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NOURSE DELONG-BANKS.

[July 6.

placing a stumbling-block in our own way, iftain parties, and then pass an act prohibiting we were to say that a man should only be considered as compensated when the amount he demands is actually paid, although in many cases the party may refuse to take any price, except an exorbitant one, and so the wheels of progress must stop. I think we can reach such a case, and it is important to do so, if we can. I would like to see it remedied right here. The question was taken on the amendment offered by Mr. Nourse, and on a division, it was not agreed to,-ayes, 11; noes, 16.

No further amendment being proposed, the section was adopted.

FREEDOM OF SPEECH AND THE PRESS.

Section 9 was read, as follows:SEC. 9. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated; and the jury shall have the right to determine the law and the fact.

Mr. NOURSE. I move to amend this section, by striking out that last clause-" and the jury shall have the right to determine the law and the fact." It strikes me as being the most absurd thing in the world, that twelve men, drawn from the different walks of life, should be empowered to determine nice questions of law. You might just as well set an attorney to mending a watch. By this absurd proposition, you take away the proper occupation of a Judge, and leave him merely to exercise the functions of a chairman of a town meeting.

The question was taken, and the amendment was agreed to.

There being no further amendment, the section was adopted.

Section 10 was read, as follows:

SEC. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievances.

other parties from building a road or bridge a certain distance from them? I think they cannot, under this section, and the consequence would be, that you could have none of those improvements. A man would have no guarantee that the moment his bridge is built, or his road completed, another bridge or road will not be constructed, right by his side. The provision is entirely new to me, and I confess that I do not understand its object. I move to strike out the section.

Mr. NOURSE. I understand that the object of the section is, to prevent such disgraceful proceedings as occurred in the last Legislature. (I hope, if there are any members of that body here, they will not take offence.) We then proceed to provide, by general laws, for the formation of corporations, and to establish the rights of corporations, instead of allowing the Legislature to grant special favors and valuable privileges to Tom, Dick, and Harry. I must say that I approve of the section. It may cut down the rights and privileges of the Legislature; I know it is open to that charge; but it is simply, as it seems to me, a prohibition of special legislation that you shall not grant to John Smith and his associates, a charter to build a road here or there, but you may pass a general act, providing that persons who wish, may incorporate so and so, and thereupon, if you choose, may have the right of way across private property-may have the power to have it condemned to their own use by such course as may be prescribed by the Legislature; leaving the whole thing open to public competition, and not tied up to any right given specially, and irrevocably, to any favored corporation, like, for example, the Camden and Amboy Railroad in New Jersey. That is just such a monopoly as we desire to guard against here. I do not know as the section is drawn in the best manner, but I should be sorry to see our Constitution go out from our hands without some such clause contained in it.

Mr. BANKS. I should perfectly agree with the gentleman from Washoe, but for another, No amendment being offered, the section was and more explicit section in this instrument, adopted.

EQUAL PRIVILEGES AND IMMUNITIES. Section 11 was read, as follows:

SEC. 11. The Legislature shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all persons.

Mr. DELONG. I ask some gentleman who understands this section, to explain it. It is entirely new to me, although I have compared this Constitution with the Constitution of California. Let us consider it a moment

which is Section 20, of Article IV, in which are enumerated certain things, in relation to which the Legislature shall not pass local or special laws. It seems to be the intention to provide against this class of dangerous legislation in that section, and it occurs to me that if we adopt the section under consideration, we go too far, leaving it, perhaps, dangerously vague and indefinite. I think we had better leave this matter for Article IV, and in that, provide against just such things as we desire to exclude from special legislation. I hope the section will be stricken out.

The Legislature shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all persons. I want to know if, under that provision, the Legislature can pass a toll-road franchise, or authorize the construction of a bridge, by cer-ner relating to corporate powers, except for municipal The Legislature shall pass no special act in any man

Mr. DELONG. Section 1, of Article VIII, provides against the same class of laws which the gentleman speaks of. It says:

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NOURSE-EARL-DELONG-BALL-JOHNSON.

purposes, but corporations may be formed under general laws, and all such laws may, from time to time, be altered or repealed.

Now I submit that there is not a man in this room that can tell what this section, which we are considering, means, to save him. It is a clause which cannot be found, word nor line, in the Constitution of California, and, I venture to say, in no other Constitution in the world. I do not know what it means. It says:

The Legislature shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all persons.

I never knew or heard that they had passed any such acts, upon any such terms, except that when the franchise expired it should revert to the State. Those are the only terms I ever knew of. But this would seem to imply that franchises were to be bought, as they were in the days of Henry IV, when a valuable part of the State's rights was the sale of franchises.

Mr. NOURSE. I am willing to strike it out;

I had not looked over those other clauses.

[July 6.

to strike it out here, with a view to inserting it in its proper place.

Mr. DELONG. We certainly do not want it in the Declaration of Rights.

Mr. BALL. If I recollect aright, this section was introduced in the old Convention at the time the Bill of Rights was reported, not knowing then what provision would be made in the subsequent articles of the Coustitution. It was an inadvertence, I think, on the part of the Convention not to strike it out here, since it is provided for in other sections.

Mr. EARL. Now it strikes me that this provision is certainly in its proper place, among the declarations of rights. It is a right which I have, and you have, and every individual has, to make roads to travel on, or other improvements of a public nature. I think the provision is in the proper place, and if it is obnoxious in its form, let gentlemen amend it. Now is the proper time.

Mr. JOHNSON. I well remember the circumstances under which this section was intro

duced. It was offered by a very worthy genMr. EARL. I think the section is designed tleman, now no more, who found it, I believe, to leave all these privileges and immunities incorporated in the Constitution of Kansas, equally open. For instance, if I desired to and thought there was some merit in it. I rebuild a toll-road alongside of another, I have fer to Judge Ralston. He was one of a comthat privilege; or to place a ferry within a mittee of which I had the honor to be Chairgiven distance of another ferry; or a store, if man, and the provision was the subject of conyou please, alongside of another man's store. siderable discussion in committee, and finally It is certainly a correct idea. We have seen it was acceded to by the other members, in in California the detriment of this special leg- introduced, and it was deemed to have sufficient order to make the report unanimous. It was islation. We there find that a ferry cannot be established within one mile of another ferry, merit to receive the indorsement of the Convennor a road within a certain distance of another tion at a time anterior to the action of the road. Those things should be left equally committee to which had been intrusted the open to competition, as we leave the competition of farm against farm, or merchant against merchant. We want roads, and bridges, and ferries, and we need not fear but that people will build them, if they are allowed to do so and there is a public necessity for them. No man will invest his capital unless he thinks it is going to be a good investment, and if there is already one good road made, he will not be so foolish as to build another alongside of it, and, if he does, the public will have the advantage of cheap tolls. I should regret very much to have the section stricken out. It seems to me clear in its meaning, and I think I can very readily understand it. It prohibits the Legislature from granting to one citizen or class of citizens privileges or immunities which are not equally open to all other citizens. That is, if one man is allowed to build a road or a bridge, another must be allowed to do the same. I, for one want to see that section retained.

Mr. NOURSE. I only want to say that while my ideas in regard to such a provision remain unchanged, still, in my opinion, it is better to place it in that part of the Constitution which limits the powers of the Legislature; though I do not think there is anything now in that article which covers the ground. I shall vote

subject matter of incorporations, and long before any action of the Convention on that subject matter. It will be found, I think, by referring to the article in relation to corporations, that there is matter sufficiently prohibitory in that article to guard against the evils which the gentleman has foreshadowed, even if we strike out the section now under consideration. The prohibitory matter which refer to will be found in Section 1 of that Article, which I believe has already been read. It says:-

I

SEC. 1. The Legislature shall pass no special act in any manner relating to corporate powers, except for municipal purposes; but corporations may be formed under general laws; and all such laws may, from time to time, be altered or repealed.

This section, coupled with the other provisions in Article IV, the guards and restrictions which are thrown around the Legislative Department, cover, I think, the entire ground. It may be said, perhaps, that I am anticipating the action of the Convention, in foreshadowing what may be their wish as to continuing those restrictions and guards which the old Convention deemed it necessary to incorporate in the Constitution; but, be that as it may, we have it in our power to retain those beneficial provisions relating to the Legislative Department, as well as that which I have read, contained in

the Article on Corporations, and these, I am sure, will prevent all the evils of which gentlemen seem to be so apprehensive.

Now, sir, I defy any two gentlemen upon the floor of this Convention to give constructions to this section under consideration which shall completely agree. I do not think any two gentlemen here can possibly agree in opinion as to what it means. I want nothing of that kind in our Constitution. I want nothing that is not susceptible of plain construction; nothing that is not to be comprehended by the most ordinary mind; and I am sure that the retention of this section will give rise to controversy and discussion to an extent which we cannot now anticipate, except that we can clearly foresee that it will be a troublesome question for the courts. All the restrictions necessary to guard against the evils of special legislation are found subsequently in this instrument, and if the Convention will do what accords with my judgment, they will retain those beneficial provisions, and thus avoid the evils apprehended from special legislation; but we might work a great injury and detriment to works of internal improvement, to railroad enterprises, if you please, if we should incorporate this section in our Constitution, coupled with that which is contained in the article in relation to corporations. The section in that article which I have read goes as far, I conceive, as any people in this progressive age ought to be willing to go in restricting the powers and operations of corporations. No power is given, but on the contrary, it is inhibited to the Legislature to grant special corporate powers, except for municipal purposes; but by general enactments, provisions for the formation of corporations may be placed upon the statute book, granting rights and privileges to one as well as to another. Under such enactments, all persons will have the privilege of availing themselves alike of those provisions of law. That, I conceive, is quite far enough for us to go. Certainly it is too far to go, to incorporate in this, our fundamental law, language in the construction of which no two gentlemen in the Convention can be found to agree. This uncertainty of construction of itself would be a sufficient reason to induce me to vote in favor of striking out the section.

Mr. BROSNAN. I regret very much that the state of my health will prevent me from saying anything in extenso upon this subject. I do not agree with some of the gentlemen who have spoken, certainly not with my friend who has just taken his seat, in regard to this section. In the first place, this subject is not provided for elsewhere as it is in the section before us. The section in relation to corporate powers which has been read, applies only to corporations, and this was inserted, I take it, ex industria, to prevent special legislation, or to prevent the passage of acts giving to individuals, powers and privileges individually, which they might exercise for a time themselves and afterwards transfer to associates, thus evading, E

[July 6.

if you please, that which is secured by the provisions of the article touching municipal and other corporations, as contained in Section 1, of that Article; and also the provisions in Section 20 of the Article on the legislative department. I think it would be well enough to retain those articles, but they do not cover the whole ground. In these, we should observe, are express cases, and the rule expressio unius est exclusio alterius, would apply. Insomuch as a recital of acts prohibited is made, of course it is to be understood that acts not prohibited from special legislation in that recital are permitted. I think the intention is to guard against the formation of large monopolies like that which has grown up in California in connection with navigation, and it would make no difference whether the power were given to one man, or granted to a large corporation. In my opinion it does not harm the Constitution to have the section there, although I think the language does not, with sufficient clearness, express what is meant. If you strike out the words "class of citizens," I think it would be better. It would then provide that no one citizen should have privileges or immunities to which no other citizen is entitled. The provision, as I before remarked, was put there ex industria, to guard against special legislation.

Mr. EARL. I stand where I did before on this question, because I have seen the fruits of granting privileges to these great monopolies. It is true, there have been some isolated instances, where monopolies have been a benefit. Where a country is new, and the development of enterprises of a public nature is much needed, it may be unwise to have a clause of this kind enforced in all cases; but, certainly, I think the provision, as a general thing, is a wise one, and if gentlemen do not understand this language, they can amend it. Gentlemen say that the prohibition comes in hereafter, where the matter of special legislation is regulated, and I think there can be no objection to that, but this is among the rights which we wish to assert; and I, for one, want it to remain there, and hope it will not be stricken out.

The question was taken on the motion to strike out the section, and on a division, it was agreed to-ayes, 18; noes, not counted.

Mr. BROSNAN. I give notice, that when we get into Convention, I shall move to reinstate this section.

Section 12 was read, as follows:

civil power. No standing army shall be maintained by this State in time of peace, and in time of war no appropriation for a standing army shall be for a longer time than two years.

SEC. 12. The military shall be subordinate to the

No amendment being offered, the section was adopted.

Section 13 was read, as follows:

SEC. 13. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war except in the manner to be prescribed by law.

JOHNSON-NOURSE-EARL-BROSNAN.

No amendment being offered, the section was voluntary servitude, otherwise than for the punishment adopted. of crimes whereof the party shall have been duly convicted.

No amendment being offered, the section was although it is known by the name of an ordiadopted.

Mr. EARL. I may be wrong, it is true, but I understand that ordinance to be one thing, SEC. 18. Neither slavery nor involuntary servitude, and our Constitution quite another. The Enunless for the punishment of crimes, shall ever be tol-abling Act provides how we are to get up a

Mr. NOURSE. Does the gentleman refer to the ordinance proposed by Congress? I like Mr. NOURSE. It is clear, to my mind, that the wording of that better than this section. the Enabling Act is not a part of the Constituand I move that the wording of that clause be tion itself. It is simply to enable us to form substituted for this section-that is, the sub-a Constitution. It is a statement by the United stance of it. I like the language better than States of the terms upon which we may go to this, a good deal. Then it will read :work to form a Constitution. I should be exThere shall be in this State, neither slavery nor in-ceedingly sorry, for one, to have a Constitution

DELONG-WARWICK-FITCH-BROSNAN-STURTEVANT.

go forth from us which should be silent on this might commit treason and escape punishment subject. I wish it to say something about it, at least.