My understanding was that these records be
assorted into two lots; first, those that need to be copied so each
State shall have a copy of such records and books as are necesrary
to inaugurate its State government. This being disposed of, then
that all the other records, those in the Secretary's office, those in
the Treasurer's office and those in the Auditor's, and all other rec-
ords, should be disposed of as indicated by that resolution, a part
of them going—part remaining in the north and part going south.
Then the third provision was that if either Legislature desired
copies of the books and records it would so indicate and such cop-
ies would be made, each State bearing one-half of the expense. I
think that is right. What's your idea Mr. CAMP?
Mr. CAMP. That is my idea, except with this modification,
that records pertaining exclusively to North Dakota-
Mr. KELLAM. Yes. Have you a definite idea, Mr. CALD-
WELL?
Mr. CALDWELL. No, sir.
Mr. PRICE. I don't see how it can be anything else.
Mr. HARRIS. I think, Mr. PRICE and I agree on one thing,
that all necessary to be copied should be copied now, and as I
stated last Saturday, that is my view. That being my view I am
not in favor, if any of these records that will be necessary to be
copied, should leave North Dakota until such copies are made. I
am not in favor of dividing these records that it may be necessary
to copy and sending them away in different lots. They are here
in this building; they are in files there, well taken care of, and I
am not in favor of dividing them up and shipping them all over
the country until they are copied. I am perfectly willing we
should make provision for the copying of these records, and that
JOURNAL OF THE JOINT COMMISSION.
869
either the originals or copies shall go to South Dakota, I am not
particular which. But if we don't make provision for the copying
of these records which are necessary to be copied, then I want
them to remain in this building. North Dakota can act as trus-
tee to South Dakota. As I said this does not seem fair to South
Dakota, but I certainly would not be in favor of dividing them up
and sending them out before being copied.
Mr. PRICE. It seems to me there is force in what Mr. HARRIS
says, that if these records are sent down to South Dakota without
being copied, you don't know whether they are going to be placed
in a vault or not. Of course, we would have a temporary Capital
fight, perhaps, so we will not have a Capitol building for a good
while, and no safe place for the preservation of these records. I
think this is one of the strongest arguments advanced for having
these records copied now. If they are not you have the risk of
fire.
Mr. CALDWELL. Mr. CHAIRMAN: The point made by Mr.
HARRIS in regart to the difficulty of guaranteeing the preservation
of these records, is certainly a very strong one, and it is so strong
that it has so modified my views to this extent, that it would seem
to me that the desirable way of arranging the matter would be
that we shall dispose of these records to the extent that we shall
determine here the title of the respective States to particular rec-
ords: all of them to remain here, however, in the offices of the
Capitol until such time as North Dakota may have opportunity to
make copies of such of those as we may distribute by lot to South
Dakota; and that when this time has expired that South Dakota
may send here and take these records to the Capital of South Da-
kota. That would seem to be fair. Of course, anybody can see
what dangers the records might be subjected to.
Mr. HARRIS. No doubt the first Legislature of South Dakota
will make provision for taking care of that property.
Mr. PRICE. I take it from Mr. CALDWELL that he admits,
practically, that the respective States will desire these records.
to be copied hereafter.
Mr. CALDWELL. Well, we can't tell.
Mr. PRICE. I take this position: That this Commission is,
perhaps, in as good a position to see what records ought to be
copied, as 150 new men in the Legislature will-I think a great
deal better; and if it is a fact, and that is what I have insisted on
all the time, it was only a question of time when we would have to
870
JOURNAL OF THE JOINT COMMISSION.
!
copy all these records, I can't see any reason for delaying and
leaving it to the Legislatures who, perhaps, would make a great
deal worse bargain than we. My idea is those records ought not
to be divided until-I am not in sympathy with this plan to give
one part to one State and the other part of the records to the
other. It seems to me they ought to be kept together; and if the
gentlemen all agree these records were going to be copied some-
time in the future, I don't know why we can't provide now for
their being copied.
Mr. CALDWELL. I suppose I am as well acquainted with
the character of the records of the Territory as any gentle man
of the Commission, both from the fact I have been Auditor, and
have made an examination of the records, and I have had more
or less to do with it in the previous years, and I could not to-day
determine definitely what ought to be copied and what not. There
is no line that can be drawn between what would be desirable
as the record of a State, and that which would be desirable
merely as a matter of curiosity-merely a matter of history, so
I would not want at this time to undertake to say for the State of
South Dakota what of these records should be copied. It would
be impossible to fix any standard which would determine the mat-
ter for that reason. It seems to me, so far as the copying is con-
cerned, we should limit this to simply those records which it is
absolutely necessary that the respective officers of either State
should have in order to commence the business of a State. If we
get away from that rule, then it is a matter of individual opinion
as to what ought to be copied.
Mr. KELLAM. Gentlemen, if this was a matter no one was
interested in but myself, of South Dakota, I would have a very
clearly defined notion of what I would do; and the only thing
that prevents me expressing myself officially in favor of the plan
is the possible criticism that might follow it from our people in
South Dakota. My judgment is that a business like way of dis-
posing of this question is to leave all the records here except such
as are already disposed of-such as would be necessary to put
South Dakota in a position to commence; leave all the records
here, where they are properly taken care of, properly classified
and in fire-proof vaults, with the understanding and agreement
that if a copy should be--I would not limit it to the first Legisla-
ture for the very reason that the first Legislature of each State,
particularly of South Dakota, have no permanent Capital; we
JOURNAL OF THE JOINT COMMISSION.
871
will not have any proper offices for any of our State departments;
we will have no place to put our records for some time to come.
Indeed, I would leave all records in the Capitol of North Dakota
except as we have already provided for, with the agreement that
if at any time within a stated term-I would not limit it to the
first Legislature-I don't think that would be fair to South Da-
kota
Mr. NEILL. Make it ten years.
Mr. KELLAM. I would make it long enough so in the mean-
time places would be provided for each office; then South Dakota
at any time within a stated time might indicate by legislative
action what copies of any or all of the papers it wanted, and that
the expense of making copies should be divided equally between
the two States. Now, there is this further fact. Of course, we
have been talking of large amounts because large amounts were
involved; but every $1,000 that has to be immediately paid by
either of these two States increases embarrassment of the States
in starting out on their existence. Each State has got to go into
State existence without any money and in debt. Now, if we tie
each State of North Dakota and South Dakota to the necessity of
incurring the expense of copying these records by the first Legis-
lature, then if that Legislature is composed of honest or prudent
men, they will be very careful about how many records they order
copied. Now, I would extend that time-I would not care for ten
years. I want that left for South Dakota to say itself, when it will be
in a condition to take care of them; that if it wanted part of the rec-
ords it could say so; if it wanted the balance in three years from that
time it could say so. Now, I say again, I am very much inclined
to think that if we make this agreement that there would be num-
erous people down there who would say, "Why didn't you bring
half of those records down here?" and it would be difficult to ex-
plain to a great many men. But I believe it is the business way
of disposing of this thing, and if the records were mine I would
not move anything except what was absolutely necessary to be
moved until I had a place to put it, and keep it.
Mr. CALDWELL. Mr. CHAIRMAN. I don't believe that the
average citizen of South Dakota would be satisfied to give up en-
tirely all the records of the Territory which have accumulated up
to this time. Indeed, the language of section twenty-eight of the
Schedule and Ordinance of the Constitution of 1885 shows that
the people down there have felt that they, being the older section of
872
JOURNAL OF THE JOINT COMMISSION.
the Territory, were entitled to the possession of the originals; but
there, of course, in face of this is the fact of there being no place
for the caring of them. So it would seem to me that every feeling
of fairness and of sentiment in regard to these matters would be
satisfied if it could be said to these people "You have half the
original records, but you cannot have possession of them until
such time as there is a fixed place for their care and custody."
And if it could be arranged with this Commission that while all
the original records should be allowed to remain here, yet by an
arrangement as may be agreed upon here they may be regarded
as the property of South Dakota, that it would then satisfy all
these feelings of which I speak.
Mr. KELLAM. I have no objection to that. I think that
would be proper.
Mr. CAMP. As a sort of a preliminary motion I suggest some-
thing of this kind: This commission shall agree upon a division
of the records, but all records which are to go to South Dakota
shall remain at the Capital of North Dakota until the Legislature
of South Dakota shall demand them, and gives North Dakota reas-
onable time to copy, if North Dakota chooses to copy.
Mr. CALDWELL. That seems to me to be
Mr. CAMP. That is those pertaining exclusively to South
Dakota shall remain here until the Legislature indicates it is ready
to receive them.
M². CALDWELL. I think North Dakota should have reason-
able time to copy.
Mr. PRICE. There seems to be no provision for payment.
Mr. CAMP. That is merely provisional. We will make pro-
vision.
Mr. KELLAM. Mr. HARRIS is preparing something. Let us
read that in connection.
Mr. McGILLYCUDDY. They shall remain here-don't say
any particular time.
Mr. CAMP. Mr. HARRIS has drawn a resolution to supplement
the preliminary resolution I presented to you a few moments ago;
the whole would read like this: "This Commission shall agree
upon a division of the records, but all records that are to go to
South Dakota shall remain at the Capital of North Dakota until
the Legislature of South Dakota demands them and gives North
Dakota reasonable time to copy such as North Dakota chooses.
All records pertaining exclusively to institutions in South Dakota
JOURNAL OF THE JOINT COMMISSION.
873
shall be the property of South Dakota. All records pertaining
exclusively to institutions in North Dakota shall be the property of
North Dakota. All other records, vouchers, etc., not divided as
above, shall be separated into two lots, so the records of no one
office shall be divided, and each State shall have one lot. South
Dakota may demand copies of any records which are the property
of North Dakota. All expense of copying records shall be borne
equally by North Dakota and South Dakota. It shall be decided
by lot which State shall have the originals of the records and
which this Commission provides for the copying of."
Mr. NEILL. Does that cover the whole ground?
Mr. CAMP. Well, I think so.
Mr. BROTT. I move we do adopt that.
Mr. CALDWELL. I second the motion.
Mr. BROTT. That is in addition to those recommended to be
copied.
Mr. CALDWELL. That is what
Mr. GRIGGS. There is no time specified.
Mr. CAMP. The Legislature may at any time, at a session of
the Legislature of South Dakota, may demand them and North
Dakota has time to copy, if North Dakota chooses to copy.
Mr. CALDWELL. The Legislature may within ten years de-
mand them.
Mr. KELLAM. Ought we not to put in a definite time?
Mr. CALDWELL. They are to remain here until the Legisla-
ture of South Dakota demands them.
Mr. HARRIS. Then giving North Dakota reasonable time to
do the work.
Mr. GRIGGS. There is no definite time as when this arrange-
ment would stop.
Mr. CAMP. I suppose we are perfectly willing to keep these
records until South Dakota demands them.
Mr. GRIGGS. Certainly, if it is fifty years.
Mr. CAMP. They will probably demand the most of them
right away.
Mr. KELLAM. We will have to arrange with North Dakota,
as trustee for the two Dakotas.
Mr. CAMP. "All records pertaining exclusively to institutions
in South Dakota shall be the property of South Dakota; all
records pertaining exclusively to institutions in North Dakota
56
874
JOURNAL OF THE JOINT COMMISSION.
shall be the property of North Dakota. All other records, vouch-
ers
Mr. CALDWELL. Make that "all records and files."
Mr. CAMP. "And files." I will just insert that.
That is all left to the Legislature.
Mr. GRIGGS.
Mr. KELL.AM. Left to the Legislature to make copies; but if
any man of South Dakota should want a copy of an article of in-
corporation he would apply to the Secretary and pay when he
gets it.
Mr. PRICE. Suppose some officer elected to the State Gov-
ernment does not want to be compelled to furnish a paper with-
out pay, and under this arrangement we would have to pay North
Dakota.
Mr. KELLAM. Suppose it becomes necessary for the Treas-
urer of South Dakota to have a copy of some record up here, and
he should apply to the Treasurer of North Dakota for it, he ought
not to be compelled to pay the ordinary fees.
Mr. GRIGGS. They will want fees, and the officers of South
Dakota will want copies.
Mr. PRICE. I don't think we could make an agreement to
bind an officer in regulating his fees.
Mr. CALDWELL. Furthermore, it is the case, even under the
Territorial Government, that public officers, county officers for in-
stance, want records that are made in some Territorial office, and
the Territorial officer charges that county officer just the same as
he would charge an individual. And it is, also, frequently the case
that one officer will want a certified record out of another office;
as, for instance, the Auditor may sometimes want copies of the
appropriation bill, and it has been the case that the Auditor had
to take and procure them from the Secretary and pay out of the
contingent fund of the office the same fee.
Mr. KELLAM. They are all in the fa mily, and it don't make
But the
any difference, for it was still in the Territorial fund.
situation with these records is this: The records really belong
to South Dakota, and a South Dakota officer having charge of the
department in South Dakot a wants a copy of some paper up here;
that officer, if he had to pay for it, it would come out of South Da-
kota. I don't know, as PRICE suggested, how we might cover that
amount. Now, the records of the Treasurer's office, if they belong
to South Dakota-still if some South Dakota man wanted a copy
he would apply to the Treasurer of North Dakota and pay for it—
JOURNAL OF THE JOINT COMMISSION.
875
that fee would go to the officer who had this in charge, and it
would look to me that the fees would compensate him for making
what few records would be required by the officers of the State of
South Dakota.
Mr. GRIGGS. Excuse me, I meant if South Dakota officers
write to North Dakota officers for any article, then these North
Dakota officers would make his charge as a matter of course, and
who is going to pay for them? The South Dakota officer would
pay it, and then render the account to the Legislature for it.
Mr. PRICE. There was something occurrred to me, I don't
know whether there is anything in it or not.
Mr. GRIGGS. An officer might object, might refuse to give a
copy, and I think there ought to be some provision to compel him.
Mr. CALDWELL. Every officer is compelled to furnish a
certified copy of any record in his office.
Mr. GRIGGS. In other words, if we keep these records here,
I want South Dakota to have a chance to get any copy she may
desire, and we share the expense. I don't want any loop holes.
Mr. PRICE. Well, my suggestion is this: Supposing at the
time we close our Territorial existence and these records are al-
lowed to remain in North Dakota, and your section assumes State-
hood; and suppose a case is pending in court and I want a certi-
fied copy of articles of incorporation, something of that kind; cer-
tified to by the Treasurer, or Secretary of North Dakota; would
that be legal evidence in the State of South Dakota? You cer-
tainly are not the proper custodian of the records of South Da-
kota.
Mr. GRIGGS. That is my idea.
Mr. CALDWELL. I think it would be if we arrange in regard
to the division; we recite in the testimony accompanying the cer-
tificate, and it seems to me
Mr. PRICE. I think it would be no better certificate than any
individual would make.
Mr. CALDWELL. It certainly would not be if there was no
legal arrangement-one which the courts were required to take
judicial notice of; but such an arrangement as this is part of the
law of the land. Furthermore, what sort of a certificate could a
man make, getting a copy from a transcribed record?
Mr. PRICE. Certified copy.
Mr. CALDWELL. Certainly, a certified copy of a transcrip-
tion.
876
JOURNAL OF THE JOINT COMMISSION.
Mr. CAMP. There is a way I can suggest to meet the question
Capt. GRIGGS raises, and the gentlemen on the other side. This
is what I would suggest: That South Dakota may designate one
or more individuals, men, who shall have access to all records in
the Capitol here, which belong to South Dakota, and make his
own copies of them.
Mr. PRICE. My understanding is that any citizen has access
to the public records.
Mr. CAMP. Well, not quite
Mr. PRICE.
officer he may.
That is so long as he doesn't interfere with the
Mr. CAMP. He cannot get in to make copies.
Mr. PRICE.
Indeed he can.
Mr. CAMP. They should designate the men who should make
the copy.
Mr. GRIGGS. The men designated should make a reasonable
charge.
Mr. CALDWELL. Let me ask this question: As a matter of
law can the Constitution give any, or the Schedule and Ordinance
of the Constitution go on and declare that a certain thing would
be evidence, different from that which the State declares to be
evidence of that fact? This Schedule and Ordinance could de-
clare that certified copies of the Territorial records made by the
State officers who succeeded to their custody should be consid-
ered as the same as similar certificates made by the Territorial
officers now required to make them under the statutes of the Ter-
ritory; but to incorporate such a provision as that into the Sched-
ule and Ordinance-of course the courts of the Territory would
have to take judicial cognizance of it. Even if the certificate
should show a copy made from a transcription of the record in-
stead of the original, would seem to be competent evidence.
Mr. CAMP. No doubt.
Mr. HARRIS. I think Mr. KELLAM and Mr. CAMP could put
that in shape.
Mr. CALDWELL.
PRICE.
Mr. PRICE. Yes.
It would raise the point made by Mr.
Mr. CAMP. Perhaps we better put this over until afternoon.
Mr. KELLAM. I don't want to do anything unless we know
what we are doing. There seems to be a sort of miscellaneous
confusion of ideas on this motion.
JOURNAL OF THE JOINT COMMISSION.
877
Mr. CALDWELL. It would, according to my
Mr. BROTT. I move we leave this to the two chairmen.
Mr. KELLAM. How would it do to let this go over until the
afternoon session? It looks to me that there is a little lack of
harmony in the South Dakota Commission.
Mr. HARRIS. My idea is that we know what it relates to; if
we pass this, you and Mr. CAMP in drawing the agreement can put
in-
Mr. KELLAM. I think, Mr. CAMP, we should agree upon
some definite plan, and then if the language of the resolution
needs changing, we would perhaps take the responsibility of that.
Mr. CAMP. The Commission must decide first what particu-
lar record is going to a particular place.
Mr. CALDWELL. Yes, that is true.
Mr. KELLAM. We have got to go to work and actually de-
termine what belongs to South Dakota before you and I can get
to work.
Mr. CAMP. Perhaps, Mr. KELLAM, you can make some sug-
gestion that would harmonize them.
Mr. KELLAM. Yes-well, I can't just now.
Mr. GRIGGS. Well, it is now dinner time.
Mr. KELLAM. Then there ought to be-as you suggest-sup-
pose in the division of these records the records of the Secretary
should become the property of South Dakota; of all the corpora-
tions, probably four-fifths of them are South Dakota corporations.
When North Dakota wants its copy it would only desire to copy,
perhaps, such records as regarded institutions in the north, or it
might prefer to distribute the records. On the other hand, sup-
pose they go to the State of North Dakota; now North Dakota
really has no interest in five-sixths of those articles of incorpora-
tions, but South Dakota would probably want a transcript, and
North Dakota might say, we don't want to pay half.
Mr. ELLIOTT. Is it necessary that we at this time deter-
mine what records go to South Dakota and what remain in North
Dakota?
Mr. PRICE. I think we should leave it to the Legislature.
Mr. CALDWELL. No, we are required to make disposition of
the records.
Mr. CAMP. Agree upon a disposition.
Mr. CALDWELL. Yes-the matter of transcription left to the
Legislature, but the
878
JOURNAL OF THE JOINT COMMISSION.
Mr. MCGILLYCUDDY. Disposition of the originals?
Mr. CALDWELL.
Yes.
Mr. PRICE. How would this be: We have decided just what
books and papers-how would it be to leave the whole, the rest, to
the Legislature; to the Legislature and let them appoint a joint
commission to determine what they will want and give them full
power to settle the thing. They will have to appoint a commis-
sion to come here.
Mr. MCGILLYCUDDY.
What are we here for?
Mr. PRICE. That is what I have been trying to find out.
Mr. NEILL. I came here to make disposition of these records.
and we want to finish it up.
Mr. PRICE. That wss my idea from the start, we ought to måke
disposition of the records, and provide for copies for the new
State.
Mr. CALDWELL. Providing copies is not part of the disposi-
tion.
Mr. PRICE. I don't think the people of South Dakota will
smile upon us very much if we make North Dakota the trustee
for us.
Mr. CAMP. Let them be here subject to your call-the Legis-
lature can call for them at any time.
Mr. NEILL. As soon as you get a house to put them in.
Mr. McGILLYCUDDY. The bill says they shall remain here,
and just as soon as South Dakota indicates they have a place for
the records they can take them.
Mr. PRICE. The Legislature will undoubtedly provide for
copies, and have to send a Commission here, and probably would
be at a larger expense than at this time.
Mr. ELLIOTT. The question is as to who shall saddle the re-
sponsibility.
Mr. PRICE. I am willing to take one-fourth part of it.
Mr. CAMP. One-fourteenth perhaps.
Mr. PRICE. Yes, one-fourteenth.
Mr. MCGILLYCUDDY. It strikes me there will be a vault
provided in South Dakota so South Dakota may take its share of
the records when the State Government opens up, and copies such
as South Dakota requires to be made.
Mr. PRICE. What's to interfere about having it done now?
Mr. MCGILLYCUDDY. Copying a large amount of records is a
question to great many minds as to whether it will be necessary;
JOURNAL OF THE JOINT COMMISSION.
879
whether the Legislature will approve our action and pay for the
work. I would not take the contract and pay for these records.
They ought to get five times as much as it was worth. I would
not take the responsibility.
Mr. PRICE. I guess there would be no one afraid to take the
contract.
Mr. MCGILLYCUDDY. Want a large margin on it.
Mr. PRICE. I would take my chances at ten cents a folio, and
take the chances of getting the money out of the Legislature.
Mr. MCGILLYCUDDY. There isn't anything in the Omnibus
Bill that provides for this Commission incurring any expense.
Mr. PRICE. If that is true we have no right to have these
copies made at all.
Mr. McGILLYCUDDY. There isn't any provision for it, but
as it is we will provide for it.
Mr. PRICE. There are some things we have got to have.
Mr. McGILLYCUDDY. It is a question whether a copy of
all the other papers are necessary.
Mr. KELLAM. This seems to me to cover about the ground.
Read this; take it and adjust it: "This Commission shall agree
upon a division of all records, papers, files and books not already
provided to be copied, in manner following, to-wit: All records.
and files pertaining exclusively to institutions in South Dakota
shall be the property of South Dakota, and all records and files.
pertaining exclusively to institutions in North Dakota shall be the
property of North Dakota. All other records, etc., not provided
to be copied or divided as above shall be divided
and grouped into two lots, as nearly of equal importance and
value as possible, but so that the records of no office shall
be divided by such grouping. Each State to have one of such two
groups, to be determined by lot by this Commission. All records
shall remain at the Capital of North Dakota. South Dakota may
at any time take possession of such of the records, files, etc., as
under this agreement becomes the property of South Dakota, giv-
ing North Dakota reasonable time to make copies or abstracts
thereof. If either State requires copies or abstracts of the records
which under this agreement go to the other State, the expense
thereof shall be borne equally by the two States. It shall also be
determined by lot which State shall take the originals and which
the copies of such records as are arranged by this Commission to
be copied." Does that omit anything?
880
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL.
I don't believe it does. I believe that
covers everything. Just to show how our ideas had followed
along on the same plan after such discussion has been had, I will
read such part of my resolution as I had prepared.
Resolved, That the Territorial records, the transcription of which has not
been provided for by this Commission, shall be disposed of as follows: Such
records and files as belong to either State particularly shall be allotted to such
State; and such records as are of general application to the Territory at large
shall be grouped in two lots to be determined by this Commission. But the
records which are thus disposed of shall remain at the Capital of North Da-
kota, the successors of the office now in charge, with the power of trustee of the
State of South Dakota, so far as the records are concerned.
That is merely preliminary. I would move the adoption of the
plan suggested by Major KELLAM, just read.
Mr. GRIGGS. I move we adjourn until 3 o'clock.
Mr. PRICE. I second the motion.
Mr. ELLIOTT.
Mr. KELLAM.
men this afternoon.
2 o'clock; make it 2 o'clock.
Will there probably be a convention of your
Mr. CAMP. Well, there ought to be.
Mr. KELLAM. What is your judgment as to time? There is
no use adjourning until 2 o'clock if you are sure you could not
get here.
Mr. CAMP.
We have got to be here.
Mr. KELLAM. I suppose we understand, while we have got it
in our mind, we can dispose of it.
Mr. GRIGGS. I guess we better adjourn to 2 o'clock.
Mr. CAMP. I guess we better let everything else go.
Mr. KELLAM. I am sure we can dispose of that matter in a
very few minutes-we have had it on our minds.
The motion to adjourn was seconded and carried, and the Com-
mission adjourned until 2 o'clock p. m.
AFTERNOON SESSION.
The Commission was called to order at 2 o'clock with Mr. KEL-
LAM in the Chair.
All members of the Joint Commission were present.
Mr. KELLAM. When we adjourned the matter of public rec-
ords was before the Commission.
Mr. SCOTT. What progress have you made?
Mr. KELLAM.
It is very difficult to tell.
JOURNAL OF THE JOINT COMMISSION.
881
Mr. CAMP. Might have the resolution read.
Mr. KELLAM. Perhaps it would be well to state that we dis-
cussed the matter in a general way through the forenoon, and
finally the proposition which is now being called for, was written
as covering, I think, the drift of the sentiment. But nothing was
determined. The Clerk will read. It is not in the form of a res-
olution, but a memorandum.
The Clerk read the resolution.
Mr. KELLAM. That, perhaps, needs this explanation to such
of you as were not here. The matter was left to a committee con-
sisting of Messrs. HARRIS and CALDWELL to report to this Com-
mission the books that seemed to be necessary and indispensable
for the two States to initiate their State existence, and they re-
ported such books as were necessary; and this Commission then
agreed that we would provide for the copying of those books, one
State to have the original and one the copy. Then we have this
proposition for disposition of the balance of the records.
Mr. CAMP. This provides that South Dakota may have copies
of records left in North Dakota.
Mr. KELLAM. No, I think not, only that if either State re-
quires copies of records
Mr. CAMP. It leaves it implied.
Mr. KELLAM. I think the proposition reads something like
this: If either State requires records it may go to the other State
and have them, giving them time to copy-each State paying one-
half of the expense. Gentlemen, there is really nothing pending
before the Commission, that is not in the form of a resolution.
Mr. SCOTT. Two lots been made?
Mr. CALDWELL. Mr. HARRIS and myself. were to make up
the lots.
Mr. SCOTT. Under this resolution one State can require the
other to make complete record of anything that remains in its pos-
session. Then it is not at all probable that either State would
desire copies of records pertaining exclusively to institutions in
the other State.
Mr. CALDWELL.
No.
Mr. GRIGGS. If they should at any time want any particular
articles, they could send and get them.
Mr. KELLAM. The thought is to leave that to the States
themselves, hereafter.
Mr. GRIGGS. That seems to be very fair; the records remain
882
JOURNAL OF THE JOINT COMMISSION.
1
here until such time as North Dakota has time to make a copy of
them.
Mr. KELLAM. It has seemed to us from the South that while
there is no real tangible advantage to North Dakota in such a dis-
position, the apparent advantage is to North Dakota. But it is a
fact we have no place in South Dakota where the records, even
those coming to us, would be as safely kept as here.
Mr. SCOTT. Then there is no provision made; we keep every
one of the records contained in the lots.
Mr. KELLAM. Those are divided; part going as the property
of one State, and the other of the other.
Mr. SCOTT. I think that is proper because it would be an
enormous amount of work to copy everything. Now this resolu-
tion provides just as I thought it did, that is that the State of South
Dakota can ask North Dakota to make copies of everything in-
cluded in that lot and shall pay half of the expense; and the State of
North Dakota can ask South Dakota to make copies of everything
they have in that lot and they shall pay half the expense. I don't
believe I don't think that anything should be provided for the
copying of any of these records that are not considered of enough
importance to divide.
Mr. CAMP. They are divided.
Mr. KELLAM. How would you prefer to have each one take
the records?
Mr. SCOTT. Let them pay for them, because it may be possi-
ble that some one of the Legislatures, one of the two States, may
ask for a complete copy of all these records. That is going to
cost $20,000 or $30,000 to do it. I don't believe we should leave
such a thing as that open.
Mr. CAMP. Our Legislature is just as liable to do it as theirs.
Mr. SCOTT. I know if one does, the other will come in.
Mr. KELLAM. Do you think we could make any provision
here that would preclude the Legislatures
Mr. SCOTT. No; but if our Legislature saw fit to make a
copy of what you have got, let them pay for it. And if your
Legislature asks for copies let them pay for it.
Mr. PURCELL. It may be necessary, Mr. SCOTT-these rec-
ords are put in files or lots, and it may be some very important
record is in the lot going to South Dakota that we might need,
and it may be necessary for us to have a copy of that; the chances
are just as much in our favor as in South Dakota. My view was
JOURNAL OF THE JOINT COMMISSION.
883
2
to copy the whole thing now in lieu of making lots, each party
paying half the expenses.
Mr. GRIGGS. Mr. SCOTT's amendment would be all right; it
might save some expense. If each party pays what they ask for,
it is just as fair for the one as the other.
Mr. KELLAM. That proposition, it seems to me, would result
in injustice to one side or the other. In this other case, as Mr.
PURCELL says, it is just as fair for one as the other.
Mr. PURCELL. It may be some very important matter goes
to South Dakota. We may have to copy all-they may not need
to copy.
Mr. SCOTT. We want to determine what we pay for if we
copy.
Mr. CALDWELL. The other side would be very careful what
they copied when they pay half the expense. If the proposition
were that one side should make a selection with regard to copy-
ing, and the other pay the whole thing, you would see the force of
Mr. SCOTT's observation.
Mr. PURCELL. Then the liability is as great on one side as
the other, and it is fair to presume that as much caution woull be
used on one side as the other.
Mr. SCOTT. No one would throw away money to get even with
the other.
Mr. PRICE. I think what ought to be copied, I am in favor
of copying now.
Mr. PURCELL. He presumes it may be-
Mr. SPALDING. I think a large number of the records here
are of no use to anybody.
Mr. CALDWELL. Never would be.
Mr. SPALDING. Many of no use to any part of the Territory,
and it would be of no use for us to copy those records relating to
corporations in South Dakota, and South Dakota would have no
use for records relating to corporations in North Dakota, and a
good many things in the same way.
Mr. GRIGGS. If one Legislature orders copies the opposite
Legislature would retaliate.
Mr. PURCELL. It would not be any worse in that case than
if we should copy them all, each bearing one-half the expense.
Mr. GRIGGS. I am speaking now of Mr. Scorr's amendment
that each part pay for its own copying.
Mr. SPALDING. That would be all right if these records
884
JOURNAL OF THE JOINT COMMISSION.
were going to be divided exactly; and if separated accordingly to
the office they belong to, according to the set of books they belong
in so as to preserve the unity of the different sets of records-
when we do it this way we make the other do half the work.
Mr. CAMP. I am not sure the Legislature is going to order a
full copy of the Legislature's bill books for 1889.
Mr. GRIGGS. You don't know what the Legislature will do.
Mr. SPALDING. They will have it on their own responsibil-
ity, not ours.
Mr. KELLAM. We of the south are willing to leave the rec-
ords here for the reason that we are not prepared to take care of
them now. They are safe here, in fire proof vaults. Now, sup-
pose we make the division and we take our records down there
this fall; we have no place to put them. We could do it, of course,
and such would be regarded as fair, if we wanted to do it. Make
an agreement to leave them here for the next five years: Our
election this fall is temporarily on the Capital question and it may
be two or three, four or five years before we have a permanent
Capital.
Mr. SANDAGER. I think we better leave it to the Legisla-
ture.
Mr. PURCELL. The necessity may be just as great.
Mr. KELLAM. It doesn't matter to me-it could be an advan-
tage to North Dakota to keep the records here.
Mr. SCOTT. No, I think that it would-
Mr. KELLAM I think it was a generous proposition on our
part.
Mr. CAMP. It strikes me it is impossible for us to speculate
upon the future extravagance of the Legislature.
Mr. SPALDING. It may be some years
Mr. KELLAM. I think it is very doubtful about what num-
ber
Mr. CALDWELL. Mr. CHAIRMAN: I move the adoption of
this resolution or memorandum as presented by Mr. KELLAM, and
that it be reported to the committee, or Chairmen of the respec-
tive delegations, together with such expressions as they have heard
here regarding the views of the Commission, and they be re-
quested to incorporate it into a formal agreement regarding the
distribution of these records.
Mr. CAMP. Now it strikes me we have not got far enough
with such resolution-
JOURNAL OF THE JOINT COMMISSION.
885
Mr. KELLAM. I suggest, Mr. CALDWELL, that you limit
your motion to the adoption of the plan outlined here.
Mr. CALDWELL. Very well, I will move the adoption of the
memorandum as read.
Mr. ELLIOTT. I second the motion.
Mr. KELLAM. Gentlemen you have heard the motion, are
you ready for the question? The Clerk will call the roll.
Camp, yes; Griggs, no; Harris, no; Purcell, yes; Sandager, yes;
Scott, no; Spalding, yes; Kellam, yes; McGillycuddy, yes; Cald-
well, yes; Brott, yes; Elliott, yes; Price, no.
Mr. PRICE explained his vo te as follows: I believe, as has al-
ready been decided by this Commission heretofore, that we have
an absolute right to provide for the copying of all these records;
and, for the further reason that I think these records ought not to
be separated, and that the records made during the Territorial ex-
istence ought to be kept in one place. And also, for the further
reason that I think it is inevitable that copies of all these records
or the great majority of them, will be required by the respective
States later on, and that they can be provided at this time at less
expense to the people of the Territory than to refer it to the Leg-
islatures of the States. And for the further reasons that I be-
lieve that this resolution, as a whole, is contrary to the spirit of
the Omnibus Bill.
Mr. NEILL voted yes.
Mr. PURCELL. As I understand, this resolution provides the
records shall remain here through the Territorial existence.
Mr. PRICE. I think what records have been made during the
Territorial existence ought to remain either in South Dakota or
North Dakota, and not be separated.
Mr. KELLAM. The Chair understands under the rule that the
motion is carried.
Mr. GRIGGS. I think it is a mistake-in some things right.
Mr. PURCELL. We will have to copy-
Mr. GRIGGS. If you refer it to the Legislature you know
what they will do they will copy everything.
Mr. SPALDING. If they want to take the responsibility of it
let them do it. But there is copying here amounting to $15,000
or $20,000. Let somebody who wants to take the responsibility
take it.
Mr. CALDWELL. Let it be done by appropriation to pay
for it.
886
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. We have greater responsibility than the Legis-
lature if we have the power to keep the Legislature from doing it.
Mr. KELLAM. I don't understand this Commission can tie the
future Legislatures with regard to copying, or anything else.
There might not be any necessity for copying; but the Legislature
may provide for three or a dozen copies. We can't put an injunc-
tion upon the Legislature.
Mr. SCOTT. That is correct. Should we get up a provision
that the State wanting a copy should pay for it?
Mr. KELLAM. The Legislature could very easily undo it.
Mr. SCOTT. They would not be able to do it.
Mr. KELLAM. From the time this Commission becomes de-
funct the Legislature is omnipotent.
Mr. PURCELL. I could see an advantage to that in case we
had the first selection of the records, but I can't see that it makes
any difference.
Mr. SCOTT. I do, because I am very well satisfied that if one
of the Legislatures call for a copy the other will also do the same.
Mr. CALDWELL. It is scarcely conceivable that any Legisla-
ture would attempt to punish another Legislature by putting an
expense upon it when it would have to pay half the expense.
Mr. PURCELL. Equally as great.
Mr. SCOTT. No. If South Dakota had a copy of all the
records and we could get that at half the cost to ourselves we
would do it.
Mr. GRIGGS.
That is it exactly.
Mr. SCOTT. I am in favor of copying them-I am not in favor
of adopting this proposition: in case either State desires copies of
the records let them have them made and pay for them them-
selves.
Mr. PURCELL. It may be necessary for us in making this
arrangement that we have to pay it all.
Mr. SCOTT. That would be only right on the basis we pro-
pose to settle on; settle by drawing lots.
Mr. HARRIS. I believe there is nothing before the House.
We decided this morning that copies should be made of certain
records in the Treasurer's office and Auditor's office, and it is still
undecided as to who has the original and who is to take the copies.
That is a matter, I suppose, should come before us now as well as
any time.
Mr. CALDWELL. Might be well to defer it until we deter-
JOURNAL OF THE JOINT COMMISSION.
887
mine which side takes the Auditor's and Treasurer's office, and
of course, the other party would take the copy.
Mr. PRICE. This is the resolution as I understand it: We
shall draw to see who shall take the Auditor's office and the Treas-
urer's office.
Mr. CALDWELL.
Yes.
Mr. ELLIOTT. Why not just as well fix that matter now? Let
us draw lots to see who has the first choice.
Mr. PRICE. There is to be two lots. We might draw lots to
see who would have the first choice.
Mr. CALDWELL. Yes.
Mr. KELLAM. We could not very well do it until the lots
were made.
Mr. PRICE.
made.
I don't know why we couldn't if the lots were
Mr. PURCELL. You could not draw until the lots were made.
Be all right to draw and make the lots up afterwards.
Mr. PRICE. Now, gentlemen, it is necessary to divide the rec-
ords in some of the offices.
Mr. CALDWELL. Only so far as pertains to public institu-
tions.
Mr. PRICE.
office.
Here's the Treasurer's office and the Secretary's
Mr. CALDWELL. The Governor's office and the Commis-
sioner of Immigration.
Mr. PRICE. Well, there is nothing in those offices.
Mr. ELLIOTT. Well, if we can't do any more on this we
might hear the report of the Committee on Military.
Mr. CALDWELL. They are just consulting.
Mr. CALDWELL. Mr. CHAIRMAN: Your Committee to whom
was referred the matter of dividing the several offices of the Ter-
ritory into lots would report that they would recommend: That
lot one shall consist of the records, etc., in the office of the Secre-
tary and the office of the Governor; and that lot two shall em-
brace the records of all other public offices of the Territory.
Mr. KELLAM. Gentlemen, you have heard the report of the
Committee on Division?
Mr. ELLIOTT. Mr. CHAIRMAN: I move the report of the
Committee be adopted.
Mr. SCOTT. I move the adoption of the report.
Mr. KELLAM. Gentlemen, the question is upon the adoption
888
JOURNAL OF THE JOINT COMMISSION.
of the report of Mr. CALDWELL and Mr. HARRIS you have just lis-
tened to. The Clerk will call the roll.
All the members voted in the affirmative, except Mr. SPALDING,
who was absent.
Mr. KELLAM. Gentlemen, under the rule the motion is car-
ried.
Mr. CALDWELL. I would move you now, Mr. CHAIRMAN,
that two pieces of paper of the same size, upon one of which shall
be marked "One".
Mr. ELLIOTT. That is all right, go ahead.
Mr. CLADWELL. And upon the other shall be marked "two,"
shall be put in a hat and that Mr. HAYDEN be blindfolded and draw
from said hat one of said papers; and that the number thereupon
shall be the selection of North Dakota. That the number shall
indicate the order of North Dakota's seclection.
Mr. GRIGGS. Why not make the balance-
Mr. KELLAM. His groups are numbered.
Mr. CALDWELL. This way, upon one of the papers shall be
marked "North Dakota" and on one "South Dakota,” and which-
ever number he draws shall indicate the seclection--shall have
the first choice.
Mr. PURCELL. I second the motion.
Mr. KELLAM. Gentlemen, you have heard the motion of
Mr. CALDWELL. Are you ready for the question?
Question. Question.
Mr. KELLAM. Mr. HAYDEN, there are two pieces of paper,
one marked "North Dakota" and one marked "South Dakota,” and
if he draws "North Dakota," then North Dakota has first choice;
if "South Dakota," then South Dakota has first choice.
The Clerk will call the roll.
All the members voted in the affirmative, except Mr. SPALDING,
who was abseut.
The two papers were placed in a hat by Mr. McCLARREN, Clerk
of the South Dakota Commission and Mr. HAYDEN, blindfolded,
drew one paper from the hat, which on examination had "North
Dakota" on it, entitling North Dakota to the first choice.
Mr. CAMP. North Dakota chooses lot No. 1, consisting of the
records of the Secretary and Governor.
Mr. CALDWELL. Oh! I was in hopes it was the other way.
Mr. KELLAM. What is next?
JOURNAL OF THE JOINT COMMISSION.
889
Mr. HAYDEN. The balance of the resolution, who shall take
the copies and who the originals.
Mr. CALDWELL. Copies would be taken by the other side
from which takes the originals.
Mr. KELLAM. No, he means these books we divided this
forenoon should be copied.
Mr. CALDWELL. Oh, yes. They are all in the Treasurer's
and Auditor's offices. By the way, there is one matter I was in-
tending to suggest. There are records that belong to the Auditor's
office that are not contained in the Auditor's office-they are in
store rooms in the building here-old stuff there-the records of
the Auditor's office. It will be necessary that they go with the
Auditor's office.
1
Mr. CAMP. There is one thing I would like to see changed,
and that is the Domestic Corporation records-some twenty-seven
volumes. They ought to be sent to South Dakota in order to save
the expense of copying. We could copy what we want of them.
Mr. CALDWELL. Of course, if you want to do that the rec-
ords are at your disposal.
Mr. PURCELL. They are in the Secretary's office.
Mr. CALDWELL. Yes, sir; about three-fifths of them belong
to South Dakota.
Mr. PRICE. I understood this resolution we already adopted
provided that all records relating to South Dakota should go to
South Dakota, and you say four-fifths belong to South Dakota.
In regard to the militia I would be in favor of giving North Da-
kota all the colonels.
Mr. PURCELL. We have got the advantage there.
Mr. CAMP. Would it not be well to take up that agreement
and read it over?
Mr. SCOTT. Well, let us see who is going to keep the originals
and who the copy.
Mr. CALDWELL. That is settled; we take the office and take
the originals, and the copies are furnished to the other side.
Mr. SCOTT. We are to have the copies of the Auditor's
books.
Mr. CALDWELL. There are only two offices in which there
are any books absolutely necessary to be copied. If the matter
has proceeded far enough I renew my motion, that the question of
records, etc., be referred to the chairmen of the respective delega-
tions for them to formulate and prepare the statement to go into
57
890
JOURNAL OF THE JOINT COMMISSION.
our report to our respective Conventions in accordance with the
action which has been taken by the Commission.
Mr. PURCELL. Do you think it necessary to name the rec-
ords?
Mr. CALDWELL. No, only those to be copied. I think now
by distinguishing them as records of the respective offices that
everything in the way of records in the Territory is disposed of.
Mr. CAMP. Only that might raise the question as to what
records portain exclusively to North or South Dakota. There
might be some question as to what was included in that.
Mr. PRICE. Seems to me it will leave a wide open door.
Mr. CALDWELL. Of course the first report made by this
committee apportions those, I believe. Don't it, Mr. HARRIS?
Mr. HARRIS. Yes, sir.
Mr. CAMP. Then you can take that out of the report.
Mr. ELLIOTT. I second Mr. CALDWELL'S motion.
Mr. KELLAM. Gentlemen, what is your pleasure now?
Mr. CALDWELL. I made a motion that the matter be re-
ferred now to the President of the-to the Chairman.
Mr. GRIGGS. What referred?
Mr. CALDWELL. This matter of records, refer it now to the
President of the respective delegations for them to incorporate
into the agreement.
Mr. GRIGGS. I second the motion.
Mr. KELLAM. Gentlemen, the question is upon referring this
matter that has just been disposed of to Mr. CAMP and myself to
be incorporated in the agreement. Are you ready for the ques-
tion.
Question. Question.
Mr. KELLAM. As many as are of the opinion the motion
should prevail say aye. The motion is carried.
Mr. CAMP. I move we now proceed to consider this agreement
that was submitted this morning by the two Chairmen.
Mr. CALDWELL. I second the motion.
Mr. ELLIOTT. There is another committee to report, would
it not be better to dispose of what business we have got? The
Committee on Military affairs, we should dispose of that.
Mr. CAMP.
Well?
Mr. MCGILLYCUDDY. I was in hopes of receiving some-
thing by to-day's mail. We have not made a report. In fact
there is all the report we have to make.
JOURNAL OF THE JOINT COMMISSION.
891
Mr. KELLAM. Isn't it in addition to what you received the
other day?
Mr. MCGILLYCUDDY. Yes, sir; in addition to that list read
the other day. We have the following from the Adjutant Gen-
eral.
Mr. McGILLICUDDY then read the following report:
Invoice of Camp Equipage belonging to Dakota Territory, and issued to
Captatn I. C. Wade, Commissary of Supply, First Regiment, D. N. G., at Camp
Ben Harrison, June 25, 1889, and not returned.
Here follows a list of table ware, kitchen utensils, etc., amounting in the
aggregate to $124.56. I think the above or greater part of it is in the hands of
companies.
HUSTON.
Invoice of Camp Equipage belonging to the Territory of Dakota, and is-
sued to Captain C. F. Mallahan, Commissary of Supply, Second Regiment,
D. N. G., at Camp Ben Harrison, June 25, 1889, and not returned.
Here follows a list of table ware, kitchen utensils, etc., amounting in the
aggregate to $114.16. I think the above or greater part of it is in the hands of
companies.
HUSTON.
Invoice of Ordnance received at Bismarck, June 8, 1889, and turned over
to Col. R. J. Woods, Chief of Ordnance, at Camp Ben Harrison, June 25, 1889:
Nineteen boxes Cartridges, 1,000 each; one box Rifle Bullets, one box Car-
tridge Primers, one set Reloading Tools, one Can Powder.
At Camp Ben Harrison, July 2, 1889. I received from Col. R. J. Woods,
Chief of Ordnance, D. N. G., for storage:
13 Boxes Cartridges, 1,000 each, value, $27 00 each……..
1 Box Cartridges, Primers,
1 Set Reloading Tools,
1 Box Rifle Bullets,
1 Can Powder, 125 lbs.,
"(
•
$ 351 00
25 00
2 50
15 00
22 50
30 Old Gun Slings..
• •
$416 00
Invoice of Camp Equipage received at Bismarck and issued at Camp Ben
Harrison by order of Governor Mellette, July 1, 1889, to Major E. L. Calkins,
Commissary of Supply, D. N. G., and stored at Jamestown, D. T.:
2 Wall tents, 14x20 feet, received at Bismarck, valued at $15
6 Wall tents, 10x12, received at Bismarck, valued at $4....
Total
·
What I reported to you as at Bismarck on July 4th.
·
$ 30 00
24 00
$54 00
HUSTON.
1889.
Invoice of Camp Equipment stored at Watertown, South Dakota, July 25,
(Here follows a list of tents, bed-sacks, tools, tableware, kitchen utensils,
etc., amounting in the aggregate to $693.06.)
892
JOURNAL OF THE JOINT COMMISSION.
OFFICE OF CHIEF OF SUPPLY, D. N. G.,
WATERTOWN, DAK., July 25, 1889.
}
I hereby certify that the foregoing statements are true and correct in-
voices of the public property belonging to Dakota Territory (Camp Equipage
and Ordnance) now in my custody and charge and of the whole thereof.
I certify that this is a correct copy.
GEO. W. CARPENTER,
Chief of Supply.
J. S. HUSTON,
Adjutant General.
Mr. McGILLYCUDDY. I find stored here in the Capitol 944
rifles (or rather the committee finds 944 rifles) caliber 50 of the
old pattern, and four cases caliber 45. This property General
Huston indicates should be divided. There is in the hands of the
south 559, and in North Dakota, of organized counties, 377; the
other 80 stand are in the Capitol.
Mr. CALDWELL. I suppose the distinction he makes, the 45
caliber rifles were issued to the militia, and the other in posses-
sion of the Territory and not intended for use.
Mr. MCGILLYCUDDY. Yes, and they are, I suppose, issued
J
to the militia for their use, and the other something the Territory
will have to settle for in time. The rifles here are good service-
able guns, only not in use at the present time. Just as good for
use as the 45 calibre.
Mr. HARRIS. Is that company at Lisbon one of the nine com-
panies of North Dakota?
Mr. MCGILLYCUDDY. Captain W. E. Smith, Co. A.
Mr. CALDWELL. How can there be nine companies in North
Dakota? They-
Mr. MCGILLYCUDDY. This includes the battery.
Mr. PRICE. Mr. CHAIRMAN: I move you this Committee on
Military Affairs be requested to furnish the Chairmen of the re-
spective Commissions with all this battle array, and the Chairmen
settle the whole matter remaining.
Mr. GRIGGS. I second the motion.
Mr. CAMP. Your respective Chairmen don't know any more
than
Mr. KELLAM. Let the Commission allow Mr. CAMP to read
the article and it may be sufficient now, and if not we will con-
sider it further.
Mr. CAMP reads: "One-half of all the arms, ammunition,
quartermaster's and ordnance stores distributed to and now in
JOURNAL OF THE JOINT COMMISSION.
8.93
1
possession of militia companies of the Territory of Dakota shall re-
main in their possession, and all the right, title and interest of the
Territory of Dakota in and to such arms, ammunition and stores
shall vest in the state in which the armories or headquarters of
such companies shall be situated. All 45-Cal. rifles and ammuni-
tion of same calibre, stored in the Capitol at Bismarck, and all
45-Cal. rifles heretofore issued to Company 'F' First Regiment at
Bismarck, shall be the property of North Dakota."
Mr. CAMP. I have interlined in this article so as to read as
follows: "All arms, ammunition, quartermasters's and ordnance
stores not distributed to and in possession of military companies
I have added all 45-Cal. rifles and ammunition of the same
calibre stored in the Capitol at Bismarck and also the 45-Cal. rifles
in the possession of Major Hare.
""
Mr. McGILLYCUDDY. No, he has no arms in his charge.
Mr. CALDWELL. Bentley.
Mr. CAMP. All 45-Cal. rifles heretofore issued to the Bismarck
company.
Mr. McGILLYCUDDY. And there is a stand here in the
Capitol.
Mr. CAMP. All 45-calibre rifles and ammunition for the same
stored in the Capitol at Bismarck issued to the Governor's
Guards, shall be the property of North Dakota.
Mr. PRICE. You get all, North Dakota; under that agreement
you have got the cannon.
Mr. CAMP. You have those Napoleon guns somewhere.
Mr. CALDWELL. They never were received.
Mr. PRICE. It looks to me about right.
Mr. CALDWELL. It strikes me as right.
Mr. PRICE. As far as I am personally concerned you can
have all of them. I don't think we have much use for a military.
Mr. KELLAM. If this is disposed of, shall we take up the
agreement. We will listen to the reading of the agreement as
proposed by the Chairman of the Commission, and follow it care-
fully with the understanding that each gentleman can make any
inquiry he chooses.
Mr. CAMP. The preamble was drawn up by Mr. KELLAM.
WHEREAS, By an act of Congress approved February 22, 1889, entitled
"An act to provide for the division of Dakota into two States and to enable the
people of North Dakota, South Dakota, Montana and Washington to form
Constitutions and State Governments, and to be admitted into the Union on
894
JOURNAL OF THE JOINT COMMISSION.
an equal footing with the original states, and to make donations of public
lands to such States, it was among other things provided that when the Consti-
tutional Convention for North Dakota and the Constitutional Convention for
South Dakota, which by said act were duly provided for and authorized,.
should assemble and organize as in said act provided, it should be and become
the duty of said Convention respectively to appoint a Joint Commission to be
composed of not less than three members of each Convention, whose duty it
should be to assemble at Bismarck, the present seat of government of said
Territory, and agree upon an equitable division of all property belonging to
the Territory of Dakota; the disposition of public records, and also, to adjust
and agree upon the amount of the debts and liabilities of the Territory, which
shall be assumed and paid by each of the proposed States of North Dakota
and South Dakota; and,
·
WHEREAS, The said Constitutional Conventions of North Dakota and
South Dakota having been duly elected and assembled and organized in pur-
suance of and as provided in said act, did, as therein required and provided for
the purposes therein specified, appoint a Joint Commission consisting of not
less than three members of each Convention, to-wit: Seven of each Convention
as follows, to-wit:
E. W. Camp, B. F. Spalding, Alex. Griggs, Andrew Sandager, W. E. Pur-
cell, Harvey Harris and J. W. Scott, appointed by the Convention of North
Dakota; and,
A. G. Kellam, V. T. McGillycuddy, Henry Neill, E. W. Caldwell, William
Elliott, Charles H. Price and S. F. Brott, appointed by the Convention of
South Dakota; and
WHEREAS, The said Joint Commission so appointed and composed having
duly assembled at Bismarck, as by said act provided, and being now and here
so assembled, and having as such Joint Commission duly and carefully con-
sidered the several matters which by said act are referred to them for disposi-
tion and agreement, do now adopt and confirm the following agreement, com-
pact and convention, that is to say:
Mr. CALDWELL. You see it is estimated there will be a de-
ficit of $140,000 liability and that would be hereafter distributed
--in the Territorial Treasury at the time of the dissolution and
under this arrangement South Dakota assumes $46,500 of your
share.
Mr. SPALDING. In that article regarding the names there is
something
Mr. CAMP. I think we ought to take it up article by article.
Mr. SCOTT. Have you any provision each State shall assume
and pay one-half of all claims existing against the Territory?
Mr. KELLAM. We have an article intended to cover that.
Mr. CAMP. "Article I. This agreement shall take effect and
be in force from and after the admission into the Union as one of
the United States of America, of either the State of North Da-
kota or the State or South Dakota."
+
+
JOURNAL OF THE JOINT COMMISSION.
895
Mr. KELLAM.
Gentlemen, are there any suggestions or
Will Article I
changes of any character on the article just read?
be adopted?
•
Mr. SCOTT. I move the adoption of Article I.
Mr. NEILL. I second the motion.
Mr. KELLAM. Gentleman, I think if there is no objection to
any article it should be considered as adopted.
Mr. ELLIOTT.
Mr. PURCELL.
Yes.
Yes.
Mr. KELLAM. Gentlemen, the first one is considered as
adopted.
Mr. CAMP. Article II. The words "State of North Dakota”
wherever used in this agreement, shall be taken to mean the Ter-
ritory of North Dakota in case the State of South Dakota shall be.
admitted into the Union prior to the admission into the Union of
the State of North Dakota; and the words "State of South Da-
kota," wherever used in this agreement shall be taken to mean the
Territory of South Dakota in case the State of North Dakota
shall be admitted into the Union prior to the admission into the
Union of the State of South Dakota.
Mr. KELLAM. Are there any objections to Article II?
Mr. SPALDING. There is where a question arises in the
names. Does the Enabling Act fix the names as "states"?
Mr. KELLAM. No, sir.
Mr. CAMP. Then we will insert the words "North Dakota"
and "South Dakota." And the words South Dakota shall be taken
to mean
Mr. SPALDING. Suppose one adopts the Constitution and
the other doesn't, so one remains a Territory; what means have
they of forcing that part of this relating to that part of the pres-
ent Territorial-hów can we
Mr. KELLAM. The only authority for doing anything is the
Omnibus Bill, and that provides for just what we have done, to
provide for the property of the Territory. I don't see any more
objection as to question of power than there is of power of divi-
sion between the the two States.
Mr. PURCELL. We are doing this work, supposing it will be
ratified by the people.
Mr. CAMP. Article III. Upon the taking effect of this agree-
ment all the right, title, claim and interest of the Territory of Da-
kota in and to any public institutions, grounds or buildings
896
JOURNAL OF THE JOINT COMMISSION.
situate within the limits of the proposed State of North Dakota
as such limits are defined in said act of Congress, shall vest in
said State of North Dakota; and said state of North Dakota shall
assume and pay all bonds issued by the Territory of Dakota to
provide funds for the purchase, construction, repairs or mainte-
nance of such public institutions, grounds or buildings, and shall
pay all warrants issued under and by virtue of that certain act of
the Legislative Assembly of the Territory of Dakota approved
March 8, 1889, entitled "An Act to provide for the refunding of
outstanding warrants drawn on the Capitol Building Fund."
Mr. KELLAM. Is there any changes suggested with reference
to this article? If not we will pass it. Approved.
Mr. CAMP. Article IV. Upon the taking effect of this agree-
ment, all right, title, claim and interest of the Territory of Dakota
in and to any public institutions, grounds or buildings, situate
within the limits of the proposed State of South Dakota as defined
in said act of Congress, shall vest in said State of South Dakota.
And said State of South Dakota shall assume and pay all bonds
issued by the Territory of Dakota to provide funds for the pur-
chase, construction, repairs or maintenance of such public institu-
tions, grounds or buildings.
Mr. KELLAM. Is there any objection to this article? It
stands approved.
Mr. CAMP. Article V.
Mr. CALDWELL. Mr. CHAIRMAN: I suggest the reading of
that is a mere matter of figures, and that it be omitted.
Mr. CAMP. The only question is whether everything is in-
cluded.
Mr. CALDWELL. Mr. HAYDEN and I have examined it.
Mr. KELLAM. Have you examined it since the agreement
was framed?
Mr. CALDWELL. Mr. HAYDEN says he has.
Mr. CAMP. Article VI. Each State shall receive all unex-
pended balances of the bonds which it so assumes, whether such
balances have been covered back into the Treasury or not.
it.
Mr. KELLAM. Is there any objection to this article? Pass
Mr. CALDWELL. I suppose in case where it has been paid
in the Treasury--as the $7,000 of the Bismarck Penitentiary, it
becomes a part of the general fund of the Territory. That is, by
JOURNAL OF THE JOINT COMMISSION.
897
the adoption of this we would not, we could not have any power
to reinstate it as the fund of that particular institution.
Mr. SPALDING. That is part of the general fund; yes.
Mr. KELLAM.
Let's see if we understand it aright.
Mr. PURCELL. That was my idea what Mr. SPALDING said—
part of the general fund of North Dakota.
Mr. KELLAM. Yes, of North Dakota.
Mr. CAMP. Article VII. All furniture, fixtures, provisions,
appurtenances and appliances, tools, implements and other mova-
ble property of the Territory of Dakota situate in or used in
connection with any of said public institutions, grounds or build-
ings, shall become and be the property of the State or Territory
in which such grounds, buildings or institutions may be situated,
except as herein otherwise specifically provided.
Mr. KELLAM. Are there any objections to this article? If
not, we will pass it.
Mr. CAMP. Article VIII. In case of loss in whole or in part
of any of the property of the Territory of Dakota prior to the
taking effect of this agreement, the State in which such property
would have vested if the same had not been destroyed, or in which
such property so injured shall vest, shall receive all sums payable
upon policies of insurance issued upon such property; and if loss,
not covered by insurance occurs on any of such property, would
vest on the taking effect of this agreement.
Mr. KELLAM. Any objection to this article? If not, we will
pass it.
Mr. CAMP. Article IX. Upon the taking effect of this
agreement, all unearned premiums of insurance shall vest in the
State or Territory in which the property insured thereby shall
vest.
Mr. KELLAM. Any objection to this article? No objection.
Mr. CAMP. Article X. The States of North and South Da-
kota shall pay one-half each of all liability now existing, or here-
after and prior to the taking effect of this agreement incurred,
except those heretofore or hereafter incurred on account of pub-
lic institutions, grounds or buildings, except as otherwise herein
specifically provided.
Mr. KELLAM. Will you read that again?
Article X was read again.
Mr. PURCELL. That is right-the current indebtedness.
898
JOURNAL OF THE JOINT COMMISSION.
Mr. KELLAM: All right if limited to that, if you add there
"except as otherwise herein specifically provided."
Mr. CAMP. Article XI. Each of said States shall succeed to
all rights of the Territory of Dakota upon contracts for public
works within such State or upon bonds given to secure the per-
formance of such contracts.
Mr. KELLAM. Any objection to this article? If not, we will
pass it.
Mr. CAMP. Article XII. All other bonds issued prior to the
taking effect of this agreement upon which a cause of action has
or shall prior to the taking effect of this agreement accrue to the
Territory of Dakota shall be sued upon by the State of
Dakota, and it is hereby made the duty of said State to sue
thereon, and one-half of the penalties or damages collected by said
State thereon shall be paid over to the other State, and the costs.
of such suit or collection shall be borne equally by said States,
save as it may be necessary to apply such proceeds otherwise in
order to carry into effect the provisions of Article
agreement.
Mr. PURCELL. Is that who the trustee shall be?
Mr. CAMP.
Yes.
of this
Mr. CALDWELL. I would move the insertion of the word
"North" in the blank.
Mr. PURCELL. I second the motion.
Mr. KELLAM. I would state that the special reason I would
have in so suggesting such insertion would be that-well I will
not state it either, after all. I think the reason that was left blank
was the records were not disposed of, and there seems to be a con-
venience in the party retaining the records and bringing the suits.
And it occurred to me whether or not there should be a further
provision in their making it obligatory upon the trustee. I think
that would be a consideration. The word "may" is provisional.
Mr. CAMP. Why not make it “shall"?
•
Mr. KELLAM. That was my thought.. I don't know whether
"shall" will cure it. The only idea I had in making, for instance,
North Dakota a trustee for the bringing of these suits, was there
would be left no election or option upon the part of North Da-
kota. There might possibly be circumstances in which favoritism
could be extended toward some defaulting officer.
Mr. CALDWELL. "And it is hereby made the duty of."
JOURNAL OF THE JOINT COMMISSION.
899
Mr. SCOTT. I don't see why that word "shall" would not
make it.
Mr. KELLAM. It might be a matter simply of discussion be-
tween North Dakota and South Dakota, to be determined by
whom the action might be maintained. I prefer "accruing to the
Territory of Dakota, may be sued upon by————” Well, with the
understanding that something of that sort would be agreeable to
the Commission. Mr. CAMP and I could fix that when we cóme
to re-write this.
Mr. CAMP. It is hereby made the duty to bring suit.
Mr. KELLAM. So the blank before the word "Dakota" be
filled by inserting the word "North." As many as are of the
opinion this should prevail, say aye. Carried.
Mr. CAMP. Article XIII. The furniture, fixtures, appliances
and appurtenances used in or about, or pertaining to the public
offices of the Territory shall be the property of the State within
the proposed limits of which said offices are now kept.
Mr. KELLAM. Any objection to the article? There are some
of the appliances I think of, of certain of these offices still here;
but the word "pertaining" is inserted with the understanding it
covers that.
Mr. PURCELL. What do you mean in Article XII by the
words: "Save as it may be necessary to apply such proceeds
otherwise in order to carry into effect the provisions of Article
?"
Mr. CAMP. For this reason. In looking over Article XXI, it
is numbered XXI in the printed agreement, you will find there is
a final adjustment of accounts, and North Dakota is to be credited
with the amount received. There might be some default in which
some funds that were going to South Dakota would be missing,
and it was in order to cover that.
Mr. KELLAM. They could be retained in North Dakota.
Mr. CAMP. Article XIV. The Territorial Library, including
such books and volumes as may be added thereto prior to the tak-
ing effect of this agreement, shall be the property of the State of
South Dakota.
Mr. KELLAM. No objection to that.
•
Mr. CAMP. Article XV. One-half of all the Compiled Laws
of the Territory of Dakota, Revised Codes, and of all Session
Laws, printed Journals of the House and Council of the Legisla-
tive Assembly of said Territory (except those composing a part
900
JOURNAL OF THE JOINT COMMISSION.
of said library), remaining undisturbed or undisposed of, accord-
ing to law at the taking effect of this agreement, shall be deliv-
ered on demand to the proper authorities of the State of South
Dakota.
Mr. CALDWELL. Now, the Federal reports of officers and
things of that kind for the general public.
Mr. KELLAM. I think this largely refers to the Compiled
Laws.
Mr. CALDWELL. They being distributed to the general pub-
lic-
Mr. SCOTT. When sold the money is turned into the Treas-
ury.
Mr. KELLAM. Would it be an improvement to say "equally
divided?"
Mr. CALDWELL. It is provided for them to be equally di-
vided. Some of them were left down there for the convenience of
parties in South Dakota.
Mr. KELLAM. In law they are here?
Mr. CALDWELL. Yes, sir.
Mr. KELLAM. If there is no objection to the article we will
pass it.
Mr. CAMP. Article XVI. All other arms, ammunition, quar-
termaster's and ordnance stores shall be equally divided between
the States of South Dakota and North Dakota. I suggest that
Articles XVI and XVII be put in the other order. Article XVI.
All arms, ammunition, quartermaster's and ordnance stores dis-
tributed to and now in possession of militia companies of the Ter-
ritory of Dakota shall remain in their possession, and all the right,
title and interest of the Territory of Dakota in and to such arms,
ammunition and stores shall vest in the State in which the armo-
ries or headquarters of such companies shall be situated. All
45-Cal. rifles and ammunition of same calibre stored in the Cap-
itol at Bismarck, and all 45-Cal. rifles heretofore issued to Com-
pany F, First Regiment at Bismarck, shall be the property of
North Dakota.
Mr. SPALDING. I think these are not rifles, they are mus-
kets.
Mr. CALDWELL, Mr. MCGILLYGUDDY thinks they are all
rifles.
Mr. McGILLYCUDDY. All rifles, yes. In contradistinction
to carbines.
JOURNAL OF THE JOINT COMMISSION.
901
Mr. CALDWELL. That article all right then?
Mr. CAMP. My idea was to transpose one-half of all other
arms, ammunition and ordnance stores-
Mr. KELLAM. The first section provides for such as have
been distributed.
Mr. CAMP.
Yes.
Mr. KELLAM. If there is no objection to the article we will
pass it.
Mr. CAMP. Article XVIII. All other items of personal
property and miscellaneous effects belonging to the Territory, ex-
cept the Territorial Library, and the Territorial Records and
Archives, shall be divided as nearly equally as possible between
North and South Dakota.
Mr. CAMP. I don't know what other
Mr. CALDWELL. Neither do I. It leaves nothing hanging
in the air.
No objection.
of
Mr. CAMP. Article XIX. The State of South Dakota shall
pay to the State of North Dakota $46,500, on account of the ex-
cess of Territorial appropriations for the permanent improve-
ment of Territorial institutions which under this agreement will go
to South Dakota, and in full of the undivided one-half interest of
North Dakota in the Territorial Library, and full settlement of
unbalanced accounts, and of all claims against the Territory, of
whatever nature, legal or equitable arising out
the alleged erroneous or
unlawful taxation of North-
ern Pacific Railroad lands, and the payment of said
amounts shall discharge and exempt the State of South Da-
kota from all liability for or on account of the several matters
hereinbefore referred to, nor shall either State be called upon to
pay or answer to any portion of liability hereafter arising or ac-
cruing on account of transactions heretofore had, which liability
would be a liability of the Territory of Dakota had such Terri-
tory remained in existence, and which liability shall grow out
of matters connected with any public institution, grounds or
buildings of the Territory situated or located within the bound-
aries of the other State.
Mr. KELLAM. Any objection?
Mr. KELLAM. That includes the liability of North Dakota
on the Capitol lots which have been sold, and I presume all of our
members understand that.
902
ง
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. Yes, we don't want any liability on that account
if we can get out of it.
Mr. KELLAM. If there is no objection to the article we will
pass it.
Mr. CAMP. Article XX. Neither State shall pay any portion
of liability of the Territory arising out of erroneous taxation of
property in the other State.
Article XXI. A final adjustment of accounts shall be made
upon the following basis: North Dakota shall be charged with all
sums paid on account of the public institutions, grounds and
buildings located within its boundaries on account of the current
appropriations since March 8, 1889, and South Dakota shall be
charged with all sums paid on account of public institutions,
grounds or buildings located within its boundaries on the same
account and during the same time. Each State shall be charged
with one-half of all other expenses of the Territorial Government
during the same time. All moneys paid into the Treasury during
the period from March 8, 1889, to the time of taking effect of this
agreement by any county, municipality or person within the limits
of the proposed State of North Dakota shall be credited to North
Dakota; and all such sums paid into said treasury within
the same time by any county, municipality or person
within the limits of the proposed State of South Da-
kota shall be credited to the State of South Dakota; except
that any and all sums on gross earnings paid into said treasury
by railroad corporations since the 8th day of March, 1889, based
upon the earnings of years prior to 1888, under and by virtue of
the Act of the Legislative Assembly of the Territory of Dakota,
approved March 7, 1889, and entitled "An Act providing for the
levy and collection of taxes upon the property of railroad com-
panies in this Territory," being Chapter 107 of the Session Laws.
of 1889 (that is, the part of such sum going to the Territory),
shall be equally divided between the States of North Dakota and
South Dakota; and all taxes heretofore or hereafter paid into the
treasury under and by virtue of the act last mentioned, based on
the gross earnings of the year 1888, shall be distributed
as already provided by law, except so much thereof
to the Territorial Treasury shall be divided as
goes to
follows: North Dakota shall have so much thereof as shall
be or has been paid by the railroads within the limits
-as
JOURNAL OF THE JOINT COMMISSION.
903
-
of the proposed State of North Dakota, and South Dakota
so much thereof as shall be or has been paid by railroads within
the limits of the proposed State of South Dakota. Each State shall
be credited, also, with all balances of appropriations made by
the Seventeenth Legislative Assembly of the Territory of Dakota,
for the account of the public institutions, grounds or buildings
located within its limits remaining unexpended on March 8, 1889.
If there shall be any indebtednes except the indebtedness repre-
sented by the bonds and refunding warrants herein before men-
tioned, each State shall at the time of such final adjustment of ac-
counts, assume its share of said indebtedness as determined by
the amount paid on account of public institutions, grounds or
buildings of such State in excess of receipts from counties, mu-
nicipalities, railroad corporations or persons within the limits of
said State as provided in this article; and if there shall be a sur-
plus at the time of such final adjustment, each State shall be enti-
tled to the amount received from counties, municipalities, railroad
corporations or persons within its limits, over and above the
amount charged to it.
Mr. SCOTT. Right there
Mr. HARRIS. Mr. CALDWELL, I believe it was, called the par-
ticular attention of this Commission to that question as to whether
the agreement submitted by Messrs. KELLAM and CAMP should
cover the gross earnings tax paid in 1888, or whether it referred
only to 1889, and it was fully discussed and decided that it meant
the tax on the gross earnings of 1888. Half of that tax has been
paid, and under the article as we have it, it need not be distributed
as under the agreement which we pass. It is intended that half
which has already been paid in on the gross earnings of 1888
should be distributed the same as the other half which is due in
August.
Mr. PURCELL. How was it to be distributed?
Mr. HARRIS. The same as the tax coming from counties,
persons or municipalities. That which comes in from North Da-
kota shall be credited to North Dakota; that coming in from South
Dakota shall be credited to South Dakota. The same as the last
half of the tax comes due in August will be distributed.
Mr. KELLAM. I don't really--
Mr. PURCELL, Will you read that again after "except"?
The article was re-read.
Mr. CALDWELL. Mr. CHAIRMAN: The point which is raised
904
JOURNAL OF THE JOINT COMMISSION.
by the gentleman may be better understood from this statement:
At the time of the first semi-annual payment by the railroads,
they paid all arrearages.
At the second semi-annual payment
they pay nearly half of what has become due within that year.
That is to say, that the first of April, I believe, was the date of
payment, they paid some of the delinquencies for 1886, some of
them for 1886, 1887 and 1888.
Mr. CAMP. It was due the 1st of February.
Mr. CALDWELL. Yes, the 15th of February. You see this
gross earnings tax is estimated for any particular year upon the
previous year's earnings. The 1889 tax is levied upon the gross
earnings of 1888. The 1888 tax was levied upon the gross earnings of
1887. The 1887 tax was levied upon the gross earnings of 1886.
Now, they didn't pay all in 1886 and 1887 which became due, the
1886 tax in 1887, and the 1887 tax in 1888; but under this new law
these arrearges were all paid in a lump on or about the first day
of April, 1889, and there is only one-half of the tax due upon the
gross earnings of 1888; and it was my original idea they were to
pay in simply half of the 1888 tax, and likewise half of the ar-
rearages in the first payment of this year; but I understand they
paid all their arrearages. That being the case, as I understand it,
why the point made by the gentleman is correct and there ought
to be a distinction made in this between the taxes which are de-
linquent, and taxes which were merely due. The tax of 1888 was
paid without any delinquency whatever. The tax of 1887 and
1886, and I believe some of 1855
Mr. HARRIS. This question was fully discussed and the
question Mr. CALDWELL brought up I guess we understand.
The taxes of 1886 and 1887 should be divided equally, and that
this half of the taxes which was paid of the 1888 gross earnings
should be distributed according to locality from which it came.
That is, what was paid in from North Dakota should be credited
to North Dakota, and what was paid in from South Dakota should
be credited to South Dakota. Our agreement we have here does
not properly-
Mr. PURCELL. This explanation-"except any and all taxes
of gross earnings, paid into said treasury by railroad corporations
since the 8th day of March, 1888, based upon the earnings of the
years prior to 1888."
Mr. HARRIS. Yes, the 1888 tax was due but not delinquent.
Mr. PURCELL. Here it is: "Except any and all sums paid
JOURNAL OF THE JOINT COMMISSION.
905
into the said treasury since the 8th day of March, 1889, and prior
to the date of this agreement, under and by virtue, etc., etc."
Mr. KELLAM. That would not do because it would include
the arrearages.
Mr. PURCELL. Except any and all sums of arrearage taxes.
Mr. CALDWELL. In this agreement we called it the railroad
tax of 1889, that which accrued upon the gross earnings of 1888.
Mr. HARRIS. Well, it is a tax due in 1889.
Mr. HARRIS. Part in February and part in August.
Mr. CALDWELL, Yes, and that was to be livided according
to the source from which it came.
Mr. HARRIS. Mr. KELLAM and Mr. CAMP can put it in shape,
since their attention is called to it.
Mr. KELLAM. I don't get the understanding-
Mr. CAMP. I suggest that instead of "any and all sums paid.
into the treasury," we read, "save the gross earnings tax based
upon the earnings of the year 1888, under and by virtue of the Act
of the Legislative Assembly of the Territory of Dakota, approved
March 7, 1889, and entitled "An act providing for the levy and
collection of taxes upon property of railroad companies in this
Territory," shall be equally divided between the States of North
Dakota and South Dakota; and all taxes heretofore or hereafter
paid into the treasury under and by virtue of the act last men-
tioned, based on the gross earnings of the year 1888, shall be dis-
tributed as already provided by law, except that so much thereof
as goes to the Territorial Treasury shall be divided as follows:
North Dakota shall have so much thereof as shall be or has been
paid by railroad companies within the limits of the proposed State
of North Dakota, and South Dakota so much thereof as shall be
or has been paid by railroads within the limits of the proposed
State of South Dakota."
Mr. KELLAM. What's the object of reciting this act of March
7, 1889? Why is it not covered by making all taxes on gross earn-
ings for the years they became due prior to the year 1889, divided
equally, and all subsequently paid?
Mr. CAMP. Because the Supreme Court of the Territory of
Dakota has declared it never became due.
Mr. CALDWELL. It didn't become due until 1889 and that
was by arrangement.
Mr. KELLAM. Became due by act of the Legislature.
Mr. CAMP. The Supreme Court stated it never became due.
58
906 ·
JOURNAL OF THE JOINT COMMISSION.
Mr. KELLAM. I don't mean by the term "due" in the legal
sense. "All taxes on gross earnings paid into the treasury on
business prior to the year 1889." I don't care anything about the
phraseology, only make it broad enough.
Mr. CAMP. The object of putting in that act was in order to
show precisely what was intended. It was payment made under
that new law, not under the 1883 law.
Mr. SPALDING. Why not pass that and leave it to the two
Chairmen to fix up with the other?
Mr. PRICE. Yes, if they have got the idea.
Mr. SPALDING. I think they have.
Mr. CALDWELL. Provided, That such railroad tax paid
upon the gross earnings, made prior to 1888, and which were de-
linquent at the time of such payment, shall be equally divided
between the two States; and such taxes as were not due upon earn-
ings of the year 1888 or subsequent thereto, shall accrue to the
State within which the road paying the same shall be located.
Mr. KELLAM. Is that right?
Mr. CALDWELL, In the Treasurer's office the name of the
tax is the year of the gross earning upon which it is levied; so,
when, in the Treasurer's office they say "tax of 1888" they mean
the tax levied upon the gross earnings of 1888, although it is not
due until 1889.
Mr. CAMP. How will this do: Except any and all taxes on gross
earnings based upon the years prior to the year 1888, under and
by virtue of the act of the Legislative Assembly, shall be divided
equally between the two States; and all taxes heretofore or here-
after paid into the treasury under and by virtue of the act last
mentioned, based on the gross earnings of the year 1888, shall be
distributed as already provided by law, except so much thereof as
goes to the Territorial Treasury shall be divided as follows:
North Dakota shall have so much thereof as shall be or has been
paid by railroads within the limits of the proposed State of North
Dakota, and South Dakota so much thereof as shall be or has been
paid by railroads within the limits of the proposed State of South
Dakota.
Mr. KELLAM. Now, I don't see why that does not cover the
idea.
Mr. CAMP. Except any and all taxes paid into said treasury
by railroad corporations since March, 1889, prior to the date of
this agreement, based upon the earnings prior to 1888 under and
JOURNAL OF THE JOINT COMMISSION.
907
by virtue of an act of the Legislative Assembly of the Territory
of Dakota approved March 7, 1889, "An Act providing for the
levy and collection of taxes upon property of railroad companies
in this Territory." (being Chapter 107 of the Session Laws of
1889) that is, the part of such sum going to the Territory, shall
be equally divided between the States of North Dakota and South
Dakota; and all taxes heretofore or hereafter paid into said treas-
ury based on the gross earnings of the year 1888 shall be distrib-
uted as already provided by law, except that so much thereof as
goes to the Territorial Treasury, shall go as follows: North Da-
kota shall have so much thereof as has been paid by railroad
companies within the limits of the proposed State of North Da-
kota; and South Dakota so much thereof as has been paid by
railroads within the limits of South Dakota.
Mr. KELLAM. All taxes based upon the gross earnings prior
to 1888 divided equally, and taxes upon the gross earnings of
1888, they are to be divided according to the source from which
they come.
Mf. HARRIS. Yes, that is the agreement expressed the other
day.
Mr. CALDWELL. That was my understanding of it.
Mr. KELLAM. I think we have the same understanding, and
we can take a little time to express it.
Mr. CAMP. Article XXII. The payment from South Dakota
to North Dakota shall be made as much as possible, by South
Dakota's assuming North Dakota's share of current liabilities at
the time of final adjustment, to the extent of South Dakota's in-
debtedness under this agreement to North Dakota; and if any
balance shall remain due to North Dakota from South Dakota,
payment of said balance shall be provided for by the first Legis-
lature of South Dakota.
Mr. CAMP. Referring back to Article XXI. Are there any
balances running farther back than last March?
Mr. SCOTT. There was an item of the Sioux Falls Peniten-
tiary, and it may be an unexpended appropriation.
Mr. PURCELL. This restricts it to the XVII Legislative As-
sembly.
Mr. HAYDEN. We found they had carried a balance for-
ward. At the end of last year there was a balance carried for-
ward.
Mr. PRICE. How is that $10,000, SCOTT; inquired about?
908
JOURNAL OF THE JOINT COMMISSION.
Mr. HAYDEN.
That was not included.
Mr. KELLAM. Is there any unexpended balances?
Mr. CALDWELL. No. I inquired about them-there is
nothing there. I enquired this morning. There are certain--
what are called "running appropriations," two hundred for the
care of the library. But if that is not all used in any one year it
is not available.
Mr. KELLAM. Then that covers it.
Mr. CAMP. Article XXIII. Upon the taking effect of this
agreement all claims for taxes due the Territory of Dakota shall
become the property of and may be collected by the state or terri-
tory within the limits whereof the counties are situate against
which such taxes stand charged upon the Territorial Treasurer's
books. But this article shall not be held to refer to or govern the
disposal of any taxes to be paid by railroad companies which are
specifically provided for by Article XXI hereof.
Mr. CALDWELL. This is quite a conflicting provision, and I
believe this is what was meant by the provision as provided by
Mr. HAYDEN, to which reference was made in the original agree-
ment, and I would ask if this is something like the understanding.
Suppose now, that of the total payments which are made into the
Territorial Treasury, South Dakota pays 55 per cent. thereof and
North Dakota 45 per cent., and that then of the appropriations
drawn out South Dakota draws out say 55 per cent. of the whole
and North Dakota draws out the 45 per cent., it would be a stand-
off. 1 would ask Mr. HAYDEN about it.
Mr. HAYDEN. I can explain it perhaps more-my under-
standing was it should be treated the same as though it was a
partnership, each one having an equal amount in, a balance on
hand, and each one pays in from the 8th day of March down to
the separation and draws out.
Mr. KELLAM. That is my idea; South Dakota pays so much
money, and North Dakota so many dollars; there has been paid
on account of South Dakota institutions so many dollars, and each
one takes his balance.
Mr. SCOTT. That is my understanding.
Mr. HAYDEN. The expense is divided equally.
Mr. SCOTT. The running expenses.
Mr. PURCELL. If there should be a surplus, each would be
entitled to the amount received from the counties within the lim-
its of its boundaries.
JOURNAL OF THE JOINT COMMISSION.
909
Mr. KELLAM. That is what we are talking about now.
Mr. CALDWELL. Well, I guess that is all right.
Mr. CAMP. Article XXVI. All other claims and demands of
the Territory of Dakota outstanding when this agreement shall
take effect, the collection whereof is not herein before provided for,
shall be sued upon and collected by the State of North Dakota,
and the costs of suits so brought and the amounts collected shall
be divided equally between the two States of North Dakota and
South Dakota.
Mr. SCOTT. Referring to Article XXII. Should not we go
on and state how the balance should be paid, if it is not paid in
that way? I presume it would
Mr. PURCELL. Why not let us fix it? For instance, let us
pay for our own copying; why make that a charge against South
Dakota?
Mr. KELLAM. That was made at Mr. CAMP'S suggestion.
Mr. SCOTT. It will not amount to much.
Mr. CAMP. I am perfectly willing to leave it out.
Mr. PURCELL. The question of refunding warrants-
Mr. CAMP. Why would it not be better to have it in cash, and
let South Dakota negotiate her bonds?
Mr. PRICE. Just as well.
Mr. KELLAM. I don't like to put that in cash.
Mr. CAMP. Payment of the balance shall be provided by the
Legislature of South Dakota.
Mr. KELLAM. Yes, that is one way it could be done. Of
course, we all understand that the assumption of one-half of
North Dakota's indebtedness will a good deal more than cover
the $46,000. I don't want to put it in cash.
Mr. ELLIOTT. We know we should not have to pay it in
cash.
Mr. KELLAM. Might hold this Commission.
Mr. PRICE. Well, how is that suggestion "payment shall be
provided for by the Legislature?”
Mr. CALDWELL.
Yes.
Mr. KELLAM. Any balance remaining unpaid, if any, shall
be provided for by the first Legislature of South Dakota.
Mr. CALDWELL. The first session of the Legislative Assem-
bly of South Dakota.
Mr. KELLAM. We call it, Legislature. Where is that Long's
Hand Book?
910
JOURNAL OF THE JOINT COMMISSION.
Mr. SCOTT. That is what we call our Legislature.
Mr. CAMP. Legislative Assembly, General Assembly.
Mr. CALDWELL. Shall be vested in the Legislature.
Mr. KELLAM. Just read that again.
Mr. CAMP. Payment from South Dakota shall be made by
South Dakota as much as possible
Mr. PURCELL. "As much as possible." Let that be out.
Mr. ELLIOTT. I don't see the necessity of that either.
Mr. PRICE. The Legislature can provide at any time.
Mr. SCOTT. I think it is perfectly proper.
Mr. PURCELL. Liable to the extent of the indebtedness;
which indebtedness?
Mr. CAMP. If there is any balance it shall be provided for
by the first Legislature.
Mr. PURCELL. The payment of South Dakota to North Da-
kota shall be made by South Dakota's assuming North Dakota's
share of current liabilities to the extent of the indebtedness of
South Dakota to North Dakota; and in case any balance remains
payment thereof shall be provided for by the Legislature.
Mr. CALDWELL. By the first Legislature of the State of
South Dakota.
Mr. SCOTT. Well, is there anything further to be done to-
day?
Mr. PURCELL. "The payment from South Dakota to North
Dakota shall be made by South Dakota's assuming North Dakota's
share of current liabilities at the time of final adjustment, to the
extent of South Dakota's indebtedness under this agreement to
North Dakota; and if any balance shall remain due to North Da-
kota from South Dakota, payment of said balance shall be pro-
vided for by the first Legislature of South Dakota."
Mr. KELLAM. Gentleman, is that article satisfactory now?
If there is no objection it will be passed.
Mr. CAMP. There is another question I want the Commission
to decide before we start in on this record agreement.
Our pow-
ers in regard to the records are, perhaps, distinct from our duties
with regard to the other property of the Territory. If we make
our agreement as to the records separate, and provide for a rec-.
ommendation to the Conventions as was provided for, I think, by
a resolution introduced, then either agreement will stand alone.
Mr. CALDWELL. I think it is a very wise suggestion.
Mr. PRICE. I can see no harm in making two.
JOURNAL OF THE JOINT COMMISSION.
911
Mr. PURCELL. There could be no objection to that part of
our report which the court would hold we had a right to make,
and, of course, if we exceeded our authority the court would hold
that part in excess of our authority to be illegal. So far as I am
concerned, I think we are a unit as to our power, to make that
agreement we have.
Mr. PURCELL. This agreement as to the records amounts
simply to a recommendation, and this is absolute.
Mr. CALDWELL. The disposition of the records-there is
no question about our having the power to do it and it has been
entirely within our power except recognizing the emergency of
those to be transcribed for immediate use.
Mr. CAMP. Yes, but our power in that respect is subject to
ratification by the States in some way.
Mr. CALDWELL. I think it would have to be in the Schedule
and Ordinance.
Mr. CAMP. Probably.
Mr. SCOTT. In accordance, say, with the agreement.
Mr. CAMP. I think so.
Mr. PRICE. I think our agreement is final.
Mr. SCOTT. I don't see how you come to that conclusion.
Mr. PURCELL. It says it shall be incorporated in and made
a part of the Constitution-as to the property and indebtedness.
Mr. CAMP. Now, it don't say in express terms as to records
unless it is by inference.
Mr. SCOTT. Then our power to dispose of the records can-
not be final, because it has got to be ratified by the people?
Mr. PURCELL. It does not have to be ratified separate and
apart from the Constitution; it becomes a part of it.
Mr. CALDWELL. The reason for the difference in treatment
prescribed for the disposition of the debts and liabilities, and
that prescribed for disposition of the records, arises from the fact
that interest of third parties comes in.
Mr. PURCELL. My idea would be, whatever report we make
with reference to the records be attached to that with reference to
the property, and that it be incorporated in the Constitution.
Mr. SCOTT. "I think the whole thing had better be incorpo-
rated.
Mr. CAMP. "But the archives, records and books shall remain
at Bismarck until an agreement in referencethere to is reached by
said States." Now, we have already adopted a resolution defining
912
JOURNAL OF THE JOINT COMMISSION.
}
our powers to be that we shall recommend an article to be
adopted by each State, which article, ratified by each State, will
be the act of the State in regard to the archives, records and
books. That agreement is to be--of ours-is to be offered to the
two Conventions for adoption as a part of the Constitution, but
this agreement we have already made will, as I understand it, form
no part of the Schedule of the Constitution of either State.
Mr. CALDWELL. Yes. It says, "And the agreement reached
respecting the Territorial debts and liabilities shall be incorpor-
ated in the respective Constitutions."
Mr. PURCELL. Not as a part of the Schedule.
Mr. CAMP. That the Schedule will state that this State agrees
to pay and assume that portion of the debt of the Territory of
Dakota as provided for by the Joint Commission.
Mr. CALDWELL. Of course it is just as binding as the Con-
stitution itself, the only difference being that it relates to tem-
porary matters, while the Constitution declares permanent prin-
ciples.
Mr. CAMP. I mean this agreement will not form any part of
the Constitution. The Ordinance will say this State assumes such
debts and liabilities, and your Constitution will say
Mr. CALDWELL. The identical language of this agreement
will be used.
Mr. CAMP. It might be they will use the identical language
of this article, that is to say, the State of North Dakota shall as-
sume
Mr. CALDWELL. "And the agreement reached respecting
the Territorial debts shall be incorporated in the Constitution.”
Mr. PURCELL. Every word of that agreement will have to
go into the Constitution.
Mr. CAMP. Are we to go on and incorporate this article as to
the property? Simply debts and liabilities of the Territory--
agreement reached respecting the debts and liabilities—
Mr. NEILL. What part of that would it be?
Mr. CAMP. This article.
Mr. SCOTT. Pretty hard to fix it.
Mr. CAMP. This Article No. 5 and Article No. 10.
Mr. SCOTT. We put that $42,500 of South Dakota
Mr. CAMP. That is not a debt of the Territory.
Mr. SCOTT. No, but an agreement respecting the debts of in-
dividual parties of the Territory.
1
JOURNAL OF THE JOINT COMMISSION.
913
Mr. NEILL. You make your suggestion as a motion and I
will second it.
Mr. CAMP. Then I will move that-I don't care to make that
motion myself but my suggestion was, when this agreement is
drawn up it be in form of an article to be recommended for
adoption by the two Conventions as part of the Ordinance re-
specting the archives, etc.
Mr. GRIGGS. Then you think the whole of that article should
be embraced?
Mr. CAMP. I mean as to archives and records.
Mr. PRICE. You see if it was incorporated in the main part
of that you have already drawn they could hardly fail to ratify it.
Mr. CAMP. We cannot force the Convention to do anything
the law don't allow.
Mr. KELLAM. A resolution was adopted here that when an
agreement was reached in reference to the records that it be re-
ported to the Conventions to be put in the Schedule of the respec-
tive Constitutions?
Mr. CAMP. I think so.
Mr. KELLAM. Why don't that dispose of that question so
far as the records are concerned?
Mr. CAMP. Except so far as the minds of the members of the
Commission seem to change from day to day.
Mr. KELLAM. We adopted a resolution that when we reach
an agreement it should be reported to the respective Conventions
to go into the Schedules of the Constitutions, and now we have
reached an agreement.
Mr. CAMP. Then your idea is, we draw an article for adop-
tion.
Mr. KELLAM. I had no other thought. Now, go right on,
make it and attach it right to the end of this part, not as an insep-
arable part, but as an independant part of this agreement. "And
this Commission being so assembled do make the following agree-
ment with reference to the records and archives of the Territory,"
and recommend that the same be by the respective Constitutional
Conventions incorporated in the Schedule of the Cinstitution and
submitted for ratification."
Mr. CAMP. That will be all right-that is exactly my idea.
Mr. KELLAM. Has any gentleman a different idea?
Mr. CALDWELL. It was my original idea that this agree-
914
JOURNAL OF THE JOINT COMMISSION.
ment in its entirety be incorporated in the Schedule and Ordi-
nance.
Mr. KELLAM. We have three distinct duties here that are en-
tirely independent, which are expected to be discharged by the
same Commission: First. We are to make disposition of the public
records. Second. We are to agree upon the amount of the
debts and liabilities of the Territory which shall be assumed by '
each of the proposed States of North and South Dakota. And
the agreement reached respecting the Territorial debts and liabil-
bilities shall be incorporated in the respective Constitutions.
Now, my idea is that the only thing that will go into and form a
part of the Constitution of each State under the provisions of
this Enabling Act, is the disposition we make of the debts and
liabilities of the Territory. Now, by virtue of the resolution we
have passed we report the agreement we have made with reference
to the records, and recommend to each Convention that it put it
in the Schedule of the Constitution to be voted upon by the
people.
Mr. PURCELL. What do you do with the division of the
property?
Mr. KELLAM. We only do that by virtue of the action of our
Commission, determined that when we reach an agreement it
should be referred to the Conventions for incorporation in the
Schedule of the Constitution. I don't think it is obligatory upon
us. So far as the disposition of the records is concerned we have
done all the Enabling Act sent us here to do. We have adopted
a resolution that when we reach an agreement we put it in the
Schedule of the Constitution.
Mr. CALDWELL. Do I understand your suggestion, that
your conception of our powers pertaining to public debts and
liabilities are to result in a section which shall be inserted that
shall be in lieu of No. 5? In this Constitution of 1885 that sec-
tion five is as follows: "Consent is given that Congress may make
such provision for the payment by this State of the existing in-
debtedness of the Territory of Dakota as it shall deem just and
equitable, and this State shall assume and pay so much thereof as
Congress may provide."
Mr. KELLAM. Without any deliberation I should say by Act
of Congress the Commission appointed by the respective Conven-
tions have met at Bismarck as therein provided, to adjust and
agree upon the amount of the debts and liabilities of the Terri-
{
JOURNAL OF THE JOINT COMMISSION.
915
tory which South Dakota should assume. Then follows the ar-
ticle that South Dakota assumes such and such of the Territorial
debt and obligates itself, as recited here, to pay the same.
Mr. PURCELL. Put in the Constitution?
Mr. KELLAM. Yes, that is the only thing the Enabling Act
suggests--to incorporate it in the Constitution.
Mr. CALDWELL. Then the provision in the South Dakota
Constitution could not be accepted as the counterpart.
Mr. KELLAM. No, sir; because North Dakota assumes such
and such indebtedness. North Dakota would put in her Con-
stitution a recital of the indebtedness she assumes, and South Da-
kota would put in its Constitution a recital of the Territorial
debts she assumes and undertakes to pay. By the terms of the
agreement, it is simply a recitation of what we would undertake
and assume, respectively, North Dakota and South Dakota, ac-
cording to the terms. It would be based upon the agreement
made here, and it is the only part of the agreement I understand
will go into the Constitution by virtue of the Enabling Act. We
have gone a step further to incorporate it in the Schedule of the
Constitution, the disposition we make of the public records; and I
would simply go on with this agreement and perhaps recite, "and
the said Commission being so assembled as before recited, do
hereby make the following agreement with reference to the pub-
lic records and archives of the Territory of Dakota, and recom-
mend that the same be incorporated in the Schedules of the re-
spective Constitutions." Then recite our agreement or recom-
mendation. This is a matter I have not deliberated upon, but it
is just the way it strikes me.
Mr. PURCELL. But you keep out what we have already passed
here, just those portions which refer to debts and liabilities.
Mr. KELLAM. Have you that all on one paper.
Mr. HARRIS. Mr. CHAIRMAN: Perhaps my head may be a
little thick, but I don't know what we have been doing, Here for
the past three weeks we have been trying to make disposition of
this property and these records. Still, technically, we may not
have the power, perhaps, under the Omnibus Bill to do this; but
it certainly does seem to me the intention of that bill was that we
should not only agree as to the debts and liabilities of each of
these States, but that we should make a disposition of these
records, and that we should submit it to our respective Constitu-
916
JOURNAL OF THE JOINT COMMISSION.
tional Conventions, and that it should be submitted to the people
and ratified by them.
Mr. KELLAM. Suppose we make an agreement as to the debts
and liabilities of this Territory which the Conventions did not
endorse. What would be the effect of it? Do you understand
these Conventions have got to adopt our report?
Mr. PURCELL.
Not as to the debts and liabilities.
Mr. SCOTT. They certainly have, without regard to debts and
liabilities.
Mr. KELLAM. They cannot change it in one particular.
Mr. SCOTT. They can refuse to put it in the Constitution.
Mr. CALDWELL. No, they can't refuse to put it in the
Constitution.
Mr. HARRIS. My proposition is that the agreement with
reference to this property, and records and archives should be put
in the Schedule to be voted on by the people.
Mr. PURCELL. That is what the Major says.
Mr. KELLAM. No, I think it should go in because we have
passed that resolution. I don't think we are under any obligations
to put any part of this agreement with reference to the distribu-
tion of the records into the Schedule of the Constitution. I think
we came here as a Joint Commission under the authority of Con-
gress of the United States, with power to do whatever is imposed
on us by this Enabling Act, and nobody can question but that we
have done that. Now, Mr. CAMP suggests that we should put this
agreement with reference to the disposition of the archives and
records into the Schedule of the Constitution. This has been
adopted and we are bound by it. I don't think there is any rea-
son why the disposition of the property we agree upon should go
in on the Constitution. That is, I don't think there is anything
in the Enabling Act that requires us to do it. I think Congress
has made our Commission to absolutely and finally determine
these matters. There is no appeal from the work of this Commis-
sion upon any of these questions.
Mr. HARRIS. To whom shall we report?
Mr. KELLAM. To the Constitutional Conventions.
There is
no supervisory power over the act of this Commission, it seems.
to me.
Mr. SCOTT. Your opinion and Mr. CAMP's differ. Mr. CAMP
thinks we have no power whatever to do anything with the re-
cords.
JOURNAL OF THE JOINT COMMISSION.
917
Mr. KELLAM. Just excuse me-I think Mr. CAMP's sugges-
tion was inspired by this fact; but he can state for himself. When
we commenced to regard the question there was a question arose
as to the extent of our power with the records. The prevailing
opinion seemed to be when this resolution was adopted that we
should provide for copying the entire records. There was a great
want of harmony in the Commission in regard to our power. Mr.
CAMP thought we exceeded our power, the power that is conferred
upon us by this Enabling Act if we copied these records; that we
needed to copy the records; and that in order to have what we did
indorsed by the people, it should be put in the Schedule. If there
is any question but what we had been fully authorized by the
Enabling Act to do just what we did, then I doubt whether Mr.
CAMP would think it best to put it in the Schedule. It seems to
me clear that so long as we confine ourselves within the power
given us by this Enabling Act, we are absolutely independent of
the Convention. We have not to answer to the Convention for
anything we do, but because there was a liability for our going
beyond what a strict construction of that statute would authorize
us to do he thought it best to recommend the adoption in the
Schedule of the Constitution.
Mr. CAMP. My idea was there was a good deal of a question
whether the action of this Commission with regard to the records.
are final. My idea had been perhaps the action of the Commis-
sion with regard to the records was not final. My idea being
based upon the language of section five, and in order to cover that
carefully I thought it would be well to have the agreement we
reached with reference to the records recommended to the Con-
ventions for adoption; and then, when the Constitutions were rati-
fied by the people, that agreement with respect to the records
would become the action of the two States and close up any ques-
tion of the power of the Commission. With regard to the pro-
perty of the Territory I don't see why our powers are not abso-
lute. We are to make an equitable division of the property, and
that it is not necessary to go into any Constitution or to be ratified
by any person.
Mr. KELLAM. I think so. There was some doubt as to just
how far the power of this Commission went over these records
without settling them by the action of the people. Now if your
Commission reports to your Convention the disposition you have
made with reference to the property of the Territory, as you sug-
918
JOURNAL OF THE JOINT COMMISSION.
!
gest, and they take a vote upon the adoption of that report, and
the vote is against the adoption of that, they cannot make another
Commission to make a different disposition. Their powers are
limited and the power of this Commission is exhausted.
Mr. SCOTT. We must report to somebody.
Mr. KELLAM. We must return to the Conventions because
the Convention needs part of it; they must incorporate so much
as they are required to make a part of the Constitution.
Mr. CAMP. We shall have to report and reccommend two ar-
ticles, under the resolution. Recommend an article for insertion
in the Schedule with regard to the Territorial debts and liabilities,
that is North Dakota's share of it, and one with regard to the
Territorial records.
Mr. KELLAM. Because our own acts require it.
Mr. PRICE. Then, of course, there can be no difference of
opinion. I understand you to say the Convention had nothing to
do with this. If this is true, to carry the argument a little further,
what need is there of reporting anything to the Convention. I
did not understand the last statement that this must be presented.
to the Convention and incorporated in the Constitution.
Mr. KELLAM. This Commission cannot submit a proposi-
tien to the people of North Dakota. The Convention must have
the material, and the material comes from this Commission.
Mr. PURCELL. There is no question but what the Enabling
Act requires us to make a report, and that it shall be incorpora-
ted in and form a part of the Constitution—that is, the debts and
liabilities, and division of the property.
Mr. CAMP. There is another question suggested to me,
whether it would not be well for us here as a Joint Commission, to
agree upon the two articles which we shall report to each Conven-
tion with regard to the Territorial debts and liabilities.
Mr. CALDWELL. That ought to be.
Mr. KELLAM. That of course would be very likely the proper
thing to do. At the same time the Convention may make its own
article.
Mr. CAMP. I suggest that Mr. CALDWELL and Mr. PURCELL
be a sub-committee to draf two articles which we shall agree upon-
two articles which we shall report, one to each Convention, with
regard to the Territorial debts and liabilities which the respective
States shall assume.
Mr. KELLAM. I think that is a very good suggestion. Gen-
JOURNAL OF THE JOINT COMMISSION.
919
tlemen, we shall consider it as a motion made and seconded. All
in favor of drafting the article which this Commission shall recom-
mend with reference to the debts and liabilities, will manifest by
saying aye. The motion is carried.
Mr. KELLAM. Now, gentlemen, what further?
Mr. NEILL. I move we adjourn until 9.30 o'clock.
Mr. PURCELL. What remains undone is the report with re-
ference to the records and property.
Mr. KELLAM. If any gentleman thinks of anything else, it
would be in justice to ourselves and the Stenographers to have
time to make good clean copies.
Mr. PURCELL. This report you have requested us to make;
would that be in type writer?
Mr. KELLAM. Just as you say, if you think you can write
legibly.
Mr. PRICE.
CALDWELL writes pretty good.
Mr. SCOTT. You say you only had in section five.
Mr. CAMP. No, sections five and ten.
Mr. SCOTT. We have an article that North Dakota and South
Dakota shall assume half of all the debts and liabilities
Mr. PURCELL. No, he referred to the Sioux Falls Constitu-
tion of 1885. As I understand it we will take that report, and
then we take such part as refers to the debts and liabilities.
Mr. CAMP. Frame two articles, one for North Dakota, one for
South Dakota.
Mr. KELLAM. Gentlemen, we have gone through the reports.
and made such changes in it as seemed to be necessary and desir-
able. Would it not be well to let the Stenographers commence at
once upon a copy of the agreement; going so far as this agree-
ment goes? Then we can make our agreement with reference to
the records and report at the first session to-morrow, and then,
after it is criticised and finally adopted, they can go on and add
that.
Mr. PURCELL. Your report not only includes the records,
but division of the property?
Mr. KELLAM. Yes.
Mr. CAMP. Then Mr. CALDWELL and Mr. PURCELL could take
the copy of the agreement.
Mr. KELLAM. They can take one copy and the Stenographers
the other.
920
JOURNAL OF THE JOINT COMMISSION.
Mr. CALDWELL. It would hardly be worth while, then, to
attempt to hold a session to-morrow forenoon.
Mr. SCOTT. Mr. CHAIRMAN: I move we adjourn until to-
morrow at 11 o'clock.
Mr. ELLIOTT. I second that motion.
Mr. KELLAM. Gentlemen, if there is no objection we under-
stand the Commission stands adjourned until 11 o'clock to-morrow
morning.
FIFTEENTH DAY.
BISMARCK, Wednesday, July 31, 1889.
Commission met at 11 o'clock, a. m.
As the Stenographers were still at work on the agreement an
informal meeting was had.
Mr. KELLAM introduced the following resolution:
Resolved, That when this Joint Commission adjourns it adjourn to meet
at the joint call of the Chairman of the respective committees composing this
Joint Commission, the time and place of such meeting to be determined by the
said chairmen and announced in the call.
Which resolution was carried unanimously.
The balance of the report of the Chairman as to phraseology
of the agreement was read, informally discussed and adopted arti-
cle by article, and the Commission adjourned to meet at 3:30
o'clock.
AFTERNOON SESSION.
The Commission met at 2:30 o'clock with Mr. CAMP in the
chair. All members present.
The final agreement as prepared by the Commission was sub-
mitted as follows:
WHEREAS, By an Act of Congress approved February 22, 1889, entitled "An
Act to provide for the division of Dakota into two States, and to enable the
people of North Dakota, South Dakota, Montana and Washington to form
JOURNAL OF THE JOINT COMMISSION.
921
Constitutions ond State governments, and to be admitted into the Union on an
equal footing with the original States, and to make donations of public lands
to such States," it was among other things provided that when the Constitu-
tional Convention for North Dakota and the Constitutional Convention for
South Dakota, which by said act were duly provided for and authorized, should
assemble and organize as in said act provided, it should become the duty of
said Conventions respectively to appoint a Joint Commission to be composed
of not less than three members of each Convention, whose duty it should be to
assemble at Bismarck, the present seat of government of said Territory, and
agree upon an equitable division of all property belonging to the Territory of
Dakota; the disposition of all public records, and also, to adjust and agree upon
the amount of the debts and liabilities of the Territory, which shall be assumed
and paid by each of the proposed States of North Dakota and South Dakota;
and,
WHEREAS, The said Constitutional Conventions of North Dakota and
South Dakota having been duly elected and assembled and organized in pur-
suance of and as provided in said act, did, as therein required and provided for
the purposes therein specefied, appoint a Joint Commission, consisting of not
less than three members of each Convention, to-wit:
E. W. CAMP, B. F. SPALDING, ALEX. GRIGGS, ANDREW SANDAGER, W. E.
PURCELL, HARVEY HARRIS and J. W. SCOTT appointed by the Convention of
North Dakota; and
A. G. KELLAM, V. T. MCGILLYCUDDY, HENRY NEILL, E. W. CALDWELL,
WILLIAM ELLIOTT, CHARLES H. PRICE and S. F. BROTT appointed by the Con-
vention of South Dakota; and,
WHEREAS, The said Joint Commission so appointed and composed having
duly assembled at Bismarck, as by said act provided, and being now and here
so assembled, and having as such Joint Commission duly and carefully con-
sidered the several matters which by said act are referred to them for disposi-
tion and agreement, do now adopt and confirm the following agreement, com-
pact and convention. That is to say:
I.
This agreement shall take effect and be in force from and after the admis-
sion into the Union as one of the United States of America, of either of the
State of North Dakota or the State of South Dakota.
II.
The words, "State of North Dakota." wherever used in this agreement,
shall be taken to mean the Territory of North Dakota in case the State of
South Dakota shall be admitted into the Union prior to the admission into the
Union of the State of North Dakota; and the words, "State of South Dakota,"
wherever used in this agreement, shall be taken to mean the Territory of South
Dakota in case the State of North Dakota shall be admitted into the Union
prior to the admission into the Union of the State of South Dakota.
III.
Upon the taking effect of this agreement all the right, title, claim and in-
terest of the Territory of Dakota in and to any public institutions, grounds or
buildings situate within the limits of the proposed State of North Dakota as
59
922
JOURNAL OF THE JOINT COMMISSION.
such limits are defined in said act of Congress, shall vest in said State of North
Dakota; and said State of North Dakota shall assume and pay all bonds issued
by the Territory of Dakota to provide funds for the purchase, construction, re-
pairs or maintenance of such public institutions, grounds or buildings, and
shall pay all warrants issued under and by virtue of that certain Act of the
Legislative Assembly of the Territory of Dakota, approved March 8, 1889, en-
titled "An Act to provide for the refunding of outstanding warrants drawn on
the Capitol Building Fund.”
IV.
Upon the taking effect of this agreement, all right, title, claim and interest
of the Territory of Dakota in and to any public institutions, grounds or build-
ings, situate within the limits of the proposed State of South Dakota, as de-
fined in said act of Congress, shall vest in said State of South Dakota. And
said State of South Dakota shall assume and pay all bonds issued by the Ter-
ritory of Dakota to provide funds for the purchase, construction, repairs or
maintenance of such public institutions, grounds or buildings.
V.
That is to say: The State of North Dakota shall assume and pay the fol-
lowing bonds and indebtedness, to-wit:
Bonds issued on account of the Hospital for Insane at Jamestown,
North Dakota, the face aggregate of which is……..
Bonds issued on account of the North Dakota University at Grand
$266,000 00
Forks, North Dakota, the face aggregate of which is.
Bonds issued on account of the Penitentiary at Bismarck, North
96,700 00
Dakota, the face aggregate of which is ....
93,600 00
Refunding Capitol Building Warrants dated April 1, 1889....
83,507 46
And the State of South Dakota shall assume and pay the following bonds
and indebtedness, to-wit:
Bonds issued on account of the Hospital for Insane at Yankton,
South Dakota, the face aggregate of which is.
Bonds issued on account of the School for Deaf Mutes at Sioux
•
210,000 00
Falls, South Dakota, the face aggregate of which is.....
Bonds issued on account of the University at Vermillion, South
Dakota, the face aggregate of which is..
51,000 00
75,000 00
Bonds issued on account of the Penitentiary at Sioux Falls, South
Dakota, the face aggregate of which is..
94,300 00
Bonds issued on account of the Agricultural College at Brookings,
South Dakota, the face aggregate of which is.
97,500 00
Bonds issned on account of the Normal School at Madison, South
Dakota, the face aggregate of which is.....
49,400 00
Bonds issued on account of the School of Mines at Rapid City,
South Dakota, the face aggregate of which is....
33,000 00
Bonds issued on account of the Reform School at Plankinton,
South Dakota, the face aggregate of which is.....
30,000 00
Bonds issued on account of the Normal School at Spearfish, South
Dakota, the face aggregate of which is......
25,000 00
JOURNAL OF THE JOINT COMMISSION.
923
•
Bonds issued on account of the Soldiers' Home at Hot Springs,
South Dakota, the face aggregate of which is...
VI.
45,000 00
Each State shall receive all unexpended balances of the proceeds of the
bonds which it so assumes, whether such balances have been covered back into
the treasury or not.
VII.
All furniture, fixtures, provisions, appurtenances and appliances, tools, im-
plements, and all movable property of the Territory of Dakota situate in or
used in connection with any of said public institutions, grounds or buildings
shall become and be the property of the State or Territory in which such
buildings or institutions may be situated, except as herein otherwise specifi-
cally provided.
VIII.
In case of loss in whole or part of any of the property of the Territory of
Dakota prior to the taking effect of this agreement the State in which such
property would have vested if the same had not been destroyed or in which
such property so injured shall vest, shall receive any sums payable upon poli-
cies of insurance issued upon such property; and if loss not covered by insur-
ance occurs on any of such property would vest on the taking effect of this
agreement.
IX.
Upon the taking effect of this agreement all unearned premiums of insur-
ance shall vest in the State or Territory in which the property insured thereby
shall vest.
X.
The States of North Dakota and South Dakota shall pay one-half each of
all liability now existing or hereafter and prior to the taking effect of this
agreement incurred, except those heretofore or hereafter incurred on account
of public institutions, grounds or buildings except as otherwise herein specifi-
cally providid.
XI.
Each of said States shall succeed to all rights of the Territory of Dakota
upon contracts for public works, within such State, or upon bonds given to
secure the performance of such contracts.
XII.
All other bonds issued prior to the taking effect of this agreement upon
which a cause of action shall prior, to the taking effect of this agreement accrue
to the Territory of Dakota shall be sued upon by the State of North Dakota,
and is hereby made the duty of the said State to sure thereon, and one-half of
the penalties or damages collected by said State thereon shall be paid over to
the other State, and the costs of such suit or collection shall be borne equally
by said States, save as may be necessary to apply such proceeds otherwise in
order to carry into effect the provisions of Article XXI of this agreement.
924
JOURNAL OF THE JOINT COMMISSION.
XIII.
The furniture, fixtures, appliances and appurtenances used in and about or
pertaining to the public offices of the Territory shall be the property of the
State within the proposed limits of which said offices are now kept.
XIV.
The Territorial Library, including such books and volumes as may be
added thereto prior to taking effect of this agreement, shall be the property of
the State of South Dakota.
XV.
One-half of all the copies of the Compiled Laws of the Territory of Da-
kota, Revised Codes and of all Session Laws, printed Journals of the House
and Council of the Legislative Assembly of the said Territory, and of other
printed reports of officers of the Territory (except those composing a part of
the said Library), remaining undistributed or undisposed of according to law
at the taking effect of this agreement, shall be delivered on demand to the
proper authorities of the State of South Dakota.
XVI.
All arms, ammunition, quartermaster's and ordnance stores distributed to,
and now in possession of militia companies of the Territory of Dakota shall
remain in their possession, and all the right, title and interest of the Territory
of Dakota in and to such arms, ammunition and stores shall vest in the State
in which the armories or headquarters of such companies shall be situated.
All 45-calibre rifles and ammunition of said calibre, stored in the Capitol, at
Bismarck, and all 45-calibre rifles heretofore issued to Company "F", First
Regiment, at Bismarck, shall be the property of North Dakota.
XVII.
All other arms, ammunition, quartermaster's and ordnance stores shall be
equally divided between the States of South Dakota and North Dakota.
XVIII.
All other items of personal and miscellaneous effects belonging to the
Territory, except the Territorial Library, and the Territorial Records and
archives shall be divided as nearly equally as possible between North and South
Dakota
XIX.
The State of South Dakota shall pay to the State of North Dakota,
$46,500.00 on account of the excess of Territorial appropriations for the perma-
nent improvement of the Territorial institutions, which under this agreement
will go to South Dakota, and in full of the undivided one-half interest of North
Dakota in the Territorial Library, and in full settlement of unbalanced ac-
counts, and of all claims against the Territory of whatever nature, legal or
equitable, arising out of the alleged erroneous or unlawful taxation of Northern
Pacific Railroad land, and the payment of said amounts shall discharge and
exempt the State of South Dakota from all liability for or on account of the
several matters heretofore to, nor shall either State be called upon to pay or
JOURNAL OF THE JOINT COMMISSION.
925
answer to any portion of liability hereafter arising or accruing on account of
the transactions heretofore had, which liability would be a liability of the Ter-
ritory of Dakota, had such territory remained in existence, and which liability
shall grow out of matters connected with any public institution, grounds or
buildings of the Territory situated or located within the boundaries of the
other State.
XX.
Neither State shall pay any portion of liability of the Territory arising out
of erroneous taxation of property situated in the other State.
XXI.
A final adjustment of accounts shall be made on the following basis: North
Dakota shall be charged with all sums paid on account of the public institu-
tions, grounds or buildings located within its boundaries on account of the
current appropriations since March 8, 1889, and South Dakota shall be charged
with all sums paid on account of public institutions, grounds or buildings lo-
cated within its boundaries on the same account and during the same time.
Each State shall be charged with one-half of all other expenses of the Terri-
torial government during the same time. All moneys paid into the Treasury
during the period from March 8, 1889, to the time of taking effect of this agree-
ment by any county, municipality or person within the limits of the proposed
State of North Dakota shall be credited to North Dakota; and all such sums
paid into such Treasury within the same time by any county, municipality or
person within the limits of the proposed State of South Dakota shall be cred-
ited to the State of South Dakota; except that any and all taxes on gross earn-
ings paid into said Treasury by railroad corporations since the 8th day of
March, 1889, based upon the earnings of years prior to 1888, under and by
virtue of the act of the Legislative Assembly of the Territory of Dakota, ap-
proved March 7, 1889, aud entitled "An Act providing for the levy and collec-
tion of taxes upon the property of railroad companies in this Territory," being
Chapter 107 of the Session Laws of 1889 (that is, the part of such sum going to the
Territory), shall be equally divided between the States of North Dakota and South
Dakota, and all taxes heretofore or hereafter paid into the Treasury under and by
virtue of the act last mentioned, based on the gross earnings of the year 1888
shall be distributed as already provided by law, except that so much thereof as
goes to the Territorial Treasury shall be divided as follows: North Dakota
shall have so much thereof as shall be or have been paid by railroads within
the limits of the proposed State of North Dakota, and South Dakota so much
thereof as shall be or has been paid by the railroads within the limits of the
proposed State of South Dakota. Each State shall be credited, also with all
balances of appropriations made by the Seventeenth Legislative Assembly of
the Territory of Dakota, for the account of the public institutions, grounds or
buildings located within its limits remaining unexpended on March 8, 1889. If
there shall be any indebtedness except the indebtedness represented by the
bonds and refunding warrants herein before mentioned, each State shall at the
time of such final adjustment of accounts, assume its share of said indebted-
ness as determined by the amount paid on account of the public institutions,
grounds or buildings of such State in excess of the receipts from counties,
926
JOURNAL OF THE JOINT COMMISSION.
municipalities, railroad corporations or persons within the limits of said State
as provided in this article; and if there shall be a surplus at the time of such
final adjustment each State shall be entitled to the amount received from
counties, municipalities, railroad corporations or persons within its limits, over
and above the amount charged to it.
XXII.
The payment from South Dakota to North Dakota shall be made by South
Dakota's assuming North Dakota's share of current liabilities at the time of
final adjustment, to the extent of South Dakota's indebtedness under this
agreement, to North Dakota; and if any balance shall remain due to North
Dakota from South Dakota, payment of said balance shall be provided for by
the first Legislature of South Dakota.
XXIII.
Upon the taking effect of this agreement all claims for taxes due the Ter-
ritory of Dakota shall become the propery of and may be collected by the
State or Territory within the limits whereof the counties are situated, against
which such taxes stand-charged upon the Territorial Treasurer's books.
But this article shall not be held to refer to or govern the disposal of any
taxes to be paid by railroad corporations which are specifically provided for by
Article XXI hereof.
XXIV.
All other claims and demands of the Territory of Dakota outstanding
when this agreement shall take effect, the collection whereof is not herein before
provided for, shall be sued upon and collected by the State of South Dakota,
and the costs of suits so brought and the amounts collected shall be divided
equally between the two States of North and South Dakota.
And said Commission so assembled and acting under and by virtue of the
authority upon it by said act of Congress conferred, further agress as follows:
I.
The following books, records and archives of the Territory of Dakota shall
be the property of North Dakota to-wit: All records, books and archives in
the office of the Governor and Secretary of the Territory (except records of
articles of incorporation of domestic corporations, returns of elections of del-
egates to the Constitutional Convention of 1889 for South Dakota, returns of
elections held under the so-called Local Option Law in counties within the
limits of South Dakota, bonds of Notaries Public appointed for counties with-
in the limits of South Dakota, papers relating to the organization of counties
situated within the limits of South Dakota, all of which records and archives.
are a part of the records and archives of said secretary's office; excepting, also,
census returns from counties situated within the limits of South Dakota and
papers relating to requisitions issued upon the application of officers of coun-
ties situated within the limits of South Dakota, all of which are a part of the
records and archives of said Governor's office.) And the following records,,
books and archives shall also be the property of the State of North Dakota
to-wit:
JOURNAL OF THE JOINT COMMISSION.
927
Vouchers in the office or in the custody of the Auditor of this Territory
relating to the expenditures on account of the public institutions, grounds or
buildings situated within the limits of North Dakota. One Warrant Register
in the office of the Treasurer of this Territory-being a record of warrants
issued under and be virtue of chapter twenty-four of the laws enacted by the
Eighteenth Legislative Assembly of Dakota Territory. All letters, receipts and
vouchers in the same office now filed by counties and pertaining to counties
within the limits of North Dakota. Paid and canceled coupons in the same
office representing interest on bonds, which said State of North Dakota is to
assume and pay. Reports of gross earnings of the year 1888 in the same office,
made by corporations operating lines of railroads situated wholly or mainly
within the limits of North Dakota. Records and papers of the office of Public
Examiner of the Second District of the Territory. Records and papers of the
office of the District Board of Agriculture. Records and papers in the office of
the Board of Pharmacy of the District of North Dakota.
All records, books and archives of the Territory of Dakota which it is not
herein agreed shall be the property of North Dakota, shall be the property of
South Dakota.
The following books shall be copied and the copies shall be the property
of North Dakota, and the cost of such copies shall be borne equally by said
States of North Dakota and South Dakota. That is to say:
:
Appropriation Ledger for the years ending November 1888-89-one volume.
The Current Warrant Auditor's Register-one volume.
Insurance Record for 1889-one volume.
Treasurer's Cash Book-"D."
Assessment Ledger-"B.”
Dakota Territory Bond Register-one volume.
Treasurer's Current Ledger-one volume.
The originals of the foregoing volumes which are to be copied shall, at any
time after such copying shall have been completed, be delivered on demand to
the proper authorities of the State of South Dakota.
All other records, books and archives which it is hereby agreed shall be
the property of South Dakota, shall remain at the Capitol of North Dakota
until demanded by the Legislature of the State of South Dakota, and until
the State of North Dakota shall have had a reasonable time after such demand
is made, to provide copies or abstracts of such portions thereof as the said
State of North Dakota may desire to have copies or abstracts of.
The State of South Dakota may also provide copies of abstracts of such
records, books and archives which it is agreed shall be the property of North
Dakota as said State of South Dakota shall desire to have copies or ab-
stracts of.
The expense of all copies or abstracts of records, books and archives which
it is herein agreed may be made, shall be borne equally by said two States.
II.
And this Commission further agrees that the two committees composing
the same shall recommend to their respective Conventions for adoption as a
part of the Schedule of the proposed Constitution for the State of North Da-
928
JOURNAL OF THE JOINT COMMISSION.
F
kota and the State of South Dakota, respectively, the following: That is to
say:
"The agreement made by the Joint Commission of the Constitutional
Conventions of North and South Dakota is hereby ratified and confirmed,
which agreement is in the words following: (And then shall follow the words
of the article last above written.)
"In testimony and confirmation whereof, the said Joint Commission now
assembled and acting as such, has caused this agreement to be signed and exe-
cuted by and on its behalf and as its act and deed, and witnessed by the names
hereto by each subscribed of the members comprising said Joint Commission
as herein before recited.
"Done at Bismarck, Dakota, this 31st day of July, A. D. 1889.”
Mr. CAMP. The agreement prepared by the Commission is
submitted and examined, and a motion to adopt it will be in
order.
Mr. CALDWELL. I move the adoption of the agreement as
now prepared and examined.
Mr. ELLIOT. I second the motion.
Mr. CAMP. You have heard the motion-are there any re-
marks? The Clerk will call the roll.
All members voted in the affirmative.
Mr. CAMP. The motion is unanimously adopted.
Mr. KELLAM. I move, the agreement having been formally
adopted, that the members of the Commission now sign the same.
Mr. PRICE. I second the motion.
Mr. CAMP.
You have heard the motion; if there are no ob-
jections the Clerk will call the roll.
All members voted in the affirmative.
And thereupon said agreement was proplerly signed in duplicate
by all the members of said Commission.
Mr. SPALDING. I wish to apologize to the Commission, es-
pecially to the North Dakota Commission. I have been unable
by reason of sickness to perform my share of the labor during the
last ten days.
Mr. CAMP. I don't think sickness needs any apology, Mr.
SPALDING, surely. I rather think that you performed your share
of the labors.
Mr. CAMP. There is another matter and that is the reading of
the Journal and approval of the report of the committee appointed
to draw up an article on the Territorial debts and liabilities.
The following report was then read by Mr. HARDEN and Mr.
MCCLARREN:
JOURNAL OF THE JOINT COMMISSION.
929
¿
ARTICLE
TERRITORIAL DEBTS AND LIABILITIES.
SECTION 1. In order that payment of the debts and liabilities contracted
or incurred by and in behalf of the Territory of Dakota may be justly and
equitably provided for and made, and in pursuance of the requirements of an
act of Congress approved February 22, 1889, entitled "An Act to provide for
the division of Dakota into two states and to enable the people of North
Dakota, South Dakota, Montana and Washington to form constitutions and
state governments and to be admitted into the Union on an equal footing with
the original states, and to make donations of public lands to such states," the
States of North Dakota and South Dakota, by proceedings of a Joint Commis-
sion, duly appointed under said act, the sessions whereof were held in Bis-
marck, in said State of North Dakota, from July 16, 1889, to July 31, 1889, in-
clusive, have agreed to the following adjustment of the amounts of the debts
and liabilities of the Territory of Dakota, which shall be assumed and paid by
each of the States of North Dakota and South Dakota, respectively, to-wit:
1. This agreement shall take effect and be in force from and after the ad-
mission into the Union as one of the United States of America, of either the
State of North or the State of South Dakota.
2. The words "State of North Dakota," wherever used in this agreement
snall be taken to mean the Territory of North Dakota in case the State of
South Dakota shall be admitted into the Uniou prior to the admission into the
Union of the State of North Dakota; and the words "State of South Dakota,”
wherever used in this agreement, shall be taken to mean the Territory of South
Dakota in case the State of North Dakota shall be admitled into the Union
prior to the admission into the Union of the State of South Dakota.
SEC. 2. The said State of North Dakota shall assume and pay all bonds is-
sued by the Territory of Dakota to provide funds for the purchase, construc-
tion, repairs or maintenance of such public institutions, grounds or buildings
as are located within the boundaries of North Dakota, and shall pay all war-
rants issued under and by virtue of that certain act of the Legislative Assem-
bly of the Territory of Dakota, approved March 3, 1889, entitled "An Act to
provide for refunding of outstanding warrants drawn on the Capitol Building
Fund."
SEC. 3. The said State of South Dakota shall assume and pay all bonds
issued by the Territory of Dakota to provide funds for the purchase, construc-
tion, repairs or maintenance of such public institutions, grounds or buildings
as are located within the boundaries of South Dakota.
SEC. 4. That is to say: The State of North Dakota shall assume and pay
the following bonds and indebtedness, to-wit:
Bonds issued on account of the Hospital for Insane at Jamestown, North
Dakota, the face aggregate of which is $266,000; also, bonds issued on account
of the North Dakota University at Grand Forks, North Dakota, the face ag-
gregate of which is $96,700; also, bonds issued on account of the Penitentiary
at Bismarck, North Dakota, the face aggregate of which is $93,600; also, re-
funding Capitol Building warrants dated April 1, 1889, $83,507.46.
And the State of South Dakota shall assume and pay the following bonds
and indebtedness, to-wit:
930
JOURNAL OF THE JOINT COMMISSION.
Bonds issued on account of the Hospital for the Insane at Yankton, South
Dakota, the face aggregate of which is $210,000; also, bonds issued on account
of the School for Deaf Mutes at Sioux Falls, South Dakota, the face aggregate
of which is $51,000; also, bonds issued on account of the University at Vermil-
lion, South Dakota, the face aggregate of which is $75,000; also, bonds issued
on account of the Penitentiary at Sioux Falls, South Dakota, the face aggre-
gate of which is $94,000; also, bonds issued on account of the Agricultural Col-
lege at Brookings, South Dakota, the face aggregate of which is $97,500; also,
bonds issued on account of the Normal School at Madison, South Dakota, the
face aggregate of which is $49,400; also, bonds issued on account of the School
of Mines at Rapid City, South Dakota, the face aggregate of which is $33,000;
also, bonds issued on account of the Reform School at Plankinton, South Da-
kota, the face aggregate of which is $30,000; also, bonds issued on account of
the Normal School at Spearfish, South Dakota, the face aggregate of which is
$25,000; also, bonds issued on account of the Soldiers' Home at Hot Springs,
South Dakota, the face aggregate of which is $45,000,
SEC. 5. The States of North Dakota and South Dakota shall pay one-half
each of all liabilities now existing or hereafter and prior to the taking effect of
this agreement incurred, except those heretofore or hereafter incurred on ac-
count of public institutions, grounds or buildings, except as otherwise herein
specifically provided.
SEC. 6. The State of South Dakota shall pay to the State of North Dakota
$46,500, on account of the excess of Territorial appropriations for the perma-
nent improvement of Territorial institutions which under this agreement will
go to South Dakota, and in full of the undivided one-half interest of North
Dakota in the Territorial Library, and in full settlement of unbalanced ac-
counts and of all claims against the Territory of whatever nature, legal or
equitable, arising out of the alleged erroneous or unlawful taxation of Northern
Pacific railroad lands; and the payment of such amount shall discharge and
exempt the State of South Dakota from all liability for or on account of the
several matters hereinbefore referred to; nor shall either state be called upon
to answer to any portion of liability hereafter arising or accruing on account
of transactions heretofore had, which liability would be a liability of the
Territory of Dakota had such a territory remained in existence, and which lia-
bility shall grow out of matters connected with any public institution, grounds
or buildings of the Territory situated or located within the boundaries of the
orther State.
SEC. 7. A final adjustment of accounts shall be made upon the following
basis: North Dakota shall be charged with all sums paid on account of the
public institutions, grounds or buildings located within its boundaries on ac-
count of the current appropriations since March 8, 1889; and South Dakota
shall be charged with all sums paid on account of public institutions, grounds
or buildings located within its boundaries on the same account and during the
same time. All moneys paid into the treasury during the period from March
8, 1889, to the time of taking effect of this agreement by any county, municipal-
ity or person within the limits of the proposed State of North Dakota shall be
credited to the State of North Dakota; and all sums paid into said treasury
within the same time by any county, municipality or person within the limits
of the proposed State of South Dakota shall be credited to the State of South
JOURNAL OF THE JOINT COMMISSION.
931
Dakota; except that any and all taxes on gross earnings paid into said treasury
by railroad corporations since the 8th day of March, 1889, based upon earnings
of years prior to 1888, under and by virtue of the Act of the Legislative Assem-
bly of the Territory of Dakota, approved March 7, 1889, and entitled "An Act
providing for the levy and collection of taxes upon property of railroad com-
panies in this Territory," being Chapter 107 of the Session Laws of 1889 (that
is, the part of such sum going tn the Territory), shall be equally divided
between the States of North Dakota and South Dakota; and all
taxes heretofore or hereafter paid into the said treasury under
and by virtue of the act last mentioned, based on the gross
earnings of the year 1888, shall be distributed as already provided by law, ex-
cept that so much thereof as goes to the Territorial Treasury shall be divided
as follows: North Dakota shall have so much thereof as shall be or has been
paid by railroads within the limits of the proposed State of North Dakota, and
South Dakota so much thereof as shall be or has been paid by railroads within
the limits of the proposed State of South Dakota; each State shall be credited
also with all balances of appropriations made by the Seventeenth Legislative
Assembly of the Territory of Dakota for the account of the public institutions,
grounds or buildings situated within its limits, remaining unexpended on
March 8,1889. If there shall be any indebtedness except the indebtedness
represented by the bonds and refunding warrants hereinafter mentioned, each
State shall at the time of such final adjustment of accounts, assume its share
of said indebtedness as determined by the amount paid on account of the pub-
lic institutions, grounds or buildings of such State in excess of the receipts
from counties, municipalities, railroad corporations or persons within the limits
of said State as provided in this article; and if there should be a surplus at
the time of such final adjustment, each State shall be entitled to the amounts
received from counties, municipalities, railroad corporations or persons within
its limits, over and above the amount charged to it.
IN WITNESS WHEREOF, The members of said Joint Commission have sub-
scribed thereto, this thirty-first day of July, A. D. 1889, at Bismarck, Dakota.
SEC. 2. And the State of North Dakota hereby obligates itself to pay
such part of the debts and liabilities of the Territory of Dakota as is declared
by the foregoing agreement to be its proportion thereof, the same as if such
proportion had been originally created by said State of North Dakota as its
own debt or liability.
SEC. 2. And the State of South Dakota hereby obligates itself to pay such
part of the debts and liabilities of the Territory of Dakota as is declared by the
foregoing agreement to be its proportion thereof, the same as if such proportion
had been originally created by said State of South Dakota as its own debt or
liability.
Mr. CAMP. The question is, gentlemen, upon the adoption of
the report of the committee appointed to draw up an article con-
cerning the debts and liabilities of the Territory of Dakota, which
this Commission recommends the Conventions to incorporate
into the Constitutions. Are you ready for the question?
Question. Question!
932
JOURNAL OF THE JOINT COMMISSION.
*
Mr. CAMP. Call the roll.
All members vosed in the affirmative.
Mr. CAMP. Well, a motion to adjourn is in order.
Mr. GRIGGS. I move we adjourn to meet at the Sheridan
House at 9 o'clock to night.
Mr. KELLAM.
9 o'clock tonight.
I second Mr. GRIGGS' motion to adjourn to
Mr. GRIGGS. I move to adjourn to meet at the Sheridan
House tonight at 9 o'clock.
Mr. CAMP. You have heard the motion, gentlemen; all in
favor of the motion say aye. The motion is carried.
EVENING SESSION.
The Commission met at 9:15 p. m. in the parlors of the Sheri-
dan House, pursuant to adjournment.
Mr. CAMP. Gentlemen of the Commission, please come to
order. The Clerk will call the roll. All members were present.
Mr. CAMP. Gentlemen, the only business before the Commis-
sion, I suppose, is the report of the committee upon the separate
article to be recommended for adoption, for adoption in each of
the Constitutions.
Mr. CALDWELL. That has been adopted this afternoon.
Mr. NEILL. I move the committee sign the recommendation
of the committee.
Mr. ELLIOTT. I second the motion.
Mr. CAMP. You have heard the motion, if there are no re-
marks the Clerk will call the roll.
All members voted in the affirmative.
The article is now signed by the members.
Mr. CAMP. Gentlemen, I don't know as there is anything but
to approve the Journal when it is read,
Mr. CALDWELL. Mr. CHAIRMAN: I desire to introduce the
following resolution, and I will read it:
Resolved, That the Thanks of this Joint Commission be and they are
hereby extended to the Chairmen of the respective committees, Mr. CAMP and
Mr. KELLAM, for their admirable execution of the duties imposed on them; and
particularly for their labors in the preparation of the final agreement between
the two States.
Resolved, That thanks are likewise extended to the. Clerks and Stenog-
raphers of the Commission for the manner in which their duties have been per-
formed.
JOURNAL OF THE JOINT COMMISSION.
933
As this is a matter in which the present Chairman may feel
some delicacy in presenting it to the Commission, I would assume
the temporary chairmanship.
Mr. NEILL. I move the adoption of the resolution.
Mr. ELLIOTT. I second the motion.
Mr. BROTT. Have a rising vote.
Mr. CALDWELL. Are there any remarks.
It is unanimously adopted.
Mr. KELLAM.
Gentlemen, you can consider my hat off.
Mr. CAMP. Gentlemen, I thank you heartily for the kind res-
olution you have passed.
Mr. CALDWELL. Mr. CHAILMAN: I desire, also, an expres-
sion of thanks by this Commission to Governor MELLETTE for the
use of his rooms for the meetings of the Commission.
Mr. ELLIOTT. I second the motion.
Mr. CAMP. You have heard the motion, gentlemen. If there
are no remarks, all in favor say aye. Unanimously adopted, and
I hope the Clerk will make proper record that can be presented
to the Governor.
Mr. SCOTT. I think it would be eminently proper on this oc-
casion for the North Dakota Commission to express the sentiments
which they feel towards the gentlemen of the South in regard to
their behavior in the city. For myself, the relations which have
existed between the gentlemen and myself, during the whole time
we have been connected in the work, have been of the most pleas-
ant nature; and the gentlemen of the South have certainly shown
a desire to get at the bottom of the matter and arrive at a settle-
ment with a spirit of fairness which we all admire. And for that
reason I would move that a resolution expressing these sentiments
be passed by the North Dakota Commission.
Mr. GRIGGS. I second the motion.
Mr. CAMP. Gentlemen, it has been moved that the Committee
of North Dakota express their appreciation of the manner in
which they have been met by the South Dakota Commission, and
I think it would be proper to drink to the Committee of South
Dakota; "Here's to the Committee of South Dakota.”
Mr. KELLAM. I appoint Mr. PRICE to speak for South
Dakota.
Mr. PRICE. GENTLEMEN OF THE JOINT COMMISSION: We
stand to-night upon an eminence that at least (of course you ex-
pect fireworks in this); I was about to say that we stand tonight
934
JOURNAL OF THE JOINT COMMISSION.
upon an eminence and overlooking about two weeks of toil. (That's
pretty good.) We have been working in behalf of a great Terri-
tory which, by the action of this Joint Commission, is soon to
stand as two imperial States of the greatest republic on earth.
And in behalf of the Joint Commission of South Dakota I want
to say to you, gentlemen of the North, from whom we are about
to separate, that, did we not live in a land where every woman is
a queen and every man a king, and did we possess the power I
would be glad to place a coronet upon the brow of every citizen
of the empire State of North Dakota. [Cheers.] When we left our
home with the Commission of the South Dakota Constitutional Con-
vention, we accepted the trust with feelings of embarrassment, per-
haps. This was true of myself because I was unacquainted with
the gentleman of the North, and we recognized the important
trust which had been confided to our care. But, looking over this
three weeks of toil I can truthfully say, and I express the senti-
ments of every member of the Commission from South Dakota,
that three weeks were never spent more pleasantly or more harmon-
iously. You have demonstrated, gentlemen of the North, that you
are business men, and I congratulate you and the citizens of North
Dakota, and those of South Dakota as well, upon the settlement
which has been made by this Joint Commission. It is honorable,
alike to North Dakota and South Dakota, and I believe it will be
indorsed by the people of both sections of this great Territory.
Gentlemen, I thank you. [Cheers.]
Mr. CALDWELL. Mr. PRESIDENT: In pursuance of the re-
marks which have been made by Mr. PRICE, I would move to the
members of the Commission from South Dakota, that they by a
rising vote set our seals upon the sentiments which he has ex-
pressed.
Mr. NEILL. I second the motion.
Mr. KELLAM. Gentlemen, you have heard the motion ex-
pressed by Mr. CALDWELL. As many as are of the opinion the
motion should prevail will rise.
All members arose.
Mr. CAMP. Gentlemen, perhaps if it is agreeable, we can inter-
rupt this and proceed with the business. I would ask Mr. Mc-
CLARREN to read the Journal.
Mr. McCLARREN then read the Journal of the afternoon's ses-
sion, which was corrected.
JOURNAL OF THE JOINT COMMISSION.
935
Mr. SCOTT. I move the Journal as read and corrected be ap-
proved.
Mr. CALDWELL. I second the motion.
Mr. CAMP. You have heard the motion; all in favor of the
motion say aye. It is unanimously adopted.
Mr. CALDWELL. I move this Commission stand adjourned
subject to the call of the Chairman.
Seconded.
Mr. CAMP. You have heard the motion; all in favor of the
motion say aye. The motion is unanimously carried, and
The Commission stands adjourned.
Constitution of North Dakota-1889.
Constitution of North Dakota-1889.
PREAMBLE.
We, the people of North Dakota, grateful to Almighty God for
the blessings of civil and religious liberty, do ordain and establish
this Constitution.
ARTICLE I.
DECLARATION OF RIGHTS.
SECTION 1. All men are by nature equally free and indepen-
dent and have certain inalienable rights, among which are those
of enjoying and defending life and liberty; acquiring, possessing
and protecting property and reputation; and pursuing and obtain-
ing safety and happiness.
SEC. 2. All political power is inherent in the people. Govern-
ment is instituted for the protection, security and benefit of the
people, and they have a right to alter or reform the same when-
ever the public good may require.
SEC. 3. The State of North Dakota is an inseparable part of
the American Union and the Constitution of the United States is
the supreme law of the land.
SEC. 4. The free excercise and enjoyment of religious profes-
sion and worship, without discrimination or preference shall be
forever guaranteed in this State, and no person shall be rendered
incompetent to be a witness or juror on account of his opinion on
matters of religious belief; but the liberty of conscience hereby
secured shall not be so construed as to excuse acts of licentious-
ness, or justify practices inconsistent with the peace or safety of
this State.
SEC. 5. The privilege of the writ of habeas corpus shall not be
suspended unless, when in case of rebellion or invasion, the pub-
lic safety may require.
SEC. 6. All persons shall be bailable by sufficient sureties, un-
less for capital offiences when the proof is evident or the presump-
tion great. Excessive bail shall not be required, nor excessive
fines imposed, nor shall cruel or unusual punishments be inflicted.
iv
THE CONSTITUTION.
Witnesses shall not be unreasonably detained, nor be confined in
any room where criminals are actually imprisoned.
SEC. 7. The right of trial by jury shall be secured to all, and
remain inviolate; but a jury in civil cases, in courts not of record
may consist of less than twelve men, as may be prescribed by law.
SEC. 8. Until otherwise provided by law, no person shall, for a
felony, be proceeded againt criminally, otherwise than by indict-
ment, except in cases arising in the land or naval forces, or in the
militia when in actual service in time of war or public danger.
In all other cases, offences shall be prosecuted criminally by in-
dictment or information. The Legislative Assembly may change,
regulate or abolish the grand jury system.
SEC. 9. Every man may freely write, speak and publish his
opinions on all subjects, being responsible for the abuse of that
privilege. In all civil and criminal trials for libel the truth may
be given in evidence, and shall be a sufficient defense when the
matter is published with good motives and for justifiable ends;
and the jury shall have the same power of giving a general verdict
as in other cases; and in all indictments on informations for libels
the jury shall have the right to determine the law and the facts
under the direction of the court as in other cases.
SEC. 10. The citizens have a right, in a peaceable manner, to
assemble together for the common good, and to apply to those
invested with the powers of government for the redress of griev-
ances, or for other proper purposes, by petition, address or re-
monstrance.
SEC. 11. All laws of a general nature shall have a uniform
operation.
SEC. 12. The military shall be subordinate to the civil power.
No standing army shall be maintained by this State in time of
peace, and no soldiers shall, in time of peace, be quartered in any
house without the consent of the owner; nor in time of war, ex-
cept in the manner prescribed by law.
SEC. 13. In criminal prosecutions in any court whatever, the
party accused shall have the right to a speedy and public trial;
to have the process of the court to compel the attendance of wit-
nesses in his behalf; and to appear and defend in person and with
counsel. No person shall be twice put in jeopardy for the same
offense, nor be compeiled in any criminal case to be a witness
against himself, nor be deprived of life, liberty or property with-
out due process of law.
SEC. 14. Private property shall not be taken or damaged for
public use without just compensation having been first made to,
or paid into court for the owner, and no right of way shall be ap-
propriated to the use of any corporation, other than municipal,
until full compensation therefor be first made in money or ascer-
THE CONSTITUTION.
tained and paid into court for the owner, irrespective of any
benefit from any improvement proposed by such corporation,
which compensation shall be ascertained by a jury, unless a jury
be waived.
SEC. 15. No person shall be imprisoned for debt unless upon
refusal to deliver up his estate for the benefit of his creditors, in
such manner as shall be prescribed by law; or in cases of tort:
or where there is strong presumption of fraud.
SEC. 16. No bill of attainder, ex post fucto law, or law impair-
ing the obligations of contracts shall ever be passed.
SEC. 17. Neither slavery nor involuntary servitude, unless for
the punishment of crime, shall ever be tolerated in this state.
SEC. 18. The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and
seizures, shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation, particu-
larly describing the place to be searched and the persons and
things to be seized.
SEC. 19. Treason against the State shall consist only in levy-
ing war against it, adhering to its enemies or giving them aid and
comfort. No person shall be convicted of treason unless on the
evidence of two witnesses to the same overt act, or confession in
open court.
SEC. 20. No special privileges or immunities shall ever be
granted which may not be altered, revoked or repealed by the
Legislative Assembly; nor shall any citizen or class of citizens be
granted privileges or immunities which upon the same terms
shall not be granted to all citizens.
SEC. 21. The provisions of this Constitution are mandatory
and prohibitory unless, by express words, they are declared to be
otherwise.
SEC. 22. All courts shall be open, and every man for any in-
jury done him in his lands, goods, person or reputation shall have
remedy by due process of law, and right and justice administered
without sale, denial or delay. Suits may be brought against the
State in such manner, in such courts, and in such cases, as the
Legislative Assembly may, by law, direct.
SEC. 23. Every citizen of this State shall be free to obtain
employment wherever possible, and any person, corporation or
agent thereof, maliciously interfering or hindering in any way,
any citizen from obtaining or enjoying employment already ob-
tained, from any other corporation or person, shall be deemed
guilty of a misdemeanor.
SEC. 24. To guard against transgressions of the high powers
which we have delegated, we declare that everything in this article
vi
THE CONSTITUTION.
is excepted out of the general powers of government and shall
forever remain inviolate.
ARTICLE II.
THE LEGISLATIVE DEPARTMENT.
SEC. 25. The Legislative power shall be vested in a Senate
and House of Representatives.
SEC. 26. The Senate shall be composed of not less than thirty,
nor more than fifty members.
SEC. 27. Senators shall be elected for the term of four years.
except as hereinafter provided.
SEC. 28. No person shall be a senator who is not a qualified
elector in the district in which he may be chosen, and who shall
not have attained the age of twenty-five years, and have been a
resident of the State or Territory for two years next preceding
his election.
SEC. 29. The Legislative Assembly shall fix the number of
Senators, and divide the State into as many senatorial districts as
there are senators, which districts as nearly as may be, shall be
equal to each other in the number of inhabitants entitled to rep-
resentation. Each district shall be entitled to one Senator and no
more, and shall be composed of compact and contiguous territory;
and no portion of any county shall be attached to any other county,
or part thereof, so as to form a district. The districts as thus
ascertained and determined shall continue until changed by law.
SEC. 30. The senatorial districts shall be numbered consecu-
tively from one upwards, according to the number of districts
prescribed, and the Senators shall be divided into two classes.
Those elected in the districts designated by even numbers shall
constitute one class, and those elected in districts designated by
odd numbers shall constitute the other class. The Senators of
one class, elected in the year 1890, shall hold their office for two
years, those of the other class shall hold their office four years,
and the determination of the two classes shall be by lot, so that
one-half of the Senators, as nearly as practicable, may be elected
biennially.
SEC. 31. The Senate, at the beginning and close of each regular
session, and at such other times as may be necessary, shall elect
one of its members President pro tempore, who may take the place
of the Lieutenant Governor under rules prescribed by law.
SEC. 32. The House of Representatives shall be composed of
not less than sixty, nor more than one hundred and forty mem-
bers.
SEC. 33. Representatives shall be elected for the term of two
years.
THE CONSTITUTION.
vii
SEC. 34. No person shall be a Representative who is not a
qualified elector in the district for which he may be chosen, and
who shall not have attained the age of twenty-one years, and have
been a resident of the State or Territory for two years next pre-
ceding his election.
SEC. 35. The members of the House of Representatives shall
be apportioned to and elected at large from each senatorial dis-
trict. The Legislative Assembly shall, in the year 1895, and every
tenth year, cause an enumeration to be made of all the inhabitants
of this State, and shall at its first regular session after each such
enumeration, and also after each federal census, proceed to fix by
law the number of Senators, which shall constitute the Senate of
North Dakota, and the number of Representatives which shall
constitute the House of Representatives of North Dakota, within
the limits prescribed by this Constitution, and at the same session
shall proceed to reapportion the State into senatorial districts, as
prescribed by this Constitution, and to fix the number of members
of the House of Representatives, to be elected from the several
senatorial districts; Provided, That the Legislative Assembly may,
at any regular session, redistrict the State into senatorial districts,
and apportion the Senators and Representatives respectively.
SEC. 36. The House of Representatives shall elect one of its
members as Speaker.
SEC. 37. No judge or clerk of any court, secretary of state,
attorney general, register of deeds, sheriff or person holding any
office of profit under this State, except in the militia or the office
of attorney-at-law, notary public or justice of the peace, and no
person holding any office of profit or honor under any foreign
government, or under the government of the United States, except
postmasters whose annual compensation does not exceed the sum
of $300, shall hold any office in either branch of the Legislative
Assembly or become a member thereof.
SEC. 38. No member of the Legislative Assembly, expelled for
corruption, and no person convicted of bribery, perjury or other
infamous crime shall be eligible to the Legislative Assembly, or
to any office in either branch thereof.
SEC. 39. No member of the Legislative Assembly shall, during
the term for which he was elected, be appointed or elected to any
civil office in this State, which shall have been created, or the
emoluments of which shall have been increased, during the term
for which he was elected; nor shall any member receive any civil
appointment from the Governor, or Governor and Senate, during
the term for which he shall have been elected.
SEC. 40. If any person elected to either house of the Legisla-
tive Assembly shall offer or promise to give his vote or influence,
in favor of, or against any measure or proposition pending or
proposed to be introduced into the Legislative Assembly, in con-
THE CONSTITUTION.
viii
sideration, or upon conditions, that any other person elected to
the same Legislative Assembly will give, or will promise or assent
to give, his vote or influence in favor of or against any other
measure or proposition, pending or proposed to be introduced
into such Legislative Assembly, the person making such offer or
promise shall be deemed guilty of solicitation of bribery. If any
member of the Legislative Assembly, shall give his vote or influence
for or against any measure or proposition, pending or proposed to
be introduced into such Legislative Assembly, or offer, promise or
assent so to do upon condition that any other member will give,
promise or assent to give his vote or influence in favor of or
against any other such measure or proposition pending or pro-
posed to be introduced into such Legislative Assembly, or in
consideration that any other member hath given his vote or
influence, for or against any other measure or proposition in such
Legislative Assembly, he shall be deemed guilty of bribery.
And any person, member of the Legislative Assembly or person
elected thereto, who shall be guilty of either such offenses, shall
be expelled, and shall not, thereafter be eligible to the Legislative
Assembly, and, on the conviction thereof in the civil courts, shall
be liable to such further penalty as may be prescribed by law.
SEC. 41. The term of service of the members of the Legisla-
tive Assembly shall begin on the first Tuesday in January next,
after their election.
SEC. 42. The members of the Legislative Assembly shall in all
cases except treason, felony and breach of the peace, be privi-
leged from arrest during their attendance at the sessions of their
respective houses, and in going to or returning from the same.
For words used in any speech or debate in either house, they shall
not be questioned in any other place.
SEC. 43. Any member who has a personal or private interest.
in any measure or bill proposed or pending before the Legislative
Assembly, shall disclose the fact to the house of which he is a
member, and shall not vote thereon without the consent of the
house.
SEC. 44. The Governor shall issue writs of election to fill
such vacancies as may occur in either house of the Legislative
Assembly.
SEC. 45. Each member of the Legislative Assembly shall re-
ceive as a compensation for his services for each session, five dol-
lars per day, and ten cents for every mile of necessary travel in
going to and returning from the place of the meeting of the Leg-
islative Assembly, on the most usual route.
SEC. 46. A majority of the members of each house shall con-
stitute a quorum, but a smaller number may adjourn from day to
day, and may compel the attendance of absent members, in such
a manner, and under such a penalty, as may be prescribed by law.
THE CONSTITUTION.
ix
SEC. 47. Each house shall be the judge of the election returns
and qualifications of its own members.
SEC. 48. Each house shall have the power to determine the
rules of proceeding, and punish its members or other persons for
contempt or disorderly behavior in its presence; to protect its
members against violence or offers of bribes or private solicita-
tion, and with the concurrence of two-thirds, to expel a member;
and shall have all other powers necessary and usual in the Legis-
lative Assembly of a free state. But no imprisonment by either
house shall continue beyond thirty days. Punishment for con-
tempt or disorderly behavior shall not bar a criminal prosecution
for the same offense.
SEC. 49. Each house shall keep a journal of its proceedings,
and the yeas and nays on any question shall be taken and entered
on the journal at the request of one-sixth of those present.
SEC. 50. The sessions of each house and of the Committee of
the Whole shall be open unless the business is such as ought to
be kept secret.
SEC. 51. Neither house shall, without the consent of the other,
adjourn for more than three days, nor to any other place than that
in which the two houses shall be sitting, except in case of epi-
demic, pestilence or other great danger.
SEC. 52. The Senate and House of Representatives jointly
shall be designated as the Legislative Assembly of the State of
North Dakota.
SEC. 53. The Legislative Assembly shall meet at the seat of
government at 12 o'clock noon on the first Tuesday after the first
Monday in January, in the year next following the election of the
members thereof.
SEC. 54. In all elections to be made by the Legislative Assem-
bly, or either house thereof, the members shall vote viva voce, and
their votes shall be entered in the journal.
SEC. 55. The sessions of the Legislative Assembly shall be
biennial, except as otherwise provided in this Constitution.
SEC. 56. No regular sessions of the Legislative Assembly shall
exceed sixty days, except in case of impeachment, but the first
session of the Legislative Assembly may continue for a period of
one hundred and twenty days.
SEC. 57. Any bill may originate in either house of the Legisla-
tive Assembly, and a bill passed by one house may be amended
by the other.
SEC. 58. No law shall be passed, except by a bill adopted by
both houses, and no bill shall be so altered and amended on its
passage through either house as to change its original purpose.
X
THE CONSTITUTION.
SEC. 59. The enacting clause of every law shall be as follows:
Be it enacted by the Legislative Assembly of the State of North
Dakota.
SEC. 60. No bill for the appropriation of money, except for the
expenses of the government, shall be introduced after the fortieth
day of the session, except by unanimous consent of the house in
which it is sought to be introduced.
SEC. 61. No bill shall embrace more than one subject, which
shall be expressed in its title, but a bill which violates this pro-
vision shall be invalidated thereby only as to so much thereof as
shall not be so expressed.
SEC. 62. The general appropriation bill shall embrace nothing
but appropriations for the expenses of the Executive, Legislative
and Judicial Departments of the State, interest on the public debt
and for public schools. All other appropriations shall be made by
separate bills, each embracing but one subject.
SEC. 63. Every bill shall be read three several times, but the first
and second readings, and those only, may be upon the same day;
and the second reading may be by title of the bill unless a read-
ing at length be demanded. The first and third readings shall be
at length. No Legislative day shall be shorter than the natural
day.
SEC. 64. No bill shall be revised or amended, nor the provisions
thereof extended or incorporated in any other bill by reference to
its title only, but so much thereof as is revised, amended or ex-
tended or so incorporated, shall be re-enacted and published at
length.
SEC. 65. No bill shall become a law except by a vote of the ma-
jority of all the members elect in each house, nor unless, on its
final passage, the vote be taken by yeas and nays, and the names of
those voting be entered on the Journal.
SEC. 66. The presiding officer of each house shall, in the pres-
ence of the house over which he presides, sign all bills and joint
resolutions passed by the Legislative Assembly; immediately be-
fore such signing their title shall be publicly read, and the fact of
signing shall be at once entered on the Journal.
SEC. 67. No act of the Legislative Assembly shall take effect
until July 1st, after the close of the session unless in case of
emergency (which shall be expressed in the preamble or body of
the act), the Legislative Assembly shall, by a vote of two-thirds
of all the members present in each house, otherwise direct.
SEC. 68. The Legislative Assembly shall pass all laws neces-
sary to carry into effect the provisions of this Constitution.
SEC. 69. The Legislative Assembly shall not pass local or special
laws in any of the following enumerated cases, that is to say:
THE CONSTITUTION.
xi
1. For granting divorces.
2.
Laying out, opening, altering or working roads or highways,
vacating roads, town plats, streets, alleys or public grounds.
3. Locating or changing county seats.
4.
or c
Regulating county or township affairs.
5. Regulating the practice of courts of justice.
6. Regulating the jurisdiction and duties of justices of the
peace, police magistrates or constables.
7.
Changing the rules of evidence in any trial or inquiry.
8. Providing for changes of venue in civil or criminal cases.
9. Declaring any person of age.
10. For limitation of civil actions, or giving effect to informal
or invalid deeds.
11. Summoning or impanneling grand or petit juries.
12. Providing for the management of common schools.
13. Regulating the rate of interest on money.
14. The opening or conducting of any election, or designating
the place of voting.
15. The sale or mortgage of real estate belonging to minors or
others under disability.
16. Chartering or licensing ferries, toll bridges or toll roads.
17. Remitting fines, penalties or forfeitures.
18. Creating, increasing or decreasing fees, percentages or al-
lowances of public officers.
19. Changing the law of descent.
20. Granting to any corporation, association or individual the
right to lay down railroad tracks, or any special or exclusive priv-
ilege, immunity or franchise whatever.
21. For the punishment of crimes.
22. Changing the names of persons or places.
23. For the assessment or collection of taxes.
24. Affecting estates of deceased persons, minors or others
under legal disabilities.
25. Extending the time for the collection of taxes.
26. Refunding money into the State Treasury.
27. Relinquishing or extinguishing in whole or in part the in-
debtedness, liability or obligation of any corporation or person to
this State, or to any municipal corporation therein.
28. Legalizing, except as against the State, the unauthorized
or invalid act of any officer.
xii
THE CONSTITUTION.
29. Exempting property from taxation.
30. Restoring to citizenship persons convicted of infamous
crimes.
31. Authorizing the creation, extension or impairing of liens.
32. Creating offices, or prescribing the powers or duties of
officers in counties, cities, townships, election or school districts,
or authorizing the adoption or legitimation of children.
33. Incorporation of cities, towns or villages, or changing or
amending the charter of any town, city or village.
34. Providing for the election of members of the Board of Su-
pervisors in townships, incorporated towns or cities.
35. The protection of game or fish.
SEC. 70. In all other cases where a general law can be made
applicable, no special law shall be enacted; nor shall the Legisla-
tive Assembly indirectly enact such special or local law by the
partial repeal of a general law; but laws repealing local or special
acts may be passed.
ARTICLE III.
EXECUTIVE DEPARTMENT.
SEC. 71. The executive power shall be vested in a Governor,
who shall reside at the seat of government, and shall hold his
office for the term of two years and until his successor is elected
and duly qualified.
SEC. 72.~ A Lieutenant Governor shall be elected at the same
time and for the same term as the Governor. In case of the
death, impeachment, resignation, failure to qualify, absence from
the State, removal from office, or the disability of the Governor,
the powers and duties of the office for the residue of the term, or
until he shall be acquitted, or the disability be removed, shall de-
volve upon the Lieutenant Governor.
SEC. 73. No person shall be eligible to the office of Governor
or Lieutenant Governor unless he be a citizen of the United
States, and a qualified elector of the State, who shall have attained
the age of thirty years, and who shall have resided five years next
preceding the election within the State or Territory, nor shall he
be eligible to any other office during the term for which he shall
have been elected.
SEC. 74. The Governor and Lieutenant Governor shall be
elected by the qualified electors of the State at the time and
places of choosen members of the Legislative Assembly. The
persons having the highest number of votes for Governor and
Lieutenant Governor respectively shall be declared elected, but if
two or more shall have an equal and highest number of votes for
Governor or Lieutenant Governor, the two houses of the Legisla-
THE CONSTITUTION.
xiii
tive Assembly at its next regular session shall forthwith, by joint
ballot, choose one of such persons for said office. The returns of
the election for Governor and Lieutenant Governor shall be made
in such manner as shall be prescribed by law.
SEC. 75. The Governor shall be Commander-in-Chief of the
military and naval forces of the State, except when they shall be
called into the service of the United States, and may call out the
same to execute the laws, suppress insurrection and repel invasion.
He shall have power to convene the Legislative Assembly on ex-
traordinary occasions. He shall at the commencement of each
session communicate to the Legislative Assembly by message, in-
formation of the condition of the State, and recommend such
measures as he shall deem expedient. He shall transact all neces-
sary business with the officers of the government, civil and mili-
tary. He shall expedite all such measures as may be resolved
upon by the Legislative Assembly, and shall take care that the
laws be faithfully executed.
SEC. 76. The Governor shall have power to remit fines and for-
feitures, to grant reprieves, commutations and pardons after con-
viction, for all offences except treason and cases of impeachment;
but the Legislative Assembly may by law regulate the manner in
in which the remissiom of fines, pardons, commutations and re-
prieves may be applied for. Upon conviction for treason he shall
have power to suspend the execution of sentence until the case
shall be reported to the Legislative Assembly at its next regular
session, when the Legislative Assembly shall either pardon or
commute the sentence, direct the execution of the sentence or
grant further reprieve. He shall communicate to the Legislative
Assembly at each regular session each case of remission of fine,
reprieve, commutation or pardon granted by him, stating the
name of the convict, the crime for which he is convicted, the sen-
tence and its date, and the date of the remission, commutation,
pardon or reprieve, with his reasons for granting the same.
SEC. 77. The Lieutenant Governor shall be President of the
Senate, but shall have no vote unless they be equally divided. If,
during a vacancy in the office of Governor, the Lieutenant Gover-
nor shall be impeached, displaced, resign or die, or from mental or
physical disease, or otherwise become incapable of performing the
duties of his office, the Secretary of State shall act as Governor
until the vacancy shall be filled or the disability removed.
SEC. 78. When any office shall from any cause become vacant,
and no mode is provided by the Constitution or law for filling such
vacancy, the Governor shall have power to fill such vacancy by
appointment.
SEC. 79. Every bill which shall have passed the Legislative As-
sembly shall, before it becomes a law, be presented to the Gover-
nor. If he approve, he shall sigh, but if not, he shall return it
+
xiv
THE CONSTITUTION.
with his objections to the house in which it originated, which
shall enter the objections at large upon the Journal and proceed
to reconsider it. If, after such reconsideration, two-thirds of the
members elect shall agree to pass the bill, it shall be sent, together
with the objections, to the other house, by which it shall likewise
be reconsidered, and if it be approved by two-thirds of the mem-
bers elect, it shall become a law; but in all such cases the vote of
both houses shall be determined by the yeas and nays, and the
names of the members voting for and against the bill shall be en-
tered upon the Journal of each house respectively. If any bill
shall not be returned by the Governor within three days (Sundays
excepted) after it shall have been presented to him, the same
shall be a law, unless the Legislative Assembly by its adjourn-
ment, prevent its return, in which case it shall be a law, unless he
shall file the same with his objections in the office of the Secre-
tary of State, within fifteen days after such adjournment.
SEC. 80. The Governor shall have power to disapprove of any
item or items, or part or parts of any bill making appropriations
of money or property embracing distinct items, and the part or
parts of the bill approved shall be the law, and the item or items,
and part or parts disapproved shall be void, unless enacted in the
following manner: If the Legislative Assembly be in session he
shall transmit to the house in which the bill originated a copy of
the item or items, or part or parts thereof disapproved, together
with his objections thereto, and the items or parts objected to
shall be separately reconsidered, and each item or part shall then
take the same course as is prescribed for the passage of bills over
the executive veto.
SEC. 81. Any Governor of this State who asks, receives or
agrees to receive any bribe upon any understanding that his
official opinion, judgment or action shall be influenced thereby, or
who gives or offers, or promises his official influence in considera-
tion that any member of the Legislative Assembly shall give his
official vote or influence on any particular side of any question or
matter upon which he may be required to act in his official capac-
ity, or who menaces any member by the threatened use of his veto
power, or who offers or promises any member that he, the said
Governor will appoint any particular person or persons to any
office created or thereafter to be created, in consideration that any
member shall give his official vote or influence on any matter
pending or thereafter to be introduced into either house of said
Legislative Assembly, or who threatens any member that he, the
said Governor, will remove any person or persons from office or
position with intent in any manner to influence the action of said
member, shall be punished in the manner now or that may here-
after be provided by law, and upon conviction thereof shall forfeit
all right to hold or exercise any office of trust or honor in this
State.
THE CONSTITUTION.
XV
SEC. 82. There shall be chosen by the qualified electors of the
State at the times and places of choosing members of the Legisla-
tive Assembly, a Secretary of State, Auditor, Treasurer, Superin-
tendent of Public Instruction, Commissioner of Insurance, three
Commissioners of Railroads, one Attorney General and one Com-
missioner of Agriculture and Labor; who shall have attained the
age of twenty-five years, shall be citizens of the United States,
and shall have the qualifications of State electors. They shall
severally hold their offices at the seat of government, for the term
of two years and until their successors are elected and duly qual-
ified, but no person shall be eligible to the office of Treasurer for
more than two consecutive terms.
SEC. 83. The powers and duties of the Secretary of State,
Auditor, Treasurer, Superintendent of Public Ins:ruction, Com-
missioner of Insurance, Commissioners of Railroads, Attorney
General and Commissioner of Agriculture and Labor, shall be as
prescribed by law.
SEC. 84. Until otherwise provided by law, the Governor shall
receive an annual salary of three thousand dollars; the Lieutenant
Governor shall receive an annual salary of one thousand dollars;
the Secretary of State, Auditor, Treasurer, Superintendent of
Public Instruction, Commissioner of Insurance, Commissioners of
Railroads and Attorney General shall each receive an annual
salary of two thousand dollars; the salary of the Commissioner of
Agriculture and Labor shall be as prescribed by law, but the
salaries of any of the said officers shall not be increased or dimin-
ished during the period for which they shall have been elected,
and all fees and profits arising from any of the said offices shall
be covered into the State treasury.
ARTICLE IV.
JUDICIAL DEPARTMENT.
SEC. 85. The judicial power of the State of North Dakota shall
be vested in a supreme court, district courts, county courts,
justices of the peace, and in such other courts as may be created
by law for cities, incorporated towns and villages.
SEC. 86. The supreme court, except as otherwise provided in
this Constitution, shall have appellate jurisdiction only, which
shall be co-extensive with the State and shall have a general
superintending control over all inferior courts under such regu-
lations and limitations as may be prescribed by law.
SEC. 87. It shall have power to issue writs of habeas corpus,
mandamus, quo warranto, certiorari, injunction, and such other
original and remedial writs as may be necessary to the proper
exercise of its jurisdiction, and shall have authority to hear and
determine the same; Provided, however, that no jury trials shall
xvi
THE CONSTITUTION.
be allowed in said supreme court, but in proper cases questions of
fact may be sent by said court to a district court for trial.
SEC. 88. Until otherwise provided by law three terms of the
supreme court shall be held each year, one at the seat of govern-
ment, one at Fargo, in the county of Cass, and one at Grand
Forks, in the county of Grand Forks.
SEC. 89. The supreme court shall consist of three judges, a
majority of whom shall be necessary to form a quorum or pro-
nounce a decision, but one or more of said judges may adjourn
the court from day to day or to a day certain.
SEC. 90. The judges of the supreme court shall be elected by
the qualified electors of the State at large, and except as may be
otherwise provided herein for the first election for judges under
this Constitution, said judges shall be elected at general elections.
SEC. 91. The term of office of the judges of the supreme court,
except as in this article otherwise provided, shall be six years, and
they shall hold their offices until their successors are duly qual-
ified.
SEC. 92. The judges of the supreme court shall, immediately
after the first election under this Constitution, be classified by lot
so that one shall hold his office for the term of three years, one
for the term of five years and one for the term of seven years
from the first Monday in December, A. D. 1889. The lots shall
be drawn by the judges who shall for that purpose assemble at
the seat of government, and they shall cause the result thereof to
be certified to the Secretary of the Territory and filed in his
office unless the Secretary of State of North Dakota shall have
entered upon the duties of his office, in which event said certifi-
cation shall be filed therein. The judge having the shortest term
to serve, not holding his office by election or appointment to fill a
vacancy, shall be Chief Justice and shall preside at all terms of
the supreme court and in case of his absence the judge having in
like manner the next shortest term to serve shall preside in his
stead.
SEC. 93. There shall be a clerk and also a reporter of the
supreme court, who shall be appointed by the judges thereof, and
who shall hold their offices during the pleasure of said judges, and
whose duties and emoluments shall be prescribed by law and by
rules of the supreme court not inconsistent with law. The Legis-
lative Assembly shall make provision for the publication and dis-
tribution of the decisions of the supreme court and for the sale of
the published volumes thereof.
SEC. 94. No person shall be eligible to the office of judge of
the supreme court unless he be learned in the law, be at least
thirty years of age and a citizen of the United States, nor unless
he shall have resided in this State or Territory of Dakota three
years next preceding his election.
THE CONSTITUTION.
xvii
SEC. 95. Whenever the population of the State of North
Dakota shall equal six hundred thousand the Legislative As-
sembly shall have the power to increase the number of the judges
of the supreme court to five, in which event a majority of said
court, as thus increased, shall constitute a quorum.
SEC 96. No duties shall be imposed by law upon the supreme
court or any of the judges thereof, except such as are judicial, nor
shall any of the judges thereof exercise any power of appointment
except as herein provided.
SEC. 97. The style of all process shall be "The State of North
Dakota." All prosecutions shall be carried on in the name and
by the authority of the State of North Dakota, and conclude
"against the peace and dignity of the State of North Dakota.”
SEC. 98. Any vacancy happening by death, resignation or
otherwise in the office of judge of the supreme court shall be filled
by appointment, by the Governor, which appointment shall con-
tinue until the first general election thereafter, when said vacancy
shall be filled by election.
SEC. 99. The judges of the supreme and district courts shall
receive such compensation for their services as may be prescribed
by law, which compensation shall not be increased or diminished
during the term for which a judge shall have been elected.
SEC. 100. In case a judge of the supreme court shall be in any
way interested in a cause brought before said court, the remaining
judges of said court shall call one of the district judges to sit with
them on the hearing of said cause.
SEC. 101. When a judgment or decree is reversed or confirmed
by the supreme court every point fairly arising upon the record
of the case shall be considered and decided, and the reasons there-
for shall be concisely stated in writing, signed by the judges con-
curring, filed in the office of the clerk of the supreme court and
preserved with a record of the case. Any judge dissenting there-
from may give the reasons of his dissent in writing over his sig-
nature.
SEC. 102. It shall be the duty of the court to prepare a sylla-
bus of the points adjudicated in each case, which shall be con-
curred in by a majority of the judges thereof, and it shall be
prefixed to the published reports of the case.
DISTRICT COURTS.
SEC. 103. The district court shall have original jurisdiction,
except as otherwise provided in this Constitution, of all causes
both at law and equity, and such appellate jurisdiction as may be
conferred by law. They and the judges thereof shall also have
jurisdiction and power to issue writs of habeas corpus, quo war-
ranto, certiorari, injunction and other original and remedial writs,
with authority to hear and determine the same.
Const-2
xviii
THE CONSTITUTION.
SEC. 104. The State shall be divided into Six Judicial
Districts, in each of which there shall be elected at general elec-
tions, by the electors thereof, one judge of the district court
therein, whose term of office shall be four years from the first
Monday in January succeeding his election and until his successor
is duly qualified. This section shall not be construed as govern-
ing the first election of district judges under this Constitution.
SEC. 105. Until otherwise provided by law said districts shall
be constituted as follows:
District No. One shall consist of the counties of Pembina, Cava-
lier, Walsh, Nelson and Grand Forks.
District No. Two shall consist of the counties of Ramsey, Towner,
Benson, Pierce, Rolette, Bottineau, McHenry, Church, Renville,
Ward, Stevens, Mountraille, Garfield, Flannery and Buford.
District No. Three shall consist of the counties of Cass, Steele
and Traill.
District No. Four shall consist of the counties of Richland,
Ransom, Sargent, Dickey and McIntosh.
District No. Five shall consist of the counties of Logan, La-
Moure, Stutsman, Barnes, Wells, Foster, Eddy and Griggs.
District No. Six shall consist of the counties of Burleigh,
Emmons, Kidder, Sheridan, McLean, Morton, Oliver, Mercer,
Williams, Stark, Hettinger, Bowman, Billings, McKenzie, Dunn,
Wallace and Allred, and that portion of the Sioux Indian Reser-
votion lying north of the Seventh Standard parallel.
SEC. 106. The Legislative Assembly may whenever two-thirds
of the members of each house shall concur therein, but not
oftener than once in four years, increase the number of said
judicial districts and the judges thereof; such districts shall be
formed from compact territory and bounded by county lines, but
such increase or change in the boundaries of the districts shall
not work the removal of any judge from his office during the
term for which he may have been elected or appointed.
SEC. 107. No person shall be elegible to the office of district
judge, unless he be learned in the law, be at least twenty-five
years of age, and a citizen of the United States, nor unless he shall
have resided within the State or Territory of Dakota at least two
years next preceding his election, nor unless he shall at the time
of his election be an elector within the Judicial District for which
he is elected.
SEC. 108. There shall be a Clerk of the District Court in each
organized county in which a court is holden who shall be elected
by the qualified electors of the county, and shall hold his office
for the same term as other county officers. He shall receive such
compensation for his services as may be prescribed by law.
SEC. 109. Writs of error and appeals may be allowed from the
decisions of the district courts to the Supreme Court under such
regulations as may be prescribed by law.
THE CONSTITU TION.
xix
COUNTY COURTS.
SEC. 110. There shall be established in each county a county
court, which shall be a court of record open at all times and holden
by one judge, elected by the electors of the county, and whose
term of office shall be two years.
SEC. 111. The County Court shall have exclusive original
jurisdiction in probate and testamentary matters, the appoint-
ment of administrators and guardians, the settlement of the
accounts of executors, administrators and guardians, the sale of
lands by executors, administrators, and guardians, and such other
probate jurisdiction as may be conferred by law; Provided, That
whenever the voters of any county having a population of two
thousand or over shall decide by a majority vote that they desire
the jurisdiction of said court increased above that limited by this
constitution, then said County Courts shall have concurrent juris-
diction with the District Courts in all civil actions where the
amount in controversy does not exceed one thousand dollars, and
in all criminal actions below the grade of felony, and in case it is
decided by the voters of any county to so increase the jurisdiction
of said county court, the jurisdiction in cases of misdemeanors
arising under State laws which may have been conferred upon
police magistrates, shall cease. The qualifications of the judge
of the County Court in counties where the jurisdiction of said
court shall have been increased shall be the same as those of
the district judge, except he shall be a resident of the county at
the time of his election, and said county judge shall receive such
salary for his services as may be provided by law. In case the
voters of any county decide to increase the jurisdiction of said
county courts, then such jurisdiction as thus increased shall remain
until otherwise provided by law.
JUSTICES OF THE PEACE.
SEC. 112. The Legislative Assembly shall provide by law for
the election of justices of the peace in each organized county
within the state. But the number of said justices to be elected
in each organized county shall be limited by law to such a number
as shall be necessary for the proper administration of justice.
The justices of the peace herein provided for shall have concur-
rent jurisdiction with the district court in all civil actions when
the amount in controversy, exclusive of costs, does not exceed two
hundred dollars, and in counties where no county court with
criminal jurisdiction exists they shall have such jurisdiction to
hear and determine cases of misdemeanor as may be provided by
law, but in no case shall said justices of the peace have jurisdic-
tion when the boundaries of or title to real estate shall come in
question. The Legislative Assembly shall have power to abolish
the office of justice of the peace and confer that jurisdiction upon
judges of county courts, or elsewhere.
XX
THE CONSTITUTION.
}
*
POLICE MAGISTRATES.
SEC. 113. The Legislative Assembly shall provide by law for
the election of police magistrates in cities, incorporated towns,
and villages, who in addition to their jurisdiction of all cases.
arising under the ordinances of said cities, towns and villages,
shall be ex-officio justices of the peace of the county in which
said cities, towns and villages may be located. And the Legisla-
tive Assembly may confer upon said police magistrates the juris-
diction to hear, try and determine all cases of misdemeanors, and
the prosecutions therein shall be by information.
SEC. 114. Appeals shall lie from the county court, final decis-
ions of justices of the peace, and police magistrates in such cases
and pursuant to such regulations as may be prescribed by law.
MISCELLANEOUS.
SEC. 115. The time of holding courts in the several counties of
a district shall be as prescribed by law, but at least two terms of the
district court shall be held annually in each organized county, and
the Legislative Asssembly shall make provision for attaching un-
organized counties or territories to organized counties for judicial
purposes.
SEC. 116. Judges of the district courts may hold court in other
districts than their own under such regulations as shall be pre-
scribed by law.
SEC. 117. No judge of the supreme or district court shall act
as attorney or counsellor at law.
SEC. 118. Until the Legislative Assembly shall provide by law
for fixing the terms of courts the judges of the supreme and
district courts shall fix the terms thereof.
SEC. 119. No judge of the supreme or district court shall be
elected or appointed to any other than judicial offices or be
eligible thereto during the term for which he was elected or ap-
pointed such judge. All votes or appointments for either of them
for any elective or appointive office except that of judge of
the supreme court or district court, given by the Legislative As-
sembly or the people, shall be void.
SEC. 120. Tribunals of conciliation may be established with
such powers and duties as shall be prescribed by law, or the
powers and duties of such may be conferred upon other courts of
justice; but such tribunals or other courts when sitting as such,
shall have no power to render judgment to be obligatory on the
parties, unless they voluntarily submit their matters of difference
and agree to abide the judgment of such tribunals or courts.
THE CONSTITUTION.
xxi
ARTICLE V.
ELECTIVE FRANCHISE.
SEC. 121. Every male person of the age of twenty-one years
or upwards belonging to either of the following classes, who shall
have resided in the state one year, in the county six months and
in the precinct ninety days next preceding any election, shall be
deemed a qualified elector at such election:
First: Citizens of the United States.
Second: Persons of foreign birth who shall have declared their
intention to become citizens, one year and not more than six years,
prior to such election, conformably to the naturalization laws of
the United States.
Third: Civilized persons of Indian descent who shall have
severed their tribal relations two years next preceding such elec-
tion.
SEC. 122. The Legislative Assembly shall be empowered to
make further extensions of suffrage hereafter, at its discretion to
all citizens of mature age and sound mind, not convicted of crime,
without regard to sex; but no law extending or restricting the
right of suffrage shall be enforced until adopted by a majority of
the electors of the state voting at a general election.
SEC. 123. Electors shall in all cases except treason, felony,
breach of the peace or illegal voting, be privileged from arrest on
the days of election during their attendance at, going to and re-
turning from such election, and no elector shall be obliged to per-
form military duty on the day of election, except in time of war
or public danger.
.SEC. 124. The general elections of the state shall be biennial,
and shall be heid on the first Tuesday after the first Monday
in November; Provided, That the first general election under
this Constitution shall be held on the first Tuesday after the first
Monday in November, A. D. 1890.
SEC. 125. No elector shall be deemed to have lost his residence
in this state by reason of his absence on business of the United
States or of this state, or in the military or naval service of the
United States.
SEC. 126. No soldier, seaman or marine in the army or navy of
the United States shall be deemed a resident of this state in con-
sequence of his being stationed therein.
SEC. 127. No person who is under guardianship, non compos
mentis or insane, shall be qualified to vote at any election, nor
shall any person convicted of treason or felony, unless restored
to civil rights.
SEC. 128. Any woman having the qualifications enumerated in
section 121 of this article as to age, residence and citizenship, and
xxii
THE CONSTITUTION.
including those now qualified by the laws of the territory, may
vote for all school officers, and upon all questions pertaining
solely to school matters, and be eligible to any school office.
SEC. 129. All elections by the people shall be by secret ballot,
subject to such regulations as shall be provided by law.
ARTICLE VI.
MUNICIPAL CORPORATIONS.
SEC. 130. The Legislative Assembly shall provide by
general law for the organization of municipal corporations, re-
stricting their powers as to levying taxes and assessments, bor-
rowing money and contracting debts, and money raised by taxa-
tion, loan or assessment for any purpose shall not be diverted to
any other purpose except by authority of law.
ARTICLE VII.
CORPORATIONS OTHER THAN MUNICIPAL.
SEC. 131. No charter of incorporation shall be granted, changed
or amended by special law, except in the case of such municipal,
charitable, educational, penal or reformatory corporations as may
be under the control of the state; but the Legislative Assembly
shall provide by general laws for the organization of all corpora-
tions hereafter to be created, and any such law, so passed, shall be
subject to future repeal or alteration.
SEC. 132. All existing charters or grants of special or exclu-
sive privileges, under which a bona fide organization shall not
have taken place and business been commenced in good faith at
the time this Constitution takes effect, shall thereafter have no
validity.
SEC. 133. The Legislative Assembly shall not remit the for-
feiture of the charter to any corporation now existing, nor alter or
amend the same, nor pass any other general of special law for the
benefit of such corporation, except upon the condition that such
corporation shall thereafter hold its charter subject to the provis-
ions of this constitution.
SEC. 134. The exercise of the right of eminent domain shall
never be abridged, or so construed as to prevent the Legislative
Assembly from taking the property and franchises of incorporated
companies and subjecting them to public use, the same as the
property of individuals; and the exercise of the police power of
this State shall never be abridged, or so construed as to permit
corporations to conduct their business in such a manner as to in-
fringe the equal rights of individuals or the general well-being of
the State.
SEC. 135. In all elections for directors or managers of a cor-
THE CONSTITUTION.
xxiii
!
poration, each member or share-holder may cast the whole number
of his votes for one candidate, or distribute them upon two or more
candidates, as he may prefer.
SEC. 136. No foreign coporation shall do business in this state
without having one or more places of business and an authorized
agent or agents in the same, upon whom process may be served.
SEC. 137. No corporation shall engage in any business other
than that expressly authorized in its charter.
SEC. 138. No corporation shall issue stock or bonds except for
money, labor done, or money or property actually received; and
all ficticious increase of stock or indebtedness shall be void.
The stock and indebtedness of corporations shall not be increased
except in pursuance of general law, nor without the consent of the
persons holding the larger amount in value of the stock first ob-
tained at a meeting to be held after sixty days' notice given in pur-
suance of law.
SEC. 139. No law shall be passed by the Legislative Assembly
granting the right to construct and operate a street railroad, tele-
graph, telephone or electric light plant within any city, town or
incorporated village, without requiring the consent of the local
authorities having the control of the street or highway proposed
to be occupied for such purposes.
SEC. 140. Every railroad corporation organized and doing busi-
ness in this state, under the laws or authority thereof, shall have
and maintain a public office or place in the state for the transac-
tion of its business, where transfers of its stock shall be made and
in which shall be kept for public inspection, books in which shall
be recorded the amount of capital stock subscribed, and by whom,
the names of the owners of its stock and the amount owned by
them respectively; the amount of stock paid in and by whom, and
the transfers of said stock; the amounts of its assets and liabili-
ties and the names and place of residence of its officers. The di-
rectors of every railroad corporation shall annually make a report,
under oath, to the auditor of public accounts, or some officer or
officers to be designated by law, of all their acts and doings, which
report shall include such matters relating to railroads as may be
prescribed by law, and the Legislative Assembly shall pass laws
enforcing by suitable penalties the provisions of this section. Pro-
viding the provisions of this section shall not be so construed as to
apply to foreign corporations.
SEC. 141. No railroad corporation shall consolidate its stock,
property or franchises with any other railroad corporation owning
a parallel or competing line; and in no case shall, any consolida-
tion take place except upon public notice given at least sixty days
to all stockholders, in such manner as may be provided by law.
Any attempt to evade the provisions of this section, by any rail-
road corporation, by lease or otherwise, shall work a forfeiture of
its charter.
xxiv
THE CONSTITUTION.
SEC. 142. Railways heretofore constructed or that may here-
after be constructed in this state are hereby declared public high-
ways, and all railroad, sleeping car, telegraph, telephone and trans-
portation companies of passengers, intelligence and freight, are
declared to be common carriers and subject to legislative control;
and the Legislative Assembly shall have power to enact laws regu-
lating and controlling the rates of charges for the transportation
of passengers, intelligence and freight, as such common carriers
from one point to another in this State; Provided, That appeal
may be had to courts of this State from the rate so fixed; but the
rates fixed by the Legislative Assembly or Board of Railroad
Commissioners shall remain in full force pending the decision of
the courts.
SEC. 143. Any association or corporation organized for the pur-
pose shall have the right to construct and operate a railroad be-
tween any points within this state, and to connect at the state line
with the railroads of other states. Every railroad company shall
have the right with its road to intersect, connect with or cross any
other; and shall receive and transport each other's passengers,
tonnage and cars, loaded or empty, without delay or discrimina-
tion.
SEC. 144. The term "corporation," as used in this article, shall
not be understood as embracing municipalities or political subdi-
visions of the State unless otherwise expressly stated, but it shall be
held and construed to include all associations and joint stock com-
panies having any of the powers or privileges of corporations not
possessed by individuals or partnerships.
SEC. 145. If a general banking law be enacted, it shall provide
for the registry and countersigning by an officer of the State, of all
notes or bills designed for circulation, and that ample security to
the full amount thereof shall be deposited with the State Treasurer
for the redemption of such notes or bills.
SEC. 146. Any combination between individuals, corporations,
associations, or either having for its object or effect the controlling
of the price of any product of the soil or any article of manufact-
ure or commerce, or the cost of exchange or transportation, is
prohibited and hereby declared unlawful and against public
policy; and any and all franchises heretofore granted or extended,
or that may hereafter be granted or extended in this state, when-
ever the owner or owners thereof violate this article shall be
deemed annulled and become void.
ARTICLE VIII.
EDUCATION.
SEC. 147. A high degree of intelligence, patriotism, integrity
and morality on the part of every voter in a government by the
people being necessary in order to insure the continuance of
THE CONSTITUTION.
XXV
that government and the prosperity and happiness of the people,
the Legislative Assembly shall make provision for the establish-
ment and maintenance of a system of public schools which shall
be open to all children of the state of North Dakota and free
from sectarian control. This legislative requirement shall be
irrevocable without the consent of the United States and the
people of North Dakota.
Sec. 148. The Legislative Assembly shall provide at their first
session, after the adoption of this Consitution, for a uniform sys-
tem of free public schools throughout the state; beginning with
the primary and extending through all grades up to and includ-
ing the normal and collegiate course.
SEC. 149. In all schools instruction shall be given as far as
practicable in those branches of knowledge that tend to impress
upon the mind the vital importance of truthfulness, temperance,
purity, public spirit, and respect for honest labor of every kind.
SEC. 150. A Superintendent of Schools for each county shall
be elected every two years, whose qualifications, duties, powers and
compensation shall be fixed by law.
SEC. 151. The Legislative Assembly shall take such other steps.
as may be necessary to prevent illiteracy, secure a reasonable de-
gree of uniformity in course of study, and to promote industrial,
scientific and agricultural improvement.
SEC. 152. All colleges, universities and other educational insti-
tutions, for the support of which lands have been granted to this
state, or which are supported by a public tax, shall remain under
the absolute and exclusive control of the State. No money raised
for the support of the public schools of the State shall be appro-
priated to or used for the support of any sectarian school.
ARTICLE IX.
SCHOOL AND PUBLIC LANDS.
SEC. 153. All proceeds of the public lands that have hereto-
fore been, or may hereafter be granted by the United States for
the support of the common schools in this state; all such per
centum as may be granted by the United States on the sale of
public lands; the proceeds or property that shall fall to the state
by escheat; the proceeds of all gifts and donations to the state
for common schools, or not otherwise appropriated by the terms
of the gift, and all other property otherwise acquired for common
schools, shall be and remain a perpetual fund for the mainten-
ance of the common schools of the state. It shall be deemed a
trust fund, the principal of which shall forever remain inviolate
and may be increased but never diminished. The state shall
make good all losses thereof.
SEC. 154. The interest and income of this fund together with
the net proceeds of all fines for violation of state laws, and all
xxvi
THE CONSTITUTION.
other sums which may be added thereto by law, shall be faithfully
used and applied each year for the benefit of the common schools
of the state, and shall be for this purpose apportioned among
and between all the several common school corporations of the
state in proportion to the number of children in each of school
age, as may be fixed by law; and no part of the fund shall ever be
diverted, even temporarily, from this purpose or used for any
other purpose whatever than the maintenance of common schools
for the equal benefit of all the people of the state; Provided, how-
ever, That if any portion of the interest or income aforesaid be
not expended during any year, said portion shall be added to and
become a part of the school fund.
SEC. 155. After one year from the assembling of the first Leg-
islative Assembly, the lands granted to the state from the United
States for the support of the common schools, may be sold upon
the following conditions and no other: No more than one-fourth
of all such lands shall be sold within the first five years after the
same become saleable by virtue of this section. No more than
one-half of the remainder within ten years after the same become
saleable as aforesaid. The residue may be sold at any time after
the expiration of said ten years. The Legislative Assembly shall
provide for the sale of all school lands subject to the provisions of
this article. The coal lands of the State shall never be sold, but
the Legislature Assembly may, by general laws, provide for leas-
ing the saine. The words "coal lands" shall include lands bearing
lignite coal.
SEC. 156. The Superintendent of Public Instruction, Gover-
nor, Attorney-General, Secretary of State and State Auditor, shall
constitute a Board of Commissioners, which shall be denominated
the "Board of University and School Lands," and, subject to the
provisions of this article and any law that may be passed by the
Legislative Assembly, said board shall have control of the
appraisement, sale, rental and disposal of all school and uni-
versity lands, and shall direct the investment of the funds arising
therefrom in the hands of the State Treasurer, under the limita-
tions in section 160 of this article.
SEC. 157. The county superintendent of common schools, the
chairman of the county board, and the county auditor shall con-
stitute boards of appraisal and under the authority of the State
Board of University and School Lands shall appraise all school
lands within their respective counties which they may from time
to time recommend for sale at their actual value under the pre-
scribed terms and shall first select and designate for sale the most
valuable lands.
SEC. 158. No land shall be sold for less than the appraised
The
value and in no case for less than ten dollars per acre.
purchaser shall pay one-fifth of the price in cash, and the remain-
ing four-fifths as follows: One-fifth in five years, one-fifth in ten
THE CONSTITUTION.
xxvii
years, one-fifth in fifteen years and one-fifth in twenty years, with
interest at the rate of not less than six per centum payable
annually in advance. All sales shall be held at the county seat
of the county in which the land to be sold is situate and shall be
at public auction and to the highest bidder, after sixty days adver-
tisement of the same in a newspaper of general circulation in the
vicinity of the lands to be sold, and one at the seat of govern-
ment. Such lands as shall not have been specially subdivided shall
be offered in tracts of one quarter section, and those so subdivided
in the smallest subdivisions. All lands designated for sale and
not sold within two years after appraisal shall be reappraised be-
fore they are sold. No grant or patent for any such lands shall
issue until payment is made for the same; Provided, That the
lands contracted to be sold by the state, shall be subject to taxa-
tion from the date of such contract. In case the taxes assessed
against any of said lands for any year remain unpaid until the
first Monday in October of the following year, then and thereupon
the contract of sale for such lands shall become null and void.
SEC. 159. All land, money or other property donated, grauted
or received from the United States or any other source for a
University, School of Mines, Reform School, Agricultural College,
Deaf and Dumb Asylum, Normal School or other educational or
charitable institution or purpose, and the proceeds of all such
lands and other property so received from any source, shall be and
remain perpetual funds, the interest and income of which together
with the rents of all such land as may remain unsold shall be
inviolably appropriated and applied to the specific objects of the
original grants or gifts. The principal of every such fund may be
increased but shall never be diminished, and the interest and income
only shall be used. Every such fund shall be deemed a trust fund
held by the state, and the state shall make good all losses thereof.
SEC. 160. All lands mentioned in the preceding section shall
be appraised and sold in the same manner and under the same
limitations and subject to all the conditions as to price and sale as
provided above for the appraisal and sale of lands for the benefit
of common schools; but a distinct and separate account shall be
kept by the proper officers of each of said funds; Provided, That
the limitations as to the time in which school land may be sold
shall apply only to lands granted for the support of common
schools.
SEC. 161. The Legislative Assembly shall have authority to
provide by law for the leasing of lands granted to the state for
educational and charitable purposes; but no such law shall author-
ize the leasing of said lands for a longer period than five years.
Said land shall only be leased for pasturage and meadow purposes.
and at a public auction after notice as heretofore provided in case of
sale. Provided that all of said school lands now under cultivation
may be leased at the discretion and under the control of the Board
xxviii
THE CONSTITUTION.
of University and School Lands, for other than pasturage and
meadow purposes until sold. All rents shall be paid in advance.
SEC. 162. The moneys of the permanent school fund and other
educational funds shall be invested only in bonds of school cor-
porations within the state, bonds of the United States, bonds of
the state of North Dakota or in first mortgages on farm lands in the
state, not exceeding in amount one-third of the actual value of any
subdivision on which the same may be loaned, such value to be
determined by the board of appraisers of school lands.
SEC. 163. No law shall ever be passed by the Legislative Assem-
bly granting to any person, corporation or association any privil-
eges by reason of the occupation, cultivation or improvement of
any public lands by said person, corporation or association subse-
quent to the survey thereof by the general government. No claim
for the occupation, cultivation or improvement of any public lands
shall ever be recognized, nor shall such occupation, cultivation or
improvement of any public lands ever be used to diminish either
directly or indirectly the purchase price of said lands.
SEC. 164. The Legislative Assembly shall have authority to
provide by law for the sale or disposal of all public lands that
have been heretofore, or may hereafter be granted by the United
States to the state for purposes other than set forth and named in
sections 153 and 159 of this article. And the Legislative Assembly
in providing for the appraisement, sale, rental and disposal of the
same shall not be subject to the provisions and limitations of this
article.
SEC. 165. The Legislative Assembly shall pass suitable laws for
the safekeeping, transfer and disbursement of the state school funds;
and shall require all officers charged with the same or the safe keep-
ing thereof to give ample bonds for all moneys and funds received by
them, and if any of said officers shall convert to his own use in
any manner or form, or shall loan with or without interest or shall
deposit in his own name, or otherwise than in the name of the
state of North Dakota or shall deposit in any banks or with any
person or persons, or exchange for ther funds or property any
portion of the school funds aforesaid or purposely allow any por-
tion of the same to remain in his own hands uninvested except in the
manner prescribed by law, every such act shall constitute an em-
bezzlement of so much of the aforesaid school funds as shall be
thus taken or loaned, or deposited, or exchanged, or withheld and
shall be a felony; and any failure to pay over, produce or account
for, the state school funds or any part of the same entrusted to
any such officer, as by law required or demanded, shall be held
and be taken to be prima facie evidence of such embezzlement.
ARTICLE X.
COUNTY AND TOWNSHIP ORGANIZATION.
SEC. 166. The several counties in the Territory of Dakota lying
THE CONSTITUTION.
xxix
north of the Seventh Standard Parallel, as they now exist, are
hereby declared to be counties of the State of North Dakota.
SEC. 167. The Legislative Assembly shall provide by general
law for organizing new counties, locating the county seats thereof
temporarily, and changing county lines; but no new county shall
be organized nor shall any organized county be so reduced as to
include an area of less than twenty-four congressional townships,
and containing a population of less than one thousand bona fide
inhabitants. And in the organization of new counties and in
changing the lines of organized counties and boundaries of con-
gressional townships the natural boundaries shall be observed as
nearly as may be.
SEC. 168. All changes in the boundaries of organized counties
before taking effect shall be submitted to the electors of the county
or counties, to be effected thereby at a general election and be
adopted by a majority of all the legal votes cast in each county at
such election; and in case any portion of an organized county is
stricken off and added to another, the county to which such por-
tion is added shall assume and be holden for an equitable propor-
tion of the indebtedness of the county so reduced.
SEC. 169. The Legislative Assembly shall provide by general
law for changing county seats in organized counties, but it shall
have no power to remove the county seat of any organized county.
SEC. 170. The Legislative Assembly shall provide by general
law for township organization under which any county may organ-
ize whenever a majority of all the legal voters of such county, voting
at a general election shall so determine, and whenever any county
shall adopt township organization, so much of this Constitution
as provides for the management of the fiscal concerns of said
county by the board of county commissioners may be dispensed
with by a majority vote of the people voting at any general elec-
tion; and the affairs of said county may be transacted by the
chairmen of the several township boards of said county, and such
others as may be provided by law for incorporated cities, towns or
villages within such county.
SEC. 171. In any county that shall have adopted a system of
government by the chairmen of the several township boards, the
question of continuing the same may be submitted to the electors
of such county at a general election in such a manner as may be
provided by law, and if a majority of all the votes cast upon such
question shall be against said system of government, then such
system shall cease in said county, and the affairs of said county
shall then be transacted by a board of county commissioners as is
now provided by the laws of the Territory of Dakota.
SEC. 172. Until the system of county government by the chair-
men of the several township boards is adopted by any county the
fiscal affairs of said county shall be transacted by a board of
XXX
THE CONSTITUTION.
county commissioners; said board shall consist of not less than
three and not more than five members whose terms of office shall
be prescribed by law. Said board shall hold sessions for the
transaction of county business as shall be provided by law.
SEC. 173. At the first general election held after the adoption
of this Constitution, and every two years thereafter, there shall
be elected in each organized county in the State, a county judge,
clerk of court, register of deeds, county auditor, treasurer, sheriff
and states attorney, who shall be electors of the county in which
they are elected and who shall hold their office until their suc-
cessors are elected and qualified. The Legislative Assembly shall
provide by law for such other county, township and district
officers as may be deemed necessary, and shall prescribe the duties
and compensation of all county, township and district officers.
The sheriff and treasurer of any county shall not hold their re-
spective offices for more than four years in succession.
ARTICLE XI.
REVENUE AND TAXATION.
SEC. 174. The Legislative Assembly shall provide for raising
revenue sufficient to defray the expenses of the state for each year,
not to exceed in any one year four (4) mills on the dollar of the
assessed valuation of all taxable property in the state, to be ascer-
tained by the last assessment made for state and county purposes,
and also a sufficient sum to pay the interest on the state debt.
SEC. 175. No tax shall be levied except in pursuance of law, and
every law imposing a tax shall state distinctly the object of the
same, to which only it shall be applied.
SEC. 176. Laws shall be passed taxing by uniform rule all
property according to its true value in money, but the property of
the United States and the state, county and municipal corporations,
both real and personal, shall be exempt from taxation, and the
Legislative Assembly shall by a general law exempt from taxation
property used exclusively for school, religious, cemetery or chari-
table purposes and personal property to any amount not exceed-
ing in value two hundred dollars for each individual liable to
taxation; but the Legislative Assembly may, by law, provide for
the payment of a per centum of gross earnings of railroad com-
panies to be paid in lieu of all State, county, township and school
taxes on property exclusively used in and about the prosecution
of the business of such companies as common carriers, but no
real estate of said corporations shall be exempted from taxation
in the same manner, and on the same basis as other real estate is
taxed, except roadbed, right of way, shops and buildings used ex-
clusively in their business as common carriers, and whenever and
so long as such law providing for the payment of a per centum on
earnings shall be in force, that part of section 179 of this article
THE CONSTITUTION.
xxxi
relating to assessment of railroad property shall cease to be in
force.
SEC. 177. All improvements on land shall be assessed in ac-
cordance with section 179, but plowing shall not be considered as
an improvement or add to the value of land for the purpose of
assessment.
SEC. 178. The power of taxation shall never be surrendered or
suspended by any grant or contract to which the State or any
county or other municipal corporation shall be a party.
SEC. 179. All property, except as hereinafter in this section
provided, shall be assessed in the county, city, township, town,
village or district in which it is situated, in the manner prescribed
by law. The franchise, roadway, roadbed, rails and rolling stock
of all railroads operated in this state shall be assessed by the
state board of equalization at their actual value and such assessed
valuation shall be apportioned to the counties, cities, towns, town-
ships and districts in which said roads are located, as a basis for
taxation of such property in proportion to the number of miles
of railway laid in such counties, cities, towns, townships and
districts.
SEC. 180. The Legislative Assembly may provide for the levy,
collection and disposition of an annual poll tax of not more than
one dollar and fifty cents ($1.50) on every male inhabitant of this
state over twenty-one and under fifty years of age, except paupers,
idots, insane persons and Indians not taxed.
SEC. 181. The Legislative Assembly shall pass all laws neces-
sary to carry out the provisions of this article.
ARTICLE XII.
PUBLIC DEBT AND PUBLIC WORKS.
SEC. 182. The state may, to meet casual deficits or failure in
the revenue, or in case of extraordinary emergencies, contract debts,
but such debts shall never in the aggregate exceed the sum of two
hundred thousand dollars, exclusive of what may be the debt of
North Dakota at the time of the adoption of this Constitution.
Every such debt shall be authorized by law for certain purposes to
be definitely mentioned therein, and every such law shall provide
for levying an annual tax sufficient to pay the interest semi-an-
nually, and the principal within thirty years from the passage of
such law, and shall specially appropriate the proceeds of such tax
to the payment of said principal and interest, and such appropria-
tion shall not be repealed nor the tax discontinued until such debt,
both principal and interest, shall have been fully paid. No debt
in excess of the limit named shall be incurred except for the pur-
pose of repelling invasion, suppressing insurrection, defending
the state in time of war, or to provide for public defense in case of
xxxii
THE CONSTITUTION.
threatened hostilities; but the issuing of new bonds to refund ex-
isting indebtedness, shall not be construed to be any part or por-
tion of said two hundred thousand dollars.
SEC. 183. The debt of any county, township, town, school district
or any other political subdivision, shall never exceed five (5) per-
centum upon the assessed value of the taxable property therein;
Provided, That any incorporated city may, by a two-thirds vote,
increase such indebtedness three (3) per centum on such assessed
value beyond said five (5) per cent. limit. In estimating the
indebtedness which a city, county, township, school district or
any other political subdivision may incur, the entire amount of
existing indebtedness, whether contracted prior or subsequent to
the adoption of this constitution shall be included; Provided,
further, That any incorporated city may become indebted in any
amount not exceeding four (4) per centum on such assessed value
without regard to the existing indebtedness of such city, for the
purpose of constructing or purchasing water works for furnishing
a supply of water to the inhabitants of such city, or for the pur-
pose of constructing sewers, and for no other purpose whatever.
All bonds or obligations in excess of the amount of indebtedness
permitted by this constitution, given by any city, county, town-
ship, town, school district, or any other political subdivision, shall
be void.
SEC. 184. Any city, county, township, town, school district or
any other political subdivision incurring indebtedness shall, at or
before the time of so doing, provide for the collection of an
annual tax sufficient to pay the interest and also the principal
thereof when due, and all laws or ordinances providing for the
payment of the interest or principal of any debt shall be irrepeal-
able until such debt be paid.
SEC. 185. Neither the State nor any county, city, township,
town, school district or any other political subdivision shall loan
or give its credit or make donations to or in aid of any individual,
association or corporation, except for necessary support of the
poor, nor subscribe to or become the owner of the capital stock of
any association or corporation, nor shall the State engage in any
work of internal improvement unless authorized by a two-thirds
vote of the people.
SEC. 186. No money shall be paid out of the state treasury ex-
cept upon appropriation by law and on warrant drawn by the
proper officer and no bills, claims, accounts or demands against the
state, or any county or other political subdivision, shall be audited,
allowed or paid until a full itemized statement in writing shall be
filed with the officer or officers, whose duty it may be to audit the
same.
SEC. 187. No bond or evidence of indebtedness of the state
shall be valid unless the same shall have indorsed thereon a certi-
THE CONSTITUTION.
xxxiii
ficate, signed by the Auditor and Secretary of State showing that
the bond or evidence of debt is issued pursuant to and is within
the debt limit. No bond or evidence of debt of any county, or
bond of any township or other political subdivision
shall be valid unless the same have endorsed thereon
certificate signed by the county auditor, or other officer authorized
by law to sign such certificate, stating that said bond, or evidence
of debt, is issued pursuant to law and is within the debt limit.
ARTICLE XIII.
MILITIA.
a
SEC. 188. The milita of this State shall consist of all able-
bodied male persons residing in the state, between the ages of
eighteen and forty-five years, except such as may be exempted by
the laws of the United States or of this State. Persons whose
religious tenets or conscientious scruples forbid them to bear
arms shall not be compelled to do so in times of peace, but shall
pay an equivalent for a personal service.
SEC. 189. The milita shall be enrolled, organized, uniformed,
armed and disciplined in such a manner as shall be provided by
law, not incompatible with the Constitution or laws of the United
States.
SEC. 190. The Legislative Assembly shall provided by law for
the establishment of volunteer organizations of the several arms
of the service, which shall be classed as active militia; and no
other organized body of armed men shall be permitted to perform
military duty in this State except the army of the United States
without the proclamation of the Governor of the State.
SEC. 191. All militia officers shall be appointed or elected in
such a manner as the Legislative Assembly shall provide.
SEC. 192. The commissioned officers of the militia shall be
commissioned by the Governor, and no commissioned officer shall
be removed from office except by sentence of court martial, pursu-
ant to law.
SEC. 193. The militia forces shall in all cases, except treason,
felony or breach of the peace, be privileged from arrest during
their attendance at musters, parades and elections of officers,
and in going to and returning from the same.
ARTICLE XIV.
IMPEACHMENT AND REMOVAL FROM OFFICE.
SEC. 194. The House of Representatives shall have the sole
power of impeachment. The concurrence of a majority of all
members elected shall be necessary to an impeachment.
SEC. 195. All impeachments shall be tried by the senate.
When sitting for that purposes the senators shall be upon oath or
Const-3
xxxiv
THE CONSTITUTION.
affirmation to do justice according to the law and evidence. No
person shall be convicted without the concurrence of two-thirds
of the members elected. When the Governor or Lieutenant Gov-
ernor is on trial, the presiding judge of the supreme court shall
preside.
SEC. 196. The Governor and other state and judicial officers, ex-
cept county judges, justices of the peace,and police magistrates, shall
be liable to impeachment for habitual drunkenness, crimes, cor-
rupt conduct, or malfeasance or misdemeanor in office, but judg-
ment in such cases shall not extend further than removal from
office and disqualification to hold any office of trust, or profit
under the state. The person accused, whether convicted or
acquitted, shall nevertheless be liable to indictment, trial, judg-
ment and punishment according to law.
SEC. 197. All officers not liable to impeachment shall be sub-
ject to removal for misconduct, malfeasance, crime or misde-
meanor in office, or for habitual drunkenness or gross incom-
petency in such manner as may be provided by law.
SEC. 198. No officer shall exercise the duties of his office after
he shall have been impeached and before his acquittal.
SEC. 199. On trial of impeachment against the Governor, the
Lieutenant Governor shall not act as a member of the court.
SEC. 200. No person shall be tried on impeachment before he
shall have been served with a copy thereof, at least twenty days
previous to the day set for trial.
SEC. 201. No person shall be liable to impeachment twice for
the same offense.
ARTICLE XV.
FUTURE AMENDMENTS.
SEC. 202. Any amendment or amendments to this Constitution
may be proposed in either house of the Legislative Assembly; and
if the same shall be agreed to by a majority of the members elected
to each of the two houses,such proposed amendment shall be entered
on the journal of the house with the yeas and nays taken thereon,
and referred to the Legislative Assembly to be chosen at the next
general election, and shall be published, as provided by law, for
three months previous to the time of making such choice, and if
in the Legislative Assembly so next chosen as aforesaid such pro-
posed amendment or amendments shall be agreed to by a majority
of all the members elected to each house, then it shall be the duty
of the Legislative Assembly to submit such proposed amendment
or amendments to the people in such manner and at such
time as the Legislative Assembly shall provide; and if the people
shall approve and ratify such amendment or amendments by a
majority of the electors qualified to vote for members of the Legis-
lative Assembly voting thereon, such amendment or amendments
THE CONSTITUTION.
XXXV
shall become a part of the Constitution of this state. If two or
more amendments shall be submitted at the same time they shall
be submitted in such manner that the electors shall vote for or
against each of such amendments separately.
ARTICLE XVI.
COMPACT WITH THE UNITED STATES.
The following article shall be irrevocable without the consent
of the United States and the people of this State.
SEC. 203. First. Perfect toleration of religious sentiment shall
be secured, and no inhabitant of this state shall ever be mo-
lested in person or property on account of his or her mode of re-
ligious worship.
Second. The people inhabiting this state do agree and de-
clare that they forever disclaim all right and title to the unappro-
priated public lands lying within the boundaries thereof, and to
all lands lying within said limits owned or held by any Indian
or Indian tribes, and that until the title thereto shall have been
extinguished by the United States, the same shall be and remain
subject to the disposition of the United States, and that said In-
dian lands shall remain under the absolute jurisdiction and con-
trol of the Congress of the United States; that the lands belonging
to citizens of the United States residing without this state shall
never be taxed at a higher rate than the lands belonging to resi-
dents of this state; that no taxes shall be imposed by this state
on lands or property therein, belonging to, or which may hereaf-
ter be purchased by, the United States, or reserved for its use.
But nothing in this article shall preclude this state from taxing as
other lands are taxed, any lands owned or held by any Indian who
has severed his tribal relations, and has obtained from the United
States or from any person, a title thereto, by patent or other
grant, save and except such lands as have been or may be granted
to any Indian or Indians under any acts of congress containing a
provision exempting the lands thus granted from taxation, which
last mentioned lands shall be exempt from taxation so long, and
to such an extent, as is, or may be provided in the act of congress
granting the same.
Third. In order that payment of the debts and liabilities.
contracted or incurred by and in behalf of the Territory of Da-
kota may be justly and equitably provided for and made, and in
pursuance of the requirments of an act of congress approved
February 22, 1889, entitled "An act to provide for the division of
Dakota into two states and to enable the people of North Dakota,
South Dakota, Montana and Washington to form constitutions
and state governments and to be admitted into the Union on an
equal footing with the original states, and to make donations of
public lands to such states," the states of North Dakota and
xxxvi
THE CONSTITUTION.
South Dakota, by proceedings of a joint commission, duly ap-
pointed under said act, the sessions whereof were held at Bis-
marck in said State of North Dakota, from July 16, 1889, to July
31, 1889, inclusive, have agreed to the following adjustment of
the amounts of the debts and liabilities of the Territory of Da-
kota which shall be assumed and paid by each of the States of
North Dakota and South Dakota, respectively, to-wit:
This agreement shall take effect and be in force from and
after the admission into the Union, as one of the United States of
America, of either the State of North Dakota or the State of South
Dakota.
The words "State of North Dakota" wherever used in this
agreement, shall be taken to mean the Territory of North Dakota
in case the State of South Dakota shall be admitted into the
Union prior to the admission into the Union of the State of North
Dakota; and the words "State of South Dakota," wherever used in
this agreement, shall be taken to mean the Territory of South
Dakota in case the State of North Dakota shall be admitted into
the Union prior to the admission into the Union of the State of
South Dakota.
The said State of North Dakota shall assume and pay all bonds
issued by the Territory of Dakota to provide funds for the pur-
chase, construction, repairs or maintenance of such public institu-
tions, grounds or buildings as are located within the boundaries.
of North Dakota, and shall pay all warrants issued under and by
virtue of that certain Act of the Legislative Assembly of the Ter-
ritory of Dakota, approved March 8, 1889, entitled "An Act to
provide for the refunding of outstanding warrants drawn on the
Capitol Building Fund.
""
The said State of South Dakota shall assume and pay all bonds
issued by the Territory or Dakota to provide funds for the pur-
chase, construction, repairs or maintenance of such public insti-
tutions, grounds or buildings as are located within the boundaries
of South Dakota.
That is to say: The State of North Dakota shall assume and
pay the following bonds and indebtedness, to-wit:
Bonds issued on account of the Hospital for Insane at James-
town, North Dakota, the face aggregate of which is $266,000; also
bonds issued on account of the North Dakota University at Grand
Forks, North Dakota, the face aggregate of which is $96,700; also,
bonds issued on account of the Penitentiary at Bismarck,
North Dakota, the face aggregate of which is $93,600; also, re-
funding Capitol Building warrants dated April 1, 1889, $83,507.46.
And the State of South Dakota shall assume and pay the follow-
ing bonds and indebtedness, to-wit:
Bonds issued on account of the Hospital for the Insane at
Yankton, South Dakota, the face aggregate of which is $210,000;
also, bonds issued on account of the School for Deaf Mutes, at
THE CONSTITUTION.
xxxvii
ť
1
Sioux Falls, South Dakota, the face aggregate of which is $51,000;
also, bonds issued on account of the University at Vermillion,
South Dakota, the face aggregate of which is $75,000; also, bonds
issued on account of the Penitentiary at Sioux Falls, South
Dakota, the face aggregate of which is $94,300; also, bonds issued
on account of the Agricultural College at Brookings, South
Dakota, the face aggregate of which is $97,500; also, bonds issued
on account of the Normal School at Madison, South Dakota, the
face aggregate of which is $49,400; also, bonds issued on account
of the School of Mines at Rapid City, South Dakota, the face
aggregate of which is $33,000; also, bonds issued on account of
the Reform School at Plankinton, South Dakota, the face aggre-
gate of which is $30,000; also, bonds issued on account of the
Normal School at Spearfish, South Dakota, the face aggregate of
which is $25,000; also bonds issued on account of the Soldiers'
Home at Hot Springs, South Dakota, the face aggregate of which
is $45,000.
The States of North Dakota and South Dakota shall pay one-
half each of all liabilities now existing or hereafter and prior to
the taking effect of this agreement incurred, except those hereto-
fore or hereafter incurred on account of public institutions,
grounds or buildings, except as otherwise herein specifically pro-
vided.
The State of South Dakota shall pay to the State of North
Dakota $46,500, on account of the excess of Territorial appropria-
tions for the permanent improvement of territorial institutions
which under this agreement will go to South Dakota, and in full
of the undivided one-half interest of North Dakota in the terri-
torial library, and in full settlement of unbalanced accounts, and
of all claims against the territory, of whatever nature, legal or
equitable, arising out of the alleged erroneous or unlawful taxa-
tion of Northern Pacific Railroad lands, and the payment of said
amount shall discharge and exempt the State of South Dakota
from all liability for or on account of the several matters herein-
before referred to; nor shall either state be called upon to pay or
answer to any portion of liability hereafter arising or accruing on
account of transactions heretofore had, which liability would be a
liability of the Territory of Dakota had such territory remained in
existence, and which liability shall grow out of matters connected
with any public institutions, grounds or buildings of the territory
situated or located within the boundaries of the other state.
A final adjustment of accounts shall be made upon the following
basis: North Dakota shall be charged with all sums paid on ac-
count of the public institutions, grounds or buildings located
within its boundaries on accouut of the current appropriations
since March 9, 1889, and South Dakota shall be charged with all
sums paid on account of public institutions, grounds or buildings
located within its boundaries on the same account and during the
same time. Each state shall be charged with one-half of all other
1
1
F
xxxviii
THE CONSTITUTION.
expenses of the territorial government during the same time.
All moneys paid into the treasury during the period from
March 8, 1889, to the time of taking effect of this agreement
by any county, municipality or person within the limits of the
proposed state of North Dakota, shall be credited to the State of
North Dakota; and all sums paid into said treasury within the
same time by any county, municipality or person within the limits
of the proposed State of South Dakota shall be credited to the
State of South Dakota; except that any and all taxes on gross
earnings paid into said treasury by railroad corporations, since
the 8th day of March, 1889, based upon earnings of years prior to
1888, under and by virtue of the act of the Legislative Assembly
of the Territory of Dakota, approved March 7, 1889, and entitled
"An Act providing for the levy and collection of taxes upon prop-
erty of railroad companies in this Territory," being Chapter 107
of the Session Laws of 1889, (that is, the part of such sums going
to the Territory) shall be equally divided between the States of
North Dakota and South Dakota, and all taxes heretofore or here-
after paid into said treasury under and by virtue of the act
last mentioned, based on the gross earnings of the year 1888, shall
be distributed as already provided by law, except that so much
thereof as goes to the territorial treasury shall be divided as fol-
lows: North Dakota shall have so much thereof as shall be or
has been paid by railroads within the limits of the proposed State
of North Dakota, and South Dakota so much thereof as shall be
or has been paid by railroads within the limits of the proposed
State of South Dakota; each state shall be credited also with all
balances of appropriations made by the Seventeenth Legislative
Assembly of the Territory of Dakota for the account of the
public institutions, grounds or buildings situated within its limits,
remaining unexpended on March 8, 1889. If there shall be any
indebtedness except the indebtedness represented by the bonds
and refunding warrants hereinbefore mentioned, each state shall
at the time of such final adjustment of accounts, assume its share
of said indebtedness as determined by the amount paid on account
of the public institutions, grounds or buildings of such state in
excess of the receipts from counties, municipalities, railroad cor-
porations or persons within the limits of said state, as provided in
this article; and if there should be a surplus at the time of such
final adjustment, each state shall be entitled to the amounts
received from counties, municipalities, railroad corporations or
persons within its limits over and above the amount charged it.
And the State of North Dakota hereby obligates itself to
pay such part of the debts and liabilities of the Territory
of Dakota as is declared by the foregoing agreement to be its
proportion thereof, the same as if such proportion had been
originally created by said State of North Dakota as its own debt
or liability.
SEC. 204. Jurisdiction is ceded to the United States over the
ཡ་་ཨ ལ
THE CONSTITUTION.
xxxix
military reservations of Fort Abraham Lincoln, Fort Buford, Fort
Pembina and Fort Totten, heretofore declared by the President of
the United States; Provided, Legal process, civil and criminal, of
this state, shall extend over such reservations in all cases in which
exclusive jurisdiction is not vested in the United States, or of
crimes not committed within the limits of such reservations.
SEC. 205. The State of North Dakota hereby accepts the
several grants of land granted by the United States to the State of
North Dakota by an act of congress entitled "An act to provide
for the division of Dakota into two states, and to enable the
people of North Dakota, South Dakota, Montana and Washington
to form Constitutions and state governments, and to be admitted
into the Union on equal footing with the original states, and to
make donations of public lands to such states," under the con-
ditions and limitations therein mentioned; reserving the right
however to apply to congress for modifications of said conditions
and limitations in case of necessity.
ARTICLE XVII.
MISCELLANEOUS.
SEC. 206. The name of this state shall be "North Dakota."
The State of North Dakota shall consist of all the territory included
within the following boundaries, to-wit: Commencing at a point
in the main channel of the Red River of the north, where the
forty-ninth degree of north latitude crosses the same; thence
south up the main channel of the same and along the boundary
line of the State of Minnesota to a point where the Seventh
Standard parallel intersects the same; thence west along said
Seventh Standard parellel produced due west to a point where
it intersects the twenty-seventh meridian of longitude west from
Washington; thence north on said meridian to a point where it
intersects the forty-ninth degree of north latitude; thence east
along said line to place of beginning.
SEC. 207. The following described seal is hereby declared to
be and hereby constituted the Great Seal of the State of North
Dakota, to-wit: A tree in the open field, the trunk of which is
surrounded by three bundles of wheat; on the right a plow, anvil
and sledge; on the left a bow crossed with three arrows, and an
Indian on horseback pursuing a buffalo towards the setting sun;
the foliage of the tree arched by a half circle of forty two
stars, surrounded by the motto "Liberty and Union now and for-
ever, one and inseparable;" the words "Great Seal" at the top; the
words "State of North Dakota" at the bottom; "October 1st" on
on the left and "1889" on the right. The seal to be two and one-
half inches in diameter.
SEC. 208. The right of the debtor to enjoy the comforts and
necessaries of life shall be recognized by wholesome laws, exempt-
xl
THE CONSTITUTION.
ing from forced sale to all heads of families a homestead the value
of which shall be limited and defined by law, and a reasonable
amount of personal property; the kind and value shall be fixed by
law. This section shall not be construed to prevent liens against
the homestead for labor done and materials furnished in the im-
provement thereof, in such manner as may be prescribed by law.
SEC. 209. The labor of children under twelve years of age,
shall be prohibited in mines, factories and workshops in this
state.
SEC. 210. All flowing streams and natural water courses shall
forever remain the property of the State for mining, irrigating
and manufacturing purposes.
SEC. 211. Members of the Legislative Assembly and judicial
department except such inferior officers as may be by law exempted
shall, before they enter on the duties of their respective offices,
take and subscribe the following oath or affirmation: "I do sol-
emnly swear (or affirm as the case may be) that I will support the
Constitution of the United States and the Constitution of the
State of North Dakota; and that I will faithfully discharge the
duties of the office of
according to the best of my
ability, so help me God," (if an oath), (under pains and penalties
of perjury), if an affirmation, and no other oath, declaration, or
test shall be required as a qualification for any office or public
trust.
SEC. 212. The exchange of "black lists" between corporations
shall be prohibited.
SEC. 213. The real and personal property of any woman in
this State, acquired before marriage, and all property to which
she may after marriage become in any manner rightfully entitled,
shall be her separate property and shall not be liable for the
debts of her husband.
ARTICLE XVIII.
CONGRESSIONAL AND LEGISLATIVE APPORTIONMENT.
SEC. 214. Until otherwise provided by law, the member of the
House of Representatives of the United States apportioned to this
State, shall be elected at large.
Until otherwise provided by law, the Senatorial and Represent-
ative Districts shall be formed, and the senators and the repre-
sentatives shall be apportioned as follows:
The First District shall consist of the townships of Walhalla,
St. Joseph, Neche, Pembina, Bathgate, Carlisle, Joliet, Midland,
Lincoln and Drayton, in the county of Pembina, and be entitled
to one senator and two representatives.
The Second District shall consist of the townships of St.
Thomas, Hamilton, Cavalier, Akra, Beauleau, Thingvalla, Gardar,
THE CONSTITUTION.
xli
Park, Crystal, Elora and Lodema, in the county of Pembina, and
be entitled to one senator and two representatives.
The Third District shall consist of the townships of Perth,
Latona, Adams, Silvesta, Cleveland, Morton, Vesta, Tiber, Med-
ford, Vernon, Golden, Lampton, Eden, Rushford, Kensington,
Dundee, Ops, Prairie Center, Fertile, Park River and Glenwood,
in the county of Walsh, and be entitled to one senator and two
representatives.
The Fourth District shall consist of the townships of Forest
River, Walsh Center, Grafton, Farmington, Ardock, Village of
Ardock, Harrison, City of Grafton, Oakwood, Martin, Walshville,
Pulaski, Ackton, Minto and St. Andrews, in the county of Walsh,
and be entitled to one senator and three representatives.
The Fifth District shall consist of the townships of Gilby, Johns-
town, Straban, Wheatfield, Hegton, Arvilla, Avon, Northwood,
Lind, Grace, Larimore, and the city of Larimore, Elm Grove,
Agnes, Inkster, Elkmount, Oakwood, Niagara, Moraine, Logan and
Loretta in the county of Grand Forks, and be entitled to one sen-
ator and two representatives.
The Sixth District shall consist of the Third, Fourth, Fifth and
Sixth wards of the city of Grand Forks, as now constituted, and
the townships of Falconer, Harvey, Turtle River, Ferry, Rye,
Blooming, Meckinock, Lakeville and Levant in the county of Grand
Forks and be entitled to one senator and two representatives.
The Seventh District shall consist of the First and Second wards
of the city of Grand Forks, as now constituted, and the townships
of Grand Forks, Brenna, Oakville, Chester, Pleasant View, Fair-
field, Allendale, Walle, Bentru, Americus, Michigan, Union and
Washington, in the county of Grand Forks, and be entitled to one
senator and two representatives.
The Eighth District shall consist of the county of Traill and be
entitled to one senator and four representatives.
The Ninth District shall consist of the township of Fargo and
the City of Fargo in the County of Cass and the fractional town-
ship number 139 in range 48, and be entitled to one senator and
two representatives.
The Tenth District shall consist of the townships of Noble,
Wiser, Harwood, Reed, Barnes, Stanley, Pleasant, Kenyon,
Gardner, Berlin, Raymond, Mapleton, Warren, Norman, Elm
River, Harmony, Durbin, Addison, Davenport, Casselton and the
City of Casselton, in the County of Cass, and be entitled to one
senator and three representatives.
The Eleventh District shall consist of the townships of Webster,
Rush River, Hunter, Arthur, Amenia, Everest, Maple River,
Leonard, Dows, Erie, Empire, Wheatland, Gill, Walburg, Watson,
Page, Rich, Ayr, Buffalo, Howes, Eldred, Highland, Rochester,
xlii
THE CONSTITUTION.
Lake, Cornell, Tower, Hill, Clifton and Pontiac, in the County of
Cass, and be entitled to one senator and three representatives.
The Twelfth District shall consist of the county of Richland
and be entitled to one senator and three representatives.
The Thirteenth District shall consist of the county of Sargent
and be entitled to one senator and two representatives.
The Fourteenth District shall consist of the county of Ransom
and be entitled to one senator and two representatives.
The Fifteenth District shall consist of the county of Barnes
and be entitled to one senator and two representatives.
The Sixteenth District shall consist of the counties of Steele
and Griggs and be entitled to one senator and two representatives.
The Seventeenth District shall consist of the county of Nelson
and be entitled to one senator and one representative.
The Eighteenth District shall consist of the county of Cavalier
and be entitled to one senator and two representatives.
The Nineteenth District shall consist of the counties of Towner
and Rolette and be entitled to one senator and one representative.
The Twentieth District shall consist of the counties of Benson
and Pierce and be entitled to one senator and two representatives.
The Twenty-first District shall consist of the county of Ramsey
and be entitled to one senator and two representatives.
The Twenty-second District shall consist of the counties of
Eddy, Foster and Wells and be entitled one senator and two rep-
resentatives.
The Twenty-third District shall consist of the county of Stuts-
man, and be entitled to one senator and two representatives.
The Twenty-fourth District shall consist of the county of La-
Moure, and be entitled to one senator and one representative.
The Twenty-fifth District shall consist of the county of Dickey,
and be entitled to one senator and two representatives.
The Twenty-sixth District shall consist of the counties of Em-
mons, McIntosh, Logan and Kidder, and be entitled to one senator
and two representatives.
The Twenty-seventh District shall consist of the county of Bur-
leigh, and be entitled to one senator and two representatives.
The Twenty-eighth District shall consist of the counties of Bot-
tineau and McHenry and be entitled to one senator and one rep-
resentative.
The Twenty-ninth District shall consist of the counties of Ward,
McLean, and all the unorganized counties laying north of the Mis-
souri river, and be entitled to one senator and one representative.
The Thirtieth District shall consist of the counties of Morton
and Oliver, and be entitled to one senator and two representatives.
THE CONSTITUTION.
xliii
The Thirty-first District shall consist of the counties of Mercer,
Stark and Billings and all the unorganized counties lying south
of the Missouri river, and be entitled to one senator and one rep-
resentative.
ARTICLE XIX.
PUBLIC INSTITUTIONS.
SEC. 215. The following public institutions of the State are
permanently located at the places hereinafter named, each to have
the lands specifically granted to it by the United States, in the
Act of Congress, approved February 22, 1889, to be disposed of
and used in such manner as the Legislative Assembly may pre-
scribe, subject to the limitations provided in the article on school
and public lands contained in this Constitution.
First. The seat of government at the city of Bismarck in the
county of Burleigh.
Second. The State University and the School of Mines at the
city of Grand Forks, in the county of Grand Forks.
Third. The Agricultural College at the city of Fargo in the
county of Cass.
Fourth. A State Normal School at the city of Valley City, in
the county of Barnes; and the Legislative Assembly in appor-
tioning the grant of eighty thousand acres of land for Normal
schools made in the Act of Congress referred to shall grant to the
said Normal School at Valley City as aforementioned, fifty thous-
and (50,000) acres, and said lands are hereby appropriated to
said institution for that purpose.
Fifth. The Deaf and Dumb Asylum at the city of Devils Lake
in the county of Ramsey.
Sixth. A State Reform School at the city of Mandan in the
county of Morton.
Seventh. A State Normal School at the city of Mayville, in
the county of Traill. And the Legislative Assembly in apportion-
ing the grant of lands made by Congress, in the act aforesaid for
State Normal Schools, shall assign thirty thousand acres to the in-
stitution hereby located at Mayville, and said lands are hereby
appropriated for said purpose.
Eighth. A State Hospital for the Insane and an Institution for
the Feeble-Minded, in connection therewith, at the city of James-
town in the county of Stutsman. And the Legislative Assembly
shall appropriate twenty thousand acres of the grant of lands made
by the act of Congress aforesaid for "Other Educational and Char-
itable Institutions" to the benefit and for the endowment of said
institution.
SEC. 216. The following named public institutions are hereby
permanently located as hereinafter provided, each to have so much
THE CONSTITUTION.
xliv
of the remaining grant of one hundred and seventy thousand acres
of land made by the United States for "Other Educational and
Charitable Institutions," as is allotted below, viz:
First. A Soldiers' Home, when located, or such other charitable
institution as the Legislative Assembly may determine, at Lisbon,
in the county of Ransom, with a grant of forty thousand acres of
land.
Second. A Blind Asylum, or such other institution as the Leg-
islative Assembly may determine, at such place in the county of
Pembina as the qualified electors of said county may determine at
an election to be held as prescribed by the Legislative Assembly,
with a grant of thirty thousand acres.
Third. An Industrial School and School for Manual Training,
or such other educational or charitable institution as the Legis-
lative Assembly may provide, at the town of Ellendale in the
county of Dickey, with a grant of forty thousand acres.
Fourth. A School of Forestry or such other institution as the
Legislative Assembly may determine, at such place in one of the
counties of McHenry, Ward, Bottineau, or Rollette, as the electors
of said counties may determine by an election for that purpose,
to be held as provided by the Legislative Assembly.
Fifth. A scientific school, or such "other educational or chari-
table institution" as the Legislative Assembly may prescribe, at
the city of Wahpeton, county of Richland, with a grant of forty
thousand acres; Provided, That no other institution of a charac-
ter similar to any one of those located by this article shall be
established or maintained without a revision of this Constitution.
ARTICLE XX.
PROHIBITION.
To be submitted to a separate vote of the people as provided by
the schedule and ordinance.
SEC. 217. No person, association or corporation shall within
this State, manufacture for sale or gift, any intoxicating liquors
and no person, association or corporation shall import any of the
same for sale or gift, or keep or sell or offer the same for sale, or
gift, barter or trade as a beverage. The Legislative Assembly
shall by law prescribe regulations for the enforcement of the
provisions of this article and shall thereby provide suitable pen-
alties for the violation thereof.
SCHEDULE.
SECTION 1. That no inconvenience may arise from a change of territorial
government to state government, it is declared that all writs, actions, prosecu-
tions, claims and rights of individuals and bodies corporate shall continue as
if no change of government had taken place, and all processes which may, be-
fore the organization of the judicial department under this Constitution, be
THE CONSTITUTION.
xlv
issued under the authority of the Territory of Dakota shall be as valid as if is-
sued in the name of the State.
SEC. 2. All laws now in force in the Territory of Dakota, which are not re-
pugnant to this Constitution, shall remain in force until they expire by their
own limitations or be altered or repealed.
SEC. 3. All fines, penalties, forfeitures and escheats accuring to the Terri-
tory of Dakota shall accrue to the use of the states of North Dakota and South
Dakota and may be sued for and recovered by either of said states as necessity
may require.
SEC. 4. All recognizances, bonds, obligations or other undertakings here-
tofore taken, or which may be taken before the organization of the judicial de-
partment under this Constitution, shall remain valid, and shall pass over to,
and may be prosecuted in the name of the state; all bonds, obligations or other
undertakings executed to this territory, or to any officer in his official capacity,
shall pass over to the proper state authority, and to their successors in office,
for the uses therein respectively expressed, and may be sued for and recovered
accordingly; all criminal prosecutions and penal actions which have arisen, or
may arise before the organization of the judicial department, under this Con-
stitution, or which shall then be pending, may be prosecuted to judgment and
execution in the name of the state.
SEC. 5. All property, real and personal, and credits, claims and choses in
action belonging to the Territory of Dakota at the time of the adoption of this
Constitution, shall be vested in and become the property of the States of North
Dakota and South Dakota.
•
SEC. 6. Whenever any two of the judges of the Supreme court of the
State, elected under the provisions of this Constitution shall have qualified in
their offices, the causes then pending in the Supreme court of the Territory on
appeal or writ of error from the district courts of any county or subdivision
within the limits of this State, and the papers, records and proceedings of said
court shall pass into the jurisdiction and possession of the Supreme court of
the State, except as otherwise provided in the enabling act of Congress, and
until so superseded the Supreme court of the Territory and the judges thereof
shall continue, with like powers and jurisdiction, as if this Constitution had
not been adopted. Whenever the judge of the district court of any district
elected under the provisions of this Constitution shall have qualified in his
office, the several causes then pending in the district court of the Territory
within any county in such district, and the records, papers and proceedings of
said district court, and the seal and other property pertaining thereto, shall
pass into the jurisdiction and possession of the district court of the State for
such county, except as provided in the enabling act of Congress, and until the
district courts of this Territory shall be superseded in the manner aforesaid,
the said district courts and the judges thereof shall continue with the same
jurisdiction and power to be exercised in the same judicial districts respect-
ively as heretofore constituted under the laws of the Territory.
SEC. 7. Until otherwise provided by law, the seals now in use in the
supreme and district courts of this Territory are hereby declared to be the
seals of the supreme and district courts respectively of the State.
SEC. 8. Whenever this Constitution shall go into effect, the books,
records and papers, and proceedings of the probate court in each county, and
all causes and matters of administration and other matters pending therein,
shall pass into the jurisdiction and possession of the county court of the same
county, and the said county court shall proceed to final decree or judg-
ment, order or other determination in the said several matters and causes as
the said probate court might have done if this Constitution had not been
adopted. * And until the election and qualification of the judges of the county
courts provided for in this Constitution, the probate judges shall act as the
judges of the county courts within their respective counties, and the seal of
the probate court in each county shall be the seal of the county court therein,
until the said court shall have procured a proper seal.
xlvi
THE CONSTITUTION.
SEC. 9. The terms "probate court" or "probate judge" whenever occuring
in the statutes of the territory shall, after this Constitution goes into effect, be
held to apply to the county court or county judge.
SEC. 10. All territorial, county and precinct officers, who may be in office
at the time this Constitution takes effect, whether holding their offices under
the authority of the United States or of the Territory, shall hold and exercise
their respective offices, and perform the duties thereof as prescribed in this
Constitution, until their successors shall be elected and qualified in accor-
dance with the provisions of this Constitution, and official bonds of all such
officers shall continue in full force and effect as though this Constitution had
not been adopted; and such officers for their term of service, under this Con-
stitution, shall receive the same salaries and compensation as is by this Con-
stitution, or by the laws of the territory, provided for like officers; Provided,
That the county and precinct officers shall hold their offices for the term for
which they were elected. There shall be elected in each organized county in
this State, at the election to be held for the ratification of this Constitution, a
clerk of the district court, who shall hold his office under said election until
his successor is duly elected and qualified. The judges of the district court
shall have power to appoint states attorneys in any organized county where no
such attorneys have been elected, which appointment shall continue until the
general election to be held in 1890, and until his successor is elected and qualified.
SEC. 11. This Constitution shall take effect and be in full force immediately
upon the admission of the territory as a state.
SEC. 12. Immediately upon the adjournment of this Convention the Gov-
ernor of the Territory, or in case of his absence or failure to act, the Secretary
of the Territory, or in case of his absence or failure to act, the President of the
Constitutional Convention shall issue a proclamation, which shall be published
and a copy thereof mailed to the chairman of the board of county commission-
ers of each county, calling an election by the people on the first Tuesday in
October, 1889, of all the state and district officers created and made elective by
this Constitution. This Constitution shall be submitted for adoption or rejec-
tion at said election to a vote of the electors qualified by the laws of this terri-
tory to vote at all elections. At the election provided for herein the qualified
voters shall vote directly for or against this Constitution and for or against the
article separately submitted.
SEC. 13. The board of commissioners of the several counties shall there-
upon order such election for said day, and shall cause notice thereof to be given
"for the period of 20 days in the manner provided by law." Every qualified
elector of the territory, at the date of said election, shall be entitled to vote
thereat. Said election shall be conducted in all respects in the same manner
as provided by the laws of the territory for general elections, and the returns
for all state and district officers, and members of the Legislative Assembly, shall
be made to the canvassing board hereinafter provided for.
SEC. 14. The Governor, Secretary and Chief Justice or a majority of
them, shall constitute a board of canvassers to canvass the vote of such elec-
tion for all state and district officers and members of the Legislative Assembly.
The said board shall assemble at the seat of government of the Territory on
the fifteenth day after the day of such election (or on the following day if such
day falls on Sunday), and proceed to canvass the votes on the adoption of this
Constitution and for all State and district officers and members of the Legislative
Assembly in the manner provided by the laws of the Territory for canvassing
the vote for Delegate to Congress, and they shall issue certificates of election
to the persons found to be elected to said offices severally, and shall make and
file with the Secretary of the Territory an abstract certified by them, of the
number of votes cast for or against the adoption of the Constitution, and for
each person for each of said offices and of the total number of votes cast in
each county.
SEC. 15. All officers elected at such election shall, within sixty days after
the date of the executive proclamation admitting the State of North Dakota
THE CONSTITUTION.
xlvii
:
into the Union, take the oath required by this Constitution, and give the same
bond required by the law of the Territory to be given in case of like officers
of the Territory and districts, and shall thereupon enter upon the duties of
their respective offices; but the Legislative Assembly may require by law all
such officers to give other or further bonds as a condition of their continuance
in office.
SEC. 16. The judges of the district court who shall be elected at the elec-
tion herein provided for shall hold their offices until the first Monday in Janu-
ary, 1893, and until their successors are elected and qualified. All other state
officers, except judges of the supreme court, who shall be elected at the election
hereiu provided for, shall hold their offices until the first Monday in January,
1891, and until their successors are elected and qualified. Until otherwise pro-
vided by law the judges of the supreme court shall receive for their services
the salary of four thousand dollars per annum, payable quarterly; and the
district judges shall receive for their services the salary of three thousand dol-
lars per annum, payable quarterly.
SEC. 17. The Governor-elect of the state immediately upon his qualifying
and entering upon the duties of his office shall issue his proclamation conven-
ing the Legislative Assembly of the State at the seat of government, on a day
to be named in said proclamation, and which shall not be less than fifteen nor
more than forty days after the date of such proclamation. And said Legisla-
tive Assembly after organizing shall proceed to elect two senators of the United
States for the State of North Dakota; and at said election the two persons who
shall receive a majority of all the votes cast by the said senators and represen-
tatives shall be elected such United States Senators. And the presiding officers
of the senate and house of representatives shall each certify the election to the
Governor and Secretary of the State of North Dakota; and the Governor and
Secretary of State shall certify the elections of such senators as provided by
law.
SEC. 18. At the election herein provided for there shall be elected a Rep-
resentative to the Fifty-first Congress of the United States, by the electors of
the state at large.
SEC. 19. It is hereby made the duty of the Legislative Assembly at its
first session to provide for the payment of all debts and indebtedness au-
thorized to be incurred by the Constitutional Convention of North Dakota,
which shall remain unpaid after the appropriation made by Congress for the
same shall have been exhausted.
SEC. 20. There shall be submitted at the same election at which this Con-
stitution is submitted for rejection or adoption, Article 20 entitled "prohibi-
tion" and persons who desire to vote for said article shall have written or
printed on their ballots "for prohibition," and all persons desiring to vote
against said article shall have written or printed on their ballots "against pro-
hibition." If it shall appear according to the returns herein provided for that
a majority of all the votes cast at said election for and against prohibition are
for prohibition, then said Article 20 shall be and form a part of this Consti-
tution and be in full force and effect as such from the date of the admission of
this state into the Union. But if a majority of said votes shall appear ac-
cording to said returns to be against prohibition, then said Article 20 shall
be null and void, and shall not be a part of this Constitution.
SEC. 21. The agreement made by the Joint Commission of the Constitu-
tional Conventions of North Dakota and South Dakota concerning the records,
books and archives of the Territory of Dakota, is hereby ratified and confirmed;
which agreement is in the words following: That is to say-
The following books, records and archives of the Territory of Dakota
shall be the property of North Dakota, to-wit: All records, books and arch-
ives in the offices of the Governor and Secretary of the Territory (except records
of Articles of Incorporation of Domestic Corporations, returns of election of
Delegates to the Constitutional Convention of 1889 for South Dakota, returns of
elections held under the so called Local Option Law, in counties within the
xlviii
THE CONSTITUTION.
limits of South Dakota, bonds of Notaries Public appointed for counties within
the limits of South Dakota, papers relating to the organization of counties situate
within the limits of South Dakota, all which records and archives are a part
of the records and archives of said Secretary's office; excepting also, census re-
turns from counties situate within the limits of South Dakota and papers
relating to requisitions issued upon the application of officers of counties
situate within the limits of South Dakota, ali which are a part of the records
and archives of said Governor's office). And the following records, books and
archives shall also be the property of the State of North Dakota, to-wit:
Vouchers in the office or custody of the Auditor of this Territory relating
to expenditures on account of public institutions, grounds or buildings situate
within the limits of North Dakota. One Warrant Register in the office of the
Treasurer of this territory-being a record of warrants issued under and by
virtue of Chapter 24 of the laws enacted by the Eighteenth Legislative Assem-
bly of Dakota Territory All letters, receipts and vouchers in the same office
now filed by counties and pertaining to counties within the limits of North
Dakota. Paid and canceled coupons in the same office representing interest on
bonds of South Dakota which said State of North Dakota is to assume and
pay. Reports of gross earnings of the year 1888 in the same office, made by
corporations operating lines of railroads situated wholly or mainly within the
limits of North Dakota. Records a d papers of the office of the Public
Examiner of the Second District of the territory. Records and papers of
the office of the District Board of Agriculture. Records and papers in the of-
fice of the Board of Pharmacy of the District of North Dakota.
All records, books and archives of the Territory of Dakota which it is not
herein agreed shall be the property of North Dakota, shall be the property of
South Dakota.
The following books shall be copied and the copies shall be the property
of North Dakota and the cost of such copies shall be borne equally by said
States of North Dakota and South Dakota. That is to say:
Appropriation Ledger for years ending November 1889-90-one volume.
The Auditor's Current Warrant Register-one volume.
Insurance Record for 1889-one volume.
Treasurer's Cash Book-“D.”
Assessment Ledger-"B."
Dakota Territory Bond Register-one volume.
Treasurer's Current Ledger-one volume.
The originals of the foregoing volumes which are to be copied shall at any
time after such copying shall have been completed, be delivered on demand to
the proper authorities of the State of South Dakota.
All other records, books and archives which it is hereby agreed shall be the
property of South Dakota, shall remain at the Capitol of North Dakota until
demanded by the Legislature of the State of South Dakota and until the State
of North Dakota shall have had a reasonable time after such demand is made
to provide copies or abstracts of such portions thereof as the said State of
North Dakota may desire to have copies or abstracts of.
The State of South Dakota may also provide copies or abstracts of such
records, books and archives, which it is agreed shall be the property of North
Dakota, as said State of South Dakota shall desire to have copies or abstracts
of.
The expense of all copies or abstracts of records, books and archives
which it is herein agreed may be made, shall be borne equally by said two
states.
SEC. 22. Should the counties containing lands which form a part of the
grant of lands made by Congress to the Northern Pacific railroad company be
compelled by law to refund moneys paid for such lands or any of them by
purchasers thereof at tax sales thereof, based upon taxes illegally levied upon
said lands, then and in that case the State of North Dakota shall appropriate
the sum of $25,000, or so much thereof as may be necessary to reimburse said
THE CONSTITUTION.
xlix
counties for the amount so received from said illegal tax sales and paid by
said counties into the treasury of Dakota Territory.
SEC. 23. This Constitution shall after its enrollment be signed by the
President of this Convention and the Chief Clerk thereof and such delegates
as desire to sign the same, whereupon it shall be deposited in the office of the
Secretary of the Territory, where it may be signed at any time by any delegate
who shall be prevented from signing the same for any reasons at the time of
the adjournment of this Convention.
SEC. 24. In case the territorial officers of the Territory of Dakota, or any
of them who are now required by law to report to the Governor of the Terri-
tory, annually or biennially, shall prepare and publish such reports covering
the transactions of their offices up to the time of the admission of the State of
North Dakota into the Union, the Legislative Assembly shall make sufficient
appropriations to pay one-half of the cost of such publication.
SEC. 25. The Governor and Secretary of the Territory are hereby author-
ized to make arrangements for the meeting of the first Legislative Assembly,
and the inauguration of the State government.
SEC. 26. The Legislative Assembly shall provide for the editing, and for
the publication, in an independent volume, of this Constitution, as soon as it
shall take effect, and whenever it shall be altered or amended, and shall cause
to be published in the same volume the Declaration of Independence, the
Constitution of the United States and the Enabling Act.
Done at Bismarck, Dakota, in open Convention, this 17th day of August,
A. D. 1889.
F. B. FANCHER,
President.
JOHN G. HAMILTON,
Chief Clerk.
Const-4
1
STANDING COMMITTEES.
STANDING COMMITTEES
OF THE
NORTH DAKOTA CONSTITUTIONAL CONVENTION
Printing-Roger Allin, chairman, Walsh; C. P. Parsons, Rolette; C. V.
Brown, Wells; J. B. Gayton, Emmons; W. J. Clapp, Cass.
Reporting and Publication—J. F. Selby, chairman, Traill; Andrew Blew-
ett, Stutsman; J. Wellwood, Barnes; O. G. Meacham, Foster; A. S. Parsons,
Morton.
Accounts and Expenses-O. G. Meacham, chairman, Foster; E. W. Paul-
son, Traill; A. W. Hoyt, Morton; B. R. Glick, Cavalier; M. F. Hegge, Traill;
Edward Lohnes, Ramsey; Elmer Elliott, Barnes.
Preamble and Bill of Rights-R. N. Stevens, chairman, Ransom; Elmer
Elliott, Barnes; A. D. Flemington, Dickey; S. H. Moer, LaMoure; Joseph
Powles, Cavalier; M. V. Linwell, Nelson; J. E. Carland, Burleigh; E. W.
Chaffee, Cass; Ezra Turner, Bottineau.
Legislative Department-E. A. Williams, chairman, Burleigh; Roger
Allin, Walsh; W. E. Purcell, Richland; Addison Leach, Cass; E. S. Rolfe,
Benson; R. B. Richardson, Pembina; R. N. Stevens, Ranson; Andrew Slotten,
Richland; J. W. Scott, Barnes; Knud Nomland, Traill; A. F. Appleton, Pem-
bina; William Budge, Grand Forks; W. H. Rowe, Dickey.
Executive -W. H. Rowe, Chairman, Dickey; John Shuman, Sargent; J.
H. Mathews, Grand Forks; H. F. Miller, Cass; Alexander Griggs, Grand
Forks; David Bartlett, Griggs; J. A. Douglas, Walsh; J. L. Colton, Ward;
William Ray, Stark.
Judicial Department-John E. Carland, chairman, Burleigh; W. S. Lau-
der, Richland; David Bartlett, Griggs; J. F. Selby, Traill; R. M. Pollock, Cass;
J. F. O'Brien, Ramsey; B. F. Spalding, Cass; M. K. Marrinan, Walsh; Richard
Bennett, Grand Forks; S. H. Moer, LaMoure; V. B. Noble, Bottineau; R. N.
Stevens, Ransom; A. D. Robertson, Walsh; M. N. Johnson, Nelson; W. H.
Rowe, Dickey.
Elective Franchise-A. S. Parsons, chairman, Morton; Charles Carothers,
Grand Forks; Ezra Turner, Bottineau; R. M. Pollock, Cass; H. M. Clark,
Eddy; James Bell, Walsh; J. Wellwood, Barnes; G. H. Fay, McIntosh; H. F.
Hegge, Traill; O. G. Meacham, Foster; W. G. Best, Pembina; William Ray,
Stark; V. B. Noble, Bottineau.
14
STANDING COMMITTEES.
li
Education-J. D. McKenzie, chairman, Sargent; H. M. Clark, Eddy; W.
J. Clapp, Cass; Elmer Elliott, Barnes; Charles Carothers, Grand Forks; J.
McBride, Cavalier; J. A. Douglas, Walsh.
Public Institutions and Buildings-H. F. Miller, chairman, Cass; A. O.
Whipple, Ramsey; Richard Bennett, Grand Forks; Joseph Powers, Sargent;
M. K. Marrinan, Walsh; J. W. Scott, Barnes; E. A. Williams, Burleigh; E. W.
Camp, Stutsman; A. W. Hoyt, Morton.
Public Debt and Public Works-E. D. Wallace, chairman, Steele; T. W.
Bean, Nelson; Knud Nomland, Traill; J. Lowell, Cass; H. L. Holmes, Pem-
bina; Alexander Griggs, Grand Forks; B. R. Glick, Cavalier; J. Powers, Sar-
gent; G. H. Fay, McIntosh.
Militia—P. McHugh, chairman, Cavalier; G. H. Fay, McIntosh; John
Almen, Walsh; Andrew Blewett, Stutsman; J. H. Mathews, Grand Forks.
County and Township Organizations—A. F. Appleton, chairman, Pem-
bina; T. W. Bean, Nelson; Enos Gray, Cass; E. S. Rolfe, Benson; J. McBride,
Cavalier; A. Sandager, Ransom: John Shuman, Sargent; E. W. Chaffee, Cass;
M. V. Linwell, Grand Forks.
Apportionment and Representation-Andrew Slotten, Chairman, Rich-
land; H. L. Holmes, Pembina; A. F. Appleton, Pembina; P. McHugh, Cava-
lier; J. L. Colton, Ward; Harvey Harris, Burleigh; A. S. Parsons, Morton; C.
V. Brown, Wells; L. D. Bartlett, Dickey; A. Sandager, Ransom; John Shu-
man, Sargent; H. F. Miller, Cass; H. M. Peterson, Cass; W. J. Clapp, Cass; J.
Wellwood, Barnes; Andrew Blewett, Stutsman; E. S. Rolfe, Benson; E. D.
Wallace, Steele; Knud Nomland, Traill; William Budge, Grand Forks; J. H.
Mathews, Grand Forks; M. N. Johnson, Nelson: Edward Lohnes, Ramsey;
James Bell, Walsh; John Almen, Walsh.
Revenue and Taxation-J. L. Colton, chairman, Ward; W. S. Lauder,
Richland; M. F. Hegge, Traill; E. D. Wallace, Steele; Enos Gray, Cass; Har-
vey Harris, Burleigh: W. B. Best, Pembina; A. D. Robertson, Walsh; J. Mc-
Bride, Cavalier; E. M. Paulson Traill; S. H. Moer, LaMoure; H. M. Peterson,
Cass; Joseph Powles, Cavalier; David Bartlett, Griggs; A. O. Whipple, Ram-
sey.
Municipal Corporations-Richard Bennett, chairmrn, Grand Forks; J.
Lowell, Cass: J. F. O'Brien, Ramsey; C. P. Parsons, Rolette; A. D. Fleming-
ton, Dickey; John Powers, Sargent; Addison Leach, Cass; J. F. Selby, Traill;
P. McHugh, Cavalier.
Corporations Other than Municipal-M. N. Johnson, chairman, Nelson;
W. E, Purcell, Richland; E. D. Wallace, Steele; Jacob Lowell, Cass; L. D.
Bartlett, Dickey; S. H. Moer, LaMoure; James Bell, Walsh; J. L. Colton,
Ward; A. S. Parsons, Morton.
Miscellaneous Subjects-W. E. Purcell, chairman, Richland; J. E. Car-
land, Burleigh; A. W. Hoyt, Morton; C. V. Brown, Wells; E. W. Chaffee,
Cass; A. P. Haugen, Grand Forks; M. K. Marrinan, Walsh.
Schedule-W. S. Lauder, chairman, Richland; H. F. Miller, Cass; J. B.
Gayton, Emmons; John Almen, Walsh; V. B Noble, Bottineau; E. A. Wil-
liams, Burleigh; J. D. McKenzie, Sargent.
lii
STANDING COMMITTEES.
School and Public Lands-H. M. Clark, chairman, Eddy; B. F. Spalding,
Cass; T. W. Bean, Nelson; William Budge, Grand Forks; W. B. Best, Pem-
bina; William Ray, Stark; J. A. Douglas, Walsh; R. B. Richardson, Pembina;
Addison Leach, Cass; A. D. Robertson, Walsh; J. D. McKenzie, Sargent;
Roger Allin, Walsh; L. D. Bartlett, Dickey.
Temperance-A. P. Haugen, chairman, Grand Forks; L. D. Bartlett,
Dickey; R. M. Pollock, Cass; A. Blewett, Stutsman; Ezra Turner, Bottineau.
Revision and Adjustment-David Bartlett, chairman, Griggs; O. G.
Meacham, Foster; J. E. Carland, Burleigh; E. W. Camp,. Stutsman; V. B.
Noble, Bottineau.
Impeachment and Rewoval from Office-Ezra Turner, chairman, Bot-
tineau; M. V. Linwell, Nelson; R. B. Richardson, Pembina; E. W. Paulson,
Traill; A. D. Flemington, Dickey; C. V. Brown, Wells; J. F. O'Brien. Ramsey.
VOTE ON THE CONSTITUTION.
liii
VOTE ON THE CONSTITUTION.
Counties.
For.
Against.
Barnes...
Burleigh
Benson.
Bottineau
Billings
Cass
•
Cavalier
Dickey.
Eddy
Emmons
Foster
• • •
• • 4
• •
•
Grand Forks.
Griggs
Kidder.
•
LaMoure.
Logan
•
Morton.
McHenry
McLean.
McIntosh
Mercer..
Nelson.
•
• •
1,673
8
1,083
2
523
45
450
116
•
•
57
1
4,049
31
684
269
1,471
26
381
13
462
2
333
4
•
687
1,930
351
150
340
3
818
11
90
924
21
257
7
264
394
84
1
127
660
Oliver.
·
47
30
Pembina
Pierce..
Richland
Ransom
Ramsey
Rolette.
•
•
1,762
830
221
1
• •
1,409
251
1,110
23
810
231
435
10
Stark....
610
Stutsman
Steele.
Sargent..
· •
•
1,334
47
241
361
•
973
177
Traill..
•
•
1,411
462
Towner
284
93
Walsh.
•
•
606
2,248
Wells
336
Ward
350
43
Total..
27,441
8,107
Majority for Constitution.
19,334
INDEX OF MEMBERS.
ALLIN, ROGER, Delegate from Walsh—
motions made by
•
resolution offered by
report submitted by
• •
ALMEN, JOHN M., Delegate from Walsh-
motion made by.
propostion introduced by
remarks by
• •
•
APPLETON, ALBERT F., Delegate from Pembina—
motions made by
•
resolution offered by
proposition submitted by.
·
remarks by..
BEAN, THERO W., Delegate from Nelson-
motions made by.
motion to amend by
proposition introduced by
•
·
322, 645
246
246
•
•
397
• •
453
453
93, 131, 611
•
•
530
611
.93, 96, 128, 210, 339, 394, 456,.611, 614
128, 225, 351, 493.
361
491
remarks by.......75, 83, 131, 172, 174, 181, 205, 291, 321, 342, 361, 362,
369, 439, 491, 513, 514, 518, 605, 628, 651.
BELL, JAMES, Delegate from Walsh-
motion made by.
remarks by
• •
BENNETT, RICHARD, Delegate from Grand Forks—
motions to amend by.
remarks by
•
•
395
· •
.188, 335, 396, 489, 619
•
214, 225, 435
184, 226, 270, 437, 486, 549, 602, 629,
.360, 573.
BARTLETT, LORENZ, D., Delegate from Dickey-
motions to amend by..
remarks by.
69, 94, 128, 135, 145—146, 150, 158, 162, 166,
172, 174-175, 177, 180, 194, 196, 207, 208, 241, 280, 341, 343,
359, 368, 385, 395, 422, 425, 437, 438, 444, 456, 459, 473, 476,
477, 507, 510, 515, 516, 520, 531, 532, 535, 543, 561, 583, 605,
606, 608, 609, 610, 624, 627, 644, 656.
• ·
140, 295, 523, 567, 578, 582, 612, 627, 628, 652
234, 357, 438, 441
Bartlett, DAVID, Delegate from Griggs—
motions made by..
motions to amend by
propositions introduced by.
remarks by
• · •
•
.454, 478, 628.
79-80, 85-87, 141, 148—149, 207, 222, 234, 235
246, 276, 296, 297, 301—307, 312, 322, 339, 342, 346, 356, 357, 359,
363, 421, 441, 443, 445, 454, 457, 464, 470, 478, 488, 496. 528, 531,
539, 541, 546, 553, 558, 563, 568, 571, 572, 575, 578, 581, 582, 592,
617, 624, 646–647, 650.
BLEWETT, ANDREW, Delegate from Stutsman-
motions made by.
motion to amend by
proposition introduced by
remarks by.
report submitted by
78, 131, 132, 147, 168, 395, 506, 656
477
649
69, 492, 506
180.
INDEX.
lv
BUDGE, WILLIAM, Delegate from Grand Forks—
remarks by
•
CAMP, EDGAR W., Delegate from Stutsman—
motions made by
· · •
motions to amend by.
propositions introduced by
resolution offered by
•
• •
•
473
.24, 131, 371
• ·
129, 317, 356
446, 473, 544, 650, 653
remarks by...47—65, 71–75, 129, 132, 133, 134—136, 139, 152, 194, 315,
318, 347, 365, 366, 367, 392, 393, 396, 434, 435, 446, 447, 450, 493,
496, 513, 516, 537, 542, 544, 548, 551, 558, 565, 566, 577, 597, 600,
622, 630, 638, 650, 653.
CARLAND, JOHN E., Delegate from Burleigh—
motions made by
motions to amend by
resolutions offered by
remarks by.
•
• •
71
55, 113, 191, 229, 288, 293, 562
169, 195, 215, 229, 251, 314, 347, 351, 475
33, 77
•
25, 33, 56, 58, 74, 75, 77, 115-119, 133, 159, 164,
169—170, 179, 184, 185, 197-199, 215, 216, 228, 232, 234, 252-258,
290, 293, 298-301, 314, 253, 357, 361, 365, 376, 378, 440, 456, 475,
503, 529, 533, 535, 556, 562, 580, 618, 639, 640.
reports submitted by..
•
CLARK, HORACE M., Delegate from Eddy—
remarks by
CLAPP, WILLIAM J., Delegate from Cass-
motions made by.
motion to amend by
proposition submitted by.
•
•
•
·
29, 139
521
.62, 86, 159, 611
354
626
remarks by........31, 62, 75, 137, 152, 249, 286, 354, 449, 517, 543, 603, 626
COLTON, JOSEPH L., Delegate from Ward-
motions made by.
·
motions to amend by.
...
• •
169, 615
.206, 496
remarks by .85, 176, 185, 186, 189, 206, 209, 463, 617, 620, 624, 648,
649, 655.
ELLIOTT, ELMER E., Delegate from Barnes—
motions to amend.
remarks by..
•
FANCHER, FREDERICK B., Delegate from Stutsman-
170, 434
·
153, 154, 250, 434, 455
remarks by .....21, 26, 33, 44, 52, 55, 59, 130, 132, 141, 142, 146, 169,
183, 204, 212, 216, 225, 226, 268, 283, 284, 285, 286, 288, 293, 295,
317, 344, 372, 397, 405, 410, 412, 432, 495, 548, 549.
response to presentation speech...
FAY, GEORGE H., Delegate from McIntosh-
remarks by
•
649
196, 344, 350, 417
64, 133, 145, 185, 284, 319, 339, 511, 557,
251, 507
455
FLEMINGTON, Alexander, D., Delegate from Dickey--
motions made by.
569, 611, 654.
motions to amend by.
proposition introduced by
•
remarks by........145, 146, 186, 234, 286, 339, 394, 395, 433, 435, 443,
448, 450, 455, 504, 561, 568, 569.
GAYTON, JAMES, B., Delegate from Emmons-
resolution by.
•
GRAY, ENOS, Delegate from Cass--
motion made by..
remarks by
·
HEGGE, MARTHINUS, F., Delegate from Traill-
motions to amend.
remarks
•
·
312
290
.89, 164, 167
•
470, 616
•
616
lvi
INDEX.
HOLMES, HERBERT, L., Delegate from Pembina—
motion made by.
motions to amend.
remarks by
..
•
HARRIS, HARVEY, Delegate from Burleigh—
motions made by..
motions to amend by.
resolutions offered by
•
528
•
441, 502
•
•
441, 451, 502
.
20, 656
·
59, 94
22
remarks by.... 53, 60, 64, 75, 97, 127, 136, 153, 209, 279, 280, 281, 336,
427, 429, 431, 451, 463, 465, 469, 512, 547, 570, 606, 610, 639, 646.
JOHNSON, MARTIN N., Delegate from Nelson-
·
motions made by
motions to amend by.
propositions introduced by
•
·
•
·
· •
• • •
339, 517, 627, 647
205, 212, 373, 475, 492, 541, 544, 562, 638
resolution by.
remarks by.. .27, 59, 60, 64, 67, 96, 119–124, 156, 159–162, 171, 188,
215, 217, 221, 248, 269, 270, 274, 319, 328, 340, 345, 346, 356, 372,
375, 379, 383, 414, 415, 417, 418, 424, 431, 432, 457, 479, 480, 501,
503, 505, 517, 527, 541, 542, 546, 550, 552, 585—588, 598, 626, 627,
631, 639, 645, 646.
reply to Senator Regan..
LAUDER, WILLIAM S., Delegate from Richland-
motions made by
motion to amend.
·
·
424
28
• •
412, 413
•
24, 60, 245, 477, 532, 585, 607, 625
350
• •
537, 638
523
propositions introduced by.
resolution offered by..
remarks by......25, 52, 55, 61, 73, 78–81, 101, 103, 114, 124—126, 135,
136, 141, 159, 155, 164, 167, 172, 176, 179, 184, 185, 187, 193, 196,
202, 223, 229, 230, 235, 236, 265, 273, 281, 316, 328, 349, 350, 353,
362, 367, 279, 385, 286, 391, 393, 416, 422, 442, 444, 447, 451, 451,
452, 458, 460, 461, 465, 469, 474, 499, 503, 504, 505, 516, 518, 524,
525, 533, 554, 555, 558, 562, 564, 566, 576, 579, 581, 584, 592, 594,
596, 607, 618, 623, 625, 632, 639, 641.
LEECH, ADDISON, Delegate from Cass-
motion made by..
remarks by.
•
LOWELL, JACOB, Delegate from Cass-
motion made by.
motion to amend.
•
proposition introduced by.
LOHNES, EDWARD, H., Delegate from Ramsey—
motion made by.
remarks by
MARRINAN, MICHAEL, K., Delegate from Walsh-
remarks by
•
MATHEWS, JAMES, H., Delegate from Grand Forks—
motions made by
motion to amend
•
• •
652
652
321
44I
619
139
231
•
457
187, 413
remarks by 146, 166, 173, 175, 177, 178, 182, 209, 246, 292, 354, 472,
►
479, 504, 507, 508, 513, 514, 519.
MEACHAM, OLNEY, G., Delegate from Foster—
•
427
remarks by
• ·
MCBRIDE, JOHN, Delegate from Cavalier—
remarks by
…….. 646
131
MILLER, HENRY F., Delegate from Cass-
motions made by...... 34, 68, 128, 139, 140, 182, 205, 294, 315, 478, 531,
551, 557, 600, 613, 623, 628, 648, 656.
INDEX.
lvii
•
•
23, 285
378, 609
motions to amend by..
propositions introduced by.
remarks by.. ·30, 34, 68, 72, 79, 87–93, 113–114, 128, 130, 139, 140,
146, 148, 170, 174, 176, 182, 183, 186, 206, 226, 242—244, 247, 259,
262, 268, 270, 271, 285, 288-292, 295, 315—316, 344—346, 357,
358, 374, 377, 383—385, 386, 551, 563, 564, 576, 578, 583, 600, 609,
612, 623, 627, 640, 647, 648, 656.
MOER, SAMUEL H., Delegate from LaMoure—
• •
motions made by ..20, 61, 87, 94, 101, 113, 129, 184, 238, 312, 322, 372,
373, 431, 477, 508, 529, 562, 582, 602, 623, 646, 648.
motions to amend by.
propositions introduced by.
•
414, 614
458, 619
remarks by....61, 85, 87, 95–96, 102, 136, 148–149, 151, 166, 176, 181,
190, 203, 214, 219, 226, 229, 239, 251, 268, 272, 276, 294—296, 322,
334, 336, 373, 374, 478, 389–391, 415, 422, 438, 444, 460, 471, 472,
497, 499, 500, 502, 503, 507, 509, 510, 531, 534, 550, 552, 566, 568,
569, 574, 575, 576, 577, 5S2, 601, 606, 616, 617, 622, 624, 627, 639,
643, 644, 645, 646, 647.
MCKENZIE, JAMES D., Delegate from Sargent—
remarks by.
MCHUGH, PATRICK, Delegate from Cavalier-
146, 154, 170, 292, 519
motions made by...... 25, 28, S6, 113, 114, 148, 152, 293, 357, 496, 501, 530
motion to amend bv.
proposition submitted by
remarks by.
•
• •
NOBLE, VIRGIL B., Delegate from Bottineau—
motions made by.
motions to amened.
propositions introduced by
►
323
603
•
25, 115, 323, 603
.93, 147, 184, 323, 337, 451
IS7, 337, 477, 540, 561
475
remarks by .....84, 147, 191, 192, 195, 196, 203, 226, 247, 248, 250, 283,
285, 286, 287, 2SS, 322, 323, 332, 334, 337, 348, 436, 451, 523.
NOMLAND, KNUDE J., Delegate from Traill-
proposition submitted by
•
O'BRIEN, JAMES F., Delegate from Ramsey-
remarks by.
•
motion made by
motion to amend by
•
349
·
•
470, 471
•
•
342, 528
454
remarks by.....93, 155–156, 158, 171, 174, 181, 213, 226, 261, 268, 270,
295, 321-323, 343, 355, 435, 436, 498, 528.
PARSONS, CURTIS P., Delegate from Rolette-
motions made by..
remarks by..
PARSONS, ALBERT S., Delegate from Morton—
·
•
•
148, 281
.247, 248
motions made by.... 20, 23, 63, 98, 101, 115, 166, 234, 285, 320, 373, 532,
537, 550, 576, 583.
motions to amend by.
•
•
·
294, 345, 365, 378, 391
.418, 523, 589, 619, 626
.85, 99
propositions introduced by
resolutions offered by
remarks by. 29, 30, 58, 63, 64, 69, 71-73, 101, 110-113, 127, 129,
131, 146—147, 149, 151, 166, 192, 193, 199, 205, 210, 222, 226, 231,
244, 249, 262, 269, 270, 275, 276, 285, 288, 311, 320, 324, 327, 332,
339, 344, 366, 368, 373, 378, 388, 391, 393, 395, 419, 422, 437, 439,
467, 475, 494, 506, 507, 508, 512, 523, 525, 526, 527, 535, 540, 545—
547, 549, 556, 557, 566, 568, 573, 577, 588, 591, 613, 618, 620, 626,
633, 645, 654.
PETERSON, HENRY M., Delegate from Cass—
remarks by
652
lviii
INDEX.
POLLOCK, ROBERT, M., Delegate from Cass-
motions made by
motion to amend by
78, 145, 276
357
remarks by .70, 145, 155, 159, 185, 192, 278, 316, 346, 347, 355, 366,
•
•
441, 455, 473, 479, 500, 522, 552, 634, 639.
POWLES, JOSEPH, Delegate from Cavalier—
motion made by..
motions made by
PURCELL, WILLIAM, E., Delegate from Richland—
502, 628, 652.
24, 29, 99, 124, 143, 246, 258, 350, 351, 425, 497,
propositions introduced by
motions to amend by
resolution offered by.
·
156
·
•
347, 540, 547, 585
.212, 229, 252, 474
remarks by..... 24, 28, 29, 47, 48, 53, 54, 59, 99, 140, 141, 143–144, 162,
185, 213, 220, 221, 222, 224, 226, 228, 230, 235, 236, 258, 263, 269,
284, 307–311, 315, 329, 330, 347, 355, 413, 414: 415, 419, 424, 474,
480-484, 486, 498, 502, 504, 505, 519, 531, 540, 543, 550, 569, 585,
589, 591, 594, 586, 625, 628, 642, 646, 652.
presentation speech.
RICHARDSON, ROBERT, B., Delegate from Pembina-
motions made by
motion to amend by
remarks by
ROBERTSON, ALEXANDER, D., Delegate from Walsh-
motion made by
remarks by
•
·
•
•
47
656
100, 284
442
55, 100
•
102, 414
170, 174, 248, 249, 268, 290, 291, 321, 519
• •
•
604
Rolfe, EUGENE S., Delegate from Benson—
motions made by.
55, 102, 143, 153, 155, 456, 550, 553, 571
motions to amend bv.
225, 360, 364, 426, 546
proposition submitted by.
remarks by....52, 55, 72, 82, 84, 85, 92, 95, 102, 142, 144, 153, 154, 157,
171, 180, 187, 190, 195, 204, 216, 225, 238-241, 268, 279, 285, 286,
288, 297, 315, 325, 338, 339, 344, 355, 360, 364, 370, 427, 428, 434,
439, 446, 447, 449, 494, 511, 546, 553, 569, 570, 574, 580, 605, 611,
612, 655.
ROWE, WILLIAM H., Delegate from Dickey-
motion to amend by
proposition introduced by
remarks by
•
•
531
146, 154, 317, 318, 320, 455, 555, 574, 580
573
SCOTT, JOHN W., Delegate from Barnes—
•
•
• ·
•
•
motions made by
21, 85, 270, 316, 317, 456, 530, 532, 537, 542, 614
motions to amend
127, 216, 323, 344, 348, 351, 445
615
proposition submitted by
remarks by.. .76, 78, 86, 91, 98, 132, 137, 141, 149, 152, 165, 195, 204,
205, 216, 217, 247, 248, 260, 270, 284, 286, 287, 291, 293, 312, 317,
324, 337, 338, 340, 342, 344, 347, 352, 353, 356, 417, 421, 429, 434,
435, 436, 445, 449, 452, 471, 474, 501, 507, 514, 515, 517, 518, 519,
520, 526, 527, 541-543, 557, 567, 571, 577, 580, 582, 597, 598, 602.
SELBY, JOHN F., Delegate from Trail—
motions made by.
motion to amend by.
resolution offered by
remarks by......
· • •
•
61, 128, 192, 312, 316, 571
205
32
·77, 128, 130, 131, 132, 237, 264, 267, 286, 316, 526, 584
•
23, 32, 532, 537, 561, 571, 572, 582, 602, 637
281, 470, 473, 542, 605
Spalding, Burleigh F., Delegate from Cass—
motions made by.
•
motions to amend by.
proposition introduced by.
•
• •
654
INDEX.
lix
.. • •
remarks by. 30-32, 55, 59, 77–83, 91, 138, 176, 194, 266, 416, 417, 418,
430, 470, 472, 474, 477, 501, 503, 505, 506, 509, 513, 518, 521, 542,
559, 572, 576, 580, 581, 582, 599, 601, 602, 607, 608, 621, 624, 626,
627, 638, 647.
STEVENS, REUBEN N., Delegate from Ransom-
motions made by...
55, 59, 70, 101, 225, 227, 269, 371, 431, 433, 517,
532, 551, 561, 612, 614, 644, 647.
motions to amend by.
•
212, 228, 352, 379, 395, 457
395, 578
56, 599
propositions introduced by.
resolutions offered by
remarks by....31, 48, 54, 56–58, 59, 60, 62, 63, 70, 71–78, 80, 83, 91, 102,
-108, 115, 133, 136, 138, 177, 178, 183, 189, 212, 216, 219, 227, 233,
237, 249, 258, 270, 285, 290, 292, 293, 294, 295, 313, 327, 337, 348,
350, 352, 354, 360, 363, 370, 371, 377, 378, 388, 392, 393, 396, 414,
417, 420, 426, 428, 431, 433, 446, 448, 450, 451, 453, 458, 460, 471,
474, 484, 486, 489, 517, 518, 525, 528, 538, 649, 551, 552, 554, 555,
563, 566, 567, 572, 574, 598, 600, 601, 605, 606, 607, 609, 612, 614,
627, 635, 644, 646.
presentation speech..
TURNER, EZRA, Delegate from Bottineau—
motions made by
• •
motion to amend by
•
proposition introduced by
•
648, 652, 654, 655
.28, 144
282
656
remarks by.... 108-110, 142, 147, 195, 197, 206, 208, 211, 283, 291, 461,
495, 635, 654.
WALLACE, ELMER D., Delegate from Steele-
29, 322,
motions made by.
motions to amend by.
remarks by. 29, 69, 83, 85, 86, 93, 96, 99,
209, 212, 322, 341, 353, 373, 426, 430,
476, 503, 522, 529, 538, 557, 558, 560,
652-653.
WELLWOOD, JAY, Delegate from Barnes-
remarks by..
339, 436, 522, 528, 557, 616, 652
22, 208, 296, 436, 438, 441, 650
137, 146, 150, 156, 173, 180,
433. 436, 438, 439, 454, 464,
576, 583, 616, 636, 645, 646,
WILLIAMS, ERASTUS A., Delegate from Burleigh—
.165, 194
20, 24, 26, 32, 33, 44, 52, 141, 143, 144, 168, 178,
motions made by
497, 530, 581, 584, 628.
motion to amend by
propositions introduced by.
•
• •
625
497, 502, 577, 576, 604, 625, 653
remarks by...... 20, 29, 43, 54, S4, 101, 102, 144, 144, 151, 168, 186, 229,
230, 233, 271, 275, 284, 324, 478, 492, 493, 495, 496, 498, 499, 500,
503, 504, 508, 510, 528, 543, 544, 550, 552, 553, 554, 570, 578, 581,
584, 604, 618, 647, 655.
report submitted by...
GENERAL INDEX.
228
Committee on credentials.
Committee on rules
report of
•
•
Constitution of North Dakota.
Debates and proceedings..
Enabling Act
...
Governor Mellette's address.
Henry O. Blackwell's address
Joint Commission...
Judge Cooley's address.
•
•
Major Powell's address
21
21
29
i-xliv
19
• .
5, 17
44
34
32
65
410
lx
INDEX.
Mr. Johnson's reply
Members
Officers...
Permanent organization
•
Political complexion and nativity of members.
Question of privilege..
•
Report of committee on credentials.
Rev. R. C. Wiley's address.
Schedule
Senator Stewart's address.
•
Senator Regan's address
Standing committees
Temporary organization
Vote on Constitution
• ·
•
•
•
·
412
3
4
·
24, 32
4
27
23
48
xliv-xlix
·
4
397
405
4I
19
liii
A presentation
TOPICS OF DEBATE.
•
648, 656
Adjournment. . 21, 27, 31, 52, 55, 61, 64, 70, 78, 98, 139, 140, 191, 245, 312, 351, 413
477, 511, 537, 571, 613, 645.
Against trusts
Against child labor.
Amendments to the Constitution
Australian ballot system.
Arbitration question
Assessing lands
• •
Apportioning taxes
Boundary question.
Black listing
•
Bonds to be attested
•
•
Boundary discrepancy.
·
•
Congratulatory telegrams.
Civil and religious rights.
County officers.
•
·
Compact with the United States.
Committee on Revision
•
• • •
County and township organization
Committees reporting
•
Clerk of Supreme Court
County courts...
•
Capital punishment
Corporations..
•
•
• •
· •
· • •
City and county debts
Changing county lines.
County officials' pay.
District Court jurisdiction.
Debates and proceedings.
Electing county officers.
Education
•
Elective franchise
Exemption laws
Great Seal...
Gross earnings tax
Governor.
•
• •
Indignation telegrams
•
Indictment and information.
Impeachment
•
Joint Commission
Judiciary report
Justice court jurisdiction..
·
•
D
•
•
•
?
•
602
506
•497, 624
576
•
•
418, 524
470
474
52, 504
•
•
365, 532, 626
•
439
47
22
48
55
67
•
71, 78
•
85, 128, 610, 611, 613
•
140
•
217
369
372
·
238, 293, 314, 570
430, 432
440
453
234, 562, 578, 640
•
•
.76, 134
637
152
185
312
505
.463 615, 623, 648, 649
316
646
•
•
364
155
33
139
•
351
INDEX.
lxi
܃
• •
Legislative department.
Legislative apportionment
Loaning public credit.
Limiting terms of office.
Minority representation.
•
·
142
285, 323, 512, 540, 550
•
437
.442, 455, 614
347
Motions.. 20, 21, 22, 23, 24, 25, 26, 28, 29, 32, 33, 34, 44, 55, 59, 60, 61, 62, 63, 64, 68,
70, 78, 78, 85, 86, 87, 93, 94, 98, 99, 100, 101, 102, 113, 114, 115, 124, 127, 128,
129, 131, 132, 133, 139, 140, 141, 143, 144, 145, 147, 148, 152, 153, 155, 156,
159, 166, 168, 169, 182, 184, 185, 187, 191, 192, 195, 205, 206, 208, 212, 214,
215, 216, 225, 227, 228, 229, 234, 245, 246, 251, 252, 258, 270, 276, 282, 284,
285, 288, 293, 294, 296, 312, 314, 316, 317, 321, 322, 323. 337, 339, 342, 344,
345, 347, 350, 351, 354, 357, 360, 361, 364, 371, 372, 373, 379, 395, 413, 425,
426, 427, 432, 434, 436, 438, 441, 442, 445, 451, 456, 457, 470, 473, 474, 475,
478, 492, 496, 497, 502, 507, 508, 511, 517, 522, 523, 528, 529, 530, 532, 537,
540, 541, 542, 546, 550, 551, 553, 557, 561, 562, 567, 569, 571, 572, 573, 578,
581, 582, 582, 585, 601, 602, 605, 607, 611, 612, 613, 614, 615, 616, 623, 625,
627, 628, 637, 644, 647, 648, 652, 654, 656.
New apportionment
Municipal corporations
Name of the State
Oath
Other State officials
•
Pay for the Legislature.
· •
Parallel and competing railroads
Pass question.
Preamble.
•
Private property for public uses.
Public schools
Public institutions
• •
Question of pardon
Question of printing.
Question of method
Question of privilege
• •
• •
Railways declared public highways
Railroad rates.
·
Restrictions on members and governor
Rebuking a committee.
•
·
Rules of the Convention
Registration....
Revision and taxation.
Resolutions
State deficits.
•
•
• •
Salary question
•
Supervisor system.
Stenographer
.
•
•
South Dakota Constitution.
School lands
Supreme Court.
•
•
Supreme Court Judges.
Single House question
Temperance
Taxing church property
Terms of senators.
Trial by jury
World's Fair.
•
Woman suffrage.
•
•
·
•
[
•
•
·
544
IS2
503
349, 625
320
339
374, 414
424, 644
357
600
603
•
•478, 628
317
54, 62, 246
56
•
·
27, 548
378
584
551
100
29
• •
206, 577, 582
148
•
22, 28, 32, 33, 47, 56, 68, 71,.77, 85, 99, 246, 312
426
557
445
68
99
158, 169, 288, 512, 603, 604, 608
.211, 228, 258
215, 222, 226, 251
•
103, 114
145
457
543
361
599
·
34, 276, 573
lxii
INDEX.
INDEX TO JOINT COMMISSION.
BROTT, S. F., South Dakota-
MEMBERS.
remarks by.....660, 676, 679, 742, 756, 763, 789, 796, So0, 822, 823, 830,
836, 839, 840, 854, S60, S62, 873, 877, 933.
CAMP, E. W., North Dakota—
•
•
•
749, 830
.665, 677, 775
782, 830, 893
propositions introduced by.
resolutions offered by
reports submitted by.
remarks by.....659, 660, 664, 665, 667, 673, 688, 695, 701, 703, 712, 713,
714, 754, 755, 756, 757, 758, 759, 762, 764, 767, 768, 769, 771, 774,
775, 782, 783, 784, 789, 790, 792, 793, 795, 798, 799, 800, So1, S02,
803, 804, 805, 806, 807, 809, S10, S13, 814, 815, 816, 81S, S19, 820,
822, 823, 826, 827, 828, 829, 830, S32, 833, S34, 837, 839, S40, 843,
S44, S46, 848, 850, 851, 853, 854, 855, 856, 857, S60, 864, 867, 868,
872, 873, 874, 876, 877, 878, SSO, SS1, SS2, 884, 888, 889, 890, 892,
893, 894, 895, 897, S98, 899, 900, 901, 902, 904, 905, 906, 907, 908,
909, 910, 911, 912, 913, 917, 918, 919, 928, 931, 932, 933, 934, 935.
CALDWELL, E. W., South Dakota-
motions made by
·
•
resolutions made by.
reports submitted by
傻 ​•
·
•
754, 828, 884
.662, 680, 720, 742, 752, 864, 880, 932
.765, 840
remarks by........660, 661, 662, 663, 664, 666, 667, 668, 674, 678, 679,
682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695,
698, 699, 700, 701, 702, 703, 709, 710, 711, 712, 713, 717, 719, 720,
722, 724, 727, 729, 730, 731, 732, 733, 734, 735, 736, 737, 740, 741,
742, 744, 745, 746, 747, 751, 752, 754, 755, 756, 757, 758, 759, 760,
761, 762, 763, 765, 766, 767, 768, 780, 781, 784, 785, 788, 789, 790,
791, 792, 795, 796, 798, 799, Soo, So1, 802, 803, 804, 805, 806, 812,
S13, S14, 815, 816, S17, 819, 821, 822, 823, 824, 827, 830, 832, 833,
834, 835, 836, 837, 840, 842, 843, S44, S46, 847, 848, 849, 850, 851,
S52, 853, 854, 856, 857, 859, 860, 861, 864, 865, 866, 867, 868, 869,
870, S72, 873, 874, 875, 876, 877, 878, 880, 881, 883, 884. 885, 886,
887, 888, 889, 890, 892, 893, 894, 896, 898, 900, 901, 903, 904, 905,
906, 908, 909, 910, 911, 912, 913, 914, 915, 916, 920, 928, 932, 933,
934, 935.
ELLIOTT, WM., South Dakota-
motion made by...
report submitted by
* •
•
•
remarks by........660, 673, 719, 750, 751, 753, 766. 788, 829, 832, 844,
851, 853, 856, 860, 862, 867, 877, 878, 880, 890, 909, 910, 920, 928.
GRIGGS, ALEXANDER, North Dakota—
·
748
788
+∞
77
880, 932
motions made by
remarks by.... 659, 660, 661, 662, 667, 690, 773, 773, 774, 774, 830, 834,
835, 839, 854, 873, 874, 875, 876, 877, 881, 884, 885, 886, 890.
HARRIS, HARVEY, North Dakota-
•
motions made by
reports submitted by.
•
·
714, 760, 793
•
.765, 840
INDEX.
lxiii
remarks by………..663, 666, 676, 692, 693, 694, 695, 699, 700, 701, 703, 707,
711, 713, 714, 716, 719, 720, 721, 723, 728, 729, 731, 735, 737, 739,
740, 745, 746, 747, 748, 750, 753, 754, 755, 758, 759, 761, 763, 766,
770, 771, 774, 775, 781, 786, 789, 790, 792, 804, 808, 809, 810, 816,
820, 822, 826, 829, 832, 833, 834, 844, 848, S51, 854, 855, 856, 857,
859, 860, 863, 866, 867, 868, 869, 873, 876, 886, S90, S92, 903, 904,
905, 907, 915, 916.
KELLAM, A. G., South Dakota—
motions made by
•
•
•
753,855, 860
830
•
749, 852
830
proposition introduced by
resolutions offered by
report submitted by
remarks by.....659, 660, 661, 662, 665, 667, 671, 677, 679, 680, 681, 691,
692, 693, 695, 704, 706, 707, 708, 711, 712, 713, 714, 717, 718, 719,
721, 722, 725, 727, 728, 729, 730, 731, 732, 734, 738, 739, 741, 742,
748, 749, 750, 751, 753, 757, 758, 759, 760, 763, 764, 765, 768, 769,
775, 776, 778, 780, 781, 782, 783, 784, 787, 789, 790, 791, 792, 794,
796, 797, 799, Soo, S06, S07, SoS, S09, S10, S11, S12, S15, S16, 817,
818, 819, 820, 821, S22, 823, S24, S26, S27, 828, S29, 833, 834, 835,
837, 838, 839, S40, S44, S46, S47, S4S, S49, S52, S53, S55, 856, 857,
859, 861, 862, 863, 864, 865, 866, 867, 868, S70. S71, 872, S73, 874,
876, 877, 879, SSO, SS1, SS2, SS4, 885, SS6, SS7, SSS, 889, 890, 893,
894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907,
908, 909, 910, 913, 914, 915, 916, 917, 918, 919, 920, 928, 932, 933.
MCGILLYCUDDY, V. T., South Dakota—
reports submitted by..
784, 857, 891
remarks by.....660, 664, 675, 687, 706, 716, 724, 737, 738, 746, 747, 750,
751, 756, 771, 773, 774, 775, 783, 785, 790, 798, 799, Soo, S17, 819,
835, 836, 837, 839, 859, 860, 872, 878, S74, 890, 891, 892, 893, 900.
NEILL, HENRY, South Dakota--
motions made by
•
•
•
919, 932, 933
740
782
resolution offered by
report submitted by.
remarks by....672, 673, 679, 687, 698, 708, 724, 740, 746, 747, 750, 768,
771, 774, 776, 783, 796, S19, 820, S25, 826, >33, 835, 836, 837, 839,
851, 852, 853, S55, S63, S64, S65, S66, S67, S71, 873, S78, 913, 616.
·
• •
PRICE, CHARLES H., South Dakota—
motions made bv.
729, 752, 766, 7S4, S29, S40, S92
resolutions offered by
742, 749, 7SI
remarks by 660, 661, 662, 663, 665, 667, 671, 677, 682, 685, 687, 710, 717,
722, 735, 736, 737, 739, 741, 742, 743, 745, 746, 747, 749, 750, 751,
752, 753, 754, 755, 758, 761, 766, 768, 772, 773, 774, 775, 777-778,
779, 781, 784, 785, 786, 791, 792, 795, 798, S12, S27, S35, S36, S40,
847, S4S, S49, 850, S51, 854, 855, 756, 857, S60, S62, S65, S66, S67,
868, 869, 872, 874, 875, S76, S77, S7S, 879, S80, S83, 885, SS7, SS9,
890, 892, 893, 906, 907, 909, 611, 913, 918, 928, 933.
PURCELL, W. E., North Dakota—
resolution offered by.
report submitted by
•
781
787
remarks by 661, 662, 669, 670, 673, 677, 678, 679, 683, 687, 690, 694, 695,
698, 701, 702, 705, 706, 707, 713, 716, 717, 718, 720, 723, 726, 727.
728, 730, 731, 734, 735, 736, 737, 739, 740, 743, 746, 747, 748, 750,
753, 757, 758, 759, 762, 769, 770, 771, 774, 775, 781, 786, 787, 789.
794, 796, So2, S02, S06, S07, S09, S10, S11, S12, S13, 814, S15, 816,
S17, SIS, S21, S24, 825, 826, 827, 828, 882, 883 885, 886, 887, 890,
895, 897, 898, 899, 903, 904, 905, 907, 908, 909, 910, 911, 912, 914,
915, 916, 918, 919.
SANDAGER, ANDREW, North Dakota—
remarks by
..662, 665, 737, 753, 792, 796, 797, 79S, Soo, SS4
lxiv
INDEX.
SPALDING, B. F., North Dakota-
remarks by.
.661, 663, 665, 666, 668, 670, 677, 678, 679, 681, 682,
685, 688, 689, 698, 702, 709, 711, 714, 716, 719, 722, 724, 729, 730,
SS4, SS5, 897, 900, 906, 928.
SCOTT, JOHN W., North Dakota—
motions made by.
resolution offered by.
report submitted by
•
887, 920, 935
996
состо
756
783
remarks by.....661, 662, 663, 666, 670, 678, 681, 682, 684, 686, 6SS, 6S9,
690, 701, 702, 710, 711, 724, 728, 732, 733, 737, 739, 740, 742, 746,
750, 755, 756, 759, 761, 762, 766, 767, 768, 770, 771, 776, 778, 780,
781, 784, 785, 787, 789, 790, 791, 792, 795, 796, 797, 798, 799, Soo,
806, 809, 813, 814, 815, 816, S17, 818, 819, 820, 821, 822, 823, 824,
826, 827, 828, S32, S33, 834, 836, S39, S40, S44, S46, S47, S4S, 849,
850, S53, 854, 855, 857, 859, 860, SSO, SS1, SS2, SS3, SS4, 886, 889,
S94, S95, 900, 902, 903, 907, 909, 910, 911, 912, 916, 918, 933.
TOPICS OF DEBATE.
Bonded indebtedness
Capitol warrants
•
Delinquent R. R. taxes
Division of property.
Disposition of records
• •
•
•
•
•
703.
726-729
·
716-719 802-804 820
.680-685
732-746 749 752 755 756 765 767 769 770 775
778 779 781 840 850 852 862 863 864 865 866 867 871 874 879
880 881 SS5 887 889.
Delinquent taxes..
Final agreement
General plan of agreement
Methods of procedure
Ordinance
Outsiders excluded
•
·
•
Organization-Temporary
Organization-Permanent
Powers of Commission..
•
• •
Proposed Article for Constitution
Public buildings
Plan of settlement
• •
·
805-815
..894 920—928.
S31 832 836-839
796-S01 857 858 891 892 893.
....661, 662
.662-665
660
661
666—678, 746, 747, 796-801, 857, 858, 891-893
•
·
929-931
•
•
. 706—708.
•
•
•
•
702—7II 720 723 791 794 795 815—817 82r 822 825
S26 827 836--839
·
757 783 795 860-
•
893 894
Public Library.
Preamble..
Property of Territory
Public Institutions.
• *
• •
689, 759, 782, 787
.689, 762, 763
Resolutions ....662 665 667 669 677 680 720 740 742 749 752 754 755 756 769
770 775 781 799 852 864 880.
Reports.... 782 783 784 787 7SS 794 795 797 So1 831 840 841 842 857 858 859
862 863 891 893 894 920 921 922 923 924 925 926 927 928 929 930
931.
Territorial apporpriations
Unexpended balances
Unliquidated claims
•
•
.695-698 699 714 715 S15 S16
• • • •
...688, 720
730 731 785

Raid ..
213
*
UNIVERSITY OF MICHIGAN
3 9015 03083 1872