USA > Colorado > History of the State of Colorado, Volume II > Part 26
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Following these came in succession, the report on Future Amend- ments (Pease),-on Counties (Boyles),-Education and Educational Institutions (Hurd), Mines and Mining (Clark), until on Friday, Feb- ruary 4th, when the Committee on the Judiciary Department made their report, which was placed on the gridiron of the Committee of the Whole.
Then followed the reports of the Committee on Federal Relations (Wilcox),-Right of Suffrage and Elections (Webster),-Impeachments and Removals from Office (Crosby),-Schedule (Quillian),-Irrigation, Agriculture and Manufactures (Plumb),-Corporations, Public and Private (Rockwell),-Revenue and Finance (Cushman),-Miscellaneous (Head),-Officers and Oaths of Office (Felton), until all were in, except that the reports of those committees which must report from time to time, as the Committee on Revision and others, are not mentioned here.
As to the work done by the principal committees, it was constant and continued to the last, but it must be borne in mind that every mem-
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ber of any Committee was also a member of from two to four other committees ; and this fact renders the difference in date of the different reports of less significance than if the case had been otherwise,-the work having been so distributed that the members had to shift from one committee to another, and at the same time so managed that every report was ready as soon as wanted. As one set of committees became more or less relieved, in other committees the work was more and more increased ; but as to the members, such changes mostly were nothing more than a change of work, and often an increase thereof. Thus for instance, the chairman and members of the committees on Bill of Rights and Executive Department, were on other equally important committees, as may be seen on inspection of the list of committees given above.
As in other cases of making constitutions, the framers of our con- stitution, doubtless in some particulars "builded wiser than they knew," and in some other matters not so wisely as they hoped, yet it is due to the leaders in the majority which ruled in each case, to say here, first, that most things in which their action stands well approved to-day, in the light of further experience, are positive enactments; and the few instances in which fault may now be alleged, are matters of omission,- that is, of desirable provisions rejected; whence it follows that they can be readily amended by the addition of a few lines in one or two articles ; and such amendments were provided for in the construction of the articles and sections, in case they should be deemed necessary, so that such additions can be inserted without producing conflict with any part of the work, or creating ambiguity or confusion.
Secondly, that it is especially true that in most of those provisions deemed of great value now, they followed their own foresight and judg- ment, unaided by any ascertained public opinion, while in those matters in which fault now appears or is alleged, if any, their judgment coincided with the sentiment then prevailing in the public mind. Hence, the people of Colorado have less ground on which to share the praise, than the blame. And further, the error in most cases (if there be any) if not
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in all, was in placing too much reliance on the wisdom and care of future legislatures, formerly a very safe reliance, as shown by the old constitutions, and the legislation under them.
Further, it must be considered that the men who led the majority in determining the course pursued as to several subjects; notably the provisions concerning corporations, water rights, railroads and the like, in which the public interests find too little protection to-day, were mostly, if not all of them, equally active and firm in the large majority which so well fortified our noble free school system against the movements, open and covert, to cripple its efficiency, which are now springing, and spreading throughout the country.
As might have been expected, upon these questions, as well as on that concerning the fees of public officers, there was no insufficiency of what is known as "the lobby," to say nothing of petitions and remon- strances from all quarters, couched in the most urgent terms.
The siege upon the convention in the railroad matter, was led by the most influential of the public men of the Territory ; and, concerning the school question, by more men of the same class than the people have supposed, and by the clerical authorities of at least two prominent ecclesiastical bodies, although other such bodies warmly supported the majority of the convention.
As to the question of fees or salaries, the obstruction was entirely the work of officers and party politicians, and conducted according to the tactics usual in such cases. It came too late, however, to prevent the State officers from being provided with salaries ; and to this day, the officers receive their salaries, and the State the fees, conse- quently there is never any "lobby" to prevent the legislature from reducing the fees of the State officers, or to procure legislation to create a necessity for additional fees. But at that time there were no State officers to interfere.
Upon the important and difficult subject of public indebtedness, there was no noticeable attempt to influence the action of the con- vention but it would be otherwise now and hereafter, as plainly appears
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from the action of many county and other municipal boards, as well as of certain "members of the press."
Now it may be seen from what is shown in small part above, that some cause must have existed which may have tended to modify the action of some of the majority of the convention, in deciding upon the questions affecting corporations, railroads, water rights and fees and salaries and the like, and which gave especial effect to the opposition from without, to the measures proposed and urged by a minority in dealing with those subjects.
There was such a cause, and one which could not have place in the minds of members of a legislative body having inherent power to pro- mulgate laws, absolute in their character, as the statutes of the legislative assembly of a sovereign State. It was not necessarily any influence which might be exerted on the mind of a member to cause him to act as he otherwise would not, and so deter him from performing his duty, but it acted, if at all, in this way. The convention was not a legislative body. It could enact no laws. Its work when completed, would be in the nature of a protocol, to be adopted or rejected by the entire people, and they, and not the convention, would enact the instrument, if enacted at all, into an existing and valid organic law. But it must pass their scrutiny with all the influences opposing it at the convention, arrayed against it in every part of the Territory. Now it is one thing for a set of crafty lobbyists to induce a member to act contrary to his better judgment through self-interest or other unworthy motive, and another and very different thing, to create a fear that if certain pro- visions shall be incorporated in an instrument sought to be adopted by the people, the parties opposing will be able to procure its defeat at the polls. In such a case all the good already secured and likely to be secured by the work of the convention, would be in jeopardy of entire overthrow in the end.
Such a result in the then condition of the Territory could have been nothing less than a disaster of great magnitude. It would not only have prostrated the State movement in the Territory for years, but
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it would have disgusted Congress, which for the first time in such a case, had appropriated twenty thousand dollars of the public money, in aid of the Territory in paying the expenses caused by the convention, and other necessary proceedings.
This question of the adoption of the constitution by the people, was, as it always has been in every such convention, often discussed on the floor, as well as in the committee rooms, and it was continually in view. If the efforts of those who represented the interests of syn- dicates, corporations and monopoly generally, had any influence on the acts of any members of the convention, it is but fair to suppose that it was caused by what they considered prudential considerations, based on actual conditions, not to be controlled by themselves or the convention. In fact, such considerations did affect the minds of all, to a greater or less extent, of each, according to his own judgment of what the people would really do.
But those members with whom the writer had the honor to act from first to last in the minority on the four questions to which these remarks apply, can of course claim no benefit from this statement of the case. It is therefore not on their account that these reflections are offered; but because they are justly due to others who were actuated by different views, whose number was sufficient to cast the majority either way, and whose title to rank among honorable and capable men, in the most comprehensive sense of those terms, can never be gainsaid.
It has been claimed of late that the convention sitting when the community was weak in numbers and resources, could not prepare a constitution adapted to the exalted state of business and affluence to which we have lately arrived; and consequently, however little it may have been hitherto supposed by the people, it is very defective in all its parts, and should be reconstructed throughout, by means of a new and different sort of convention, one more in keeping with modern legis- lative views.
The constitution doubtless has defects, but they are not such as complained of, and it is part of its history (consequently proper to be
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mentioned here) that none of them arose from the cause or causes assigned.
The convention was well aware of the condition of the country, and fully expected a great change, and for that reason labored, not to fit the constitution solely for the then existing, or for any anticipated con- ditions, but as to all its provisions which, from their nature, are not to be affected by changes in the condition of public affairs, to make the same absolute ; because of necessity they must prove to be equally good or bad, in one case as well as another ; but in all provisions which change of affairs might affect, to make them adjustable. For this purpose they introduced different scales of adjustment ; some based on increase of population, and others on increase of resources ; as taxable property, -the two factors which rule in the principal class of changes which legislators in this country are called upon to provide for. Most of the conditional provisions involve both scales. As to matters of social, moral and intellectual advancement, they left very little to provide for which can fall within the limited sphere of governmental surpervision, according to American ideas of the proper functions of government.
Very few constitutions, if any, contain so many and various pro- visions for adjustment as that of Colorado, and from this cause most of the alleged defects (seriously mentioned) will appear on examination to be defects in the situation; that is, in the necessary state of circum- stances and conditions of the country ; and by means of the elasticity of the constitution will disappear of themselves, or otherwise can be removed with facility by the easy mode of amendment provided for in the body of the instrument, and might have been, if deemed important, amended before now. In fact, a number of amendments have been made concerning small matters, and some of them of questionable utility, while those now complained of for the first time, have been left untouched.
As to the defects, whatever they are, they are mostly such as arise from oversight or inadvertence, and doubtless would have been in the work if the present circumstances had then existed, and the same or
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others might appear in the work of any new convention, for over- sights do not depend on conditions of public affairs, but they are found in the work of all public bodies, more or less, according to their opportunity for exercising care and diligence, and probably in no State constitution less than that of Colorado-unquestionably not in any con- stitution formed under a pressure of circumstances which reduced the time spent in its construction to no more than seventy-two actual working days, exclusive of Sundays and the Christmas adjournment.
To show in particular the merits (or demerits, if any) of the mem- bers or committees is not intended here, but it is due to the public to say, in order that it may be publicly known, that besides the men in that convention whose competency and sterling qualities have been in many ways brought before the people, both before and since the time of the convention, there was a greater number than is generally sup- posed, and greater in proportion to the whole number than falls to the lot of but few such bodies, whose constant thoughtful and unobtrusive labors have never attracted public attention as they merited, and the people of the State to-day know not how much is due them in appre- ciation and gratitude.
And this, and what follows concerning them, may be said without detracting in the least from what is due to those who are better known throughout the State, by reason of their connection with important positions, or otherwise in such pursuits as have brought their names much before the people,-as Barela, Beck, Clark, Ellsworth, Elder, Ebert, Felton, Head, Hough, James, Kennedy, Marsh, Meyer, Quillian, Rockwell, Stone, Thatcher, Webster, Wells, Wheeler, White, Wilcox and Wilson.
There were on several of the committees which were charged with great labor and the consideration of vexatious complications, certain members whose services were remarkable, both in the ability displayed and incessant attention to the business before them.
Of these there were on the Committee on Public Indebtedness three of extraordinary capacity for that difficult work, Robert Douglas
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of El Paso, Abram K. Yount of Larimer, and William H. Cushman of Clear Creek. Two of these were engaged in banking at the time, the other was a farmer and stock grower, and had been Judge of a Court of Record.
The people of the State little understand what foresight, sagacity and knowledge in financial, State, county and town affairs was displayed by them severally in their untiring labor on the committee last men- tioned, which had in charge one of the most complicated subjects acted on by the convention.
Two of them, Messrs. Yount and Cushman, were also on a com- mittee on a closely allied subject,-that on Revenue and Finance,-of which Mr. Cushman was chairman, where their services must have been equally valuable, while Judge Douglas was chairman of the Committee on State Institutions and Buildings, and he was also on the Committee on Education and Educational Institutions, a position for which he was remarkably well fitted. Each was also on other committees. Yet neither of them attempted any display of his abilities on the floor.
Another trio of men too little known outside the convention, accord- ing to their deserts, were A. D. Cooper of Fremont, S. J. Plumb of Weld, and William Lee of Jefferson. All three were together on the impor- tant Committee on Irrigation, Agriculture and Manufactures, of which Mr. Plumb was chairman. He was also on the Committee on Counties, a very troublesome subject ; while Mr. Lee served on the important Committee on Revision and Adjustment, and on that of Officers and Oaths of Office, a very important one, and also on the Committee on Miscellaneous Subjects, which means much in a Constitutional Con- vention. In this case it included the subject of Division of the School Funds, Classification of Counties as to fees, and other like important matters.
Mr. Cooper was on three other committees, Corporations, Public and Private, Military Affairs, and Enrolling and Engrossing. Two of these last mentioned were charged with very perplexing subjects, the third with much tedious drudgery.
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The Irrigation Committee, wherever found, is (to its members) a mild form of martyrdom. It is simply snowed under by difficulties. The brood of conflicts between different interests having reasonable claims impossible to be satisfied, because of the natural conditions, wear out patience and perseverance in any human organization, while the responsibilities are very great. The sagacity and perseverance of these men enabled them to effect more than could have been expected, in dealing with the exceptional conditions affecting the subject of irrigation.
Three others must be mentioned here : Daniel Hurd of Arapahoe, William C. Stover of Larimer and J. W. Widderfield of Bent.
Mr. Hurd was chairman of the Committee on Education and Edu- cational Institutions, also one of the Committee on Counties, and that on State Institutions and Buildings. His ability and devotion to the cause of free schools, and the work of rightly founding the free school system of the State, made him a man of mark to all who came in contact with him. His industry and perseverance were equal to his other qualities.
Mr. Stover was on the Committee on the Legislative Department, and that on Mines and Mining, and also on the Committee on Counties. Mr. Widderfield was on the Committee on Bill of Rights, also on the Committee on Irrigation, Agriculture and Manufactures, and on Enroll- ment and Engrossment. These two men were members whose abilities and usefulness in that body deserve far more appreciation than the people of the State are likely to suppose. But their colleagues in the convention knew that they were always at the post of duty, and vigilant and discreet.
Beside the above mentioned shall be named here two others, Byron L. Carr of Boulder, and George E. Pease of Park. These are spoken of in this connection, not because they were unknown, but because neither of them was then known generally at his real value for the purposes of that convention.
Judge Pease was a man versatile in his capacities, and his discretion and knowledge of law, especially in its fundamental, that is, its constitu-
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tional principles, rendered his work in the convention indispensable. He was chairman of the Committee on Future Amendments, one of the Committee on the Judiciary Department, and on the Committee on Military Affairs, and on that on Congressional and Legislative Appor- tionment.
Col. Carr was also a member of the bar, well grounded in law and the constitutional principles of government, and versed in general scholar- ship, especially in the effective use of language, as was made to appear in his work in the Committee of Revision. His sagacity and com- petency in that work were remarkable. His industry and constancy could be excelled by none. He was chairman of the Committee on Military Affairs, a member of the Committee of Revision, of that on Mines and Mining, the Committee on Education and Educational Insti- tutions, and also on the Committee on the Schedule.
A number of the members have since the time of the convention been elected or appointed to responsible official positions, under the constitution and laws of the State, or of the United States.
Of these, Casimero Barela, William W. Webster, Lewis C. Ells- worth and Clarence P. Elder, and William H. Meyer have served in the State Senate, and Robert A. Quillian, George E. Pease and Robert Douglas in the House of Representatives. Mr. Barela in both houses, in one or the other continuously.
Alvin Marsh in the office of Attorney General ; William H. Meyer, Lieutenant Governor ; William M. Clark, Secretary of State; Willard B. Felton, Secretary of the Senate and Warden of the Penitentiary ; P. P. Wilcox, United States Marshal ; William W. Webster, Capitol Commissioner. Each of these has served in his office to the benefit of the people, and with honor to himself.
From the Committee on the Judiciary Department besides Felton, Marsh, Wilcox and Pease, above mentioned, have been chosen four members of the Supreme Court-Ebenezer T. Wells, Henry C. Thatcher, Wilbur F. Stone and William E. Beck, the latter having served on the district bench. Eight in all from that committee.
Ce, Barela
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In their career as judges, they and their colleagues, Judges Elbert and Helm, and with them the judges of the district bench throughout the State, have done a greater work than the people are aware of in maintaining and perfecting the system of Colorado law and jurispru- dence, concerning water rights, which was initiated in the days of the first settlement of the country by the Territorial legislature, and partially developed by the Territorial courts,-notably by the decision of that admirable jurist, Judge Moses Hallett, in the El Paso case, and now further perfected as cases have arisen, among which are Younker vs. Nichols, I Col. Rep., 551,-Coffin et al vs. Left Hand Ditch Co., VI Col. 444,-Seiber et al. vs. Frink et al., VII Col. 148,-Golden Canal Co. vs. Bright, VIII Col., 144,-Wheeler vs. Northern Col. Ir. Co., X Col. 582, and many others in the Supreme courts, and also in the Dis- trict courts. Of the latter are the many decrees in the adjudication of water rights, beginning with the work of Judge Victor A. Elliott in the Second District, and followed by that of all the judges of the State then sitting, and their successors hitherto, which decrees have proved so satis- factory throughout the many water districts, that they have never found their way into the reports of the Supreme Court decisions. And it may now be truly said that our courts have given to Colorado a far better system of adjudicated irrigation law, than could have been ex- pected under the scanty enactments of Congress, the Territorial legis- lature, the constitution and statutes of the State.
And this has not been done by that encroachment on legislative functions which is aptly termed "judicial legislation," but by that wise and truly judicial discretion which "discerns justice by the law," and which is in truth part of the law itself, and the proper function of a judicial tribunal to declare, and that by which it makes title to being a veritable "department" of the government.
In this, as in several other matters, the courts of Colorado doubt- less deserve the acknowledgment that they have already done more for the agricultural interests of the State than has been done in the way of regulation by law, outside the judicial forum, except that the consti-
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tution did provide for priorities, and that reasonable rates should be established by County Commissioners, which last is in effect the same as the statute of A. D. 1861.
The County Commissioners have also contributed their full share in the work, as is shown by the decision of the county boards of Douglas and Arapahoe Counties, in which they held that a reason- able rate is that which is reasonable in respect to the interests of both the user and the purveyor of the water, and in view of the use and of the case, as presumed to have been known to both parties before the diversion of the water from the stream.
The members of the convention were of course divided as to po- litical affiliation, the majority being Republicans; but this division, as before said, never caused a ripple on the stream of discussion.
The Republican members were Messrs. Yount, Wilcox, Wells, Webster, Wilson, Thatcher, Rockwell, Plumb, Meyer, Marsh, James, Head, Hurd, Felton, Ebert, Elder, Ellsworth, Douglas, Crosby, Cooper, Clark, Carr, Beck and Bromwell.
The Democratic members were Messrs. Widderfield, Wheeler, White, Vijil, Stover, Stone, Quillian, Pease, Lee, Garcia, Hough, Ken- nedy, Cushman, Boyles and Barela.
They were also divided both in racial descent and native language. One of these divisions might be called sectional, also, that between the English and Spanish-speaking members ; another between the English and Spanish-speaking on one part, and those whose native language was German on the other part. The Spanish-speaking by nativity were Messrs. Agapito Vijil (Veheel) of Las Animas, Jesus (Hasoos) Maria Garcia (Garcea-accent on second syllable) of Las Animas, and Casimero Barela of Las Animas. Of these three, Mr. Barela, in con- sequence of his command of the English language, was accorded unani- mously the position of leader of the representation of the Spanish- speaking citizens of the southern counties, while Messrs. Vijil and Garcia, although embarrassed by being compelled at times to resort to the aid of an interpreter, engaged earnestly and understandingly in the
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work before the convention, and closed their labors with honor to them- selves and their constituents, and benefit to the State they helped to set on foot. Mr. Vijil supported the provision prohibiting the division of the school funds, against the motion of Mr. Hough to strike the pro- vision out, and also on the final adoption of the section. Mr. Garcia and Mr. Barela being absent, the writer cannot certainly state their position on that point, further than that they were firm friends of edu- cation and morality in all respects.
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