THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
WEDNESDAY, February 3, 1869.The House met at nine o'clock a. m.
The reading of the journal of yesterday having been ordered, and on motion of Mr. Ratliff dispensed with--
Mr. OSBORN submitted a resolution, which was adopted, that the Public Printer be requested to hurry up the Governor's Message.
Mr. UNDERWOOD presented a petition on the subject of a prohibitory liquor law, which was referred to the Committee on Temperance.
On motion of Mr. JOHNSON, of Marshall, the order of business was dispensed with for the introduction of bills.
BILLS FOR ACTS
Were introduced, read the first time, and appropriately referred to Committees as follows:
By Mr. LONG, [H. R. 133] for the relief of Thomas Hayes, (releasing purchase money paid for swamp land in Jackson county.)
By the Agricultural Committee, [H. R. 134] to amend section seventy-six of the criminal practice act of February 14, 1865, amendatory of the general act of 1852.
By the Educational Committee, [H. R. 135] for the disposition of money in the State Treasury without heirs--(common school money when it has remained twenty years unclaimed.)
By the County and Township Business Committee, [H. R. 136] creating a lien on real estate sold for taxes by County Treasurers, and for subsequent taxes.
By the Special Railroad Committee [H. R. 137] to amend the twenty-third section of the act to incorporate the Terre Haute and Indianapolis Railroad Company--now the Terre Haute and Richmond Railroad Company.
By the same Committee [H. R. 138] to amend section twenty-two of the act to incorporate the Terre Haute and Indianapolis (now Terre Haute and Richmond) Railroad Company.
By the Rights and Privileges Committee [H. R. 139] for relief of Nicholas Moreback and Joseph E. Lange, and Francis Joseph Wetzler, his securities--[relieving a judgment against them for stolen school money.]
Mr. DUNN obtained leave of absence until Friday.
By the Election Committee [H. R. 140] repealing certain sections--two to nineteen and twenty to twenty-two inclusive--of the registry act of March 11, 1867.
By Mr. MILES [H. R. 141] to fix the mode of assessing the amount of personal property upon which taxes shall be assessed; [tax payers may take out their indebtedness.]
Mr. MILES moved, ineffectually, for a suspension of the constitutional restriction to advance the passage of the bill one day--yeas 44, nays 40.
Mr. CHITTENDEN submitted a concurrent resolution for a committee for a monument to the memory of General P. A. Hackleman--[It contemplates no appropriation from the State for the purpose, but by citizens.]
Mr. STEWART, of Rush, delivered a tribute to the memory of General Hackleman.
The resolution was adopted.
Subsequently the SPEAKER announced the following as the committee on part of the House, viz: Messrs. Chittenden, Stewart of Rush, McBride and Johnson of Marshall.
RULES AND ORDERS.
Mr. ZOLLARS called up his resolution to page: 258[View Page 258] so amend the rules that in the order for petitions, bills and resolutions, the names of members shall be called alphabetically. He gave reasons for its adoption. Something like this rule obtained in Congress, etc.
Mr. COFFROTH opposed the resolution. If it might have been advisable earlier in the session, it was too late now. There was now no necessity for the change; and we don't know how it would work. The present rule in this respect had worked well for fifty years.
Mr. RATLIFF considered the number of bills already pending, and because we have so much business already before us, he opposed the resolution.
Mr. JOHNSON of Marshall, supported the resolution. There were several papers in his hands that he had for some time vainly endeavored to get before the House, and he thought there were many others in the same condition, who would be benefitted by the passage of the resolution.
Mr. GORDON opposed the proposition. He moved ineffectually that it be laid on the table--yeas 37, nays 53.
Mr. RATLIFF proposed to amend, so that members shall be restricted to offering but one paper when his name is called.
Mr. ZOLLARS accepted the modification.
Mr. VATER proposed to strike out that portion of the resolution which relates to petitions, which was adopted.
Mr. OVERMYER proposed further to amend by striking out that part which refers to resolutions, which was rejected.
Mr. OSBORN proposed to amend further, by adding that the names of members who have offered no bills be first called, etc.
Mr. KERCHEVAL moved to lay Mr. Osborn's amendment on the table.
Mr. COFFROTH submitted the point, that the resolution is out of order, because the same subjects matter has been before disposed of by the House.
The SPEAKER ruled that the point is not well taken, and further that the accepted amendment of Mr. Ratliff, being a new proposition to change the rules, it would have to lie over one day.
BILLS FOR ACTS.
By Mr. KERCHEVAL,[H. R. 142] to amend the act to provide for the settlement of decedents' estates, approved June 17,1852March 7, 1867.
By Mr. JOHNSON of Marshall, [H. R. 143] supplemental to the act which provides for the regulation of all sorts of animals running at large, etc., approved May 31,1862.
By Mr. ADMIRE, [H.R. 144] to amend section sixty-one of the general city corporation act.
By Mr. BRECKINRIDGE, [H.R. 145] to amend sections 1, 6 and 9 of the act to incorpcrate the La Fayette Insurance Company,of February 8,1836.
By Mr. COX, [H. R. 146] requiring township trustees to examine the dockets of Justices of the Peace as to their delinquencies in the payment of fines, etc., to the proper officers.
By Mr. PALMER [H. R. 147] to provide for the care of certain idiots.
By Mr. GREEN, [H. R. 148] in relation to the payment of costs in certain appeals in cases in relation to the act regulating public and private highways.
By Mr. BEELER, [H. R. 149] to provide against the bringing into and keeping within this State any cattle or stock affected with any contagious disease, prescribing damages, etc.
By Mr. VATER, [H. R. 150] appropriating twelve thousand dollars for furnishing the wards and subsisting the patients in the north wing of the Indiana Hospital for the Insane, till the 31st of March, 1869. On his motion the constitutional restriction was suspended--yeas 81, nays 8--and the bill was passed the second reading and ordered to be engrossed.
By Mr. LAMBORN, [H. R. 151] to prevent the introduction of cattle affected with the disease known as Texan or Spanish fever, or any cattle likely to impart such disease, and prescribing damages.
Mr. OVERMYER submitted a resolution allowing the first and first assistant clerks each ten dollars worth of stamps.
By Mr. SHOEMAKER [H.R. 152] to limit the time for commencing actions for recovering lands sold for taxes, etc.
By Mr. WILE [H.R, 153] to repeal all laws providing that not more than five acres of lands in cities shall be subject to taxation; and to make all property within cities subject to taxation.
SOLDIERS IN THE SOUTH.
Mr. ADMIRE submitted the following joint resolution [H. R. 6.]
WHEREAS, There is no opposition to the General Government of the United States, and those who have been in open hostility thereto are now quietly submitting to all laws of the General Government; and,
WHEREAS, The people of this entire country are burdened by an enormous national debt, and taxed to such an extent as to be sorely felt by all, and more particularly by the laboring classes; and,
WHEREAS, A vast standing army is detrimental to the best interests of American freemen; and destructive to a Republican form of Government. Therefore,
RESOLVED, That we, the legislators of the State of Indiana, do earnestly request our Senators and Representatives in Congress to use every honorable method to disband, at the earliest practicable moment, the armies in the Southern States, "and let us have peace."
A motion to refer the resolution to the Committee on Federal Relations was declared carried by the Chair, when
Mr. BUSKIRK called for a division and the motion to refer was declared lost.
page: 259[View Page 259]He then moved that the resolution be indefinitely postponed.
Messrs. CARNAHAN and ADMIRE called for the ayes and nays, which were taken, resulting--yeas 45, nays 39--as follows:
YEAS--Messrs. Baker, Barnett, Beeler, Breckinridge, Buskirk, Chapman, Davidson, Fairchild, Furnas, Gilham, Gordon, Green, Hall, Hamilton,Higbee, Higgins, Hutson, * Johnson of St. Joseph,Jump, Kercheval, Lamborn, Mason, Millikin, Miller, Mitchell, Monroe, Osborn, Overmyer, Ratliff, Ruddoll, Sabin, Skidrnore, Smith, Stephenson, Stewart of Ohio, Stewart of Rush, Tabor, Underwood, Vardernan, Vater, Wildman, Williams of Hamilton, Williams of St. Joseph, Williams of Union, and Wilson--45.
NAYS--Messrs. Addison, Admire, Barritf, Bates, Bobo, Britton, Calvert, Carnahan, Cave, Coffroth, Cory, Cotton, Cox, Cunningham, Fuller, Hatchings, Hyatt, Johnston of Montgomery, Lawler, Logan, Long, McDonald, McFadin, McGregor, Miles, Mock Montgomery, Neff, Odell, Palmer, Shoaff, Shoemaker, Sleeth, Sunman, Tebbs, Wile, Williams of Knox, Zenor and Zollars--39.
Mr. GORDON, explaining his vote said, he voted aye, not because he was opposed to the resolution, but because its discussion would consume time.
So the joint resolution was indefinitely postponed.
The hour of eleven having arrived--
Mr. McFADIN moved a suspension of the regular order, to admit of the introduction of bills.
The motion was egreed to.
Mr. COFFROTH moved that the House hold a night session for the purpose of introducing bills.
The motion was rejected.
BILLS FOR ACTS.
By Mr. HIGBEE, [H. R. 154] to authorize boards of county commissioners to levy taxes for subscription to the capital stock of railroad companies running through the county.
By Mr. MASON [H. R. 155] to amend the act of March 21, 1865, to discourage the keeping of useless and sheep killing dogs, etc., putting the tax into the school fund.
Mr. STEWART of Ohio, obtained leave of absence during the week.
By Mr. NEFF [H.R. 156] to prevent the introduction into this State the Spanish or cattle fever, declaring the bringing in of such cattle a misdemeanor, prescribing penalty, etc., [between March and October.]
By Mr. RUDDELL [H.R. 157] to regulate the publication of legal advertisements--prefering city papers.
Mr. GORDON submitted a joint resolution [H. R. 7] instructing our Senators and requesting our Representatives for a law granting land to soldiers of the Union army.
By Mr. GILHAM [H. R. 158] to amend section twenty-three of the act to provide for the valuation and appraisement of real and personal property for the collection of taxes in the State of Indiana, approved June 21, 1852.
By Mr. MITCHELL [H. R. 159] to amend section ten of the act to authorize and limit allowances by courts and boards, for drafts on County Treasurers, etc.
By Mr. STEPHENSON, [H. R. 160] to legalize the official acts of the several Boards of Trustees of the town of Noblesville, etc.
By Mr. STEWART of Rush, [H.R. 161] to amend the act of February 17, 1852, exempting certain property from execution (being chapter sixteen) and adding a section thereto.
By Mr. McFADIN [H.R. 162] to extend the term of Township Trustees to three years.
Mr. HAMILTON asked and obtained authority for the Printing Account Investigating Committee to employ a clerk.
By Mr. JUMP, [H. R. 163] to prevent the erection of nuisances on land belonging to the State or adjoining thereto.
By Mr. VARDEMAN, [H. R. 164] to a,mend section two of the act to authorize the appraisement of all lands within one and a half miles on either side or within one and a half miles of the terminus of any gravel road, etc.
By Mr. BEELER [H.R. 165] to provide for a Geological Board to serve in connection with the Indiana State Board of Agriculture.
By Mr. HAMILTON [H. R.166] requiring the publication of legal advertisements to be made in German newspapers in certain cases. [Paid by applicants.]
By Mr.OSBORN [H.R. 167] defining certain misdemeanors and prescribing punishment therefor, fixing the fees of certain officers, and to prevent minors from playing billiards.
By Mr. LOGAN, [H. R. 168] to encourage the destruction of foxes and wildcats.
By Mr. ODELL [H. R. 169] to amend sections two and twenty-two of the act concerning inclosures, etc., approved June 4, 1852, and repealing sections fourteen and twenty-three of said act.
Mr. WILE submitted a resolution, which was adopted, referring the claim of James N. Thornton, (the contestor to the seat of Mr. Wile,) for per diem and mileage, to the Committee on Claims.
By Mr. KERCHEVAL [H.R.170] to provide for the assessment and collection of taxes for municipal purposes on all shares of stock owned in banks or banking associations in this State.
By Mr. SLEETH [H.R.171] to amend section eight of the act providing for the election of Clerks of the Circuit Courts, and prescribing some of their duties, approved June 7, 1852.
The House took a recess till 2 o'clock.
AFTERNOON SESSION.
The SPEAKER resumed the Chair at two
* This name is omitted in the clerk's journal.
page: 260[View Page 260] o'clock, and announced the order of bills on the second reading.Mr. JOHNSON of Marshall, made the point, that the unfinished business--the Beatty-Peelle contest--was in order under the rules.
The SPEAKER overruled the point.
Mr. Vater's public printing office bill, [H. R. 17] coming up on the second reading, with the committee amendments
Mr. WILLIAMS of Knox, moved to recommit the matter, with instruction to report a bill authorizing the Secretary of State to let out all public printing to the lowest responsible bidder.
Mr. OSBORN made the point of order that the bill is not in the calendar, but on the table. He made the point because he was not prepared for action.
The SPEAKER ruled that the bill is still on the table.
On the motion of Mr. McFADIN, the subject was taken up, and postponed, and made the special order for Friday at three o'clock p. m.
ORDERS OF THE DAY.
Mr. Odell's assessment amendment bill, [H. R. 71] amending the fifteenth section of the general town incorporation act of June 11, 1852, was read the second time.
Mr. OSBORN proposed to strike out the provision with respect to the assessment of real estate, and modify so as to adopt the general appraisement of real estate for State and county purposes. It seemed to him that this modification would work a saving and favor uniformity.
Mr. MONROE would vote for the amendment.
It was adopted; and so the bill was ordered to be engrossed.
Mr. KERCHEVAL moved, ineffectually, to suspend the regular order, and take up a joint resolution from the Senate, instructing and requesting our Representatives in Congress to oppose the bill requiring contracts with the Government to be made in gold.
Mr. McFadin's recorders' bill [H. R. 127] was ordered to the engrossment.
GENERAL ROAD ASSESSMENT LAW.
Mr. Millekan's road assessments bill [H. R. 52] coming up with the committee amendments, (clerical) and adding a provision to the fourth section, and substituting the eight section respecting appeals to the Common Pleas Court, adding sections nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, and nineteen, as to the same matter of appeals, by the plank, McAdamized, or gravel road company or land owner, and adding further restrictions as to assessments for benefits, the duty of County Treasurers, etc.--
Mr. VATER moved to indefinitely postpone the whole subject.
Mr. COFFROTH suggested that to postpone this would simply throw back the State upon the old law, which is very defective.
Mr. CORY was of opinion that the House would not pass this bill, and preferred its postponement.
Mr. VATER then changed his motion--to lay the bill and amendments on the table.
Mr. COFFROTH preferred only to table the amendments, so that other amendments, more acceptable might be offered.
Mr. OSBORN suggested postponement to a certain day.
Mr. STEWARTof Rush, moved that the subject be made the special order for Tuesday but his motion was withheld for amendment.
Mr. CHITTENDEN proposed to amend by a clause: "having a subscription of a least one half the estimated cost."
Mr. COX proposed to amend by a substitute, striking out and repealing the gravel road law.
Mr. GORDON moved to lay Mr. Cox's amendment on the table.
The yeas and nays being demanded and taken thereon resulted--yeas 51, nays 34--as follows:
YEAS--Messrs. Addison, Baker, Barnett, Bates, Beeler, Bowen, * Britton, Breckinridge, Buskirk, Calvert, Carnaban, Cave, Chapman, Chittenden, Davidson, Fairchild, Field of Lake, Field of Lagrange, Fuller, Gilham, Gordon, Green, Hall, Higgins, Hutson, Hyatt, Johnson of St. Joseph, Lamborn, Logan, Long, Millekan, Miller, Palmer, Ratliff, Ruddell, Sabin, Shoaff, Skidmore, Smith, Stephenson, Stewart of Ohio, Stewart of Rush, Sunman, Tabor, Underwood, Vardeman, Wildman, Williams of Hamilton, Williams of St. Joseph, Wiliams of Union and Mr. Speaker--51.
NAYS--Messrs. Admire, Bobo, Coffroth, Cory, Cotton, Cox, Cunningham, Furnas, Hutchings, * Johnson of Montgomery, Jump, Lawler, McBride, McDonald, McFadin, McGregor, Miles, Mitchell, Monroe, Montgomery, Neff, Odell, Osborn, Overmyer, Peelle, Pierce of Porter, Shoemaker, Sleeth, Tebbs, Vater, Wile, Williams of Knox, Zenor and Zollars--34.
So the amendment was laid on the table.
Mr. BOBO proposed to amend by adding the following proviso to section two: 'Provided, That no lands under the provisions of this act shall be taxed for the construction of more than one road without the consent of the owner thereof."
On motion of Mr. SHOAFF, the subject was postponed and made the special order for Wednesday two o'clock.
Mr. STEWART of Rush, and Mr. VARDEMAN proposed amendments, which were not read.
COMMON PLEAS JUDGES' SALARY.
On the motion of Mr. BOBO, the House
* These names are omitted in the clerk's journal.
page: 261[View Page 261] now took up the consideration of the special order, viz: Mr. Bobo's Common Pleas Judges' salary bill [H. R. 9]the pending question being on Mr. Bobo's amendment, fixing the salary definitely at two thousand dollars.Mr. BUSKIRK moved that the subject be postponed and made the special order for Tuesday at two o'clock p. m.
Mr. BOBO hoped the House would not so determine. The discussion already had on the bill, he thought sufficient to bring the matter to a vote, and he desired to see it settled to-day. The resolution was agreed to.
THE BEATTY AND PEELLE CONTEST.
On the motion of Mr. PIERCE of Vigo, the two reports from the Committee on Elections, in the matter of the Beatty-Peelle contest for the seat for the counties of Laporte and Starke, were taken up.
Mr. NEFF said that he would not detain the House long with what he had to say on the subject. He could bear testimony as one of the Committee on Elections, and joining in the minority report, to the iact that in considering the question in committtee, all political or party considerations were banished. At least it so seemed to him. The committee were unanimous in the opinion that the contestee (Mr. Peelle) is constitutionally ineligible to a seat in this body. There was no difference of opinion on this subject, the constitution plainly disqualifying for such position, any person who has been elected for a term of years to a judicial office, until that term shall have expired. There was no question also, about the fact that Mr. Peelle received a majority of the votes of his district. The minority of that committee, feeling that the will of the majority of the people should not be defeated because of a disqualification of which they were not informed, asked that the matter be referred back to the people where, in all justice it should go. What have the majority to loose by this simple act of justice? You simply declare vacant a seat now held by a Democrat, and should the people of this district return a Democrat, you still have a majority. The decision of the people, though politically against you, does not affect your power in the House, or in the Legislature, and I appeal to you to decide the matter upon its merits, as honest and impartial men. He had nothing to say in regard to Mr. Beatty. That gentleman was here doubtless, under the wishes of his friends. He banished all thought of that. He understood that members have served in this body heretofore, while they were acting Justices of the Peace, the question of ineligibility not being raised in their case. Would the majority here, because they are able to do it, say now by their votes, that where they elected a man ineligible, they will supply his place with another who does not represent a majority of his district? He also alluded to the fact that the history of State legislation would show that members have retained seats here through an entire session who were not technically eligible, and he hoped the House would divest the subject of all its political trammels, and return it to the people. The gentleman holding the seat was clearly elected by a majority of the voters in the district, and he hoped the House would not attempt, by refusing to return the matter to the people, to defeat the will of the majority.
Mr. BUSKIRK asked: "Has not the Supreme Court decided that in cases where votes are cast for persons not eligible, those votes should be regarded as valueless as though they had not been cast?"
Mr. COFFROTH. In the broad sense in which the gentleman puts the question, I answer no.
Mr. BUSKIRK. I say yes, and I did not put the question to the gentleman from Huntington [Mr. Coffroth] either.
Mr. NEFF explained that Mr. Coffroth, as the friend of the contestee, had devoted some time, labor and research on the subject, and was much better prepared in that matter than he. He would, therefore leave the matter as it stands. He next discussed the question of notice and amendments. The amendments referred to yesterday by Mr. Buskirk were prescribed by statute. But here there was no statute to rely upon. The contestor had not complied with the law requiring that causes of contest be filed within ten days after notice. The notice of the specification as to ineligibility was not made matter of record till long after the ten day's limitationit was an after thought on the part of the contestor, and was, therefore, not legally before the committee as a cause of contest. If gentlemen would vote without party predilections, he felt assured that they would not vote to give this seat to Mr. Beatty.
Mr. RUDDELL asked whether the gentleman would have the majority to decide the question upon the ground of sympathy or according to the law?
Mr. NEFF. According to the law, and their own sense of right and justice.
Mr. WILSON said that in his vote upon the matter he should vote totally without regard to party predjudice. He thought he could see, from the developments of the debate that the Democracy would cast a solid vote for the minority report. It was always the case in matters of this kind, that the minority attribute to the majority party feeling, whether there be any or not, and though the republican vote might be solid for the majority report, he claimed that in his own case, his action was not, in the least, dictated by party feeling. In a case of this kind, where page: 262[View Page 262] as the gentleman of both sides claim there is no law to guide, the only correct plan to accept is to be guided by analogous cases. Let us suppose in the first place, that the contestor came here and held his seat for a year, and we should then learn that he was constitutionally ineligible, would it not be our plain duty to take such action as would secure to the district from which he was sent a legal representative?
Mr. MILES asked "would you contest a man's seat here, and ask to sit in his place after being defeated by him before the people, simply because it had appeared that your opponent was ineligible?"
Mr. WILSON. If a man who has not received a majority of the legal votes cast in his district, comes here to take a seat as a representative of that district, I would vote to give the seat to whoever could plainly show, that at said election he did receive a majority of the votes cast. The Supreme Court has decided that the votes cast for any person not eligible under the constitution, go for nought, just as though they had not been cast; and, therefore, the contestor in this case, I claim, is legally entitled to the seat. Whether any notice of contest had been filed or not, it would be the duty of the House to unseat Mr. Peelle. In reply to a question, he said, if Mr. Beatty did not receive a majority of the legal votes in that district, he would vote with Democrats for the report of the minority f i the Committee on Elections. Inasmuch as there was no precedent in this case, the House must furnish the rule. It was simply a question of law and duty.
Mr. SHOAFF interposed to ask, if the Legislature was in session the first of next May, when the four years of the justices term would have expired, would he then be eligible?
Mr. WILSON. Certainly not.
Mr. PIERCE, of Porter, spoke briefly on the subject, alluding to the claim by the friends of the minority report, that the law in regard to giving notice of contest was not complied with, one of the papers setting forth cause of contest not having been filed within the ten days. He complained of the tactics of the opposition--objecting to one of the amendments to the ground of contest, and said it was always admissible in court to amend a complaint or pleading, but in this matter it seemed that while the gentlemen were ready to stick to the law as regards the evidence, they would fly the law when it comes to amending the complaint.
Mr. ZOLLARS said in one case the point was in the statute; in the other case it was not.
Mr. PIERCE. The point he was showing was, the claim of the right to ignore the constitutional provision, because of ignorance. It is claimed that in contesting for this seat, notice of ineligibility must be given within the specified time mentioned in the law governing contests, or such ineligibility could not be made a ground of contest. But the Constitution says plainly that anyone elected to a judicial office is disqualified from holding any office, other than a judicial office, for the term for which he was elected. No reference is there made, that to contest the seat of a man ineligible, under this provision of the Constitution, notice must be given within a specified time. He complained also of the appeal to the sympathies of the House, by the opposision. He referred to the case in 14th Indiana Reports, which was a Democratic precedent until it come up against them. The notice of the qualification of Mr. Peelle as Justice of the Peace, was notice to all the world. He objected to referring the case back to the people, because of the expense involved, and because the people of Laporte would be left virtually without a just representative.
Mr. STEWART, of Ohio, being on the Committee, and with the majority reporting would say that he ignored all party prejudice in his examination of the subject, and his discussion before the committee, and should so act to the end. The question of party was sprung out of the minority report. He had no knowledge half of the time while the subject was before the committee which of the gentlemen is the Republican, and he could not now do so without forethought. He said that in arriving at his conclusion in the matter, he first examined the question of eligibility, and found that the contestee, Mr. Peelle, is totally ineligible. His next step was to find out, if possible, who was eligible, and whether there is any person legally entitled to the seat.
In the investigation of this matter he did not go to the rules and practices of Congress, nor to newspaper clippings on such subjects for data, but he went to our own laws, and the decisions of the Supreme Court under them, from which he returned, convinced that the contestor in this case is the man entitled to the seat, and that no one else is. He said that the gentleman from Cass had appealed to us in the interest of the contestee, saying that the report of the Committee sought to dispossess him on a mere technicality.
Mr. McFADIN said that if he had been on the committee he would have brought in another minority report authorizing the contestee to keep his seat.
Mr. STEWART. Yes, allow a man constitutionally ineligible to hold his seat. He quoted the constitutional provision, establishing the inedibility of Mr. Peelle. Should a solemn constitutional provision be treated here as a mere technicality? Then he referred to the case of Wallace vs. New,(fourteenth Indiana) in page: 263[View Page 263] a contest for mayor--a case entirely similar to this. He read at length from the opinion of the Court. He referred also to a decision of the Supreme Court in a case which arose in his own county, (in the 15th Indiana reports,) Covington vs. Ross. Ross received a majority of the votes cast for county Clerk, and took possession of the office. Ross, however, was constitutionally ineligible, and Covington contested the election. The matter was brought before the Supreme Court, and exactly the same questions presenting themselves in this case, were there presented and decided. First: The question whether the choice of the majority should prevail over a constitutional ineligibility; and, Second: Whether, in case of the ineligibility of the incumbent, the question should revert to the people, or the contestor be declared elected? The decision in this case was the ousting of Ross and the declaring of Covington entitled to the office. From such authorities, he said, "I have determined for myself in this matter, and not from any political prejudice."
He next referred to the argument by Mr. Zollars, that the recording of the election of the contestee to the office of Justice, in the county of Starke, might be sufficient notice of ineligibility to the people of Starke county, but could not be to the people of Laporte, and therefore would not apply to the District of Starke and Laporte, which he said was indivisible and therefore not to be affected by whatever knowledge the people of Starke might have as to the eligibility of the contestee. He said that the same law that obtains in matters of record in relation to real estate would apply in this case. The man at a distance who buys a piece of land in this county, and afterwards finds a mortgage upon said land recorded, has no exemption from said mortgage, simply because the record is open to the world, and the law presumes the purchaser to know of the existence of said mortgage. The records of Starke county are open to the world, and the law presumes that those who elect Representatives, to know of their eligibility. The argument of the gentleman from Allen, [Mr. Zollars] was certainly ingenius, but it could not stand. He sought not for precedents in Congress; but relied solely on the constitution and the decisions of the Supreme Court of Indiana, expressed by Democratic judges, in a case between Democrats.
Mr. RATLIFF desired the previous question, but withheld the demand for--
Mr. COFFROTH rose not to speak now to the question before the House, though he desired yet an opportunity to be heard. He desired to correct what might be taken as an intimation given out by the gentleman from Putnam [Mr. Neff] that he was to appear hear as attorney for Mr. Peelle. He appeared here simply as a member of the House friendly to Mr. Peelle.
Mr. NEFF disclaimed any intention to say that Judge Buskirk and Mr. Coffroth appeared as attorneys in the sense of having been employed by the parties to this contest.
Mr. COFFROTH. I have watched with some interest this debate; and I wish to have an opportunity to examine the decisions which have been referred to. I think I can show very clearly, to the satisfaction of gentleman who have cited them, that they do not bear upon this question at all. And I have some other authorities which I wish to offer. The principle involved is not a new one, either in the legislation of this State, or of other States, or of the Congress of the United States. And I wish to discuss it some time, though I can not do so now--laboring as I am under a very severe headache. If the gentleman from Grant is satisfied--I do not desire to move the previous question for him--but if he is satisfied--
Mr. RATLIFF was willing to withdraw the demand for the previous question.
Mr. COFFROTH. I move then that this subject be postponed and made the special order for to-morrow morning at ten o'clock.
Mr. WILDMAN preferred that the House would permit the gentleman from Huntington to go on this evening.
Mr. COFFROTH regretted his inability to address the House now.
Mr. GORDON was not willing to postpone the subject. Discussion could not change the vote. He would like to accommodate Mr. Coffroth, but he thought the House had spent perhaps too much time on the subject, and he thought the question had been ably and fully discussed. He hoped the matter would be brought to a vote to-day.
Mr. ZOLLARS said it was but courtesy to Mr. Coffroth to postpone the subject.
Mr. FIELD, of Lake, concurred with Mr. Gordon; desired the question to-night while the subject was fresh in the mind.
Mr. COTTON hoped the House would consent to hear the views of Mr. Coffroth; which he had stated were totally diverse from those advanced here.
Mr. RATLIFF had no desire to cut off debate and was willing to extend this courtesy to the gentleman from Huntington and his friends, to the extent of all day to-morrow.
Mr. MITCHELL. Unless this courtesy be extended he would say that he was not prepared to vote for the report of the majority of the Committee on Elections.
Mr. Coffroth's motion, making the subject the special order for tomorrow morning at ten o'clock, was agreed to.
And then--
The House adjourned till nine o'clock tomorrow.
