USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 49
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From E. R. Thayer, dean of Law School, Harvard University :
"I enclose a copy of what Mr. Hardon said in 1904, when my father's portrait was prescnted to the Law School. His remarks may be found in the printed volume containing the proceedings.
"I think, however, that Mr. Hardon's memory is defective in some points. I do not believe that Mr. Villard consulted my father on Mr. Beaman's advice; Mr. Villard and my father had long been personal friends and I think that Mr. Villard came to him of his own motion, because of this friendship and my father's long study of constitutional law in the Harvard Law School. Mr. Beaman was, I believe, Mr. Villard's regular counsel, and Mr. Villard sought the advice of both my father and him. But while Mr. Beaman and my father were friends, and no doubt consulted together in this matter, I think their operations were in a sense independent.
"I doubt, also, whether my father's work is represented in the North Dakota Constitution to the extent which Mr. Harden thinks; certainly that constitution differs much (although not so much as the constitution of some other states) from my father's ideal of a constitution. He believed earnestly that it should consist of a brief enunciation of a few fundamental principles, leaving the Legislature a free hand, subject to these principles, to exercise governmental powers in the broadest way, and he was utterly opposed to the belittling restrictions on legis- lative power to be found in state constitutions. This is a criticism to which I feel sure he would have thought the North Dakota Constitution also subject."
Professor Ezra Ripley Thayer, who strikingly resembled his father in mind, feature and manner, had been dean of the Harvard Law School since 1910, and in that year, also, became Dane professor, and was known as an authority in medical jurisprudence. He died a suicide by drowning in the Charles River, near his home, on the night of the 14th of September, 1915, at the age of forty.
Mr. Parsons, of Morton, introduced the Constitution of South Dakota. It was not printed, however, as a file or in the journal, as copies of it were upon the desks of members. By direction of the convention no proposition or pro- posed article could be introduced after Monday, July 22d, and on that day the convention by vote required all standing committees to make reports by Thurs- day, July 25th.
File No. 25 vesting the legislative authority in a single body to be called the
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Legislative Assembly, was taken up for discussion in the committee of the whole. The subject was exhaustively covered in brilliant, spirited and illuminating speeches, showing care and research in their preparation.
Delegates Stevens, Turner, Parsons, of Morton, Johnson and Lauder advo- cated and Carland and Harris opposed it. Persons interested in this subject, either as an academic question, or as a feature of the government, will find this debate a mine of historical lore. The convention, however, adhered to the prece- dents and adopted the two-house system of older states. Articles recommended by standing committee to form a part of the constitution were usually agreed to without debate, but the article relating to the
SALE AND DISPOSITION OF SCHOOL LANDS
was an exception. There was a wide diversity of sentiment among the dele- gates as to what probably would be most advantageous to the state, whether the land should be leased, or sold on long time, the title remaining in the state until the purchase price was fully paid; whether the right to purchase should be restricted to actual settlers, the purchase limited to 320 acres, to prevent specu- lators acquiring large tracts ; whether persons who had settled upon school lands after they were surveyed and had cultivated and otherwise improved them should have a preference right to purchase such improved lands, or should be regarded as trespassers upon the public domain, and whether the lands sold could be lawfully taxed until patented by the state. The sentiment crystallized in favor of an open, unrestricted sale on time contracts, the lands to be subject to taxation from the date of such contract.
THE SUFFRAGE
The committee on elective franchise of July 25th made a majority and minority report. It differed on the question whether the power to grant suffrage to women should be left to the Legislature, or submitted to a vote of the qualified electors of the state by the first Legislative Assembly. After a spirited and lengthy discussion, the convention adopted a provision which empowered the Legislature at its discretion to make further extensions of suffrage, without regard to sex, but prohibited any restrictions of the suffrage without a vote of the people, and a provision making women qualified voters at any election held solely for school purposes, and eligible to hold school offices, was incorporated in the articles on the elective franchise. However, the convention the next day reconsidered its action and substituted a provision which is now a part of the constitution, whereby the Legislature is empowered to make further extensions or restrictions of suffrage, when authorized thereto by a vote of the people.
THE JUDICIARY
The committee on the judiciary department also submitted majority and minority reports. The majority report recommended the establishment of a Supreme Court, to consist of three members, and prescribed that no one unless learned in the law, of thirty years of age, and a resident of the territory for five years next preceding his election, should be eligible to the office. Guy C. H. Corliss, of Grand Forks, who aspired to the Supreme Court, was ineligible, by
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reason of his residence qualification. He came to Bismarck, together with John M. Cochrane, a notable lawyer of Grand Forks, and they jointly persuaded the delegates to limit the residence qualification to three years. Mr. Corliss was elected to the Supreme bench. He drew the short term and became the first chief justice of the state.
The majority of the committee recommended and reported to the convention the establishment of a Probate Court in each organized county, clothed with jurisdiction of the estate of decedents, wills, estates of widows and orphans, and of guardianship.
The minority proposed a system of county courts, clothed with jurisdiction of all probate matters, and jurisdiction of civil matters involving sums not exceeding $1,500 and jurisdiction of criminal matters below the grade of felony, and in all cases of lunacy. Mr. Rolfe, a delegate from Benson County, vigor- ously advocated the substitution of the County Court system, saying in part :
"That the system of Probate Courts as we now have it * is a dis- grace not only to our judicial system, but to the people who seem to hug it to their bosom. * * * It is mysterious to me upon what ground they can defend the continuation of this system."
Mr. Bartlett, of Griggs, defended the County Court system, saying in part :
"The County Court system has been tried before. It is in use in Illinois, Colorado, New York, Nebraska, Missouri and several other states. They say that it is the most popular court with the attorneys and the people. * * * The minority does not propose the establishment of a new court, but an improve- ment in a court already established."
Mr. Carland, chairman of the judicial department, on August 2d, introduced a substitute for the probate system, which provided for county courts whose jurisdiction could be increased whenever counties having a population of two thousand or more should by a majority vote of its people decide to increase their jurisdiction. This was amended by adding a proviso, "Such jurisdiction as thus increased shall remain until otherwise provided by law," and the substitute as so amended was adopted by the convention.
Mr. Williams, on July 31st, had introduced four additions to be added to the judicial article; they were taken from the complete constitution introduced by him. The first section provided "When a judgment or decree is reversed or affirmed by the Supreme Court, any point fairly arising upon the records of the case shall be considered and decided and the reasons therefor shall be concisely stated in writing. * * and presented with the record of the case." *
The second section empowered the Supreme Court to make rules for its government and that of the other courts of the state, establish rules of practice and rules for admission to the bar of the state.
The third section made it a duty of the court to prepare a syllabus of the points adjudicated in the case and concurred in by a majority of the judges.
The fourth section required the judges of the Superme Court to give their opinion upon important questions of law and upon solemn occasions, when requested so to do by either branch of the Legislature.
The first and third sections were accepted by the convention. The second section was stricken ont. The fourth section led to much discussion. Judge Carland in an elaborate speech presented the reasons why it should not be Vol. I-26
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accepted as a section of the constitution. He believed it to be pernicious and unwise to have it in the constitution. He fortified his views by reviewing the experience of Colorado, whose constitution contained a similar provision, and by quoting liberally from the opinions of its Supreme Court judges in the case of Wheeler vs. Irrigation Company, 9 Colorado, 249. Judge Carland stated that a constitutional provision of this kind was open to grave abuses and asked that it be stricken from the slate.
Delegate Miller also opposed the proposition, saying the fundamental prin- ciple of our constitutional government is that it should be divided into three departments, legislative, executive and judicial. The proposition interfered with this division of the government. It would be burdensome to the Supreme Court, and result in no good to the people. It would make the Supreme Court the legal advisers of the Legislature, and the court would legislate by virtue of being called upon to advise the Legislature, hence political judicial legislation would follow.
Delegate Moer also protested, saying that the adoption of this provision would be simply an addition of three more lawyers to the Legislature. The opinion of the supposed questions would be ex parte, without a hearing and entitled to no more weight than that of the lawyers who might be present as members of the Legislature.
Delegate Johnson opposed, saying the only advantage that the Supreme Court has over a justice of the peace is that it has the last say of the case. They are no more than men who are not clothed with official position, or the attorney- general whose province it is to furnish legal advice to the executive and legisla- tive departments of the government.
Mr. Williams favored the proposition, claiming that it should be adopted because it would place every member of the Legislature on an equality and would avoid forcing on the statute books an important law, one that might affect the interests of the entire people, and have it afterwards declared unconstitutional.
This provision had before this discussion been approved in the committee of the whole and adopted by the convention. The convention reconsidered its action and struck out the obnoxious section.
This committee had also unanimously agreed upon three terms of the Supreme Court to be held annually, at the "Seat of Government." Purcell objected to holding the terms at the "Seat of Government" and submitted a proposition for a "migratory court" of three terms, one term to be holden at Fargo, one at Grand Forks, and one at Bismarck, then the "Seat of Government." This proposition was debated at length, Delegates Purcell, Miller, Parsons, of Morton, Lauder and Spalding favoring it, and Delegates Scott, O'Brien and Selby opposing it. The Purcell proposition was adopted by the convention.
Brig .- Gen. Thomas H. Ruger of the Military Department of Dakota trans- mitted in accordance with instructions received from the War Department at Washington a proposed article ceding to the United States jurisdiction over the military reservation established in the state by the Federal Government. It was referred to the judiciary committee, which reported a section in conformity with the desire of the Government and ceding jurisdiction over military, Indian and other United States reservations and public buildings used for United States purposes. This section was adopted by the convention.
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APPORTIONMENT
Apportionment and legislative representation, owing to diversity of senti- ment among the delegates, was a difficult problem to solve. The more sparsely settled counties favored giving each county a senator, regardless of population, and strenuously opposed the principle of dividing the county into senatorial districts based on population, and also seriously objected to the election of rep- resentatives from the senatorial districts as favored by a majority of the legisla- tive committee. It was stoutly maintained that every county should have at least one representative and that when two or more counties were grouped as a senatorial district the more populous county had power and doubtless would exercise it, to deprive the smaller county or counties of representation, either in the Senate or House.
Martin N. Johnson, in an impassioned speech, opposed representation by counties, rather than men, that laws were made for people and not for valleys, areas or inanimate objects. That there was no fairness or justice in the system that would give the forty-four men who voted in Billings the same senatorial representation as the 1,035 who voted in his own County of Nelson. The basis of representation should be men, not area. After full discussion and argument, the system of apportioning the county into senatorial districts according to popu- lation and the election of representatives from senatorial districts was adopted.
CORPORATIONS
The committee on corporations other than municipal presented a majority and minority report. The main differences related to the provisions in reference to railroads, whether they should be declared public highways, were subject to legislative regulation and control as to rates charged for the transportation of passengers or freight, and whether an appeal should be allowed to the courts from any law enacted by the Legislature prescribing rates, or from any decision of the Board of Railroad Commissioners fixing rates. The debate over these questions was an animated one, and participated in by Johnson, chairman of the committee, Miller and Bartlett of Dickey County, Lauder, Stevens, Parsons, of Morton, Moer, Camp, Flemington, Appleton, and Bell, seven lawyers and four laymen. The majority report was amended to include "sleeping car, telegraph and telephone companies as common carriers of passengers, intelligence and freight," and with this amendment was adopted by the convention. An amend- ment or substitute which differed materially only in a provision declaring that all such "common carriers should be entitled to charge and receive just and reasonable compensation for the transportation of freight and passengers within the state, and that the determination of what is a just and reasonable compen- sation should be a judicial question to be determined by the courts," was defeated in the committee of the whole, and a provision adopted empowering the Legisla- ture to establish rates by act, or delegating power to a board which rates could not be charged by a common carrier, unless they were found by the courts to be unreasonable and confiscatory. An amendment which would compel the railroads to submit differences between railroads and their employes to arbitra- tion met the same fate; while an amendment proposed by M. N. Johnson, who
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stated that he had been overlooked in the distribution of "passes" to the delegates, was referred to the committee on militia, the motion being made in a facetious way by Purcell, with no expectation that it would prevail. The convention, how- ever, saw only the humorous side and thought fights for passes could be best refereed by the militia.
LOCATION OF THE CAPITAL AND PUBLIC INSTITUTIONS
Schemes for locating the capital engrossed the attention of the convention from its beginning. Delegate Mathews of Grand Forks County early in the session introduced an article to locate the "Seat of Government" temporarily at Bismarck, the Legislature at its first session after the admission of the state to the Union to provide for the submission of the question of a place for the permanent "Seat of Government" to the qualified voters of the state at the next general election thereafter. The place receiving a majority of the votes cast upon said question to be the permanent "Seat of Government;" if no place received a majority of all the votes cast upon said question, the governor was to issue a proclamation calling an election to be held in the same manner at the next general election to chose between the two places having the highest number of votes at the first election. The place receiving the highest number of votes at this election to be the permanent "Seat of Government." Delegate Lauder, of Richland County, early in the session offered a resolution for the appointment of a select committee to which all propositions relating to, or in any manner affecting the question of the "Seat of Government" should be referred. It was defeated by a vote of the convention, and the Mathews article was referred to the standing committee of public institutions and buildings. Bailey Fuller, as mayor of Jamestown, invited the convention to hold its remaining sessions at that place, promising ample accommodations for the meetings of the convention proper, rooms for its committees and free entertainment of the delegates. The invitation was declined.
Delegate Miller, of Cass County, introduced an article locating the capital at Bismarck, and the public institutions at various cities and allotting to each a proportion of the 500,000 acres of land granted by the omnibus bill for capitol and public building purposes. The location of the capital was the silent, powerful undercurrent of the convention: There were two strong combinations of dele- gates formed, one known as the Bismarck-Fargo union, the other as the Grand Forks, the first to locate the capital permanently at Bismarck. The Fargo- Bismarck combination considered Bismarck the most available point for the "Seat of Government," and desired the agricultural college at Fargo. Behind, or supporting this combine, was the powerful influence of the Northern Pacific, and this together with the distribution of the institutions that would be estab- lished, promised the necessary votes to carry the Bismarck-Fargo scheme.
The Grand Forks combine was behind the Mathews scheme, hoping and expecting that by the process of elimination of other cities with capital aspira- tions, Grand Forks would eventually be selected as the permanent capital.
The committee on public institutions and buildings differed on the location of the capital and presented majority and minority reports thereon. On August 7th, the convention proceeded to the consideration of the reports as a convention
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without filtering them through the committee of the whole, and then ensued the most thrilling, sensational debate of the session, reinforced as it was by meetings, protests and remonstrances of mass meeting of citizens and conventions in various counties, and petitions of individuals. These petitions and protests were generally expressed in forceful language, devoid of threats or insinuations of corruption, or that other than proper motives actuated the members who favored the Bismarck-Fargo scheme. The City of Grand Forks was in a "state of mind" over the capital location. In the estimation of some of its citizens, the locating of the permanent capital was "a mendacious exhibition of public villainy and corruption." One protest from there was as gross and as indecent an attack as has ever been visited upon any body or any representative character or dig- nity whatsoever, while a petition signed by S. S. Titus, then cashier and now president of the First National Bank of that city, and 112 others, was respectful in tone and was expressed in forceful and appropriate language of dissent and protest.
David Bartlett, of Griggs County, proposed as the first section of the majority report "the following article shall be submitted to the vote of the people as a separate article, as provided by the scheme," and asked for its adoption, saying that the people have the right to locate these institutions, and it was wrong to deprive them of that right. That a refusal of this section would compel at least thirty members to refuse to sign the constitution, and to advise their constituents to reject it. That he was satisfied that the vote to pass the article as reported by the majority of the committee was obtained not only by the distribution of the institutions, but 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 of the state ticket the coming fall. The Grand Forks Herald upon the authority of Delegate Bennett published a statement charging President Fancher with suppressing the reading of telegrams of remonstrance. The statement was false and untrue. It was investigated by the convention and shown by several members that the attempt on the part of the chief clerk to read the telegrams had been frustrated by motions to adjourn. The convention by a yea and nay vote exonerated the president. Seventy-one votes aye, no nays, Bennett himself voting aye.
Delegate Pollock spoke briefly, contending that it was the right of the people through chosen representatives to determine the question, that the delegates were not the representatives of the people to decide it. It might endanger the adoption of the constitution.
Johnson asked, is it possible that gentlemen in the majority will sit here in silence and give no reason for their course of conduct? Is it so indefensible that no one will attempt to justify it? Why compel some thirty delegates to refuse signing the constitution and compel them upon their return to their homes to advocate the rejection of the constitution ?
Purcell made the elaborate argument against the article. It attempted to locate institutions for which there was no existing need, and in all probability would be no need for fifty years. We have all the institutions that we need for the present, and for some future time to come. The matter should be left in the hands of the Legislature. It is something unheard of in the history of our
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country, and while Wahpeton is represented in this article, he said that in oppos- ing it he was doing just what his constituents required of him.
Bell, of Walsh County, in a vehement speech bristling with sarcastic allu- sions to the convention's love for and devotion to the interests of the dear people, characterized the article as infamous and so weighted down the constitution that it would never be ratified by the people.
Bennett, of Grand Forks, openly charged that the capital was located at Bismarck in the interests of the two great railroads of the state.
Stevens, of Ransom County, advocated the adoption of the majority report and defended the location of the capital and institutions. It would prevent job- bery and corruption in the Legislature. Upon the conclusion of the debate, Bartlett's amendment was defeated by a vote of 31 yeas to 43 nays, and the Miller motion to adopt the report of the majority prevailed, by a vote of 44 yeas to 30 nays.
Delegate Johnson added to the interest of the occasion by proposing an amendment striking out "Bismarck in the County of Burleigh" and inserting in lieu thereof, Jamestown in the County of Stutsman," saying to the Jamestown delegation that the minority had the power and were willing to give Jamestown the capital for all time to come. Five votes was enough to do it. Blewett, of Jamestown, questioned the good faith of the minority, and the amendment was lost by a vote of 19 yeas to 55 nays. The previous question was ordered and the main question to adopt article 19 prevailed by a vote of 44 yeas and 30 nays, all the delegates-elect, except Parsons, of Rolette, who is recorded as absent and not voting. During the calling of the roll of delegates and when their names were read, Camp, Parsons, of Morton, Rolfe, Turner, Williams and President Fancher explained their votes. A motion to reconsider the vote and that the motion to reconsider be laid on the table prevailed. The convention believed the agony was ended, but it was doomed to disappointment, for on consideration of the report of the revision and adjustment committee, Bartlett, of Griggs, renewed the motion to substitute the provision for article 19 as adopted. This motion was laid on the table. He then moved that the article be submitted as a separate article to be voted on separately.
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