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.
