IN SENATE.
WEDNESDAY, November 29, 1865.The PRESIDENT pro tem, called to order at 9 o'clock A, M.
On motion by Mr. GIFFORD, the reading of the Journal of yesterday was dispensed with.
Messrs. WOOD and NEWLIN presented petitions praying for amendments of the Liquor Law; which were referred to the Committee on Temperance.
REPORTS FROM COMMITTEES.
Mr, OYLER, from the Committee on Organization of Courts, returned the bill S, No. 244 to amend an Act for the election of Justices of the Peace; also, the bill S. No. 239, authorizing other sessions of Common Pleas Courts where they come in conflict with Circuit Courts; recommending their passage.
Mr. CULLEN, from the Committee on County and Township Business, returned the bill H, R. No. 52, to render uniform assessments of personal property, etc., recommending its passage.
Mr. ALLISON, fron the Judiciary Committee, returned the bill S. No. 187, amending the City Charter of Madison, recommending its passage.
These reports were concurred in and the bills read the second time.
Mr. CULLEN, from the Committee on County and Township Business, returned the bill S. No. 121, amending section 14 of the act for a more uniform mode of doing Township Business; also, the bill S. No. 285, amending the Act in relation to County Auditors; recommending that they lie on the table.
Mr. STAGGS, from the same Committee, returned the bill S. No. 136, to amend sections 8 and 11 of the uniform Township Business Act, with the same recommendation.
These reports were concurred in.
Mr. OYLER, from the Committee on Organization of Courts reported two new bills Nos. 266 and 267, described below.; and recommended the passage of the bill S. 183, establishing a Probate Court in each county in the State, etc.
The bill S. No. 266 for An Act for the organisation of Circuit Courts; the election of Judges thereof, defining their powers and duties, and repealing all laws in conflict therewith; and -
The bill S. No. 267 for An Act districting the State for Judicial purposes, and fixing the times for holding courts in the several counties of the State,
Were read the first time.
Mr. OYLER moved to suspend the constitutional provision, that the bills may be read the second time now for the purpose of reference.
This motion was resisted by Messrs. BROWN, of Wells, VAWTER and CULLEN, as friends to the present judicial system.
The Senate refused to suspend the rules by yeas 27, nays 18.
SELECT COMMITTEES.
The PRESIDENT pro tem, appointed the following special Committees, heretofore authorized:
- On the resolution concerning street railways (printed in these Reports of yesterday) - Messrs. Brown, of Wells, Mason and English.
- On that part or the Governor's Message relating to the World's Fair - Messrs. Thompson, Barker, Bowman, Vawter, Van Buskirk, Keagan, Moore, Cullen, Corbin, Dykes and Bonham.
- On the part of the Message relating to a Soldiers' Home - Messrs. Cason, Williams, Jinkens, Allison, Gifford, Bennett, Thompson, Staggs, Niles, Douglas and Richmond.
HABEAS CORPUS.
The PRESIDENT pro tem, announced the consideration of the special order for this hour, viz: the House amendments to the bill S. No. 196 (printed in these Reports of the 14th) concerning the writ of habeas corpus.
Mr. COBB, since the passage of this Bill by the Senate, upon mature deliberation, had come to the conclusion that the bill should fail. He knew of no State which does not give to the Supreme Judges jurisdiction in cases of this kind; we have always done it heretofore, and that duty should be still imposed upon them. He cited instances where the law as it now is was of inestimable value to citizens who have been refused the writ in their own districts; and without taking up the time of the Senate in arguing the question, declared his opposition to the measure from this time forward.
Mr. OYLER. These amendments ought to be concurred in. It is not a denial of the writ to take the Jurisdiction away from the Supreme Court, nor is it a want of confidence in that Court which induced the presentation of this bill. While the time of our Judges are taken up with trials of writs of habeas corpus, page: 117[View Page 117]they cannot decide other cases which may be awaiting their decision. The rights of a speedy and impartial, trial are amply provided lor in this bill.
Mr. CULLEN. The right to personal liberty is perhaps the dearest one a man can cherish, and while willing to lift from the Judges of the Supreme Court any burden that might rest upon them, he was unwilling to close any of the avenues to personal liberty. Every Court in the State should be open for the purposes of application for this writ by parties restrained of liberty; and there is no right or justice in the proposition to close the highest Court in the State of Indiana against her citizens in this respect. It were better that every single case on the docket of the Supreme Court should stand still than that one innocent man should be kept in jail one hour.
Mr. CORBIN. At the time this bill passed was one one of those who carelessly and inconsiderately voted for it. He should now oppose concurring in the House amendments and aid in every possible way to kill the bill, for it ought to die. This bill proposes to curtail the privileges of the writ of habeas corpus, which heretofore has been regarded as one of the greatest privileges of an American citizen. That there was no abridgement of the privileges of the writ of habeas corpus has been the proudest boast of an American citizen. No hand should be raised to strike it down, or to curtail any of its privileges. What is the plea of necessity urged for the curtailment of this right at the present time? Why the Supreme bench want to be relieved of a little labor. That is all. If we attempt to curtail these privileges by shutting up one of the avenues to obtain that writ, we strike a blow that will be felt in all time to come; and, it would seem that we strike a blow at the Constitution itself. But it is claimed that this bill would leave the party with the right of appeal to the Supreme Court. Then that Court would not be relieved of this class of business; and the appeal would come up surrounded with many prejudices.
Mr. ALLISON envied the Senator having a higher appreciation than he of the rights and privileges of writs of habeas corpus, but thought they could be guaranteed to every citizen without the necessity of burdening the Supreme Court, encumbering its records, and preventing its attention to its proper business. The sole object of this bill is that the Supreme Judges should not be burdened by trying writs of habeas corpus. If the writ is refused by the courts below, an appeal lies to the Supreme Court, and they are compelled to take up the case immediately. But there would not be one case in fifty where the courts below would refuse to grant an application. He knew of but one case in a practice of twenty years, and then the refusal was based on the idea that the Judge did not have jurisdiction. This bill gives the Judges of both the Common Pleas and Circuit Courts jurisdiction, so that plea can not be made after its passage. He hoped the bill would pass, so that the Supreme Court may be deprived of original jurisdiction in these cases. Then applications would be made to the courts at home, and witnesses would not be compelled to come up to i,he capital at a heavy expense, for which the law provides no remuneration.
Mr. NILES remarked that he was no special advocate of the bill, but was inclined to favor it. The Supreme Court was intended solely as a court of errors, and it was an anomaly in our system to require the Judges to hear writs of habeas corpus. Their opinions constitute a part of the law of the State, and settle rules of property and all private rights. He thought it important that their whole time be given to the peculiar duties of their office. At the same time he would not, in any manner, abridge the great writ of liberty. If necessary, he would amend the habeas corpus act so that in case of one local judge being prejudiced, another could be called in to try the case; and if, as has been intimated, any judge should dare to refuse the writ, when properly applied for, he would make the penalty for such a refusal tenfold greater than at present. He suggested that the habeas corpus act could be so amended as to avoid all necessity for bringing such cases, in the first instance before the judges of the Supreme Court.
Mr. VAWTER was the only Senator who voted against this bill on its passage, and he was now but more firmly convinced that it is wrong to take from the Supreme Court its present jurisdiction in habeas corpus cases. There is not a Circuit or Common Pleas Court in his part of the State but what is overburthened with business, and he could not see the justice of still further burthening these courts and relieving the Judges of the Supreme Court, who, it is said, are about up with their business. The Judges of the Supreme Court receive a salary of $3,000, and the Circuit Judges, who do twice the business, but $2,000. For these and reasons given by the Senator from Rush [Mr. Cullen,] and others, he should vote against concurrence in the amendments.
Mr. CASON'S understanding was that this bill will enlarge the privileges of the writ of habeas corpus. It was unquestionably better to vote for this law. The arguments presented by the Senator from Laporte [Mr. Niles,] were important, and should receive the attention of Senators.
Mr. THOMPSON opposed concurrence in the amendments of the House, because he desired to see the bill fail. A man's personal liberty is above all property, and he ought to have the right to appeal to Herod or to Caesar.
Mr. BROWN, of Wells, voted for the bill when it passed the Senate, entirely through the confidence he had in the friends of the bill, and not from personal knowledge of its provisions. Under circumstances since disclosed, and upon the discussion of the merits of the bill this morning, he was now compelled to vote against concurrence.
The Senate refused to concur in the House amendments by yeas 15, nays 29, as follows:
YEAS - Allison, Beeson, Bennett, Bonham, Cason, Chapman, Culver, Dykes, Niles, Noyes, 0yler, Reagan, Perry, Van Buskirk, Ward and Wood -15.
NAYS - Barker, Bowman, Bradley, Brown of Hamilton, Brown of Wells, Cobb, Corbin, Cullen, Davis, Douglas, English, Firch, Fuller Gaff, Gifford, Hanns, Jinkins, Marshall, McClurg, Mason, Milligan, Moore, Newlin, Richmond, Staggs, Thompson, Vawter, Williams and Mr President - 29.
REPORTS FROM COMMITTEES - CONTINUED.
Mr. RICHMOND, from the Committee on Organization of Courts, returned the Wells' Circuit Court bill [S. No. 265] recommending its passage.
page: 118[View Page 118]The report was concurred in and the bill read the second time.
Mr. BEESON, from the Committee on Finance, returned the bill S. 182, providing for an organization of Circuit Courts, etc., recommending its reference to the Committee on Organization of Courts.
Mr. CHAPMAN, from the Committee on Finance, returned the bill S. No. 12, authorizing creditors in certain cases to bring action for their claims before they are due; also, the habeas corpus bill S. No. 196; recommending their reference to the Judiciary Committee.
These reports were concurred in.
Mr. BONHAM, from the Committee on Finance, returned the bill S. No. 230, in relation to the organization of the Senate and House, recommending its passage.
No action was taken on this report.
Mr. WOOD, from the Finance Committee, returned the bill S. No. 262, making an appropriation for the Gettysburg Soldier's Cemetery; recommending its passage.
Mr. BRADLEY, from the Committee on Finance, returned the bill H. R. No. 78, providing for the sale of certain lands in the counties of Jasper and Newton, &c., recommending passage.
Mr. RICHMOND, from the Committee on County and Township Business, returned the bill H. R. 53 to amend section 14 of the uniform Township Business act; recommending its passage.
Mr. COBB, from the Judiciary Committee, returned the bill S. No. 216, to repeal sections 48 and 44 of An Act prescribing who may make a will, etc., approved May 31, 1852, recommending its passage.
These reports were concurred in, and the bills were read a second time.
AGRICULTURAL COLLEGE.
On motion by Mr. DUNNING [Mr. Van Buskirk in the chair,] the message from the Acting Governor, received this morning, transmitting a communication from citizens of Monroe county, making a proposition to give the State the geological and mineral Cabinet of the late David Dale Owen, valued at $75,000, and a suitable farm worth $25,000, conditioned on the location of an agricultural college at Bloomington; was taken up and referred to the special Committee on Agricultural Colleges.
And then the Senate took a recess till 2 o'clock, P. M.
AFTERNOON SESSION.
The PRESIDENT stated the special order for this hour to be the consideration of the bill S. No. 64, to provide for the registry of voters, declaring their residence and punishing fraudulent voting; the question being shall the bill pass?
Mr. OYLER. If we are to have a registry law at all, this is probably the best bill we can get, for it is a compilation from several that have been introduced here. He hoped the bill would pass without amendment.
Mr. VAWTER was favorable to the general features of the bill, but objected to several particulars therein contained. He hoped the bill would be recommitted and amended in one or two instances, which he cited.
Mr. OYLER, considering these objections made in good faith, moved to recommit the bill with instructions to amend, as suggested by the Senator, so that the oldest acting Justice of the Peace in each township and the Trustee thereof shall constitute the Board of Registry and to inquire whether the Legislature has power to require a residence of ten days.
On motion by Mr. BROWN, of Wells, the instructions were amended so as to include a provision for an appeal from the Board of Registry by any person aggrieved by its decision.
The motion to recommit was then agreed to.
Mr. CULLEN, from a select committee thereon, returned the bill, S. No. 66, to amend section 11 of the act fixing the times of holding the Common Pleas Courts, etc., recommending its passage.
Mr. OYLER understood that this bill proposed to create a new Common Pleas District. He was opposed to this increased expense, and moved its reference to the Committee on Organization of Courts of Justice.
Mr. CULLEN opposed the motion to refer, and insisted on the passage of the bill.
Mr. VAN BUSKIRK said the people of the counties interested asked for the passage of the bill, and thereupon -
Mr. OYLER withdrew his objections.
The report of the committee'was then concurred in.
Mr. NILES, from the Judiciary Committee, returned the bill, S. No. 215, to amend section 27 of the General Practice Act, approved June 18, 1852, recommending its passage.
Mr. NILES explained that the bill provided fpr calling in another Judge to try causes in which the Judge is found to be interestedso amending the present law that a Judge of the Circuit or Common Pias Court may be called in.
The report was concurred in, ind the bill read a second time.
Mr. ALLISON made an ineffectual motion to amend the bill by striking out that part of it which allows the calling in of the Common Pleas Judge.
The bill was passed to the third reading.
Mr. BOWMAN, from the Committee on Corporations, returned the bill S. No. 246, to repeal section 17 of the act incorporating the Fireman's and Mechanics Insurance Company, recommending its passage.
The report was concurred in and the bill read the second time.
Mr. COBB, from the Judiciary Committee, returned the bill S. No. 212 to amend section 23 of An Act incorporating insurance Companies, approved June 17, 1862; recommending its passage with an amendment repealing section 22 of the same Act.
Mr. OYLER realized the necessity of a penalty in case an Insurance Company failed to fulfill its contract; and consequently opposed the amendment which proposes to 'strike out this section 22. While conceding that the penalty in the section proposed to be stricken out, is excessive, he would not leave the law without any penalty.
Mr. CORBIN also opposed the amendment. Parties insuring knew but little about the responsibilities of Companies. He regarded this section as important in protecting the citizen against imposition by these corporations.
Mr. COBB, to prevent further trouble, withdrew page: 119[View Page 119]that part of his Committee report proposing to repeal the twenty-second section.
The report of the Committee, recommending simply the passage of the bill, was then concurred in.
Mr. HANNA, from the Committee on Corporations, returned the bill S. 213 to amend section 33 of an Act repealing all general laws in force for the incorporation of cities, etc., approved March 9, 1857, with a report that in the opinion of the Committee, further legislation thereon is unnecessary.
The report was concurred in, and the bill laid on the table.
Mr. McCLURG, from the thereon, returned the bill 227 for the relief of the Treasurer of Clinton county, recommending its passage.
The bill was read the second time.
Mr. BEESON was satisfied that the bill before the Senate last winter - the case of Mr. Williams, of Brown county - is similar to the case presented in the bill before the Senate; and he was satisfied that the principle involved in this species of legislation has as much to do with the future of Indiana as any one feature of legislation. He moved to refer the bill to the Committee on Finance:
Mr. CASON was personally acquainted withthe Treasurer of Clinton county [Mr. Armstrong] and knew him to be an upright gentleman and a man of the strictest integrity. He could not see the necessity of referring this matter to the Committee on Finance.
Mr. CULLEN could see no great principle involved in this bill; and spoke in favor of its passage.
Mr. CORBIN having been a member of this Special Committee, recited the particulars of the case as brought out by the investigation; and urged the passage of the bill.
Mr. BEESON. The revenues of the State are collected by a set of men unknown to the State - elected by the several counties, and who are in no shape or form responsible to the State. Let this Legislature establish the precedent of relieving officers in such cases, and the principle he referred to is that it would open the door to fraud all over the State. And if this claim were allowed, what assurance have we that in less than live years there would not come up here similar claims to the amount of perhaps half a million? And then the principle of refunding money on ex parte testimony is a precedent which should be shunned.
Mr. McCLURG argued that County Treasurers were the agents of the State to a certain extent, and insisted the passage of the bill would be but a simple act of justice. He concluded by hoping the bill would not be recommitted, but that the report would be concurred in and the bill passed to the third reading.
Mr. WILLIAMS objected to making the State of Indiana an insurance company against burglaries. He read from a decision of the Supreme Court, in the case of Halbert vs. the State, in the County of Martin, as applicable to this case.
Mr. OYLER thought if there ever was a meritorious case of this class, this certainly was one.
The motion to recommit was rejected, and the bill was ordered to the third reading.
Mr. RICHMOND, from the Committee on County and Township Business, returned the bill S. No. 161, requiring Boards of County Commissioners to examine the papers of any county officer who may be charged with receiving a greater amount of fees than he is by law entitled to receive, recommending its passage.
The report was concurred in and the bill read the second time.
Mr. VAWTER, from the Special Committee thereon, returned the bill S. No. 214, defining what officers shall be elected by each House of the General Assembly, recommending its passage with an amendment, inserting new matter after the enacting clause. [Providing for but one Clerk and Doorkeeper for each House The Secretary of the Senate to receive for a regular session $2,000, for an extra session $1,600, the Doorkeeper for a regular session $1,200, for an extra session $1,000. The Clerk of the House to receive for a regular session $3,000, for an extra session $2,400; the Doorkeeper for a regular session $1,500, for an extra session $1,200.]
The amendment was agreed to and the bill passed to the third reading.
Mr. WILLIAMS, from the Committee on Finance, returned the bill H. R. 84 to legalize, the action of the Board of Commissioners of Vermillion county, and of the District and State Boards of Equalization in adopting the appraisement of real estate of 1859 as the basis for the assessment of taxes for the year 1864, and each year thereafter till a new appraisement shall be made; recommending its passage.
The report was concurred in and the bill passed to the third reading.
Mr. NILES, from the Judiciary Committee, returned'the bill S. 203 to authorize suits to be instituted and executions to issue by arid against firms and partnerships in firm and partnership names; with a recommendations that it lie on the table.
The report was concurred in.
Mr. COBB, from the Committee on Organization of Courts, returned the bill S. No. 226 to amend sections 10, 12, 13, 15, 16, 17, 18, 21 and 22 of An Act regulating the fees of officers, approved. March 2, 1855, with amendments, recommending its passage. [It increases the fees of County Commissioners, Prosecuting Attorneys, Constables, Justices of the Peace, jurors and witnesses.]
The Committee amendments were agreed to excepting those striking out mileage to witnesses and jurors before Justices' Courts.
Mr. FULLER moved to reconsider the vote by which the Senate refused to strike out the mileage to witnesses.
Messrs. COBB and OYLER spoke in favor of the Committee's amendment.
Mr. BENNETT opposed.
The Senate refused to reconsider by yeas 16, nays 28.
The Committee amendment striking out mileage to jurors before Justices of the Peace, was rejected by yeas 19, nays 26.
Mr. BROWN, of Wells, moved to postpone the further consideration of the bill till the 23d day of December.
On motion of Mr. BENNETT the motion to pospone was laid on the table by yeas 29, nays 16.
page: 120[View Page 120]Mr. OYLER demanded the previous question.
The demand was seconded by 28 Senators, and under its operation the bill wras finally passed the Senate by yeas 31, nays 13, as follows:
YEAS - Messrs. Allison, Beeson, Bennett, Bonham, Bowman, Bradley, Cason Chapman, Corbin, Cullen, Davis, Douglas, Dykes, Gaff, Gifford, Hyatt, McClurg, Mason, Newlin, Noyes, Oyler, Reagan, Richmond, Stagers, Terry, Thompson, Van Buskirk, Ward, Woods, Wright, and Mr President - 31
NAYS - Messrs Barker, Brown of Wells, Cobb, English, Finch, Fuller, Hanna, Jinkens, Marshall, Milligan, Moore, Vawter, and Williams - 13.
Pending the roll call -
Mr. CULLEN, in explanation, said he had no objection to the major part of the bill, but thought the Senate done wrong in attaching mileage to the pay of witnesses and jurors before Justices of the Peace. With this statement he desired to vote "aye."
So the bill passed.
And then the Senate adjourned (under the rules) till 9 o'clock to-morrow morning.
