USA > Missouri > Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I > Part 25
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"During Schurz's speech, which closed the debate before the legislative caucus, he drew from his pocket Walbridge's transcript and began reading therefrom. Drake started up, as the fatal words fell upon his ear, and his former utterances rose before him like Banquo's ghost, and harshly demanded of Schurz, 'What are you reading, sir?' 'From a report of your speech delivered at the constitutional convention in 1865,' blandly replied Schurz. 'Reported by whom?' demanded Drake. 'Reported by Mr. Walbridge, who sits at the table here, and is reporting the proceedings of this meeting,' replied Schurz. Drake looked despairingly at Walbridge, whom he knew too well to question his accuracy as a reporter, and sank back in his chair, and shortly afterward the legislature proceeded to ballot, resulting in the election of Carl Schurz to the United States Senate. It was an embarrassing position for Walbridge, who was a personal friend of Drake's, and regretted to have been the means of inflicting the final blow which resulted in his downfall."
When Schurz ended his speech, Drake recognized his defeat. He left Jeffer- son City that night. Before his senatorial term expired he resigned and accepted the appointment of chief justice of the court of claims at Washington. Mis- souri knew him no more.
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The Constitution Makers of 1875.
Even with the test oath eliminated "the Drake Constitution" could not get rid of its bad name. In 1874 a movement in favor of another constitutional conven- tion, the fourth in the history of the state, was inaugurated. It was carried by a popular vote.
The men who drafted this enduring constitution of Missouri were: J. C. Roberts, Henry Boone, E. H. Norton, D. C. Allen, J. L. Farris, J. A. Holliday, J. B. Hale, J. H. Shanklin, C. H. Hammond, W. Halliburton, Thomas Shackle- ford, A. M. Alexander, Benjamin R. Dysart, John R. Ripley, William F. Switzler, J. F. Bucker, H. C. Lackland, L. J. Dryden, N. C. Hardin, H. V. McKee, Levi Wagner, Lewis F. Cotty, William Priest, F. M. Black, William Chrisman,. Wal- do P. Johnson, E. A. Nickerson, S. R. Crockett, John H. Taylor, H. C. Wallace,
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WV. H. Letcher, B. F. Massey, John Ray, C. B. M'Afee, G. W. Bradfield, John W. Ross, T. W. B. Crews, John Hyer, J. H. Maxey, Philip Pipkin, E. V. Con- way, J. F. T. Edwards, P. Mabrey, N. W. Watkins, G. W. Carlton, L. H. Davis, J. H. Rider, A. M. Lay, T. J. Kelley, James P. Ross, Wash Adams, James O. Broadhead, Albert Todd, Joseph Pulitzer, T. T. Gantt, A. R. Taylor, H. J. Spaunhorst, N. J. Mortell, H. C. Brockmeyer, James C. Edwards.
All of the foregoing, according to Mr. Switzler's classification, were elected as Democrats. This goes to show how far the political pendulum in Missouri had swung backward from the control of the radical elements which had given to Missouri the so-called Drake constitution only ten years before. There were . only six Republicans in the constitutional convention of 1875,-M. McKellop, T. J. Johnson, C. D. Eitzen, Henry T. Mudd, George H. Shields,-and two Liberals, R. W. Fyan and L. Gottschalk.
One of the Democrats, T. J. Kelley, it should be stated, died before the con- vention got to work and his place was taken by Horace B. Johnson, a Repub- lican. One man who sat in the constitutional convention of 1865 was in that of 1875-Mr. Switzler.
One of the remarkable facts about the work of this convention was that the draft of the constitution was adopted by a unanimous vote of the members. The action of the voters was almost as notable. The state adopted the constitution by 91,205 for to 14,517 against, a majority of 76,688. The New York Nation pro- nounced this new constitution for Missouri fifty years ahead of its time. Later, some of the provisions were criticised as too restrictive. The name of "the strait jacket constitution" was applied.
Switzler's Analysis of the Organic Act.
Analyzing the work and results of the convention, Mr. Switzler said of this constitution of 1875 :
"The bill of rights occupied much time and was a fruitful theme of discussion. The subject of representation, a knotty problem in all similar bodies in all states, disclosed wide antagonisms of opinion, and elicited protracted debate. In the face of all opposition county representation was maintained. It found a place in the first constitution of the state, and in all others since adopted by conventions of the people of Missouri. The argument, that, to a certain extent, it perpetuates the representation of sub-divisions of territory, and not population, did not avail to interdict it. New and vitally important provisions were adopted in regard to legislative proceedings. Carefully prepared and stringent limitations on powers of the general assembly were engrafted on the new instru- ment. Sessions of the legislature were made biennial, and the gubernatorial term was changed from two to four years. The formation of new counties was made more difficult, perhaps impossible. The taxing and debt contracting power of the legislature and of counties, cities and towns, and all other municipalities, was hedged about with limitations and safe-guards. Extra mileage and perquisites to officials were laid under embargo. Our system of free public schools, embracing a liberal policy for the mainte- nance of the university of the state, received recognition in the article on education."
The Conditions in 1875.
That conditions then existing called for such a constitution, the popular vote on adoption is good evidence. A third generation is now living under 'this or- ganic act. Missourians with definite recollections of forty-five years ago are
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not numerous. Robert P. C. Wilson, speaking to the Missouri Bar Association, some years since, of the public services rendered by Judge Elijah Hise Norton, recalled vividly the circumstances attending the constitutional convention of 1875, and described the intense satisfaction the restrictive and preventive provisions gave to the people generally when the constitution went into effect :
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"The laws of Missouri had been silent since 1861, and the exigencies of the Civil war had been so paralyzing that after the people, with unrestricted suffrage, had come into their own, they lost no time in calling a constitutional convention. Indeed, they seem to have risen fully to the occasion. Many of the counties had been so fraudulently ravished and plundered under doubtful forms of law, that the people of the state hailed the calling of that convention as a promise for redemption of wrongs many of them had suffered, and as a guaranty against their repetition in the future. What infinite care they displayed in the selection of its members! It was by all odds the ablest body of men ever gathered in this state for a similar purpose. The districts seemed to 'vie with each other as to which should send the ablest, purest and best of its citizens as members. In reading the roll of that body you will find the names of many lawyers who afterwards became illustrious in the annals of our profession. There you will see the honored names of James O. Broadhead, Thomas T. Gantt, Albert Todd, Joseph Pulitzer, A. R. Taylor, Henry C. Brockmeyer, T. W. B. Crews, Waldo P. Johnson, George H. Shields, H. C. Lackland, W. H. Letcher, F. M. Black, Elijah H. Norton, Dewitt C. Allen and others of distinction worthy to be classed with those mentioned. Their work proved to be a marvel of wisdom. Judge Norton, from the beginning, took a prominent and leading part in that convention. The members of that assembly, now nearly all in the shadows, builded better than they knew-'their works do live after them.' It was indeed the people's constitution, and from that day to this they and their descendants have sacredly guarded it against the designs of those who would supplant it in its entirety. During his declining years I have heard him often remark that his work in that convention was his chief monument of title to the gratitude of the state.
"I distinctly recall the wave of satisfaction which rolled over rural Missouri, when assured that the grafter, repeater, promoter and dishonest county judges could no longer use the forms of law to take from them in iniquitous taxes their hard-earned substance. The people hailed the coming era as the rising of the sun. Sowing, they would now reap undisturbed the fruits of their labors. . Their wives and daughters sang new songs of good cheer as they busied about household duties, while sons, husbands and fathers were gay as revellers as they resumed with buoyant hearts their subjugation of the wilderness. Indeed, the scars of cruel conflict were being rapidly healed; the wild grand music of war was stilled into softly murmuring cadenzas of Content, and Peace tinkled upon the shepherd's bell, and sang among the reapers. Happy, thrice happy, was this grand man as he reviewed his conspicuous contribution to the tuneful melody of the times."
The Constitution of 1875 and Its Interpretation.
The Missouri constitution of 1875 has attracted no little attention beyond the borders of the state. It goes into much detail. The rule of the supreme court of Missouri has been to construe the provisions of the constitution with such literalness as to cause considerable criticism. For example, a provision of the constitution says that all indictments shall conclude with the words, "against the peace and dignity of the state." Indictments have been drawn omitting the word "the" before the word state. The supreme court has held that this omission invalidates the indictment. These and somewhat similar rulings on technicalities have been the subject of criticism, not only by newspapers and magazines but by courts in other states. Judge A. M. Woodson some years ago set forth the position of the Missouri court in holding to the view that the con-
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stitution of 1875 was to be viewed and interpreted as mandatory rather than directory. He said :
"I might state that the fundamental principle underlying such rulings is to prevent courts from tearing down by piecemeal the great bulwarks of liberty and shield of indi- vidual security which they would not dare do openly and at one stroke.
"Nor is that idea a novel one in this court. Mr. Justice Cooley, who, it is conceded by the bench and the bar of the entire country, was the peer, if not the superior, of any constitutional lawyer who ever graced the bench, or lent honor and dignity to the bar, in his matchless work on constitutional limitations (pp. 93-98), in discussing the question of whether rules which distinguish directory and mandatory statutes apply to the pro- visions of the written constitution, after a careful review of the authorities, said :
"'It will be found upon full consideration to be difficult to treat any constitutional provision as merely directory and not mandatory.'
"And the same eminent authority, on page 72, in speaking of the statutory rule, which requires that full force and effect be given to every clause and word of a statute, and that no word shall be treated as meaningless if a construction can be legitimately found which will preserve and make it effectual, said :
"'The rule is applicable with special force to written constitutions on which the people will be presumed to have expressed themselves in careful and measured terms corresponding with the immense importance of the powers delegated, leaving as little as possible to implication.'
"Before leaving the question, let me state," said Judge Woodson, "to my law-loving neighbor's that,-after spending the best part of my life on the bench, and after having observed and read quite extensively regarding the form and modes of administering justice,-the courts have done far more harm and injustice by judicial legislation, that is, by interpolating into statutes and con- stitutions words and phrases which the lawmakers never placed therein, and by striking therefrom words and phrases which were placed there by the lawmakers, than they have by clinging to the so-called 'technicalities'."
This position of the supreme court was maintained from the time the con- stitution went into effect until December 1, 1920, when by a unanimous vote the court made a specific ruling that the omission of the word "the" in the final clause of an indictment was not ground for setting aside a verdict of guilty under that indictment. Not only did the court reverse the previous position that had been held in Missouri but it departed from technical precedents established by supreme courts in several other states. The court held that the provision in the constitu- tion was not mandatory but called for substantial compliance. Judge Williamson said it would be to sacrifice substance to form to allow a trivial omission of a minor word in a subordinate paragraph of procedure to outweigh the very funda- mentals of the constitution.
"Much musty learning might be dug from forgotten books did time and space permit, to show the various endings of the indictments at common law and why it may have been thought advisable, 45 years ago, when our Constitution was written, to provide that there should be but one ending, and, but for the same limitations, many authorities might be cited in support of the views herein announced. It seems sufficient to say that in the case at bar there was a substantial compliance with the requirements of the Constitution, and that is all that is necessary. To so hold does not deprive the appellant of any right, nor impair any valid defense which he may have, nor alter the meaning of the charge, nor in any wise interfere with the orderly administration of justice."
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Individual vs. Corporation.
"An advanced position," as the lawyers called it, was taken by the con- stitution of 1875 for the protection of the individual against the corporation. In that respect the framers went farther than the constitution makers of many other states. They put in provisions especially relating to the rights of property. The Missouri constitution of 1865 had followed the course of most other states with general provisions governing the use of private property for public purposes. That instrument in its first article had provided: "No private property ought to be taken or applied to public use without just compensation."
This was the common form of property protection. It was supplemented by statutes, as was the custom in other states. These statutes by the legislature set forth the method of determining the value of private property taken for public use and of paying the owner. But the constitution of 1875 was quite different from that of 1865 in this feature. It was drafted by men of independent thought and considerable originality. It departed in many ways from the constitutions of other states. The framers exalted the individual and put the curb on the cor- porations. They provided in mandatory language: "Private property shall not be taken or damaged for public use without just compensation."
They went farther. They took away from the legislature the broad function which the constitution of 1865 had left. The constitution of 1875 prescribed that. the "just compensation" must be paid in advance of the taking or the damage of private property. This compensation, the constitution declared, should be ascer- tained "in such manner as may be prescribed by law, and, until the same shall be paid to the owner, the property shall not be disturbed, or the proprietary rights of the owner therein be divested."
The practical effects of this constitutional provision were soon seen. In 1879 the statutes were revised and the method of ascertaining "just compensation" for property taken was set forth, but not for property damaged. In 1887, the legislature enacted what was called the Shaw law providing the method for ascer- taining just compensation for property damaged. This method took into con- sideration an issue which had arisen in St. Louis. The new law stipulated that before an elevated road can be built the damage it may be to private property "shall be paid to the owner, or into the court for the owner, before his prop- erty shall be disturbed or his proprietary rights therein divested." One section of the Shaw law defined what was meant by damages. It read :
"Damages in this act is hereby defined to be the depreciation in the value of the property that may result from the construction and operation of the proposed railroad."
Five different movements to build elevated railroads in St. Louis have pro- gressed in the planning and have been effectually blocked by the constitutional provision.
Recollections of Major Dysart.
Four members of the constitutional convention of 1875 were living in 1919. They were George H. Shields, of the circuit bench of St. Louis; B. R. Dysart, of Macon county ; Judge D. C. Allen, of Clay county ; and L. F. Cotty, of Knox county. Amos R. Taylor, one of the St. Louis members died in 1919. Major
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Dysart, then past eighty years, was president and the oldest member of the bar association of Macon. He recalled for the Missouri Historical Review these interesting facts about the constitution makers of 1875:
"That was a time when patriotism meant personal economy. We received five dollars a day, and out of that we paid our hotel bills and all other expenses. There were no bells to ring for stenographers. Each man did his own writing, using a quill pen. In sign- ing the final draft each member affixed his name with a quill. The men of the constitu- tional convention were ardent in their ambition to give the state a code that would stand the test and that would be economically administered. They were head set on not squan- dering any of the state's money, needlessly. There were even objections to employing a chaplain on the ground of expense, but Judge Thomas T. Gantt solved that question. He said William Priest, of Marion county, was a good old 'Hardshell' Baptist preacher, who didn't believe in salaries for preaching, and that he would do as fine a job at chaplaining as any man on a regular wage, and he'd come and pray for us. So Brother Priest was elected, and he made Judge Gantt's word good.
"When the matter of placing the word 'Creator' in the constitution came up, Judge Gantt opposed it, because he didn't believe it was wise to drag the Deity into public affairs. He wanted church and state affairs kept separate, he said. He was outvoted, however, and the first three lines of the preamble read: 'We, the people of Missouri, with profound reverence for the Supreme Ruler of the Universe,' and so on.
"To show how strong the spirit of economy was abroad among public servants in those days, the matter of the convention's purchasing and paying for the daily papers, so as to keep tab on the proceedings, was long and earnestly discussed, and it was finally decreed that this expense should not be borne by the public funds, but by each member going down into his individual pocket and producing the cash for the paper.
"That convention made a radical change in trials for murder. Until then, if a man were convicted of murder or some degree of man-slaughter, appealed and got a new trial, he could not be tried for a higher degree than the jury's verdict at the first trial. The change in the constitution provided that the second trial should be conducted re- gardless of the jury's verdict the first time. There have been cases since where . men were tried for murder, convicted in the second degree, got a new trial and were then convicted in the first degree."
The New Constitution Movement.
The movement for a fourth organic law of the state came to definite form in the organization of the "New Constitution Association." This league pre- sented the matter to the general assembly in 1919, after a vigorous campaign in the state, asking the legislature to submit to the popular vote the question whether a constitutional convention shall be held. Objections to the present constitution and changed conditions which called for new organic provisions may be sum- marized from the address of William S. Southern, of Independence :
The present constitution was written forty-three years ago, before the era of electric light, telephones, automobiles, and present business conditions. The present constitution was too long, and was more a code of laws than a declaration of fundamental principles. It contained more than 30,000 words, while the Constitution of the United States con- tained only about 4,000. Since the present state constitution was adopted eighty-six amendments had been submitted to vote, and only twenty-three had been adopted, and of these only one in the past ten years. This showed the hopelessness of trying to amend the present constitution to meet present-day needs. Administration of justice was im- possible and the restrictions as to the number of judges of the supreme court had re- sulted in such delays in litigation as practically to deprive the poor man of his right of appeal. The revenue and taxation laws were the "craziest set" any state had, and they
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had made fully fifty per cent of the taxpayers perjurers. A new constitution need not mean increased taxes; it need only provide for the equalization of taxes. Public educa- tion had been hampered by the restrictions of the present constitution, and, as a result, Missouri was thirty-second among the states in the literacy rank. More liberal constitu- tional provisions for the building of roads were necessary.
Perhaps the strongest argument put forward by the advocates of a convention to frame a new constitution for Missouri, and the one likely to command the most general popular support was the need of more liberal expenditures for education. That Missouri was ranked thirty-second of the states in literacy and first in mules was galling. Dr. W. S. McDearmont, president of the Cape Girar- deau Teachers' College pointed out that, under constitutional limitations, it was impossible to levy a tax of more than sixty-five cents on the $100 for rural schools, although a tax of one dollar on the $100 could be levied in the cities. He could not understand why the framers of the constitution of 1875 figured that it would cost less to educate a country child than a city child.
The movement favoring a new constitution for Missouri reached positive strength in 1920, with officers, headquarters and aggressive propaganda. It un- dertook to remove one of the chief hindrances to the call for a constitutional con- vention. This, it was proposed to do by an amendment to the existing organic act. The constitution of 1875 provided that when a convention was called to re- vise that constitution it should be composed of two delegates from each of the sen- atorial districts ; and their election must be conducted "in conformity with the laws regulating the election of senators." As the senatorial districts of the state were so bounded as to insure a majority of Democrats in that body under ordinary divisions of the voters on party lines, the Republicans opposed the call- ing of a constitutional convention because it was almost certain to mean a strong preponderance of the opposition. The Republicans in the general assembly for some years stood out against a constitutional convention, insisting on a rear- rangement of the senatorial district boundaries. To meet this objection the New Constitution Association proposed to change the method of electing delegates to a constitutional convention in such manner as to create a bi-partisan body. To do this required an amendment to the constitution of 1875. The draft of such an amendment was framed by a committee of the ablest lawyers of the state. The suggested amendment provided for two delegates from each senatorial district, each of the two political parties to name one delegate. This would mean an equal representation of Republicans and Democrats to the extent of the number of senatorial districts. There was a further provision that a party movement outside of the two old parties might elect a delegate if it outvoted one of the old parties. In addition to the district delegates the plan contemplated fifteen delegates-at-large to be nominated by initiative petitions and "to be voted for upon one independent and separate ballot without any emblem or party designa- tion whatever." The plan of the organization contemplated a vote of the people upon this amendment at the November election of 1920. If adopted, the amend- ment called for an election the first Tuesday in August, 1821, to submit to the voters of the state the question: "Shall there be a convention to revise and amend the constitution." If this passed in the affirmative, the plan provided for an election of delegates in from three to six months later; the constitutional con-
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vention to be called by the governor within six months after the election of the delegates. The plan seemed to meet with considerable favor as the details were made clear to the people of Missouri. On the Ist day of July, 1920, pe- titions having 59,021 signatures were filed with the secretary of state, asking for submission, at the November election, of the proposed amendment providing the new plan for the election of delegates to a constitutional convention.
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