State of Minnesota, and to come into the Union on an equal footing with the original states, according to the Federal Constitution." The people referred to in this section were a somewhat more limited group than that mentioned in the title of the act; the area of the proposed state was much smaller than that of the territory. "The legal voters in each representative district then existing within the limits of the proposed state" were authorized to meet on Monday, June 1, "to elect two delegates for each representative to which said district shall be entitled according to the apportionment for representatives to the territorial legislature."70 The election was to be conducted as if it were an election of representatives. The delegates were to meet on the second Monday in July (13) at the territorial capitol and there, before transacting any other business, they were to "determine by a vote whether it [was] the wish of the proposed State to be admitted into the Union at that time." If the vote of the convention favored admission, then it was authorized to "proceed to form a constitution, and take all necessary steps for the establishment of a state government, in conformity with the Federal Constitution, subject to the approval and ratification of the people of the proposed State.""1

It finally devolved upon the convention, not the voters of the proposed state, to accept or reject a series of proposals, "which, if accepted by the convention, shall be obligatory on the United States, and upon the said State of Minnesota."2 These proposals were as follows: First, that sections sixteen and thirty-six, or their equivalents, in each township should be "granted to said State for the use of schools." Second, that seventy-two sections of land should be "set apart and reserved for the use and support of a state university," "to be appropriated and applied in such manner as the legislature of said State may prescribe, for the purpose aforesaid, but for no other purpose." Third, that ten sections of land should be granted to the state for completing public buildings or for erecting new ones. Fourth, that the salt springs in the state, not over twelve in number, with six sections of land contiguous to each, should be conferred upon the state to be used or disposed of as the legislature might direct. Fifth, that five per cent of the net proceeds of the sales of federal lands within the state were to be "paid to said State for the purpose of making public roads and internal improvements as the legislature shall direct."

The condition upon which these five propositions were offered was simply "that the said convention which shall form the constitution of said State shall provide, by a clause in said constitution, or an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil

70 Enabling act, sec. 3.

n Ibid.

T2 Ibid., sec. 5.

to bona fide purchasers thereof; and that no tax shall be imposed on lands belonging to the United States, and that in no case shall non-resident proprietors be taxed higher than residents."

8. SPECIAL SESSION OF THE LEGISLATURE, APRIL-MAY 1857. Immediately after the close of the regular legislative session of 1857, Governor Gorman departed for the east bound apparently for Washington on private business. In the absence of letters or of any printed record, the purposes of his journey must be left to conjecture.73 It is sufficient to know that it was while he was absent from the territory that he learned of the precise form in which the enabling act had been passed, of the extent and the nature of the railroad land grant, and of the action of Congress cutting off appropriations for the county sessions of the territorial district courts." The concurrence of these acts and the problems they raised created a situation which seemed to call for immediate legislative action by the territory.

It should be said that the organic act of the territory gave the governor no power to convene extraordinary sessions of the legislative assembly. In addition the act made clear provision that when the governor was outside the territory he ceased to have the powers of governor. The secretary became acting governor during any such period." These legal obstacles did not disturb Mr. Gorman, nor did the added fact that his term of office was so nearly at an end as to leave little doubt that a new governor would address any special session. The time was one demanding action. He decided to act. Under date of March 16, 1857, he sent a call to the legislative assembly to meet in special session in St. Paul on April 27." The purposes mentioned in the call were, first, to provide for the holding of courts, second, to arrange for the impending constitutional convention, and third, to carry out the provisions of the railroad land grant act by disposing of the lands.

76

The session opened under a cloud of doubt as to its validity. Committees were appointed in both houses to consider the question, and as the will to have a session was strong, it is not surprising that the decision was in favor of legality. Meanwhile the work had begun, but it dragged painfully for several weeks without accomplishments." The disposition of the railroad

78

It is of some interest to observe that Gorman left Minnesota as a recognized member of the east and west line faction, and that he returned a few weeks later convinced of the necessity of adopting Rice's boundary plan. His defection was almost the death blow of the east and west scheme. Dem. Deb., pp. 297-99; Rep. Deb. pp. 125-27.

14 Dem. Deb. p. 298.

Organic act, sec. 3.

TO As a matter of fact, Governor Medary arrived in the territory in time to read a message to the special session.

"Pioneer and Democrat, April 7, 1857. Gorman was probably in Washington when he issued the call. Dem. Deb., p. 298.

TB Council Journal, p. 3; House Journal, pp. 5, 19-22. The Daily Minnesotian of May 8, 1857, contains the house-committee report.

Daily Minnesotian, May 11, 1857.

lands, the most important business before the session, was also the principal source of difficulty. From the railroad routes designated in the land grant it was very clear that three existing corporations and one yet unformed had already been selected as the beneficiaries of the grant. This was very displeasing to other groups, who attempted in vain to bring about amendments acceptable to themselves. When this effort had spent itself the legislature proceeded to pass the bills, which were subsequently enacted as one law, conferring the lands upon the four corporations.80

During the slow process of settling the railroad question, a bill was introduced and passed in the House to provide for the expenses of the constitutional convention.81 It went at once to the council where it was given a preliminary discussion and referred to a select committee of three.82 As reported out of this committee, the bill had been enlarged by the insertion of sections 1, 2, and 7 of the act finally passed. Section I was a reenactment of that portion of the enabling act which fixed June I as the date of the election, but there was one significant difference.83 The enabling act provided that "the legal voters in each Representative District, then existing within the limits of the proposed State" were to do the electing; the territorial act made provision that "the qualified electors of the Territory of Minnesota" should assemble to elect delegates. The enabling act would have excluded voters not resident within the proposed state; the other let them in.84 Section 2 embodied the same and another idea not contained in the enabling act. It read as follows: "Every Council District in this Territory shall elect two Delegates for every Councillor it may be entitled to in the Legislative Council, and every Representative District shall elect two Delegates for every member they may be entitled to in the House of Representatives," with a proviso as to subdivisions of districts. Delegate Rice, who drafted the enabling act, knew the government of Minnesota territory and was undoubtedly aware of the meanings of the terms "representative district" and "representative" where he used them. It was argued in the territory, on the other hand, that there was ambiguity in the language. The will to have a large convention

80 Folwell, The Five Million Loan, in Minn. Hist. Col., 15:189-93; see also Welles, Autobiography, 2:66-68.

81 House Journal, May 6, 1857, p. 24; ibid., May 11, p. 31. The bill is recorded first as H. R. 4, but is later referred to as H. R. 3.

82 Council Journal, pp. 20, 23.

8 Ibid., p. 30; enabling act, sec. 3.

8 Why, it may be asked, did the council desire this change? The explanation seems to be that the majority in the council were Democrats, that the seventh or Pembina district was safely Democratic, and that if the enabling act were to be carried out in letter and in spirit, it would be necessary to cut down the Pembina representation, since most of the population in that district was outside the proposed state. To reduce the representation from Pembina, or to eliminate it entirely, would seriously endanger Democratic chances to control the constitutional convention. The change made by the council in the house bill was not, however, fully understood by the Republicans in either house.

finally overcame any doubts in the premises.85 "Representative" was held to be a generic term, and to include all "representatives" of the people, both councillors and representatives in the narrower sense. The number of delegates was thus increased from the seventy-eight apparently provided for, being twice thirty-nine, to one hundred and eight, or seventy-eight plus twice fifteen.86 Section 7, also added in the council committee, made the act effective from and after its passage. The council passed the bill as amended on May 22, 1857. St. A. D. Balcombe, Republican leader, alone voted against its provisions. The same day the house concurred in the council amendments without a record vote. On May 25 the governor signed the bill. This was just one week before the election for delegates to the convention.87

The validity of this act, in several particulars, is a matter open to the most serious dispute. In the first place it is open to question whether the session itself in which the act was passed, had any legal existence. There seems to have been no authority for calling it; yet it should be observed that Governor Gorman called it, Governor Medary recognized it, both houses agreed on the question of legality, the people never objected to what was done, and Congress took no action to rescind its pretended acts of legislation. The entire legislative output of the session was, in effect, ratified by Congress through its inaction.88 Granting that the session itself was legal, it can hardly be denied that the provisions of the act now under consideration which related to paying the expenses of the convention were also valid.89 Congress had authorized the holding of the convention but had made no provision for its expenses. While the convention might well have made this provision for itself, the legislative assembly was probably also empowered to do so under the power to pass laws on “all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this [the organic] act."90 As to those clauses, however, which dealt with the area in which the elections were to be held and the number and the qualifications of the delegates to the convention, grave doubts may be expressed. The enabling act had covered all of these subjects more or less completely and was selfexecuting. Insofar, therefore, as the territorial act conflicted with the enabling act in these matters, the latter was unquestionably supreme law. To the

The practice in the northwest had favored constitutional conventions of moderate size. Iowa in 1844 had seventy-three delegates in her convention; in 1846 thirty-two; and in 1857 thirty-six. Wisconsin in 1846 had one hundred and twenty-five, and in 1847 sixty-nine. There was some jesting in Minnesota over the "multitude" who were to participate in the convention,

It is a fact not easy to explain that the Republican majority in the lower house of the legislative assembly seemingly favored the smaller number, while the Democratic majority in the council favored the larger number, with separate representation for council districts.

87 Council Journal, p. 56; House Journal, pp. 80, 90, 93.

88 Organic act, sec. 6. "All laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect." That is to say, secs. 3, 4, and 5 of the territorial act.

90 Organic act, sec. 6.

1 Sections 1, 2, and 6 of the territorial act.

extent that the territorial act merely interpreted the enabling act without changing it, the former was mere superfluity. The enabling act was complete in itself and required no legislation by the territorial authorities to carry it into effect, and perhaps not even to provide funds for the expenses of the convention.

All questions of legality aside, it is quite apparent that the Republican majority in the house of the territorial legislative assembly inserted section 6, prescribing a disqualification of federal appointees and commission holders from membership in the convention, in order to exclude some of the leading Democrats of the territory from standing for election, since the Democrats were the office-holding party at the time. On the other hand, the Democratic majority in the council, as has already been said, inserted sections I and 2 very probably from some supposed advantage to their party. On the eve of the great step from a dependent territorial status to full statehood in the Union, petty political considerations still ruled the day.93

92 Cf. remarks by Coggswell and others in Rep. Deb., pp. 48-51. Some of the Republican members of the constitutional convention seem to have doubted the existence of this act.

The capital removal bill, which had passed in such an extraordinary manner in the previous session, was not seriously revived at the special session. Either its friends planned to take their stand on the legality of their former act, or else they knew that, with Gorman no longer governor of the territory, their chances of passing the bill in a more regular manner were gone.