application must be first made to the Supreme Court. Now, it is conceded, and gentlemen of the profession on this floor have shown us, when this subject of the judicial department was under discussion, that the Supreme Court Judges were crowded with business, and that they did not have time to discharge the duties of their office. Hence, they ask an increase of the number, and that they might set in departments and in bank. But if they make this change proposed by Judge Belcher, it seems that there is no serious demand upon their time. In my judgment it would be detrimental to the cause of justice to impose upon them the onerous and, I think, unnecessary burden which is so foreign to the duties of their office. Now, I admit that Judge Belcher ought to be a good Judge of this matter, having himself been upon the bench. I will admit, too, that iny opinion is worth but little. Still, Mr. President, I cannot but think that, upon a more deliberate reflection, gentlemen, particularly gentlemen of the legal profession, will see the impropriety of imposing upon the Judges of the Supreme Court other foreign matters that would, in the very nature of things, distract their judgment, or take from them a portion of that time which should be devoted to the peculiar functions of their office. Now, in regard to the amendment offered by the gentleman from San Diego, while I object to it, the objection is not so serious. But I maintain that there is really no necessity for any change in this article upon the pardoning power, as adopted in the Committee of the Whole. It was discussed here for two or three days thoroughly and amply discussed, and agreed upon, and I believe satisfies the views of the majority of the members. I hope that all amendments will be voted down, and that we will adhere to the action of the Committee of the Whole and adopt that action as the action of this Convention. MR. WATERS. Mr. President: There is but one side to this question, I think. I move the previous question. Seconded by Messrs. Hunter, Tully, Dunlap, and White. ernor upon this point as to whether there are some circumstances going to mitigate the case and warrant a pardon. The evidence now must be brought to him. He must be brought to see and believe that there is a wrong being done; that it would be better for the individual and community that he be pardoned. This evidence which proves his innocence may just as well be brought there, and he can just as well pass upon it. This confines it then to this single case, and it is more easy to decide these cases where they are decided upon the evidence than where the sympathy is to be worked upon. I believe this to be the best way, so that when a party has been convicted twice before, if his innocence is established by evidence, there shall be still a right in the Governor to pardon him. REMARKS OF MR. WILSON. MR. WILSON, of First District. Mr. President: I desire to say but one word in regard to the amendments which are now pending. The section as reported by the committee I think should be amended, because it puts it out of the power of any part of the government, or all the combined powers of the government, to relieve a man from imprisonment who has been twice convicted before, no matter under what circumstances he is imprisoned, or what new facts have been developed. I am opposed to any such iron clad provision as that, that any person can be imprisoned so as to be beyond the reach of all departments of government. Now persons may be convicted under such circumstances that the pardoning power would not relieve him if he were only convicted once. Now, after he has been convicted twice the same reasons might apply, and the pardoning power might, in its discretion, doubt whether he was convicted properly, and in view of some other reasons men of sense would say that the man ought to be pardoned, yet we have placed it out of the power of the officers to pardon him. It has been suggested to ine by the gentleman from Sacramento, Mr. Freeman, that this case may occur. A man may be convicted of three offenses at the MR. BLACKMER. I think it is but fair that I should have an oppor- same term of Court. He may be convicted, say, of embezzling funds at tunity to be heard MR. MCCALLUM. I ask MR. WATERS. I insist upon my motion. If the Convention do not want the previous question they need not order it. The Convention refused to order the main question put, on a division, by a vote of 37 ayes to 62 noes. MR. BLACKMER. Mr. Chairman: It seems to be the opinion- The chair is mistaken. THE PRESIDENT. The gentleman spoke to the question when he introduced the amendment. The chair is not mistaken. REMARKS OF MR. ANDREWS. MR. ANDREWS. Mr. President: I hope that the amendment offered by the gentleman from Yuba will be adopted. It seems to me that the views taken by the gentleman from Sacramento, Mr. Caples, are not well taken. This amendment would not make the Supreme Court the doorkeepers of the pardoning power. MR. CAPLES. Is the gentleman aware that there are some three, or four, or five hundred convicts in California, in the State Prisons, who have been convicted two, three, four, and a half dozen times? MR. ANDREWS. I presume that is the case. That does not meet the suggestion made by the gentleman from Yuba where there might be exceptional cases in which it would be a great hardship and outrage that the pardoning power could not be exercised. The gentleman from Sacramento asserted that the amendment offered by the gentleman from Yuba would make the Supreme Court Judges doorkeepers to the pardoning power, but it only applies to these exceptional cases. I hope the amendment of the gentleman from Yuba will be adopted. REMARKS OF MR. BLACKMER. MR. BLACKMER. Mr. President: After considerable investigation I have discovered that my speech was a silent one, and consequently I will now endeavor to make myself heard. Perhaps it was because there is so much confusion that I did not hear it. Now, sir, in regard to the amendment offered by the gentleman from Yuba, Judge Belcher, I have this to say, that it is in reality making the Supreme Court a Board of Pardons, and the Committee of the Whole refused to entertain that proposition. They decided that it was not advisable to institute a Board of Pardons, any member of which should be upon the Supreme Bench. That question was discussed here. I endeavored, as the Convention will remember, when this article was up, to make this provision apply to all pardons, and the Committee of the Whole voted it down. But this question, notwithstanding the understanding of the gentleman from Sacramento, Mr. Caples, in regard to the last clause, where persons had been twice convicted, was not discussed in Committee of the Whole. Now, sir, it is not improbable that a man who has been convicted twice will be convicted again wrongfully. In fact it is very probable that he may be convicted wrongfully a third time. While it may be true in law that the person charged is not prejudiced, it is not true in fact. A prejudice will exist when a person has been twice convicted that will influence to a certain extent his conviction a third time, when, perhaps, if it had been his first offense he would not have been convicted. There is that easier way of getting a conviction than upon the first offense. Now, sir, as to the question whether it makes any difference or not in the case of a person having been convicted of a crime twice, whether he is innocent or not when he is convicted, if the gentleman from Sacramento can take that stand I am willing he should keep it. I do not wish to. If a person is innocent of the crime for which he has been convicted there should be no punishment, and we should leave the door open, so that he can be pardoned. I believe this is the only way to do it: that whenever evidence is discovered, after the conviction, establishing his innocence, that the evidence should be brought before the Gov different times, every one constituting an offense. Having been convicted of three offenses he is beyond the reach of the pardoning power. Now it certainly would be impolitic to establish a rule like that. I think the amendment proposed by Judge Belcher should be adopted. I see nothing in the objection that it is done on the recommendation of a majority of the Supreme Court. It does not make the Supreme Court the pardoning power at all. It merely is a restriction upon the power of the Governor. When the Supreme Court have recommended the Governor to exercise the pardoning power, after an examination of the case, he still has to exercise his judgment. The Supreme Court has no power to pardon; they recommend it to the Governor, but he is not compelled to act upon it. He is the pardoning power, and they are no branch of the pardoning power at all. They simply recommend. The Senate, when it sits to approve of the appointment of an officer by the President or the Governor, does not appoint. The President appoints, with the advice and consent of the Senate. In this case it is not as strong as that. They simply say, "we have examined the case and we think this man should be pardoned," and then the Governor is thrown upon his own judgment to say whether the man should be pardoned or not. I do not see why we should doubt the Supreme Court in a case of this kind. They are better able to judge whether there are any peculiar circumstances under which the man has been convicted which would make it a proper case for the interposition of executive clemency. For these reasons, I am in favor of the amendment as proposed by the gentleman from Yuba, Judge Belcher. REMARKS OF MR. MCCALLUM. MR. MCCALLUM. Mr. President: If this section is to stand as reported by the Committee of the Whole, I think that will be a very proper amendment; but I have an amendment which was defeated in Committee of the Whole by only one or two votes, and if it should be adopted, would cover substantially the thing aimed at in this amendment. propose to read it now for information, as I propose to offer it whenever it will be in order: "Add after the word 'reprieve,' in line one, as follows: 'and the Governor, Chief Justice of the Supreme Court, and the Attorney-General, or a major part of them, of whom the Governor shall be one, shall have power to grant."" Then the section proceeds to state that they shall grant pardons, etc. This proposition was discussed at considerable length in Committee of the Whole, and I do not propose to invite a renewal of that discussion; nor do I propose at any time, in the Convention, to offer propositions here which have been defeated by any decided majority in the Committee of the Whole, because it would be a useless consumption of time. As to this particular proposition, I have hope that it may succeed, and I therefore propose to offer it whenever it will be in order. I may say while up, that it embraces what was reported by the Committee on Pardons in the first place, as they propose to add the Chief Justice to the pardoning power, the Governor being one. My colleague, Judge Campbell, proposed to insert Attorney-General." My proposition was to make the three-the Governor, the Chief Justice, and the AttorneyGeneral-comprise the pardoning power, and I took occasion to say at that time, that at least so far as we who come from the second county of the State are concerned, we were pledged to your political platforms, those of both parties, to vote in favor of a proposition, that there should be a commission, or Board, to have charge and control of the pardoning power. I state this now merely by way of explanation. I shall vote for the amendment of Judge Belcher; but if it should not prevail, I shall offer this. As to the clause which provides that a party twice before convicted of felony shall not be pardoned, it is wrong in principle, and ought not to be put in a Constitution. It is very easy to suppose a case where gross injustice might be done. I will vote to strike the whole of it out; but as the best that can be done in the present instance, I shall vote for the amendment offered by the gentleman from Yuba. MR. GRACE. Mr. President: When the proper time comes, I desire recommendation of the Governor, and have the Governor call the Senate to submit a substitute for the whole section. together for that purpose whenever he may see fit. REMARKS OF MR. HOWARD. REMARKS OF MR. SHAFTER. MR. HOWARD, of Los Angeles. Mr. President: I trust we will adhere to the report of the Committee of the Whole. As to the amendment of the learned gentleman from Yuba, and also the amendment of the gentleman from San Diego, they will both be found mischievous in practice-utterly so. If adopted, they will destroy all responsibility in the matter of the exercise of the pardoning power. Now, sir, what is the amendment of the gentleman from Yuba? That a pardon shall be granted wherever a majority of the Judges of the Supreme Court recommend it. What is the effect of that? It is not a public and judicial act; it is not a public inquiry in Court; it is not a public examination, regularly; but each Judge is subjected to private solicitation by parties outside, and is to be run down by petitions, and the tears of woinen and children. That is not safe, sir. The safety consists in having the responsibility direct, and holding the Governor and his party responsible for a proper exercise of the power. Equally fatal would be the amend-mend to the executive and he pardon. It is said that a new trial may ment of the gentleman from San Diego. It is to be granted on newly discovered evidence. The Governor is made a Court, practically, and grants a new trial, and reexamines the whole case upon the merits, and decides as to the weight of the newly discovered evidence. If there is newly discovered evidence, the Court below will grant a new trial. If the Court below refuses, an appeal may be taken to the Supreme Court, and then it can be examined regularly, under the responsibility of the Court, and under the learning of the Court. A man being in the penis tentiary does not prevent his being heard. If there is new evidence, he is entitled to a new trial, and will get it by a regular judicial inquiry, and the evidence will be produced where it can be scrutinized and examined. But how can that be the case if produced before the Governor? How is he to examine the effect of the new evidence upon the whole case, and whether a new trial ought to be granted, or whether a pardon ought to be extended on the alleged discovery of new evidence? It cannot result otherwise than in abuses; nor is there any necessity for it. If a man is convicted, and it is shown to the Governor, from newly discovered evidence, that he has been wrongfully convicted, as the law now stands, and as it is proposed in this report, the Governor will still have a right to grant a pardon. I am in favor of the report as it stands, because there is some responsibility in it. The moment you divide it out with the Judges of the Supreme Court, all responsibility ceases. did not favor the latter clause of the report, that pardon should be with I held from a man because he has been twice convicted before. But I do not see that it will work much hardship. I am in favor of the report as it now stands, and I hope it will be adopted. I do not want to discourage gentlemen who desire to make a large reputation by small amendments. But I think the safe thing is to adhere to the report of the Committee of the Whole. REMARKS OF MR. HAGER. MR. SHAFTER. Mr. President: As the Chairman of the committee, of course, I can say that all these propositions were passed upon by the committee and partly by the Convention itself in Committee of the Whole. Where the pardoning power should be lodged is a question foreign to the specific amendments proposed here. It is very apparent that after a man has been twice convicted, in the opinion of the convention he ought not to be pardoned except in the exceptional case of his innocence having been demonstrated, and if it is so demonstrated he ought to be pardoned. The question is who shall decide? I am willing to leave it to the Govenor. I would be equally willing to leave it to the Supreme Court. There is some weight in the argument that it should be left to a judicial mind. I am inclined to the opinion that the Judges of the Supreme Court are the most competent tribunal, and the one to which this question could be most safely left. They must recombe had. It will be seen that if that is true, which I do not undertake to controvert at all, it would be a very inefficient remedy. The Judge before whom the case was tried may be dead or out of office. If a new trial is to be had the party will suffer by being unable to get his witnesses together again. But the Judges of the Supreme Court could take up the whole record of the case as tried before just exactly as well as a jury could, and better too, and be more likely to arrive at a correct It strikes me that it would be quite as well to leave this matter to a majority of the Judges of the Supreme Court to advise the GovMR. HOWARD. This amendment does not submit it to the Court; it submits it to a majority of the Judges to be run down outside of Court. easily provided that the petition shall be made to the Supreme Court, MR. SHAFTER. If it is objectionable on that account, it can be very and that that Court shall decide. That will be a majority of the Judges. As regards the suggestion of Mr. McCallum, that has been already settled by the Convention. One thing is certain-if a man can prove his innocence he ought not to be confined in the State Prison. It is possible that there might be some exceptional cases where a new trial would be desirable, but I think in the most cases it would be better to leave it to the Judges of the Supreme Court. Are you aware of any State where the Governor and Judges of the Supreme Court have this power? MR. SHAFTER. În Delaware, I think it is so. MR. MCCONNELL. I move the previous question. Seconded by Messrs. Waters, Murphy, Howard of Los Angeles, and Hunter. result. ernor as any other way. MR. MCCALLUM. The main question was ordered, on a division, by a vote of 70 ayes to 40 noes. THE PRESIDENT. The question is on the adoption of the amendment to the amendment offered by the gentleman from Yuba, Mr. Belcher. The ayes and noes were demanded by Messrs. Casserly, Condon, Andrews, MR. HAGER. Mr. President: I am not in favor of prohibiting a pardon in any case where the party has been previously twice convicted. A person may be convicted twice or thrice at the same term of Court. That is, there may be three or four indictments, and he may be tried on them, and there may be two or three convictions. Take the case of Duncan, who has recently been tried in San Francisco. He was indicted upon eight or ten charges, and has not been convicted. But suppose there had been a conviction on three or four indictments at that term, then in that case, if a presentation was made for his pardon, he would come up as a person who had been twice or thrice previously convicted. Yet it would be one offense, or crimes growing out of one offense; that is, a succession of offenses. Now, the pardoning power is nothing more than an arrest of the legal administration of justice. How often should we arrest the legal administration of justice, and when, the question which presents itself here. Why, we might say, Boucher, if a man was convicted according to the law, and punished according to Brown, the law, there should be no arrest of the administration of justice, Casserly, because that would be an infraction upon the law itself. I do not think Chapman, myself that the pardoning power should be exercised to the extent that Charles, it is in this State and in other States, because it has a tendency to create Condon, an impression in the community that if a man should be convicted Cowden, there is a possibility of his being pardoned. But in a case where a per- Cross, son has been convicted twice, or thrice, and so on, a case may arise Davis, where the pardoning power should be exercised just as much as in Dowling, other cases. If I had a chance to offer an amendment I would put it | Doyle, in this shape: "No pardon shall be granted to any person previously Dudley, of Solano, twice convicted of felony, unless on the recommendation, and with the Dunlap, approval of a major part of all the members of the State Senate." I Estee, would prefer it in that way rather than to resort to the Supreme Court. Estey, Now, the Judges of the Supreme Court are exercising judicial powers. Farrell, I do not think they should be importuned constantly by parties seeking pardons for their friends, and interfered with in the performance of their judicial functions, to turn their attention towards the pardoning power. In some of the States the Senate have entire control. It is a political body to a certain extent. They are more likely to be conversant with the case as they come from every portion of the State. If I had my way about this whole matter I would require that a pardon should be granted on the recommendation of the Governor with the approval of a majority vote of the Senate, and I would have the Senate meet once, twice, or three times a year for that purpose; that the Governor may call the Senate together as a Pardoning Board. I think it would be a better system. The Governor is importuned as we all know, and in a Barton, great many cases, in all probability, pardons are granted where they Blackmer, would not be if they had a Board to act upon it deliberately. I oppose Burt, the amendment offered by Judge Belcher upon these grounds. I would Caples, rather leave it, as I say, to a vote of a majority of the Senate, on the Crouch, Filcher, Smith, of Santa Clara, It is open to that construction, and this is for the purpose of explaining it more fully. Swenson, Tinnin, Tully-27. The amendment as amended was adopted. THE CHAIRMAN. The question is: Shall this article be engrossed and read a second time? Carried. NOTICE. MR. MCCALLUM. I give notice that I will, on to-morrow, move a reconsideration of the vote by which the Convention adopted the article on pardoning power and ordered it to be engrossed and read a second time, for the purpose of amending said article so that the same shall embrace the following amendment: "Insert after the word 'reprieve,' in line one, and before the word 'pardons,' in line two, as follows: And the Governor, the Chief Justice of the Supreme Court, and the Attorney-General, or a major part of them, of whom the Governor shall be one, shall have power to grant."'" EXECUTIVE DEPARTMENT. THE PRESIDENT. The next measure on the file is the report of the Committee of the Whole on the executive department. The Secretary will read the amendments in order as proposed by the Committee of the Whole. MR. AYERS. I rise to a point of order. These amendments do not seem to be printed. THE PRESIDENT. The amended report is printed with the amendments in. The original section is not printed, but the amendments are all in. THE SECRETARY read: The amendment was adopted. MR. BELCHER. Mr. President: I offer an amendment to section nineteen. THE SECRETARY read: "Amend line eighteen by striking out sixteen' and inserting 'eighteen."" MR. BELCHER. Mr. President: It seem to me that for clerks, such as are required in the State offices, there should be no limit to less than one hundred and fifty dollars a month. Most of these men have families. At least men ought to be able to take these positions who do have families. Now, with a family, a man cannot live upon less than one hundred and fifty dollars per month, respectably. The Legislature should not be prohibited from giving at least one hundred and fifty dollars a month. MR. MCFARLAND. Mr. President: I am opposed to the amendment in the interest of economy. [Laughter.] Now, sir, there are plenty of men that can be had for fifty dollars a month. One thousand six hundred dollars a year seems to me to be a very large sum. After you have cut down the salary of the Controller and all these officers to three thousand dollars, you propose now to allow the Controller, under the disguise of clerks, to run up the expenses of the office to enormous sums. You do not undertake to limit the number. The Legislature may allow them twenty clerks. They can go to work and hire clerks for seventy-five dollars a month, and make seventy-five dollars out of each man. [Laughter.] Why not fix it positively-say that they shall not have more than one or two, or one and a half, or somewhere along there? But to make the people understand that we are in the interest of economy, after cutting down the salary of a State officer to three thousand dollars you must not allow him to have clerks at one thousand "In section three, strike out 'thirty' and insert twenty-five,' in line eight hundred dollars a year. Concurred in. three." THE SECRETARY read: MR. LARKIN. I am satisfied that the gentleman is in favor of the amendment or else he would not have spoken' against it. "In section eighteen, strike out 'fair' and insert 'correct,' in line the Whole, opposed this one thousand six hundred dollar salary. Now, three." Concurred in. THE SECRETARY read: "In section_nineteen, add after 'Controller,' in line nine, AttorneyGeneral and Surveyor-General;' and strike out, in lines sixteen and seventeen, it shall, by law, fix the compensation of the Attorney-General and the Surveyor-General, and.' MR. MCFARLAND. Mr. President: I hope that this amendment will not prevail. Now, sir, the office of Lieutenant-Governor is the second office of importance in this State. The Lieutenant-Governor is liable under many contingencies to be Governor. It is a position that ought to be sought after by the best men of the State, and yet you prevent the Legislature from giving him any more salary whatever, except an increased per diem for the month or two that the Legislature sits. It is a matter that ought to be left to the Legislature, but here you prowide positively that he shall receive the same per diem as may be provided by law for the Speaker of the Assembly, to be allowed only during the session of the Legislature. I hope the amendment will not be concurred in. MR. WHITE. Mr. President: I hope the amendment will be concurred in. A man who is in that position, if he gets to be Governor, will have the same salary as the Governor has, and while he does nothing, he should get no pay. I trust, that as a matter of economy, the matter will be left just as it was amended by the Committee of the Whole. THE PRESIDENT. The question is: Will the Convention concur in the amendment of the Committee of the Whole? The report of the Committee of the Whole was concurred in, on a division, by a vote of 78 ayes to 16 noes. THE SECRETARY read: "In line sixteen, section nineteen, add after the word ' 'Constitution' the words, no salary shall be authorized by law for clerical service, in any office provided for in this article, exceeding eighteen hundred dollars per annum.'' Concurred in. THE SECRETARY read: MR. MCCALLUM. Mr. President: The gentleman, in Committee of he opposes an amendment to raise it, and has given no reason for this change of spirit. I think, perhaps, that he hopes by opposing it he may succeed in having the amendment adopted. I confess that I think that the amendment offered by the gentleman from Yuba is just; that in the Constitution we ought not to fix a limit at less than one hundred and fifty dollars a month or one thousand eight hundred dollars a year. MR. TULLY. Mr. President: I hope that this amendment will prevail, though I have not much hope that it will, knowing that certain members here never change their vote upon a principle unless instructed by their constituents. I therefore move the previous question. THE PRESIDENT. The question is on the adoption of the amendment offered by the gentleman from Yuba, Mr. Belcher. MR. WEST. Mr. President: I offer an amendment to section nineteen. THE SECRETARY read: "Amend section nineteen by striking out the word 'six,' in line seven, and insert the word 'five.'” MR. WEST. Mr. President: I hope this amendment will prevail. As this matter was discussed considerably in Committee of the Whole, I now call for the ayes and noes on this amendment. The ayes and noes were also demanded by Messrs. Keyes, Condon, Evey, and Mason. The roll was called, and the amendment was rejected by the following vote: Bell, Boucher, "In line nine, section nineteen, add after the word Assembly' the Farrell, words, 'to be allowed only during the session of the Legislature.' Concurred in. Caples, Chapman, Charles, Condon, Joyce, Kelley, Schomp, Kenny, Smith, of Santa Clara, Keyes, Crouch, Dean, Kleine, Smith, of San Francisco, Soule, Laine, Doyle, Larkin, Lavigne, Lindow, McComas, Filcher, Freud, McConnell, Moffat, Weller, MR. MCFARLAND. I have an amendment to section nineteen. THE PRESIDENT. It is first in order to move separate sections. If none are offered, any portion of the report can be amended. Gorman, Moreland, Wellin, MR. MCFARLAND. I offer an amendment to section nineteen. THE SECRETARY read: "Amend section nineteen by striking out the word 'three,' in line eleven, and inserting in lieu thereof the word 'four.'' Neunaber, Estee, Estey, Freeman, NOES. White, Wilson, of Tehama-56. Hughey, Inman, Barton, Garvey, Jones, Lampson, Belcher, Biggs, The amendment was lost. MR. TINNIN. I desire to offer an amendment to section nineteen. THE SECRETARY read: Blackmer, Brown, Burt, Cross, Davis, Howard, of Los Angeles, McNutt, Howard, of Mariposa, Miller, Dunlap, Huestis, Mills, Joyce, Kelley, Kenny, Keyes, Kleine, O'Sullivan, Tuttle, Van Voorhies, Walker, of Marin, Webster, Tinnin, Townsend, Tully, Turner, Mr. President: I offer an additional section. THE SECRETARY read: "SEC. 20. The Governor shall not, during his term of office, be eligible as a Senator of this State to the Senate of the United States." MR. HOWARD, of Los Angeles. Mr. President: I would like to ask the gentleman by what authority the State fixes the qualifications of the Senators of the United States. I think it has been decided about forty times that we had no such right. MR. CROSS. Mr. President: I do not know what General Howard has just been saying, but as I understand it, he claims that this would be fixing the qualifications of Senators of the United States, and that the State has no control over it. MR. HOWARD, of Los Angeles. That is what I said, and it has been so repeatedly decided in the Senate of the United States. MR. JONES. Mr. President: It has been suggested to me that I ought to have stricken out the words, "of this State," so that it will read, "the Governor shall not be eligible as a Senator to the Senate of the United States." THE PRESIDENT. If there be no objection the gentleman can correct his amendment. MR. WILSON, of First District. Mr. President: I rise to a point of order. There can be no quorum voting on this amendment, because gentlemen who are candidates for Governor cannot vote, and we will have no quorum. [Laughter.] the full force of the argument that the State cannot do anything about it. The Senate of the United States decides upon the eligibility of its members; but we have a right to say in the Constitution that the Governor shall not be elected a United States Senator during his term of office, and to say the least, the Legislature that would do it would be guilty of moral perjury, having sworn to support the Constitution of the State. I move that as an amendment-I move to insert in place of "be eligible," the words "be elected." MR. MCCALLUM. Mr. President: As the section stands I concede MR. JONES. I accept the amendment. I will revise the section. tion. MR. MCCALLUM. In answer to the remarks just made, I will ask the gentleman from Los Angeles, suppose it was worded in this way, that the Legislature shall not elect a Governor to the United States Senate during his term of office, if that would not be a mandatory provision in the Constitution preventing it? MR. HOWARD. No, sir. It is a distinction between tweedle dum and tweedle dee. If the Constitution of the United States leaves it to the United States Senate, it is perfectly clear that the State cannot add to or take away from it. I admit that this is a vicious practice, but we cannot correct it in this way. MR. TOWNSEND. I hope that the amendment will not be adopted. The State ought to be allowed to elect her best citizens to the Senate of the United States. MR. ESTEE. I hope it will be adopted, because it is a declaration of State rights. MR. DUDLEY, of Solano. Mr. President: I hope the amendment will be adopted. It is well known that the most corrupting thing in State politics is the election of United States Senator, and it is ten fold more corrupting when the Governor aspires to that position. It has been the custom in the past by most everybody who has been elected to the office of Governor, to make it a stepping-stone to the United States Senate. Immediately upon accession to the gubernatorial chair, they have commenced laying the pipes and using all the influence of their executive station to secure the position of United States Senator. I understand the objections that are urged. But I understand that this will be placed in the Constitution, and will be a moral obligation to the members of the Legislature of the State of California, and I am satisfied that they will obey it. MR. WATERS. Mr. President: I move the previous question. THE PRESIDENT. The Secretary will read the amendment as now proposed by the gentleman from Mariposa, Mr. Jones. THE SECRETARY read: "SEC. 20. The Governor shall not, during his term of office, be elected a Senator to the Senate of the United States." Upon the adoption of the amendment of Mr. Jones, the ayes and noes were demanded by Messrs. Ayers, Dudley, Keyes, Farrell, and Gorman. The roll was called, and the amendment adopted by the following vote: Laine, Lampson, Larkin, Larue, Lavigne, Barry, Belcher, Blackmer, Brown, Caples, Chapman, Charles, Cowden, Cross, Crouch, Dean, Dunlap, Filcher, Freeman, Smith, of Santa Clara, Wilson, of 1st District, Smith, of San Francisco, Winans, Garvey, CORPORATIONS. Schell, Shafter, Smith, of 4th District, Soule, Townsend, Turner, Vacquerel, Walker, of Tuolumne, Shall this article be The amendment reported by the Committee of the Whole concurred in. The Secretary read the amendments offered by Messrs. Webster and Terry, and adopted in Committee of the Whole as follows: of a corporation, or joint-stock association, shall be individually and "Amend section three to read as follows: Sec. 3. Each stockholder personally liable for such proportion of all its debts and liabilities contracted or incurred during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation or association. The Directors and severally liable to the creditors and stockholders for all moneys or Trustees of corporations and joint-stock associations shall be jointly embezzled or misappropriated by the officers of such corporation, or joint-stock association, during the term of office of such Director or Trustee.'' MR. ESTEE. Mr. President: I offer an amendment to section three. THE SECRETARY read: "Strike out the words and stockholders.'" REMARKS OF MR. ESTEE. MR. ESTEE. Mr. President: The original amendment reads as follows: "SEC. 3. Each stockholder of a corporation, or joint-stock associaall its debts and liabilities contracted or incurred during the time he was tion, shall be individually and personally liable for such proportion of the whole of the subscribed capital stock or shares of the corporation or a stockholder, as the amount of stock or shares owned by him bears to association. The Directors or Trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporation or joint-stock association during the term of office of such Director or Trustee." Now, I propose to amend it by striking out of the second clause the words "and stockholders," so that it will read: "The President or Trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors for all moneys." The reason of that is this, that so far as my experience goes, and I think it is the experience of all, the stockholders of corporations have usually done the combining; that, as a rule, the stockholders pool the stock and control the whole action of the corporation; that they always elect the officers or Directors, and that the Directors are their instruments, right under their control. MR. TINNIN. What protection would a minority have? MR. ESTEE. That is provided for in this article. There is a system of cumulative voting in electing the officers of a corporation. The object here is to protect the creditor, not the stockholder. There are savings banks with stockholders. There are savings banks organized under the statute, where there are stockholders and where there is stock. But there are some that are mutual institutions entirely, and it would not then apply. It would not apply to savings banks at all, except in those cases where they have stockholders. The great danger of savings banks has been in those institutions where they have stockholders and have reserve funds for the benefit of those stockholders, not in the mutual savings banks, but in those institutions where it is the interest of the stockholders to pay the stock a large amount from the income of other people's money that should be distributed to the depositors. MR. DOWLING. Who should be the directors and stockholders of a corporation? MR. ESTEE. A man should be director who gets the most votes, and a man stockholder who is a subscriber and pays in his stock. MR. DOWLING. Who should be the directors and trustees of a corporation by right? MR. ESTEE. Does my friend make a distinction between a trustee and a director? It is a different name for the same thing. MR. ESTEE. What will you do with your gas company? MR. HAGER. If we cannot have good men, do not let us have any men. If the Treasurer of San Francisco is responsible, the State Treasurer is responsible, why should not these men be? The Treasurer necessarily employs assistants, but he is responsible and he must take care that his assistants indemnify him by some bond or otherwise. The Directors ought to take care that proper men are placed there. They have a right to demand security of any one they employ. REMARKS OF MR. REYNOLDS. MR. REYNOLDS. Mr. President: I hope the amendment will not prevail. That is one of the main pillars of this edifice. It is said in argument here that we are making stockholders responsible to themselves. Well, so we are to the amount of stock that a Director or Trustee may hold, but when it comes up they are generally found not to own any stock to speak of, so that the amount of responsibility that a stockholder will bear to himself amounts to very little. But, sir, the proposition, is this: We desire to make Directors and Trustees responsible to the stockholders, because the stockholders are the very first class to be robbed by the management. We seek by this amendment to make them responsible to the creditors and stockholders alike. Perhaps MR. DOWLING. If the stockholders are the directors or trustees, there may be no creditors, and yet the corporation may be run into a don't you think that it would place the institution on a safer basis? condition of bankruptcy. Stockholders may be ruined. Hence I hope MR. ESTEE. I would state that a man cannot be a director unless he that the amendment will not prevail, and I am astonished that the is a stockholder. Then he is liable to himself for his stealing. He gentleman who propose to make the Directors of the corporation liable should be liable to the creditors. I will state here that in my judgment to the creditors, are not likewise willing to make them liable to the there is no reason, and I do not think there can be any good reason stockholders. Why, the stockholders are the very first ones robbed. given for holding the agents of a corporation responsible to their prin- They are robbed first, last, and all the time. Creditors generally mancipals for what they do. What we are interested in, and what the com-age to take care of themselves. The first act of a mining corporation is munity is interested in, is to protect those who have not the means of to levy an assessment and then misappropriate the funds. knowing the ingoings and outcomings of that institution. It is the creditors of the institution that we should protect, and for that reason I propose this amendment. The Convention of course will do as it likes. MR. WILSON, of First District. Is an amendment to Judge Terry's amendment now in order? MR. PRESIDENT: It is not in order now. REMARKS OF MR. HAGER. MR. ESTEE. Under our statute now a majority of the stockholders can remove a Director any time. MR. REYNOLDS. Where is the protection of the minority? There is where all the skulduggery comes in. They levy an assessment, and they collect it of the minority stockholders, and the minority draw checks, that are not to be presented, in payment of their assessments. Why, sir, if you had the power to set on foot a committee of investigation, you could find one hundred millions of assessments stowed away in the offices of these companies in the City of San Francisco, of checks drawn by the majority of the stockholders, that have never been presented, and were never intended to be presented; and they go on collecting assessments of the other stockholders, nevertheless. It is them that we desire to protect. Mr. President, about these days stockholders are becoming troublesome in the City of San Francisco. They are wont to set on foot investigations, and within the last six months there has never been a time that there has not been three or four companies of unsuccessful inquiries and investigations into the affairs of the Directors; but at last they find, generally, that there is nobody responsible. The Directors hold ten or a dozen shares of stock, and the time is frittered away, and their rights are gone. It will do no harm to make them responsible. There is no argument here in opposition to this proposition to make them responsible. It is no argument to say that you are making them responsible to themselves to the extent of their stock. So they are, and they ought to be; but they ought to be responsible to all the others. We want the section just as it stands. MR. HAGER. Mr. President: I am opposed to striking out that word stockholders. I have always been of the opinion, and am yet, that the directors of a private corporation ought to be responsible for their employés, the men that they put into place. They have the control of the affairs, they appoint all the officers, they know all about them; they can inquire about them, and why should they not be responsible. Now, how is it in regard to our municipal corporations. An officer is elected to a position there, and he is held responsible for all his deputies and all their acts. If they embezzle the funds he is held responsible for them.dissatified stockholders holding unsuccessful meetings, and making In regard to the federal officers throughout the country they are responsible for all the officers appointed by them. Take our county officers in the city of San Francisco, they are all held responsible for the acts of their employés, and would be liable on their bonds. These directors can require bonds of their employés if they choose. These embezzlements are going on all the time. Now take the bank of California, take the French Bank, take the Duncan Pioneer Bank. If these officers who were put in there as Directors-as figure heads-were responsible for the men that were placed there these corporations would not have been swindled. The Cashier of the Bank of California had unlimited control of the funds and when he failed there was nothing left. The Cashier had taken it all. The Directors knew it; the managing men knew about it; their Executive Committee had the control. Take the case of the French Bank. Does any one suppose that if the Directors had been personally responsible that anything would have been abstracted from that bank. Now a man is not bound to be a Director of a corporation in an association, or a Director of a corporation. It is a voluntary act. If he takes the position knowing that he is responsible for the men employed there he will see that honest men go there, or else he will not take the place. I would not take it under the circumstances, perhaps, unless I had the control of the appointing power. If a man was put in there that I thought was not a responsible man, I would resign because I would not be placed in a position where I would be liable to suffer by his acts. I hope, therefore, that this proposition to strike out the word stockholders will not prevail. The Directors should be responsible for the malfeasance of the men that are placed there. If they were placed there against their wishes that would be another thing, but they are not. MR. ESTEE. Under this amendment should they be placed there against their will would not the Director be responsible? MR. HAGER. A Director would resign in that case. If an improper person is placed there, the minute that a Director finds that he is not a proper person, he could resign his position. He could retire and report to the stockholders that there is something wrong going on in that institution. I am satisfied that there should be something done with regard to these corporations, and the management of them. Take our mining affairs. Why, it is a disgrace to the civilization of the age. This is the rule in the Federal, State, and municipal governments, and if it is good in a municipal corporation, why should it not be in a private corporation. I would like my friend to answer the question. If the Treasurer in San Francisco is responsible for the men that he places there, why should not the Directors of a private corporation be responsible? Is there any good reason for it? REMARKS OF MR. BARBOUR. MR. BARBOUR. Mr. President: It appears to me that the proposition to strike out of the section, as reported, these words, is nothing more nor less than a bold, glaring attempt to permit the continued robbery of the people by those who are intrusted with funds which are placed in their hands, and under their control. The whole object and intent of this section, although it refers to all corporations, is aimed at those who are in charge, in trust of the funds of the people, put in their hands for the purpose of honestly administering that trust. Now, sir, what are they? What are your depositors in the savings banks? They are stockholders receiving their dividends, and the gentleman says that they have power to step in and remove the Directors. When do they have that opportunity? Why, sir, it is after the bank fails. That is when they find it out. That is when they meet. That is when the investigation is made. It is a plain proposition of fraud on the face of it to say that two, or three, or five depositors of a savings bank are supposed to be seeing the proceedings of that institution, watching every day, and calling meetings to displace Directors. It never happens until after the fraud is consummated. It is said that these good kind capitalists, these prudent men, won't go into these institutions, and won't accept this position. If that is the logical conclusion, I say let them go and let them disappear from the face of the earth. This country won't suffer. If they cannot be honest and go into these positions, let them go. The money will then go where it ought to go, into the development of the country instead of being put out for interest. It will go into manufactories. If you cannot stick it into a savings bank, and if you cannot get these eminently respectable gentlemen to take this position and handle the funds of the people, they will find other investments, and they ought to do it. If this continual stealing is to go on, it is better that they should be wiped off the face of the earth, and that the government should establish for the people a place to deposit their earnings, secured by the credit of the Government. That is what I hope to see done yet, and if we carry this amendment it will probably be the conse |