IN SENATE.
MONDAY, January 19, 1863.The Senate met at 2 o'clock p. m.
Mr. WILLIAMS offered a resolution, which was adopted, requesting the Governor to furnish a detailed statement of expenditures under the $100,000 military contingent fund appropriation.
On motion by Mr. McCLURG, it was--
Resolved, That the Committee on the Organization of Courts be requested to inquire into the expediency of so amending the law of "Courts and the practice therein," requiring the Judges of the Circuit and Common Pleas Courts of this State, to deliver their charge to the jury after the evidence is concluded, and before the argument of counsel is commenced.
MILITARY EXEMPTION.
Mr. LANDERS offered a resolution, which was adopted, instructing the Judiciary Committee to report a law, if constitutional, to fix the amount of exemption from military duty.
NEW PROPOSITIONS.
The following bills were introduced, road the first time and severally passed to the second reading, viz:
By Mr. BROWNE, of Randolph, [12] a bill requiring railroad companies in the State of Indiana, to keep on hand and furnish, on reasonable notice being given by persons offering to ship live stock or other freights over their railroads, or to or from any place of shipment thereon, a sufficient number of locomotives freight cars and other rolling stock to transport such freights without delay, and making companies failing to furnish transportation, liable for damages resulting from such failure.
By Mr BROWNE, of Randolph, [13] a bill requiring all corporations formed, or which may hereafter be formed, for the purpose of constructing, owning, controlling or operating a railroad in this State, to elect three fourths of the number of their Boards of Directors from stockholders resident in the State, and affixing certain penalties for non-compliance with the provisions of this act.
By Mr. LANDERS, [14] a bill to enforce the 13th article of the Constitution.
By Mr. RAY, [15] a bill authorizing railroad companies to make extensions or branches in certain cases.
By Mr. MARCH , [16] a bill prescribing the forms of conveyances of real estate that may be used by Executors, Administrators, Guardians, Trustees and Commissioners in certain cases, fixing a fee therefor, and also to repeal the 547th section of the Practice Act, approved, June 18, 1852.
On motion by Mr. WILLIAMS, the bill [H. R. 26] fixing the times of holding courts in the 3d circuit, was read the first time.
CONTESTED ELECTION GASES.
The argument on the contested election cases was resumed.
Hon. JOSEPH E. McDONALD. The propositions discussed by those on the opposite side were: 1st, that the Draft Commissioners were not officers under the meaning of the Constitution; 2d, if officers, they are militia officers; and 3d, that if officers, their functions ceased before the parties were called upon to take their seats in the Senate. Mr. McDonald contended, 1st, that the constitutional provision disqualifying was broad enough to embrace these officers; 2d, that the rules and regulations in, the act of Congress under which the militia was enrolled was part of the law. The gentleman from Shelby, (Mr. Ray) misconceived the decision of Chief Justice Marshall in the case he quoted in regard to the Superintendent of Fortifications. The Draft Commissioners were as much officers as was the Superintendent, and created in the same way by a law which provides that the Governors of the several States should enroll the militia by officers to be appointed by them. The duties in the regulations under the law are clearly and specifically defined in the general order issued to carry out the law. He alluded to the case in the 16th Indiana--when the right of the Auditing Committee, being members of the Legislature, to hold, was tested, and contended that the test in that case was simply the right of the Legislature to appoint committees to act during a recess to supervise the expenditure of money appropriated by it. He read from the de- page: 56[View Page 56] cision at length to show that the duty of the Committee was distinctly set down as a special duty, and clearly prescribed, It was not so with the Draft Commissioners--their duty was continuous, and the office would not have expired if the parties holding had died or resigned. The case of Gov. Ray in 1826 was not in point. He was appointed with Gen. Cass Gen. Tipton to make a treaty with the Indians--to do a specific duty. Is it a Militia office? If it is, what rank do or did the gentlemen hold? Military gentlemen are tenacious about titles. He contended if was not a militia office, for there was no militia at all until the enrollment was made. It was an office under the amended law of 1862, and it could be nothing else. He read from authorities. The Supreme Court has held that officers in the volunteer service are not officers of militia, in the case of Kerr vs. Jones, but he could not see how it helped the argument of the gentlemen. The Court, in that case, decided that although Mr. Harrison was commissioned by the Governor, he became an officer of the Federal Government when his regiment was mustered. It was the same with the gentlemen. They were appointed by the Governor to perform duties under a law of Congress.-- The power of the Governor to appoint them was derived from the same source that he derived his power to appoint Col. Harrison and other volunteer officers in the service of the United States. If an office, is it a Federal or State office? The duty performed was to carry out a law of Congress. It will not be assumed by the Senate that the Governor disregarded the law of Congress and the regulations in making the draft. If he did so, the whole proceeding was illegal, and the four thousand men in service from this State as drafted men are there illegally. He briefly alluded to the proposition that an office held at the term of election which ceases or is resigned before taking a seat in a legislative body does not disqualify, and contended that the Constitution of our own State must be the guide here. The acceptance of one office reverted another it was clear. In the case of the members from Shelby and from Henry and perhaps others, incompatible offices were accepted and held in the interregnum between the sessions. The link was broken, and it gives the Senatorial places back to the people. He dwelt on the safeguard intended to be placed around the legislative department of the Government to preserve it from Executive encroachments.
J. H. BAKER Esqr., the contestant of the seat of Mr. Murray, the sitting member from Elkhart and Lagrange, addressed the Senate. The point in this case was the acceptance by Mr. Murray, of the office of Quartermaster in the volunteer service of the United States, and holding it for a period of time during the recess of the Senate, In this case he thought there could be no controversy. The case of Kerr vs. Jones fitted this case exactly, if it did not those of Draft Commissioners. He recited the facts. The decision that Col. Harrison forfeited his office of Reporter of the decisions of the Supreme Court, covered this case precisely. The one was a Colonel and the other a Lieutenant; but both were officers in the United States service. He quoted extensively from the Decisions and from the Abridgement of the Debates in Congress, to show the time at which a person elected to a legislative office was considered a member. They all agreed that the period was when the person was sworn in and entered upon the discharge of the duty. An election merely designates the person to be qualified. He also cited the case of Van Ness of New York, who was displaced from his seat in Congress for accepting and discharging the duties of Major of Militia in the Territory of Columbia in the time that elapsed between the first and second sessions of the Congress to which he had been elected. This case, he contended, was an exact parallel to that of the gentleman whose seat he was contesting.
