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Monday,]

Johnson–COLLINS-DELONG-HAWLEY.

[July 25.

in the Justices' Courts, wbile the great litiga-l. Mr. JOHNSON. Certainly; so it is now; tion which occupies the time of the higher they pay the sheriff's and clerk's fees. courts is sustained by taxes paid by the public Mr. COLLINS. Let them pay the court exat large. If that kind of sauce is good for the penses also. I can see no rea on wby we goose, it should be good for the gander. If it is should require them to pay the clerk and 'sherproper, just, and right to tax a humble liti- iff, and not the judge. I see no good reason gant who goes before a Justice's Court to en- why a court fee should not be exacted in proforce a demand for five, ten, or twenty dollars, portion to the amount of money involved in or more, it certainly seems to me to be emi- each suit, and I think it would be very unjust nently proper that the litigant who goes before indeed to tax a man who comes before the the higher court, with his claim of two thou- court to enforce a claim of three hundred dolsand, ten thousand, or twenty thousand dollars, lars, the same amount that you would if his should, upon the same principle, be called claim were for three thousand, or thirty thouupon to pay something toward the expense of sand. or three hundred thousand dollars. I sustaining the court.

insist that this court fee is correct in theory, Mr. JOHNSON. I do not understand the and I am confident that it will work well in pertinancy of the remarks of the gentleman practice. who has just taken his seat, when he assumes Mr. HAWLEY, I trust that the proposition that the humblest litigant ip a Justice's Court to strike out the word “shall” and insert inis required to pay a docket fee.

stead the word “may,” will prevail. I want to Mr. COLLINS. I think I can make myself see the language so modified as to leave this clear to the Convention on that point, if not to matter discretionary with the Legislature. my excellent friend from Ormsby. I say, if it Now, sir, it is, according to my experience and is proper to support a District Judge by a sal- observation-and I appeal to attorneys who ary which has to be paid out of the taxes of are familiar with the practice of the law, and the people, it is also eminently proper, I think, the results of practice, to say whether it is to support a Justice of the Peace by a salary not in accordance with their own—that in as to be paid by the taxes of the people in like many as two cases out of five, if not a greater manner. Am I understood ?

proportion tban that, and especially in actions Mr. JOHNSON. No, sir ; or at all events of ejectment and other cases of that character, the gentleman has not reached the point yet. the plaintiff, though compelled to bring suit in He is assuming, as I understand, that a docket order to recover his rights, nevertheless fiods fee has to be paid by litigants to a Justice of the defendant in such a condition that be can. the Peace

not pay the costs, and they are therefore taxed Mr. COLLINS. And so it has.

against the prevailing party. He is obliged to Mr. JOHNSON. Allow me to explain ; I pay all the costs of the clerk and the sheriff, had not finished my sentence. A Justice of the and to make him pay all those costs, and then Peace occupies the same relation to parties lit- a docket fee in addition, would be extremt ly igant, so far as fees are involved, as does the onerous and burdensome. Therefore I bope clerk of a higher court. He bas his own office, the amendment offered by the gentleman from and is entitled to his fees at the same rate as Ormsby will prevail, or at any rate that we the clerk of the District Court.

shall provide that no such tax shall be enforced Mr. DELONG. And he does not receive a against the prevailing party. cent of salary outside of his fees.

Mr. DELONG. If the gentleman's interrogMr. JOHNSON. Certainly not; neither does atory, as to cases where the defendant is unathe c!erk. They both receive fees, but as to its ble to pay the costs, is addressed to me, I have being a docket fee, it can no more be regarded to say in reply, that no matter whether the in that light in the one case than in the other. plaintiff recovers the costs or not, he still reIt is not a docket fee that is paid to the Justice covers the property, and if he is benefited by of the Peace, under existing territorial laws, his suit, whilst I am not, I do not see why he because his services are compensated exclu- should not pay the whole of the expenses of sively by fees of office.

the court instead of making me pay a par t. Mr. COLLINS. It matters not in regard to (Question, question!”] wbat name it may be called by. The great [Mr. KINKEAD in the chair.) fact still stands out that the compensation of a Mr.JOHNSON, and others, demanded the yeas Justice of the Peace, who acts as a judge in and nays on the amendment to strike out the the smaller class of cases, is paid by the liti- word shall," and insert instead the word gants, while the compensation of the judge “ may.” who tries and decides the great causes, is paid, Mr. HAWLEY. Is a further amendment not by the litigants, but by the taxes of the now in order ? people. I care not in what language it may be SEVERAL MEMBERS. Oh, no!--Question ! presented; the fact stands out in bold relief, just Mr. HAWLEY. I withdraw it. the same, and I am in favor of extending the The question was taken by yeas and nays on the same principle that governs in the Justices' the amendment offered by Mr. Johnson, to Courts to the higher courts. Let those who strike out “shall” and insert “may," and the want to litigate pay for it.

vote was-yeas, 5; nays, 19-as follows:

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Yeas-Messrs. Brosnan, Crawford, Gibson, Hawley, SEC 18. In order that no inconvenience may result and Mr. President.5.

to the public service from the taking effect of this arti. Nays-Messrs. Banks, Belden, Brady, Chapin, Col. cle, no judicial officer shall be superseded, nor shall lins. Crosman, DeLong, Dunne, Frizell. Folsom, Ken the organizat of the several courts be changed nedy, Kinkead, Mason, McClinton, Murdock, Proctor, thereby, until the election and qualification of the Tagliabue, Warwick, and Wetherill-19,

several officers provided for in the same. So the amendment was not agreed to.

No amendment was offered. Mr. MCCLINTON. Now I again move my

CITY RECORDERS. amendment, which I temporarily withdrew in order that the amendment of the gentleman Mr. BROSNAN. My attention has been from Ormsby might be disposed of. I ask called, by the gentleman from Ormsby, (Mr. unanimous consent to amend the first paragraph Johnson,) to the reading of Section 10, as it is of the section, so as to read as follows: now numbered. Will the Secretary read that * The Legislature, at its first session, and from time

section ? to time thereafter, shall prescrlbe by law, that upon

The SECRETARY read Section 10, as folthe institution of each action," etc.

lows: The amendment was agreed to by unanimous Sec. 10. No judicial officer, except Justices of the consent.

Peace, shall receive to his own use any fees or perqui. Mr. BANKS. The word “provide,” I think sites of office. is better than “prescribe." I will move to

Mr. BROSNAN. That section is taken from substitute the word “ provide" for prescribe." the old Constitution, framed last year, in hac

Mr. MCCLINTON. . Yes; that is better, cer- verba, but since that time a Recorder's Court tainly.

has been established in Virginia City, and the The amendment was agreed to by unanimous Recorder is paid, I believe, by fees. This secconsent.

tion, as it now reads, would, in my judgment, Mr. DELONG. Now, is the word “ civil” cut bim off altogether from receiving any fees, there--"civil action ?"

and I therefore move to amend the section by The SECRETARY. No, sir.

inserting after “ Justices of the Peace," the Mr. DELONG. I ask to have the word "civil” wurds - and Recorders of cities.” inserted before " action,” so as to read-upon

Mr. DELONG. It would be better to saythe institution of each civil action, and other" and City Recorders” proceeding,” etc.

Mr. BROSNAN. Very well; let it readThe amendment was agreed to by unanimous “except Justices of the Peace, and City Reconsent.

corders." Mr. DELONG. It occurs again, I observe, The amendment was agreed to by unanimous further down. Let the word “civil” come in consent. before " action," in the second instance," and

JCSTICES OF THE SUPREME COURT. also upon the perfecting of an appeal in any

Mr. CHAPIN. I would like to hear Section civil action,” etc. Will the Secretary read the 2 read again. section as it will then stand ?

The SECRETARY read Section 2, as follows: The SECRETARY read as follows :

Sec. 2. The Supreme Court shall consist of a Chief Sec. 16. The Legislature, at is first session, and Justice and two Associate Justices, a majority of whom from time to time thereafter, shall provide by law shall constitute a quorum; provided, that the Legislathat upon the institution of each civil action, or other lature, by a majority of all the members elected to proceedings, and also upon the perfectivg of an appeal each branch thereof, may provide for the election of in any civil action or proceeding in the several courts two additional Associate Justices, and if so increased, of Record in this State, a special court fee or tax, to three shall constitute a quorum. The concurrence of be fixed by law, shall be advanced to the clerks of said a majority of the whole court shall be necessary to courts respectively, by the party or parties bringing render a decision. such action or proceeding, or taking such appeal ; and the money so paid in shall be accounted for by such Mr. CHAPIN. I see that provision is there clerks, and applied towards the payment of the com- made for the addition of two associate justices, pensation of the judges of said courts, as small be di- but I do not notice any provision for reducing rected by law.

the number again to three. My idea is, ibat Mr. DELONG. That is right now.

in all probability this increase to five judges The further amendment proposed by Mr. De will be made at an early day, for now is the Long, (to insert the word "civil," in the second time, and for the next two or three years, when, instance,) was agreed to by unanimous consent. if ever, five judges on the bench will be of LEAVE OF ABSENCE.

great service to the State. If we are going to

want them at any period in our bistory, it is at Section 17 was read, as follows:

this period, and it is my opinion that we will Sec. 17. The Legislature shall have no power to need them for perhaps three, four, or possibly grant leave of absence to a judicial officer; and any five years to come. such otřicer who shall absent himself from the State muchi whether five judges will be needed. With

After that, I doubt very for upwards of ninety consecutive days, shall be deemed to have vacated his office.

that view, I move to refer this section to a No amendment was offered.

special committee of three, with instructions

to amend by inserting after the words - two TERRITORIAL JUDGES AND COURTS CONTINUED.

additional associate justices," the words “with Section 18 was read, as follows:

power to reduce the number again to two."

Monday,] DeLong–CHAPIN-Mason---BROSNAN-JOHNSON-BANKS-FRIZELL-DUNNE. [July 25.

Mr. DELONG. I want to know why the Mr. BANKS. Well, I do not quite underLegislature has not that power, without the stand the object of it. amendment proposed ? If the Legislature can Mr. FRIZELL. The motive of my colleague pass a law increasing the number of judges, it is certainly a good one, but inasmuch as the can certainly repeal such law—there is no decrease suggested cannot be made, after the doubt of that—under the ordinary construction Legislature has once provided for the election of statutes.

of the two additional associate justices, under Mr. CHAPIN. I would very much prefer to six years, and as the Constitution could be have the power expressed.

amended, if deemed necessary, inside of that The PRESIDENT pro tem. I suggest whether time, even admitting that the Legislature would it would not be better to place this provision not have the power, which I think they would in the Schedule, as it seems to relate merely bave, to decrease the number at the expiration to a temporary matter?

of that time, still, I do not perceive that any Mr. CHAPIN. This is the proper place, sir; practical advantage is to be secured by the at the very point where provision is made for amendment. I would not set up my judgment an increase.

against that of other gentlemen, but it seems Mr. MASON. I can see no necessity for this to me very clear that the Legislature would amendment. With my limited knowledge of have the power to reduce the number at the the law, and I do not profess to have much expiration of the terms of the incumbents, and legal knowledge, I am clearly of opinion that at all events, in case of any real necessity for when a repealing or amending statute is itself it, the Constitution can be amended so as to repealed, the latter act revives and puts in meet the exigency. There is time enough for force the former law. If that be so, the Legis- that. Therefore, inasmuch as the sentence is lature has the power referred to, without any harmonious and correct, as it now reads, and amendment.

as I think we can get on just as well without Mr. CHAPIN. I have had some conversation the amendmont, I shall vote against it, with the Chairman of the Judiciary Conumit- Mr. CHAPIN. The section would be a great tee (Mr. Brosnan) on this subject, and he stated deal more barmonious to my ear, if it were so to me at the moment-to be sure, without worded as to enable us to dispense with tbose much opportunity for thought on the subject, two additional justices, wbenever it is ascerthat he doubted the power of the Legislature, tained that they are not necessary, and thus after having once increased the number of save the State fourteen thousand dollars a judges, again to reduce that number.

year. That would have a very harmonious Mr. BROSNAN. If this amendment were sound, indeed. I ask for the yeas and nays on adopted we would have this state of things, at the amendment. any rate, that if the Legislature increase the The question was taken by yeas and nays on number of judges, such increase must continue the motion to recommit with the instructions at least for six years; that is, the terms of offered by Mr. Chapin, and the vote was-yeas, office of the additional judges elected must be 4; nays, 18—as follows: for six years, and during that time, of course, Yeas-Messrs. Banks, Chapin, Collins, and Mr. they could not be legislated out of office, be- President-4. cause we bave adopted a provision that their Nays-Messrs. Belden, Brady, Brosnan, Crawford,

Crosman, DeLong, Dunne, Frizell, Folsom, Gibson, compensation shall not be increased or dimin. Kennedy, Kinkead, Mason, McClinton, Proctor, Tag. ished during the term of office for which they liabue, Warwick, and Wetherill—18. are elected.

So the amendment was not agreed to. Mr. JOHNSON. That applies only to their No further amendment being offered, salaries.

The question was taken by yeas and Days on Mr. BRUSNAN. But in my opinion the the final passage of the article, and the vote judges, once elected, cannot be legislated out was—yeas, 21 ; naye, 1-as follows: of office during the term for which they have been elected.

Yeas-Messrs. Banks, Belden, Brady, Brosnan, Cha

pin, Collins, Crawford, Crosman, DeLong, Dunne, FriMr. BANKS. I like the section just as it zell, Folsom, Gibson, Kennedy, Kinkead, Mason, stands now. Is the gentleman's proposition McClinton, Proctor, Tagliabue, Warwick, and Wether

ill-21. that we shall have three judges to start with,

Nay-Mr. President-1. and then empower the Legislature to diminish that number?

So the article was passed. Mr. CHAPIN. No, no!

The PRESIDENT pro tem. As it is now, we shall have three judges to start with, with [The PRESIDENT in the chair.] power in the Legislature to increase the num- Mr. DUNNE. Has the article entitled Misber to five, and the proposition of the gentle cellaneous Provisious been finally passed ? man from Storey is to give the Legislature The PRESIDENT. Yes, sir. further power, after the increase has once Mr. DUNNE. I wish, then, to call attention been made, to reduce the number again to to one matter which seems to have been overthree.

looked. I do not see that any clause has been Mr. CHAPIN. That is it, exactly.

adopted in the Constitution, thus far, prohibit

MISCELLANEOUS PROVISIONS-PERPETUITIES.

Tuesday,]

DELONG-DONNE-COLLINS, CHAPIN—WARWICK-BROSNAN.

[July 26.

ing perpetuities. I was not aware that the and Chief Justice of said Territory, or any two of article had been finally passed, and had a sec- them, to canvass the returns, both civil and military, tion drawn to be incorporated in it, which I if a majority of all the votes given upon this Constitu

in the presence of all who may wish to be present, and will read :

tion shall be in its favor, the said Governor shall imSEC. — No perpetuities shall be allowed except for mediately publish an abstract of the same, and make eleemosynary purposes.

proclamation of the fact in some newspaper in said

Territory, and certify the same to the President of the I think that should be incorporated some- United States, together with a copy of the Constituwhere, because if there is no such probibition, tion and ordinances. The said Board of Canvassers, entailed estates may be created, the same as in after canvassing the votes of the said November elec

tions, shall issue certificates of election to such perEngland.

sons as were elected State ofhcers, Judges of the SuThe PRESIDENT. I understand the article preme and District Courts, Representative in Congress, is in the hands of the Committee on Phraseol- and three Presidential electors. Thirty days after the ogy, and if there be no objection, the section President of the United States shall issue his procla

mation declaring this State admitted into the Union on ean be sent to that committee, with instruc- an equal footing with the original States, this Constitions to embody it in the article.

tution shall thenceforth be ordained and established The rules were suspended by unanimous con- as the Constitution of the State of Nevada. sent for the purpose of allowing Mr. Dunne to

All of which is respectfully submitted.

JOHN A. COLLINS. introduce the proposed new section.

The report was accepted and the ordinance Mr. DELONG. Let us adjourn. What have

placed on file. we got to do to-morrow? We can attend to this matter then. I suppose.

Mr. CHAPIN. I was desirous of working at The PRESIDENT. This section ought to be has informed me that it will be impossible for

least an hour longer to-night, but the Secretary adopted before the article goes to the Enroll- him to prepare the article on the Judicial Deing Committee. Mr. DELONG. Very well; it may be adopt-partment, so as to go out of his hands into the

hands of the enrolling clerk, until after the ed, I understand, by unanimous consent.

The PRESIDENT. Does the gentleman from adjournment. As it is quite important to have Humboldt desire to submit a motion in connec- haps it will be as well to adjourn now.

tbåt article enrolled as early as possible, pertion with the proposed additional section ?

Mr. WARWICK. I move that we adjourn. Mr. DUNNE. Yes, sir ; I wish it to follow Section 3. I offer the following resolution :

SCHEDULE-PROBATE COURTS. Resolved, That the following section be and the same is hereby ordered inserted in Article XVI, entitled the desire of the gentleman from Storey, (Mr.

The PRESIDENT. I understand that it is Miscellaneous Provisions, viz :

SEC. 4. No perpetuities shall be allowed, except for Brosnan,) to offer an additional section to the eleemosynary purposes.

Schedule. The resolution was adopted by 'unanimous Mr. WARWICK. For that purpose I withconsent.

draw tbe motion to adjourn. Mr. DELONG. I move that the Convention Mr. BROSNAN offered the following resolunow adjourn. I understand that it is not going tion : to facilitate our business to sit any later to

Resolred, That the following section be and the same night.

is hereby ordered inserted in the article entitled Sched

ule, as Section 20. ELECTION ORDINANCE.

Sec. 20. All cases, both civil and criminal, which Mr. COLLINS. I have a report to make.

may be pending and undetermined in the Probate

Courts of the several counties at the time when, under Mr. DELONG. I withdraw the motion to the provisions of this constitution, said Probate adjouro.

Courts are to be abolished, thall be transferred to, and Mr. COLLINS presented the following re

determined by the District Courts of such counties

respectively. port:

The resolution was adopted by unanimous MR. PRESIDENT :-Your select committee, compris. ing the undersigned, to which was referred the ordi

consent. nance relative to voting, etc., respectfully reports the Mr. WARWICK. I now renew the motion same back to the Convention, amended by substituting to adjourn. new matter for Sections 5 and 6, as follows:

The question was taken, and the motion was SEC. 5. The judges and inspectors of said election shall carefully count each ballot, immediately after agreed to. said elections, and forth with make duplicate returns Accordingly, at twenty minutes before ten thereof to the clerks of the said County Commission- o'clock, P. M., the Convention adjourned. ers of their respective counties ; and said clerks within fifteen days after said elections, shall transmit an abstract of the votes, including the soldiers' vote, as hereinafter provided, given for State officers, Supreme and District Judges, Representative in Congress, and

TWENTIETH DAY. three Presidential electory, inclosed in an envelope, by the most safe and expeditious conveyance, to the Gov

Carsoy, July 26, 1864. ernor of said Territory, marked “ Election returns."

Sec. 6. Upon the receipt of said returns, including The Convention met at nine o'clock, A. M., those of the soldiers' vote, or within twenty days after and was called to order by the President. the election, if said returns be not sooner received, it shall be the duty of the Board of Canvassers, to con.

The roll was called, and all the members resist of the Governor, United States District Attorney, sponded except the following : Messrs. Ball, Tuesday,) BRADY-PRESIDENT-BROSNAN-DUNNE-MASON--MOCLINTON-WETHERILL (July 26.

LEAVE OF ABSENCE.

morrow.

Banks, DeLong, Earl, Fitch, Haines, Hovey, Mr. MASON. I did not propose to stay till Hudson, Jones, Lockwood, Morse, Nourse, Friday ; but, however, my time is like a setting Parker, Sturtevant, Tozer, Wellington, and hen's-it isn't worth a cent-[merriment); $0 Williams. Present, 22 ; absent 17.

I think I will stay, if it is necessary. Prayer was offered by the Rev. Mr. NIMS. Mr. BRADY. I am in the same fix as the

The journal of yesterday was read, correct- gentleman from Esmeralda, (Mr. McClinton); ed, and approved.

I would not leave, if I found that the Convention would be without a quorum in consequence.

The question was taken, and leave of absence Mr. BRADY. I desire to ask indefinite leave was granted to Mr. Brady, in accordance with of absence from to day at noon.

his request. The PRESIDENT. It is quite evident that The PRESIDENT, The Enrolling Clerk has the Constitution will not be completed to-day, informed me that several sheets which he had and if any more members leave us, I am ap- completed, became wet and destroyed by reaprehensive that we shall not have a quorum to- son of the storm of yesterday. Mr. BRADY. There are several members in

QUESTION OF PRIVILEGE. town who will be present to-morrow, I under- Mr. DUNNE. I desire to rise to a question stand.

of privilege, in regard to a report of our proThe PRESIDENT. The gentleman from ceedings in the Virginia Union.' I said the last Washoe (Mr. Nourse) is the only absent member time I was on the floor for such a purpose that that I know of in town, who will probably be I would not endeavor to correct one of the rehere to-morrow, and, as all of us are aware, porters again, unless it was a case of life and when our number is reduced below twenty we death ; but this refers to the proceedings on are without a quorum. At no time yesterday the dueling question, and so comes pretty near did we have in attendanče more than twenty- a question of life and death, at any rate. By four members, I believe.

a very slight transposition of words, I am Mr. BROSNAN. And some whom we had made by the reporter of the Union to take exyesterday are away to-day.

actly the opposite ground from what I really The PRESIDENT. I understand, also, that did take, in regard to persons being eligible to one of the members from Humboldt, (Mr. office who may have fought a duel out of the Dunne,) and the three delegates from Esmer- State, subsequent to the adoption of the Conalda, propose leaving the Convention immedi- stitution. His report says: ately. Mr. HAWLEY. I think we may get through the person who had fought a duel in California since

" Mr. Dunne, after calling attention to the fact that our work by to-morrow at noon.

the adoption of the Nevada Constitution, would be pro The PRESIDENT. The enrolling yet to be hibited by Section - from exercising the rights of an done is all there is to prevent it. It would elector, moved that it be referred to a select committee,

consisting of Messrs. Banks, Nourse, and Warwick, be very unfortunate, however, if we were to with instructions to amend so as to prohibit persons find ourselves in such condition as to be un- who had fought a duel out of the State, after the adopable to complete our labors.

tion of the Constitution, as well as within the State,

from being eligible to office.' Mr. BRADY. Will not Messrs. DeLong and Banks be here?

Now the point was this, that a person who, Mr. DUNNE. My colleague (Mr. Banks) while living elsewbere, had fought a duel outwill be here at two o'clock. He desires leave side of this State, although after the adoption of absence only till two o'clock.

of the Constitution, might be eligible to office The PRESIDENT. I think there will be no here, but at the same time the oath would pretrouble about a quorum to-day; the question is, vent him from entering upon the duties of the who will be in attendance to-morrow ? office to which he might be elected, unless he

Mr. MCCLINTON. Unless I start for home committed perjury; that is, although he might to-morrow morning, I cannot go till Friday, be eligible, under one section, and might be and I am very anxious, indeed, to get bome. elected, yet he could not take the oath preIf it is possible, therefore, I should like to scribed in the preceding section, which required start home in the morning, but I will not him to swear that he had not fought a dnel hazard the chances of getting a quorum in the since the adoption of the Constitution. I conConvention by leaving.

sidered that the two sections conflicted, and The PRESIDENT. I would like to inquire wishing to make them harmonize with each of the other members from Esmeralda, what other, I moved that the oath be amended, so their views are in regard to remaining. that the person who might have fought a duel

Mr. WETHERILL. I am in very much the outside of the State, subsequent to the adopsame position as my colleague who has just tion of the Constitution, would not be required spoken. I should like very much to go, but at to swear, as then prescribed in the oath, that the same time, I would not leave the Conven- he had not fought a duel at all, but that he had tion without a quorum. If a quorum can be not fought a duel " while a resident of the obtained without me, I shall be extremely glad State of Nevada.” This report would make it to go ; if not, I will stay and take the chances. appear that it was my desire to exclude such

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