Wednesday,]

JOHNSON-NOURSE-EARL-DELONG.

[July 6.

The question was taken, and on a division, the amendment was not agreed to-ayes, 9noes, 14.

The CHAIRMAN. There is one matter here, in regard to which I desire to make a remark, and it is a matter which I discussed and thought of much in the previous Convention. This section seems to establish a different rule for the passage of a law than is contemplated in other parts of the Constitution, and I suggest whether it would not be well to have uniformity in that respect. The Legislature, by a twothirds vote, may over-ride the veto of the Governor, and it occurs to me that this provision, allowing the Legislature, by a two-thirds vote, to make the change, would differ with the general system adopted for the passage of laws by the Legislature.

person charged with a small offense, as assault was disposed to place on this provision-a litand battery, for example, has no right to waive tle out of place, perhaps, when occupying the a jury, even though he may be willing to plead Chair-was intended to obviate any difficulty guilty to the offense. Therefore I offer the which might possibly arise hereafter, in view amendment with a view to expedite the admin- of differences of opinion in this body. Now, as istration of justice. I understand the gentleman from Storey, (Mr. DeLong,) he contends that such an enactment would require the approval of the Governor, or if not so approved, would need a two-third vote of the Legislature to pass it over his veto. And my other friend from Storey, (Mr. Earl,) seems to entertain a different opinion. It is for this reason that I now call the attention of the Convention to the subject. I want the language so framed that there can be no possible misconception as to what we do mean. Here are two diverse views, or constructions, given by members of this body-and to my mind, that fact is suggestive of the great need of changing the language of the section in such manner that our views may be harmonized, so that hereafter there may exist no misconception of our meaning. Now, sir, I differ entirely with the gentleman from Storey who last spoke to this question, in the construction he has given to this proviso. As a proposition of law, it must be conceded that it is competent for this body to lodge the law-making power solely in the Legislative branch of the Government; and if we possess this unlimited power, is it not most assuredly within the province of the Convention to confer on them a part of this authority? Most assuredly so.

Mr. NOURSE. If it is passed by a two-thirds vote originally, then of course, if it is vetoed, the Legislature will pass it again.

The CHAIRMAN. But it might happen that the bill would pass by a two-thirds vote, and then after it is vetoed it might not receive a two-third vote. The question is, then, under the language of the proviso, would the bill, notwithstanding, become a law? It seems to me that it will be better to give a definite meaning and construction to our labors, as we progress, so that if hereafter any question should arise, it may be determined by a reference to the reported Debates and Proceedings of the Convention.

Mr. EARL. I understand, from the reading of the section, that a two-thirds vote of the Legislature is all-sufficient to make the change. Mr. DELONG. I think that the plain construction of the article is, that the bill shall be passed by two-thirds of the Legislature before it can become a law by the signature of the Governor, and then it must be signed by the Governor and returned in order to become a law. In any event, if the Governor should veto it and return it, although it is passed by a two-thirds vote of the Legislature, it could not be contended that it became a law unless it was again passed by a two-thirds vote, over the Governor's veto. For instance-in order that I may be clearly understood-if it is passed by a majority vote, and approved by the Governor, it is not a law that would affect a change in the jury system. It must be passed, in the first place, by a two-thirds vote of the Legislature, and then it is immaterial whether it is approved by the Governor or not, because if it is returned with his veto, the same vote can pass it again, and it becomes a law over his veto. That is my construction.

Mr. DELONG. If the Chair will excuse the interruption, I will ask if this amendment will remove the doubt, to insert after the word " Legislature," the words, "by a law passed;" so that the proviso will read :

Provided, The Legislature, by a law passed by a twothirds vote of each branch thereof, may require a unanimous verdict, notwithstanding this provision.

Mr. JOHNSON. Any words will do, that will render definite our meaning. If we require it to be done by an act requiring the same formalities that are observed in reference to other laws, then let us express it in such language as shall leave it certain. That is all I desire. I do not suppose it was the intention of the Convention to bestow the power solely on the Legislature. I think the amendment of the gentleman from Storey will obviate all difficulty. I have no objection to the section, as it is proposed. I know that the reasons urged, in the late Convention, for the incorporation of this proviso, were, that it might possibly be found, being but an experiment, unadvisable to retain the three-fourths verdict clause, and that power should be lodged somewhere, otherwise than in the general mode pointed out for amendments to the Constitution, to reenact the old rule of requiring a unanimous verdict. It was thought that the experiment might prove a failure, and if so, then the requisite two-thirds vote of the Legislature could be readily obtained to effect the change. Something has Mr. JOHNSON. The construction which I been said about a majority; but that having

[Mr. CHAPIN in the Chair.]

Wednesday,] COLLINS-DELONG-BANKS--BROSNAN-PROCTOR-NOURSE-FITCH.

[The PRESIDENT in the Chair.] The question was stated on Mr. DeLong's amendment, to insert the words, "by a law passed," and the amendment was agreed to. Mr. COLLINS. I desire to offer a mere Mr. PROCTOR. I have an amendment to verbal alteration. I move that between the offer. I move to add to the section these words "jury," and "agree," be inserted, by words: "and then only by the Legislature, who way of amendment, the word "shall," so as to shall be the judges of that necessity." read, "if three-fourths of the jury shall agree Several voices-" No, no!" upon the verdict." I think the propriety of the amendment will suggest itself to every

SEC. 6. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel nor unusual punThe question was taken, and the motion was ishment be inflicted, nor shall witnesses be unreasonagreed to. ably detained.

FITCH-PROCTOR-DELONG-NOURSE-BANKS-JOHNSON.

Mr. FITCH. Oh! I did not know; I simply how it might be "tendered." I will move to inquired for information. There might possibly amend, so that it will read "made, secured, or be naval forces over in Humboldt or Lander, tendered." somewhere. [Laughter.]

Wednesday,]

DELONG-NOURSE-HAWLEY.

[July 6.

property under the right called "eminent domain," which exists in the Government-the right to condemn property for public use in case an individual refuses to sell or give possession of it.

We had an illustration of this subject in California, in the case of the grounds around the State Prison. Estell and the old managers of that concern had succeeded in selling to the Government a tract of land encircled within an area of land owned by themselves, which they had reserved from the sale. They then built the walls of the prison partly on the Government property and partly on their own, and having got what they wanted, what did they do but set to work and enjoin the Government, and they refused to allow a thing to be done till compensation was first made. A tender of a reasonable amount did not relieve the matter, and everything had to be held in abeyance, until finally the State was compelled to submit to all the exactions of those men. Not a thing could be done upon the work until such time as a jury could assess and award the damages and those men were satisfied. I should not like to see the State of Nevada get into such a fix as that, and I think that when tender is made, if the party refuses to take it, the State should be allowed to go on and use the property the same as one man might that of another in certain cases. The party could then bring his action, if the case is that of a municipal corporation, or the like, or his claim before the Legislature for relief, if his property has been taken by the State, and then justice could be done.

the President, in this. In passing that resolu- | Perhaps the Government agents and the owner tion adopting the Constitution of the United cannot agree, and they have to condemn the States, we did not adopt the Constitution of the United States as our Constitution. All we did by that act was simply this: we adopted it so far as to make it the paramount law of the land-so far as to signify our willingness that in case there should be anything in our Constitution which conflicts with the Constitution of the United States, then our Constitution shall yield, and the Constitution of the United States shall govern. But to say that we adopt it as our Constitution, would be incorrect. We have no right to adopt anything at all as our State Constitution, but only to prepare a Constitution to submit to the people. But that Constitution must not be at variance with the Constitution of the United States, which says that private property shall not be taken for public use without just compensation therefor. We can easily imagine a case, when in time of war or public peril, or even in time of peace, there may arise a necessity for the appropriation of private property for public purposes-a case which may happen unforeseen; as, for instance, the taking of building lots on the line of streets in a city, for the purpose of a public improvement, which would benefit not only the public, but even the owners themselves. The owners of such lots, conceiving that they had an advantage, might stubbornly refuse to sell without receiving an immense compensation, entirely inordinate in its amount. In such a case I think it would be a sufficient guarantee of the man's rights, if he would take such an advantage of the public necessities, to have the money-an amount sufficient to be a fair compensation-tendered to him. Then, if he refuses to accept the tender, what is the result? He brings his suit, or presents his bill for relief from the State, and the jury, or the Legislature, as the case may be, will assess and determine the value of the property, and if they find that he was tendered as much as it was worth, he will be obliged to take the money and pay all the costs; and if they find that the tender was too little, they will award him the additional amount, and the costs with it. I think there is more danger of an individual taking advantage of the Government when he has an opportunity, than of the Government taking advantage of an individual. I can see nothing in conflict with the language we propose to use, in the Constitution of the United States.

Mr. NOURSE. It seems to me that the insertion of the word "tendered" will not remedy the fault which the gentleman seeks to remedy; if it is made to read, "made, secured, or tendered," then the question would be, what would be considered a good tender? Would it be sufficient to tender a certain amount for an unascertained debt? And if the tender is good before the amount is ascertained, then you could give security before the amount is ascertained. But my impression is that we cannot provide for giving security, nor for a tender, until the amount is ascertained to be tendered, or to be secured. I do not think we can improve the wording of the Constitution of the United States in this matter, upon which laws have been based, and upon which decisions have so often been rendered. I should rather trust to that wording than to make a new wording, and for that reason I am in favor of retaining the language as it is in the Consti

I think there is a case in Peters' Reports in which the same decision was made as has been made in California-that the compensation had to be made first, before the property could be taken. Now, if that is the case, how does it work? Why, public improvement is stopped-tution of the United States. all work is stopped by some dog-in-the-manger, who cannot himself eat, and is bound not to let others eat if he can prevent it. He cannot eat the property, and he will not let the Government have it until they first make compensation. Now a tender is not compensation.

Mr. HAWLEY. I would merely remark, to use the language of common pleading, that the amendment offered by the gentleman from Storey, (Mr. DeLong), is, to say the least, vague, unintelligible, and uncertain. For if we provide that no property shall be taken for

Wednesday,]

JOHNSON-NOURSE-BANKS-DELONG.

public use unless just compensation has been first "made, tendered, or secured," we leave the question open as to who that tender is to be made by. That matter, I think, could more appropriately be attended to by the Legislature. The language proposed does not settle the question at all, and I think myself we could hardly employ any better language by which the Legislature is to be governed in this matter than that of the Constitution of the United States. Therefore, I hope that the words "having been first made or secured." will be stricken out, and I will move to add instead, these words:

And the Legislature of the State of Nevada, at its first regular session, shall prescribe the means by and the terms on which private property shall be taken for public use.

Mr. NOURSE. I would like to hear that

[July 6.

any of the amendments proposed, is entirely unnecessary and useless.

At some proper time, if no other member proposes the amendment, or if it is not already pending among the multifarious amendments now before the Committee, I will move to strike out that which follows the word "compensation," and leave the subject as we find it in the Constitution of the United States, thereby reserving it as a matter of judicial construction, as it undoubtedly must be, whatever words we may employ in this instrument. I hope all the amendments will be voted down, and that action will be taken by the Convention which will be consistent with its previous action,-that we shall do nothing which is obviously in conflict with the Constitution of the United States.

The question was taken on the amendment amendment again. If it covers the ground, I proposed by Mr. Hawley, and it was not agreed will accept it.

to.

The question was next taken on the amendment offered by Mr. Nourse, and it was not agreed to.

The SECRETARY read the amendment. Mr. JOHNSON. From all I have heard, I am constrained still to entertain the same views which I have before presented to the Committee. Now, sir, I recognize the public necessity which exists, in many cases, for the taking of private property for public use. know that instances of such necessity occur frequently in our Territory. But my objection goes further. As I before said. if this clause means more than the Constitution of the United States implies, we have no right to put it there. To us is not given the power of amending the Constitution of the United States; such is not the purpose for which we are convened. I repeat, that if the clause is meaningless, it is unnecessary to place it there. We ought not to cumber our fundamental law with meaningless and useless verbiage. My proposition is this, that if the Constitution of the United States does not give to the public authorities, municipal or State, the power of taking private property for their own use without first making compensation, then it is not competent for this Convention to interpolate words in the State Constitution which will give them the power of doing so by securing the payment of the valuation of such property. It is giving a judicial construction not intended. By interpolating these words in our Constitution, we assume authority which legitimately belongs to the judicial power. We have already declared that the Constitution of the United States is the supreme law of the land, and if it is para- Mr. DELONG. The Constitution is inopmount, as we have already enunciated, if it ex-erative of itself, until there is legislation; it ceeds in jurisdictional power the Constitution looks to legislation. If, under such a Constiwe are proceeding to frame, then, unquestion- tutional clause, the Legislature goes on and ably, whenever the question arises in the courts, says that private property may be taken legitthey will have to give such construction as will imately for public use, on the tender or payconform with the Federal Constitution. If the ment of compensation, all the Supreme Court Constitution of the United States conflicts with has to do is, to examine and see whether there the Constitution of the State, the latter must is a conflict or not between the legislative enyield. In that view I do conceive that the actment and the Constitutional provision. adoption of the amendment proposed, or of think there is not. And I think we would be

Mr. NOURSE. I wish now to renew my motion to amend the section, by striking out the words, "having been first made or secured," and all thereafter; making the provision exactIly like that in the Constitution of the United States.

Mr. BANKS. I am convinced that we are compelled to take that course, much as I might desire to insert the other words here incorporated. I am satisfied it will be better to avoid litigation, by adopting the language of the Constitution of the United States, which bas been passed upon in the State of California, the decision there being to the effect that compensation must be made before the citizen can be divested of his property right. That is to say that A, B, C, and all the rest of the twentysix letters, can each of them hold on to his property until the compensation is made. Now suppose we in this Constitution say that if compensation is secured, that is sufficient-will not there then be clearly a conflict between the Constitution of the State of Nevada, and that of the United States? The latter would say that a citizen shall not be deprived of his property until a certain thing is done, and the former would say that he may be deprived of it, when something short of that thing is done. There will plainly be a conflict, and at the very least, the provision would be more injurious than beneficial.

I