THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
IN SENATE.
FRIDAY, January 29, 1869.The Senate met at ten o'clock, a. m., pursuant to adjournment--the Lieutenant Governor in the Chair.
The Secretary's journal of yesterday was being read, when--
On motion of Mr. Gifford, its further reading was dispensed with.
PETITIONS AND MEMORIALS.
Mr. CAVEN presented a petition concerning the Central Plank Road Company, complaining that it was exacting large tolls for crossing the White River bridge, which was built by the National Government, etc., and praying against such extortion, etc.
It was referred to the Committee on Roads.
Mr. WOODS presented a petition concerning railroad combinations, which was referred, without reading, to the Committee on Corporations.
REPORTS FROM COMMITTEES.
Mr. CAVEN, from the Judiciary Committee, returned the bill [S. 92] amending certain sections of the decedent and estate partition law, recommending that it be referred to the Committee on Rights and Privileges, which committee has the charge of other bills--Nos. 39, 78 and 106--upon the same subject, and it was thought best for them to be considered together. Two of the bills proposed to amend, and one to repeal section eighteen of the act relating to descents, while another proposed to amend section twenty-four of the same act. He showed the confusion which had been brought about by the decision in the case of Langdon vs. Applegate, by the former Supreme Court, and the opposite view taken by the present Court, in a decision reported in 28th Indiana in connection with a law passed in 1867, in support of the former decision, as to the effect of a neglect to set out the old section in amending it. It is a question whether, under these decisions and this law, sections eighteen, twenty-four, twenty-five and twenty-six of the law relating to descents were not already repealed, and if so, these bills are quite unnecessary. Mr. Caven gave a history of the enactments of this class, and suggested certain recommendations that may be necessary, on account of the confusion resulting.
Mr. HOWK, from the Judiciary Committee, returned the bill [S. 96] prohibiting judges and county officers from practicing law, recommending its passage.
These reports were concurred in.
COURT PRACTICE.
Mr. HANNA presented a report from the same committee on the bill [S. 43] to facilitate making up issues in civil actions, recommending its passage, with Mr. Hanna's dissent therefrom, written at the close of the report.
Mr. HANNA said the practice recommended might do for cities, but it was not what is desirable for the counties of the State. It virtually brings into practice here the Minnesota, and possibly, the New York code. His objection to the bill was that it provided for the practice of law in vacation. The passage of the bill would necessitate an entire revision of our code. He did not say it would not be a good enough system if proper guards were thrown around it, but he could not favor it in this form.
Mr. BRADLEY contended that this bill would save large costs in the courts, and it seemed to him that we were ready for it. It only provided for the making up of issues in page: 209[View Page 209] vacation, so far as it could be done. It gives the Clerk no judicial powers. This will avoid the difficulties and expense attendant upon witnesses remaining in waiting while the issues are being made up. It provides for a copy of each pleading being served upon the opposite party, and he is allowed from ten to twenty days in which to respond. If he files a demurrer, he must also file an affidavit with it that he does not file for delay merely, but in good faith, and in case it is overruled by the judge, the party filing it is taxed with the costs connected with it.
Mr. HANNA insisted that the Senator from Laporte [Mr. Bradley] was mistaken in his estimate of the bill. He had noticed no such provision in the bill; but said it provided for a default to be entered by the clerk when the answer or reply was not filed within ten days after notice given, and to this intent the clerk is made a judicial officer. The bill contains no provision for making up the issues before the witnesses are subpoenaed. He had been called upon to practice once at St. Paul, Minnesota, under a similar system, where the issues could be made up in vacation, but the law was not hastily gotten up, like this would be, being voluminous and very carefully considered. He believed the passage of this law would prove exceedingly injurious, especially to parties residing in the rural districts.
Mr. WOLCOTT did not know that his remarks upon this subject would be regarded as strictly pertinent, but it was a matter in which he had been much interested. He thought the bill in its general scope and purpose was a much needed reform in the practice of this State, and stated reasons. It tends to lessen litigation and cheapen expenses in the courts. It is not New York practice, but the English practice, and the practice in most all large communities as far as he knew. Now, the summons is served on a party, and it might be that he would be willing to concede the case if knew the nature of the demand made. In many cases he could not know what it was until costs had been made against him unnecessarily. In the State where he had practiced a limited extent, it was required that all pleadings should be made up before trial. Ample time was given, and they were made up carefully and deliberately, and each party knew before going into court what was required of him.
Mr. RICE thought this law might subject a man to a great many inconveniences, as it requires that all pleadings should be filed within ten days of the time notice was served on him.
Mr. BRADLEY said it should not be less than ten nor more than twenty days.
Mr. RICE, continuing, said the party might out of the State, or at a point where it would be difficult to consult with an attorney,and if the sheriff is to be kept trotting about the country, from one point to the other, to serve notices, the cost of witness' fees would be transferred to him.
Mr. HADLEY thought the objection of the Senator from White (Mr. Wolcott) did not obtain. The first step is the filing of the complaint, setting forth all the facts which the party expects to found his case; the summons is then issued, calling attention to this complaint; but in cases where demurrers are filed, a party does not always know what reply he desires to make, if any, until they are disposed of. He was of opinion that this law is not exactly what is wanted.
Mr. WOOD objected to the bill because in making up the issues under it, questions would arise requiring the decision of the Court, and the Judge might be in another part of the District, where he could not be called in.
Mr. CHURCH noticed the objections made by some Senators against the bill. One objection was that the attorney might not reside near enough to the client or the Court, and a default might be entered when it was impossible for him to comply with the requirements of the law. He presumed that such a default would be set aside at any time afterwards, when a reasonable excuse was given. He understood, too, that the copy of the pleadings might be served by any person, and that it would not be necessary to call upon the Sheriff to do so every time. The Senator from Hendricks, (Mr. Hadley) thought the party might not always know whether or what to answer where a demurrer was filed and not disposed of. He understood the practice to be in all States where a similar course prevailed, for the demurrer to stand, when filed until the Court in term time disposed of it, the proceedings resting, and the costs connected with it go with it, depending upon whether it stands or not. He thought it would work well for the parties; he did not know how about attorneys, but it certainly gives them more time. Under the present practice, an attorney of ordinary practice, probably has a dozen answers to file on one morning, and these have to be drawn up at a time when he is harrassed by clients crowding around him. The result is that the bulk of the head work is pressed inside the first few days of the term. Under the plan proposed, he takes a copy of the complaint, sits down calmly and deliberately draws up his pleading. If he is a man of ordinary discernment he can determine whether the complaint will be likely to stand under demurrer or not. He believed the change proposed is just what is needed. He understood this to be the practice an Wisconsin and one that works well for the people, though it may annoy attorneys. This bill would avoid the heavy work of the first two or page: 210[View Page 210] three court days that now has to be gone through with by lawyers of this State.
Mr. GREEN regarded this as an early stage to discuss the merits of this bill, but he would take occasion to say that it would not suit the people in the brush--up in the reserve where he lives. There men hold their notes back until within ten days of the opening of court, before taking them to the attorneys. This would require the pleadings to be made up in ten days, and it would not do. In his section there were very few lawyers, and the people usually expect to employ attorneys after coming to court. He could not see that it is applicable to the practice in that region.
Mr. BRADLEY apprehended that the bill was misunderstood by Senators. It is not open to the objection that it makes up issues in vacation under all circumstances, but to facilitate the making of them up at that time. It does not provide for the decision of any question of law at such time, as that would not be practicable. The practice under it would be like this: One party files his complaint, and a copy of it is served upon the defendant, who is required to file an answer, or a demurrer or a motion within twenty days. If a demurrer, he must swear that it is filed in good faith, but it so stands until term time, when it is settled. The present practice requires the defendant to appear on the second day of the term, when all the time is consumed for several days in making up issues, when under this law the cases might be ready for trial on the first day of the term.
The report of the Committee was concurred in, by yeas 22, nays 19.
TENURE-OF-OFFICE ACT.
The LIEUTENANT GOVERNOR decided that Mr. Hughes' resolution, offered last evening just before the adjournment, directed to Indiana Congressmen, concerning the repeal of the Tenure-of-Office Law, should be passed by the yeas and nays, and with the consent of the Senate he directed the Secretary to call the roll.
The resolution was passed by yeas 34, nays 10.
REPORTS FROM COMMITTEES.
Mr. ROBINSON, of Madison, from the Judiciary Committee, returned the bill [ H. R. 14] amending section three of the act regulating interest on money, recommending that it lie on the table.
Mr. RICE, from the same committee, returned the bill [S. 44] to limit the time for the recovery of land sold for taxes, recommending that it lie on the table.
Mr. GEEEN, from the Committee on the Organization of Courts, returned the bill [S. 20] to tax costs, where sureties of executors or administrators desire to be relieved from bonds, etc., recommending its passage with amendments.
Mr. DENBO, from the same committee, returned the bill [S. 35] in relation to docket fees, with amendments recommending its passage.
Also, the bill [S. 119] fixing the terms of courts in the Fourth Common Pleas District, recommending its passage.
Mr. SCOTT, from the Committee on the Organization of Courts, returned his bill [S. 41] relating to appeals to the Supreme Court, recommending its passage.
Mr. STEIN, from the same committee, returned the Jasper and Newton court bill [S. 92] with amendments in the shape of a new bill, recommending passage of a substitute therefor.
These reports were concurred in.
SALARIES OF JUDGES.
Mr. SCOTT, from the same committee, returned the bill [S. 45] relating to the salaries of judges, with amendments, recommending its passage.
The committee's amendments were agreed to.
Mr. RICE moved to strike out four thousand dollars and insert three thousand five hundred dollars, as the salary of the Supreme Judges, and strike out three thousand dollars and insert two thousand five hundred dollars for the Circuit Judge's salary.
Mr. CHURCH demanded a division of the question.
The amendment as far as it concerns the Supreme Judges was agreed to upon a division-- affirmative 23, negative 12.
Mr. HUGHES insisted that the Circuit Judges were more deserving, on account of the expenses in travel and hotel bills, the hard labor required, etc., of a large salary, than the Supreme Judges, and, reserving his opinion is to whether any of their salaries should be increased at present, contented himself with a few general remarks.
The second part of the amendment was also agreed to.
Mr. JOHNSTON of Montgomery, contended that this was a bad time to increase the salaries of public officers; when the country is burdened with taxation, and everybody is scared at the probable results. There is no justice in the increase of salaries at the present time, when we are increasing the number of courts so fast. He moved to indefinitely postpone the bill.
Mr. CHURCH opposed the motion. He believed it was right to pay judges at least as much as was paid to the Sheriffs and other county officers. Many of our county officers are getting better paid than the judges of our courts. In his county he knew that the sheriff, page: 211[View Page 211] the clerk and the auditor, were each of them making more than the judges. They may have accepted the office when they knew the price was low, but it is also known that the best lawyers can not afford to take the office at such prices. The best lawyer in every district should be chosen judge without respect to politics, and to that end we should pay a salary that will call out the very best talent for places on the bench. He thought this should not be a political office. He hoped the motion for the indefinite postponement of the bill would not prevail. Judges should have a salary which would raise a presumption that they were at least as well qualified as an ordinary Justice of the Peace.
Mr. STEIN desired Senators to pause and consider whether there was not an evil existing in this matter, which should be corrected before they are led away by the cry of high taxes, etc. He was not surprised to hear this kind of talk from the other party, and he expected to see them oppose every expenditure or appropriation proposed. They expect us to shoulder the blame, if any attaches, and it is proper that we should be careful. For one, he was perfectly willing that the republican party should shoulder the responsibility of this proposition. The judiciary have no voice in this body, and are dependent solely upon the sense of justice of their representatives. While we demand of them the ability attendant upon long experience and steady habits, they should have at least a living salary, and they do not get it at present, if we can trust the convictions of an ordinary common sense. We are now laboring to advance the Judiciary. The step proposed is necessary. The Governor in his message recommends an increase of judges' salaries, and the Republican party here should shoulder the responsibility of doing it. As has been said before, we have bills pending here providing for docket fees, based upon the universal proposition that they who dance must pay the fiddler; and men who have given the subject attention find that these docket fees, will pay the additional expense. He was sorry to see the amendments of the Senator, from Parke (Mr. Rice) prevail, but now, let not the motion to postpone be carried.
Mr. SMITH also opposed the motion. He looked upon the pitiful salaries paid our judiciary as an outrage.
Mr. HUGHES thought there was someting in the remarks of the Senator from Montgomery (Mr. Johnston) worthy of consideration. We are now engaged in multiplying courts, so that we can not tell exactly where it will end. When we know how many new courts should be authorized, we might act more intelligently. He was induced upon general principles to give judges liberal salaries, but we are multiplying courts this session and are proposing to increase docket fees, etc., and he desired time to consider these questions. To that end he would move to lay it on the table until a day certain, but such a motion would not have precedence over the one to indefinitely postpone, while a simple motion to lay it on the table would. He moved to lay the bill on the table, that it may be called up at some future time, say the latter part of next month, but withdrew for--
Mr. WOLCOTT who sympathized with the object of the bill, and had made some figures with a view to seeing how much the proposed increase would burden the people, He found that the additional cost would amount to twenty thousand dollars, which would be just one cent for each of the two millions inhabitants of the State.
Mr. RICE was not for a cheap Judiciary; it is a curse to the country, but as a friend to the increase of salaries, and in order to get the bill through, he had proposed the amendments just agreed to by the Senate. He would have been glad to have it stand as it did before amendment, but was satisfied it never would have got through in that form.
Mr. STEIN asked if his legislative experience would not lead him to believe with that such a commencement here the salary would be cut down to two thousand dollars in the House?
Mr. RICE thought it would not be put lower than it is now. It was likely that four new criminal courts will be authorized by this Legislature. If in order, he should have liked to have had this matter postponed until that was decided.
Mr. GRAY, in explanation said, he would vote to lay the bill on the table, while in favor of increasing the salaries of the Judiciary. Every one is interested in the administration of the law, for it is certainly the desire of all to have it faithfully and intelligently administered. The Circuit and Common Pleas Judges should be treated alike when their places are filled by others, pro tempore, otherwise he gave notice of his intention to vote against the bill in every stage.
Mr. HUGHES wanted to have time to look over the whole field. If a Criminal Court is to be instituted in Vigo county--and he was in favor of it is since the Senator had informed them the county was so full of malefactors--he wished it decided before hand. When we get through making new judicial districts and fixing docket fees, then we can tell how much increase of salaries it is proper to make. He thought we were commencing at the wrong end, in proposing to fix the salaries first, and the number of judges afterward.
Mr. SCOTT had no further interest in the bill than other Senators. It was prepared at the instance of an assemblage of Judges, and page: 212[View Page 212] he had introduced it for them, but be had no desire to assume control of it. If thought best to postpone action upon it, he was willing. His only fear was that at the close of the session, there was danger that it might be lost sight of in the multiplicity of other interests. He thought it should come up again within ten days. If left till the close of the session, we should probably give the Judges too much or not half enough. He could see a great discrepancy between their pay and that of county officers. A justice of the peace usually makes almost as much. If practicable, he should favor giving every man a fair salary instead of paying him in fees. In his county (Vigo) if the county officers were paid a salary equal to that of the judges, they would save ten thousand dollars every year, while the judges perform twice the labor. The usual custom is for a county officer to hire a deputy for one thousand or one thousand five hundred dollars a year to do all the work, while he puts the bulk of the fees in his pocket, and does comparativly no work. He would vote for the highest figure he could get in the bill, up to that first proposed.
Mr. HANNA stood in a peculiar position; in favor of raising the salaries, if it could be done without increasing the taxes. He would be willing to some sort of compromise as to fees and salaries. Judges salaries ought to be high enough for them to give their entire time to the duties of the bench, without being distracted by pecuniary embarrassments. There should be a reform in this matter of fees and salaries, for there are officers in this State now receiving ten thousand to fifteen thousand dollars a year, whose business is done by deputies employed at a meagre compensation. He was nine years on the Supreme bench, and at that time, the salary of the four judges amounted to four thousand eight hundred dollars. The Clerk was paid six thousand dollars. He paid a young man eight hundred dollars to attend to the business, while he walked about in fine clothes and did no work. It is about the same way with the county officers, while the judges are the poorest paid of any of our officials.
Mr. HUGHES renewed his motion to lay the bill on the table.
The motion was agreed to.
REPORTS FROM COMMITTEES.
Mr. CAVEN, from the Judiciary Committee, returned the bill [S. 93] to regulate the practice as to reading and making court records, recommencing its passage.
Mr. RICE, from the Committee on Corporations, returned the bill, (S. 27) authorizing the Bristol-Hydraulic Company to erect and maintain a dam across the St. Joseph river recommending its passage.
These reports were concurred in.
A message from the Governor transmitted the reports of the military agents in Indianapolis and Washington City during 1867 and 1868.
They were referred to the Military Committee.
Mr. WOLCOTT, by direction of the joint committee thereon, introduced a bill, (S. 144) to prevent the introduction and spread in this State of the Texas or Spanish cattle fever, by preventing the introduction of said cattle in this State between March 1, and October 1, of each year. It was read the first time and passed to the second reading.
Mr. HOOPER called and obtained leave of absence for Mr. Fosdick for one week.
Mr. CAVENS, from the select committee thereon, returned the bill [S. 94] concerning the consolidation of railroads, recommending its passage.
Mr. JOHNSTON of Mongomery, from the select committee thereon, returned the bill (S. 24) amending section seventy-eight of the practice act, with an amendment, and recommending its passage.
Mr. JOHNSTON explained that the amendment fixes the pay of jurors at three dollars day and ten cents mileage.
The amendments were agreed to.
The Senate took a recess till two o'clock p. m.
AFTERNOON SESSION.
The LIEUTENANT GOVERNOR called the Senate to order at two p. m.
Mr. WOOD, by direction of the Special Committee thereon, introduced a bill (S. 145) to prevent the introduction and spread of the Texas or Cherokee cattle fever, by prohibiting the importation of cattle infected with said disease, etc. It was read the first time and passed to the second reading.
BILLS FOR ACTS.
By Mr. ELLIOT, (S. 146) to amend section eight of the act allowing County Commissioners to authorize the construction of gravel and other roads.
It was referred to the Committee on Roads.
By Mr. BRADLEY, a bill (S. 147)creating the ninth and twelfth Judicial Circuits.
It was referred to the Committee on Organization of Courts.
By Mr. BELLAMY, (S. 148) to legalize the acknowledgements made by notaries public after the expiration of their commissions.
It was referred to the Committee on the Judiciary.
By Mr. JOHNSTON of Montgomery, (S. 149) to amend section seventeeen of the act relating to the fees of officers, approved March 2d, 1865. (Witnesses fees.)
It was referred to the Committee on Rights and Privileges.
page: 213[View Page 213]By Mr. KINLEY (S.150) defining the Common School system of this State.
It was referred to the Committee on Education.
By Mr. ROBINSON of Madison, (S. 151) to enable cities to aid in the construction of railroads and water powers.
It was referred to the Committee on Corporations.
By Mr. JOHNSTON of Montgomery, (S. 152) to amend section two of the act for the protection of wild game.
It was referred to the Committee on Rights and Privileges.
By Mr. GRAY, [S. 153] to amend section seven of an act for the election and appointment of supervisors of highways, etc.
It was referred to the Committee on County and Township Business.
By Mr. HUMPHREYS, (S. 154) to amend section six of the Highway act approved March 5, 1859, and approved December 20, 1865.
It was referred to the Committee on Roads.
Mr. ROBINSON of Madison asked and abtained leave of absence for Mr. Case for one week.
Pending the order for the introduction of bills--
Mr. LASSELLE, by consent, offered a resolution which was adopted, to-wit:
WHEREAS, Strict economy in the public expenditures is at all times required, and
WHEREAS. The people of the State, by reason of the high rate of State and National taxation, are at this time heavily burdened by such taxation; therefore,
RESOLVED, That a Select Committee, to consist of one Senator from each Congressional District, be appointed by the President to inquire into the expediency of abolishing any office, of reducing any fees or salaries, or of curtailing any expenditures pertaining to any State or county officer of this State; that they have the power to send for persons or papers to aid in such inquiry, and that they report by bill or otherwise, on or before the 20th day of February next.
THE STATE PRISONS.
Mr. KINLEY offered a resolution which was adopted, directing the Auditor to report the receipts and expenditures of the Southern State Prison during the past twelve years, and the Northern State Prison since its establishment; stating separately the cost of construction, the ordinal expenses of the institutions. Also the amount paid as salaries of the Directors, and other prison officers.
Mr. HOUGHTON, by consent, presented a petition concerning railroad combinations.
It was referred to the Committee on Corporations.
The House amendments to the bill (S. 32) fixing the time of holding courts in the seventeenth judicial district, were concurred in on motion of Mr. ROBINSON of Madison.
Mr. REYNOLD'S bill (S. 5) to amend section one of the act to declare abandoned certain railroads, etc., approved March 1, 1867, and the failure of any company to have formed its association under the act, approved May 1, 1852, shall not invalidate such organization if otherwise according to law, coming up in order, it was read the second time.
Mr. HOOPER moved to amend section one by providing that it shall not apply to any railroad company organized two or more years prior to the passage of this act, and has failed to expend any money for labor in actual construction of its road for the two years last past.
The amendment was agreed to.
Mr. KINLEY moved an order, which was adopted, that the Senate proceed, at three o'clock, to hear the lecture of Messrs. Coffin and Brockway, on the subject of prison reforms, in the Hall of the House of Representatives.
Mr. CARSON offered a resolution that when the Senate adjourn, it adjourn till Monday at ten o'clock a. m.
Mr. STEIN moved to amend, by striking out "ten o'clock a. m.," and inserting in lieu, "two o'clock p. m."
The amendment was agreed to.
The resolution, as amended, was adopted.
Mr. GRAY offered a concurrent resolution that the Committee on Organization of Courts, of the two Houses, be appointed a committee to consider the expediency of abolishing the Common Pleas Court, etc., that they have leave to sit at pleasure, etc., and report by bill or otherwise, by the tenth of February next.
On motion of Mr. CARSON, who considered this a question of no small importance, it was referred to the Committee on the Judiciary.
Mr. HAMILTON moved to reconsider the vote by which the Senate refused to adopt the resolution accepting the invitation to visit the State Normal School on Thursday the fourth proximo.
The motion was agreed to.
Mr. HAMILTON moved to amend the resolution by striking out "Thursday" and inserting "Saturday" the sixth proximo.
The amendment was agreed to.
The resolution as amended was adopted.
The Committee on Prisons were granted leave of absence on Tuesday next.
Mr. KINLEY stated that he was placed the other day; through courtesy, at the, head of a special committee composed of physicians, upon certain bills. He was not a physician, and he asked that he might be released from acting upon it, as it would leave it in charge of an excellent Chairman, the Senator from Franklin, (Mr. Gifford.)
Mr. Caven's bill (S. 47) to enable cities to aid in the construction of railroads, coming up in order, it was read the second time.
Mr. ROBINSON of Madison, moved to re- page: 214[View Page 214] commit to the Committee on Corporations, as he had introduced a bill to-day almost precisely like this one, except that it provided for aid to water works also.
The motion was agreed to.
Mr. Reynlod's bill(S. 54) to authorize cities to establish public parks was read the second time.
On motion by Mr. CARSON the bill was recommitted to the Committee on Corporations.
Mr. Bradley's bill (S. 77) to amend the fifty-third section of the act for the corporation of towns, etc., of June 11, 1852, was read the second time and ordered engrossed for the third reading.
Mr. GREEN, from the Standing Committee on the town of Indianapolis, returned the bill (S. 49) authorizing the city to occupy parts of certain State lands, recommending its passage.
The report was concurred in.
Mr. Gray's bill (S. 85) to amend section six of the city incorporation act, with the committee amendments thereto, was read the second time.
The committee amendments were agreed to.
Mr. CARSON moved to amend the bill as follows:
- Strike out the words "to that effect," in the fourth line of the first section.
- Insert the word "or" after the words "such city" on the third line of the second page of said section.
- Strike out all after the words "such roads" on the fifth line, second page, to the word provided."
- Insert after the words "such donations" on the ninth line, second page, the words "and subscriptions to stock."
- Strike out all the words on the eighteenth line, second page.
- Amend by adding to said section "so much of all laws and parts of laws as conflict with any of the provisions of this act are hereby repealed."
The first amendment was agreed to.
Mr. GRAY objected to the second amendment.
Pending the consideration thereof--
The LIEUTENANT GOVERNOR announced that the hour had arrived for the lecture in the hall of the House of Representatives which the Senate had by resolution agreed to attend.
On motion the Senate adjourned till Monday at two o'clock, p. m.
