is not a new one by any means. I presume that no lawyer on this floor
will deny the fact that it has been established by all the decisions known
upon railroads, that they are considered public highways. It has been
decided in a recent case in the Supreme Court of the United States, the
case mentioned by the gentleman from San Francisco, Mr. Barbour.
They are considered public highways-not as common roads, not as
canals, not as turnpike roads, not as street railroads, not as streets-but
they are considered as improved highways. In this case, the People vs.
Kerr, 27 Cal. p. 207, this question is fully defined.
Now it is not presumed that the Legislature will presume to allow men
to put on trains and pass each other, or to run them on their own time.
The object is to declare them public highways, and we want it in the
Constitution, where the Legislature cannot repeal it.

run them on their own time, under their own direction, regardless of the peculiar business in which the companies are engaged, for the transportation of passengers and freight, would be hazardous in the extreme. We are aware that there can be but one head to a railroad company. There must be one rule by which its business is done, and one time table. There must be a time for leaving one point, and a time for arriving at another. The business is of such a peculiar character that it must necessarily be under the control of one company and one mind. I do not believe there will ever be any practical solution of the railroad problem by allowing people indiscriminately to place and run cars on other people's railroad tracks. For that reason I do not propose to favor any amendment that will even contemplate the carrying out of that idea. I think we had better strike at the evils in sight, rather than Mr. Church, one of the ablest delegates in the Convention of Illinois, hunt up imaginary evils and attempt to remedy them. The evils that and one of the ablest jurists of that body, makes this declaration on the exist let us remedy by means within our power, and which are practicasubject: ble. There is a section reported by your Committee on Corporations Railway companies, with the extraordinary privileges they have which puts most of these matters in the hands of a commission. That been allowed to enjoy, and the extraordinary powers they have been commission will have a large control of this subject. Unless some genallowed to exercise, in confiscating private property for private corpora-tleman can present some better formulated section, conveying the idea tions, have been justified by the Courts, only on the principle that rail-found in our report, I shall support the report as made by the commitroads are a species of public highways-improved highways, they are tee. I do not say this section cannot be improved by amendment-that called by the Courts-yet the practices have been such that all partici- none other can be presented worthy of consideration-but, after full pation by the public in these highways has been denied, unless they examination by your committee, it was believed that this section, as conform themselves entirely to the private regulation of the private reported, would best convey the views of your committee, and would corporation; the people, whose property has been condemned, having represent the views of the people and of the Convention on this subject. had no voice in the matter. The public, in their sovereign capacity, as MR. SMITH, of Fourth District. Suppose one of these canal coinlaw makers, have been held to have no participation in the regulation|panies should sell to an individual; would the law of common carriers of these highways; but practically the roads, and franchises, and extra-apply? ordinary immunities have been held and controlled by the companies MR. ESTEE. I am not aware of any right at common law to sell a simply as private property. franchise. There is no right of alienation at common law. The right is statutory only. If the gentleman wants to amend the section by inserting the word "individual," all right.

This proposition is simply declaratory of the limitation of those rights as they have been indicated by the Courts, and justified in the exercise of those great powers over private rights. The proposition does not contemplate any encroachments upon the rights of property; but that under the sovereign power by which the people of the State have the right to subject private property to public uses, this railroad property may be subjected to the public uses as a public highway, under such regulations as shall be prescribed by law, in reference to compensation and use."

MR. HOWARD, of Los Angeles. I would like to inquire if the amendment is open to amendment?

THE CHAIRMAN. Yes, sir.

MR. SMITH. A railroad cannot be sold without selling the franchise, and can be in the name of an individual as well as a company. I only mention this as an illustration that there are many matters that are not, could

MR. ESTEE. Well, if the gentleman will point out what's the matter, and how it will be remedied by inserting the words "public highways," which will not be remedied by the section as it stands, I will support it. If he will refer to one solitary evil that can be covered by the language suggested by him, let the amendment be adopted. I submit, if he will turn back to the part already adopted, he will find that we have adopted a section that expressly provides that the Legislature shall not pass any

I think my young friend is mistaken in his point.

MR. SMITH. I would ask if there can be an alienation of a franchise under the law?

MR. ESTEE. As I stated, it is not permitted at common law. It is done under the statute.

Under no circumstances?

MR. HOWARD. Then I suggest an amendment, after the word "law," by inserting the words, "securing just compensation to the rail-law permitting the alienation of franchises, except as therein prescribed. way or canal." I shall vote for the amendment of the gentleman from San Francisco with the amendment I have suggested. I am willing to vote for it with this amendment, but I will not without. If we declare that anybody shall have the right to put on a train, it does not follow that they may do it without paying the railroad company. It is not within the power of the Legislature to take away the right of the company to demand just compensation for the use of the road. Now they must be under some police regulation in order to avoid accidents and collisions. This amendment of the gentleman secures a declaration recognizing the right to put cars on the road, and I shall favor it. The late Transportation Commissioners, in their report to the Legislature, say that one of the great means of solving the railroad problem is to permit any one who desires to run his own cars on the railroad, paying, of course, a just compensation therefor.

SPEECH OF MR. ESTEE.

MR. SMITH.
MR. ESTEE. I know of no instance where at common law the
owners of a franchise can be permitted to alienate the franchise.
MR. SMITH. Section ten reads:

"SEC. 10. The Legislature shall not pass any laws permitting the leasing or alienation of any franchise so as to relieve the franchise or property held thereunder from liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise, or any of its privileges."

I think they can be alienated.

MR. ESTEE. That section does not say that it can be or cannot be alienated. But I say, under the law, as I understand it, franchises are grants from the State, and cannot be sold at common law. They cannot be alienated. The right to sell is statutory.

MR. WATERS. I wish to ask the gentleman a question. Under our statute law to-day, cannot franchises be sold under forced saleunder execution?

MR. ESTEE. If there is any special law on the subject, I do not know of it. This is the common law, and has for years been made the MR. WATERS. I think this gentleman will find it in the Code. MR. ESTEE. I ask the gentleman this question: Unless otherwise specially prescribed, hasn't it always been the law that franchises cannot be alienated? MR. WATERS. The Code provides that it can be done by forced sale or execution.

MR. ESTEE. Mr. Chairman: When your committee was examining this subject, it was not unanimous in favor of the report adopted. The same amendment now presented by the gentleman from San Francisco, Mr. Barbour, was presented by him to the committee, and it was duly considered by the committee, and rejected. So far as I understand, it was voted down because your committee believed, in considering this matter, that it would be better to assume the middle ground, and go to no such extremes as is proposed by the gentleman. The committee's report commences by asserting that all railroads, canal, and transporta-law of this State. tion companies shall be common carriers, and subject to legislative control. It was thought by us that, as the highest Courts of the country had declared that these common carriers were subject to legislative control, we would formulate a section making that law permanent, rather than say they are public highways; the first had received judicial interpretation, the latter had not. It is true that in Illinois, and I think in Missouri, railroads are declared to be public highways, but under this section of the Constitutions adopted in those States, nowhere is there any attempt to control railroads to the extent claimed by the gentleman from San Francisco, Mr. Barbour. Again; "transportation companies" was a term put in, as I understand it, for the purpose of reaching those companies referred to by the gentleman, namely, red lines and star lines, which are understood to be companies within companies, organized for special purposes, with exclusive and special privileges, to transport passengers and freight on more favorable terms than outsiders can obtain. We declare these companies, as well as railroad companies, to be subject to legislative control. Now, what does that mean? If it means anything, it means that the Legislature of the State shall have control over all those companies. And that, as I understand it, is what we want to do. It certainly is all that ought to be asked, it is all I am willing to do, and, for one, as far as that section is concerned, I believe it is right as it stands. I do not believe in putting in words that we ourselves do not know the meaning of, or which are of doubtful interpretation. What construction will be placed upon the proposed amendment no one can know.

I do not believe that anybody, outside of the owners of the railroads, contemplates running cars upon any of the railroads in this State; to

SPEECH OF MR. EDGERTON.

MR. EDGERTON. Mr. Chairman: As to the point last made, as to the power to alienate a franchise-at common law a franchise is regarded as a matter of trust between the Crown and the grantee, and therefore not subject to alienation-in this State it has been held, over and over again, that any corporate franchise may be sold on execution, and the title passed, and that is the rule in this State now.

MR. ESTEE. Yes, sir; forced sale.

MR. EDGERTON. It can be at forced sale, and of course there are arrangements for consolidation, and all that. Now, as to the question immediately in hand, the amendment of the gentleman from San Francisco, Mr. Barbour, declaring railroads public highways. It is true, sir, that this provision is found in the Constitutions of some other States, and also in the laws of other States. I object to their drawing the Constitution of Penusylvania on us. Because this provision is found in the Constitution of some other State is no reason why it should be adopted here. I never could understand to what this proposition points, unless it be that these railroads are to be declared highways in the full sense of the word-open to anybody to go on with his steam engine, with his directors' car, with his passenger car, and his freight car, and use the

If

to this article to be laughed down. I believe it represents the advanced
and true ideas of the times, and meets the requirements of the age.
you want to defeat it, defeat it squarely, or help us correct it, if it is
wrong. If it is right, stand by your guns and pass it. [Applause.]

SPEECH OF MR. JOHNSON.

road to the exclusion, perhaps, of the proprietor of the road, under regulations, of course, to be provided by law. Now, there is nothing new in this scheme. It is as old as railroad law, almost. At a very early day in the history of railroads in England, where railroads originated, the Duke of Wellington, in one of the first debates of Parliament, stated that it must always be observed that there was an analogy between a railroad and the King's highway, and it is that analogy that has been paraded about this section of the article on corporations, but I think it would be MR. JOHNSON. Mr. Chairman: I do not see any great difficulty before us here; and he tells us that upon that false analogy the past superstructure of legislation was reared, which in England was found to better in this wise: "All railroads, other than street railroads, and all be utterly useless, and was in the end repealed. The folly of that legis- canal and transportation companies, shall be common carriers and subject lation is, that the proprietors of a railroad may be separated from the to legislative control." I think that is better phraseology, as it confines carrier. In England they passed many laws providing rules and regu-ized for railroad purposes" (that would be entirely proper) "shall have it entirely to street railroads. "Any association or corporation organlations by which the proprietor could go with his steam engine and cars over his own road. But the system was found to be a perfect humbug. the right to construct and operate a railroad between any points within It was found to work very great injustice, great inconvenience, and this State, and to connect at the State line with railroads of other States. resulted in many accidents. As far as this section is concerned, I think Every railroad company shall have the right with its road to intersect, the criticisms of the gentleman from Santa Clara are merited. Like a connect with, or cross any other railroad, and shall receive and transThat would answer the great many other sections, it is drawn in a bungling manner; it is bad port each other's passengers and cars," etc. English, bad grammar, and worse sense, and is evidence that the school-purpose master was abroad. It ought to be referred to the Committee on Education to be reformed. I hope the amendment will be voted down, and that the amendment of the gentleman from Santa Clara, Mr. Laine, will be adopted.

SPEECH OF MR. HERRINGTON.

MR. HERRINGTON. Mr. Chairman: The first part of this proposition simply declares that these companies are common carriers. Now, let us see how closely allied common carriers are to highways. It will be admitted by every one that those who run a stage line upon the public road are common carriers. They are not necessarily connected with the road. They are not so fastened to the road as that no distinction can be made. Now, the distinction is a very plain one, and when we say we will control common carriers, we simply mean those carrying upon the road. The two terms, common carriers and public highways, have not necessarily any connection whatever. There is as broad a distinction as there is between the clouds and the earth, as between land and water. There is no necessary connection whatever. Now, let us see if these are public highways. Nonsense. The authorities are full of these propositions, and the power of eminent domain is never exercised except where it is directed to a public use, for the public good, and you cannot call in the great power of the State to assist you in acquiring an absolute right except it is for a public use. Now, what is a public use? Why do you call it a public use? Simply because it is a use to which all your citizens have a common right, upon certain conditions., What are those conditions? Why, simply the payment of the toll to support the public highways, in your business as common carriers.

Now, Cooley-I do not know-he was not much of a railroad lawyer, I guess, but he understood a little about what constitutes a public use and what constitutes public highways. That distinguished author, page 533, says:

"Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to run, while others, differently constructed, shall be open to use by all on payment of toll. The common highway is kept in repair by assessments of labor and money; the tolls paid upon turnpikes, or the fares on railroads, are the equivalents to these assessments; and when these improved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways."

roads.

intended by the additional section of the gentleman from Placer. This would remodel the section and confine it to steam railIn respect to the amendment of the gentleman from San Francisco, Mr. Barbour, I have this to say, I am not in favor of any experimental provisions in this Constitution. We have declared railroad companies to be common carriers, and that seems to me to be broad enough. I am not in favor of introducing anything into the Constitution which is vague and indefinite, to be construed by the Supreme Court. I want to use the simplest language possible. I do not believe the people would sanction such an innovation as this. I do not think this amendment should be adopted, because we cannot tell what construction may be put upon it. It may seem harmless, and yet when it comes to be construed, we may find that railroad companies have not the right to a reasonable possession and use of their own property. MR. GREGG. Mr. Chairman: I move that the committee rise, report progress, and ask leave to sit again. Carried.

IN CONVENTION.

THE PRESIDENT. Gentlemen: The Committee of the Whole have instructed me to report that they have had under consideration the report of the Committee on Corporations other than Municipal, have made progress therein, and ask leave to sit again.

ADJOURNMENT.

MR. MCCALLUM. I move that the Convention do now adjourn.
Carried.
And at five o'clock and fifteen minutes the Convention stood adjourned.

FIFTY-THIRD DAY.

SACRAMENTO, Tuesday, November 19th, 1878.
The Convention met in regular session at ten o'clock A. M., President
Hoge in the chair.
The roll was called, and members found in attendance as follows:

Andrews,
Ayers,

Barbour, Barnes, Barry, How is that? I think it is just precisely what this amendment pro- Barton, vides, which we are trying to put into this Constitution. This provision Beerstecher, means that they shall not be above the people. We want to declare Belcher, that it is a public use, as distinguished from a private use. That is Bell, what it means. We want to distinguish it from a private use now Blackmer, attempted to be forced upon this Convention by the distinguished and Boggs, influential chief of the railroad companies in the State of California, Boucher, who is admitted to be potent. Now, I have given you the distinction Brown, between a common carrier and the road upon which he runs his Burt, vehicles; the conveyances and the road itself, as contradistinguished. Campbell; I propose to vote for this amendment, because it simply declares a proposition of law which is as old as the hills and government itself. MR. EDGERTON. Mr. Chairman: I rise to ask the Chairman of the Chapman, Committee on Corporations one question. In the last clause, in line five: Charles, "Every railroad company shall have the right with its road to intersect, Condon, connect with, or cross any other railroad, and shall receive and trans- Cowden, port each other's passengers, tonnage, and cars, loaded or empty." I Cross, want to know if "loaded or empty" has reference to the passengers? Crouch, [Laughter.] Whether the passengers are loaded or empty, or whether Davis, it has any particular reference to starting before breakfast?

Caples,
Casserly,

Dean,
Dowling,
Doyle,

Lampson,
Dudley, of San Joaquin, Larkin,
Dudley, of Solano, Larue,
Eagon,
Edgerton,
Estee,
Estey,

MR. ESTEE. Does the gentleman wish an answer? The section reads: "All railroads, canal, and transportation companies shall be common carriers, and subject to legislative control. Any association or corporation, organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination." If the gentleman wants to know whether I consider him loaded or empty-[laughter]-I don't know but that is good grammar. MR. EDGERTON. If the gentleman will allow me; I move that the whole report be sent to the Committee on Education, to be reformed. MR. ESTEE. Mr. Chairman: I do not intend, as far as I am con- Freeman, cerned, to permit, if I am able to prevent it, any important amendment | Freud,

Evey,

Lavigne,

Lewis,

Lindow,

Mansfield,

Shafter,

Smith, of San Francisco,
Soule,

Stedman,
Steele,
Stevenson,
Strong,
Sweasey,

Swing,
Thompson,

Martin, of Alameda,

McCallum,

Tinnin,

Tully,

Farrell,

Fawcett,

McComas,

Townsend,

Turner,

Tuttle,
Vacquerel,

Van Dyke,
Van Voorhies,

THE PRESIDENT. The Convention will take a recess, according to ered the same, and recommend the adoption of the following as a substitute for pendthe resolution, until one o'clock P. M.

Add to section twelve: "Except that members of cooperative societies formed for agricultural, mercantile, and manufacturing purposes, may vote on all questions

The Convention reassembled at one o'clock P. M., President Hoge in affecting such societies in manner prescribed by law."

SEC 13. The State shall not subscribe to or be interested in the stock of, or in
any manner loan its credit to, any person, company, association, or corporation.
M. M. ESTEE, Chairman.

MR. ESTEE. I move that it lay on the table and be printed.
Carried.

THE STATE UNIVERSITY.

Wherefore, we pray you to declare, in our organic law, the right of every mechanic, material-man, and laborer to a perfect lien on the thing whereon his labor has been expended or for which his materials have been furnished.

Moreover, we would state that we would be satisfied with amendment number one hundred and sixty-seven, introduced by Mr. Van Dyke, on October tenth, eighteen hundred and seventy-eight, and read and referred to Committee on Miscellaneous Subjects, as follows: "SEC.-. have a lien upon the property on which they have bestowed labor or furnished mateMechanics, material-men, artisans, and laborors of every class shall rials, for the value of such labor done and materials furnished, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." And your petitioners will ever pray.

Referred to the Committee on Miscellaneous Subjects.

MOTION TO AMEND RULE.

MR. INMAN. Mr. President: I wish to bring up my motion to amend Rule Fifty-six.

THE SECRETARY read:

the words,' for limiting the times of speaking,' and insert,' that no mem"Amend Rule Fifty-six as follows: Strike out, in lines two and three, ber shall speak more than ten minutes on any one proposition without leave of the Convention.""

MR. WINANS. Mr. President: This Convention some time since passed a resolution calling upon the President and Secretary of the Board of Regents of the University of the State of California to furnish to the Convention a statement in brief of its financial condition, the nature of its funds, etc. The President of the Board of Regents, who is the Governor of the State, could not, of course, comply with that requirement, because he is located in this city and the work was required to be transacted in Berkeley, but the Secretary of the Board of Regents and the President de facto, did prepare and have presented to this body a report, in which the matter involved was exceedingly voluminous and the work very complicated and extensive. It has been discharged with extraordinary expedition, and the report has been ordered printed. It requires, in order to present the subject-matter more clearly to this body, that it should be separated into the different funds. The funds should be presented as separate funds, and the Secretary of the Board of Regents is now here and with the permission of this body can in a short time so arrange the matter now in the printers hands as to present a clear and distinct view of the subject, in that way, by segregating the funds. The Committee on Education, by a unanimous vote last night, instructed me to present to this body the following resolution: "Resolved, that the Secretary of the Board of Regents of the University be authorized to arrange Ayers, the report of the financial affairs of that institution, hitherto presented | Barbour, to this Convention, and now in the hands of the printer, so as to segre- Barry, gate the several funds therein set forth; and also to add to said report, Barton, to be printed therewith, the separate report of the President of said University respecting the donations thereto."

The President also sends up a separate report, in which he specifies all the donations which have been made to the University that have already been completed. There are several donations the moneys from which have not been received, but are in due course of transmission to the University. The President's report is indispensable to a full understanding of the other, and our committee requests the passage of this resolution, that the tabulated statement now presented and in the hands of the State Printer, may be so arranged and classified as that it will show the condition of the University funds in the clearest manner; and in order that the President's report as to the donations that have been made to the University may be superadded to the report of the Secretary. I therefore offer that resolution.

THE SECRETARY read:

MR. BEERSTECHER. I move that it be laid on the table.
MR. INMAN. I will call for the ayes and noes.

Smith of Santa Clara, and Ohleyer.
The ayes and noes were also demanded by Messrs. Hunter, Dean,

The roll was called, and the motion lost by the following vote:

Beerstecher,
Belcher,
Bell,
Blackmer,
Boucher,
Casserly,
Charles,
Condon,
Doyle,

Dudley, of San Joaquin, McConnell,
Eagon,
Nelson,
Estee,
Fawcett,
Freud,
Garvey,
Glascock,

Andrews,

Boggs,

O'Donnell,

O'Sullivan,

Reddy,

Reynolds,

Ringgold,

NOES.

Inman,
Jones,

Burt,

Kelley,

Campbell,

Laine,

Lampson,

Adopted. MR. WINANS. Mr. President: The Committee on Education also Cross, instructed me to present the following resolution:

Resolved, That the letter of E. W. Hilgard, Agricultural Professor of the University of California, respecting the condition and future prospects of the Agricultural Department of the University, submitted to the Committee on Education, be printed, and copies thereof furnished to the members of this Convention.

The object of that resolution is this: One of the members of the Committee on Education corresponded with the Agricultural Professor of the University, and has received a letter from the Professor, in which he fully sets forth the character and future prospects of the Agricultural Department. It contains valuable information for the use of this Convention, and will correct errors and misapprehensions which now exist. It is therefore asked that this letter be authorized to be printed. It will not consume much time, or involve much expense to have it printed. THE SECRETARY read:

Resolved, That the letter of E. W. Hilgard, Agricultural Professor of the University of California, respecting the condition and future prospects of the Agricultural Department of the University, submitted to the Committee on Education, be printed, and copies thereof furnished to the members of this Convention. Adopted.

[The reports and letter alluded to above are printed in the proceedings of November sixteenth, as finally printed for the use of the ConventionREPORTERS.]

ESCHEAT TO THE STATE.

MR. SMITH, of Santa Clara, presented the following proposed amendment to the Constitution, relative to property escheating to the State: First-No person other than citizens of the United States, and those who are eligible to become such citizens, shall hereafter in this State acquire any estate in lands. And all real property acquired in violation of this provision shall escheat to the State.

Second. Within the jurisdiction of this State, all lands, the title to

which shall fail from a defect of heirs, shall escheat to the State. Referred to the Committee on Lands and Homestead Exemptions.

MECHANICS' LIENS.

Crouch,
Davis,
Dean,
Dowling,
Dudley, of Solano,
Dunlap,
Edgerton,
Estey,
Evey,
Farrell,

Finney,

Graves,
Gregg,

Hager,
Hall,
Harvey,
Herold,
Hitchcock,
Huestis,
Hunter,

Larkin,
Larue,

Mills,

Moffat,

Lavigne,

Lewis,

Stedman,

Turner,

Tuttle,

MR. SMITH, of Fourth District. Mr. President: I move to amend by striking out "ten" and inserting the word "fifteen" before the word "minutes.'

MR. BEERSTECHER. Mr. President: I hope that any proposition concerning the limiting of speeches upon the subject of corporations, or any other subject that we are about to enter into at this time, will be voted down. Mr. President, I am thoroughly satisfied in my own mind that the object of passing a resolution of this kind at this particular time is to stifle debate upon the subject of corporations. I for one do not propose to vote for any proposition to choke off any one, or for the purpose of stifling debate upon this important subject. We are now considering the subject of corporations. We have finished with corporations generally, and are now entering upon the subject of railroads. Now, at this particular juncture comes the proposition to limit the time of speeches to ten minutes. Just as soon as we reach the subject of

MR. CROUCH presented the following petition, signed by a large num- railroads a subject that interests every producer and every working ber of mechanics, citizens of California:

man in the State of California-this motion is made. And not only that. The next subject will be the Chinese question, and then will come taxation and the legislative department. The debates, if debates are to be had at all, ought to be had in the Committee of the Whole, and if there is to be a limit the limit ought to be in the Convention. I am willing to limit debate in the Convention, but I never will place myself upon record as voting to limit debate in Committee of the Whole.