THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
THURSDAY, February 4,1809.The House met at nine o'clock a. m., and the journal of yesterday was read and approved.
PETITIONS ETC.
Described as follows were presented and referred to appropriate committees:
Mr. STEWART of Rush, three petitions on the liquor traffic.
Mr. HALL for a change in the common school law.
Mr. TEBBS two petitions on railroad monopolies and extortions.
Mr. JOHNSON of Marshall, for further regulating the liquor traffic.
Also, from the citizens of Sullivan county, asking a prohibitory liquor law.
Mr. FULLER, for a law authorizing County Commissioners to subscribe stock to railroads.
Mr. RATLIFF for a prison and a reformatory for women and girls.
Mr. WELBORN, from Frank D. Allen, for pay for iron work furnished for building for Supreme Court and State officers.
REPORTS FROM COMMITTEES.
Mr. PIERCE of Vigo, from the Committee on Elections, returned Mr. Williams of Union's election law amendment bill, [H. R. 23] with amendments, recommending its passage.
Mr. WILDMAN, from the same committee, returned Mr. Mason's registration law amendment bill, [H. R. 49] recommending that it be indefinitely postponed.
Mr. WILLIAMS of Knox, moved to lay the report on the table.
Mr. WILDMAN stated that the House had already adopted the amendments proposed on the bill to the registry law, (in relation to bribed and ballots,) which supersedes this proposition.
The motion to lay on the table was lost and the report of the committee concurred in.
The bill was postponed accordingly.
Mr. STEPHENSON, from the Judiciary Committee, returned Mr. Stephenson's county officers' amendment bill, [H. R. 78] with amendments.
Mr. BAKER, from the Committee on Education returned Mr. Kercheval's common school bill, [H. R. 114] recommending passage.
Mr. VATER, from the same committee returned sundry petitions with reference to the prohibition of public worship in school houses,reported the expression of opinion that legislation is inexpedient.
He also, from the same committee, returned Mr. Dunn's school house bill, [H. R. 37] recommending passage with amendments.
Mr. TABOR, from the same committee, reported back the bill [H. R. 155] to amend the act to discourage the keeping of useless and sheep-killing dogs, approved March 9, 1865, recommending its indefinite postponement. Which was concurred in.
Mr. RATLIFF, from the same committee, returned Mr. Miles' normal school amendment bill, [H. R. 93] recommending passage.
Mr. BRECKINRIDGE, Mr. CARNAHAN, Mr. FAIRCHILD and Mr. FURNAS, from the Committee on Rights and Priveleges returned Mr. Stewart of Rush's exemption bill, [H. R. 161,] Mr. Miles' assessment [H. R. 141,] Mr. Palmer's certain idiot's bill [H. R. 147,] Mr. Fuller's game law amendment bill, [H. R. 82,] recommending passage. Also, Mr. Barrett's fish act repeal bill [H. R. 98,] recommending its indefinite postponement, which was concurred in.
page: 275[View Page 275]Mr. CUNNINGHAM and Mr. HYATT, from the Committee on County and Township Business, returned Mr. Johnson of Marshall's cattle at large bill, [H. R. 143] recommending passage; and Mr. Logan's fox and wildcat bill [H. R. 168] recommending that it be laid on the table.
On motion of Mr. McFadin, the bill was recommitted to the Committee on Rights and Priveleges.
Mr. FAIRCHILD returned Mr. Vater's justices' books bill [H. R. 126] recommending indefinite postponement.
The report was concurred in.
Mr. SABIN from the same committee, returned Mr. Cave's township business amendment bill [H. R. 47] with a motion that it be laid on the table.
The report was concurred in.
Mr. MILLIKAN, from the Committee on Roads, returned Mr. Tebbs' Aurora and Laughery turnpike charter amendment bill [H. R. 42] recommending its passage. Also the bill (H. R. 43) to repeal the act allowing county commissioners to organize turnpike companies in certain cases, approved March 6, 1865, with an amendment recommending the passage of the bill.
Mr. SMITH, from the Committee on Mileage and accounts, returned Mr. Fuller's mileage bill (H. H. 53) with amendments.
Mr. UNDERWOOD, from the Committee on Insurance, returned Mr. Breckinridge's life Insurance supplemental bill [H. R. 60] with amendments by way of substitute--satisfactory to the author.
THE BEATTY-PEELLE CONTEST.
Mr. WILDMAN called up the special order, viz: the majority and minority reports from the Committee on elections in the Beatty-Peelle contest for Representative from Laporte and Starke.
Mr. COFFROTH, being entitled to the floor, plead for the adoption of the minority report for unseating Mr. Peelle, and a new election. He had hoped the question before the House would be settled without regard to party feeling or party prejudice. He however, had been apprised of a caucus by the majority with special reference to the matter in hand, and he had no doubt the result was thatevery Republican had come into the House to-day, under the rule of the caucus, to present a united front in favor of the contestor. He regretted that such action had been taken, and severly reprobated the application of the party lash to secure success in a matter which should appeal to the calm, unbiased judgments of men, without regard to their political preferences.
He referred to the fact that the contestee, Mr. Peelle, had occupied a seat here thus far in the ression, feeling that upon strict construction perhaps, the temporary occupany of the office of Justice of the Peace rendered him ineligible, but as he came backed by a majority of the voters in his District, he believed himself justified by precedents of this House, in remaining here in the capacity of Representative. He here referred to two cases in which members disqualified by some temporary connection with other positions, had been permitted to hold their seats until the expiration of their terms, notwithstanding such disqualification. In this case, then, as the choice of his District, and confident that the other causes of contest filed by his opponent would be found insufficient for his removal, he has remain upon the floor of the House. He said, too, that the contestee certainly had good reason to hope, that a party, so many members of which had consented to accept high offices to which they were by the intent and spirit of the Constitution clearly ineligible, (referring to Governors accepting positions of United States Senator, and others in high office in the State displaying the same willingness) would not after permitting their party friends to hold positions on this floor, who were known to be ineligible, consent to dispossess him of his seat because of a like disqualification. He said that as this constitutional provision was evidently placed there to guard against fraud and corruption, and as it is evident in this case, since the incumbent, Mr. Peelle, did not, nor did the contestor know of his (Mr. Peelle's) ineligibility until two months alter his election, there was no fraudulent intentions, he believed all would conscientiously permit him to retain his seat here as a Representative of the district of which he is the undoubted choice.
He then proceeded to discuss the question, "Is the contest regularly before the House?" The election was held, he said, on the 13th day of October, and the notice of contest was filed to the 23d. The law requires that within ten days after the election the contestor shall file his notice of contest; specifying grounds. He here referred to the early decisions of the Supreme Court of the State, made to be sure in the days of its infancy, but perhaps as some claim in its palmier days, according to which the notice here filed would not be declared filed within the time prescribed. However, he believed that late decisions had overruled these, and not desiring to be capious, he would waive all objection that might be urged on that score.
The ground of contest given, with the notice filed was irregularity of election. This irregularity which consisted partly in the judges adjourning from the voting place, where there was no fire, to a point a mile distant, the gentleman next proceeded to show was as page: 276[View Page 276] he claimed, too frivolous to be effective. This and other trivial irregularities, he claimed--the proper grounds of contest--the majority of the committee do not pretend to decide upon at all, but report advising the dispossessing of the incumbent of his seat, and the placing therein of his competitor who was fairly beaten at the polls, wholly upon other grounds, viz: the ineligibility of the contestee, which was not stated with the notice of contest as required by law, and was not filed until the 11th of December, almost two months after the election. He here read the tenth section of article three of the Constitution declaring the House to be the exclusive judge of the qualifications of its own members, alluded to by the opposition; but proceeded to argue that the House must be governed in such cases as courts are governed by the law and evidence.
If there is no valid contest, while from the ineligibility of the holding member his seat may be declared vacant, he denied the right of the House to admit the contestor to the vacancy. He again took up the law requiring the filing of the causes of contest within ten days after election, laying great stress on the words of the law, ''shall file," &c., and going on to show that the cause which disseats the holding member, was not filed within the prescribed time.
Mr. OSBORN asked if the minority report did not admit all that the gentleman was endeavoring to defeat the force of; as a cause of contest, viz: the ineligibility of the holding member?
Mr. COFFROTH. Yes; but, while it unseats the holding member, it does not seek to fill the vacancy with the contestor, who rests his claims for the seat wholly upon this ineligibility.
He claimed that a cause of contest entirely distinct in form and independent of any previously filed, setting forth subject matter in no way connected with the causes before filed, could in no sense be an amendment, any more than the buying of a new coat would be the mending of an old one, and therefore the argument of the opposition, that the practice of the courts under the civil code as to the amending of a complaint after action shall have been begun, does not apply to the case in hand.
Mr. BUSKIRK asked, whether in case a suit had been entered under the civil code upon a contract, the complaint might not be amended so radically as to introduce instead, a half dozen promissory notes?
Mr. COFFROTH said that it might, but he he could not see how that benefitted the gentleman's case, and went on to show its inapplicability in a neat an ingeniuous argument. He next proceeded to an investigation of the decisions of Judge Perkins, of the Supreme Court, in the case of Gulick vs. New, which he claimed, was to the effect that the ineligibility of a candidate was not destructive of the votes cast for him, to the extent of declaring the candidate receiving the next highest number of legal votes elected to the office. He claimed that by this decision the effect of a constitutional inelligibility on the part of a candidate receiving a majority of the votes at an election would be simply to declare such an election void, and return the matter again to the people. In support of this position he adduced several decision in other States, and the practice in Congress, the highest deliberative body in the nation.
He closed with an appeal to the Repulicans to act fairly and impartially, and warned them that if they would disregard the law, the evidence, and the courts, and follow the behests of party, that the retribution might follow quickly upon those successes of the party, now in minority, which the signs of the times indicate to be not far off.
When he had concluded--
Mr. PIERCE of Vigo, took the floor and moved an adjournment.
And accordingly--
The House took a recess till 2 o'clock.
AFTERNOON SESSION.
The SPEAKER resumed the Chair at two o'clock p. m.
Mr. BUSKIRK toot the floor in reply to Mr. Coffroth--referring to the disadvantage of speaking off hand, he still felt that a sufficient reply might be made on the merits of the case. Allusion to party politics and the force of the usages of party had been first made by the opposition here; and without waiving his right in that direction, he considered that the majority report would be amply sustained on the merits. The gentleman's speech was a lawyerly effort, and more befitting a plea before a jury, than an address on the floor of this House. Democrats were notorious for causes, and it were well if Republicans were under better party drill. He would come to the points in the case. The gentleman started out with the declaration that he would address the House as he would speak before a judge; but when it suited him he did not refrain from the arts depended on before a jury. The gentleman contended that the contest was not regularly before the Houseas to the question of seating the contestor. Mr. Buskirk alleged that the whole matter of the contest was fully and fairly before the House. Since there is no rule of law to govern in the case, was it unfair to go the analogy of law in the practice of the courts? The gentleman did not read all the statute of amendments, nor all in the decision in the 14th Indiana Reports. He did not read the statutory provision, that page: 277[View Page 277] one of the causes of contest was ineligibility. Mr. Buskirk showed that the amendment in the case did not change the nature of the contest. He read the statute on this point: "No delay shall be admitted unless for good cause shown." This statute applies to the entire civil practice, and why not to this? The statute says "any pleading." Were not the amendments here in the nature of pleadings? His (Mr. Coffroth's) pleading on this point were technical. But the claims of Mr. Beatty to a seat here were not placed on technical grounds. The gentleman's was a plea in abatement, and when a party has once plead on the mirits, he is estopped from pleadings in abatement.
The gentleman made a fatal admission when he said, this statute in relation to contests was merely directory, and that the House of Representatives was exclusively judge of the qualifications of its members. Was he not then estopped from the plea that the House has no right to seat Mr. Beatty? Beatty demands the vacant seat under the constitution and laws, and produces the grounds of his claim, and the House judges exclusively in the case. By admitting the right, the power of the House, the gentleman gave up his argument.
In reply to the allegation that we beg the question as to Beatty's election, and that Beatty was repudiated by the people of his district, Mr. Buskirk repeated that Beatty, so far from being repudiated, received every legal vote cast at the October election in his district. The question was now but one, whether Beatty is entitled to the seat. This depends on certain questions the gentleman discussed, and to this as well as to the other point, he read but so much of the decision of the 14th Indiana as suited his case. Mr. Buskirk alleged, that where there is ineligibility, the whole people are charged with notice of the fact, and it was their duty to take that notice. He was willing to rest here on the opinion of the Democratic judge Perkins, in the case of Gulick vs. New. He read at length from Judge Perkins' decision. Judge Perkins made three propositions. The first, that when the people are not bound to know, there is a vacany. Mr. Buskirk admitted that, under this division, the gentleman was right. But under the next division, that when the voters are bound to know the fact of ineligibility, the opposing candidate is elected. Under this, the majority report was sustained. He read further from the decision. Judge Perkins decided that the people of the State of Indiana were bound to take notice of Wallace's ineligibility as a Judge; i.e., as a Justice of the Peace, for as mayor he was Justice of the Peace ex officio. Mr. Peelle was elected a Justice of the Peace. He never saw a reported law case that fit this case before the House so precisely. He had not been misled by reading the syllabus, as alleged by the gentleman.
He then referred to the third proposition in he decision; that when a candidate holds a public office which works his ineligibility, the people are bound to know of it. The contestant shall give notice in ten days, and the gentleman's emphasizing "shall," amounted to nothing; for the same words is in the statute presenting notice in civil actions. Mr. Buskirk made a diversion to denounce the Democratic party as having afforded aid and comfort to the late rebellion, which brought--
Mr. LAWLER to his feet, to declare himself the only man on this floor that took a musket for the suppression of the late rebellion; and--
Mr. COFFROTH to make the point of order, that Mr. Buskirk was not speaking to the question.
The SPEAKER sustained the point of order.
Mr. McFADIN next took the floor, and alledged that partizan denunciations came not from Democrats on this floor; and, to the statement that Democrats supported secession, for every Democrat of that class that the gentleman would produce, he would produce twenty guilty abolitionists. He also brought several members to the floor, to the point of order before made; and the point being sustained as before, Mr. McFadin, proceeded to discnss the question before the House--denouncing the Supreme Court for ignoring the thirteenth article of the State Constitution, against a majority of eighty thousand voters, as weakening the authority of that tribunal; and strongly repudiating the proposition to seat a man here as a Representative, whom the people have repudiated. He further declared his Democracy, and his military services in full accord with the unflinching loyalty of life; and denounced those who would impugn his reputation or that of his party in this respect.
Mr. OSBORN demanded the previous question, and the main question was ordered.
The SPEAKER stated the first question to be: Shall the report of the minority of the Committee on Elections be concurred in? It is printed on pages 231 and 232 of these Reports, and declares for a vacancy, and a new election.
The yeas and nays having been demanded and ordered thereon, the vote resulted--yeas 43, nays 51--as follows:
YEAS--Messrs. Addison, Admire, Barritt, Bates, Bobo, * Britton, Calvert, Carnahan, Cave, Coffroth, Cory, Cotton, Cox, Cunningham, Dittemore, Fuller, Hutchings, Hyatt, Johnston of Montgomery, Lawler, Logan, Long, McBride, McDonald, McFadin, McGregor, Miles, Mitchell, Mock Montgomery, Neff, Odell, Palmer, Shoaff, Shoemaker, Sleeth, Sunman, Tebbs, Welborn, Wile, Williams of Knox, Zenor and Zollars--43.
page: 278[View Page 278]NAYS--Messrs. Baker, Barnett, Beeler, Bowen,* Breckinridge, Buskirk, Chapman, Chittenden, Davidson, Davis, Fairchild, Field of Lake, Field of Lagrange, Furnas, Gilham, Gordon, Green, Hall, Higbee, Higgins, Hutson, Johnson of St. Joseph, Jump, Kercheval, Lamborn, Mason, Millikan, Miller, Monroe, Osborn, Overmyer, Pierce of Porter, Pierce of Vigo, Ratliff, Ruddell, Sabin, Skidmore, Smith, Stephenson, Stewart of Ohio, Stewart of Rush, Tabor, Underwood, Vardeman, Vater, Wildman, Williams of Hamilton, Williams of St. Joseph, Williams of Union, Wilson and Mr. Speaker--51.
So the report of the minority of the Committee on Elections was rejected.
The SPEAKER then stated the next question, viz: Shall the report of the majority of the Committee on Elections be concurred in? It is printed on page 231.
Mr. COFFROTH demanded a division of the question--the first question being: Is Samuel Beatty entitled to the seat of joint representative from the counties of Laporte and Starke? And thereupon, Mr. Coffroth made the point that this question is already decided, because the House, by rejecting the minoirty report, declared negatively, that the seat is not vacated.
Mr. VATER and others, on the point of order, contended that the whole of the minority report was rejected, as an amendment to the majority report.
The SPEAKER decided that the question before the House is on the adoption of the first division of the majority report.
Mr. PIERCE of Porter, contended that the former vote of the House does not make the difficulty, assumed as to a division of the question, on the majority report.
The SPEAKER decided that, on the division of the question, the first question was on the first proposition in the resolution reported by the majority of the committee, which seats Mr. Beatty, and declares the ineligibility of Mr. Peelle, and the yeas and nays thereon resulted--yeas 52, nays 43--as follows:
YEAS--Messrs. Baker, Barnett, Beeler, Bowen, Breckinridge, Buskirk, Chapman, Chittenden, Davidson, Davis, Fairchild, Field of Lake, Field of Lagrange, Furnas, Gilham, Gordon, Green, Hall, Hamilton, Higbee, Higgins, Hutson, Johnson of St. Joseph, Jump, Kercheval, Lamborn, Mason, Millekan, Miller, Monroe, Osborn, Overmyer, Pierce of Porter, Pierce of Vigo, Ratliff, Ruddell, Sabin, Skidmore, Smith, Stephenson, Stewart of Ohio, Stewart of Rush, Tabor, Underwood, Vardeman, Vater, Wildman, Williams of Hamilton, Williams of St. Joseph, Wiliams of Union, Wilson and Mr. Speaker--52.
NAYS--Messrs. Addison, Admire, Barritt, Bates, Bobo, Britton, Calvert, Carnahan, Cave, Coffroth, Cory, Cotton, Cox, Cunningham, Dittemore, Fuller, Hutchings, Hyatt, Johnson of Montgomery, Lawler, Logan, Long, McBride, McDonald, McFadin, McGregor, Miles, Mitchell, Mock, Montgomery, Neff, Odell, Palmer, Shoaff, Shoemaker, Sleeth, Sunman, Tebbs, Welborn, Wile, Williams of Knox, Zenor and Zollars--43.
Pending the roll call--
Mr. MITCHELL, explaining his vote, said: he felt called upon to decide this question under the facts and the law. It is proposed by those who favor the majority report of the Committee, to elect Mr. Beatty to a seat on this floor on the grouod that the votes cast for Mr. Peelle in the county of Starke were illegal. Thefriends of that report think that to be the law. I do not believe it is the law; but if it is the law, it is, in my opinion, to the spirit of our institutions. I vote against the proposition.
Mr. VATER, explaining, under the solemnities of the oath of his position on this floor. He understood that a vote that is not legal, is not a vote. The law and the decisions of the courts set forth the doctrine distinctly, that the people must know that their representatives are not eligible.
So the first division of the majority report was adopted.
Mr. COFFROTH felicitating the House in the happy condition of having a hundred and one members, and especially the people of the counties of Laporte and Starke, as enjoying one representative more than their legal share, moved that the House now adjourn.
The SPEAKER decided the motion to be out of order, under the force of the oder for the vote on the branch of the question yet pending. He then stated the question to be on the adoption of these words in the resolution reported by the majority of the committee: "And that James S. Peelle has no right as a Representative in this House, he not being eligible to the office on the day of election; and that Samuel Beatty, the only man receiving the legal votes of his district, is entitled to the seat."
Mr. COFFROTH made the point of order that these questions have been decided.
The SPEAKER over-ruling, said the division of the question made the dilemma. The House, not the Chair was responsible.
The vote was then ordered and taken, resulting--yeas 65, nays 24--seven not voting--as follows:
YEAS--Messrs. Baker, Barnett, Beeler, Bowen, Breckinridge, Buskirk, Carnahan, Cave, Calvert, Chapman, Chittenden, Cotton, Davidson, Davis, Fairchild, Field of Lake, Field of Lagrange, Furnas, Gilham, Gordon, Green, Hull, Hamilton, Higbee, Higgins, Hutchins, Hutson, Hyatt, Johnson of St. Joseph, Jump, Kercheval, Lamborn, Long, Mason, Millikan, Miller, Mitchell, Monroe, Odell, Osborn, Overmyer, Pierce of Porter, Pierce of Vigo, Ratliff, Ruddell, Sabin, Shoaff, Skidmore, Sleeth, Smith, Stephenson, Stewart of Ohio, Stewart of Rush, Tabor, Tebbs, Underwood, Vardeman, Vater, Wildman, Williams of Hamilton, Williams of St. Joseph, Williams of Union, Wilson, Zollars and Mr. Speaker--65.
NAYS--Messrs. Addison, Admire, Barrett, Bates, Bobo, Cory, Cox, Dittemore, Johnston of Montgomery, Lawler, Logan, McBride, McDonald, McFadin, McGregor, Mock, Montgomery, Palmer, Shoemaker, Sunman, Wile, Williams of Knox and Zenor--23.
Pending the roll call--
* The clerk's journal records Mr. Bobo on both sides and omits Mr. Bowen's vote
page: 279[View Page 279]Mr. CAVE, explaining his vote, said he believed Mr. Peelle constitutionally ineligible, and therefore voted "Aye" without wishing to be understood as favoring the seating of Mr. Beatty in his place, who he believed had no right whatever to the seat.
Mr. CARNAHAN,in explaining his vote,said, I vote "Aye" for unseating Mr. Peelle, but I believe it would be violating the principles of a repulican form of government for this House to give the seat to Mr. Beatty, when he had been repudiated by a majority of the legal voters of his representative district.
Mr. COFFROTH, when his name was called, said: the first part of the proposition he would like to vote aye; but, as to the last part there was not a word of truth in it, therefore he declined to vote.
Mr. MONROE demanded that the gentleman vote--
And after some talking across the House, several motions to excuse the gentleman, and propositions to withdraw the demand, and order for the yeas and nays, the reading from Cushing's Manual, that a refusal to vote is a high breach of decorum, subjecting the member to censure, etc., and after a demand from--
Mr. OSBORNE that the proper record be made, and after an appeal by--
Mr. ZOLLARS for a withdrawal of the yeas and nays and better feeling, and a disclaimer by--
Mr. COFFROTH that he suffered any embarrassment, and a declaration that he was as calm and cool as a "Sunday morning," and after specific explanations of their votes by several members, the vote proceeded in order.
Mr. HUTCHINGS in explaining his vote, said: I vote "aye" in regard to the ineligibility of Mr. Peelle to his seat, but do not believe Mr. Beatty is entitled to it.
Mr. McDONALD, explaining his vote, said: He conscientiously believed Mr. Peelle constitutionally ineligible; but also believing Mr. Beatty had no right whatever to the seat, of "two evils he took the least" and voted "no."
Mr. MITCHELL, in explanation of his vote, said: Mr. Peelle was ineligible, but I do not believe the citizens of Starke county were bound to know that Mr. Peelle was ineligible. I believe, therefore, that the votes cast for Mr. Peelle, so far as the citizens of Starke county were concerned, were legal votes; but I know from the law, and the facts in the case, as a member of the House, that Mr. Peelle was ineligible, and I believe that Mr. Beaky was the only person voted for who was eligible to the contested seat. I therefore vote in favor of that part of the resolution, by no means acknowledging the election of Mr. Beatty by a majority of all the legal votes cast in the counties of Starke and Laporte.
Mr. TEBBS, in explaining his vote said: I believe Mr. Peelle is constitutionally ineligible to a seat in this House and therefore vote "aye." But in reference to Mr. Beatty's being entitled to the seat, I vote "no."
The SPEAKER announced the result of the record to-wit: yeas 64, nays 24, as above; and thereupon the Speaker read again from Cushing's Manual to show that the member making a demand for a division of the question ought to state the parts of the question into which he desired the proposition to be divided.
Messrs. Jump, Skidmore, Neff, Field of Lake, and Long obtained leave of absence till next week.
On motion of Mr. OSBORN, Mr. Samuel Beatty, the declared Joint Representative from the counties of Laporte and Starke, was now brought forward and received the oath of his office at the hands of the Speaker.
Mr. COFFROTH asked leave of absence for the member from Laporte and Starke, [Mr. Peelle] for the balance of the session. [Laughter.]
The House then adjourned till nine o'clock to-morrow.
