IX

MAKING THE CONSTITUTION

            The Nevada enabling act was cast in the mould of earlier enabling acts, containing only one or two exceptional features. The boundaries described for the new state were the thirty-eighth (115th) degree of longitude on the east; the 37th parallel on the south until it intersected with the diagonal eastern boundary of California, and thence along that California boundary until it intersected with the 43rd (120th) degree of longitude, and from that point north to the 42nd parallel. This 120th degree of longitude was to constitute the boundary between Nevada and California. The northern line was of course the 42nd parallel.

            The constitution of the proposed state was to be republican in form, "not repugnant to the Constitution of the United States and the principles of the Declaration of Independence." There was the further provision

            That said convention shall provide, by an ordinance irrevocable, without the consent of the United States and the people of said state : First. That there shall be neither slavery nor involuntary servitude in the said state (et cetera).

            This proviso, containing the essence of the thirteenth amendment, was inserted as an assurance that the territory, before its admission to the Union, would ratify the thirteenth amendment. Such ratification, according to the views of Dana above quoted, was the chief object in national politics to be served by the admission of Nevada.

            The enabling act as originally passed required that the constitution should be submitted to the people of the state on the second Tuesday of October, 1864. The Colorado enabling act contained a similar provision. By an amendment of May 21, 1864, Congress changed the date of the election to the first Wednesday of September. The only purpose in this change that can be conceived was to permit the admission of these western territories in time so that their voters might participate in the presidential election of November, 1864. Assuming that all three territories would qualify for admission, there would thus have been nine electoral votes assured for the republican ticket. In the spring of 1864 there was considerable doubt as to whether Lincoln could be reelected.

            On May 2, 1864, Governor Nye issued a proclamation setting the first Monday of June as the date of an election to choose the thirty-nine delegates to the Constitutional Convention, the apportionment of delegates to the different counties being : Storey, 10 ; Lyon, 4 ; Churchill, 1; Ormsby, 5 ; Washoe and Roop, 5 ; Douglas, 2 ; Esmeralda, 4 ; Humboldt, 3 ; Lander, 3 ; and Nye, 2.

Membership of Convention.

            Assuming that the thirty-nine delegates elected were fairly typical of the Nevada citizenship of that time, it is interesting to

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            Thirty-three of the thirty-five indicated that they had come to Nevada from California, the only other states of origin represented in the list being Wisconsin and Minnesota. In the list were eleven who had come to the Pacific Coast in 1849 and six in 1850. The oldest Nevada "pioneer" represented among them was the Washoe County farmer, James H. Sturtevant, who said he had arrived in Nevada in 1857. One other gave the year 1858, six arrived in 1859, eight in 1860, six in 1861, while the others were comparatively newcomers. As to "present politics" thirty-four accepted the label of the republican party that year, "Union," and only one, a lawyer from Nye County, declared himself a Democrat. As to previous political affiliation, fourteen voted for Lincoln in 1860, thirteen for Douglas, six for Bell, and two for Breckenridge. The average age of the thirty-five delegates was approximately thirty-eight years.

Basis of Constitution.

            The convention spent twenty-one days in its labors, being in session from July 4 to July 27, 1864. The convention was by no means unanimous as to the wisdom of the undertaking for which they had been elected. Some of the delegates were inclined to follow the example of the Nebraska delegates, and after assembling to adjourn immediately. According to a resolution introduced in the second day the defeat of the previous constitution was a "convincing proof of the sentiments of this territory as to the propriety of at present assuming the responsibilities of a state government." In Colorado the constitution was rejected because of the fear that the people of that territory could not sustain the heavy expense of a state government. Similar arguments were brought to bear against Nevada statehood. Also it was urged that the "red hot heat of a presidential campaign" was no fit time for making a constitution, since under the enthusiasm of the moment the intrinsic merits of the proposition might be lost sight of and the constitution would be carried through, "if for no other reason than because it would inflict an additional pang upon the rebellion." The previous constitution had been voted on while Nevada was still enjoying "flush times," but since then the depreciation of property, the depreciation of the value of mining stock, and the cessation of investments were other reasons to make constitution

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making inadvisable. One of the chief reasons for the rejection of the previous constitution had been the clause "taxing mines." But if in the new constitution mining property was exempted the question was asked whether such constitution "would be satisfactory to the office holders under that constitution, for I do not see, for my part, where their pay would come from," since there was scarcely any other class of property which could be made to yield a revenue to support a state government.

In the end the delegates agreed that they should perform the duty for which they were called together, and let the people at the polls speak the final word on statehood.

Ordinance.

            Having adopted the previous constitution as a basis, the method of procedure followed by the convention was to read the constitution article by article and section by section, considering it in the committee of the whole, occasionally referring certain subjects to smaller committees, and in this way gradually working through the entire fundamental law according to parliamentary rules regarding first and second reading, and third reading and passage. The constitution opens with the "ordinance" taken from the enabling act concerning slavery and religious toleration and disclaiming the right of the state to any control or taxation of United States property or public lands. This was adopted without change. The fact that the constitution was adopted in the midst of the Civil war affords an interesting index of wartime ideas and to some extent of the conflicting passions and opinions of that era, though the complexion of the convention's membership was overwhelmingly Union.

State Name.

            Some of the delegates were fearful that any change from the letter of the enabling act might be an obstacle to admission. This is illustrated in the discussion over the name of the state. The enabling act had referred to the "people of Nevada." One delegate said the "name of Nevada is certainly a misnomer, for if it conveys any meaning at all, it is a great falsehood. . . . The state of Washoe would sound well, and everybody knows us by the name of Washoe, while, if we are christened Nevada, we are liable to be confounded with the city of Nevada, Nevada County and Nevada Mountains. Quite recently we sent some very handsome silver bricks to the East in aid of the sanitary fund, and I notice that the county of Nevada in California was given the credit for

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Declaration of Rights.

            The first article comprises the "declaration of rights," found in all state constitutions, and largely a development of the first ten amendments to the Federal constitution, prescribing the safeguards to liberty of the individual citizen. Some of these rights go back to the foundation of English liberty, and while each of them represented a distinct step of progress at some period of history, the reading of them now sounds like a string of commonplace axioms. One or two features of the article in the Nevada constitution reflect the current opinion of the time. This is particularly true of section 2 which declares that the "paramount allegiance of every citizen is due to the Federal government, in the exercise of all its constitutional powers," and recognizing that the Federal government may employ armed force to compel obedience to its authority and prevent the secession of any state from the Union. This subject of "paramount allegiance" provoked considerable discussion. It was a flat denial of the state's rights principle, but one or two of the delegates thought it was too sweeping. However, the proposal to strike it out or modify it seemed to be an action of "pandering" to the democratic party and would "strengthen the hands of those who are in arms against the general government," and would be used to the advantage of those who were "asking the Federal government to lay down its arms and submit to a dishonorable peace." It was also claimed that the paramount allegiance clause had been an important element in defeating the previous constitution.

            Section 3 of this article permits a verdict in civil cases to be reached by three-fourths of the jurors. Some of the delegates regarded this as a dangerous experiment and innovation. Instances were cited of trials involving large amounts of money and valuable property in which one or more jurors had been bribed to hold out against a unanimous verdict. One delegate declared that he could count scores of men who had been ruined in that very manner, "simply because twelve men were required to find a verdict, and perhaps one single man who stood out would prevent it. The result has been that where poor men have been engaged in litigation with rich companies, they have been utterly unable to come into court to try their causes over again."

            Article 1 in the rejected constitution contained twenty-one sections, while the new constitution contained only twenty. The section omitted was :

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

            The purpose of this was to combat the evil of "special legislation." The session laws of older states up to about 1850 were clogged with innumerable special acts, covering almost every im-

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aginable subject, from changing a name to grants of privileges to operate a ferry or a toll road. The evil had grown to such proportions that after the middle of the century constitutions generally required the enactment of general laws wherever applicable. One of the delegates hoped the section would be retained "to prevent such disgraceful proceedings as occurred in the last Legislature," referring to the numerous grants of toll road charters which Mark Twain had ridiculed. However, it was pointed out that in the article describing the powers of the Legislature and in the article on corporations all the restrictions necessary to guard against the evils of special legislation had been incorporated in more specific terms. For this reason the section was stricken out.

            The previous constitution had contented itself with a brief definition of an act of treason, which the delegates in 1864 decided to amplify in accordance with the Federal constitution so as to require the testimony of at least two witnesses to the same overt act or on confession in open court, as requisite to conviction. Naturally this section caused considerable discussion at the time, in the course of which the act of "hurrahing for Jeff Davis" was spoken of as an act of treason within the meaning of this section.

Suffrage and Loyalty Tests.

            As has been noted, the rigid restrictions on the right of suffrage in the constitution of 1863 had been assigned as one of the reasons for the defeat of that instrument. Nevertheless, the denial of suffrage to participants in the war of the rebellion was retained in the new constitution, but the prohibition against "disloyal persons" was eliminated. Under the first constitution a residence of six months in the state was required as a qualification for voting. In the new constitution this qualification was changed to apply to one "who shall have actually and not constructively resided in the state six months." It was explained that in California persons had been admitted to the right to vote "who started to come to that state, or to go somewhere six months previous to the election, notwithstanding that they may not have been in the state more than three days." Thus immigrants starting from the Missouri River for Nevada in the spring, and not reaching their destination until a few days before an election, might have claimed "constructive residence" in the state from the time the idea originated in their mind of coming west.

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            Every western state and territory offered a refuge for great numbers of persons and families who sought escape from the conditions of the war-torn East. Some were "slackers," to use a modern term, some were deserters from the armies from both the North and South, and there was also a large number of men who came from the border states where they had found it impossible to live in security with life and property exposed one day to the raids of the bushwhackers and the other to the exactions of the Union regulators.

            While the phrase "disloyal person" was stricken out by the close vote of fifteen to fourteen, an attempt was made to insert a provision permitting the Legislature to prescribe an "oath or affirmation of loyalty" as a test for voting, and in the final draft of the constitution such a provision was inserted in section 6. This proposal brought into the debate the subject of the "oath of office" (article 15, section 2). In both constitutions the oath of office requires an official to swear that he has not been a participant in a duel. Nevada was still close enough to the frontier conditions of earlier America so that such an oath seemed pertinent, though one of the delegates was of the opinion that such an oath was "all fudge." Absentee voting was permitted probably for the first time in the election of November, 1864, when soldiers were permitted to register their ballots to be counted in the state from which they had enlisted. This matter of the soldier's vote was discussed in the Nevada convention and while a section of the former constitution was stricken out declaring that no soldier could acquire residence for voting purposes in the state in consequence of being stationed on duty here, any qualified voter did not lose his vote because of enforced absence while in the military or naval service of the United States. The subject of "purity of election" had not yet risen to a major national issue, but the Nevada constitution required that provision should be made for the registration of voters, and it also permitted the Legislature to make the payment of the annual poll tax a condition to the right of voting. It was

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Legislature.

            Article 4 of the constitution is devoted to the legislative department, designated as "the Legislature of the State of Nevada," divided into a Senate and Assembly. The legislative sessions were to be biennial, each regular session to commence on the first Monday of January following the general election. Most of the sections in this article were in harmony with those found in other state constitutions, and in the convention were read and accepted without special debate. Some delegates questioned the wisdom of the requirements that a majority of "all the members elected to each House shall be necessary to pass every bill or joint resolution," but the motion to change this to "members present" was defeated.

            When the convention came to section 20 of this article, prohibiting the passage of local or special laws, an effort was made to extend the list of enumerated subjects to take in the granting of franchises for the construction, of toll roads, toll bridges and street railroads. This afforded the opportunity for the defenders and opponents of special franchise grants to state their side of the question. On the one side it was contended that the men who had invested their capital in the construction of toll roads had conferred inestimable benefits upon the territory in the early years of its development, and while there had been allegations of fraud and corruption in securing these privileges from the Legislature, it was argued that similar fraud might be employed under a general law in dealing with the boards of county commissioners. On the other hand, special franchise legislation was regarded as a curse of the territory. In spite of the liberality of the first two territorial legislatures, in giving away everything that could be given, it was asserted that nearly one-third of all the acts passed by the Third Assembly consisted in "the giving away of franchises and special privileges to individuals who were lobbyists about the Legislature. . . . You will find some thirty-four or thirty-five special acts, in that neighborhood at least, providing for the building of toll roads and toll bridges, for floating logs down the rivers, et cetera. They have left nobody else a right, even if they own ever so much upland, to float logs down the adjacent streams ; but, by these special franchises, they have locked up the rivers as effectually as if they were chained by ice." The very liberality of the Legislature in granting franchises by the wholesale, in the

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opinion of one delegate, had worked to the disadvantage of the state since capital would hesitate to proceed with the development of a franchise for the construction of a railroad when the succeeding Legislature might grant a similar right and thus destroy the special monopolistic privilege which constituted the chief value of such a grant. In the end the convention decided not to accept the amendment prohibiting this form of special legislation.

            By the Nevada constitution the wife is assured separate control of all property owned by her before marriage or acquired afterward. In the former constitution was a section reading : "No law shall be passed authorizing married women to carry on business as sole traders." This excited much argument pro and con. The evils of the system of "sole traders" in California were cited, illustrating the abuses under a law by which the legal control of a business or property might vest in the wife's name, while the husband could contract debts and hire labor and evade legal responsibility for paying them. But other delegates showed equal hardships that would follow in case of a wife with a dissolute husband who could enjoy and waste the proceeds of a business derived entirely from the enterprise and energy of the wife. In the new constitution this prohibition against married women acting as sole traders was eliminated. The homestead exemption section also provoked a great deal of discussion and debate. In the previous constitution a homestead was described as not exceeding 160 acres outside a town or not more than an acre within a town or city, this land together with improvements to the aggregate value of $5,000 being exempted from forced sale, and could not be alienated without the joint consent of husband and wife. Under such a provision, as one delegate said, a man might own property to the value of $5,000 and defy a creditor to whom he owed a hundred dollars. In the end the convention decided to make the language of the section general and pass on to the Legislature the matter of defining the aggregate value of such a homestead and its physical size and limits.

            One other matter in connection with the legislative article to which reference may be made is that involving the veto power. The territorial legislature had complained of the governor's veto prerogative, but the veto power in the state constitution was strengthened rather than decreased because of the provision requiring, for passage of a measure over the veto, not merely a vote of two-thirds of the members of each House present, but of "the members elected to each House." One delegate believed that it would be "utterly impossible, under such a provision, to pass any bill over the governor's veto." But a proposal to permit two-thirds of members present to over-ride the veto was defeated.

Executive Department.

            The officials to be elected under the constitution comprising the executive department were governor, lieutenant governor, secretary of state, state treasurer, comptroller, surveyor general, attorney general and superintendent of public instruction. In case of death or disqualification of both governor and lieutenant governor the duties of governor were to be performed by the president pro tempore of the Senate. In the first constitution these officials were to be elected for a term of two years, but in the constitution of 1864 the term was lengthened to four years. The gover-

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Judiciary.

            Many pages of the proceedings are taken up with the discussions over the judicial department. That part of the constitution was referred to a judiciary committee, but on July 12 the convention passed the following resolutions of instruction to the committee :

            Resolved, that the committee on the judiciary are instructed to consider the expediency of embodying such proceedings in the judicial features of the constitution as will provide for the election of a district judge in each organized county of the state (except Storey County, wherein there shall be two district judges), with such additional jurisdiction as is now conferred upon county probate courts, so as to dispense with such county or probate court.

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since it would "obviate the necessity of an appeal from the county judge, or, if you please, from justices of the peace to the county judge, and from the county judge to the district judge, and then again from the district judge to the Supreme Court."

            Most of the discussion centered about Storey County, where most of the litigation was concentrated. One proposal was that Storey County should have in addition to a district court also a county court. Later it was proposed to give this county two district judges, and in the end three such judges, with concurrent jurisdiction. The proposal to give each county a district court was subsequently modified by dividing the state into nine judicial districts, combining the area of Roop County with Washoe for judicial purposes, while Nye and Churchill were to make up the fifth district, these district boundaries being subject to subsequent alterations by the Legislature. One point that caused considerable debate was whether the salaries of the district judges should be paid from the state treasury or by the individual counties. As the article was finally agreed upon there was a proviso that the district judges should be paid out of the county treasuries of the counties composing their respective districts.

Impeachment and Removal.

            The delegates examined the matter very exhaustively, searching all the state constitutions, and quotations proved that nearly all the constitutional provisions adopted in recent years gave to the legislatures the power of impeachment or removal from

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office of all elective or appointive officials in the state, and in some states by methods involving less formality than was proposed in Nevada. After the subject had been thoroughly threshed over and the original article amended, the convention was by no means unanimous, the article being approved by a vote of seventeen to nine. As thus adopted all state officials except justices of the peace were subject to impeachment; judges could be removed from office on the vote of two-thirds of the members elected to each branch of the Legislature; and the Legislature was permitted to enact a general statute providing for the removal from office of any other civil officer besides those specified in the previous sections.

Banks and Money.

            When the convention came to the consideration of the subject of municipal and other corporations, in article 8, it approached some of the most controversial topics. Section 2 prescribed that the property of corporations shall be subject to taxation the same as property of individuals. As soon as the section was read some members had to be assured that it did not relate to the taxation of mines, which was perhaps the chief burning issue before the convention. With this assurance the section was accepted, and the next matter to arouse debate was the prohibition of the circulation of any bank notes or paper except "the Federal currency." Money in California and Nevada meant "hard money," gold or silver, and as Governor Nye had written to President Lincoln there was a stubborn antipathy toward the government greenbacks which had been made "legal tender" by the act of Congress in 1862. Then, before the Constitutional Convention had assembled, Congress had passed the National Banking Act, under which it appeared that the Pacific Coast as well as the rest of the country would have to accept paper money backed by the Federal bonds. One or two of the delegates had had experience with the "wild cat" currency of the eastern states. As one of them expressed it : "Most of the members of the convention have lived in California, where they have only a metallic currency, and consequently they have had little or no experience in this infernal paper trash which has cursed almost every one of the eastern states." But it was realized that however strongly the people of the West might be prejudiced against the various forms of paper money they were bound to accept the greenbacks and national bank notes.

            As the section was finally adopted Nevada prohibited all "banks of issue" except national banks. An effort was made to substitute for this section one permitting the organization and establishment of banking associations similar to those in Louisiana and New York, providing special guarantees for the bank notes of these associations and requiring full or double liability of stockholders for their liquidation. It was argued that under the national banking act the bank notes were secured by the national debt. It was assumed that after peace was restored this national debt would be paid off, and thus the national bank notes would be withdrawn from circulation. In such a case, with the prohibition in the Nevada constitution, this state would not be able to permit the establishment of banks of issue. At the same time, the sense of the convention was that no "wild cat" system of banking should be allowed to compete with the national banks. Congress had not

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yet adopted the device of taxing the notes of state banks, a device which shortly after the close of the Civil war taxed the paper currency of the state banks out of existence. The discussion in the convention is an interesting one to a student of financial matters. Nevada's prohibition against banks of issue was copied from the California constitution. It was declared that California was then in the grasp of a money trust, due to the exclusive use of metallic currency. At this point and elsewhere in the Proceedings are found vehement protests against the "3 per cent" system, referring to the usurious rate of approximately 3 per cent a month exacted for all capital loans in the West at that time. This difficulty of securing money except at exorbitant rates, and the prejudice against the deflated greenbacks and national bank notes, it was claimed, weighed as an intolerable load on all private and public enterprise. While the convention was in session several strong pleas were made for an easier basis of credit, and a more adequate supply of paper money redeemable in gold or silver. The proponents of a state banking system were persuaded to withdraw their motion on the reasoning that if the national banking system was repealed, the constitution might be amended to permit banks of issue.

Pacific Railroad Grant.

            But the feature of this article which contained the most "dynamite" was what was referred to by the delegates as the "famous section 9." In the previous constitution this section was a prohibition against the state donating or loaning money or a credit to any corporation or association except corporations formed for educational or charitable purposes, with the following proviso and exception:

            That the state may issue bonds to an amount not exceeding three million dollars, on such terms as the Legislature may prescribe, to the company that shall first complete a railroad to the state line, connecting this state with the navigable waters of California, or with the navigable waters of the Mississippi River ; but no law to issue bonds shall be effective unless sanctioned by a vote of the people.

            This was the Pacific Railroad grant. The discussion over this proviso takes up more than a tenth of all the published pages of the proceedings.

            The committee of the whole began the consideration of this section on the fifth day. Immediately there was a proposal that the donation should be increased to five million dollars, another amendment was offered to strike out the proviso altogether, and still another that the state grant should be expended wholly on a railroad within the boundaries of the state. As the debate went on the argument revolved around these and several other points. One group was opposed to any state grant whatever ; another objected to any preference to the Pacific Railroad, demanding that the grant should be bestowed upon the first railroad reaching the state line from either California or the East ; another group wanted the money used, not for helping build a railroad in California, but entirely within Nevada. Twenty-six of the delegates took the opportunity to express their opinions on the subject, some of them again and again, and every phase of the matter was thoroughly

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            Another troublesome question raised was whether Nevada's contribution of three million dollars would hasten the building of the road. Because of war necessities the government could not turn its material resources to the construction of the road. Then, too, the fear was expressed that if Nevada voted three million dollars in bonds the railroad promoters would do here, as frequently had been done in the East, make a show of activity of construction until they got hold of the bonds, and then call off their construction forces.

            On June 28, 1861, the Central Pacific Railroad Company had been organized. Its president was California's "war governor," Leland Stanford. He and his associates, Huntington, Crocker and Hopkins, constituted the "Big Four" in the financing and building of the road. Their efforts supplemented and carried to success the plans and surveys of their chief engineer, T. D. Judah, who until his untimely death in 1863, labored incessantly and with prodigious enthusiasm and courage to convince the public that it was not a "crazy notion" to build a railroad over the Sierra Nevadas. Judah's work alone was a practical contribution to the enterprise until Congress passed the Pacific Railroad Act of July 1, 1862. Shortly afterward President Lincoln designated the eastern terminus of the Union Pacific at Council Bluffs, Iowa, and the western

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terminus of the Central Pacific at Sacramento, the two companies to build westward and eastward until their lines met.

            While the Nevada Constitutional Convention was debating this subject, the Central Pacific had constructed only about thirty miles of railroad from Sacramento east toward the mountains. However, the point at which the road would cross the Sierras had been designated and it was known that the proposed railway would come into Nevada along the Truckee and follow the general course of the Humboldt River. There was a rival road in California, some construction work having been done on a line from Folsom. This road it was proposed should be extended to Placerville and thence come into Nevada along the general course taken by the familiar immigrant trail. While this road did not have the strong financial backing and business genius behind it, nor the favor of the Government, as was the case of the Central Pacific, its proposed route did not avoid the chief commercial and mining centers of Nevada as did the Central Pacific. Consequently this proposition had enough support to weaken the enthusiasm of some of the delegates for the Pacific Railroad. Early in the debate there was revealed a sectional attitude. It was pointed out that Virginia City, the Nevada metropolis, was twenty-five or thirty miles from the proposed line of the Central Pacific. Other mining communities south of Virginia and even Austin in Lander County would get the full benefit of the transcontinental line only after the construction of some costly railroads from south to north to tap the main line. This local or sectional feeling was drawn upon to support the several propositions made to limit the railroad donation, if it was to be made at all, entirely to railroad construction within the state.

Address of Leland Stanford.

            On the fourth day after the discussion of this subject had begun, President Stanford, himself, appeared at Carson City, and by special invitation of the convention was asked to speak on the subject of the Pacific Railroad. In his speech Governor Stanford gave a concise summary of the status of the railroad up to that time.

            Congress, by the act of 1862, granted liberal donations in aid of the construction of the Pacific Railroad, limiting that aid only to the extent of one hundred millions of dollars. They also gave by that act 6,400 acres of land to the mile for the construction of the road. Since that time, however, another act (that of July 2, 1864) has been passed by Congress, amending the first act very materially, making it much more practicable in its character. The first act gave $16,000 per mile for building the road on the plains, and $48,000 per mile over the mountains, and also $32,000 per mile for passing through the territories. That has been changed by giving double the amount of land per mile, which was first allowed the several companies. And further, by the former act, the assistance of the Government was made to become a first lien on the road; but by the act of last session the Government gives the same assistance in bonds per mile, but allows the railroad company to make a first mortgage upon the road to an equal amount ; so that now when the Ceneral Pacific Railroad Company receives $48,000 per mile in Gov-

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ernment bonds, they are allowed to make a mortgage, which will be a first mortgage on the road, to the same amount, and they receive the Government bonds in addition. And, as the base of the mountains has been determined by the president to be only about eight miles from Sacramento, it amounts practically to assuring $96,000 per mile towards the construction of the road, one-half in the bonds of the company, and the other half in bonds of the United States.

            But even with this generous assistance, as Stanford explained, the construction through the mountains could not be financed. For this capital it was necessary to look abroad for subscriptions to the company's stock. "In this country, where money is worth 2 per cent per month, or about that on the average, it can hardly be expected that there will be any large amount of stock subscriptions, especially where an immediate return in money is not and cannot be anticipated." Governor Stanford made it clear that the proposed contribution of Nevada would not only help immediately in financing the mountain construction, but would also tend to increase the confidence of foreign investors in the company's stock. Up to that time the company had constructed thirty-one miles of railroad eastward from Sacramento, all the cost of which had been paid for by the individual stockholders and by subscriptions from Sacramento and other California localities, Governor Stanford declared that if any railroad was built over the mountains it would be the one receiving national aid. Thus he tended to discredit the other railroad enterprise building toward Placerville, and he expressed the opinion that the Nevada proposal to give its contribution to the road which should first reach the line of the state was one that instead of aiding the road was calculated to delay its construction, since it raised a doubt as to whether the Pacific Road had a practicable route. "You also say to people abroad, when we go abroad to negotiate our security, that there is a doubt whether we have the best route or not; and more than that, there may possibly be a parallel and rival road constructed."

            At the conclusion of his formal speech Governor Stanford was exposed to a running fire of questions. One was a question which had already been raised in the course of debate as to what value the proposed Nevada bonds, in the depreciated market of the time, would have when offered to the public. Some of the delegates contended that such bonds would yield scarcely thirty cents on the dollar. The governor emphasized repeatedly the need for direct assistance while the road was being built through the mountains, and this brought out a question, which he at first parried, as to what definite time the Nevada contribution would hasten the completion of the road to the state line. Stanford believed that the road would be completed inside of three years, and while Nevada's donation would actually construct a certain proportion of the road and would also tend to increase the confidence of the investing public in the stock and other resources of the company, the governor could not be brought to say that the donation would hasten the completion of the road by any definite amount of time. A delegate who was strongly opposed to the railroad grant stated his conclusion from Stanford's words that "if we give this aid it would not help the road a pin, yet he would like it, because it would

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Other Railroad Undertakings.

            The railroad grant advocates fell back again and again on the argument that the provision in the constitution did not commit Nevada to making such a grant. All it did was to confer upon the Legislature the privilege of ordering such a contribution not to exceed three million dollars, and then such legislation had to be sanctioned by popular vote. The friends of the Central Pacific remained loyal to the end, utilizing every parliamentary tactic and influence to provide a loophole in the constitution whereby the state could offer assistance to the railroad. As soon as the convention had voted to strike out the portion of the section relating to the railroad an amendment was immediately offered and voted down permitting the state to pay the interest on railroad bonds for an amount not to exceed three million dollars and over a period of twenty years. Thus the delegates had to start the controversy all over again. At this time was introduced the proposal for Nevada to grant state aid to the company that would first connect "the City of Virginia with the main range of the Sierra Nevada Mountains." The proposition to be thus favored seemed to foreshadow the railroad which was subsequently built from Virginia City by a roundabout route to a connection with the Central Pacific at Reno. At this stage of the proceedings some of the delegates had evidently become tired of the prolonged railroad debate and were beginning to express their convictions in the matter in language that could not be misunderstood. One of the delegates said:

            This was, of course, an appeal to sectional prejudice, and somewhat later, when it had been practically decided to lighten the tax burden of mining properties, an effort was made to array the "cow county" people against any proposition which would build

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            The railroad grant appeared and reappeared in a succession of amendments and amendments to amendments, and when the convention finally disposed of the last of these it did so by a vote of twenty-three to six. The only consolation for the defeated railroad advocates was in an amendment to section 10 of the same article which permitted municipal corporations to loan their credit to railroad corporations.

State Debt and Taxation of Mines.

            The discussion of the railroad grant naturally involved many of the fundamental propositions related to the following articles. on finance and state debt and taxation. With the three million dollar railroad grant eliminated the convention had no difficulty in agreeing upon a limitation of the state debt to an aggregate of $300,000, exclusive of interest.

            The article on taxation, in both constitutions, is comprised in a single section. "The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property." Up to this point the language in both constitutions is identical. Then, in the first constitution, it continues : "Both real and personal, including mines and mining property." In the constitution of 1864 this was changed to read : "Real, personal and possessory, excepting mines and mining claims, the proceeds of which alone shall be taxed." Following this came the classes of property which were exempt from taxation when used for municipal, educational, religious and charitable purposes, these provisions being the same in each constitution.

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Possessory Rights.

            The constitution of 1863 had been framed in flush times, but the year that followed, it was pointed out, the value of the great mining properties at Virginia and elsewhere had declined enormously. Consequently there was more strength to the argument that while mines were in course of development, regardless of the investment, they should be assessed for taxation at a very low figure. "It is only a question of policy now—whether you will allow them to develop themselves, or crush them out before the chance for their development comes." The mines, it was claimed, did not escape taxation after they began to pay.

Nonresident Ownership of Mines.

            The financial capital of Nevada was San Francisco. This fact was frequently employed in the debates to arouse prejudice against

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            After the debate had gone on for hours, in the course of which nearly every member present had his say, citing conditions in California and other states, reviewing the status of nearly every mining property and every agricultural district in Nevada, a vote was taken upon the amendment proposing that all property, possessory rights, and claims, should be taxed according to their true value in money. The amendment was lost by a vote of eleven to eighteen. Then the previous proposal, to strike out the words "including mines and mining property," was adopted by a vote of seventeen to ten. This decision of the committee of the whole was adopted in the convention by a vote of twenty-seven to five, but immediately an amendment was offered corresponding to the one that had been rejected, except that the word "claims" was omitted. Thus the entire subject was again opened for debate. As soon as one amendment was voted down another was offered, the object of which was to include in the definition of real and personal property, also property coming under the somewhat vague description of "possessory." An amendment adopted by a vote of twenty to fourteen brought the language of the article somewhat closer to the final form when it was provided that taxes should be levied on "all property, possessions, and possessory rights." Still neither side was satisfied with the article, but the various propositions for changing it were voted down one after the other, each vote being preceded by long commentaries on what had already been described as an exhaustive treatment of the subject. When the article in the language found in the constitution was proposed and the vote was being taken on it, some five or six delegates explained their vote on the ground that while it

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did not fully meet their approval it was in the nature of a compromise, one delegate declaring that he was voting "aye" though he considered the amendment "wrong in principle, mistaken in its policy, and injurious in its practice." The vote for the article was announced as twenty-three to ten.

Education.

            After the convention had labored through the fundamental economic problems involved in taxation, it took up the article on education. The discussion on this subject is an interesting exhibit of current educational opinions, regarding compulsory attendance, sectarianism in schools, whether it was the duty of the state to provide the facilities of education, and if, in turn, after having provided them it might emphasize the duty of parents or guardians to make their children attend such schools.

            As section 1 of this article was reported it opened with a rather interesting sentence: "The state owes the children thereof . . . . tuitional facilities for a substantial education, and is entitled to exact attendance therefrom in return, upon such educational advantages as it may provide." This preamble, it was explained, was inserted as a substitute for a provision in the previous constitution making it obligatory upon the Legislature to require compulsory attendance of children between the ages of six and fourteen at school for at least three months each year. This compulsory idea seemed to savor too much of the Prussian system, and while it was eliminated, the committee prepared this statement that if the state was under obligation to establish a system of common schools, then the children ought to be made to attend them. It was the opinion of one speaker that "we are forgetting the spirit of our institutions when we are seeking to compel our fellow citizens to send their children to the public schools. The moment we invade the home of any man, telling him that he must do this and must not do that, seeking to make men good according to our notions of goodness, we are traveling, in my opinion, out of

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the line of our duty, and departing from the fundamental principles of our republican form of government. I repeat, that the very spirit of our American institutions is in opposition to this proposition. We are not living here under a Prussian monarchy.' A few minutes earlier one delegate had questioned the use of the phrase "moral improvement" in the first section. He was answered with the explanation that this did not mean the enunciation of a particular moral doctrine, but was using the word in a general sense to distinguish it from sectarian doctrines. "There must be power somewhere to exact conformity to the general ideas of morality entertained by civilized communities." In the end the convention agreed that this matter of compulsory attendance should be passed on to the Legislature, as expressed in the sentence that the Legislature "may pass such laws as will tend to secure a general attendance of the children in each school district."

            The debate over this article also offered an instance of the prevailing attitude in the northern states toward including negroes in any of the advantages offered by our institutions. It will be recalled that in the suffrage article the word "white" was retained. That word, however, is not found in any of the sections of the education article. In the previous constitution the word occurred in the compulsory provision and also in the section providing that the facilities of the university should be open to "white pupils." In the discussion of an amendment to require white pupils in incorporated cities and towns to attend school at least three months, one delegate inquired "does the government mean to give the negroes larger liberty than he does to whites ? It seems that white people are compelled to send their children to school, while the negroes are not." But the proponent of the amendment replied that "I do not mean by any action of mine to allow negroes to vote."

Sectarian Instruction.

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School Lands.

            The question as to the source of all the public lands granted by the Federal Government to Nevada for educational purposes, and also as to the other sources of the educational fund, is concisely answered in section 3 of this article, which is therefore quoted in full :

            All lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of the public schools in the Act of the Thirty-eighth Congress, to enable the people of Nevada Territory to form a State Government, the thirty thousand acres of public lands granted by an Act of Congress, approved July second, A. D. eighteen hundred and sixty-two, for each Senator and Representative in Congress, and all proceeds of lands that have been, or may hereafter be, granted or appropriated by the United States to this State, and also the five hundred thousand acres of land granted to the new States, under the Act of Congress distributing the proceeds of the public lands among the several States of the Union, approved A. D. eighteen hundred and forty-one ; provided, that Congress make provisions for, or authorizes such diversion to be made for the purpose herein contained ; all estates that may be escheat to the State, all of such per cent. as may be granted by Congress on the sale of land, all fines collected under the penal laws of the State, all property given or bequeathed to the State for educational purposes, and all proceeds derived from any or all of said sources, shall be and the same are hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses ; and the interest thereon shall, from time to time, be apportioned among the several counties in proportion to the ascertained numbers of the persons between the ages of six and eighteen years in the different counties, and the Legislature shall provide for the sale of floating land warrants to cover the aforesaid lands, and for the investment of all proceeds derived from any of the above-mentioned sources, in United States bonds, or the bonds of this State ; provided, that the interest only of the aforesaid proceeds shall be used for educational purposes, and any surplus interest shall be added to the principal sum ; and provided further, that such portions of said interest as may be necessary may be appropriated for the support of the State University.

            The 500,000 acre grant enumerated in this section had been originally intended to be used for "internal improvement," but when Iowa came into the Union in 1846 Congress consented to allowing this grant to be diverted for educational purposes, and many other states had followed that example. Some of the delegates apparently did not understand the purport of the Morrill act of July 2, 1862, which has often been linked with the Pacific Railroad Act of the same year as constituting two of the most constructive pieces of legislation enacted during the Civil war. By this act each state was to receive 30,000 acres from the public domain for each senator and representative, the proceeds from the sale of the land to be devoted to the establishment of a college for agricultural and mechanical instruction. It was the foundation

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of the "land grant colleges" now found in every state either as a separate institution or combined with the State University.

University and School of Mines.

            In the constitution of 1863 there was a section requiring the Legislature to establish "a state university or agricultural college, with a mining department."

            By section 5 of this article every Nevada teacher, from the university to the public schools, was required to take the oath of office prescribed in the constitution, an oath, which it will be remembered, abjures the taker from participation in a duel.

Welfare Institutions.

            The delegates frequently warned each other against introducing "legislation" into the constitution. The Nevada constitution is undoubtedly open to the charge of containing a great many matters which might have been properly left to the discretion of the Legislature. It is by no means such a bare framework of organic law as the Federal constitution. But practically all state constitutions framed after 1830 were open to this objection. Perhaps the chief interest and value in examining a constitution in its framing is to note how it reveals the current and progressive ideals of the time as to the functions and duties of government. The Federal constitution and many of the early state constitutions comprise a very brief statement as to the division of fundamental powers and an

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equally brief enumeration of prohibitions and affirmations as to what the government can and cannot do. The layman unfamiliar with constitutional interpretation and development has difficulty in finding the express word or words in the Federal constitution, for example, which justify the multitude of economic and social agencies and institutions now permanently entrenched in our national government. A great number of these find their point of origin in the famous "welfare clause," which may have been little more than a bit of rhetoric in the minds of the constitutional fathers.

            The Nevada constitution was framed three-quarters of a century after the immortal Federal document. It is much more than a simple statement of organic law. The bare framework is clothed with the flesh and tissue representing many developments in organized society which would have been strange indeed to the "Founding Fathers."

            All of this is well illustrated in the articles of the constitution which have been previously considered. A particularly notable illustration is found in the article dealing with public institutions. Early state constitutions provided primarily administrative machinery and facilities for the exercise of police power. Somewhere in the declaration that all "political power is inherent in the people," in some phrases concerning "protection and security," and in the emphasis placed upon the necessity for encouraging education, may be found the germ for scores of institutions and services that later developed. The Nevada convention accepted without reservation the principle of a free common school system, though such a system had barely progressed to a point where it might be considered a standard feature of all the northern states until about 1850. The care of the poor had always been regarded as a local matter, and prior to 1850 only a few states had recognized the obligation to provide care for the insane and other unfortunates. In the light of these facts it is interesting to note the language of the first section of article 13 of the Nevada constitution :

            Institutions for the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by law.

            The article also provided for the establishment of a state prison and "provision may be made by law for the establishment and maintenance of a house of refuge for juvenile offenders." The constitution places upon the county the primary responsibility for the care of the aged poor and similar unfortunates.

Boundary.

            The article on state boundary was made to conform with the language of the enabling act instead of that of the previous constitution, though they were the same in substance. To this was added a provision to incorporate into the boundaries of the state any addition on the eastern limit that might be authorized by Congress and also any territory on the western line that might be relinquished by California. As one delegate explained : "That portion (of the article) was added by the committee in the former convention, with the expectation that we could obtain from Congress an extension of one degree on our eastern boundary, and also

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with the expectation that we could compromise in some way with the state of California, so as to make the summit of the Sierras the western boundary line of our state."

Capital.

            When the first section of the miscellaneous article was taken up, the one providing for the establishment of the seat of government at Carson City, a delegate from Lander County offered an amendment to give the Legislature the power to determine its location. He objected to permanently establishing the capital on the extreme western border, whereas business and population were exhibiting a trend toward the east. The reply of another delegate apparently expressed the majority opinion of the convention when he said that the convention should not leave this matter "in such a condition as to place the state capital upon wheels, and let it go traveling around from one place to another."

            The section of this article which provoked the largest amount of debate was that prescribing the oath of office and making any participator in a duel ineligible to office. These matters have been referred to on previous pages.

Amendment.

            The provisions for amending the constitution are essentially the same as those found in the constitution of 1863. Nevertheless, the article was the subject of considerable debate. Some of the delegates thought that the process involved, requiring the action of two successive legislatures on an identical proposal, followed by a popular referendum, would take approximately four years to register a change in the fundamental law. Instead of having two successive legislatures pass upon such a proposal it was suggested that the amendment proposal after being agreed to by a two-thirds vote of each House would then go direct to the people, and if ratified should become a part of the constitution. Another suggestion was that an easier method of making amendments should be permitted within four years after the adoption of the constitution. As one delegate explained, it was very probable that the machinery set up by thirty-nine constitutional mechanics would not work smoothly in every respect at first, and therefore a method should be provided whereby the Legislature and the people could repair these rough spots within a reasonable time. The answer to this argument was that section 2 of the article permitted the Legislature, in an emergency, to give the citizens the privilege to approve a call for a constitutional convention, which might recast the entire document.

The Delegates and Their Work.

            A thorough reading of the debates and proceedings leads one to the conclusion that the framers of the Nevada constitution were on the whole men of exceptional intellectual ability, and some of them with minds enriched with the study of classical literature and ancient and modern history. If their reported speeches are a proper index, even those who were not of the learned professions could express themselves well and to the point and sustain their part in running debate. Naturally it was the lawyers who bore the chief burden of the discussions, but frequently representatives of other occupations interposed with

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speeches containing as much sound reasoning and good sense as their more loquacious brethren.

            While the Nevada constitution does not represent original and creative work, since practically every section of it was based upon the organic laws of other states, it is a document which represents earnest and conscientious work on the part of its framers and a thoroughly creditable piece of statecraft. When studied in its environment of time, place and circumstances of origin, it reflects a great deal of history, not only of Nevada but of the Nation.

            Thirty of the delegates were "signers" of the constitution, including J. Neely Johnson, president of the convention and delegate from Ormsby County. The other signers were : Henry B. Brady, Washoe, E. F. Dunne, Humboldt, J. G. McClinton, Esmeralda, G. N. Folsom, Washoe, F. H. Kennedy, Lyon, W. W. Belden, Washoe, F. M. Proctor, Nye, Albert T. Hawley, Douglas, George L. Gibson, Ormsby, F. Tagliabue, Nye, William Wetherill, Esmeralda, John A. Collins, Storey, James A. Banks, Humboldt, J. S. Crosman, Lyon, Samuel A. Chapin, Storey, C. M. Brosnan, Storey, John H. Kinkead, Ormsby, George A. Hudson, Lyon, Israel Crawford, Ormsby, A. J. Lockwood, Ormsby, H. G. Parker, Lyon County, J. H. Warwick, Lander, C. E. DeLong, Storey, Lloyd Frizell, Storey, George A. Nourse, Washoe, B. S. Mason, Esmeralda, Almon Hovey, Storey, Thomas Fitch, Storey, J. W. Haines, Douglas.