USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 48
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Scott, John W., R .; Barnes County ; postoffice, Valley City ; occupation, law- yer ; born March 13, 1858.
Selby, John F., R .; Traill County ; postoffice, Hillsboro; occupation, lawyer ; born Dec. 24, 1849.
Slotten, Andrew, R .; Richland County ; postoffice, Wahpeton; occupation, farmer ; born Sept. 16, 1840.
Spalding, Burleigh Folsom, R .; Cass County ; postoffice, Fargo; occupation, . lawyer ; born Dec. 3, 1853.
Stevens, Reuben N., R .; Ransom County ; postoffice, Lisbon; occupation, lawyer; born Aug. 10, 1853.
Turner, Ezra, R .; Bottineau County ; postoffice, Bottineau; occupation, farmer ; born Dec. 17, 1835.
Wallace, Elmer D., R .; Steele County ; postoffice, Hope; occupation, farmer; born July 5, 1844.
Whipple, Abram Olin, R .; Ramsey County ; postoffice, Devils Lake; occupa- tion, banker ; born April 1, 1845.
Wellwood, Jay, R .; Barnes County ; postoffice, Minnie Lake; occupation, farmer ; born Nov. 11, 1858.
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Williams, Erastus A., R .; Burleigh County ; postoffice, Bismarck ; occupation, lawyer ; born Oct. 13, 1851.
OFFICERS
Frederick B. Fancher, president ; Stutsman County ; postoffice, Jamestown.
John G. Hamilton, chief clerk; Grand Forks County ; postoffice, Grand Forks.
C. C. Bowsfield, enrolling and engrossing clerk; Dickey County ; postoffice, Ellendale.
Fred Falley, sergeant-at-arms; Richland County ; postoffice, Wahpeton.
J. S. Weiser, watchman; Barnes County; postoffice, Valley City.
E. W. Knight, messenger; Cass County ; postoffice, Fargo.
Geo. Kline, chaplain; Burleigh County ; postoffice, Bismarck.
R. M. Tuttle, official stenographer ; Morton County ; postoffice, 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; Con- necticut, 2 ; Indiana, 2; Minnesota, 2 ; Vermont, 2 ; Massachusetts, I ; New Hamp- shire, 1; New Jersey, I ; Michigan, I. Born in other countries, 23-Canada, 9; Norway and Sweden, 5; England, 3; Scotland, 3; Ireland, 2; New Brunswick, I. Ancestry-American, 22; English, 15; Irish, 12; Norwegian, Scandinavian and Swede, 10; Scotch, 6; Irish and Scotch, 3; Scotch-American, 2; Scotch and Danish, I; English-German, I; Dutch, I; German-Irish, I; Irish and Welsh, I.
ORGANIZATION
They organized the convention by the election of Frederick B. Fancher, of Jamestown, as president, and John G. Hamilton, of Grand Forks, as chief clerk, and proceeded to frame the constitution of the state in conformity with the conditions and restrictions imposed by the enabling act.
It is an interesting and notable fact that forty-five of the seventy-five dele- gates were elected from the Red River Valley counties and counties immediately adjacent thereto. Twenty-six between the valley counties and east of the Mis- souri River, and nineteen from the vast area west of the Missouri River.
The delegates were representative men of the professions and of the agricul- tural and varied business interests of North Dakota. One-third were lawyers, prominent in their profession, well versed in the fundamental principles of a republican form of government and admirably equipped for the work of framing a constitution adapted to promote the welfare of an agricultural state.
The delegates chosen at the election in May assembled at the hall of the House of Representatives in the capitol of the territory and were called to order by Luther B. Richardson, then secretary of the territory, who acted as chairman until the election of a temporary chairman. The choice of the convention for this honor was Frederick B. Fancher, of Jamestown. John A. Rea, of Bismarck, was selected as temporary secretary, and Robert M. Tuttle, of Mandan, as tem- porary stenographer.
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No roll or roster of the delegates-elect had been prepared by the secretary of the territory and the temporary chairman appointed a committee of three to whom was referred the credentials of delegates present. William H. Rowe, of Dickey County, was chairman of this committee. A committee of ten was appointed on procedure and permanent organization, R. N. Stevens, of Ransom County, being made chairman thereof. The committee on credentials prepared a roll of the delegates elected and reported it to the convention on July 5th. There were no contests and no objections filed from any district. . The report was adopted.
Patrick McHugh, a delegate from Cavalier County, suggested that it was necessary that an oath of office should be taken by the delegates. The necessity and propriety of this course was briefly discussed. The delegates were not civil officers of the territory, nor of the United States, and no oath was prescribed in the emergency act. It was usual and customary, however, in state conventions called to prepare a new constitution for the state to "swear in" the members thereof. It was concluded to be a very proper proceeding, and an oath to sup- port the laws of the United States in preparing a constitution for the proposed State of North Dakota was administered to the delegates by the Hon. Roderick Rose, judge of the Sixth Judicial District and an associate justice of the Supreme Court of the Territory of Dakota.
The delegates caucused in the forenoon of July 5th, according to their party affiliations, and agreed upon the permanent officers. Frederick B. Fancher was the choice of the republicans for president, defeating Martin N. Johnson in the caucus. Judge John E. Carland, of Bismarck, was the choice of the democrats. The session of July 5th was presided over by Martin N. Johnson. It partially completed the permanent organization by the election of Mr. Fancher over Mr. Carland by a vote of 54 to 16, three republicans and one democrat being absent and not voting. On motion of Mr. Carland, the election of Mr. Fancher was made unanimous.
It was held by the convention that the committee on rules and methods of procedure appointed in the temporary organization was illegal, for the reason that a temporary organization could not confer authority to formulate rules, that such authority must be granted by the permanent organization, and on motion the president appointed a committee of seven on rules and methods of procedure, and Erastus A. Williams, of Bismarck, was named as chairman. Carland, Stevens and Johnson, all versed in legislative and legal procedure, were members.
On July 8th, the convention completed its permanent organization by the elec- tion of John G. Hamilton as chief clerk; Fred Falley, sergeant-at-arms; C. C. Bowsfield, enrolling and engrossing clerk; Eben W. Knight, messenger; George Wentz of Burleigh, door-keeper; Joel S. Weiser, watchman; R. M. Tuttle, stenographer ; George Kline, chaplain; Arthur Lind, Harry G. Ward, Charles Lauder and Charles W. Conroy, pages. President Fancher administered the oath of office to these officers and they immediately entered upon the discharge of their duties. Upon the perfection of the permanent organization of the convention a resolution was adopted-
"That we, the delegates of the Constitutional Convenion, for and on behalf
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of the people of the proposed State of North Dakota, hereby declare that we adopt the Constitution of the United States."
By resolution the president was authorized to appoint seven members to act as members of the joint commission to be appointed by the Constitutional Con- ventions of North and South Dakota, for the purpose of making an equitable divi- sion of all property belonging to the Territory of Dakota, and to choose and agree upon the amounts of the debts and liabilities which should be assumed and paid by each of the proposed states of North and South Dakota, and authorized the commission to employ such clerical assistance in the performance of their duties as they deemed necessary, and also granted leave to the commission to sit during the sessions of the Constitutional Convention. This joint commission was required by the Enabling Act.
The Committee on Rules and Methods of Procedure reported on July 8th a code of forty-five rules for the government of the convention. The rules provided for the appointment by the president of twenty-three standing committees on printing, reporting and publishing, accounts and expenses, preamble and declara- tion of rights, legislative department, executive department, judicial department, elective franchise, education, public institutions and buildings, public debt and public works, militia, county and township organization, apportionment and repre- sentation, revenue and taxation, municipal corporations, corporations other than municipal, temperance, revision and adjustment, impeachment and removal from office, and a committee of the whole. The rules provided for open sessions daily, except Sundays, at 2 o'clock, until otherwise ordered by the convention, and no standing committee could sit during the sitting of the convention, without leave of the convention. The report was considered in the committee of the whole. Proposed amendments to add a committee on homesteads and exemptions, amend- ment and revision of the constitution, and on railroads, were defeated in the com- mittee of the whole.
An amendment was proposed inserting in rule one the words "when prayer shall be offered by the chaplain," and the committee of the whole recommended the adoption of the report when so amended. The convention concurred in this amendment and adopted the report.
The method of procedure prescribed by the rules was that every article pro- posed to be incorporated into the constitution was to be in writing and introduced by an accredited delegate in open convention. It was known as a file to distinguish it from a bill, the usual name employed in legislative assemblies. Each file to be read three separate times, the second and third times not to be on the same day. The files to be printed and referred by the president, at the second reading, to the appropriate committee. When reported by this committee they were to be con- sidered in the committee of the whole. If recommended for adoption by this committee, they were read the third time in the convention, and if approved by a majority, they were referred to the committee on adjustment and revision, which committee was empowered to classify and arrange the files under an appropriate subdivision, to reconcile conflicting sections, to perfect the phraseology, and eliminate duplications and submit a constitution made up of the files approved by the convention for its final action. By this method every proposition was carefully investigated and the delegates were enabled to vote understandingly.
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COMMITTEE OF THE WHOLE
The committee of the whole is a legislative fiction. It differs from a standing committee in that it is composed of the entire body. It has no permanent chair- man or clerk, though usually the chief clerk of the body keeps the record of its proceedings and any amendments to the subject matter under consideration are embodied in the report of the chairman and such report is printed in the journal of the convention, and thereby becomes a record of the convention. The chairman of the committee is selected from the membership of the body by the presiding officer, though the body itself may designate the permanent president to act as chairman. This rule obtains in the United States Senate, where the vice presi- dent or the president pro tem. presides at all sessions, whether the Senate is sitting as a Senate, or as a committee of the whole. This committee has no power to enact laws. It can suggest amendments germane to the subject matter, or a sub- stitute provision, and recommend their adoption. It is within its province also to recommend the indefinite postponement, or the "laying on the table," of the matter referred to it. The recommendation for indefinite postponement, or to lie on the table, is generally employed when the committee is unfavorable to the laws proposed, as a "viva voce" vote adopts the reports and defeats the measure, while a recommendation that the bill or article do not pass "usually requires a record vote by yeas and nays." "The authorities" on parliamentary law almost unani- mously support the rule that reports of committees of the whole cannot be amended and that such reports must be adopted or rejected as an entirety, unless a vote is reserved on a separate amendment, but concede the right to substitute new matter for that contained in the report. In essence and effect a "substitute" is an amendment and was invented to overcome the strictness of the rule in rela- tion to amendments.
The highest source of authority on parliamentary procedure in the United States is the Congress. The question on the adoption of amendments recom- mended by the committee of the whole is put in the form, "Shall the amendments proposed be agreed to or adopted 'en bloc,' or is any amendment reserved for a separate vote?" In the Senate the form is, "The Senate has, as in the committee as a whole, under consideration a bill (stating its title) and has made certain amendments thereto ; shall the amendments be agreed to 'en masse,' or is a separate vote demanded on any amendment?"
There was no division on party lines in the convention except at the election of its president by a straight party vote. The minority were given representation on all committees equal to their proportion of the whole number of delegates, and chairmanships of committees were distributed in the same proportion.
DIVISION OF TERRITORIAL PROPERTY
On July IIth, the president announced the standing committees and named as the select commission to adjust the liabilities and provide for an equitable divi- sion of the property of the territory, Edgar W. Camp, of Jamestown, chairman ; William E. Purcell, of Wahpeton; Burleigh F. Spalding, of Fargo; Harvey Harris, of Bismarck: Alexander Griggs, of Grand Forks; John W. Scott, of Valley City, and Andrew Sandager, of Lisbon-four lawyers and three business men.
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For the information and guidance of this joint commission the convention by resolution requested the auditor for the territory forthwith to prepare and furnish a statement showing :
I. The cost of construction and repairs of all public buildings and institutions of the territory.
2. The indebtedness incurred and outstanding against the same.
3. The part of such indebtedness which was by the law- creating them to be assumed and paid by the states of North and South Dakota, respectively.
4. All assets and liabilities of the territory, and to what accounts belonging.
5. A list of all public records, archives and other property of that nature now belonging to the territory.
6. Any other information useful and necessary to aid this committee to effect an equitable division of the property, assets and liabilities of the territory.
The chief clerk was ordered to have the omnibus bill, rules of the convention, the standing and select committees, printed in pamphlet form and placed upon the desks of the members. The convention by resolution empowered the joint commission to temporarily settle and fix what should be the seventh standard parallel, until such time as the true line should be ascertained.
THE WORK OF THE CONVENTION
On July 12th, and four days after perfecting the organization of the conven- tion, Martin N. Johnson introduced the first proposed article of the constitution. It related to "common carriers" and is known on the records as file number one. It was read twice at length and referred to its appropriate committee, viz., "cor- porations other than municipal." As every delegate had the right to introduce proposed articles, a total of 140 files were offered by 48 delegates during the life of the convention, of which 118 files can be classed as original matter, pre- pared by the delegates from the constitutions of other states. Twenty-four were substitutes for original files and reported from the standing committees. Two were complete constitutions, and one was for the equitable distribution of the assets and property of the territory and the assumption of an equitable proportion of the debts and liabilities of the same. The subject matter of eleven of these files related to the regulation of the liquor traffic. Seven were for prohibition, two for license, one for regulation of the traffic by city and county local option, and one to purchase established breweries and distilleries and thus reimburse the owners for property rendered useless. Six files proposing a form of preamble, and two proposed schemes for the location of a permanent seat of government, but generally but one file was offered on any given subject and was usually pre- sented by a delegate who was a member of the committee who had jurisdiction of the subject matter stated in the file.
On July 16th, the convention adopted a resolution offered by Mr. Spalding that no proposed articles be received by this convention, except by unanimous con- sent, after the close of the session of Monday, July 22d, but this limitation should not apply to reports of committees, either of material submitted to, or originating with them.
It also adopted a resolution asking the opinion of the judiciary committee as to the power of the convention to provide for the taxation of the road bed and
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rolling stock of the Northern Pacific Railroad, which was by its charter exempt from taxation in the territory, and indefinitely postponed a resolution offered by Mr. Lauder that a select committee of five be appointed by the president to whom should be referred all questions relating to the "seat of government."
The work of framing a constitution was done mainly in the committees, who devoted the forenoons and evenings to the consideration of the different articles referred to them. By resolution the various committees were empowered to employ such clerical assistance as they deemed necessary and directed the first legislative assembly to make an appropriation to pay such clerks such an amount as should be certified to by the chief clerk and president of the convention. Secre- tary Richardson, who was custodian of the appropriation made by Congress to pay the expenses of the Constitutional Convention, holding that no part of such appropriation could be used to pay clerks of committees.
The committee of county and township organization presented the first report of the standing committees on July 16th, and the judiciary committee submitted a report recommending that the article or proposition which required judges of the District Court to take and submit an affidavit that no cause remains in his court undecided that has been submitted for decision for the period of ninety days before being allowed to draw or receive any salary, be left to the Legislature to adopt such regulations as the necessities of the case may require. This report was adopted. It recommended a substitute for the "compact with the United States," outlined in file three, and that the matter of the non-sectarian character of the public schools be left to the committee on education. That the proposition of file eighteen, "No act shall embrace more than one subject, which shall be expressed in its title," should constitute a section under the head of the legislative depart- ment of the constitution, and that file eight, providing that the governor, attorney- general and judges of the Supreme Court shall constitute a "Board of Pardons," be referred to the committee on the executive department.
On July 18th, Mr. Camp offered a resolution providing that when the com- mittee 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 such proposition in order, and revise the same so that no part of the constitution shall conflict, and to report a constitution embracing all articles and propositions so referred for final adoption as a whole by the constitution. This resolution led to an instructive and protracted debate, participated in by a number of the delegates, in which the powers and duties of the committee were clearly defined, and the convention with a clear understanding of the limited power of the committee adopted the resolution without amendment.
The resolution was reconsidered on the following day and amended so as to provide that the committee report a constitution for "adoption or amendment, section by section, by the convention and then adopted as a whole." The com- mittee was instructed by a vote of sixty-three yeas and eight nays to report "every change made in the matter referred to it."
On July 20th, Mr. Williams introduced a complete constitution, known as file 106, which was read the first time and printed in the Journal.
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THE WILLIAMS CONSTITUTION
This document excited much speculation and comment, not so much as to the matter contained therein, but as to its authorship. It was excellently arranged under the heads, The State, The People, The Government, Alteration of the Con- stitution, and The Schedule, and its provisions were expressed in clear, pertinent and apt language. It was, as one newspaper expressed it, "A marvel of strength, sense and diction." Many of its provisions were incorporated in the constitution framed by the convention. It was suspected of railroad origin, or prepared at the cost and suggestion of the cattle barons of the Missouri slope. Willians dis- claimed its authorship, and did not reveal the source from which it came, nor its author beyond the statement that he received it from a Bismarck attorney, and that it had been prepared by an eastern attorney. Various stories of its authorship appeared in the press, among them, one that it was prepared by Senator William M. Evarts of New York, an eminent jurist, with the assistance of some of the best constitutional lawyers of the country. The Bismarck Tribune said it had received enough light on the subject to suspect that this story was not far from right. Senator Evarts himself, however, said that the Constitution of North Dakota, so far as he had looked into it, was a most excellent one and reflected credit on the deliberate sense of North Dakota, but that he had not prepared it, was not consulted about it, and knew nothing about it.
Another story ascribed its authorship to Prof. James Bradley Thayer of the Harvard Law School. A careful investigation has verified this story. Professor Thayer was the real author of this constitution. He was assisted in its prepara- tion by Henry W. Hardon, and the late Washington F. Pedrick, who was secretary of the Geneva Commission. That Professor Thayer was the author of the Wil- liams Constitution appears from the following statement of Henry W. Hardon :
"In 1889, the Territory of Dakota was about to be admitted to the Union as two states. Mr. Henry Villard was at that time chairman of the finance committee of the Northern Pacific Railway, the most important corporation operating in that territory. He was sincerely desirous that the two new states should start right, that they should have the best constitution which could be framed for them, and with that purpose in mind he consulted Mr. Charles C. Beaman, then one of the leaders of the New York bar. Mr. Beaman advised him that if he could get Professor Thayer to draft a constitution for the new states, they would have the benefit of all that expert knowledge and sound judgment could accomplish in that respect. Professor Thayer undertook the task: His draft-constitution was submitted to the two conventions, and was in large part adopted by them. The legislative article in the Constitution of North Dakota, for example, is substan- tially word for word the language of Professor Thayer's draft.
"It rarely happens to a teacher or to a lawyer to accomplish a piece of con- structive work of this kind, a piece of work affecting so widely the interests of so large a community, affecting them not merely for the present but for the future.
"You may think it singular that the authorship of a work of this importance should wait until this time for public disclosure. The fact is, that it seemed pru- dent when the work was doing to conceal its authorship. Though Mr. Villard was moved only by a single-hearted desire to promote the welfare of the two new states, it was feared that a draft-constitution prepared by an eastern college pro-
LINDA W. SLAUGHTER
First postmaster, Bismarck, 1873
ALANSON W. EDWARDS Fargo pioneer
CLEMENT A. LOUNSBERRY, BISMARCK
Photo at twenty-one years of age, when captain in Twentieth Michigan Volunteers
ERASTUS A. WILLIAMS Bismarck pioneer, lawyer and legislator
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fessor, under the direction of a Wall Street lawyer and at the instance of the head of the largest corporation in the territory, might fail of adoption if its authorship were known; that the people whom it was designed to benefit might entertain a suspicion that a constitution so prepared, however fair upon its face, concealed some sinister attack upon their property rights. The two constitutions have now been in force some fifteen years. Their merits have been proved in that time. But two amendments have been made to the North Dakota Constitution, and one of these incorporates a clause from Professor Thayer's draft omitted by the Con- stitutional Convention. The principal actors in this scheme to help the people of the Dakotas are now all dead, and I am the only survivor of the two young men who were engaged in the preliminary work under Professor Thayer's direction. The occasion for concealment of the origin of these constitutions has now passed, and the facts I have narrated should not be lost for lack of a record."-From a speech of Henry W. Hardon, Esq.
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