IN SENATE.
MONDAY, March 6, 1865.The Senate met at 9 o'clock a. m.
The journal of Saturday was being read, when--
On motion by Mr. COBB its further reading was dispensed with.
JOURNALS, LAWS AND BREVIER LEGISLATIVE REPORTS.
Mr. DYKES offered the following:
Resolved, That the Secretary of State be authorized to procure and send to each member of the Senate and to the officers and reporters thereof, two copies of the BREVIER LEGISLATIVE REPORTS: also two copies each of the Senate and House Documentary Journals, and two copies of the Acts of the present session, all to be bound in full sheep.
Mr. OYLER moved to amend by striking out the word "two" where it refers to the BREVIER LEGISLATIVE REPORTS and inserting in lieu thereof the word "three."
The amendment was agreed to.
And then the resolution as amended was adopted.
Mr. CORBIN offered the following :
Resolved, That the Auditor of State be and he is hereby directed to draw his warrant on the State Treasury in favor of A. E. & W. H. Drapier for $1500 or so much thereof as may be necessary to pay two-thirds of a cent a page per copy for six hundred copies--being the usual number furnished the Senate every session since 1857--of the BREVIER LEGISLATIVE REPORTS, an equal number to be sent by express to each Senator as soon as possible after the adjournment.
The yeas and nays were demanded by Messrs. COBB and VAWTER, and being taken, resulted--yeas 28, nays 15--as follows :
YEAS--Messrs, Bennett, Bonham, Bradley,Brown of Hamilton, Brown, of Wells, Carson, Cason. Chapman, Corbin, Cullen, Culver, Douglas, Dunning, Dykes, Gifford, Hord, Marshall, McClurg, Newlin, Niles, Oyler, Peden, Staggs, Thompson, Van Buskirk, Williams, Woods, Wright--28.
NAYS-Messrs Allison, Barker, Beeson, Bowman, Cobb, Davis, English, Gaff, Hyatt, Mason, Noyes, Richmond, Terry, Vawter, Ward--15.
So the resolution was adopted.
A MESSAGE FROM THE GOVERNOR
announced his approval of certain acts and a joint resolution.
page: 388[View Page 388]Mr. OYLER took occasion to express it as his opinion that the Governor had no right to sign or approve, or in any manner to have anything to do with any joint resolution except as the same may be directory to him. If the Governor approves he may disapprove of a joint resolution. It has been the custom for the Governor to approve and sign joint resolutions, but the constitution does not provide for it. The 4th joint rule provides that joint resolutions shall be sent to the Governor for his approbation and signature, while the constitution says the Governor has nothing to do with joint resolutions ; nor does the constitution speak of their going to the Governor at all. Mr. O. entered his protest against this irregular way of doing business.
LENGTH OF THE SESSION.
Mr. NILES submitted the following :
Mr. PRESIDENT: The Judiciary Committee to whom was referred the Message of the Governor in regard to the right to prolong the present session of the General Assembly, report that they have spent considerable time in consultation on the subject without having arrived at a unanimous conclusion.
But the Committee are of opinion that it is not advisable to depart from the established usage and to now unsettle what has been for fourteen years, the practical construction of the constitution.
The Committee therefore recommend that the session be not extended beyond sixty one days, counting by revolutions of the earth on its axis.
The report was concurred in.
Mr. DOWNEY submitted the following :
Mr. PRESIDENT : The majority of the Judiciary Committee to whom was referred the question in regard, to the length of the sessions under the constitution, according to order, report as follows:
This session of the general assembly began on the 5th day of January, 1865, and the question is, when must it end ? The language of the constitution on the subject is found in section 29, of article 4, and is as follows : "No session of the general assembly, except the first under this constitution, shall extend beyond the term of sixty-one days, nor any special session beyond the term of forty days."
Words are to be understood in their plain and ordinary sense. A "civil day," or a day when mentioned in a constitution or statute, means a period of twenty four hours, beginning and ending at 12 o'clock at night. Sunday is a day as well as week days.
There is no difficulty in arriving at what is meant by the word "session." It means, in this instance, the time during which the Legislature sits, with occasional intermissions of a day, or more, until its final adjournment.
The word "term" used in this clause of the constitution, and as used in eight or ten other places in, the same instrument, means a period, or length of time, from one given date to another. To find the true meaning of the word when it is used in the constitution we must look at other paats of that instrument, as well as the one under consideration. All parts of it were made at the same time and by the same persons. A strange use may be made of a word in an instrument, but if you find the word used in many other places in many places in the same paper, in the same sense, it must have the meaning which from the whole instrument the party intended it to have. We do not mean to say that the word is properly used in this instance We think it is not. Let us look to its meaning in ether places in the coustitution. In article 2, section 6, the word "term" is used with reference to the term during which a person may hold an office. In art. 4 sec. 5, it is said senators shall be chosen for the term of four years, and representatives for the term of two years. In art, 5, sec. 9, the oflicial term of the governor and lieutenant governor shall commence, &c. In the same article, sec. 22, it is provided that the governor's salary shall not be increased or diminished during the term for which he shall have been elected ; and in sec. 24: neither the governor nor lieutenant governor shall be eligible to any other office during the term for which he shall have been elected. In art. 7, sec. 9: circuit judges shall hold their office for the term of six years &c.; and in sec. 16 of the same article; no person ejected to any judicial office shall, during the term for which he was elected, &c. In the 5th clause of the schedule, the word is used, and in the 13th clause it is twice used in the same sense.
We cannot see that it can make any difference whether the period of time is to be computed by days, weeks, months or years. It is a continuous period, made up of successive days, in either case; and as Sundays are days, why should they be excluded, unless the language or words used, and for which a proper construction is sought, so expressly require?
Had the language of the constitution been that the general assembly should not "sit" or not be "in session" more than sixty-one days, it might then be construed to exclude all days when the legislature was not actually in session or doing business, as well Sundays as other days. At this session, the sixty-one days, if we include Sundays, expire on the 10th of March. Now, if the general assembly shall be in session on the 10th of March, is not that "beyond the term of sixty-one days" from the time the session began ?
We think that where a period or term of time is to be reckoned in days, months or years, that Sundays must be included, unless expressly excluded. If money is to be paid, or any other act performed, in thirty, sixty, or any other number of days, the Sundays falling within that time must be counted. Such is the rule in computing the ten days notice to a party sued, and such is the rule where a party is required to appeal within a certain number of days. The Sundays are counted against him, and yet they are not days on which he should be engaged in preparing his defense or perfecting his appeal.
Where it is intended that Sundays shall be excluded it is so expressed in the constitution, and in our statues, and as Sundays are excepted in this section in regard to the approval of bills by the governor, it furnishes ground to suppose that if it had been intended in the other case it would have been so expressed.
Sundays and certain holidays are spoken of as non-legislative days; but we do not understand by this that legislative business cannot be done on these days, but only that by a kind of common consent it is not done. It is expressly laid down in Cushing's Manual that legislative business may be done on Sunday, and instances can be cited where it has been done; but still he says Sunday is a non-legislative day. We must not be understood as saying that legislative business ought to be done on Sunday. But suppose the legislature should sit on each successive day from the commencement of the session, and suppose bills to have one of their indispensable readings, or to be passed on a Sunday, would the act be void? There is no provision in the state constitution which prevents the legislature from being in session on Sunday. Legislation is not enumerated among the acts prohibited by the Sunday law. If it was, might it not in some possible case become a work of "necessity" and for that reason be allowable.
There was a reason for fixing upon sixty-one days as the length of a session, rather than some more convenient and an even number of days. By a previous section of the constitution the time when the sessions must begin was fixed. It was fixed for Thursday after the first Monday of January.- -Counting sixty days from that time and the sessions would always close, or the time would expire on Sunday. We know from some who were members
page: 389[View Page 389]of the convention, and it is pretty commonly understood, that sixty days was the term first agreed on, and that the odd day was added to prevent the termination of the period on Sunday.
The legislature had had some kind of limitation nf its session prior to the adoption of this constitution but as it was only by virtue of a statute; it was subject to change, and as we now recollect it operated only by way of reducing or cutting off pay after certain lapse of time. There is an able report on this Subject in house journal, pages 449-50, in which it is shown that Sundays must be included.
Contemporaneous construction of constitutions and statutes is of very great weight, in ascertaining their true meaning; and by this we mean not only what occurred at the exact time, but also that which prevailed soon afterwards. The reasons for this are that those who lived at the time, and who were acquainted with the causes which induced the making of the provision or enactment and first had occasion to act upon it, or construe it, are presumed to be better able to know its true construction than those who live at a more remote period.
The first session of the legislature under the present constitution was unlimited as to its duration.--At the next session, that in 1853, very little legislation was necessary - and the term closed before the sixty-one days expired, Sundays included.
At the session in 1837 the question was raised, and was settled by a concurrent resolution passed by both Houses, which is found on p. of the journal of the House. Then the session began on the 8th of January, and, according to the resolution, ended on the 9th day of March, which made just sixty-one days, Sundays included.
At the session in 1859 (in House journal, page 908,) the opinion of the judiciary committee is given in accordance with our opinion. (See page 273 vol. II. of the BREVIER LEGISLATIVE REPORTS )
At the session in 1861 the subject was referred, in the House to the judiciary committee, and their report is found on page 961. (See page 364, volume IV of the BREVIER LEGISLATIVE REPORTS ) This session began on the 10th of January and ended on the 11th of March, just sixty-one days, Sundays included.
At the session in 1863, and on the 12th day of February, 1863, resolutions were introduced and adopted, as found on page 330 of the Senate journal, which show that it was then believed that the session ended in sixty-one days, Sundays included.
For these reasons we come to the conclusion that the session must end at the expiration of the term of sixty-one days, including Sundays, and that bills could only be presented to the governor for approval as late as Saturday, the the [?] inst. We recommend the adoption of the same resolution which was adopted by both houses in 1837, changing only the dates to make it apply to the present year, as follows ;
Resolved, That this session of the general assembly, which began on the 5th day of January, must end on the 6th of March, and that bills could be presented to the governor as late as the 4th.
PARIS C. DUNNING, FRANCIS T. HORD, THOS. R. COBB, A. C. DOWNEY.
Mr. DOWNEY moved to reconsider the vote adopting the report submitted on this subject by the Senator from Laporte.
Mr. CASON would prefer that the Tote should not be reconsidered. He was not willing to concur in the argument made in the report just read. If this matter be taken up and discussed now, it will take too long,and in order to save time he would prefer to see it lie on the table.
Mr. DUNNING had not read the arguments in this report, but concurred in its conclusions. He was better pleased with the first report than with the resolution appended to the report made by the Senator from Ohio. His judgment was that bills could be passed to-day and could be presented to the Governor, and in that opinion he had the concurrence of the best legal talent in the city. He had no doubt of the validity of any law that may be passed to-day were that the only objection to it.
Mr. COBB insisted that both reports go upon the records. He favored the motion to reconsider, though he endorsed the conclusions of the report.
Mr. HORD also concurred in its conclusions and he desired that the other report should be adopted. He had given this matter some little investigation, and hoped it would be acted upon as argument for future reference in settling this question.
Mr. BENNETT favored the first report. Can any action of this Senate to-day bind the act of any succeeding legislature? Most assuredly not. He thought the matter had better be allowed to rest where it is. He didn't think we ought to decide this question now as there is no necessity for it. He thought he could see that certain members desired this Senate to be put upon the records as against the Governor and Supreme Bench.
Mr. COBB thought the Governor or the Supreme Court had but little to do with this question, and that this was an attempt to compel this Legislature to continue its session wrongfully--a species of intermeddling that was unwarranted.
Mr. CHAPMAN moved to lay the motion to reconsider on the table.
This motion was agreed to by yeas 22, nays 21--as follows:
YEAS--Messrs. Allison, Beeson, Bennett, Bonhnm, Brown, of Hamilton, Cason, Chapman, Culver, Davis, Dunning, Dykes, Hyatt, Milligan, Noyes, Oyler, Peden, Richmond, Terry, Thompson, Van Buskirk, Ward, Woods, Wright and Mr. President.--22
NAYS--Messrs. Barker, Bradley, Brown. of WeIls, Carson, Cobb, Corbin, Douglas, Downey, English, Gaff, Gifford, Hanna, Hord, Marshall, Mason, McClurg, Moore, Newlin, Staggs, Vawter, Williams--21.
So the motion to reconsider lies on the table.
Mr. WILLIAMS moved that the last report submitted be adopted as the sense of the Senate.
Mr. BENNETT moved to lay this motion on the table.
The latter motion was agreed to by yeas 24, nays 23--as follows :
YEAS--Messrs. Allison, Beeson, Bennett, Bonham, Brown, of Hamilton, Cason, Chapman, Culver, Davis, Dykes, Hyatt, Milligan, Niles, Noyes, Oyler, Peden, Richmond, Terry, Thompson, Van Buskirk, Ward, Woods, Wright and Mr. President--24.
NAYS--Messrs. Barker, Bowman, Bradley,Brown, of Wells, Carson, Cobb, Corbin, Douglas, Downey, Dunning, English, Gaff, Gifford, Hanna, Hord,Marshall, Mason, McClurg, Moore, Newlin, Staggs, Vawter and Williams--23.
So the motion was laid on the table.
page: 390[View Page 390]PAY FOR NEWSPAPERS.
Mr. COBB offered the following:
Resolved,That Holloway, Douglas & Co., of the Journal, and Elder, Harkness & Bingham of the Sentinel, be each allowed the sum of twenty-eight hundred and sixty-eight dollars and forty-one cents, ($2,868.41) for copies of the Daily Sentinel and Daily Journal furnished this Legislature out of the Legislative appropriation fund; that J. H. Jordan be allowed one hundred and forty-five dollars and seventy-five cents ($145. 75,) for copies of the Gazette; that Julius Boetticher be allowed two hundred and three dollars and thirteen cents, ($203.13,) for the Volksblatt, and E. J. Metzger, be allowed one hundred and twenty-seven dollars and twenty-six cents, ($127.26,) for the Free Press furnished this Legislature, out of the appropriation made for Legislative expenses.
On motion by Mr. CHAPMAN the resolution was amended by reducing the first amount to $728 75, instead of $2,868.41; and the two last sums to $35.65, being the sums due on Senate contracts.
The resolution, as amended, was adopted.
REPORTS FROM COMMITTEES.
The standing Committees on Finance, Judicary, Claims and Education, and the special Committee on Railroad Appraisement, returned sundry bills and petitions in their possession to the tiles of the Senate.
THE GOVERNOR'S MILITARY SECRETARY.
The Committee on Military Affairs reported that, upon invitation they had examined the military Secretary's office and found the arrangement and management of the same complete.
THE PENITENTIARIES.
Mr. ALLISON submitted the following:
Mr. PRESIDENT : The Committee on Prisons would respectfully report that we visited the Southern Prison and examined into the manner the same, its book accounts had been kept, the treatment of the prisoners, &c , for the last two years.
We cheerfully bear testimony to the faithfulness of the Warden and his competency for the position as to the government of the Prison.
From the hasty examination we were compelled to give the books and accounts of the Prison we are not prepared to give an opinion of their condition, They seem to be kept in a manner that would preclude a proper examination without evidence outside of the books themselves. For instance, there is one item of expense as follows: For corn, $1,994.22. We called the Warden's attention to the fact that the single item of corn seemed large. He then stated to us that that item embraced several other things besides corn. In that item we were interned was embraced potatoes, $700,00, turnips and other vegetables. Now if the accounts are allowed to be made up in this way, great frauds might be perpetrated in the hands of a dishonest man ; for suppose you allow the item of corn, as set forth,, to cover up potatoes and ether articles, a dishonest Warden might embrace in his corn account any item of his, private expenses and not be detected; or he might be allowed for the amount of corn in one item and charge for the potatoes or other articles separately.
We would respectfully suggest that the Warden and Clerk be required to keep a carefully itemised account, charging himself with each sum received ; for what, and of whom received, and for what expended.
Your Committee would further report that the Directors of said Prison have either acted fraudulently or with a total disregard to the interests of the State in the contracts of hiring the Prison labor. They made contracts to run until November 1867, at 40 cents per day for each convict, when it costs more than that amount to feed and clothe them each, and when it must have been well known to the directors that they could have hired the convicts at from 70 cents to one dollar per day But if they could not get but forty cents per day which is less than the cost of keeping, why encumber the State with contracts running to 1867?
Your Committee would also state that the same practice prevails at the Southern Prison that prevails at the Northern Prison ;that of the Warden and his deputy using the convict labor about their private business without accounting to the State for the same; which we recommend be discontinued.
Your Committee found the Prison in a clean, healthy condition. The present contractors have put up a large amount of expensive machinery, thereby affording ample opportunity for employing all the convicts inside of the Prison Walls; and many of the prisoners, we were informed, have learned useful trades since their confinement. This we think much more desirable than the old mode of allowing the convicts to be employed at day labor on the outside of the Prison.
Your Committee would further report that the prisoners are not allowed any but corn bread. This we think is cruel, to confine even Prison convicts on corn bread without a change.
Your Committee would further state that the Directors of the Southern Prison have assured us from time to time that the Prison would be self-sustaining; and yet this year we are asked for an appropriation of $15,675.14 to pay off the indebtedness of the Prison; and for $25,000,00 to defray the expenses of the next two years, which the Committee think does not sustain the oft repeated promise of its being self-sustaining.
We therefore recommend the passage of Senate Bill 153 which provides for the leasing of the Prisons North and South,, which if carried into effect will be a saving to the State of fifty thousand dollars per annum.
All of which is respectfully submitted.
Mr. BROWN, of Wells, made an ineffectual motion--yeas 7, nays 28--to lay the report on he table.
The report was then concurred in.
CORRESPONDENCE WITH THE GOVERNOR.
On motion by Mr. NILES, it was--
Resolved, That a committee of two on the part of the Senate, be appointed to act with a similar committee on the part of the House, to wait on the Governor, and ascertain and report to the Senate if he has any further communication to make to this General Assembly.
The Lieutenant GOVERNOR appointed Messrs. Niles and McClurg the committee on the part of the Senate.
STATIONERY.
Mr. DOWNEY from the select committee to which was referred Mr. Bennett's resolution of yesterday (sse page 365) returned the same with a report from the librarian of the amount of Stationery drawn from him by Secretaries,Senators and Chairmen of committees . The report of the principal Secretary of the number of his employees and the report of the assistant Secretary on the same subject. Also the statement of the Secretary and assistant Secretary as to the Stationery got and used by them and a batch of orders, &c. as to Stationery given out by the Secretaries. The number of assistants of the Doorkeeper has already been reported to the Senate. The Committee have not had time to examine the matter in detail, and therefore submit the page: 391[View Page 391] matter to the Senate upon the various statements and accompanying documents.
Subsequently this report was laid on the table.
On motion by Mr. OYLER, it was--
Resolved,That the Principal Secretary of the Senate be and he is hereby instructed to turn over to the Librarian any and all Stationery now in his possession or charge, taking an inventory thereof and that the Librarian receipt to the Secretary for the amount so turned over.
CORRESPONDENCE WITH THE GOVERNOR.
Mr. NILES submitted the following :
Mr. President, the committee appointed to wait on the Governor, have performed that duty and respectfully report that His Excellency has informed them that he has no further communication to make to this General Assembly.
THE JENNINGS CONTEST.
Mr. DUNNING offered a resolution paying certain expenses incurred in the contest made for the Seat occupied by Mr. Vawter.
Mr. WILLIAMS moved to amend as follows:
Resolved, That the sum of eight hundred and fifty-nine dollars and eight cents be paid Aquila Jones, for advance of salary to Governor Willard in the year 1858, to be paid out of the Legislative appropriation of the present session.
On motion by Mr. BENNETT the amendment was laid on the table.
The resolution was adopted.
ADJUTANT GENERAL'S REPORT.
On motion by Mr. CASON, it was--
Resolved, That twenty-five hundred copies of the Report of the Adjutant General of the State of Indiana be printed for the use of members of the Senate.
On motion by Mr. THOMPSON it was
Resolved, That Nicholas Sherley be allowed the sum of ten dollars for washing towels for the Senate Chamber.
EXTRA PAY TO CLERKS.
Mr. HANNA offered the following :
Resolved, That the Principal and Assistant Secretaries of the Senate, and their appointees, and the Principal and Assistant Doorkeepers of the Senate, and their appointees be each allowed the sum of sixty-one dollars in addition to their per diem heretofore allowed.
The yeas and nays were demanded on the adoption of the resolution.
And then came the recess for dinner.
AFTERNOON SESSION.
On motion by Mr. ALLISON it was--
Resolved, That the Secretary and Assistant Secretary of the Senate be allowed the sum of one hundred dollars each for preparing the Index of the Journal, and superintending the publication of the same.
STREET LAMP.
On motion by Mr. DUNNING it was--
Resolved, That Haskall & Co. be and are allowed the sum of eleven dollars for services in fixing Street Lamp to be paid out of the Legislative fund.
CLAIMS.
The Committee thereon reported in favor of the accounts of Ely & Bonner$28,00; & C. A. Woodbridge $15; and adversely to the claim of J. H. Woodburn.
APPROPRIATIONS.
Mr. DUNNING offered the following :
Resolved, That J. G. Bryant be allowed the sum of six dollars and fifty cents out of the Legislative fund for a copy of "Cushing's Manual" furnished the Senate.
On motion by Mr. CHAPMAN the resolution was amended by including all claims allowed by the Committee on Claims and referred to the Committee on Finance for incorporation in the specific appropriation bill.
On motion by Mr. BENNETT the resolution was further amended by allowing W. H. DRAPIER sixty-six dollars for organizing the Senate.
The resolution as amended was adopted.
On motion by Mr. WILLIAMS it was--
Resolved, That the Auditor of State is hereby authorized and requested to report and have the same printed in the State Sentinel and State Journal the amount of money paid out to Secretaries and their assistants, the Doorkeepers and their assistants ; giving the name and amount paid to each.
THE FINAL ADJOURNMENT.
Mr. NILES moved that the Senate do now adjourn sine die.
Whereupon--
The LIEUTENANT GOVERNOR said : I desire to return to Senators my thanks for the kind consideration with which they have treated me during this session of the Senate. I appreciate most highly their good opinion, and I assure them that I extend to each one upon this floor my kindest regards. I trust that they may have a prosperous journey to their respective homes ; and they shall always have my best wishes for their'happiness.
Mr. NILES said : I cannot well resist the impulse to reply, that the kind and respectful sentiments expressed by the President are undoubtedly reciprocated, without distinction of party, by every senator on this floor. I may add, that, during a laborious and exciting session, there has not existed one iota of personal un-kindness among senators. The memory of that fact will remain among the pleasantest recollections of my life.
The LIEUTENANT GOVERNOR, I now declare the Senate adjourned sine die.
