MR. HOWARD, of Los Angeles. Mr. President: I hope the amendment proposed by the gentleman from Marin will be adopted, and I congratulate him in coming back to the good old States' rights doctrine. MR. SHAFTER. I wish to withdraw the amendment. [Laughter.] MR. HOWARD. I object to its being withdrawn. We have got him on our secession side, and I propose to hold him. I am in favor of the amendment, because, according to what I think is a tolerably well settled construction of the Constitution of the United States, nothing is lawful money but gold and silver. That was settled at a very early date. It is true that the Supreme Court have since waltzed around a little, but they did it on the ground that greenbacks was a war measure, and they have never decided that it was money, except as a war measure, and that was also the decision of the Supreme Court of this State; and therefore, as gold and silver are the only legal money of the United States, and, of course, the only legal money of this State, as the great producers of gold and silver, it is clearly our interest to keep them in circulation as currency. I am glad my friend from Marin has come over, and I will give him the fraternal embrace of secession. MR. SHAFTER. Mr. President: I ask for the ayes and noes upon this proposition. The words "the lawful money of the United States" includes gold, silver, and greenbacks, and when this Convention struck that out they did it for a purpose. The gentleman who moved it did it for a purpose, and I do not choose to let that purpose go unchallenged. Here are these words, "make, issue, and put in circulation." To make is one thing, to issue is another, and to put in circulation is another still. The words are used ex industria. My friend from Santa Clara is utterly in error in his construction of it. The whole world would understand that when we struck out the words "except the lawful money of the United States," it was done for the purpose of disparaging the greenback currency, and could not be done with any other object. With these views I call for the ayes and noes. The ayes and noes were also demanded by Messrs. Jones, Evey, Cross, and Wyatt. The roll was called, and the amendment adopted by the following vote: AYES. Hitchcock, Heiskell, Neunaber, Beerstecher, THE PRESIDENT. The question recurs on concurring with the Com- Belcher, mittee of the Whole in the amendment. Howard, of Los Angeles, Shafter, Howard, of Mariposa, The amendment was concurred in. Bell, Huestis, Ringgold, Rolfe, Schell, Schomp, Shurtleff, Smith, of Santa Clara, Hughey, THE PRESIDENT. The Secretary will read the amendment pro- Blackmer, posed by the Committee of the Whole, to section five. Inman, Boucher, Jones, THE SECRETARY read: Burt, Joyce, Smith, of 4th District, Soule, Steele, Kenny, Keyes, Chapman, Kleine, Stevenson, Lampson, Cowden, Larue, Swenson, "SEC. 5. The Legislature shall have no power to pass any Act granting any charter for banking purposes, but corporations or associations may be formed for such purposes under general laws; but no corporation, association, or individual shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money." MR. SHAFTER. Mr. President: I offer an amendment to that. "Strike out all after 'circulation,' in line four, and insert, 'as money, anything but the lawful money of the United States.'" Van Voorhies, Walker, of Marin, Walker, of Tuolumne, Waters, Lindow, Mansfield, Tully, Martin, of Alameda, Turner, Martin, of Santa Cruz, Tuttle, McCallum, Vacquerel, McConnell, McFarland, McNutt, Miller, Mills, Webster, Morse, Weller, Nason, Wellin, MR. SHAFTER. Mr. President: It is with very great reluctance that I offer this amendment. It is addressed partly to that portion of the Confederacy called the City and County of San Francisco, and partly to that portion of the Confederacy of the State of California exclusive of that city. The original section contained a provision that the banks might put in circulation the lawful money of the United States; but this section, as it is now proposed, prohibits the banks of this State from putting in circulation the lawful money of the United States; that is, the paper currency of the United States. For one I desire to see this State use the . money of the United States Government, issued under the Constitution and laws of that Confederacy, as lawful money. I think we should do the United States Government the courtesy of using its money until we entirely separate from them in business matters and commercial interests. If it was a nation, we might be under different circumstances. MR. LAINE. Mr. President: It seems to me that the amendment is somewhat ridiculous. No bank of this State issues the money of the United States, nor does it put it into circulation; the Government does that; but it circulates it after the Government has put it into circulation. MR. JOHNSON. Mr. President: I hope this amendment that is proposed by the gentleman from Marin will not be adopted, because it will entail upon us the difficulty suggested by the gentleman from Santa Clara. We cannot make the lawful money of the United States. The difficulty recurs by retaining the word "make." I am fully in sympathy with the idea in the argument of the gentleman from Marin, and therefore I am in favor of the substitute which was adopted by the THE PRESIDENT. The question recurs on concurring in the amendCommittee of the Whole. Now, that substitute eliminates the objection-ment of the committee as amended. able matter, and is as follows: Concurred in. Andrews, Reed, "SEC. 5. The Legislature shall have no power to pass any Act THE PRESIDENT. The Secretary will read the amendment progranting any special charter for banking purposes, but corporations or posed by the Committee of the Whole to section six. associations may be formed for such purposes under general laws; but no corporation or association shall make, issue, or put in circulation any bill, check, ticket, certificate, promissory note, or other paper, to circulate as money in this State, except the lawful money of the United States." Now, sir, under the laws of the United States, we circulate the money of the United States. It is not necessary to say anything about that. It is a part of the law of California, and therefore I say that this amendment should not be adopted; and if it is not, I would like to offer a substitute when it is in order. THE SECRETARY read: "SEC. 6. All special or exclusive privileges, whether claimed by general laws or by special grants, shall have no validity, unless such claim for special or exclusive privilege shall have been appropriated, by occupancy and organization, and business commenced in good faith, before the adoption of this Constitution." MR. HERRINGTON. I have a substitute to offer. "SEC. 6. All existing charters, franchises, and special or exclusive privileges, whether claimed under general laws or special grants, shall have no validity, unless such special or exclusive privileges and franchises shall be appropriated and exercised by the grantees thereof, and organization and business under said charters, laws, and grants commenced in good faith before this Constitution takes effect." REMARKS OF MR. HERRINGTON. MR. HERRINGTON. Mr. President and gentlemen of the Convention: I call attention to the peculiar wording of this section six, as amended in Committee of the Whole upon the motion of the gentleman from Marin, Mr. Shafter: "SEC. 6. All special or exclusive privileges, whether claimed by general laws or by special grants, shall have no validity, unless such claim for special or exclusive privilege shall have been appropriated by Occupancy and organization and business commenced in good faith, before the adoption of this Constitution." as the Constitution is silent with reference to them. This is a point which has been so frequently presented to this Convention and go undisputed, that it would seem to be unnecessary to consume time in arguing it here. I submit that if we adopt the section as it is we will have done great harm. If we adopt it with this saving clause I think we will have accomplished much good. MR. ESTEE. Mr. President: It strikes me that there is no end to human endurance. The idea of putting something into this Constitution stating that this section shall not be construed to legalize that which is already illegal or invalid. I do not propose to discuss the question, but the necessity for such a provision, it strikes me, is entirely beyond the comprehension of a lawyer, and I am amazed that the gentleman should have presented it. MR. HOWARD, of Los Angeles. Mr. President: I am also opposed to it, because, according to the newspapers, the public are sufficiently disposed to make fun of us now, and they would have just ground to do it if we should adopt this. MR. WATERS. Mr. President: I think the idea sought to be arrived should read in this wise: "but this shall not revive lapsed or forfeited franchises." I think we ought to say that the franchises that have already lapsed should not be revived by this. The franchises may be legal, but they are lapsed, they are forfeited. They are legal in the first place. Now, saying that they are illegal is a contradiction of terms, but if we should say, directly, that this shall not be construed to revive lapsed or forfeited franchises, then I think we should express our intention. That is an amendment I desire to offer. It leaves out, Mr. President, "charters" which ought to be in there. The latter clause says: "before the adoption of this Constitution." In myat is a good one, but he has it in the wrong language. The amendment judgment it ought to be, when this Constitution takes effect. It will give timely and ample notice to the parties, that they must commence their operations and be organized at that time. By the time we are through our business here we will have, perhaps, reached the first of March. It will only be two months until the first of May, and if this Constitution is adopted the first of May, there will be numbers that are perhaps interested in franchise and in charters of corporations that will perhaps not be aware even of the provisions of this Constitution requiring any such organization to be entered upon, or any such occu- MR. WINANS. Mr. President: It appears to me that the fundapancy to be made. Many of them, perhaps, may not be apprised of it mental objection to the proposed amendment is this: If this doctrine is even within a week of the time that they would be called upon to vote to be accepted that the expression of one is the exclusion of the other as upon the provisions of this Constitution. I think, therefore, that the regards this section, the evil is aggravated to a fearful extent by the substitute ought to be adopted, as avoiding the possible and almost cer- application of the same doctrine to the whole Constitution. By asserting tain difficulty that will arise from the working of this section as pre-in this section that it is not to be construed to legalize what is otherwise sented by the gentleman from Marin. Undoubtedly the clause that fol- invalid, you declare in regard to the rest of the Constitution that it is lows has reference to the word "claim," and does not have reference to intended to legalize what is otherwise invalid. the special grants and privileges that are mentioned in the first part of the section. I am satisfied that it was intended to have it refer to the special grants and privileges, but it does not so refer. REMARKS OF MR. SHAFTER. MR. SHAFTER. Mr. President: This was drawn in very great haste, indeed, for the purpose of preventing, according to the supposed idea of the Convention at that time, an idea very preferable to that in the original section itself. If the section itself, as it stands, is subject to the exception made, it can all be remedied by striking out the words "claim for." But the real point of the gentleman from Santa Clara, Mr. Herrington, is as regards the time that this is to operate. This amendment proposed by me was the result of the discussion upon that question at that time. There were several gentlemen from the mining districts commented upon the propriety of the time at which these claims ought to be perfected, and advocated a brief period of time. That is a question of expediency. The object is to cut off these spurious organizations that do not intend to do anything. The time is a matter of judgment upon which other gentlemen are better informed than I am. Certainly a brief time should be allowed to perfect these claims. There are a vast number where nothing at all has been done, except to organize, and perhaps to collect the first ten per cent. The quicker they are terminated the better. However, it is a question to be submitted to the discretion of this body. I think as it is, it will be a sufficient notification to these people to go to work and close up these corporations; either disincorporate and go out of that form of business, or else go on with the commencement of business. THE PRESIDENT. The question is on the adoption of the amend- The roll was called, and the amendment adopted by the following vote: THE PRESIDENT. The question is on the adoption of the substitute of the amendment offered by the gentleman from Santa Clara, Mr. Herrington. The Secretary will read it. Ayers, THE SECRETARY read: Brown, "All existing charters, franchises, and special or exclusive privileges, whether claimed by general laws or special grants, shall have no validCaples, ity, unless such special or exclusive privileges, charters, or franchises Charles, shall be appropriated and exercised by the grantees thereof, and organ-Crouch, ized business under said charters, laws, or grants commenced in connec-Davis, nection with them before this Constitution takes effect." Dunlap, The amendment was rejected on a division, by a vote of 36 ayes to 61 Estee, MR. MCCALLUM. Mr. President: This is a question which was presented in Committee of the Whole, and received very little attention there. I believe it was not discussed, although I think it may have been referred to. But I submit that it is no question of mere phraseology. In this case we can trust something to the Committee on Revision. Now, I ask the attention of the Convention to the reading of the section as it stands: "SEC. 6. All special or exclusive privileges, whether claimed by general laws or by special grants, shall have no validity, unless such claim for special or exclusive privilege shall have been appropriated, by Occupancy and organization, and business commenced in good faith, before the adoption of this Constitution." Now, as regards those which have been so appropriated, the assertion of the one is the exclusion of the other, and the point is that by declaring that those in which there has not been an appropriation, by occupancy and organization, shall have no validity, all others are made legal, Hitchcock, McCallum, Laine, Lewis, NOES. Schomp, Stuart, Swenson, Martin, of Alameda, Swing, H Miller, Rhodes, Howard, of Los Angeles, Reynolds, Tinnin. West, Wilson, of Tehama, Mr. President-58. to. Now, I wish to say that it is quite unnecessary to incumber this section in this way. Now, does it not read correctly in connection with the other amendment? I make this objection, because I think that it is highly unwise for this Convention to amend a section that has gone through the deliberation of the Committee of the Whole, unless it meets some clear, distinctive, marked evil, so clear, positive, and well known that we cannot be mistaken. Now, the amendment that has already been adopted certainly accomplishes whatever is sought by this, which I think amounts to nothing. But it has been adopted, and when you read the amendment of the gentleman from San Bernardino in connection with the amendment that has already been adopted, it does not make sense. REMARKS OF MR. WATERS. MR. WATERS. Mr. President: Now, this section as it originally stood in Committee of the Whole, would have the effect of reviving every old franchise that has lapsed or become forfeited. That was the known result of it at the time it was adopted. But it was adopted hastily, and any gentleman who recollects the circumstances will know it. Now, all I propose to try to do is to place this language so that it cannot bear that construction. The amendment offered by the gentleman from Alameda does not cover it. The language which he proposes to insert is so that it shall not legalize franchises which were illegal in their incipiency. I propose that these lapsed or forfeited franchises shall not be revived even though they were legal in the first place. Now, that is the object. If it is not expressed in clear language I would recommend that the gentleman from San Francisco be placed upon the Revision Committee, and then he can make it conform to the rest of the section. We can leave that to the Revision Committee. But I would ask leave to insert the word "nor" instead of the word "but." concur in the report of the Committee of the Whole, because I do not REMARKS OF MR. ESTEE. MR. ESTEE. Mr. President: I think that the gentleman from San THE PRESIDENT. If there be no objection the word will be changed. Committee of the Whole is better than it is as it now stands, and I am Francisco, Mr. Barbour, is right. I think the section reported by the The Chair hears none. REMARKS OF MR. SHAFTER. MR. SHAFTER. Mr. President: I dissent utterly from the law of the gentleman from Alameda, and the gentleman from San Bernardino. I say that the rule cited does not apply here at all. They are entirely mistaken upon that point, and I defy the gentleman to point to a solitary case that bears him out. I admit that where a man sits down and undertakes to enumerate something that he is going to sell, that the enumeration of some things excludes others that he may have forgotten to insert. Here is a declaration that a certain class of claims shall not be valid unless certain acts are done before a given time, and I deny that the principle referred to has any application. You are cluttering up the section without doing any good. Both amendments fall under the same principle. I hope that this last amendment will not be adopted, and that the other will be stricken out when we get into the MR. CROSS. Mr. President: I desire to offer an amendment which reads as follows: "The section as it was now amended by adding: Nothing in this section shall be so construed as to interfere with the business of the day of judgment, or raise the dead."" [Laughter.] next stage of the bill. REMARKS OF MR. MCCALLUM. of the opinion that the original section as reported by the Committee on Corporations other than Municipal, is far preferable to the section as it now stands, as amended by this Convention and in the Committee of the Whole. REMARKS OF MR. WINANS. MR. WINANS. Mr. President: It is difficult to see wherein the sub stitute for section six is an improvement upon the original. It certainly is narrower and more limited in its scope, and fails therefore to reach the entire extent of the evil sought to be guarded against. Furthermore, as it now reads, it says: Unless such privilege shall have been appropriated by occupancy." Now, how are you to occupy a privilege? I think the language is entirely defective in expressing a sound and sensible idea. It was not so as it emanated from the hands of the honorable member from Marin, but by the amendment. The original section reported by the committee is far more extensive in scope; far more general in application; far more capable of running into all the varieties and conditions of the subject, and reaching all that character of grants, charters and franchises which lies latent now for want of use, although it has been made the subject of legislative grant. For that reason I am in favor of the original section as reported by the committee. REMARKS OF MR. BROWN. MR. MCCALLUM. Mr. President: I understood the gentleman, whom I believe is the author of this section six, to state in the forepart of the discussion that he had been unable to give much attention to it, and had drawn it in haste. Its language bears evidence of that fact, although I admit that, so far as the affirmative principle of it is concerned, it expresses the object sufficiently. I now say that not only under that rule which has been referred to, that the including of the one excludes the other, but on account of the peculiar phraseology it is plainly implied in this section. I submit that I read it correctly when I say that it amounts to this-that they shall have no validity unless in certain cases. In the other cases they have validity. Now, the point made by the gentleman from San Bernardino is one of the points I seek to accomplish, and I suppose is accomplished. I have no objection except to the use of so many more words in adding that to it. My judgment is that the language of the amendment which has been adopted would cover it; and yet, if there is any danger whatever, inas-inally introduced by the Committee on Corporations. much as the amendment of the gentleman occupies but little space, I do not see any particular reason why it should not be adopted. As to the criticism of the gentleman from San Francisco, Mr. Estee, if he could have thought of the single word "nor," as has been inserted, he would have found that it would read perfectly simple, as it now is provided that the amendment should be adopted. I have no objection to the amendment, myself, and I am not sure that it is really necessary, but if there is any doubt I shall vote for it. MR. BROWN. Mr. President: The gentleman from San Francisco, who has just been upon the floor, has said, that it is very difficult to see how the substitute is any improvement upon the report of the Committee on Corporations. I would add that it is impossible to see any improvement upon it; and I am happy in this case to agree with the three gentlemen from San Francisco upon this subject. I am convinced that the substitute here has been so amended and changed and beclouded, that it is out of the question for it to subserve any good purBut it appears to me that section six as it was originally reported by pose, and may in certain respects be very mischievous in its effects. the committee is clear, full, forcible, and explicit, and it covers the ground that was intended; whereas the other, by various changes, does not even read well, and is far from the object of a majority of this committee. I am therefore in hopes that section six will pass as orig THE PRESIDENT. The question is on the adoption of the amendment offered by the gentleman from San Bernardino, Mr. Waters. The amendment was rejected. MR. HERRINGTON. Mr. President: If the Committee on Revision and Adjustment has the power to adjust the section by striking out words and changing the sense of it, I do not desire to offer this amendment; but unless they possess that power I desire to move to strike out the words "claim for." THE PRESIDENT. comes up. The chair will decide that question when it MR. HERRINGTON. Then offer that amendment. "Strike out the words claim for,' in the second line." THE PRESIDENT. The question is on concurring- MR. HALE. Mr. President: I would inquire whether it would be competent for us at another stage of proceeding to strike out the amendment which has been made now in Convention to the section as it came from the Committee of the Whole. THE PRESIDENT. The article will be subject to amendment after its second reading. REMARKS OF MR. HALE. MR. HALE. Mr. President: Then I hope that section six, as reported by the Committee of the Whole, will not be voted down; it is preferable to the original section in this. If I am not mistaken, it was pointed out in Committee of the Whole. The original section provides: "SEC. 6. All existing charters, grants, franchises, special or exclusive privileges, under which an actual and bona fide organization shall not have taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter have no validity." Now, then, it was pointed out, if I am not mistaken, in a case of this kind. The Code provides that the first step in appropriating water in the streams of this State, shall be by location-by a publication of notice of location. Within the time thereby limited, forty days, I think it is, actual work in the construction must be commenced and continued unin THE PRESIDENT. The question recurs on concurring with the terruptedly, except for some cause, until completion, else the right to Committee of the Whole in their amendment to section six. REMARKS OF MR. BARBOUR. the original appropriation shall be lost as in favor of one subsequently appropriated and continuing according to the requirements of law. It was suggested that it might occur, that at the time of the adoption of MR. BARBOUR. Mr. President: I hope the Convention will not this Constitution, that period might be running between the original act of location and the subsequent acts necessary to complete and perfect the location, and that in this way the word "occupancy" was properly used. The substitute, as reported by the Committee of the Whole, reads: "SEC. 6. All special or exclusive privileges, whether claimed by general laws or by special grants, shall have no validity, unless such claim for special or exclusive privilege shall have been appropriated by occupancy and organization, and business commenced in good faith, before the adoption of this Constitution." Now, the amendment striking out the words "claimed for," was proper, but the other amendment did not improve, it really mars it. Whatever is unnecessary is very likely to be pernicious. It would be competent for us, on the second reading of this article, to retain the section reported by the Committee of the Whole without that amendment, and I believe it would be an improvement upon the section as originally reported by the Committee on Corporations. Upon the assumption that we can make that correction, I shall vote to retain it. REMARKS OF MR. SHAFTER. MR. SHAFTER. Mr. President: The gentleman from Placer correctly states the argument used in Committee of the Whole in regard to this section, and I recollect of his speaking of the water question at the time. Now, these water companies have gone and appropriated water by making surveys and notice of location. They have commenced business by paying a surveyor. They may have organized and talked about contracts, and commenced business by collecting money to meet expenses, but they have not struck a stroke, and they will not strike a stroke for ten years. They will let it lie right there until they get ready to sell it, or until they get ready to do something else, and make something out of it. Now, if the word "occupancy is not the proper one, it is simply a criticism, and nothing else. The term itself is intended to represent the actual fact of going into possession; not only of organizing and carrying on business, but going into possession. The original section excludes that idea. That is the only evil there is to be looked out for. We cannot divest them of any rights they may have acquired if we should try to; but we can compel them to go forward and do what they profess they intended to do occupy the property, and supply the people with water, or anything else for which they have been granted these privileges. Otherwise they may let it lie right there. When the article comes up for second reading there will be no difficulty in retaining the section reported by the Committee of the Whole, and striking out this piece of nonsense which has been adopted. REMARKS OF MR. JOHNSON. MR. JOHNSON. Mr. President: I am in favor of the section just as reported by the Committee on Corporations. There appears to be a trimming down of this section, just so as to eliminate the words, "charters, grants, franchises," retaining only the words, "special and exclusive privileges." Now, I see no use in eliminating these words. If these companies have commenced business, they are protected by section six. There is no use at all, on account of a tender regard for these corporations or companies, for us to cut down section six, so as to adapt it to their convenience. Section six was good enough as it stood; and although I believe as a general thing the Committee of the Whole acted wisely in their amendments, yet I do not concur in this amend ment, and I hope that section six as originally reported will be adopted. MR. WEST. Mr. President: I hope that section six, as reported by the Committee on Corporations, will be adopted. These companies assume these privileges under an agreement to commence business in good faith. Now, the very fact that they let them lie for five, ten, or twenty years, shows that business has not been commenced and carried on in good faith, and they are justly entitled to forfeit their franchises. THE PRESIDENT. The question is on concurring with the amend ment of Committee of the Whole as amended. The amendment was rejected. THE PRESIDENT. The amendment as reported by the Committee of the Whole is rejected. The Secretary will read the amendment proposed by the Committee of the Whole to section eight. THE SECRETARY read: EMINENT DOMAIN. "SEC. 8. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the Legislature from taking the property and franchises of incorporated companies at their own valuation, as made for the purpose of taxation, and subjecting them to public use the same as the property of individuals; and the exercise of the police power of the State shall never be so abridged or construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State." MR. ESTEE. Mr. President: I offer an amendment. valuation of their property for the purpose of taxation. It is an impossibility under the provisions of this Constitution. It is done by the Assessor and not by the company. Secondly, they have no day in Court, and it would be in direct controvention of section fourteen of the bill of rights, as adopted by this Convention, which provides the manner of taking private property for public uses. That is my first objection, that the valuation is not made by themselves for the purpose of taxation under the statute or under the Constitution, except personal property. Real property is always assessed by the Assessors who are elected for that purpose. And I hope that the amendment will be adopted for the other reason, that it would raise a very great question, whether valuation fixed by the County Assessor, as to the value of a man's property to be taken for public uses, would stand. I apprehend that every person is entitled to his day in Court. MR. HALE. Is it not within the scope of the article on taxation that the party has simply to give a list of property, and that the Assessor or the State Board of Equalization are to fix the value? MR. ESTEE. That is what I say. They do not fix their own valuation on the property for the purpose of taxation. We have expressly provided that they shall not fix the valuation; the people are going to fix the valuation. REMARKS OF MR. MCFARLAND. MR. MCFARLAND. Mr. President: I presume the Legislature might pass a law requiring every man to give in a list of his property at its valuation, and I believe that this Constitution does provide that every person shall, on the first of March, give in a list of all his property; but if the Assessor were to take that valuation as given, still this would be a most unjust and unfair provision, and I hope that the amendment will prevail, or else that the Convention will refuse to adopt the amendment of the Committee of the Whole. We all know the proceeding by which the right of eminent domain is exercised. When property is needed for public uses we have to go into Court and determine the value of property upon testimony. That would be the rule even if you adopt this section, except as to corporations. And it provides that where the property of a corporation is to be taken there shall not be any hearing; they shall not be confronted with any witnesses, but simply go to the assessment roll, and that shall be the valuation. For instance, here are two mining companies, owning adjoining grounds presumed to be of the same value, one incorporated and the other not. It becomes necessary to take a portion of each for public uses. In the one case the party has a right to go into Court and have the valuation fixed upon the testimony of witnesses. In the other case you go to the assessment roll. Take two water companies, and it is the same. Why don't you apply the same rule to both. Take the case of two ferries, one incorporated and the other not, each using and owning property. In the one case the party has a right to go into Court, and in the other case he has not. rises in value between one year and the next. Property in land frequently Now, how unjust and unfair that is. More than that, property frequently rises to a very great extent during the lapse of one year. Under this rule, if that land happens to be owned by a corporation, the public could take it for public uses, for the benefit, really, of some other corporation, by going back to the assessment roll of the year previous and having that to be the standard upon which the valuation shall be fixed. We all know that while theoretically property is supposed to be assessed at its real value, that it has never been and never will be in the course of human events. There is no property in any part of this State really assessed at its full value. It is a peculiar habit among Assessors, and I suppose it is fair enough, if they equalize it properly. Under this section, if property happens to belong to a corporation, they are bound absolutely by the assessed valuation; and other men, having the same kind of property, who do not happen to be associated as corporations, have a right to have the value of their property determined in the usual way. I hope the amendment will prevail, or else that the original section will stand. REMARKS OF MR. CAPLES. MR. CAPLES. Mr. President: For once I find myself in accord with my friend Judge McFarland. The Judge has reasoned logically, rationally, and justly against the proposition to establish a special rule for the exercise of the right of eminent domain in the case of condemnation of corporate property. He has argued from a standpoint which has reason and common sense for its base, and I heartily concur with him. But, Mr. President, it is not necessary to argue this question from that standpoint, because the proposition contained in the section as amended in Committee of the Whole is utterly inadmissible. It is an attempt to do that which we cannot do. The law of eminent domain, as defined, is unchangeable. It is an inherent, unalienable right of political sovereignty. It is a right that is fixed and cannot be changed. Now, Mr. President, what are the facts in this case? The proposition here is to substitute a special rule, different and distinct from the general rule, for "Strike out all after the word 'companies,' in line three, up to and the condemnation of property of corporations. Can you do it? that is including the word 'taxation,' in line four." REMARKS OF MR. ESTEE. the question. I say, Mr. President, that we cannot do it, and I propose to read from one of the greatest lights that America has ever produced— Daniel Webster. His definition of his remarks until after recess. THE PRESIDENT. The hour having arrived, the gentleman will sus MR. ESTEE. Mr. President: That proposed amendment strikes out the words "at their own valuation, as made for the purpose of taxa-pend tion." That section was placed in the report of the Committee on Corporations for the purpose of allowing the Legislature to provide for taking the property, including the franchises that may have been granted to corporations, for public use. Now, the Committee of the Whole amended that by adopting a new section in its place, and in that new section they inserted these words among others, "at their own valuation, as made for the purpose of taxation;" that is, that the Legislature is allowed to take private property and franchises of incorporated companies at their own valuation, as made for the purpose of taxation. My objections to that are, first, that corporations nor individuals never have made the LEAVE OF ABSENCE. MR. MCCALLUM. Mr. President: I desire to ask indefinite leave of absence on account of sickness in my family. THE PRESIDENT. The gentleman has leave. RECESS. The hour having arrived, the Convention took a recess till two o'clock P. M. AFTERNOON SESSION. demnation of property. I think there ought to be a correction made, The Convention reassembled at two o'clock P. M., President Hoge in however, if it is not striken out. the chair. EMINENT DOMAIN. SPEECH OF MR. HAGER. THE PRESIDENT. The question is on the amendment of the gen- adopted, it requires the intervention of a jury to settle the question of tleman from San Francisco, Mr. Estee. SPEECH OF MR. CAPLES. MR. HAGER. Mr. President: There is one difficulty about the execution of this provision as it stands. Under the bill of rights we have damages when property is to be taken for public use. This is property to be taken for public use. As far as the rate of taxation is concerned, that is fixed by the State Board, so far as railroads are concerned. Now, if this should be the rule, that the property should be taken at their own valuation, and they made none, it could not be taken. If they made none, then it would be the duty of the Assessor to make it; and that is the law now. I had some tide lands, and never made any valuation, and never heard anything about it until I heard it had been sold for taxes. Then, in case no valuation was placed on the property by the owner, this section would not be applicable, as far as I can see. Now, if the provision should read, that when the jury come to fix the valuation they shall take into consideration the valuation fixed upon it by the owner, that might do. Now, the Legislature does not take property as a Legislature; they pass laws by which it may be taken. The word Legislature" ought to be left out. Now, if you say they shall take it at their own valuation made for the purposes of taxation, the question arises, can you take it at any other valuation? And suppose they do not make any valuation; you cannot take it by the Assessor's valuation. Therefore, I think the section is wrong. But if it is so arranged that when the jury come to assess the value they shall take the owner's valuation, for purposes of taxation, into consideration, that might do. SPEECH OF MR. ROLFE. MR. CAPLES. Mr. President: Section eight, as amended by the Committee of the Whole, proposes the establishment of a special rule, for the condemnation under the statute-the right of eminent domain of corporate property. I certainly think the State cannot do this. Corporate property, as well as all other property, may be condemned for a public use under and by virtue of the State right of eminent domain, but it must be done in accordance with law, and subject to and within that clause of the United States Constitution, declaring that no man shall be deprived of life, liberty, or property, without due process of law. Now, what is due process of law? I say that a special rule for the condemnation of that kind of property is not due process of law. It is defined by Webster, in the Dartmouth College case, as rendering| judgment only after trial. The meaning of this is that every citizen shall hold his property under the protection of general rules which govern society. Now, sir, this is not a restriction, not a condemnation, not a taking away of any part of the State right. Nor could it be possible to do it, for the reason that this is an inherent right of sovereignty. It is one of the necessary attributes of the sovereign power, and the State has that power, and we can neither enlarge it nor abridge it. It is a right of itself, and it is impossible for this Convention either to enlarge it or diminish that well defined and well understood power. But, sir, if it were possible for us to do this thing, it is not desirable that we should do it. Why do we seek to establish a special rule for the condemnation of the property of corporations? Admit, for the sake of argument, that we have the power to do it, why should we do it? I hold if it were possible to do it that it would be an act of gross injustice upon the face of it. I say this whole section is unnecessary. It is surplusage. It proceeds upon the hypothesis that the Legislature may fritter away the State's right of eminent domain, so that it may not have power to condemn corporate property for public use. That is a mistake, for there is no power to take away this power on the part of the State. I propose, in conclusion, to read from Cooley's Constitutional Limitations. He says: "When the existence of a particular power in the government is rec-ground, which makes it worth ten times what it was assessed for. I ognized on the ground of necessity, no relegation of the legislative power by the people can be held to vest authority in the department which holds it in trust to bargain away such power, or to so tie up the hands of the government as to preclude its repeated exercise, as often and under such circumstances as the needs of the government may require." It has already the power. The State has ample power to take the property of a corporation the same as the property of an individual, but it must conform to a general rule, which comes within the prohibition of the Constitution of the United States. The very essence of law is uniformity-a rule that operates justly upon all alike. I am in favor of the amendment proposed by Mr. Estee, to strike out the obnoxious portion of this section, because it is unjust, illegal, unconstitutional, and revolutionary. I favor that amendment which proposes to strike it out. SPEECH OF MR. SMITH. MR. ROLFE. Mr. President: I think it is dangerous and wrong to allow these words to remain in this section. I think they ought to be simply stricken out. It is no doubt the intention to allow the Legislature to take property, to exercise the right of eminent domain, the same as corporations are allowed to do, and to take property from them for public use; that is all right, but my objection goes to that portion which the gentleman moves to strike out. It says it may be taken at their own valuation for purposes of taxation. Now, it may be that they will never be allowed to make a valuation. The Assessor and Board of Equalization may make it. The assessment of the Assessor cannot always be taken as a criterion. A mining company might have ten acres of ground which is assessed at what it is apparently worth. The next week after, a rich deposit of gold or silver is discovered on the suppose the owner of the mine is honestly entitled to the enhanced value, and yet, if it were to be condemned for public use, he could only receive the assessed valuation, according to this proposition. MR. SMITH, of Fourth District. Mr. President: I would like to explain an amendment which I propose to put in if I have a chance. It seems to me that the clause proposed to be stricken out by the gentleman from San Francisco, Mr. Estee, needs correcting, for the reason that it does not accomplish what its friends intended to accomplish, because they may fix their own valuation. They are not bound to fix a valuation for the purpose of assessment. Now if the word "assessed" were inserted in line three, it would make it read better. It would reach the object intended. The Assessor would, under the old law, be bound to make the assessment. But if it was left to the companies to make it they certainly would make the assessment to suit themselves, whereversibility. If that was good argument then, it ought to be good argument they could make anything by it. There might be many chances to put a high valuation upon it. The additional taxes that they might have to pay would not be so much as they might be able to make by the condemnation. SPEECH OF MR. BARBOUR. MR. BARBOUR. Mr. President: There are two or three series of cor porations whose property is liable to be taken. I suppose the assessment would be fixed by the State Board of Equalization. But there is other property belonging to other classes of corporations, such as water companies, liable to be taken for public use. When I offered my amendment on the article on Revenue and Taxation, I had two objects in view, one of which was to bring them up to something of a correct valuation for the purpose of taxation; and the other was that it should be taken as an estimate, which is competent for the State to take, as it is their own estimate made under oath. Now we are accused, at least the gentleman from San Francisco was accused, because he proposed to authorize any city to purchase waterworks, of trying to insert a provision in the Constitution compelling the purchase of Spring Valley at high rates. Now the gentleman comes forward and moves to strike out a proposition which enables the city to take these works at their own valuation. I believe it has never been rated higher than six million dollars, but when they were going to sell to the city it was fifteen million dollars. Now if they are willing to make returns under oath that this is the value of their property, I can see no objection to retaining it. It would not be in conflict with other provisions of the Constitution in regard to the con Another hardship might result. In large tracts of land we have made provision that it must be assessed in quantities of not more than six hundred and forty acres. It is probable that no tract of land, not containing more than six hundred and forty acres, will be divided up. Now, the company may have fifty acres of land in one tract, and that may be very valuable, the most valuable in the whole tract, while the other may be almost worthless. But under this provision no Assessor is authorized to assess that except in one assessment. Perhaps it is assessed at ten dollars an acre. That might be a fair average, and still the larger part of it might not be worth one dollar an acre, while a few acres might be worth one hundred dollars an acre. So, ten acres of that good land might be taken for ten dollars an acre. On the other hand, that part which the State takes might not be worth five cents an acre, and still they would have to pay at the rate of ten dollars an acre for it. In some instances these things might work a great hardship. There is no equality about it. There might be good reason for it, when taken in connection with the Spring Valley Water Company, in. the City of San Francisco, but we do not want to perpetrate a great wrong upon every company and every individual in the State for the purpose of aiming a blow at Spring Valley. I say the only just and proper course is to place corporations upon an equal footing with individuals. Section three, of this article, was supported this morning on the ground that corporations ought to be placed on the same basis as individuals in regard to responnow. If property is to be taxed, it ought to be paid for at a fair valuation, and this ought to be determined by a jury, after hearing sworn testimony. Now, it is a well known fact, that property, whether of individuals or corporations, is not assessed at its full value. If we get property assessed at seventy-five per cent. of its true cash value, we will be doing better than any Štate ever did do yet, and if the Assessor does not assess property at its full value, then he is the one that is to blame. The Assessor has one duty to perform when he assesses the property of individuals or corporations. The Boards of Equalization have another duty to perform when they equalize it. Another duty of the State is, that when property is taken for a public use, against the will of the owner, he shall receive a fair price for it; and I say the State will not be doing justice if it lays down any other rule, or any rule which will preclude the owner of that property from going into Court and having the value of that property determined by a jury, as provided in the bill of rights; if not, there will be a direct contradiction of terms. SPEECH OF MR. CROSS. MR. CROSS. Mr. President: I do not know that I shall say anything extremely useful, but it seems to me that this is a very vicious amendment. Now, sir, I do not know that the State wants to go around picking up property here and there. I do not know that there is any necessity of giving the State the right of going down into Los Angeles County, and taking their ranches. I do not know what the State could do with them. My understanding of this section originally was that the City of |