IN SENATE.
TUESDAY, February 5,1861.Mr. ROBINSON presented a petition from the Mount Sterling Turnpike Co., praying an amendment to their charter, so that they can charge a higher rate of toll, which was read and referred to the Committee on Corporations.
Mr. MARCH, from the Judiciary Committee, returned his embezzlement bill [S. 1]-see page 6-with amendments recommending passage.
NEW PROPOSITIONS.
The following bills were passed the first reading, without objection :
By Mr. MELLETT: [124] An act authorizing Circuit Courts to hold adjourned and special terms fixing the compensation of Judges and Prosecuting Attorneys thereof, and to legalize terms heretofore held.
By Mr. TARKINGTON : [125] To subdivide tracts of land in the several townships of Monroe and Gibson counties.
By Mr. LOMAX : [126] To repeal so much of an act to provide for equalizing the appraisement for taxation of real property, approved May 28, 1852, as authorizes the holding of District and State Boards of Equalization.
By Mr. ROBINSON: [127] Authorizing County Auditors to issue fee bills.
page: 170[View Page 170]A MESSAGE FROM THE HOUSE
Announced the passage by that body of the bill [H. R. 119-see page 121;] also, the bill [H. R. 152-see page 136.]
FEDERAL RELATIONS.
Mr. JONES made an ineffectual motion-yeas 20, nays 24-to suspend the order of business, and take up his motion submitted some days since, to re-consider the vote adopting the resolution referring all matters concerning the affairs of the country to the Committee on Federal Relations.
Mr. SHOULDERS presented resolutions adopted at a mass meeting of the Democracy of Gibson county, recently, having reference to the state of the Union; which were read.
Mr. CLAYPOOL presented a preamble and resolutions adopted by a conservative meeting of citizens of Fayette county ; (the Democracy, finding themselves in a minority, as is usual in that county, having seceded,) which were read.
These were referred to the Committee on Federal Relations.
Mr. SLACK presented resolutions, desiring that they be read.
Mr. CONNER, and others, objecting-
The PRESIDENT decided them out of order, unless a motion be made to suspend the order of business.
Mr. SHOULDERS made that motion.
On motion by Mr.ANTHONY-yeas 25,nays 21-the motion was laid on the table.
THE PROTECTION OF FISH.
The PRESIDENT announced the consideration of the unfinished business of yesterday being Mr. Claypool's bill [S. 40see page 46] on the third reading. A motion pending to re-commit, with sundry instructions-
Mr. STUDABAKER. I desire to propose additional instructions, for the reason that I know the provisions of the bill will not suit a portion of my constituents. Amend so as to exempt the St. Mary's river.
Mr. SLACK: So amend as to authorize the taking of catfish and suckers at any season.
Mr. ODELL: So amend the bill as that the restrictions shall have no force or effect except from the first day of May to first day of October of each year; and not to prohibit the construction of dams across streams for water power purposes.
The bill was recommitted, with the various instructions offered yesterday and to-day.
SHEEP KILLED BY DOGS.
Mr. Jones' bill [S. 16-see page 30] being read the third time-
Mr. J. said : The bill simply provides for procuring statistics as to the number of sheep killed or injured by dogs, and their value, not providing any remedy whatever.
Mr. LINE. Some Senators may feel disposed to vote against this bill because of the increased expense. But it is the only way we can get tangible data. Ohio has adopted a similar law.
Bill finally passed by yeas 43, nays 2.
[On motion by Mr. LANDERS, his bill [S. 49-see page 69] was taken from the table and referred to the Judiciary Committee.]
PUBLICATION OF NOTICE OF TRIALS.
Mr. Conner's bill [S. 18-see page 30] being read the third time-
Mr. C. said : This bill is simply to limit the time of publication from sixty days to thirty days. Under the change now proposed, fifty, one days will have to intervene from the first publication to the day of trial; and that is deemed amply sufficient as a notice to non residents.
Bill finally passed by yeas 46, nays 1.
CONVEYANCE OF PUBLIC PROPERTY.
Mr. Shoemaker's bill [S. 26see page 30 of these Reports] being read the third time-
Mr. S. said : While this bill is general in its terms, it is entirely local in its application and can in no manner affect any county but the county of Perry, which I represent, and the citizens of which desire its passage.
Mr. Line and Mr. Mellett, having been on the Committee to which it was referred, assured the Senate the bill could affect no other county than Perry.
Mr. ANTHONY was opposed to this kind of legislation, but acceding to the representations of the Senator who introduced the bill, would vote for it.
Bill finally passed by yeas 43, nays 2.
TRACT BOOKS, ETC., EVIDENCE.
Mr. Wilson's bill [S. 44-see page 69 of these reports,] being read the third time-
Mr. MARCH. The object of this bill is to supply a defect in evidence relating to date of entry of lands. It is in substance the law in existence in '43, but omitted in the statutes of '52. It makes tract books, catalogues, &c., prima facia evidence of the facts stated in them relating to the title of land.
Bill finally passed by yeas 47, nays 0.
REPORTER OF SUPREME COURT.
Mr. Mellett's bill [S. 45-see page 69 of these reports,] being read the third time-
Mr. MILLER moved to recommit to the Judiciary Committee, with instructions to amend so as to allow the Reporter, in his discretion, to publish in the reports references to cases cited in the briefs of counsel, not exceeding twenty-five pages in each volume.
Upon Mr. Mellett's assurance that the bill provides as this amendment proposes, Mr. Miller withdrew his amendment.
Mr. NEWCOMB moved to recommit, with instructions to provide that if the decisions of a single term shall not amount to the number of pages now required by law, the Reporter may, notwithstanding, publish a separate volume for each term.
Mr. HAMILTON offered additional instruc page: 171[View Page 171]tions, so that no more shall be charged for the publication than a proportionate amount, equal to $3 per 600 pages.
The motions were agreed to.
STRUCK JURIES FOR CIRCUIT AND COMMON PLEAS COURTS.
Mr. Newcomb's bill [S. 49see page 69 o these reports,] being read the third time-
Mr. NEWCOMB. This bill provides that either party may notify the other that they want a special jury ; the clerk selects a num ter of names, each party strikes off twelve leaving a sufficient margin for challenge. I is very rare that cases requiring such juries may come up, but in settlement of co-partnership of long standing, &c., they are sometimes needed.
The bill finally passed by yeas 32, nays 10
COMMON PLEAS COURTS IN NEW COUNTIES.
Mr. Turner's bill [S. 54-see page 69 of these reports,] being read the third time-
Mr. TURNER. There is now no law for holding common pleas courts in new counties and this bill provides the same means for common pleas that are provided for circuit courts. I don't know of but one county in the State which it will affect, and that is Newton county.
Bill finally passed by yeas 40, nays 1.
COMMON PLEAS ATTORNEY'S SALARY.
Mr. Line's bill [S. 54-see page 69 of these reports,] being read the third time-
Mr. L. said. I introduced this bill at the instance of a friend, with the understanding that it might take its course. I believe he was a district attorney.
Mr. WOLFE moved to recommit the bill with instructions to strike out all that portion of the bill requiring the payment of the common pleas prosecutor's fees out of the county treasury in case of insolvency of the defendant.
Mr. STUDABAKER. I have no doubt but there ought to be some provision made for the payment of prosecuting attorneys, since the change of law giving common pleas courts jurisdiction in felonies, most of those cases are tried in that court. It so happens that most persons convicted of that kind of offense have nothing from which costs can be collected, and necessarily forces the prosecuting attorney to prosecute without compensation. We pay circuit prosecutors a good salary, and their labor is not as much as the common pleas prosecutors. When an attorney goes into a case of importance, with the fact staring him in the face that he is to receive no compensation, he goes into it reluctantly.
Mr. MlLLER. I hope the bill will not be recommitted. The only objection is, that it does not give the district prosecutor fees enough. There was a difference of opinion between the members of the Judiciary Committee upon this bill. It seems to me folly to enact penal statute laws for the punishment of crimes, have courts for the trial of criminals, elect prosecutors to conduct these trials, and then knock the whole thing in the head by refusing to pay the prosecutor anything for his labor. This is the reason why our laws are not enforced any better than they are; this is the reason why so many criminals go unpunished. The administration of ,our penal laws has become so lame, it is unfrequent that we have a conviction of any high crime in this State. I think the prosecutors ought to have a salary in addition to what this bill gives, of $300, and then I doubt whether you could get attorneys of talent, energy, and learning sufficient for the place, to take the office. It is a very responsible position, and one in which the officer ought to be well paid. You can not expect men to work for nothing. So long as you fail to pay your attorneys, so long will you fail to have a just execution of the laws. I believe in bringing criminals to justice, and preserving the purity of society as far as possible.
Mr. HAMILTON moved additional instructions, giving the prosecutor $400 a year out of the State Treasury, and a fee of $5 on all convictions on plea of not guilty; $2 50 for conviction on plea of guilty, the docket fee to be collected from the defendant.
Mr. WOLFE. I am in favor of paying prosecuting attorneys well for their services; in fact I am in favor of all persons who labor for the country being paid a just compensation. I understand the bill before the Senate amply pays without making the county treasury pay in addition. Most of these cases would be gotten up for the express purpose, I fear, of saddling costs upon the county treasury. Attorneys are very fond of fees. I am opposed to any further drafts upon the county treasury for any purposes whatever.
Mr. CRAVEN. It appears to me the Senator from Harrison misunderstands the provision of the bill. He objects to it because he supposes some corrupt prosecutor for the purpose of getting fees will bring up a great many cases before the courts for trial. By the terms of the bill there is not one dollar going to the prosecutor, except in case of conviction. I am opposed to the instructions oming from the Senator from Allen, [Mr. Hamilton.]
Mr. CLAYPOOL. I favor the bill as a matter of economy. The present system of common pleas prosecuting is a perfect farce, and I believe if this bill were passed it would intro-duce a better class of prosecuting attorneys. Make them a fair allowance to be paid out of he county treasury, for if it is to be paid by the defendant it is never paid; hardly ever.
Mr. ANTHONY. I think Senators in this bill have overshot the mark. I think the object of this bill is to raise to the dignity of a high and responsible office attorneys in the various common pleas districts of this State where there is comparatively no criminal business. Go into the large cities, and you page: 172[View Page 172]will find that you have created a general act that will pay prosecuting attorneys $10,000 per year. Nearly this entire compensation would have to come out of the country treasury, because there are scarcely ever any persons convicted who can pay. I want to pay them a fair and liberal compensation, but as I said at first I think gentlemen have rather overshot the mark. I am in favor of recommittal.
Mr. MELLETT. I am not prepared to vote for this bill as it is. I think the trouble exists from the fact that we have two courts of criminal jurisdiction. If we had but one court and a prosecutor with a salary of $500 and fees, it would be a good office, commanding the best legal talent in the State.
Mr. MARCH. With all deference to the arguments of Senators, I do not believe gentlemen can better the bill, I believe it will provide reasonable compensation for the prosecutor, and will call into requisition parties able to discharge their duties. Now the common pleas prosecutor gets almost nothing, and this is to supply that deficiency in the law.
Mr. WHITE. I would prefer this bill to any instructions offered. As I understand it under the present system the prosecutor can prosecute just such cases as he pleases; in other words, he is both prosecuting attorney and grand jury. No matter how full of criminals the jail is, except those whose crimes are punishable by death, he can exercise his own volition whether to prosecute or not. I think the prosecuting attorney ought to be paid well for his services. I am for paying officers in order to bring out talent; but there are many who would lay still on a salary and never show themselves in court.
Mr. SHIELDS. If there is any thing above another the tax-payer complains of it is paying officers and not knowing what we are paying them. The biggest tax-payer in the county can hardly answer the question, what is the salary of your county officers ? Why are these sums so large? It conies just in the same way this bill provides. Let the provision be that the compensation shall under no circumstances reach so and so. We ought to reflect before passing this bill.
Mr. RAY. I do not fear the pay of the prosecuting attorney will become excessive. If I thought I could bring the people to realize what a mockery our whole judicial system is the extent of the judicial degredation of this State growing out of reckless, hasty, and in some instances, ignorant legislation of the few years past; or if I was not sure we were not going to have any re-organization of the judiciary, I would vote for the bill. The whole system is sunken and we should re-model it. I believe if the common pleas court were abolished and the whole business of that court committed to the circuit court, give the prosecutors a stated salary of $1000 and then you can command the services of able men who will discharge the duties with honor to to themselves and justice to the public. I believe the saving to the State would be about one-third of the present expenditure of the whole judicial system.
Mr. COBB. I agree with the Senator from Shelby, in reference to our judicial system; but I do not believe there should be any radical change as to that system now, therefore I am anxious we should do all we can to per feet the system as it is. I am opposed to all the amendments. I can see that the spirit of this bill is correct.
Mr. TARKINGTON. I am in favor of the bill with the following additional instructions: "In no case shall the Board of Commissioners pay any of said fees until the clerk of the Court shall certify that said fees cannot be collected of the defendant."
Mr. WOLF. Instead of abolishing the common pleas system, I would strike from it all criminal jurisdiction. If you give the probate system to the circuit court or to the clerk by a surrogate system it will never be attended to properly. * * * The prosecuting attorney is amply paid under the provisions of this bill without taxing the county treasury one cent.
Mr. MURRAY. If the bill is to be recommitted I desire to offer the following instructions in accordance with the request of the district attorney of the common pleas court in my county: "Strike out all after the enacting clause," &c., giving a salary of $300 out of State Treasury : and two fees of $5 and $3 each, $2 50 and $ 2, to be recovered from the defendant.
The bill was recommitted with several instructions by way of amendment.
Mr. MARCH offered instructions, which were referred by consent, adding to the last section that the county commissioners shall make no allowance for fees for the district attorney, under the provisions of this act, until furnished with a certificate of the clerk of the court stating that the defendent is insolvent; the attorney shall receive no compensation from the public treasury except as provided in this act, and on failure to attend the court shall appoint a substitute who shall receive compensation out of his fees.
And then the Senate adjourned.
