IN SENATE.
MONDAY, March 4, 1867.The Senate met at 2 o'clock P. M.
The minutes of Saturday were not read.
On motion by Mr. CARSON, it was
Resolved, (the House concurring,) that the Librarian be and he is hereby instructed to procure all the documents printed for the use of the Legislature, and place the same in the care of the Doorkeeper of each House, for distribution among the members thereof.
Mr. REYNOLDS offered the following:
WHEREAS, It is alleged that, the Auditor of State has made a contract in behalf of the State, to pay to the Hon. John Pettit a fee of some eight thousand dollars for collecting a claim of the State against Montgomery county, there fore -
Resolved, That the Auditor be directed to inform the Senate of the exact facts in regard to said alleged contract, and by what authority he engaged to pay such fee, and why said Pettit rather than the Attorney General was so employed.
It was adopted.
Mr. STEIN introduced a joint resolution [S. 7] for the relief of John I. Morrison, late Treasurer of State. [In the sum of $2,000, feloniously abstracted from the State Treasury.]
On motion by Mr. CULLEN, it was referred to the Committee on Finance.
BILLS PASSED THE SECOND READING.
Mr. Richmond's county officers' deputy bill [S. 155]; Mr. Huffman's cost-shall-follow-judgment bill [S. 170]; Mr. Bellamy's county pauper record bill [S. 187]; Mr. Robinson's defective executors and administrators' bonds bill [S. 195]; Mr. Wolcott's State officers' reports bill [S. 207]: Mr. Stein's bill [S. 211] amending section 352 of the Practice act concerning the granting of new trials; Mr. Jaquess' bill [S. 220] putting off the time for payment of taxes till the third Monday in April, and making it obligatory on the county treasurers to visit each township for the purpose of collecting taxes; Mr. Oyler's bill [S. 225] amending sections 4 and 6 of the act regulating foreign insurance companies ; Mr. Bellamy's bill [S. 225] amending the charter of the Vevay, Mt Sterling and Versailles turnpike company; and Mr. Richmond's bill [S. 229] concerning the usual duties of common carriers; were read the second time and severally ordered engrossed for the third reading.
THE SOUTHERN PRISON.
Mr. REYNOLDS, from the Committee on State Prisons, submitted a report on the condition of the Southern Prison, suggesting some changes as to the bedding; and that the salary of chaplain should be increased to $1,000; and stating that the prison is now nearer being self-supporting than for years past. It was laid on the table.
Mr. WOLCOTT introduced a bill [S. 241] for an act to authorize the Directors of the State Prison at Jeffersonville to contract the convict labor of said prison [to Abel W. Hall, for ten years,] and prescribing the terms and conditions of the contract. It was referred to the Committee on State Prisons.
Mr LEE had just returned from that portion of the country asking for the passage of the bill, S. 220, and he saw the condition the roads are in. The people there are amply able to pay their taxes as soon as they can get their produce to market, and by extending the time for a few days, till the roads get into good condition, there will be no difficulty about collecting the State revenue. He moved that the constitutional restriction be removed, and that the bill be put on its passage now.
A constitutional dispensation was had by yeas 38, nays 0, and the bill [S. 220] extending the time for the payment of taxes till the third Monday in April, was read the third time.
Mr. SHEEROD stated that a series of House bills on this subject were referred to a select Committee on Saturday.
On motion by Mr. CDMBACK, (Mr Oyler in the chair) this bill was also referred to that select Committee.
On his further motion the order of business was suspended and the bill [H. R. 185] ammending section 44 of the act to provide for opening, vacating and changing highways - so that a road open and in use for 20 years may be recorded - was read the third time and passed by yeas 40, nays 3.
MONTGOMERY COUNTY RELIEF.
On motion by Mr. MILLIGAN the bill [H. R. 189] to relieve Montgomery county conditionally from the payment to the page: 377[View Page 377]State $38,441,69 &c., was read the third ime.
Mr. MILLIGAN. Mr. President: The bill before the Senate is one for the relief of Montgomery county - the county I have the honor to represent on this floor. It is not a bill to relieve us of an assessment against us that we have not paid, but sir, it is a bill to relieve us of a debt that we have paid to the State; and every tax payer in our county has a receipt from the accredited and lawful agent of the State as evidence of the fact.
You are aware, Mr. President, that the Treasurer of Montgomery county was a defaulter to the State in the sum of thirty thousand dollars. The Treasurer filed his bond with eight good men as sureties on said bond, who were worth in the aggregate at least$200,000, amply sufficient to have recovered from them the whole amount due from the Treasurer to the State.
The State employed an Attorney to prosecute the Treasurer on his bond. Now had this Attorney for the State proceeded without delay to do so, the whole amount of this money could have been recovered and secured to the State, as the securities had no good plea to make against paying this amout. But by the mysterious payment of $300 at one time and $2,000 at another, these securities were relieved from their obligation to the State; hence the effort to make up the deficit of this county to the State.
Mr. President, I claim that we can not now be jeopardized, nor should we be for the palpable negligence of the Attorney for the State. For as we have once paid our money to the proper officer of the State, as the law requires, and have his receipt therefor, we can not in justice be required to pay it again.
Our County Commissioners have no power or authority over the Treasurer so far as the State funds are concerned, and although they may be well informed that he is squandering the money of the State they have no power to prevent it. Our county has ever responded promptly to every call of the Government for men and means, (and no county has made a better or brighter record during the war than she has,) and she has paid all the State has asked of her. She has just closed up a debt of over half a million of dollars contracted for filling the quota of the county under the draft, and she has not for many years, if ever, asked for the passage of any law by this Legislature, not even the changing of a judicial circuit, that was not of general advantage.
Mr. President, I do not ask this as a privilege, but as a matter of simple justice.
1. From the fact that we have paid the State all we owed her.
2. That the State had abundant security from which to make her claim, and it would be very unjust that we should be taxed to pay a debt again that was lost by neglect or failure of the State to prosecute and recover from the proper parties.
3. That our County Commissioners levied all this county bond tax in one year, consequently we have a very large delinquent list.
4. We are supporting a great many soldiers' widows and orphan children of deceased soldiers, perhaps more than almost any other county in the State.
Mr. JOHNSON. Mr. President: Although I am in sympathy with the county of Montgomery for the unfortunate condition of her finances, in justice to the people whom I have the honor to represent I can not vote to relieve that county from her present misfortunes. One of the counties which I have the honor to represent has met with three such misfortunes as the one which has lately befallen Montgomery county. In Warrick county the last three Democratic treasurers have each become to a considerable amount defaulters, as I have been informed. The first defalcation was the treasurer's political friends until his securities were enabled to plead the statute of limitation on their bond, and in consequence the people were compelled to make up the deficiency by additional levies. The next defalcation was discovered in time, so the money was collected of the securities. The last defalcation is still a matter of litigation and there is no pretence but the Treasurer is defaulter to a very large amount. But the people in this section are making no effort to get relieved from their proportion of taxes due to the State, notwithstanding the dishonesty of her Treasurers. From the facts set forth in the suit brought against Montgomery county, I am led to believe there might have been, to use a homely expression, a good deal of scullduggery about it. The people of Montgomery county are a rich and thriving people, and in a very short time they will get entirely over this small matter of thirty or forty thousand dollars. The County Commissioners, in my own county, thought proper last year to build a bridge near my own town, on which they spent near forty thousand dollars, and I see by the newspapers that it is now considered unsafe for persons to cross thereon, and there is a strong probability that it will be entirely washed away by high waters. My people have had so many misfortunes of their own to bear, I am fully satisfied that they would not justify me in voting for them to share the misfortunes of Mont- page: 378[View Page 378] gomery or any other county. Senators upon this floor may use their own pleasure about passing large appropriations, but for my own part I ask to be excused from voting any money which I am not satisfied is demanded imperatively. In my humble judgment there never has been a time in which we should exercise a more rigid economy than the present. The plaintive cry is coming up from the people, "Stay your hands," "do not unnecessarily tax us." For one I am going to obey that cry, and no doubtful appropriation will ever receive the sanction of my vote. Senators may think me penurious in this matter, but regardless of their opinions, I will pursue the even tenor of my way, believing, as I do, that my constituents will approve my votes. I am truly sorry for the people of Montgomery county; - they are truly the victims of misplaced confidence. They have been swindled and cheated by men who they have honored by office; - they are reaping the reward of their folly. We have down our way drank of the same cup to its bitter drugs.
Mr. NILES, as chairman of the Judiciary Committee, said that as a member of the committee he had felt justified, in this case, in departing from what with him was almost a universal rule, not to open the door for any losses to the Treasury. He consented to recommend the passage of the bill solely on account of peculiar circumstances connected with the history of this case. It appeared from the statements of several well known and most respectable gentlemen, made to the committee, that one Schooler, as Treasurer of Montgomery county, became a defaulter for the State revenue. The Auditor of State employed counsel to sue him and his sureties on his bond. The counsel for the sureties filed an answer, bringing the case within a decision of the former Supreme Court; to which answer the State demurred, and the demurrer was of course overruled. Instead of taking issue on the answer, and requiring proof of the facts, the counsel for the State permitted final judgment to be rendered against the State, and appealed to the Supreme Court on the mere question of law.
The same gentlemen also stated to the committee that just as the old court was going out of office and the new one which, being composed of new men, might possibly have overruled the decision in what is known as the Pepper case, the judgment of the Circuit Court was affirmed by consent and agreement of the attorney for the State. The judgment being rendered by consent, was not subject to review. He could but regard it as a hardship, that the tax payers of Montgomery county should be bound by such proceedings, over which they had no control. The sureties of the treasurer are represented as having been amply responsible for the amount due.
Judge Pettit, of Layfayette sets up a claim for some $8,000 as a fee for prosecuting an action against the county. He claims that sum under a contract alleged to have been made with the Auditor of State. The bill carefully provides that that claim, whatever it may be, shall be discharged by Montgomery county, and gives Judge Pettit the right to bring action for his fee, and permits the county to defend the action. Hereafter, if the bill which passed the Senate on Saturday becomes a law, counties will be able to protect themselves against such losses, and he did not think this could become a precedent for other cases.
He placed his consent wholly on the ground of the extraordinary proceedings in the name of the State, which probably caused the loss. He did not in any manner stand here as a partisan of this claim, though he had not without reluctance concluded to vote for the bill.
Mr. CASON, living in an adjoining county, understood the facts in the case. The county commissioners have no control over the treasurer as to State taxes, and in this instance the treasurer defaulted as to State but not as to county taxes. The State having made an agent with no checks or balances by the county board, of course the State is the loser when its agent becomes a defaulter. The bondsmen were amply able to secure the State, had the proper leg steps been taken in time; and there can I no question but that $2,300 was paid by the securities that the suit might be prosecuted in such a way that they might be released. The case went to the Circuit Court on demurer, and in the Supreme Court the Attorney for the State filed a written statement that the judgment may be affirmed. Now it is unjust to make a county pay a tax that the agents of the State have been so remiss in making the defalcation good out of the securities.
Mr. CULLEN thought this bill just and right. The people of that county have paid their taxes; - they are in no default;and now ask to be relieved from repayment. By some kind of legerdemain, (the securities being ample,) every solitary, man has been relieved from the bond by the official act of the State through her officers. This county like others in the State, is weighed down by taxations and as an act of justice this bill should be passed.
Mr. HANNA, in 1858, was a resident of Montgomery county and is personally familiar with the facts as stated on this floor in this case. It would be a great hardship for this people to pay that tax over again. This is an extraordinary case page: 379[View Page 379] and it is nothing but fair and just that the people there should be of this bill.
Mr. BENNETT was prejudiced at first, but on the close of examination he finds it just and right to favor the passage of this bill. The State saw fit to authorize the people to elect this treasurer who acted as her agent: and the county has been swindled by the action of the State in this matter as he proceeded to show.
Mr. OYLER thought every Senator was convinced of the justice of this bill by this time, and would like to see it come to the vote.
Mr. RICE should vote for the bill, but was of opinion that the second section was unconstitutional - suggesting the provisions conflicting.
Mr. STEIN spoke in reply to personal allusions to the State's Attorney in this suit; and was in favor of releasing Montgomery county from the repaymint of this tax, on the score of magnanimity; arid for other reasons which he gave.
Mr. NOYES remembered well of a bill passed one year ago for the relief of a county treasurer, and now there is another bill in the other end of the Capitol of a similar character being pressed on the ground that the bill of a year ago was passed; and if this bill becomes a law, the argument that is being used now may be used again in coming years to favor other bills for the relief of defaulting treasurers. He would be compelled to vote against this bill; however much sympathizing with the people of Montgomery county.
Mr. WOLCOTT said all control of County Treasurers' bonds is left with the County Board, and all responsibility should rest there. Taking a legal view of the question, he insisted that the proper responsibility in this case lies with the county of Montgomery, and not with the State of Indiana. He believed that this was simply a case of magnanimity, (as already suggested,) and not a just and proper claim.
Mr. CHURCH could see no just and equitable reason for the passage of this bill. He moved that the bill be recommitted to the Judiciary Committee, with instructions to amend the same so that it shall release the State from all liability on account of attorneys' fees.
Mr. OYLER contended that the second section so provides.
Mr. CRAVENS, from the peculiar facts in the case, was willing to vote for the bill if it were reduced to its plain meaning - that the State will release Montgomery county if Montgomery county will pay John Pettit. The second section certainly comes in conflict with the constitution, as has been suggested by the Senator from Parke [Mr. Rice.]
Mr. CHURCH, at the request of the friends of the bill, withdrew his motion, allowing the vote to come directly upon the merits of the bill.
The bill was rejected - yeas 16, nays 25.
ABSENCE.
Leaves of absence on account of sickness were obtained for Mr. Brown, till Friday; for Mr. Bonham, for to-day; for Mr. Staggs and for Mr. Ward.
BILLS ON THE THIRD READING.
On motion by Mr. Jaquess, his bill [S. 154] amending the Evansville City Charter act of January 27, 1847, was read the third time.
The bill was rejected - yeas 18, navs 22.
On motion by Mr. WOLCOTT, his joint resolution [S. 5] directing the burning of the bills of broken and closed banks, and unsigned bills of free banks, and of such banks as have given notice of closing, and the destroying of the plates from which certain bank bills were printed, &c., [in possession of the State Auditor] was read the third time and passed, by yeas 35, nays 3.
Mr. Cason's bill [S. 91] to provide rules and by-laws for railroads coming up, it was read the third time.
Mr. CASON explained that it simply provides for the punishment of employes who wilfully violate the rules of the company.
It was passed by yeas 34, nays 3.
Mr. Church's bill [S. 73] to make uniform the prices charged by railroad companies for transporting freights being read the third time -
Mr. HANNA suggested that it affects the rights of chartered roads; and moved to recommit the bill with instructions to inquire as to that point.
Mr. CHURCH objected to the motion to refer.
The motion was rejected.
On motion of Mr. CULLEN, the bill was made the special order for to-morrow at two o'clock P. M.
Mr. Reynolds' bill [S. 148] to amend an act to incorporate the Grape Vine Marsh Plank Road Company, approved February 12, 1851 [see page 154 of these REPORTS] coming up in order, it was passed by yeas 41, nays 0.
Mr. MILLIGAN introduced a bill [S. 242] for an act to amend section five of an act for incorporating the Wabash Manual Labor College and Teachers' Seminary, approved February, 8, 1851. It was passed to the second reading.
And then the Senate adjourned.
