Day 11: October 8, 1878 (morning session)

frThe President announces the memberships of some of the standing committees:

Preamble and Bill of Rights: Van Dyke, Van Voorhies, Mills, Freud, Ringgold, Noel, Boucher, Jones, Barton.

On Right of Suffrage: Eagon, McCallum, Garvey, Glascock, Sweasy, Evey, Hugh Walker, Townsend, Wyatt, Cross, Caples.

Judiciary and Judicial Department: Wilson, Egerton, Terry, Shafter, Graves, Belcher, W.L. Dudley, Eagon, Howard, Campbell, Tully, George V. Smith, Steele, Laine, Hilborn, Waters, Dunlap, Barry, Beerstetcher

Military Affairs: Barnes, Holmes, Davis, Stedman, Moffat, E.O. Smith, Harvey, Ohleyer, Brown, Hunter, Estey

Education: Winans, Chapman, Martin, Morse, Reynolds, Herrington, Lampson, Mansfield, Huestis

City, County, And Township Organization: Hager, Fawcett, McFarland, Barbour, Hale, Hall, Schell, Tinnin, Reddy, Rolfe, Barnes, Holmes, Mills, McCallum, Freeman.

On State Institutions And Public Buildings: Overton, Van Dyke, Andrews, Keyes, Larue, Condon, Wellin.

Appointments And Representation: Murphy, Freeman, Swing, Prouty, West, Crouch, Wickes, Burt, McConnell, Inman, Nason

Misc. Subjects: Dean, Kenny, O’Donnell, Soule, Schomp, Stevenson, Kelley, Farrell, Lavigne

Future Amendments: Blackkmer, Webster, Dowling, Gotham, Herold, Grace, Lewis, Weller, Charles

Schedule: Moreland, Boggs, Joyce, Harrison, McComas, H.W. Smith, Neunaber, Swenson, Vacquerel, Hughey, Kleine

Reporting And Printing: Shoemaker, Filcher, Ayers, O’Sullivan, Thompson

Privileges And Elections: Larkin, Stewart, Cowden, Rolfe, Berry, Martin, Shurtleff, Lindow, Nelson, McCoy, Hitchcock, Porter, G.V. Smith, Gregg, Jas. M. Dudley

Mileage And Contingent Expenses: Hilborn, J.M. Walker, Rhodes, McNutt, Turner, Tuttle, Bell, Doyle, Jones.

Murphy presides temporarily.

Estee presents a report from the Committee on Rules And Order of Business, recommending in favor of a committee on Lands And Homestead Exemption, and that the resolution to require committees to furnish their own secretaries be referred to the Committee on Mileage and Contingent Expenses. The discussion is put aside when McCallum moves that the Committee go on to consider the rules proposed by the Rules Committee. Grace complains that he has not had time to read over the rules. Larkin moves that the rules be considered one by one. This carries.
Rules 1, 2, 3, and 4 are adopted without change.

Rule 4 requires the president to preserve decorum and order, may speak in preference to other members, and that when his decisions are appealed by five members, the convention will consider the issue, but that no member may speak on an appeal more than once. Barbour moves to amend this by limiting the time members can speak on appeals to five minutes. Estee says this would usually be a good rule, but there are times when it would be useful for members to be allowed to speak for more than that. O’Donnell says, in such cases, they would get leave to go beyond five minutes. Edgerton agrees with the five minute proposal. It is adopted.

McCallum complains that the rule allows the president precedence over other members when speaking, and that it requires five members for an appeal. These are “something new,” (p. 64) and it should be ‘the right of any member to appeal.” He moves to strike out “five,” McFarland disagrees. The requirement prevents frivolous appeals. It should not be the right of any one member “to compel a vote of the House upon an appeal without he is able to get four of us to second it.” (p. 64) . Beerstetcher points out that it’s not a particularly effective restriction on frivolous appeals, because members will simply “form[] a combination with four of his friends” so that they all vote together on all appeals. “It is the easiest thing in the world.” (p. 64) Larkin, however, “would increase that number to ten. We are here for the purpose of framing a new Constitution, and I do not desire to see any frivolous appeals taken.” (p. 64). Wyatt says it is “universally the practice in deliberative bodies” to allow any one person to appeal. Dudley argues that it should be two: one who appeals and another who seconds. McCallum agrees to that.

Edgerton defends the preference given to the president, because it is “a universal rule in all deliberative bodies.” He points out that the California Assembly rules require appeals to be demanded by two members, and “[t]hat is a body of only eighty members” (p. 64). Since there are so many more delegates at the Convention, the rule should be stricter to prevent delay.

Freeman: “The reason why I think any member ought to have the right to appeal is that when an appeal is taken the original point of order is not debatable, and it is not until after the appeal is taken that a motion begins to be discussed and the attention of other members are directed to it sufficiently to have them join in an appeal. I remember the other day, when the gentleman from San Francisco desired to correct the record of his vote, the Chair three or four times decided him to be out of order. As soon as the appeal was taken, and the matter began to be discussed, the chair at once receded from the decision and allowed the gentleman to put the point which he claimed. I think that any one ought to have the right to bring an appeal or point of order before the house and have it discussed.” (p. 64)

Estee says the committee simply followed the general practice of legislatures, and there is no legislature where only a single member can appeal. In Parliament, Congress, or the State Legislature, the rule varies from three to ten members, so as to prevent members from clogging the wheels of business. This proposal was unanimously recommended by the committee. McCallum denies this. He served in the Senate and any member could take an appeal, with a second, and the same was true in the Assembly. Edgerton says that is not the rule in the Assembly. McCallum says he didn’t say it is now the rule, but it was then. Anyway, it is the ayes and noes that takes up all the time in appeals—not the appeal itself. McCallum agrees with Freeman that the other day when a member wanted his vote corrected, the chair ruled him out of order, and if he had needed five others to appeal, it would not have been fixed. “I have to assume, and it is proper to assume, that every member here has some reputation of his own to protect, and would not desire to get the reputation of taking frivolous appeals. I have never seen such a body of dignity as this but what every member has intelligence enough to know that he would injure himself and lose his influence if he practiced anything of that kind. Now these questions will be voted upon without a call of the ayes and noes usually and will be disposed of in less time than is occupied in discussions of questions of order.” (p. 65)

Wickes moves to replace “five members” with “two members.” McCallum accepts the amendment. Dudley agrees: two members is the rule in the House of Representatives and is the common rule, and when Mr. Estee was in the Assembly, it was the rule also.

Estee: “On the contrary, it was three.” (p. 65)

Dudley: “It was two. It is two in the House of Representatives—rule two of the House of Representatives.”

Estee: “It was three.”

Andrews agrees that five is too many. Votes on appeals aren’t usually fractious anyway, so there probably won’t be much delay.

Reynolds reads from the rule of the Constitutional Convention of Illinois, which allowed any one member to appeal. Estee: “Well, what was the rule in Ohio, Pennsylvania, and New York?” (p. 65) Freeman then reads from the senate rules that any one member can appeal. Estee: “Of course. But Mr. President, the Senate was only composed o forty members. The Assembly, with eighty members, as far as my memory goes, always required three members to appeal. In Illinois, the gentleman may be right. There is a case where the Convention only consisted of eighty members. I will say this: that this rule came up for adoption in the committee, and the gentleman from San Francisco, Mr. Reynolds, voted for it. I do not understand why a member should vote for a rule in the committee, and then come into the house and attempt to defeat it.” (p. 65)

Reynolds: “I desire to correct the gentleman, by saying that I have said not one word except to correct the gentleman’s statement. He seems to be very sensitive on the subject, and I do not wonder at it, in view of the extravagant statements that he has made here in regard to the legislative experience of all past time.” (p 65)

Edgerton reads from the rules of the Assembly, that allow appeal only by two members. The Assembly has only 80 members, and the Convention has nearly twice that number. The committee carefully considered the issue, recommended a five vote requirement, and “Mr. Reynolds cordially assented to that rule.”

Mr. Reynolds: “I desire to say one word in vindication.”

The Chair: “Does the gentleman rise to a question of privilege?”

Reynolds: “Yes. When this Committee on Rules was appointed, at the first session of that committee a sub-committee of five was appointed. They put Mr. Barnes upon the committee and then proceeded to construct these rules. Yesterday morning the committee was called together, the rules were read over to the committee, and there was no such time given to the committee to consider these rules as is now given to this house. It is unfair in the gentleman to say that there has been any due consideration of these rules by the committee. A sub-committee of five was sprung, and they have been the men who have considered these rules and not the committee. And further, it makes no difference to me whether the Senate of California or the Legislature of California have provided that five members shall make an appeal, or two, or three, or any other number. It is well known that the rules of the Legislature of California have been constructed under the most outrageous and unheard-of tyranny, and for the purpose of squelching and intimidating, and running through that Legislature any measure that was required by the powers that be. Now, sir, it makes no difference what the rule of the Legislature has been, but it does make a difference what the rule shall be.”

Edgerton: “I rise to a point of order. The gentleman merely rose to a question of privilege, and is not at liberty to discuss the merits of the question.”

Reynolds: “I yield the floor. I have said all I want to.”

The motion to strike out “five” and insert “two” loses on a standing vote, 70-67.

Freeman moves to replace five with three. Van Dyke says that he would be in favor of increasing the number, not diminishing it, because the convention is so large and if the chair abuses the privileges, there will be difficulty finding five members to appeal. But Freeman’s amendment wins, 75-62.

Stedman moves to allow the party appealing to speak twice. This loses.

Rules 6 through 13 are adopted without debate. Rule 14 provides that the sergeant at arms supervise the convention hall and rooms attached, attend during the sitting of the convention, execute its commands, keep accounts of pay and mileage for the members and employees, and prepare checks for them. After some technical discussion, it is adopted. Rules 15 and 16 are adopted without debate. Rule 17 sets forth the order of business. One of its provisions, order number 4, provides that after the presentations of memorials and petitions, the Convention will consider communications from state officers, and form corporations “in response to calls for information.” Shafter moves to strike out these words. Larkin responds that this is one of the most important provisions in the rule. “This Convention should have the power at any time to call for information from any corporation. It may be very important to ascertain some things.” (p. 66). Shafter explains that, as it is written, it would not allow corporations to volunteer information. Wyatt says the rule is important because the Convention must be able to “assert our authority” to get information from corporations. (p. 66) McFarland clarifies Shafter’s point: the rule as written says “that a corporation shall not communicate with this Convention unless in response to a call for information.” (p. 66). Edgerton says that order no. 3 allows receipt of all communications from individuals and public bodies. McFarland is not convinced, but Shafter is, so he withdraws his amendment, and the rule is adopted. Rule 18 through 20 are adopted. Rule 21 provides for division of the question and other things. Barton moves to amend by adding “that in no case when the ayes and noes are called for shall any two members of this Convention be permitted to pair off.” This fails a point of order, and the rule is approved (p. 66).
Rule 22 sets the attendance requirement and allows the convention to compel attendance of its members. Stedman moves to add that any three members can demand a call of the convention. Edgerton says that a call of the convention can only be had by a majority. Stedman says that the Ohio convention, of which he was a member, allowed three members to order a call. When Waters points out that this is not necessary because calls can be had by a single member and a majority vote on the motion, he withdraws his proposal.

Rules 23 and 24 are adopted without discussion. Rule 25 says that no member shall be allowed to explain his vote while the ayes and noes are being called, or to change his vote after the vote is announced from the chair. Barton again tries to insert his rule that no two members may “pair off.”

The Secretary: “Where is it to be put in?” (p. 67)

Mr. Edgerton: “Let it be put in where it ought to be and then vote it down.” The motion loses.

Morse moves to amend rule 24 to prohibit members from voting unless they are in their seats. Estee objects that sometimes members are required to be in other parts of the hall, and it’s unfair to bar them from voting. Cross disagrees: sometimes the only way of telling how a person is voting is if the Secretary can see them in their seats. “during the past few days members have been answering to other members’ names,” (p. 67) and requiring them to be in their seats helps prevent mistakes. Morse concurs because it is sometimes hard for the secretary to hear the members from across the hall. Larkin says members shouldn’t be required to sit in their seats for ten or twelve hours, and that as long as they are within the rail they should be allowed to vote. Morse’s amendment fails. Rules 25 through 27 are adopted.

The convention adjourns for an hour lunch.

Day 10: October 7, 1878 (Monday)

Belcher, Chapman, Schomp, Winans, Hall, Farrell, Van Dyke, Shafter, Wellin, Dudley. Barnes, Strong, given leaves of absence. J. West Martin sworn in. Thomas McFarland presiding.

Hilborn sends up a resolution, but Estee then presents report from Committee on Rules and Order of Business, recommending creation of committees on (1) Agriculture, Manufactures and Commerce, (2) Mining, (3) the pardoning power, (4) tide water and navigable streams, (5) labor and capital, and (6) engrossment and enrollment. He moves for its adoption, but Caples offers a resolution. This is left on the secretary’s desk until the Committee on Rules report is dealt with.

Barbour moves to put the issue off until tomorrow, and to have the report printed. The chair explains that the committee has another report to present, and that report is then read.
Edgerton explains that on Friday or Saturday, the committee made a report listing several standing committees, and this new report recommends some more. The Convention wanted to separate the committee on agriculture and the committee on mining. Also, “at the request of the [Workingmen’s] party” the committee recommends a committee on labor and capital. (p. 58).

Ayers asks if there is a committee on lands in the original report. Edgerton says there is. Barbour explains that this is why he recommended having the committee reports printed—to avoid this sort of confusion. The Chair explains that the question now is on whether to postpone the matter and print the report. Reynolds recommends urges that this will save time. Edgerton says that Reynolds is “under a misapprehension” because the convention has already adopted most of the committee’s report, calling for “some twenty-five or twenty eight committees” that are ‘now the law of this body, and the President is now engaged in making up those committees.” (p. 58). So the question is merely whether to add these others. Estee agrees, and explains that this is a small addition that should not need to be printed. Reynolds echoes this, but Barbour explains that all he was asking for was to have “a list of the committees proposed up to the present time…printed and laid on our desks.” (p. 58). The Chair explains that the question now is only on whether to adopt the report regarding the six new additions to the list of committees. Barbour withdraws his motion to print the report. Debate continues on whether to print the entire report plus the supplementary report, or not.

Joyce: “[I]f there is any one thing more than another that deserves the consideration of this Convention, that subject is the Chinese subject. It is one that there has been no political party for the last ten years that has not given it serious attention; yet it seems that the committee has lost sight of it. It seems that it was not sufficiently important for our committee to create a special committee for that one subject. Now, I believe that it is paramount to all other subjects, and I desire that there should be a special committee on that subject alone, and I would now move that the Chinese subject have a special committee for itself.” (p. 59).

Edgerton explains that the report adopted the other day had a committee that covered the matter: the Committee on Immigration.

Joyce rejects this because “That affects the United States. We calculated to deal with its domestic relations with this State.”

Edgerton explains that the domestic matters will be dealt with by the Committee on Capital and Labor.

Shoemaker moves the previous question. Cross seconds the motion for a committee on the Chinese.

Johnson agrees that “the Chinese matter should be investigated,” but contends that the committees on immigration and labor can handle the matter. We should not make too many committees.

Beerstetcher says he has a resolution to offer, but Shoemaker points out that he has already moved the previous question. This is agreed and the chair says the first question is on whether to add an additional committee on the Chinese. As the voting proceeds, Barton says he will vote in favor of such a committee because the Committee on Immigration “is strictly and purely legislative in its bearings, and the subject of Chinese is one of local importance to us, which we are determined to handle in this Convention.” (p. 59). When his name is called, Caples says he is in favor of a special committee, but that it should be established later, not in the middle of adopting the committee on rules report, and that he will therefore vote no.

Estee: “I do not wish to explain my vote. I wish to explain to the Convention exactly how the matter stands…. [I]n the Convention the committee were unanimous in permitting one of the members of that committee, from San Francisco, if he so desired and if this house so desired, to move this house to have such a committee, and then he would necessarily be Chairman of the committee. And with due respect to that gentleman he does not now appear to care about being Chairman of that committee. I make this statement to show that the committee were not opposed to having one of the standing committees of this House investigate this question. It was done as a matter of propriety and delicacy, and it should not be charged that this committee were trying to evade it. The committee were unanimous in all these questions, and were unanimous in permitting, if the house saw fit, the fullest examination of the best committee that could be made to investigate it. I vote ‘aye.’” (59).

Freud says he believes the question is so serious it should have a committee of its own. Johnson says since there is some doubt, he will defer to those who want a committee on this subject. The motion to create a Committee on the Chinese prevails 120 to 4. The 4 no votes are Charles, Gregg, Caples, and Stuart. The rest of the report is then adopted.

The next report from the Committee on Rules is read. It explains that a sub-committee made up of Edgerton, Finney, Murphy, West, Waters, and Estee, prepared a set of rules which were then adopted by the committee unanimously. The report then lists some 73 rules including 30 standing committees. The reading of the report is dispensed with and 240 copies are ordered printed. Edgerton moves that the Committee on the Chinese consist of 15 members. Barton seconds, and the motion prevails. The rules report is made the special order for Tuesday at 2 p.m.

Herrington offers a resolution that each standing committee be required to furnish its own secretary from among its members. This is put aside, however, since the report already includes this. Caples calls for the reading of his resolution, But Hilborn says he offered a resolution first. The President recognizes Caples. Hilborn insists on his resolution being read first. The President says he doesn’t remember recognizing Hilborn. “It does not matter which resolution was received first, he was not recognized by the Chair. The gentleman from Sacramento [Caples] has the floor.” (62)

Hilborn: “I was recognized. The report was sent up and I claimed the attention of the Convention, and that being disposed of, I claim my resolution comes next.”

The President: “This is a matter of no importance. The Chair has recognized the gentleman from Sacramento.”

Tully: “I think it is a matter of justice.”

Tinnin: “I am positive that [Hilborn] sent his resolution to the desk first and that he was recognized by the Chair.”

McCallum: “I wish to add my testimony as to the question of fact—”

Edgerton: ‘I rise to a point of order. The Chair ha already decided.” (63)

The President: The Chair recognized the gentleman from Sacramento.”

Caples: “The gentleman can appeal.”

Hilborn: “I appeal from the decision of the Chair.”

The President: “The Chair understands it to be the province of the Chair to recognize the first person addressing him. My recollection is distinct that I recognized Mr. Caples.”

McCallum: “That was the point I was making when the gentleman called me to order.”

Hilborn: “The gentleman overlooks one thing; my resolution was properly before the House. It was not improperly sent up. I will, however, withdraw the appeal.”

Caples’s resolution is read—it is that J.P. Dray be appointed night watchman and paid the same as the doorkeepers.

Hilborn asks that his resolution be offered as an amendment. It reads that James Saultry be appointed night watchman, and paid $5 per day.

Edgerton: “I suggest that the gentleman move to strike out and insert.”

Hilborn: “No, sir, I want to fix this up to suit myself.”

White moves that one of the doormen be made night watchman because there are “more attaches now than are necessary. We have more Pages than necessary and more Porters and Gatekeepers than are necessary.”

Edgerton raises a point of order that the convention has already decided to refer all of this to the committee on contingent expenses.

Hilborn: “I think the gentleman is mistaken. I don’t think we passed any such resolution.”
President: “I don’t think there is any standing rule of that kind. But it seems to me that the Convention the other day resolved to leave the appointment of Night Watchman to the President of the Convention. I am so informed.”

Hilborn says that although the convention did decide to have a night watchman, the portion of the resolution allowing the president to name one was left out of the resolution adopted by the convention, so the chair does not have the authority to choose a night watchman.

Barbour offers a resolution as a substitute. Hilborn moves to send the entire matter back to the committee. But Barbour’s resolution is read. It says that the convention should dispense with the services of two side doorkeepers and the mail carrier. These offices, he says, are entirely unnecessary. “I believe in economy and reform, and every time a gentleman moves for a clerk, I will move to strike off one of them.”

McCllum says Barbour’s motion has nothing to do with Hilborn’s motion, and he instead moves to send the matter back to the committee on contingent expenses. This motion prevails.

West offers a resolution asking for a committee on Land and Homestead Exemptions to be created. Estee moves to refer this to the committee on rules, and that is done.

Herrington offers the resolution requiring each standing secretary to choose its own secretary, and asks that it be referred to the committee, and it is.

Barbuor offers a resolution asking for a committee on the judiciary, and this is also referred to the committee.

Shoemaker offers a resolution that a member of each committee be required to “do the Porter’s work in the committee rooms,” and this is referred to the committee on contingent expenses.

The convention adjourns.

Day 8: October 5, 1878

Lewis and Glascock given leave of absence.

Beerstetcher moves to have the Journal printed daily and 5 copies given to each member every morning. This would allow the members to double-check the vote tallies.

Barnes sarcastically moves to send the resolution to the Committee on Expenditures and Contingent Expenses because the people of California area already groaning under the burden of taxation.

Reynolds: “My facetious friend from San Francisco has talked away five dollars worth of time upon that point. Perhaps I will exceed him in expense to the state.” (p. 55) There would be no greater expenditure than in publishing and binding the daily journal, and the secretary can’t be heard much of the time in the hall when he’s reading the journal.

Noel objects that choosing a reporter is enough. There’s no reason to incur additional expense.
Edgerton says he knows fro experience in the legislature that this sort of journal is very convenient. But he doesn’t see why five copies are necessary.

Beerstetcher says it was just a preliminary number, and if the convention chooses two copies instead, that would be fine. This journal would make it much easier to go back and keep track of what has been done. In every convention in the last 40 years, the journals have been printed in this way.

The motion is amended to two copies.

Edgerton explains that the cost over and above preserving the journals is very small. Tinnin agrees that it’s necessary, but five isn’t that much more cost than two copies. The matter is referred to the committee.

Noel offers a resolution that a committee be chosen to determine the reporter’s duties. This is tabled. Some members suggest printing copies of the California or federal constitutions, but this has already been done.

The convention returns to filling vacancies. Hager withdraws Burch’s name. While the roll is being called, Brown explains that he was elected on the basis of certain political views, and his constituents would want someone of similar views to replace him if his seat went vacant, so he will vote for Sharpstein.

7th ballot: Sharpstein (W) 61, Thompson (NP) 69. Thompson wins.

Convention moves to fill Haight’s seat. Van Dyke nominates J. West Martin. He’s a UC Regent and has endorsements from all of the Alameda delegates and most of the delegates from the second congressional district, and he shares the views of Haight.

O’Sullivan: “As we, the delegates of the Workingmen’s Party, have appealed in vain to the sense of justice and magnanimity of this convention, to regard the will of the people in the election of Judge Sharpstein to fill the vacancy from that city, I feel under no obligation to pay any regard to the desires of the majority here in filling the vacancy from the Second Congressional District. I shall certainly not vote for Mr. Peachy, the author of the infamous Coolie bill of eighteen hundred and fifty two and eighteen hundred and fifty three.”

Howard calls him to order, and Barnes points out that Peachy has not yet been nominated, so these remarks are out of order. Howard says Peachy won’t be nominated. Dudley says O’Sullivan should be allowed to proceed in order. O’Sullivan nominates G. Thom, a Workingman. The chair closes nominations and voting begins, but Reynolds asks leave “to place in nomination the name of that inveterate foe of corporations, that life-long friend of the people, the name of that great and good man, Leland Stanford. I do this, Mr. Chairman, on the ground that I prefer to deal with principals rather than agents. The suggestion—”

The President: “It is out of order for the gentleman to make any remarks while we are voting. The gentleman can make his nomination, but not a speech. [Cries of ‘Leave,’ ‘Leave.’] If there be no objection, the gentleman may go on with his speech. The gentleman has leave to proceed.”

The debates record: “Mr. Reynolds did not avail himself of the privilege.” (p 56.)

Voting: Martin 87, Thom 3, Stanford 2.

The convention goes on to fill the vacancy created by Hardwick’s death. Tully nominates J.M. Strong, a well-known farmer from Merced County. Brown seconds. Stedman nominates S.O. Lapham “for the suffrages of the Workingmen’s delegates of this Convention, at least.” (p. 57). During voting, Barry explains that he will vote for Strong on the same principle that he voted for Sharpstein; that the constituency’s wishes should be consulted. Lindow complains about the members who refuse to vote. Wilkes says that since his vote “Would not do any good anyhow,” he will “vote for that good, patient, and long-forbearing man, Theodore Tilton.” Strong wins with 107 votes to Lapham’s 3. Reynolds votes for Leland Stanford, Ringgold votes for M.D. Boruch, Smith of San Francisco votes for Peter Donahue, Wilkes votes for Theodore Tilton, Steman votes for Dr. Mary Walker, and Wellin votes for Henry Ward Beecher. Convention adjourns.

Day 7: October 4, 1878

Beerstetcher complains that yesterday’s journal has inaccuracies in the vote tabulation on the motion to table White’s personal privilege matter. Several other delegates note the same: Joyce, Doyle, and Waters.

Murphy reports from the Committee on Phonographic Reporters: the cost of reading and transcribing will not exceed $8,000 if the convention lasts 100 days, and not exceed $6,000 if it lasts less than that. 20 cents per page will be cost effective, and the Illinois debates cost $4643.60 per volume of 950 pages, at 1000 copies. The cost of printing 500 copies of 500 pages each would be $1039. The cost of printing a daily journal for the members would be $200 for the session.

Wyatt moves to postpone indefinitely, because he’s opposed to having a reporter. “We, sir, in the point of expense, exceed Illinois as much as we do in the size of our trees.” (p. 43) This publication will cost $100,000 Since Pacific coast products always cost more, we must expect the cost here to be higher, too. And we should publish everything or nothing. “I do not believe, sir, that the reporting of this Convention will be worth the cost of it.” (p. 43).

Ayers: the cost of publishing the Illinois debates was extravagant. “There must have been some steal in it. Legitimate work would not have cost that sum.” Ayers estimates that the cost would be $4643.60 if it takes 2 volumes, and with a daily journal for the members, the total would be $10,526.20. This is the “extreme limit.”

Freeman: Yesterday, you said it would cost $2,000.

Ayers: No, I said one volume of 800 pages would cost that, and it was a rough estimate.

Freeman: That’s right, it was hasty. The Illinois convention had 85 members and lasted 92 days. “I do not believe that these one hundred and fifty two men here will allow any eighty five Illinois men to do more talking in ninety five days than they can do in one hundred days” (p. 44). Estimates of this sort are rarely correct. In 1878, the State Printing Office published the statutes and it cost $6380. This is only one fifth the size of the Illinois reports, so it would cost some $30,000 to print something the size of the Illinois reports. And why do we need to print this? What we say may be important, but the newspapers will carry this information to the general public. And if we only print 1000 copies, it’s not for public information anyway, so I’m against a reporter.

Shafter says the convention can’t postpone this, because it’s just an informational report.

McFarland: We should publish. All the other states have. But “we ought to consider, to some extent, where that money is going. I understand that the expenditure of public money, when it goes to an individual on a claim that is doubtful, is a very different thing from the expenditure of the same amount of money when it is distributed through a large class of persons. Political economy is composed of two great departments—first, the creation of wealth; second, its distribution. One party now seems greatly exercised about the distribution of wealth. I, sir, am not in favor at all of those wild schemes that have been lately agitated and presented, such as that the state and municipal corporations should expend the money purely for the purpose of giving employment. Some have gone so far as to say that it would be right to employ men to wheel stones from one point of the city and back again, simply for the purpose of giving employment to labor. But, sir, in estimating the cost of printing, it is certainly fair to consider that nearly every dollar of it, all of it, in fact, except for the price of the mere paper on which it is printed, goes to a set of as worthy and industrious and as hard working workingmen as there are in this state. [Applause].” (p. 44) Printing is a noble trade, and since the cost won’t be very much, and the money goes to such worthy citizens, the debates should be published.

Laine offers a resolution limiting per diem of reporters to $50/day and no more.

Freeman says we should decide on whether to have reporters first.

Some confusion ensues about what the question is, but the President says it's whether the resolution should be changed so that the convention proceed immediately to select a reporter.

Hager says he believes the enabling act requires them to choose a reporter. It doesn't literally require it, but it seems to instruct them to do so. We could just get shortand reports and leave it to the legislature to transcribe and publish them, but we have the authority to publish. Why should they publish? Some people want it for fame, but "I do not care a snap of my finger whether they are published or not." (p. 45). Hager offers a resolution that the convention is of the opinion that a reporter should be appointed.

Biggs says they should just vote on reporters now. He's opposed to having one, and surprised that Hager would "advocate the taxation of the downtrodden people of this State," (p. 45) or that he doesn't care about taxing them $30,000 or $40,000.

Hager says-I said I didn't care for the fame. As for the money, "I care just as much about them as the old watchdog of the treasury. [Laughter]"

Biggs: "I accept the appellation. I came here pledged to the people of California, of the whole State, that I will cooperate with the men of this Convention that they shall not be taxed to death. I propose to notice the remark of the distinguished gentleman from Sacramento, Judge McFarland. He says every dollar is paid to the printers, and goes to the working men. Who pays the money into the treasury? Who puts it there to be paid out? It aint the bondholders and mortgage holders. It is the working men that puts this money into the treasury, and I want it to remain there and go out to legitimate purposes. This will amount to more than eighteen thousand dollars. I tell you, you go on and it will soon come up. Before you have spent such an amount for the purpose of having these reports–the debates reported–and they will all be lost, unless you make a further appropriation. I want the Constitution so plain you don’t need to spend fifty-seven thousand dollars, like the Illinois Convention. And I ask this Convention to place themselves on the record fo retrenchment and reform, and against robbing the State of twenty or thirty thousand dollars. And I ask my friends to stand by me, and stand by the State and save the State that large amount of money."

Dowling says they should decide what it will cost before they decide whether to have reporters. This is an unnecessary expenditure, and “she [California] trembles from San Bernardino to Siskyou from the amount of taxation that is already piled upon her.” (p. 45) In the past, this sort of thing has been accompanied by fraud, and “if we get started in this reporting business, it is only an entering wedge.” He estimates $18,520 as the cost, and reporting the debates is “paying for the shadow instead of the substance,” because the constitution is the substance and the debates are just shadows. To pay for these records is “simply throwing money out of the treasury to immortalize a few eloquent men on this floor, who will have speeches in there to transmit to posterity.” The constitution should be like a stone wall, plastered over perfectly smooth, without any cracks, because “these corporations and monopolies would run a locomotive or a steamboat through a keyhole.” The minutes of the convention are enough for future reference.

Shoemaker says the question of priority is an entirely different matter from reporting.

Barton: this is a useless waste of time. The convention should address the matter squarely now.

Filcher: “I do not come here to make any buncombe speeches on matters of reform, economy, etc.,” but the convention should try to save taxpayer money if possible. The legislature has appropriated $150,000 and if we spend it on printing the debates, it will at least help teach the general public, and this is important because if the convention spends this money without getting a ratified constitution, it will all have been a waste. The workingmen “would save to this State every dollar they can...[but] it would seem at a glance that they want to gobble up all of it to pay salaries and not let a dollar of it go to the poor printer.”

Biggs: “I call the gentleman to order.”

Filcher: “...it seems...that their motive must be that they wish to exclude the printers and reporters and all outsiders from getting their hands on any of this money in order that it may be retained in toto among the members in their per diem.” (p. 45). The reporters are waiting here anxiously to find out what the convention will do.

Caples: We should decide if we want a reporter first, before discussing the cost.

Tully: the figures in the cost estimates vary too widely for us to vote. There should be a decent record, but we need a more accurate estimate. We can’t decide if we want a reporter without knowing what it will cost.

Ayers: $150,000 has already been appropriated for this convention, so we can print the debates without any additional taxation.

Barbour: We should vote on whether to have a reporter first. And Barbour opposes it because it is too expensive. The responsibility for publishing rests with the legislature. “Gentlemen talk about giving employment to workingmen. That is all buncombe and claptrap.” (p. 46). Some suggest the courts will resort to the debates in construing the Constitution, but “I do not know that Judges go into constitutional debates for the true intent of a constitutional provision. I undertake to say it would be a bold Judge who would go in there to find what the sense of the convention would be.” Some speakers want to be preserved for posterity, but “Demosthenes and Cicero had no reporters.” And printing a daily digest for the members would be even more expensive. Moreover, “I have a very serious apprehension in my mind that the work of this convention will be an abortion.” The people of California are so divided it is unlikely that they will adopt a new constitution, and so we should at least save California the money. Every newspaper furnishes very good reporting of the debates. “I refer to the hippodrome paper—the dead-alive paper called the Sacramento Record-Union. It is true, sir, that nobody reads it if he can avoid it, but the debates will be there, and that is enough for me.”

Smith of Santa Clara moves the previous question. The president explains that this means the convention will vote on the amendment first (whether the convention believes electing a reporter would be a good idea) and the on Filcher’s motion (whether to proceed immediately to electing reporters). Hager and the President wrangle over whether this is correct, but the President doesn’t budge. They vote, and by 87-50, the convention votes no. The next question is whether to proceed immediately to choose a reporter. This too loses, by a vote of 110-30. The convention adjourns until the afternoon.

Afternoon session--

Laine is given a leave of absence until Tuesday.

Tinnin offers a resolution that the convention now fill the vacancies caused by Morris’ resignation and the deaths of Haight and Hardwick. McCallum moves to amend to replace Haight first. Edgerton moves to amend so as to move the choice till Tuesday, but Tinnin says “we have been here three or four days simply doing nothing,” (p. 48) and the president must fill the committees, which he can’t do when the seats aren’t filled. If people are away from the convention on private business, then we shouldn’t wait for them. Edgerton withdraws the motion.

Caples objects that Morris didn’t resign; he was ineligible. Tinnin says Morris’ resignation was read from the desk. Caples says, no, he was ineligible, and insists on the point of order. Tinnin says the Governor certified him as a member, and there’s no reason to debate this matter. But Hall says that if Morris was ineligible because he wasn’t a citizen of the U.S. at the time of election, then the election was void, and that means his seat can’t be a legal “vacancy,” and Morris can’t be a legal “incumbent.” He cites the recent case of Carver v. Dunbar [sic–actually Crawford v. Dunbar, 52 Cal. 36 (1877)], in which Dunbar was elected, but turned out to be ineligible, and since there was no legal election, Carver was not entitled to the seat, and the government had to declare a vacancy. Barbour wants to know what section of the Political Code says that. Hall responds that he can’t say which section, but citizenship is required and Morris was not a citizen, so he wasn’t elected, so his seat can’t be considered vacant. Another section of the code provides that if an officer is elected and fails to present himself within 10 days, the office is automatically considered vacant, but it hasn’t yet been 10 days. However, if the convention substitutes “ineligibility” for “vacancy” in the resolution, it would all be in order.

Murphy says this is all a waste of time and a matter of no consequence, and moves the previous question. Caples withdraws his amendment, and the resolution is adopted. The delegates proceed to nominations.

Barbour (W) nominates J.R. Sharpstein, as the unanimous choice of the S.F. delegates. Most legislatures allow for special elections, he says, but in this case the legislature allowed the convention to fill its own vacancies, and the election results show that Sharpstein was the next most popular candidate in San Francisco. We could have argued that Morris was eligible, but “we went by the spirit of the law,” (p. 49).

Cross seconds. “We claim that the Workingmen’s Party of San Francisco and of the State has been greatly misunderstood. That some gentlemen on this floor have a wrong impression in regard to the principles and purposes of the Workingmen’s Party.” At this point, Barnes interrupts, saying this is not germane. Cross insists it is. The results of the votes can’t really change if Sharpstein is chosen, because the Workingmen have 51 votes against 100, and since there are so few here who can explain the real ideas of the Workingmen, it would be helpful to have Sharpstein, who can forcefully present their views. The Workingmen are willing to endorse the Non-Partisan candidate if they nominate one to fill Haight’s seat, so they should support the Workingmen’s choice.

Barnes starts a speech in agreement, but Reynolds interrupts him. Barnes is allowed to continue and accuses the Non-Partisans of intolerance, which was also witnessed when the Governor, presiding temporarily spoke harshly to Barbour early in the convention. But Barnes opposes allowing the San Francisco delegation to choose a replacement. Nobody who lost an election should demand a seat on the grounds that he got a plurality of votes, and then do so on the basis of just the S.F. delegation’s choice. The convention has the power to fill vacancies, and they may select any man from Shasta to San Bernardino. “We have the right to present some proper person coming from San Francisco for that position. On the local ticket there was a vacancy. The gentleman claims credit for not perpetuating a fraud—credit for not perpetrating a political crime—and for demanding the resignation of a man who had been standing on bogus naturalization papers. That is not the point.” (p. 49). R.H. Lloyd had more votes than Sharpstein, and we should elect him. “I...know Judge Sharpstein, I knew his history before he came to the State. I know it now. I knew him as a Democrat. I knew him again as a red-hot Republican, when [Governor Newton] Booth came to the surface.”

Dowling raises a point of order that this is not germane. The President agrees. Cross raises a point of order that when Barnes objected to Barbour speaking on this subject, the chair held that Barbour was out of order. But now Barnes is being allowed to do the same. The President says he doesn’t recollect any such ruling.

Barnes says “My friend is mistaken about that, as he generally is.” There was no unanimous endorsement of the people of San Francisco for Sharpstein, he insists. Sharpstein was “caught up like a chip upon the surface of this great wave of popular discontent, and was put upon the ticket at large, where he had no possible hope of being elected.” People claim Sharpstein is a good Workingman, but “the most remarkable decision that I ever knew Judge Sharpstein to make was made in the interest of the Spring Valley Water Company, and the Supreme Court reversed his decision from the bench. That is his record upon the subject of corporations.” (p. 49-50). Sharpstein is a political opportunist who “had ridden the Democrats, had ridden Booth, and now he jumps on top of the Workingmen’s movement.” Even if there were no other candidate, Barnes says, he wouldn’t vote for Sharpstein. “So far as the record is concerned, he has favored those corporate monopolies of which complaint is made.... When we shall have finished the work of this Convention I think it will be apparent who are the men about whose necks the corporation collar stands. It is not upon mine, and I hope the gentleman will not repeat what he has said this morning. I believe in the right of the State to control every corporation in it. It has the right and should have the power, and such a provision should be put in this Constitution that shall hold them with a grasp of iron, so that never again in this State shall there be any unjust discriminations, any outrage or wrong inflicted upon persons or communities from the day this Constitution takes its place as the organic law of the State, until time shall be no more. [Applause].” (50). Lloyd has been a resident of San Francisco since a child. Worked as an errand boy, educated and trained himself, and is a good and careful lawyer. “He was a candidate on the Non-Partisan ticket, and had the support of all classes of men, Germans, French, and Americans—thank God there are a few left. [Applause].” Lloyd is a man of perfect honesty, and just because there is a large S.F. delegation doesn’t mean the minority from S.F. should be silenced.

Brown of Tulare nominates Jose R. Pico, “with whose family you are all well acquainted; it is a family whose name is connected with the early history of California.” (50).

Barnes asks if Pico was also a candidate on the Workingmen’s ticket.

Barbour: “Mr. Pico was repudiated by the delegation. [Applause].”

Brown continues by describing Pico’s family history. His father was a delegate to the 1849 convention, and was a wealthy philanthropist, who donated a site for a state capitol in San Jose, and the grounds for the San Quentin prison, and the insane asylum in Stockton. His son has also given much land to the state, and is “the only member of that race, that once possessed this whole country, that is on hand here.” (p. 50). The 23,000 Spanish and Mexican residents are otherwise “without representation.” Pico is a gentleman of refinement, ability, and learning.
Barbour (W): “I should feel myself recreant to my trust if I did not rise to defend the name of [Sharpstein].” He’s been subjected to outrageous attacks, but is known and respected in San Francisco, and Barnes’ candidate is an attorney for the Spring Valley Water Company, and a son-in-law of Senator Sharon. Barnes should not cast aspersions on Sharpstein.

Beerstetcher (W) insists that they don’t make the nomination for base motives. We recognize the convention may choose anyone, but Sharpstein got 13,913 votes in the last election, and Lloyd got 8,526. If the will of the people is to be respected, the convention should choose Sharpstein. We say nothing against Lloyd, but the votes Sharpstein received are “better than the charge” that Barnes has brought against Sharpstein. “The vote here will determine whether we respect the voice of the people as the voice of God, or whether we expect to vote in a partisan spirit in this campaign.” (p. 51). On simple democratic principles, we ask you to vote for Sharpstein.

Winans objects that the San Francisco delegation does not represent the people of San Francisco. “The old political parties were divided against themselves,” and that’s how the Workingmen were elected. They don’t represent a majority of people in San Francisco.

Shafter: “I would take great pleasure in supporting Mr. Pico...if I could do so with propriety and safety. I am a man of exceeding timidity, and am apprehensive that I should be exposed to considerable personal danger from Mr. Pico, were he a member of this convention. In his canvass, Mr. Pico declared his intention to bring his lasso here, and with it subject all the thieves and rascals in the State and Convention to the discipline of that instrument. As he includes me in his inculpatory terms, I think I have a right to increase my chances for security by excluding him, if possible, from this convention.” The Pico family is rightly respected, but the San Quentin property was not a gift; it was paid for. As for Sharpstein, “I have known this gentleman for twenty six years.” First he was a Democrat, then became a Republican when it became the dominant party, and he has “Returned to his wallowing at the earliest opportunity.” He was accused of malpractice in Wisconsin, although that was explained away when he was made a judge by Governor Booth. When elections for judge came around, the Democrats and Republicans rejected him, so he turned to the sand-lot (i.e., Workingmen) and gave speeches accusing the government of “every wickedness and villainy,” (p. 51) and these accusations were not substantiated but were “simply examples of vindictive vituperation...uttered to a mob, utterly incapable of reason...and was apparently used for the sole purpose of still further inciting the mob to riot, violence, and bloodshed.” It is proper to bring these subjects up at this point, and if Sharpstein is going to give blows, he has to expect to receive them in return. The Workingmen don’t deserve polite treatment, since they refuse to extend it.

Murphy says that although he was elected as an Independent, and not as a Democrat, Republican, Non-Partisan, or Workingman, he believes that the seat should be filled by a representative of the same constituency that voted for Morris. So he will vote for Sharpstein. “[Great applause on the Workingmen’s side.]”

Joyce: “I rise to indorse the nomination of Judge Sharpstein.... It is a well known fact that this famous sand lot that the gentleman speaks about is the declared enemy of all forms of monopolies, bank rings, railroad monopolies, land monopolies [Applause].”

Smith of Kern: Although elected as a Non-Partisan, he will vote for Sharpstein because the convention should respect the wishes of Morris’ supporters.

Hager nominates J.C. Burch. Hager knows and respects Sharpstein and Lloyd (Lloyd was a law student of his) but Burch is a state legislator and Congressman and a member of the Code Commission and well qualified.

Tinnin seconds Burch. He’s known Burch for 26 years as a county clerk and district attorney and other offices, and he’s well qualified.

Haskell also seconds Burch, who is a lifelong Democrat and well qualified.

Harvey nominates Smith B. Thompson, a carpenter, well admired in San Francisco. There are already too many lawyers. “Let us have a carpeneter to plane down these little technicalities.” (p. 52).

1st ballot: Sharpstein 56; Lloyd 44; Thompson 20; Burch 15; Pico 1

2nd ballot: Sharpstein 56; Lloyd 43; Burch 16; Thompson 22

3rd ballot: Sharpstein 58; Lloyd 48; Burch 12; Thompson 21

4th ballot: Sharpstein 58; Lloyd 49; Burch 15; Thompson 17

5th ballot: Sharpstein 58; Lloyd 49; Burch 12; Thompson 17

6th ballot: Sharpstein 57; Burch 15; Lloyd 46; Thompson 16

No choice. Adjourn for the day.

Day 6: October 6, 1878 (afternoon)

White (W) raises a question of privilege because the S.F. papers have a comment from a delegate who has made “a most unwarrantable attack upon about one third of the members of this Convention.” (p. 40) Barnes says a privilege is to be stated briefly or in writing, not as a speech. White sends up the passage which is the subject of the complaint and the Secretary reads it: “S.M. Wilson said that members of all different parties had been elected in opposition to the Workingmen’s party, and they had fifty-one solid votes on every question, being well organized. Thus, every day, two thirds of the convention are beaten by one third and the reason is they did not know one another. All have a common cause against Socialists and Communists, who are endeavoring to undermine the state. Do we know what is taking place among those Communists who are meeting in other chambers? Of course not, because they are in private. The small number wields for good or evil the destinies of this Convention. It is proposed to harmonize views, and see if we cannot elect the best man, without wrangling.” (p. 41).

The President says since this was spoken outside the Convention, it’s not a matter of privilege. White appeals this, and ayes and noes are demanded by Beerstetcher, O’Sollivan, and Wyatt. White says “we ought to be allowed to relieve ourselves from accusations coming from individuals as well as from the public journals.” (p. 41) McFarland opposes this, because it would mean the convention would be “pestered with questions of personal privilege,” and certainly privilege should not apply when the comment is about a political party rather than an individual. Inman says this is all out of order and moves to table the matter. This prevails, 70-66. Beerstetcher says this vote has not been accurately counted, but nothing is done about it.

The matter of a shorthand reporter is the special order, and the section of the committee report is read. It says a shorthand reporter should be chosen, who can have an assistant, and they shall transcribe longhand at 20 cents per page, with a $6,000 maximum, and must post a $10,000 bond. (Estee moves to add Barnes to the Committee on Rules, and this is agreed to. The matter about adjourning to Monday is tabled.)

Ayers explains that the State Printing Office will publish the reports, which he estimates at $2,000 if it comes to 800 pages, as the Illinois and Ohio conventions did, and assuming a 1,000 copy print run. Fawcett asks if the California Convention lasts 100 days, how many volumes would it take? Ayers says the Ohio convention was 1,333 pages, but he doesn’t know how long it was in session. Fawcett says he thinks it will be at least three volumes. Ayers says he’s been told the Ohio convention was in session 190 days.

Fawcett says he guesses 5 volumes for the California Convention, so it would be safe to guess it will cost more than $10,000. The total expense as much as $15,000. It’s absurd to guess less than $2,000.

Ayers acknowledges his are rough estimates, but if we want accurate figures, we should appoint a committee to study the matter.

Rolfe says we are limited to 100 days, so it is reasonable to guess 2 volumes. Swing says the Ohio convention lasted 188 days, and the reports cost $13,695.78. The printing was a little more than $8,000 Since “this Constitutional Convention cannot be in session more than 75 or 80 days,” it’s reasonable to guess $8,000 to $10,000.

Larkin moves to table all of this, but Hager contends that the Act requires them to choose a reporter. Inman says, “These gentlemen are not going to stop here for a month and report our proceedings for nothing. I would like to know the gentleman’s object. I can’t see no reason for such a motion. I would like to have him state the object. If it is only for delay I hope the gentleman will see the impropriety of it. Let us get down to business. This is only buncombe. For my part I have had enough of their buncombe.” (p. 42). Larkin withdraws his motion and recommends returning the matter to the committee. This is agreed to, and the convention adjourns.

Bibliography on the 1878 Convention

Kevin Starr, California: A History (New York: Modern Library, 2005), pp. 118-129.

Barbara Allen Babcock, Clara Shortridge Foltz: Constitution Maker, Indiana Law Journal, vol. 66, pp. 849-912 (1991).

Harry N. Scheiber, Race, Radicalism, And Reform: Historical Perspective on the 1879 California Constitution, Hastings Constitutional Law Quarterly, vol. 17, pp. 35-80 (1990).

Andrew F. Rolle, California: A History (New York: Thomas Y. Crowell Co., 1963), pp. 401-415.

John Walton Caughey, California (Englewood Cliffs: Prentice-Hall, 2nd ed. 1957) pp. 377-392.

Carl Brent Swisher, Motivation And Political Technique at The California Constitutional Convention of 1878 (New York: Da Capo 1969) (first published, 1930).

Noel Sargent, The California Constitutional Convention of 1878-9 (part 1), California Law Review, vol. 6 pp. 1-22 (1918).

Noel Sargent, The California Constitutional Convention of 1878-9 (part 2), California Law Review, vol. 6 pp. 114-133 (1918).

Winfield J. Davis, History of Political Conventions in California, 1849-1892 (Sacramento: ? 1893) (avail. at Google Books)

E. B. Willis & P. K. Stockton, Debates and Proceedings of the Constitutional Convention of the State of California 3 vols. (Sacramento: State Office, 1880).

T.J. Vivian & D.G. Waldron, Biographical Sketches of The Delegates to The Convention to Frame A New Constitution for The State of California (San Francisco: Francis & Valentine, 1878).

Standing Rules And Officers And Standing Committees of The Constitutional Convention of The State of California (Sacramento: State Office, 1878).

Day 6: October 3, 1878 (Thurs.)

The chair appoints various subordinate officers.

Murphy presents a report of the committee on reporters, which recommends a reporter and an assistant and two shorthand reporters, and that verbatim transcripts be prepared at 20 cents per page. If the convention lasts more than 100 days, reporters should not get more than $6,000. Reporters must post a bond of $10,000.

Beerstetcher offers a resolution to dispense with reporters entirely because the people of California are "groaning under the burden of greivous taxation." (p. 36). This is made the special order for 11 o'clock.

Estee presents a report of the Committee on Rules and Order of Business, which suggests 23 committees be created. Hager moves to add another, called the Committee on Schedule, consisting of the chairs of each committee. Estee says the report already provides for that. Edgerton says there are a few he's thought of that aren't on the list. Herrington moves to add a Committee on Federal Relations, but Tinnin says that's already part of the Committee on Immigration, "which includes also the Chinese question."

Keys suggests a committee on mining. Dudley of Solano says there's often conflict between mining and agriculture, so the two should be separated. Blackmer agrees. Other state conventions have combined the two, but the mining interest is so big in California that they can't be combined.

Estee says, in Pennsylvania, where the mining interest is six times as large as in California, the two were combined so that the differences could be hashed out in committee. New York did the same. But if the convention chooses, this part of the report could be recomitted to the committee. Blackmer: "If they mine gold in Pennsylvania, upon the plan we do here, then it is a parallel case." (p. 37). But he opposes it.

Dudley of Solano moves to separate the two. O'Sullivan moves to consider the report seriatim. Edgerton asks Dudley to withdraw his motion and he does, on condition that this part of the report be recomitted. This is done, and the rest of the report is adopted.

The question now is on the section from the report of the Committee on Rules, which is recomitted.

Nominations proceed for assistant secretaries. Huestis suggests voting for two at a time. Larkin says this will cause delay unless there's been a caucus already. Edgerton says it's "quite refreshing to hear the gentleman talk of caucuses," (p. 37) but the point is to get this done as soon as possible. We've been here four days choosing two officers. Larkin says, "we are not responsible for the delay. We have not come here for the spoils." Smith and Thornton are elected. Sherwood is then elected Sergeant at Arms. Nominations are made for president pro tem. Wilson nominates Belcher (NP-R); Larkin (W) nominates Wyatt (W). Belcher wins. Crawford is elected minute clerk. McStay elected journal clerk. Chambers elected Assistant Sergeant at Arms.

Estee moves to adjourn until Monday, since they can't do anything without a report on the Committee on Rules. Beerstetcher opposes because the delegates aren't paid for more than 100 days and they're not allowed to adjourn more than 3 days at a time, pursuant to the enabling act. Estee says, this would only be three days. Hager says, Sunday counts, so it would be four. Suggests they adjourn tomorrow morning, since the debate about a reporter will take the rest of the day. Barbour says it shouldn't take that long to prepare rules, and we should use this time to fill the vacancies.

Winans says it wouldn't be counted as four days, and the president needs time to choose committees, so they should adjourn. Estee tries to withdraw the motion, but the president says he can't do that. McCallum says the Rules Committee shouldn't take two hours to report some rules, and we can require them to report tomorrow. Wilson points out that with 22 committees, there are some 273 memers to be chosen, and the convention can save money by adjourning. Larkin says we should spend the time filling vacancies. This is made the special order for 2 o'clock, and the Convention breaks until the afternoon.

Day 5: October 2, 1878

Barbour offers a resolution that delegates from the second congressional district and from San Francisco name people to fill the vacancies created by Haight's death and the resignation of Morris, and that the convention elect a delegate for Maripos and and Merced. In both cases, the convention would reserve the right to reject nominees.

Dudley (R) moves to table it, but Barbour, Beerstetcher and White call for yeas and nays. Hillborn (R) objects that the convention cannot delegate this power to the San Francisco delegation. The chair agrees, because the enabling act only allows the convention to fill vacancies. Barbour appeals this.

The law says that "in case any vacancy occurs...the same shall be filled by the convention." Ayers says this doesn't forbid delegation.

Barnes complains that folks in the back can't hear.

Barbour says the law doesn't forbid the convention from delegating its choice to the S.F. delegation, but they can't delegate the choice to the Mariposa/Merced delegation, because there is none, now that their delegate has died. The Convention retains the power to reject whomever the S.F. delegates might choose. "My object is...to take the struggle out of this convention." (p. 29). The S.F. delegates, he says, will choose James Sharpstein.

Estee: this resolution would only allow the 30 member S.F. delegation to choose someone, and the convention would have the authority to reject that person. These 30 representatives are Workingmen, so they'll choose a qualified person. But the resolution would not allow the convention to choose, and the convention should review the qualifications of every member.

Brown: I agree. It's not the convention's duty to set the S.F. delegation to doing business that the convention should be doing.

Cross: The law clearly says the convention shall fill vacancies, and that prohibits the chair or the governor, or anyone else from doing it.

Barbour withdraws his appeal, and the president reiterates that the resolution is out of order.

President names a committee on Rules and Order of Business: Estee (?), Edgerton (NP-R), Overton (NP-D), Mansfield (NP), Schell (NP-R), Berry (D), Fawcett (NP-R), Reynolds (W), West (W), Holmes (D), Dudley, Murphy (NP-D), Pulliam (NP-D), Tinnin (NP-D), Waters (NP).

Wyatt offers resolution to appoint a committee of 5 to set per diem rates. Van Dyke objects that no committee is needed, since the enabling act sets forth the rates. Edgerton moves to table the resolution. Wyatt says there's no way yet to get the money that's due, so "I want some way that the convention can unlock the strongbox of the state and get at some of that one hundred and fifty thousand dollars that is lying there rusting." (p. 30).

Hager explains how payment is to be made: the amount of pay is ascertained by the president, certified by the treasurer, and per diem may be drawn on allowance of the president. So we should await the formation of the Committee on Rules.

Caples seconds the motion to table, and it prevails.

The Committee on Organization reports, recommending several minor officers. Hilborn moves to add a night watchman, and Lewis asks why. Shoemaker says that they need one to guard their desks, since any key will open the desks. Biggs says they need a day watchman, too. A night watchman is agreed to. Van Dyke points out that a doorkeeper can act as day watchman. Beerstetcher: "I would like to know why we intend to employ three doorkeepers, a sergeant-at-arms, an assistant sergeant-at-arms, if they are not to perform these duties in the daytime at the salary they are to receive." (p. 30) Biggs withdraws the motion.

Ayers renews his motion to reduce pay to the stenographers from 20 c per day to 15. Freud seconds. Much discussion ensues, as to how hard the work is and how necessary. Hale points out that the 1870 Illinois Convention saved a lot of money by providing for "phonographic reporters," then publishing the debates daily for each member. Estee points out that the Illinois convention debates cost $57,552.50. Larkin says "the reasons why we adopt the constitution is the only matter that should be reported--only just such matters that are necessary to show to the future generations the reasons why this or that amendment was adopted, is all that should be paid for by the state..." All of this is just trifling debate, he adds. Dudley moves to refer the matter back to the committee. After a bit more discussion, it's finally sent back to committee, and the convention breaks for lunch.

In the afternoon, the committee on attaches reports. Boggs tries again to eliminate a stenographer, because the people of California are already overtaxed. "There is not one man in twenty who will ever read" these debates (p. 32). Later, Beerstetcher tries to reduce the number of doorkeepers. Filcher says they should eliminate them entirely, and Beerstetcher agrees.

Wilson says the committee had several former congressmen and state legislators, and they all thought doorkeepers were necessary. Larkin agrees, because the convention will have many committee rooms and all will need security. It's better to come up with a number of required positions first. Noel offers a resolution to put off discussion until Sunday and to move on to "legitimate business," which causes laughter in the hall. (p. 33). Freeman argues that the debates shouldn't be recorded--the journal is enough, and the only reason to record the debates is to "flatter the personal vanity of the members." (p. 33).

Barnes objects to this because "we are to consider some hitherto untried experiments in government," and that it's important to preserve the debates for the courts to use when interpreting the constitution. The "swarm of speechlets" should not go into the journal, but the reasons for the delegates' actions should be preserved, because "lawyers...are all aware that when we seek the construction of a clause in the constitution, it is of great assistance to resort to the debates of the convention which adopted it." McFarland says we should determine to take shorthand notes, but leave the matter of transcribing them for later.

Biggs says, it would be a waste to transcribe and print the debates during the convention. People call him the "watchdog of the treasury," but from the way the convention has been going so far, it needs more watching.

Heiskell says his constituents would be happy to see their money spent on this. White says, no they wouldn't: "they know that the Supreme Court of California decides these questions without any reference to the debates of members on this floor. Do you suppose they rule this way: 'Mr. So-and-so proposed such and such a thing in this convention?'" Huestis offers a resolution that the convention elect 1 reporter and such assistants as he deems necessary, and to be paid $5,000.

Estee suggests the whole subject be made a special order for tomorrow.

Reynolds points out that the Record-Union has a full transcript of yesterday's proceedings and it took up 5 columns. According to his calculations that comes to $38.90 per day. Now, "we should publish a verbatim report, or none at all.... The State of California can afford to py for it at these rates.... Stop this talk and get down to business. [Applause]" (p. 34).

Harvey suggests paying reporters $10/day and capping the total at $60,000. Murphy moves to just adopt the committee report except for the part on reporters. This carries. Murphy then moves to commit the reporter question to a select committee. This prevails, too. Beerstetcher moves a resolution requiring this committee to draft a contract, but rather than being adopted, this resolution is referred to the new committee. Nominations for sergeant at arms then begins, but after 3 ballots, none is chosen, and the president names to the committee on reporters Murphy, Filcher, O'Sullivan, Shoemaker, and Ayers. The convention adjourns for the day.

Day 4: October 1, 1878

O'Sullivan (an old Broderick Democrat, now a virulently anti-Chinese W) objects again to Terry being seated. This goes nowhere.

Election of Sergeant at Arms &c.--McFarland suggests changing the order of elections, but the Convention holds that they must follow strict rules of the Enabling Act.

Biggs (?) nominates Boruck for secretary. Eagon (NP-R) seconds, because Boruck has a loud voice.

Shoemaker (NP-D) nominates Carpenter, who was recently clerk of the legislature.

Tinnin (NP-D) nominates Redding

Larkin (W) nominates Clark

Filcher (NP-D) nominates Johnson, because southerners should have some offices too. McCallum seconds.

Barbour seconds Clark.

Nobody gets a majority. Ringgold objects to Terry being allowed to vote, but it's ruled out of order. Second vote inconclusive. Barbour objects to the president voting except in cases of tie, but is overruled by the chair. Vote fails. Fourth vote fails. Fifth vote proceeds, but gets so confused that they have to call the rolel again, which leads to an objection, which is overruled. Finally, Johnson wins.

Afternoon: Wilson (?) suggests that the President choose a committee to suggest all offices except the presidency, secretary, &c. Beerstetcher seconds. Filcher suggests choosing major officers first. This suggestion is withdrawn after much discussion, and a committee is appointed.

Reynolds (W) asks for a committee to consider matters of eligibility of members. Barnes (NP-R) tries to talbe it. Van Dyke says, wait until we have a committee on Privilegs and Elections. Barnes agrees, because it's not necessary to officially notify the convention of the death of a member; merely suggesting it to the chair is enough in law courts and it should be the same for the convention. Estee agrees and Reynolds' motion is tabled. Barnes moves for the convention to fill the vacancies caused by 2 deaths and 1 resignation. Howard says, we must choose officers first. Reynolds, obviously annoyed, tries to table this motion, but loses 77 to 66. Barnes' recommendation wins by a single vote.

O'Sullivan moves for a committee to screen applicants for "phonographic recorder," because the position has so much potential profit that he wants to "see no stealing." This is defeated.

Estee moves that a committee on rules be found to draft rules and to suggest what standing committees are needed. This is adopted. West suggests which committees there should be.

Convention adjourns.

Day 3: September 30, 1878

Terry arrives. Beerstetcher tries to object to seating him, but is ruled out of order.

Some question about handling the secretaryship of the convention. A motion is made to let the Secretary of State act as secretary of the convention temporarily. Irwin says that this was his idea anyway, and that is confirmed by the convention. Then a motion is made by Tully (NP-D) to elect a president. Motion carries. Barbour (W) proposes resolutions about nominations, but the chair rules this out of order. Vigorous debate ensues, with Barbour and Beerstetcher (socialist W) leading it. The Chair is sustained 99-45. Beerstetcher argues that people should make nominations so that there are no backroom deals. NPs argue for just voting for your favorites without nominees, to avoid partisanship. O'Donnell (virulently anti-Chinese W) makes a pro-Workingmen speech, about how California should "lead the revolution." (p. 17) and how this is the first step in the 1880 Presidential campaig. Estee (NP) says no, NPs aren't against nominations. Herrington argues, we should have nominees so that we know who they are before they get a chance to serve as president. McCallum points out that all this results from a silly misunderstanding by the chair, and nominations are the usual course of business. Reconsideration is granted.

Johnson (NP-D) nominates Tinnin (NP-D).

Brown (D) nominates Howard (D).

Barbour (W) makes long speech nominating Larkin (W) and listing the purposes of the convention as "the power of corporations shall be restrained...that monopolies are to be broken up...that the Chinese nuisance shall be abated...that political corruption shall be expelled from our public places (p. 18). He says people call Workingmen communists and revolutionaries, but that's not true. They're a righteous rebellion. He swears they have no desire for revolution or social overthrow, but to "restrict and reconstruct the fabric which has been eaten into."

Beerstetcher seconds Larkin's nomination in a long speech. "We are not agrarians...[or] barnburners.... We can see that corporations have rights, and we are willing to give them rights, but we also desire to have the rights of the people recognized." Workingmen "came here for the purpsoe of...making a crusade against the aspirations of railroad companies and land monopolies, gas and water monopolies, and te lottery called stock gambling...making a crusade against the Chinese...reforming the taxation system, and the interest system, but we do not come here for the purpose of taking away property that any man has honestly acquired.... I repel and repudiate the idea that I am a communist and a disorganizer." (p. 19).

Dowling (W) also seconds Larkin, saying that if the convention doesn't give them freedom to declare their views on things, "we will cripple the Constitution."

Laine (NP-D, who drafted an entire proposed constitution before the convention began) nominates Hoge (NP-D), arguing that an older man is better suited than any young ambitious fellows.

Vote: Tinnin 17, Howard 11, Larkin 49, Hoge 67, Reed 3. Since 74 are required for victory, second vote: Hoge 70, Larkin 49, Tinnin 17, Howard 9, Reed 2. Third ballot: Hoge 71, Howard 9, Larkin 49, Tinnin 16, Reed 2. Fourth ballot: Hoge 72, Larkin 49, Tinnin 17, Howard 8, Reed 2. Barbour withdraws Tinnin's nomination. Fifth ballot: Hoge 74, Tinnin 73. So Workingmen all united against Hoge, but he wins by a single vote.

After the last ballots are counted but before the winner is announced, O'Sullivan challenges the seating of Judge Fawcett, and Beerstetcher renews his challenge to Terry's seating. But these are ruled out of order and Hoge is seated as president. Makes some noncomittal remarks, and the convention adjourns.

Day 1: September 28, 1878 (Saturday)

All delegates are present, except David Terry and six others, two of whom are deceased. Governor Irwin is temporarily presiding. Delegate Thomas Morris submits his resignation. The Convention decides to adjourn until 11 a.m. Monday, but this motion (by Dudley) is opposed with some vigor by Beerstetcher, Hager, and others, and also Herrington, who makes a little scene. Convention adjourns.