THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
FRIDAY, January 15, 1869.The House met at nine o'clock a. m.
The journal of yesterday having been read--
Mr. MONROE stated that the newspaper reporters had yesterday mistaken his name for the other members jointly with himself representing the county of Jefferson--Mr. Wilson and Mr. Sunman.
The amendment of the rules for a Committee on Printing, filed yesterday, was taken up and adopted, and the Speaker announced the following names on said Committee, viz: Messrs. Stewart of Ohio, Skidmore, Neff, Higgins, Johnson of Parke, Long and Lawler.
The following members obtained leave of absence: Mr. Wile, until Monday next; Mr. Zollars, Mr. Miner and Mr. Palmer, until Tuesday next.
REPORTS FROM COMMITTEES.
Mr. DUNN, from the Judiciary Cornmittee, returned Mr. Bowen's bill [H. R. 26] to extend jurisdiction of Justices of the Peace to three and four hundred dollars, recommending that it be indefinitely postponed.
The report was concurred in.
Mr. DUNN, from the same Committee, returned Mr. Field of Lake's bill [H. R. 14] with amendment. [It provides that judgments shall bear ten per cent, interest where that is specified in the contract]--recommending its passage.
Mr. OSBORN was opposed to the bill.
The report was concurred in, and the bill takes its place in the calendar.
Mr. PIERCE, of Vigo, presented the report of the Trustees of the State Normal School, moving that it be referred to the Committee on Education, and two hundred copies be printed.
Mr. OSBORN and others opposed the priming of the report.
The motion was agreed to.
RESOLUTIONS.
Mr. UNDERWOOD submitted the following:
WHEREAS, By a resolution of this House the Doorkeeper was ordered to lay upon the desks of the members copies of certain daily and weekly papers, provided said daily papers would publish the proceedings of this House; and,
WHEREAS, The Evening Mirror of this city does not publish the proceedings of this House; therefore
BE IT RESOLVED, That the Doorkeeper be instructed to discontinue taking the said Evening Mirror, and in place thereof to subscribe for and lay on the desks of the members two additional copies of the Indianapolis Journal.
Mr. OVERMYER supported the proposition.
Mr. WILLIAMS of Knox, proposed to amend by striking out "Journal," and inserting "Sentinel" in lieu.
Mr. COFFROTH insisted that the matter of taking the newspapers was in the nature of a contract with their publishers, that the contract was without condition as to reporting, and that the House could not rescind its contract.
On his motion the subject was laid on the table.
Mr. BOWEN submitted the following resolution:
RESOLVED, That the Committee on Fees and Salaries be instructed to bring in a bill regulating the fees and Salaries of township and county officers so that Constables, Justices of the Peace, Jurors and Road Supervisors, receive an adequate compensation for their services, and that County Treasures, Auditors, Clerks, Sheriffs and Recorders be reduced in the more populous counties, so that
page: 117[View Page 117]their compensation or salaries go not above the average compensation of Judges of the court and Governor.
It was referred tot he Committee on Fees and Salaries.
Mr. FIELD, of Lake, submitted an order which was adopted, that the names of the different standing Committees be printed with the revised rules of the House.
Mr. WILDMAN offered the following:
Resolved, That the Committee on Military Affairs be instructed to inquire into the expense of the Adjutant General's Office and show cause, if any why said office should not be abolished, and make report to this House by bill or otherwise.
It was adopted.
Mr. CUNNINGHAM submitted a resolution that the Committee on Education inquire into the expediency of requiring uniformity of text books in the common schools, which was adopted.
Mr. ADMIRE submitted an order to amend the rules so as to require the counties to be called alphabetically for the introduction of legislative business.
It lies over for one day under the rules.
Mr. PALMER submitted an order to amend rule 53, by adding these words: "When resolutions, joint resolutions, or bills are in order, the Clerk shall call the names of members alphabetically, and each member shall be permitted to introduce one resolution one joint resolution, or bill, as the case may be."
It lies over under the rules.
Mr. KERCHEVAL was granted leave of absence on account of sickness.
APPRAISEMENT FOR TAXATION.
In the order for unfinished business, Mr. Cory's gold basis appraisement resolution [see page 101] was taken up the question being on the proposition to amend Mr. Overmyer's amendment to fix the values by the standard of lawful money, by saying all property shall be appraised on a gold bases.
Mr. OSBORN made the point of order that the object sought by Cory's proposition could not be attained by a concurrent resolution; that it would require a bill for the statute. The Legislature, he claimed, had no power to instruct officers acting under a law passed at a former session. The power of the House in the matter, could be exercised only by bill embodying the object sought by the resolution. Officers were sworn to observe the laws, and they would act upon their own interpretation of those laws. The House, he said, might legislate, but it had no power he thought to instruct officers.
The SPEAKER sustained the point of order.
Mr. CORY appealed from the decision of the Chair to the judgment of the House in the following words:
"A concurrent resolution being offered directing th Auditor of State to issue instructions to County Auditors, directing them to have the appraisement of real estate in their respective Counties made upon a gold basis, and the Speaker having decided the same not in order, an appeal from said decision is here by respectfully take to the house.
[Signed]
C. R. CORY,
W. E. DITTEMORE.
Mr. COFFROTH said that as the resolution merely expressed the judgment of the Legislature in regard to the true meaning and intent of the law, although the interpretation might not be the correct one, he could not see that it could be regarded as out of order. The fact that the resolution proposed an expression of opinion on the part of the House, in regard to the interpretation of a law, was proof of its inadmissibility.
Mr. VATER thought the resolution went further than to express an opinion and opposed the instructing of officers acting under the laws of the State enacted by a former Legislature.
Mr. FIELD, of Lake, moved to lay the appeal upon the table, which was lost--yeas 37, nays 53.
Mr. OSBORN said we are here as a General Assembly--as a body to make laws, not to adjudicate on law. This House has no right to instruct an officer. The appraisers of real estate, he said, were required to an oath of office (which he read,) and the Legislature had no right by a concurrent resolution to presume to instruct those officers in regard their duties. The function of the Legislature is to make and not to construe the laws. The gentleman from Huntington [Mr. Coffroth] said the House had a perfect right to declare an opinion upon a law. He [the Speaker] contended that the House had no right to express an opinion with the object of instructing sworn officers under the law, and certainly whatever we have not the power to do, it can not be in order to be attempted by a concurrent resolution.
Mr. ZOLLARS asked if a concurrent resolution would not have the effect of a law itself.
Mr. OSBORN replied that a concurrent resolution could not abrogate a statue, and that the interpretation of the laws is left to the Supreme Court.
Mr. COFFROTH asked the gentleman from Putnam [Mr. Osborn] whether the Legislature had not the right to prescribe the basis of appraisement.
Mr. OSBORN replied, "most certainly, but not to construe a law for officers acting under it."
Mr. VATER raised the point of order, that the appeal of Mr. Cory is not properly before page: 118[View Page 118] the House, because it does not state the point upon which it is taken.
The SPEAKER declined to entertain Mr. Vater's point, preferring a just understanding and decision upon the issue which would appear in debate.
Mr. JOHNSTON of Parke, agreed with with Mr. Osborn. When a law passes out of the hands of the Legislature, its interpretation was with the officers executing it, and the Courts. A law may be repealed by the introduction of a bill, but the Legislature has no power to instruct officers to do a thing in one way, that they may determine themselves bound by their oaths to do another way.
Mr. CORY said appraisers were acting diverselysome making the appraisement on a gold basis, and some on a currency basis, and it was absolutely necessary that this matter should be regulated. Why did the Auditor of State make directions as to the appraisements? Because the law is indefinite. But some appraisers do not obey the Auditor's instruction, because the law does not specifically require their obedience. His proposition was to avoid discrimination and irregularity in the appraisements, and to fix the law for a uniform basis. It was to secure uniformity and regularity as to all the appraisements for taxation. He thought this step was demanded, for the reason, in the first place, that appraisers differed largely in their interpretations of the law, some making appraisements upon the currency basis and others upon the gold basis, just as they happen to construe the words of the law, 'upon their cash value;' and, in the second place, because the Auditor of State, in instructing the making of appraisements upon a currency basis, had accepted a basis which he thought not commended by experience or sound policy. He believed, too that the Legislature not only has the right to construe laws, but that it is its duty to do so in matters of the importance of this. He felt sure that the courts are bound also to accept the construction put upon the law by the Legislature in the shape of a concurrent resolution. The appraisers, he is informed and believes, are not obeying the instructions of the Auditor, but he could not but believe they would obey instructions from the Legislature, and make the appraisement uniform, and upon the only proper basis--gold. If real estate appraisements be made this year on a gold basis, the appraisements of personal property next year will be made on the same basis. He was willing to accept an amendment for a requisition to that effect in this resolution.
Mr. PIERCE, of Vigo, saw objection to the resolution in the existing statute for appraisements. The words "according to cash value," were clear enough, and he thought the House certainly had a right to explain by resolution, what was meant by the words of the law, "Upon on their cash value."
Mr. SHOAFF answered the point made by Mr. Vater, and contended that the con. resolution was a proper subject for legislation.
The SPEAKER alleged the sincerity and impartiality of his decision. No doubt this body have power to prescribe the mode of assessments. But this was not the mode of action. The mode was by bill. Because statute required assessments to be made at the cash value of property, it would require a statute to change the law.
Mr. CORY suggested that the statute of 1859 was enacted when nothing but regarded as cash.
Mr. DITTEMORE moved the previous question, but withdraw the motion to give floor to--
Mr. McFADIN who agreed with Mr that there should be uniformity in the appraisement. He thought there could be no higher power than the Legislature, and its bidding on a matter of this kind he though would command the obedience of officers of officers of the law. It tells its officers here what to do, and in behests are law. He could see no reason why the instructions should not be ordered. He admitted fairness and impartiality on the part of the Chair, and insisted on the power of the General Assembly to make orders and construe statutes.
Mr. WILSON contended for the propriety and legality of legislative construction of statutes. He denied the right of the Legislate to define what is meant by the word cash in tin law referred to. If there is ambiguity in a law, the remedy is found only in a bill repealing the ambiguous law, and clearly setting forth the will of the Legislature.
Mr. STEWART, of Rush, admitted the power of this body to declare its own intentions, doubted the power to declare its purposes and intents of a General Assembly that is dissolved. The object sought might be obtained by statute. He expressed the conviction that when this body passes a law, the right to interpret that law for those elected to execute it, does not pass to some future body. But, should such a diversity of opinion exist as to its true intent as to render necessary additional action, it becomes the duty of the Legislature taking action, to do so by bill, and not by resolution.
Mr. BUSKIRK at eleven o'clock, demanded the consideration of the regular order of business.
Mr. COFFROTH moved to suspend the regular order of business, and proceed with Mr. Cory's appeal.
The motion was agreed to.
Mr. WILLIAMS, of Knox, illustrated his page: 119[View Page 119] view of the point by saying: In case some school official should decide that black children may be admitted to the schools for white children, would it not be competent for the General Assembly to make an authorative order thereon? He had nothing to say as to the legality of the action sought by the resolution, but as to the decision of the Chair, he thought that the Chair had no right to declare the resolution out of order.
Mr. PIERCE, of Porter, while favoring the object of the resolution, insisted that the only legislative mode of constructing law was by enacting another law. He thought the gentleman from Franklin [Mr. Cory] had not taken the right plan to attain his object. The action of the House should be by bill.
After further debate by Messrs. MILES, ZENOR, JOHNSON of St. Joseph, and RATLFIF--
Mr. ODELL demanded the previous question, and there was a second by the House, and the main question was ordered.
The SPEAKER said: whilst the Chair was ever in favor of the proposition, it ruled it out because a concurrent resolution was not the mode of obtaining the object.
The question: Shall the decision of the Chair stand as the judgment of the House? was decided in the affirmative--yeas 50; nays 40.
So the decision of the Chair was sustained.
Mr. WILDMAN submitted the following:
RESOLVED, That the Committee on the Judiciary report a bill for a law fixing the basis of the appraisement of real and personal property, and specify in said bill whether gold and silver or currency shall he the basis of appraisement; and that said bill shall contain an emergency clause.
He accepted the amendment of Mr. Williams of Knox, making it directory to the Committee on Ways and Means.
And so--
The resolution was adopted.
ORDERS OF THE DAX.
The Senate Firemen and Mechanics' Insurance Company repeal bill [No. 11] was read the second time and referred to the Committee on Insurance.
The Senate Forty-sixth General Assembly Appropriation bill, [No. 13] was laid on the table.
The Senate joint resolution with reference to official fees, was read the second time and referred.
Mr. Wildman's decedents' settlement bill [H. R. 10] was read the third and last time in the House and passed--yeas 57; nays 29.
INTEREST ON JUDGMENT.
Mr. Field, of Lake's, bill [H. R. 14] to amend section three of "an act regulating interest on money" coming up, it was read the second time.
Mr. FIELD explained its provisions.
Mr. DUNN said the object was to prevent money borrowers from taking advantage of their own wrong, by confessing judgment on a loan which they have made under a contract to pay ten per cent., and so paying only six per cent, because it is paying a judgment.
Mr. OSBORN opposed the passage of the bill, from the consideration that the Legislation of the country was directed too much to the advantage of the money lenders--the rich. He would legislate to destroy the validity of notes requiring the drawer to pay attorney's fees. He said the legislation of the State had for years been the least in favor of money borrowers, those who by misfortune were compelled to seek temporary assistance from the Shylocks, but that the tendency now seemed to be in favor of the money lenders. He looked upon the bill as unfriendly to the interests of the working classes. Already the legislative power had departed from the just pro-provision protecting the borrowers against usurious interests, and made legal the paying of ten per cent., and now it was sought to follow up this action by compelling the debtor, after he shall have been dragged into court and judgment rendered, from payment of which there is no relief, to pay the same high interest upon the judgment itself.
Mr. PIERCE of Porter, supported the bill, taking positions similar to those taken by Mr. Dunn. It was not for the benefit of the rich, but as much for the benefit of the poor--the far more numerous class.
Mr. RUDDELL opposed the bill, declaring that it seemed to him to offer a premium on swindling. He thought the bill entered in the interest of the money lenders, and opposed to the interests of the poor man.
Mr. DUNN stated the diversity of ruling in the courts as to the point sought to be established by this bill, and argued its passage from this consideration.
Mr. LONG proposed to amend the bill by appropriately adding, "provided, however, that no judgment shall be rendered to draw a greater rate of interest than six per cent., unless the debtor consents in writing that the judgment may be so rendered."
Pending which--
Mr. WELBORN submitted an order, which was adopted, that hereafter, until changed, the time for the daily meetings of the House shall be ten o'clock, a.m., and two and a half p. m.
The House here took a recess till two and a half o'clock.
AFTERNOON SESSION.
The SPEAKER resumed at half-past two o'clock, p. m.
page: 120[View Page 120]Mr. PIERCE of Porter, moved to reconsider the vote of two days ago, dispensing with the cloak keeper amongst the police of the House. He slated his reasons for the motion to be, that since that time two or three members had lost their overcoats. He did not know whether this was a part of an attempt to force a keeper of cloaks upon the House or not, but, if not, the fact conclusively proved the necessity for such an employee, and while he would like to have some one employed to do that duty, he would not be willing to pay any very large per diem for the service.
Mr. DAVIS of Elkhart, opposed the voting of the people's money to pay men for taking care of the overcoats of members of the General Assembly. He thought the House had wrangled long enough on the matter, and weary of the debates and waste of time induced by motions for needless employees of the House, demanded the yeas and nays.
Mr. PIERCE of Porter, said that if the motion was going to develop opposition and incite a discussion, he would withdraw it.
Mr. Barnett obtained leave of absence on account of sickness; and Mr. Davidson, absence for three days of next week.
INTEREST ON JUDGMENTS.
The SPEAKER announced the continuation of proceedings on Mr. Field of Lake's ten per cent, interest judgment bill [H. R. 14] the question being on Mr. Long's amendment, submitted before dinner.
Mr. GORDON supported the bill, but opposed the amendment. The amendment would leave the law about as uncertain as it now stands. He thought the uniformity that would be secured by the passage of the bill should serve to recommend it to the favor of the House. He believed that if a man agrees with another to pay ten per cent, it is right that he should continue to pay the ten per cent, until the debt is paid. He thought the effect of the amendment of the gentleman from Jackson would be to kill the bill.
Mr. WILSON claimed that no man had the right to say what a usurer shall charge for his money, any more than he has to fix the prices that the keeper of a livery stable shall charge for the use of his horse and vehicle. This bill simply declares that the same per cent, agreed upon by the borrower in the contract shall apply to the judgment, should it become necessary lor the lender to collect the indebtedness by law. The Legislation has heretofore been in favor of the debtors and against creditors. He thought the law simply proposed to do justice to both classes, and he desired the passage of the bill as it was reported from the Committee on the Judiciary.
Mr. WELBORN said the Courts in his part of the State ruled that no judgment could be entered bearing more than six per cent, interest. He was satisfied that we needed remedial Legislation as to the usury laws, and believed that borrowers agreeing to pay ten per cent., should be compelled to pay the same rate of interest until the judgment is paid. We should have no law that is susceptible of divers constructions. On the whole, he was opposed to the amendment, and would vote for the bill.
Mr. BUSKIRK stated the question: The bill proposes to allow ten per cent, interest on judgment rendered upon a contract specifying that rate, and the amendment of Mr. Long, authorizes such interest on the judgment, only in case the judgment defendant agrees to it. If parties have the right to contract for ten per cent., it was reasonable that the same per cent, should be allowed on the judgment. He was opposed to the amendment, and in favor of the bill. The former legislation of the General Assembly recognizes the right of the borrower to contract for money at ten per cent., and this law goes one step further, and says that when a contract merges into a judgment, that the ten per cent, shall be continued until the judgment is paid. He regarded the provisions of the act as but just to both parties, and hoped the bill would become a law.
Mr. COTTON moved an amendment, declaring that all contracts for attorney's fees, incurred on account of the collection of notes, shall be void. He moved to recommit the bill with such instructions.
The SPEAKER ruled the amendment out of order, at this stage of the consideration of the bill.
Mr. SHOAFF was in favor of the bill, because it would work a larger indulgence toward the debtor.
Mr. MITCHELL said that if a man is foolish enough to contract for money at such rates of interests, he ought to be compelled to pay it until the debt is paid, whether in the shape of a promissory note, or of a judgment.
Mr. NEFF earnestly opposed the bill. He said he had intended to give a silent vote, but since the bill had become to be regarded as a panacea for all the ills attaching to the business of money lending, he had determined to raise his voice against the tendency of legislation to protect the interests of the usurers an against the borrowers. How many years has it been since it was a penal offence for a money lender to charge a higher rate of interest than six per cent? It has been but two years since the Legislature authorized the taking of a higher rate, and yet upon that small advantage, in this short space of time, we find the moneyed interest grown so bold, as to ask the additional advantage of having this ruinous rate of interest follow the indebtedness into court, and attach to the judgment. It has been the wise practice of the Legislative power, in page: 121[View Page 121] times past, to hedge about the moneyed power, and protect the poorer classes, but within two years after its first step towards breaking down these barriers against extortion, it boldly attempts to legalize the usurious rate charged in the bond. The gentleman said he did not rise to make what might be called a poor-house argument, but he thought this a step too far. He thought six per cent enough. He thought the moneyed power had gained too great an advantage in getting authority to charge ten per cent interest on contracts and he could not refrain from lifting his voice against the additional advantage sought, in the bill before the House.
Mr. JOHNSON of Parke, could see no reason why a law suit, should absolve a borrower from the provisions of a contract. Money, he said, is but an article of commerce, and the protection granted to those other branches of trade should be extended to those who deal in money. The rates of interest granted in contract, he thought, should follow the indebtedness into court, and attach to judgment.
Mr. OSBORN submitted the inquiry whether under the provisions of this bill, the judgment debtor would have to pay ten per cent, interest on costs?
Mr. ODELL moved to lay the amendment on the table, but he withdrew his motion for--
Mr. LONG, who explaining his motive in offering his amendment; admitted it was not friendly to the moneyed interest. It was, he said, an argument used in favor of the bill authorizing ten per cent. interest, that the high rate would have a tendency to break down the credit system. Since the ten per cent., is authorized, and there are instances in which men are compelled to pay that rate for temporary relief; he is not in favor of using the courts of the State to add still further to that man's misfortune, when he gets into the courts, by attaching an usurious rate of interest to the judgment, without his consent. He doubted the general public advantage of the credit system, and of all laws for the collection of debts. Say what you will about this bill, its most evident tendency was to increase the rate of interest. His amendment was, a man agrees that the judgment shall demand ten per cent, he must pay it, and if he suffered under it, it was his own fault. The great mass of the common people do not yet commonly exact more than six per cent.
On motion by Mr. ODELL the amendment was laid on the table.
Mr. OSBORN proposed to amend the first section by striking out all after the word "enacted," and inserting "no judgment shall be rendered by any court in this State to draw more than six per cent, interest, unless the8judgment defendant appear in open court and agree to such judgment."
A VOICE--All he has to do is tot stay out of court. [Laughter.]
On motion by Mr. GORDON Mr. Osborn's amendment was laid on the table, by yeas 60, nays 27.
Mr. GREEN demanded the previous question, and there was a second, and the main question was ordered.
And then--
The bill was ordered to the engrossment.
Mr. RATLIFF, from the Special Committee thereon returned the bill [S. 1] relating to the courts in Fourteenth Judicial Circuit, with an amendment--so as not to interfere with the court term in Grant county, etc.
The amendment was adopted and the bill was ordered to the engrossment.
JUDICIAL DISTRICTS.
Mr. WILSON submitted the following resolution:
RESOLVED, That the Committee on the Organization of Courts be instructed to report a bill or bills for the redistricting of the State for judicial purposes, and the formation of such new districts and circuits as the business of the Courts of the State requires, giving to all the Courts ample time for the transaction of the business thereof.
Mr. RATLIFF proposed to amend, so as to require said Committee to inquire into the expediency of reporting a bill, etc.
Mr. WILSON accepted the modification.
Mr. McFADIN considered this resolution to be a drive in the right direction. This whale business of Circuit Courts should be under the supervision of the same Committee. The other course of local change would work hardships inevitably.
Mr. CARNAHAN would prefer that the resolution should be referred to a select Committee from the various portions of the State--one from each judicial district--to confer with the standing committee.
On motion of Mr. McFADIN, Mr. Carnahan's amendment was laid on the table.
Mr. JOHNSTON of Parke, submitted an amendment that the said Committee report their judgment as to the expediency of redistricting for judicial purposes.
Mr. WILDMAN. Considering the amount of business for the Committees on the organization of Courts and the Committee on Fees and Salaries, he would be in favor of employing competent men, outside of the Legislature to assist them.
Mr. WILSON preferred the original prop-position, because there was a pressing necessity for action in this matter.
The vote on the adoption of Mr. Johnston's amendment discovered no quorum.
Whereupon--
The SPEAKER (Mr. Williams, of Knox, in the chair) directed a call of the House.
page: 122[View Page 122]The Clerk's roll discovered a quorum present and answering to the call.
So further proceedings thereunder was dispensed with.
Mr. Johnston's amendment was then adopted.
And so, the original resolution, as amended was adopted.
A message from the Senate announced the passage of a bill [S. 17] and requested the concurrence of the House.
ORDERS
Mr. ODELL submitted an order, which was adopted, that the Doorkeeper require that the initial letter of the name of each wrapped newspaper furnished the House shall be stamped on the wrapper.
Mr. BEELER submitted an order for the employment of two persons to take charge of the rooms of standing committees.
Mr. UNDERWOOD submitted an order which was adopted, that the Librarian procure a copy of the last journal of the House of Representatives of the General Assembly for the use of the Clerk.
Mr. BUSKIRK, from the special Committee thereon, reported the designations of rooms for the several Standing Committees of the House, which was concurred in.
A motion to adjourn till Monday at two and a half o'clock was rejected--yeas 36, nays 45.
The House then adjourned till to-morrow morning at ten o'clock
