THE BREVIER LEGISLATIVE REPORT
TENTH VOLUME.
INDIANA LEGISLATURE.
IN SENATE.
THURSDAY, January 28, 1869.The Senate met at two o'clock p. m.--the Lieutenant Governor in the Chair.
On motion by Mr. GIFFORD, the reading of the Secretary's Journal of yesterday was dispensed with.
The LIEUTENANT GOVERNOR announced that when the Senate adjourned on yesterday afternoon, it had under consideration the bill [S. 55] to provide for a Criminal Court in Vigo county.
On motion by Mr. SCOTT the bill was made the special order for Tuesday next at two o'clock. He desired to have a little time for preparation before speaking upon its merits.
It was adopted.
Mr. CRAVENS remarked that the bill [S. 73] amending the three hundred and fifty-second section of the Practice Act introduced by Mr. Beardsley, was laid on the table the other day in his absence until such time as he should be present. He now moved to take it from the table and place it upon the files.
It was agreed to.
PETITIONS.
Mr. HANNA presented petitions with reference to the re-location of county seats, accompanied by a bill to amend the act upon the subject. The bill [S. 133] was read and referred, with the petitions, to the Committee on County and Township business.
Mr. BEARDSLEY presented a petition for a law to prevent the running at large of sheep and hogs.
It was referred to the Committee on County and Township business.
REPORTS FROM COMMITTEES.
Mr. GREEN, from the Committee on Corporations, returned the bill [S. 98] providing for the assessments of taxes, by cities on bank stock, with a report recommending its passage.
Mr. CARSON, from the same Commmittee returned the bill [S. 74] to enable cities to aid rail and other roads, with a recommendation that it lie on the table, as its provisions are embraced in another bill, which will, be reported on favorably by the Commmittee.
Mr. GRAY, from the same Committee, returned the bill [S. 85] amending section sixty of the city incorporation act approved March, 14, 1857, recommending its passage with amendments.
Mr. CASE, from the Committee on County and Township Business, returned the bill [S. 123] amending section seventeen of the County Board act of June 17, 1852, with an amendment recommending its passage.
Mr. CARSON, from the Committee on Corporations, returned the bill [S. 30] supplemental to the water work company act, approved March 6, 1865, with a recommendation that it lie on the table.
Mr. HOOPER, from the same committee, returned the bill [S. 77] amending the fifty third section of the town incorporating act of 1862, with a report recommending its passage.
These reports were severally concurrred in.
Mr. HOUGHTON offered a resolution, which was adopted, that the Committee on Expenditures, inqure into the expediency of paying the Auditor, Treasurer and, Secretary of State fixed salaries, and report by bill or otherwise.
Mr. STEIN offered a resolution that five hundred copies of the Adjutant General's re- page: 198[View Page 198] port of 1867-8, referred to in the Governor's message, be printed for the use of the Senate and House of Representatives.
Mr. STEIN said it exhibited, in detail, the transactions between this State and the General Government, to an amount equal to about live hundred thousand dollars, and he regarded the printing of it as essential to bring information before this body on that subject.
Mr. HANNA was willing, if it were a short report; but was understood to say that the printers had been in habit of stringing out these Adjutant General's reports to a length that was not relished by the taxpayers. He wished some information as to the probable extent of the work.
Mr. STEIN judged this report would not make more than twenty or thirty pages ordinary size print.
The resolution was adopted.
Mr. KINLEY moved that Senator Hooper be added to the Printing Committee, for the investigation of alleged frauds in the public printing.
Mr. GREEN said he was chairman of the committee, and, owing to the absence of other members, they had not been able to accomplish much. He was in favor of the motion.
Mr. HOOPER would prefer that some older member be selected; and moved to amend the motion by substituting Mr. Church's name for his own.
Mr. CHURCH moved to substitute the name of Mr. Gray. He knew nothing whatever of the printing business, and would not be able to tell whether frauds were committed or not.
Mr. GRAY trusted he might be excused. The Senator from Porter [Mr. Church] was as well qualified to act as he was.
Mr. SHERROD moved to further amend by adding the name of the Senator from Sullivan [Mr. Hanna] also.
Mr. HANNA hoped the amendment would not be adopted. It was not necessary that members of the committee should be practical printers. The committee would depend upon witnesses, and upon their testimony the report would be made.
The latter motion was agreed to.
The amendment was agreed to.
The resolution, as amended, was adopted.
BILLS FOR ACTS
Were introduced, read the first time, and appropriately referred to Committees, except in the instance named, as follows.
By Mr. BRADLEY, [S. 134] to authorize the incorporation of companies for the purpose of draining swamp lands.
By Mr. HOWK[S. 135] to amend section second of the act of June 4, 1861, providing for the redemption of real property sold on execution.
By Mr. DENBO [S. 136] to authorize the reference of trials to Master Commissioners.
By Mr. ROBINSON, of Decatur, [S. 137] amending the gravel road law, regulating assessments, tolls charged, etc.
By Mr. HUEY [S. 138] to fix the time for holding Com man Pleas Courts in the Counties of Delaware, Randolph, Blackford and Jay--extending the terms in the last two counties.
On motion of Mr. HUEY the Constitutional provision was suspended, and the bill read the second and third times and passed the Senate by yeas 41, nays 0.
By Mr. KINLEY [S. 139] to repeal the Registry Law.
By Mr. HADLEY [S. 140] to amend section fifteen of the act of March 9, 1867, concerning the location of highways.
By Mr. GRAY [S. 141] to repeal the act of March 6, 1865, authorizing county commissioners to organize turnpike companies.
By Mr. LASSALLE [S. 142] to amend section five of the County Surveyor's act.
By Mr. BRADLEY [S. 143] to provide for the continuance of actions in certain cases.
Pending the introduction of bills--
On motion by Mr. STEIN, the order of business was suspended, and the bill [S. 50] providing for the collection of forfeited recognizances, together with a petition on the same subject, which he then presented, were referred to the Committee on the Organization of Courts.
On motion by Mr. BRADLEY, the bill [S. 54] to authorize cities to establish public parks, was taken from the table and placed on the files of the Senate.
Mr. RICE, from the Committee on Corporations, by consent, returned the bill [S. 5] to amend section one of the abandoned railroad act, approved March 11, 1867, recommending its passage.
Mr. SHERROD, from the same committee, returned the bill [S. 47] to enable cities to aid railroads, with a recommendation for its passage.
These reports were concurred in.
AGRICULTURAL COLLEGE.
The LIEUTENANT GOVERNOR laid before the Senate the following message from the Governor:
EXECUTIVE DEPARTMENT,
INDIANAPOLIS, Jan. 27 1869.
Gentlemen of the Senate and House of Representatives:
I herewith respectfully transmit to the General Assembly the following documents in relation to the location of the Agricultural and Mechanical College at the Tippecanoe Battle Ground, in Tippecanoe county, viz:
- A communication from Hon. John L. Miller and other citizens of Tippecanoe county, addressed to myself, communicating the propositions hereinafter mentioned, and requesting that said commu- page: 199[View Page 199] nication and accompanying papers may be laid before the General Assembly.
- A written proposition of the Trustees of the Tipppecanoe Battle Ground Institute of the Methodist Episcopal Church, located at the battle ground in Tippecanoe county, proposing to convey and donate to the State for the use of the Agricultural College, provided for by the act of Congress of July, 1862, the building and grounds of said Institute, said to he worth forty thousand dollars, upon condition that said College is permanently located by the General Assembly, at said Battle Ground.
- The written proposition of the Trustees of the Battle Ground Institute, located at the same place, proposing to convey and donate to the State for the use of the Agricultural College, the buildings and grounds of said last named Institute, said to be worth sixty thousand dollars, on condition that the Agricultural College shall be permanently located at said Battle Ground.
- A certified copy of an order of the Board of Commissioners of Tippecanoe County, proposing to donate to the State the sum of $50,000 out of the treasury of said county, for the purpose of securing the location of the Agricultural College in Tippecanoe county; the said sum of fifty thousand dollars to he paid in five equal annual instalments of ten thousand dollars each, without interest, the first instalment to be paid at the expiration of one year from the date of the location of said college.
I respectfully commend this liberal offer on the part of Tippecanoe county and its citizens to the careful consideration of the General Assembly.
CONRAD BAKER.
It was referred to the joint Committee on Agriculture and Education.
SENATE BILLS ON THE SECOND READING.
Mr. Elliott's bill [S. 15] to repeal the fish law, coming up in regular order, was read the second time.
On motion by Mr. CRAVENS, it was laid on the table, on a division--affirmative 24, negative 14.
Mr. Bellamy's bill [S. 48] for the protection of the banks of water courses by preserving the bushes growing on th banks thereof from the ravages of stock, was read the second time and passed to the third reading.
Mr. Denbo's bill [S. 81] to legalize the appraisement of 1864, was read the second time and passed to the third reading.
Mr. Case's bill [S. 105] to repeal the act amending the County Treasurer's act of June 4, 1852, and declaring an emergency, approved March 6, 1865, coming up on its second reading--
Mr. CASE explained that the Treasure is now required to go before the County Commissioners, in addition to the requirements of other county officers, in filing his bond. It was proposed to require no more of him than of the others.
When the bill was passed to the third reading--
Mr. BELLAMY, in order to give gentlemen an opportunity to make a record thereon, moved to reconsider the vote laying the bill [S. 15] to repeal the fish law, on the table.
The motion was rejected.
The yeas and nays were called for but--
Mr. CRAVENS declared it was too late to take the yeas and nays after the decision was announced from the chair.
Mr. Howk's bill [S. 115] to amend the forty-ninth section of the highway act approved June 17, 1852 amended by an act approved March 9 1861, was read the second time and passed to the third reading on tomorrow.
Mr. Carson's bill [S. 116] to prohibit County Commisioners from appointing one of their number to any office of trust or profit, was read the second time and passed to the third reading.
PATENT RIGHT VENDORS.
Mr. Gray's bill [S. 17] to regulate the sale of patent rights, was read the third time and passed the Senate by yeas 43, nays 6, viz:--Messrs. Hughes, Robinson, of Decatur, Scott, Sherrod, Stein, and Wolcott.
PARTITION OF REAL ESTATE.
Mr. Denbo's bill [S. 51] to amend section nine and repeal part of section sixteen of an act concerning the partition of lands approved May 10, 1852 was read the third time.
Mr. HUGHES said, he had serious doubts whether it would be proper to pass such a bill. Now, the course pursued is for the Court to first decree a partition, and Commissioners are appointed to view the property, and report whether or not it is susceptible of division. They are usually persons who reside in the neighborhood, and who are acquainted with the land. The object of this bill is to strike out this provision and allow the court to decide upon oral testimony whether it can be divided or not. In clear cases this would save time and expense, but he did not think this shortening would compensate for the risk of making mistakes. No Judge can be as capable of deciding upon this matter on oral testimony as when men go and view the property. Now, too, parties who are interested, are admitted to testify, and while this may facilitate matters in clear cases, how will it be in doubtful cases, or cases where a minor, or a non-resident is put at the mercy of an interested witness? He was aware that where minors are concerned a guardian ad litem is appointed; but this is a mere matter of form. He teared that under such a law, the cases of poor people or minors would be materially injured in many instances. He believed in adhering to the old mode, the one which had been in vogue "time whereof the mind of man run not to the contrary."
Mr. DENBO said he had no intention of making a speech, but desired to say a few words in defense of the bill. In a great many cases it can not be known without viewing the property, whether it can be divided or not; but in others, as for example where it is a house and lot, the present law requires the appointment of commissioners, and they usually charge for three days' service; that is eighteen page: 200[View Page 200] dollars alone, saying nothing of expenses. It is left in this bill to the discretion of the court, and he believed the court was well qualified to judge upon this point, and if there is any doubt about it, the commissioners will doubtless be ordered. As regards the other change proposed, it is now necessary for the Clerk to record the report of the commissioners in the order book; afterwards sets it out in the complete record, and finally in the partition. It was proposed to do away with the partition record entirely, as useless. He introduced the bill to save time and expenses to parties, and he hoped it would pass.
Mr. BRADLEY pointed out an objectionable feature in the bill, and but for that would give it his support. He believed the Senator from Harrison, (Mr. Denbo), was in error in one statement made by him, as it is not required to enter it in the complete record.
Mr. CARSON was in favor of the bill in its main features, unless there was something in it that he could not see. The Commissioners are liable to error, and they generally report in accordance with the wishes of the petitioners, unless they see something clearly objectionable.
Mr. GREEN was unable to see anything wrong in the bill, and believed the proposed amendments would result in a great saving of costs to litigants. The expense of the Commissioners is large, and it frequently falls upon the poor and helpless; upon widows and orphans who are not well able to pay the fees. He believed the bill to be as nearly perfect as it would be possible to make it. The sooner and cheaper one can get through a law suit, the better it is for such an one, and as the bill proposes to save costs, he hoped it would pass.
Mr. HOWK remarked that the Judiciary Committee had carefully considered this bill, and he declared that it was not subject to the objection named by the Senator from Laporte (Mr. Bradley). It does away with a double record of part of the procedure, and operates in favor of widows and children in the matter of partition of real estate. The records of the office are now very voluminous and the expense much too great. The object of the bill is to favor the helpless in this respect. It is well known that the appointment of Commissioners, in many cases, is entirely necessary. He was satisfied with the bill in its present shape, and hoped it would pass.
Mr. HANNA moved to recommit the bill to the Judiciary Committee, with instructions to insert a provision that the courts spread on record some evidence that the property ought to be sold. The Court should not arbitrarily order a sale without having evidence, and the reasons therefor should be of record.
Mr. BRADLEY offered a substitute for the instructions, viz: to strike out so much as repeals the sixteenth section of the partition law. He had no objection to the first section of the bill, but to the second section he did object.
The substitute was rejected.
Mr. SCOTT moved to amend by adding a provision that such order shall not be made on the testimony of one witness.
The amendment was rejected.
The motion to recommit was also rejected.
Mr. CRAVENS, to test the sense of the Senate, moved to recommit, with instructions to except from the provisions of the act all cases wherein infants, widows or femme coverts are parties.
Mr. SCOTT moved to amend by adding "non-residents."
Mr. RICE said the main features of the bill were right, and if it was proposed to load it down in this way, it had better be defeated at first. This amendment would defeat the very object of the bill, by heaping up costs against the persons who are the least able to pay them. He was of opinion the bill was right as it is, and that these amendments would kill the bill. It is intended to benefit the class of persons now proposed to be excluded.
The amendment was rejected.
The motion to recommit was rejected.
The bill failed to pass the third reading for want of a constitutional majority by yeas 23, nays 17.
WIDOW'S ALLOWANCE.
Mr. Case's bill [S. 56] to amend sections one hundred and thirty-three and one hundred and thirty-four of the decedents' estate act of June 17, 1852, (allowing the widow five hundred dollars instead of three hundred dollars,) was read the third time.
It finally passed the Senate by yeas 35, nays 2.
PURCHASE OF PRIVATE CEMETERIES.
Mr. Wolcott's bill [S. 64] authorizing voluntary associations, formed under the act of February 12, 1855, to acquire title to lands heretofore used for cemetary purposes was read the third time.
Mr. WOLCOTT explained the provisions of the bill. It provided that where private lands have been used for five years or more, with the consent of the owner, companies could be formed to control it. In his own township, containing a population of fifteen hundred, there is no public burial place, although there are two--one in the north and the other in the south part--which have long been used as such by the consent of the owners. There is however, no provision in the present law which would prevent the owner of the land from leveling down the graves, and tilling the soil again. It was proposed to apply the well known practice of taking private property to public use by paying for it. Other land might page: 201[View Page 201] be bought, it is true, but what is so appropriate as to take ground which has been used as a burial place heretofore?
Mr. SCOTT. It would not be proper to let an association take a private burying ground, as it seems they could do under the provisions of this bill.
On Mr. WOLCOTT'S motion it was recommitted, with instructions to obviate this objection.
TOWNSHIP TRUSTEES TERM.
Mr. Humphreys' bill [S. 67] to amend section five of the township business act, approved February 18, 1859, was read the third time.
Mr. HUMPHREYS explained that the only change contemplated was to allow the Township Trustee to hold over for two years instead of one.
Mr. CARSON was not in favor of the change. If the Trustee is a good officer throughout one term, he can be re-elected for another.
Mr. DENBO favored the bill because it saved some expense.
The bill finally passed by yeas 26, nays 13.
On the motion by Mr. CRAVENS, Mr. Beardsley's bill [S. 73] amending the act of March 9, 1861, which amends section three hundred and fifty-two of the general practice act, was read the second time, it having been overlooked by the secretary when bills on the second reading came up, in the orders of the day.
It was ordered engrossed for the third reading.
Mr. CRAVENS offered a resolution, which was adopted, that when the Senate adjourn, it adjourn till ten o'clock to-morrow morning.
Mr. HUGHES offered a concurrent resolution that our Senators and Representatives in Congress be instructed and requested to vote and use their influence for the repeal of the act of Congress commonly known as the civil tenure-of-office law.
The resolution was adopted.
On motion of Mr. HANNA, Mr. Henderson was added to the Committee to visit the State Normal School and the Senator from Montgomery (Mr. Johnston) was added to the Committee on County and Township Business.
And then--
The Senate adjourned till ten o'clock tomorrow morning.
