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in the Justices' Courts, while the great litigation which occupies the time of the higher courts is sustained by taxes paid by the public at large. If that kind of sauce is good for the goose, it should be good for the gander. If it is proper, just, and right to tax a humble litigant who goes before a Justice's Court to enforce a demand for five, ten, or twenty dollars, or more, it certainly seems to me to be eminently proper that the litigant who goes before the higher court, with his claim of two thousand, ten thousand, or twenty thousand dollars, should, upon the same principle, be called upon to pay something toward the expense of sustaining the court.

Mr. JOHNSON. I do not understand the pertinancy of the remarks of the gentleman who has just taken his seat, when he assumes that the humblest litigant in a Justice's Court is required to pay a docket fee.

Mr. COLLINS. I think I can make myself clear to the Convention on that point, if not to my excellent friend from Ormsby. I say, if it is proper to support a District Judge by a salary which has to be paid out of the taxes of the people, it is also eminently proper, I think, to support a Justice of the Peace by a salary to be paid by the taxes of the people in like manner. Am I understood?

Mr. JOHNSON. No, sir; or at all events the gentleman has not reached the point yet. He is assuming, as I understand, that a docket fee has to be paid by litigants to a Justice of the Peace

Mr. COLLINS. And so it has.

Mr. JOHNSON. Allow me to explain; I had not finished my sentence. A Justice of the Peace occupies the same relation to parties litigant, so far as fees are involved, as does the clerk of a higher court. He has his own office, and is entitled to his fees at the same rate as the clerk of the District Court.

Mr. DELONG. And he does not receive a cent of salary outside of his fees.

Mr. JOHNSON. Certainly not; neither does the clerk. They both receive fees, but as to its being a docket fee, it can no more be regarded in that light in the one case than in the other. It is not a docket fee that is paid to the Justice of the Peace, under existing territorial laws, because his services are compensated exclusively by fees of office.

Mr. COLLINS. It matters not in regard to what name it may be called by. The great fact still stands out that the compensation of a Justice of the Peace, who acts as a judge in the smaller class of cases, is paid by the litigants, while the compensation of the judge who tries and decides the great causes, is paid, not by the litigants, but by the taxes of the people. I care not in what language it may be presented; the fact stands out in bold relief, just the same, and I am in favor of extending the the same principle that governs in the Justices' Courts to the higher courts. Let those who want to litigate pay for it.

[July 25.

Mr. JOHNSON. Certainly; so it is now; they pay the sheriff's and clerk's fees. Mr. COLLINS. Let them pay the court expenses also. I can see no reason why we should require them to pay the clerk and sheriff, and not the judge. I see no good reason why a court fee should not be exacted in proportion to the amount of money involved in each suit, and I think it would be very unjust indeed to tax a man who comes before the court to enforce a claim of three hundred dollars, the same amount that you would if his claim were for three thousand, or thirty thousand, or three hundred thousand dollars. I insist that this court fee is correct in theory, and I am confident that it will work well in practice.

Mr. HAWLEY. I trust that the proposition to strike out the word "shall" and insert instead the word "may," will prevail. I want to see the language so modified as to leave this matter discretionary with the Legislature. Now, sir, it is, according to my experience and observation-and I appeal to attorneys who are familiar with the practice of the law, and the results of practice, to say whether it is not in accordance with their own-that in as many as two cases out of five, if not a greater proportion than that, and especially in actions of ejectment and other cases of that character. the plaintiff, though compelled to bring suit in order to recover his rights, nevertheless finds the defendant in such a condition that he cannot pay the costs, and they are therefore taxed against the prevailing party. He is obliged to pay all the costs of the clerk and the sheriff, and to make him pay all those costs, and then a docket fee in addition, would be extremely onerous and burdensome. Therefore I hope the amendment offered by the gentleman from Ormsby will prevail, or at any rate that we shall provide that no such tax shall be enforced against the prevailing party.

Mr. DELONG. If the gentleman's interrogatory, as to cases where the defendant is unable to pay the costs, is addressed to me, I have to say in reply, that no matter whether the plaintiff recovers the costs or not, he still recovers the property, and if he is benefited by his suit, whilst I am not, I do not see why he should not pay the whole of the expenses of the court instead of making me pay a part. [Question, question!"]

[Mr. KINKEAD in the chair.]

Mr. JOHNSON, and others, demanded the yeas and nays on the amendment to strike out the word shall," and insert instead the word may." Mr. HAWLEY. Is a further amendment now in order?

66

SEVERAL MEMBERS. Oh, no!--Question!
Mr. HAWLEY. I withdraw it.

The question was taken by yeas and nays on the amendment offered by Mr. Johnson, to strike out "shall" and insert “may,” and the vote was-yeas, 5; nays, 19-as follows:

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Yeas-Messrs. Brosnan, Crawford, Gibson, Hawley, | and Mr. President-5.

Nays-Messrs. Banks, Belden, Brady, Chapin, Collins. Crosman, DeLong, Dunne, Frizell. Folsom, Kennedy, Kinkead, Mason, McClinton, Murdock, Proctor, Tagliabue, Warwick, and Wetherill-19,

So the amendment was not agreed to.

Mr. McCLINTON. Now I again move my amendment, which I temporarily withdrew in order that the amendment of the gentleman from Ormsby might be disposed of. I ask unanimous consent to amend the first paragraph of the section, so as to read as follows:

"The Legislature, at its first session, and from time to time thereafter, shall prescribe by law, that upon the institution of each action," etc.

The amendment was agreed to by unanimous consent.

Mr. BANKS. The word "provide," I think is better than "prescribe." I will move to substitute the word "provide" for "prescribe." Mr. MCCLINTON. Yes; that is better, certainly.

The amendment was agreed to by unanimous

Mr. DELONG. It occurs again, I observe, further down. Let the word "civil" come in before" action," in the second instance-" and also upon the perfecting of an appeal in any civil action," etc. Will the Secretary read the section as it will then stand?

The SECRETARY read as follows: SEC. 16. The Legislature, at is first session, and from time to time thereafter, shall provide by law that upon the institution of each civil action, or other proceedings, and also upon the perfecting of an appeal in any civil action or proceeding in the several courts of Record in this State, a special court fee or tax, to be fixed by law, shall be advanced to the clerks of said courts respectively, by the party or parties bringing such action or proceeding, or taking such appeal; and the money so paid in shall be accounted for by such clerks, and applied towards the payment of the compensation of the judges of said courts, as shall be directed by law.

Mr. DELONG. That is right now. The further amendment proposed by Mr. DeLong, (to insert the word "civil," in the second instance,) was agreed to by unanimous consent.

[July 25.

SEA 18. In order that no inconvenience may result to the public service from the taking effect of this article, no judicial officer shall be superseded, nor shall the organization of the several courts be changed thereby, until the election and qualification of the several officers provided for in the same. No amendment was offered.

CITY RECORDERS.

Mr. BROSNAN. My attention has been called, by the gentleman from Ormsby, (Mr. Johnson,) to the reading of Section 10, as it is now numbered. Will the Secretary read that section ? The SECRETARY read Section 10, as follows:

SEC. 10. No judicial officer, except Justices of the Peace, shall receive to his own use any fees or perquisites of office.

Mr. BROSNAN. That section is taken from the old Constitution, framed last year, in hæc verba, but since that time a Recorder's Court has been established in Virginia City, and the Recorder is paid, I believe, by fees. This section, as it now reads, would, in my judgment, cut him off altogether from receiving any fees, and I therefore move to amend the section by inserting after "Justices of the Peace," the words" and Recorders of cities."

Mr. DELONG. It would be better to say"and City Recorders "

Mr. BROSNAN. Very well; let it read"except Justices of the Peace, and City Recorders."

The amendment was agreed to by unanimous consent.

JUSTICES OF THE SUPREME COURT.

Mr. CHAPIN. I would like to hear Section 2 read again.

The SECRETARY read Section 2, as follows: SEC. 2. The Supreme Court shall consist of a Chief Justice and two Associate Justices, a majority of whom shall constitute a quorum; provided, that the Legislalature, by a majority of all the members elected to each branch thereof, may provide for the election of two additional Associate Justices, and if so increased, three shall constitute a quorum. The concurrence of a majority of the whole court shall be necessary to render a decision.

Mr. CHAPIN. I see that provision is there made for the addition of two associate justices, but I do not notice any provision for reducing the number again to three. My idea is, that in all probability this increase to five judges will be made at an early day, for now is the time, and for the next two or three years, when, if ever, five judges on the bench will be of great service to the State. If we are going to want them at any period in our history, it is at this period, and it is my opinion that we will need them for perhaps three, four, or possibly five years to come. After that, I doubt very much whether five judges will be needed. With that view, I move to refer this section to a special committee of three, with instructions to amend by inserting after the words "two additional associate justices," the words "with power to reduce the number again to two."

Mr. DELONG. I want to know why the Legislature has not that power, without the amendment proposed? If the Legislature can pass a law increasing the number of judges, it can certainly repeal such law-there is no doubt of that-under the ordinary construction of statutes.

Mr. CHAPIN. I would very much prefer to have the power expressed.

The PRESIDENT pro tem. I suggest whether it would not be better to place this provision in the Schedule, as it seems to relate merely to a temporary matter?

Mr. CHAPIN. This is the proper place, sir; at the very point where provision is made for an increase.

Mr. MASON. I can see no necessity for this amendment. With my limited knowledge of the law, and I do not profess to have much legal knowledge, I am clearly of opinion that when a repealing or amending statute is itself repealed, the latter act revives and puts in force the former law. If that be so, the Legislature has the power referred to, without any amendment.

Mr. BANKS. Well, I do not quite understand the object of it.

Mr. FRIZELL. The motive of my colleague is certainly a good one, but inasmuch as the decrease suggested cannot be made, after the Legislature has once provided for the election of the two additional associate justices, under six years, and as the Constitution could be amended, if deemed necessary, inside of that time, even admitting that the Legislature would not have the power, which I think they would have, to decrease the number at the expiration of that time, still, I do not perceive that any practical advantage is to be secured by the amendment. I would not set up my judgment against that of other gentlemen, but it seems to me very clear that the Legislature would have the power to reduce the number at the expiration of the terms of the incumbents, and at all events, in case of any real necessity for it, the Constitution can be amended so as to meet the exigency. There is time enough for that. Therefore, inasmuch as the sentence is harmonious and correct, as it now reads, and as I think we can get on just as well without the amendment, I shall vote against it.

Mr. BROSNAN. If this amendment were adopted we would have this state of things, at any rate, that if the Legislature increase the number of judges, such increase must continue at least for six years; that is, the terms of office of the additional judges elected must be for six years, and during that time, of course, they could not be legislated out of office, because we have adopted a provision that their compensation shall not be increased or diminished during the term of office for which they are elected.

Mr. JOHNSON. That applies only to their salaries.

Mr. BROSNAN. But in my opinion the judges, once elected, cannot be legislated out of office during the term for which they have been elected.

Mr. BANKS. I like the section just as it stands now. Is the gentleman's proposition that we shall have three judges to start with, and then empower the Legislature to diminish that number?

Mr. CHAPIN. No, no!

The question was taken by yeas and nays on the motion to recommit with the instructions offered by Mr. Chapin, and the vote was-yeas, 4; nays, 18-as follows:

Yeas-Messrs. Banks, Chapin, Collins, and Mr. President-4.

Nays-Messrs. Belden, Brady, Brosnan, Crawford, Crosman, DeLong, Dunne, Frizell, Folsom, Gibson, Kennedy, Kinkead, Mason, McClinton, Proctor, Tagliabue, Warwick, and Wetherill-18.

So the amendment was not agreed to.
No further amendment being offered,-

The question was taken by yeas and nays on the final passage of the article, and the vote was-yeas, 21; nays, 1-as follows:

Yeas-Messrs. Banks, Belden, Brady, Brosnan, Chapin, Collins, Crawford, Crosman, DeLong, Dunne, Frizell, Folsom, Gibson, Kennedy, Kinkead, Mason, McClinton, Proctor, Tagliabue, Warwick, and WetherNay-Mr. President-1.

ill-21.

So the article was passed.

MISCELLANEOUS PROVISIONS-PERPETUITIES.

[The PRESIDENT in the chair.]

Mr. DUNNE. Has the article entitled Mis

Mr. CHAPIN. That is it, exactly.

The PRESIDENT. Yes, sir.

Mr. DUNNE. I wish, then, to call attention to one matter which seems to have been overlooked. I do not see that any clause his been adopted in the Constitution, thus far, prohibit

Tuesday,]

ing perpetuities. I was not aware that the article had been finally passed, and had a section drawn to be incorporated in it, which I will read : SEC.-.

No perpetuities shall be allowed except for eleemosynary purposes.

I think that should be incorporated somewhere, because if there is no such prohibition, entailed estates may be created, the same as in England.

The PRESIDENT. I understand the article is in the hands of the Committee on Phraseology, and if there be no objection, the section ean be sent to that committee, with instructions to embody it in the article.

The rules were suspended by unanimous consent for the purpose of allowing Mr. Dunne to introduce the proposed new section.

Mr. DELONG. Let us adjourn. What have we got to do to-morrow? We can attend to this matter then. I suppose.

The PRESIDENT. This section ought to be adopted before the article goes to the Enroll

ing Committee.

[July 26,

and Chief Justice of said Territory, or any two of in the presence of all who may wish to be present, and if a majority of all the votes given upon this Constitu

them, to canvass the returns, both civil and military,

tion shall be in its favor, the said Governor shall immediately publish an abstract of the same, and make proclamation of the fact in some newspaper in said Territory, and certify the same to the President of the United States, together with a copy of the Constitu tion and ordinances. The said Board of Canvassers, after canvassing the votes of the said November elections, shall issue certificates of election to such persons as were elected State officers, Judges of the Supreme and District Courts, Representative in Congress, and three Presidential electors. Thirty days after the President of the United States shall issue his procla mation declaring this State admitted into the Union on an equal footing with the original States, this Constitution shall thenceforth be ordained and established

as the Constitution of the State of Nevada. All of which is respectfully submitted.

JOHN A. COLLINS.

The report was accepted and the ordinance placed on file.

Mr. DELONG. Very well; it may be adopted. I understand, by unanimous consent.

Mr. DUNNE. Yes, sir; I wish it to follow Section 3. I offer the following resolution:

Resolved, That the following section be and the same

is hereby ordered inserted in Article XVI, entitled

Miscellaneous Provisions, viz :

SEC. 4. No perpetuities shall be allowed, except for eleemosynary purposes.

The resolution was adopted by unanimous

consent.

Mr. DELONG. I move that the Convention now adjourn. I understand that it is not going to facilitate our business to sit any later tonight.

ELECTION ORDINANCE.

Mr. COLLINS. I have a report to make. Mr. DELONG. I withdraw the motion to adjourn.

Mr. COLLINS presented the following report:

MR. PRESIDENT :-Your select committee, comprising the undersigned, to which was referred the ordinance relative to voting, etc., respectfully reports the same back to the Convention, amended by substituting new matter for Sections 5 and 6, as follows:

SEC. 5. The judges and inspectors of said election

shall carefully count each ballot, immediately after said elections, and forthwith make duplicate returns thereof to the clerks of the said County Commissioners 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 three Presidential electors, inclosed in an envelope, by the most safe and expeditious conveyance, to the Governor of said Territory, marked "Election returns."

SEC. 6. Upon the receipt of said returns, including those of the soldiers' vote, or within twenty days after the election, if said returns be not sooner received, it shall be the duty of the Board of Canvassers, to consist of the Governor, United States District Attorney,

Mr. WARWICK. I move that we adjourn.

SCHEDULE-PROBATE COURTS.

the desire of the gentleman from Storey, (Mr. Brosnan,) to offer an additional section to the Schedule.

The PRESIDENT. I understand that it is

Mr. WARWICK. For that purpose I withdraw the motion to adjourn.

Mr. BROSNAN offered the following resolution:

Resolved, That the following section be and the same is hereby ordered inserted in the article entitled Schedule, as Section 20.

SEC. 20. All cases, both civil and criminal, which may be pending and undetermined in the Probate Courts of the several counties at the time when, under the provisions of this Constitution, said Probate Courts are to be abolished, thall be transferred to, and determined by the District Courts of such counties respectively.

The resolution was adopted by unanimous

consent.

Mr. WARWICK. I now renew the motion to adjourn.

The question was taken, and the motion was agreed to.

Accordingly, at twenty minutes before ten o'clock, P. M., the Convention adjourned.

TWENTIETH DAY.

CARSON, July 26, 1864.

The Convention met at nine o'clock, A. M., and was called to order by the President.

The roll was called, and all the members responded except the following: Messrs. Ball,

Prayer was offered by the Rev. Mr. NIMS. The journal of yesterday was read, corrected, and approved.

LEAVE OF ABSENCE.

Mr. BRADY. I desire to ask indefinite leave of absence from to day at noon.

The PRESIDENT. It is quite evident that the Constitution will not be completed to-day, and if any more members leave us, I am apprehensive that we shall not have a quorum to

morrow.

Mr. BRADY. There are several members in town who will be present to-morrow, I understand.

The PRESIDENT. The gentleman from Washoe (Mr. Nourse) is the only absent member that I know of in town, who will probably be here to-morrow, and, as all of us are aware, when our number is reduced below twenty we are without a quorum. At no time yesterday did we have in attendance more than twentyfour members, I believe.

Mr. BROSNAN. And some whom we had yesterday are away to-day.

The PRESIDENT. I understand, also, that one of the members from Humboldt, (Mr. Dunne,) and the three delegates from Esmeralda, propose leaving the Convention immediately.

Mr. HAWLEY. I think we may get through our work by to-morrow at noon.

The PRESIDENT. The enrolling yet to be done is all there is to prevent it. It would be very unfortunate, however, if we were to find ourselves in such condition as to be unable to complete our labors.

Mr. BRADY. Will not Messrs. DeLong and

Banks be here?

Mr. DUNNE. My colleague (Mr. Banks) will be here at two o'clock. He desires leave of absence only till two o'clock.

The PRESIDENT. I think there will be no trouble about a quorum to-day; the question is, who will be in attendance to-morrow?

Mr. McCLINTON. Unless I start for home to-morrow morning, I cannot go till Friday, and I am very anxious, indeed, to get home. If it is possible, therefore, I should like to start home in the morning, but I will not hazard the chances of getting a quorum in the Convention by leaving.

The PRESIDENT. I would like to inquire of the other members from Esmeralda, what their views are in regard to remaining.

Mr. WETHERILL. I am in very much the same position as my colleague who has just spoken. I should like very much to go, but at the same time, I would not leave the Convention without a quorum. If a quorum can be obtained without me, I shall be extremely glad to go; if not, I will stay and take the chances.

Mr. BRADY. I am in the same fix as the gentleman from Esmeralda, (Mr. McClinton); 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 was granted to Mr. Brady, in accordance with his request.

The PRESIDENT, The Enrolling Clerk has informed me that several sheets which he had completed, became wet and destroyed by reason of the storm of yesterday.

QUESTION OF PRIVILEGE.

Mr. DUNNE. I desire to rise to a question of privilege, in regard to a report of our proceedings in the Virginia Union. I said the last time I was on the floor for such a purpose that I would not endeavor to correct one of the reporters again, unless it was a case of life and death; but this refers to the proceedings on the dueling question, and so comes pretty near a question of life and death, at any rate. By a very slight transposition of words, I am made by the reporter of the Union to take exactly the opposite ground from what I really did take, in regard to persons being eligible to office who may have fought a duel out of the State, subsequent to the adoption of the Constitution. His report says:

"Mr. Dunne, after calling attention to the fact that

the person who had fought a duel in California since the adoption of the Nevada Constitution, would be prohibited by Section - from exercising the rights of an elector, moved that it be referred to a select committee, consisting of Messrs. Banks, Nourse, and Warwick, with instructions to amend so as to prohibit persons who had fought a duel out of the State, after the adop tion of the Constitution, as well as within the State,

from being eligible to office."

Now the point was this, that a person who, while living elsewhere, had fought a duel outside of this State, although after the adoption of the Constitution, might be eligible to office here, but at the same time the oath would prevent him from entering upon the duties of the office to which he might be elected, unless he committed perjury; that is, although he might be eligible, under one section, and might be elected, yet he could not take the oath prescribed in the preceding section, which required him to swear that he had not fought a duel since the adoption of the Constitution. I considered that the two sections conflicted, and wishing to make them harmonize with each other, I moved that the oath be amended, so that the person who might have fought a duel outside of the State, subsequent to the adoption of the Constitution, would not be required to swear, as then prescribed in the oath, that he had not fought a duel at all, but that he had not fought a duel "while a resident of the State of Nevada." This report would make it appear that it was my desire to exclude such