THE BREVIER LEGISLATIVE REPORTS.
TENTH VOLUME.
INDIANA LEGISLATURE.
HOUSE OF REPRESENTATIVES.
THURSDAY, February 11, 1869.The House met at half past nine o'clock a. m.
The SPEAKER directed the Clerk to read the journal of yesterday; and the same having been read--
PETITIONS= ETC.
Described as follows were presented and referred to appropriate committees:
By Messrs. McFadin, two; Pierce of Vigo, two; Vardeman, Gordon, Lawler, Cox, Higgins, Fairchild, Admire, Milliken, five; Higbee, Bowen, 7; Stewart of Hash, 7; Williams of Hamilton, two; and Shoemaker, severally presented petitions on the matter of temperance.
By Mr. COFFROTH against medical quackry.
By Mr. BUSKIRK letters from Senator Morton in reference to the claim of Mr. Coburn, to a fee charged for adjusting certain claims of the State against the Government.
By Mr. STEWART of Rush, a memorial from the old comrades of General Hackelman in Putnam county, in reference to the proposed monument to his memory.
By Mr. WILLIAMS of Hamilton, on railroad monopolies.
By Mr. SUNMAN, in relation to Morgan raid claims that was referred to the Committee on Claims without reading.
By Mr. LAWLER, a remonstrance against changing certain county lines.
REPORTS FROM COMMITTEES.
Mr. PIERCE of Vigo, from the Committee on Elections, reported a bill. He also returned Mr. Johnson of Parke's, contested election bill [H. R. 117] recommending its passage.
Mr. KERCHEVAL, from the Committee on Ways and Means, returned the House of Refuge bill [H. R. 202] recommending its passage.
Mr. COFFROTH, from the same Committee returned his Justices' supplementary proceedings bill, [H. R. 186] recommending its passage.
Mr. DUNN, from the same committee, returned Mr. Davis' Recorder certificate bill [H. R. 190] and Mr. Breckinridge's criminal practice bill, [H. R. 182] recommending indefinite postponement, which were concurred in. He also returned Mr. Hutchings' felony bill, [H. R. 198] recommending passage.
Mr. WILSON, from the same committee, returned the Nicholas Moreback relief bill, recommending passage.
Mr. GORDON, from the committee on the Judiciary, returned Mr. Osborn's void fee bill, [H. R. 103] recommending its indefinite postponement.
It was laid on the table.
Mr. STEPHENSON, from the same committee, returned Mr. Gilham's appraisment bill, [H. R. 158] with a favorable report.
Mr. WELBORN, from the same committee, returned Mr. Palmer's practice act (section 397) amendment bill, [H. R. 104] and Mr. Osborn's notice bill, [H. R. 129] recommending their indefinite postponement.
The reports were laid on the table.
Mr. DUNN, from the same committee, returned Mr. Cox's witness bill, [H. R. 188] recommending its indefinite postponement.
Mr. JOHNSON of Parke, from the committee on the Organization of Courts returned his Eighth Circuit Court bill, [H. R. 200] recommending passage.
Mr. VATER, from the committee on Educa- page: 339[View Page 339] tion, returned Mr. Pierce of Vigo's, Normal School appropriation bill, [H. R. 130] and its consideration was made the special order for Tuesday at two o'clock, p. m., on motion of Mr. McFadin.
Mr. SHOEMAKER, from the Education Committee, returned Mr. Cave's common school bill, [H. R. 184] recommending its indefinite postponement. It requires teachers to attend the School Examiners' Teachers' Institute.
The report was concurred in.
Mr. BAKER, from the same committee, returned Mr. Admire's common school director's bill, [H. R. 177] recommending its indefinite postponement.
The report was concurred in.
Mr. SABIN, from the Claims Committee, reported favorably to the claim of James A. Thornton, contestor of the seat of Mr. Wile--$110 16.
It was concurred in.
Mr. BRECKINRIDGE, from the Committee on Rights and Privileges, returned the petition in relation to the neglected grave of the lat Governor Willard, recommending an appropiation of five hundred dollars for a Willard monument. It was concurred in.
Mr. CARNAHAN, from the same committee, returned Mr. Lamborn's prairie hen bill,[H. R. 236] recommending indefinite postponement.
It was concurred in.
Mr. STEWART of Rush, from the Special Railroad Committee, returned his railroad bill, [H. R. 105] with amendments.
Mr. HIGBEE, from the Committee on County and Township Business, returned Mr. Shoemaker's county orders bill, [H. R. 213] recommending its passage.
Mr. FAIRCHILD, from the same Committee, returned Mr. Shoemaker's assessment bill, [H. R. 243.]
Mr. CUNNINGHAM, from the same committee, returned Mr. Pierce of Vigo's dog bill, [H. R. 211] recommending its indefinite postponement.
Upon the statement made by the friends of the bill, that it was framed by some of the most worthy farmers of the State, for what seemed to them good and sufficient reasons, and that there is, perhaps, more in the bill than would be supposed from a hasty reading, the report was concurred in.
Mr. HYATT, from the same committee, returned Mr. Zenor's dog bill, [H. R. 224] recommending passage.
Mr. BAKER, from the Committee on federal Relations, returned the joint resolution, [H. R. 8] for removing disabilities from volunteers, recommending passage.
Mr. MONROE, from the same committee, returned the joint resolution, [H. R. 3] for Congressional instructions to tax United States bonds, without recommendation.
On motion of Mr. MITCHELL, the vote indefinitely postponing his bill, [H. R. 159] was reconsidered, and it was recommitted to the Judiciary Committee.
On motion of Mr. OSBORN, his bill, [H. R. 103] declaring certain (note) contracts to pay attorney's fees void, this morning reported against by the Judiciary Committee, was taken from the table, the question being on concurrence in the report.
He recited the single provision of the bill, that the debtor shall not pay the attorney suing him, provided for in what is called the ironclad notes. The bill removes all doubt about the construction of the existing law.
Mr. McFADIN and Mr. STEWART of Rush, also opposed concurrence in the report of the Committee.
Mr. BUSKIRK thought something might be said on the other side of the question. He thought every man who has arrived at the age of twenty-one years should be left free and untrammelled in his business relations with the world, and he did not believe that Legislatures should attempt to step in and regulate the conditions of contracts for him. He might be vastly benefitted by conceeding at times something out of the usual way, some advantages that might seem extraordinary, but in most cases the men knew what they were doing, and on the principle that a man should be allowed to, and may buy a dead horse if he wants to, Legeslatures should take no action calculated to cramp his trading genius.
Mr. BOBO supported the bill.
Mr. OSBORN moved that this bill, [H. R. 108] and the report thereon, be made the special order for two o'clock to-morrow.
Mr. JOHNSON of St. Joseph, moved to lay the motion on the table, which was agreed to--yeas 48, nays 39.
ORDERS OF THE DAY--REGISTRY LAW.
The Election Committee's Bill [H. R. 149] to repeal all but three sections--and add a section for a number to be placed by the inspector on the back of the ticket, corresponding with the number of the voter on the tally paper, was read the second time.
Mr. PIERCE of Vigo,explained the changes proposed to be made from the present registry law, and believed the bill would be acceptable to both parties.
Mr. COX thought the numbering of the ticket would destroy the freedom of the election, for a farmer or a manufacturer employing a great number of hands, could ascertain how each of his workmen voted, and, if he chose, and in case he was disposed to discharge from employment those who happened to oppose his in politics, hold the indubitable evi- page: 340[View Page 340] dence against his men upon which to act.
Mr. McFADIN proposed to amend by striking out all after the enacting clause and simply wipe out the present Registry law.
Mr. COFFROTH objected to the bill because it repeals the clause requiring that the Election Board shall be divided between the two parties. For time to prepare amendments, he moved that the bill be made the special order for three o'clock.
It was so ordered.
Mr. Stephenson's Noblesville trustees legalization bill, [H. R. 160] coming up on the second reading--
Mr. STEPHENSON stated the facts calling for this bill.
It was ordered to be engrossed.
Mr. Stewart of Rush's, family dwelling lot burying ground exemption bill, [H. B. 161] was ordered to be engrossed.
COUNTY ELECTION LAWS.
Mr. Williams of Union's, election law amendment bill, [H. R. 23] coming up with amendments from the Committee on Elections--constitutional vacancy to be filled as now provided by law, and declaring an emergency--
Mr. PIERCE of Vigo, said: Its object is to postpone the coming spring elections, and combine the spring election with the October election, making them biennial, and allowing officers to hold over till their successors are elected and qualified. Municipal elections are not affected by the bill. He would be glad if such a provision could be made.
Mr. WILLIAMS of Knox, proposed to recommit with instructions to so amend as to retain the spring elections of 1869, and 1870, and the fall elections of 1869, for county officers. He showed the propriety of the amendment.
Mr. BUSKIRK and Mr. JOHNSON of Parke, showed that the bill provides for vacancies, which the amendment proposes to fill by elections--objecting to these spring elections on account of expense and excitement.
The amendment was laid on the table.
Mr. PIERCE of Porter, proposed to amend so as to include the municipal elections.
Mr. BUSKIRK suggested constitutional objictions as to the power of the General Assembly to modify charters.
Mr. PIERCE of Porter, withdrew his amendment.
Mr. CARNAHAN made an ineffectual motion to print the bill.
The Committee amendment to section three, that all vacancies by a constitutional limitation be filled as provided by law, and the emergency clause amendment, were adopted, and the bill as amended, was ordered to be engrossed.
The House then took a recess till two o'clock p. m.
AFTERNOON SESSION.
The SPEAKER resumed the Chair at two o'clock p. m.
SEPARATE COLORED COMMON SCHONLS.
On motion of Mr. RATLIFF, the House proceeded to the consideration of the special order, viz: The Education Committee's colored school bill [H. R. 113] which was read.
Mr. RATLIFF proposed to amend by striking out all after the enacting clause and inserting new matter. It provides for equality of taxation; colored children to be enumerated separately, and established in common schools by districts or consolidation of districts. He said the difference between his bill and the original was; leaving out the provision for an election of the district for one third to exclude the colored children, etc., and establishing colored schools directly.
Mr. COFFROTH suggested that it was special legislation in regard to colored children. Would it be competent for the General Assembly to organize separate schools for Catholics or Presbyterian children, and provide that said schools shall not be taught the same number of days with others? In reply to Mr. Ratliff, he alleged that negro children were not contemplated in the State constitutional provisional for the education of all the children of the State. Gentlemen could not say that negro children were contemplated in the provision for common school education.
Mr. RATLIFF read from that provisions of the constitution, and alleged that it made no discrimination against the negro race, for the provisions for the spread of knowledge shall be general.
Mr. WELBORN. If the provision includes negroes, where the necessity of providing for them by special act, as proposed in this bill?
Mr. RATLIFF answered: Because the school law excludes them, which law, in this respect, he regarded as unconstitutional. He referred, particularly, to the exemption of the property of negroes and mulattoes for school purposes. It was a violation of first section of the tenth article of the Constitution. He pointed out the objection to the law, by which the property of negroes and mulattoes were taxed for school houses. He referred to the= perpetual school fund of eight millions, and its sources--one from taxation, which Mr. Coffroth combated, showing that no part of the permanent fund was derived from taxation of negro property. He showed that they were taxed for municipal school houses. He showed that negro children were equally entitled to the schools in Ohio, New York and other page: 341[View Page 341] States. The school law for the last fifteen years taxed all property, without any regard to the color of the owner, for the purpose of building and furnishing school houses, to the amount of over six millions of dollars which was in accordance with the Constitution, but the school law excludes the colored portion of these tax-payers from any of the benefits of this tax which they have helped to pay. And section one of article ten of our State Constitution, requires the General Assembly to provide for an equal rate of assessment of all property, both personal and real, for taxation, and section one of the school law, exempts the property of negroes and mulattoes from taxation for school or tuition purposes, and the General Assembly had the same right under this provision of the Constitution, to exempt the property of colored persons from taxation for county and State purposes, as for school purposes, and this we hold to be class legislation, and contrary to the genius of our institution, and an unconstitutional exemption.
He quoted from the Constitution authorizing a general system of education, and setting forth that a republican government finds its greatest security in the general diffusion of knowledge. He pronounced the present school law, which taxes a portion of the people of the State--the colored--for the support of the schools, and refuses to them the benefits of the same, as unconstitutional and oppressive, and opposed to the genius of free institutions, which depend for their perpetuity upon the education of the whole people without regard to color or caste. He then pursued the general principles of the equality of rights under the Constitution, and the general constitutional amendments, which have uniformly been met with opposition, by the party which here arrays itself against this bill.
Mr. VATER demanded the previous question.
Mr. COFFROTH and Mr. McFADIN preferred the test on a motion to postpone indefinitely.
Mr. VATER adhered to the demand, which was seconded and under its pressure--the first question, on the adoption of Mr. Ratliffs substitute was decided in the affirmative; yeas 52, nays 34; as follows:
Yeas--Messrs. Baker, Barnett, Beatty, Beeler, Bowen, Britton, Breckinridge, Buskirk, Chapman, Davidson, Davis, Dunn, Fairchild, Field of Lake, Field of Lagrange, Furnas, Gilham, Gordon, Green, Hall, Higbee, Higgins, Hutson, Johnson of Parke, Johnson of St. Joseph, Jump, Lamborn, Mason, Milliken, Miller, Mitchell, Monroe, Osborn, Overmyer, Pierce of Porter, Pierce of Vigo, Ratliff, Ruddell, Sabin, Shoaff, Skidmore, Smith, Stephenson, Stewart of Rush, Tabor, Underwood, Vardeman, Vater, Williams of Hamilton, Williams of St. Joseph, Wilson and Mr. Speaker,--52.
Nays--Messrs. Addison, Admire, Bobo, Calvert, Carnahan, Cave, Coffroth, Cory, Cotton, Cox, Cunningham, Dittemore, Hutchings, Hyatt, Johnston of Montgomery, Lawler, Logan, McBride, McDonald, McFadin, McGregor, Miles, Mock, Montgomery, Neff, Odell, Palmer, Shoemaker, Sleeth, Sunman, Tebbs, Wile, Williams of Knox and Zenor--34.
Mr. Fuller and Mr. Williams of Hamilton, were paired, so the substitute amendment was adopted.
Mr. VATER moved that the bill, as amended, be now ordered to the engrossment, and thereon he demanded the previous question, and adhered to it against the remonstrance of Mr. McFadin and others.
The demand was not seconded.
Mr. McFADIN then expressed his views on the question of educating the negro, and of the relative position of the black and white races. He began with the creation of the world and unfolded gradually the beauty of God's laws in the creation of men and animals. As to the latter, giving to one advantages not possessed by the other, for instance, to one means of defense while others were helpless, to others strength and courage to overcome, and others beauty and symmetry of form with weakness. And so with man, giving to the white man powers of intellect that were refused to the negro, and whatever we might do with the view of elevating the negro to an equality with the white, God's law is unchangeable, and our efforts in that direction will be abortive. He took ground that the negro was not of the same race with the white man. This was in harmony with the varying instincts of animals, with the history of the Jews and the American Indian.
In reply to Mr. Pierce of Porter--though he was always for the weaker party--the under dog in the fight--he found no warrant for legislation to make equality of races against the ordinances of the Creator. He contemplated the inferiority of the negro in history it had been perpetual and would remain insurmountable. The negroes never built school houses. They were helpless--impotent for self-government and political power. And he said this, not that he would tread them down with oppression, but he would rather ameliorate their condition as far as possible. They could not blend with the white man without debasing the latter. He took a wide range of argument and denunciation of the quasi philanthropy and benevolence of the men of some of the Eastern States, which would seem to be totally forgotten in their negligence of the welfare of the factory children. God made the races as they are, and legislation can not make them any better.
Mr. PIERCE of Porter, said it was not proposed by this bill to make the negro equal to the white man, but it was proposed to elevate the negro. He scouted the benevolence that would refuse to do this measure of justice, which was a proposition to try to educate the children of the colored race, out of the money that is wrung from them for school purposes. page: 342[View Page 342] He also took a wide range of remark. He alluded to the fact that a gentleman in the city was now engaged in getting out a work on the Bible, and advised Mr. McFadin, in order that it may conform, at least in one instance, to his particular views, to induce the author to make such change at a certain point as to make the reading as follows: "Suffer little while children to come unto me, for of such is the Kingdom of Heaven."
Mr. JOHNSON of Parke, confessing his natural prejudice against the African, yet seeing nothing objectionable in the bill, he defended it on its merits, incidentally replying to Mr. McFadin. To elevate the negro by separate common schools; was not a proposition to degrade the white man. If the bill took money from the schools devoted to the education of white children, it was but paying back to the negro what has been unjustly withheld from him ever since we have had a common school law.
Mr. VATER demanded the previous question, and nuder its pressure, the bill was ordered to be engrossed.
A MESSAGE FROM THE GOVERNOR.
The SPEAKER laid before the House a message from the Governor, responding to a resolution of the House, to-wit:
EXECUTIVE DEPARTMENT,
INDIANAPOLIS, Feb. 11, 1869.
Gentlemen of the Senate and House of Representatives:
By the act of March 7,1807, entitled "An act to protect and indemnify officers and soldiers of the United States, and officers and soldiers of the Indiana Legion for acts done in the military service, &c.," the sum of three thousand dollars was appropriated for the purpose of employing competent counsel at the expense of the State, to conduct the defence in actions and prosecutions coming within the provisions of said act. In pursuance of the provisions of the 8th secion of said art, I herewith respectfully submit a statement of the disbursement made in pursuant of said art with a schedule of the cases in which, and the names of the persons to whom payments were made.
In all cases in which counsel was employed, it was done upon the written application of the persons against whom suits were commenced, the compensation being stipulated in advance by agreements in writing, which agreement with the written application of the defendants and vouchers will be submitted to the General Assembly, or any committee thereof if desired.
CONRAD BAKER.
It was referred to the Committee on Ways and Means.
COUNTY ELECTIONS.
On motion of Mr. COFFROTH the House took up the special order, viz: the committee's registry law amendment bill, [H. R. 140] the pending amendment being to trike out "20 days," and insert "30 days' residence."
Mr. COFFROTH proposed to amend by adding three sections; making the Trustee, Inspector of Elections--as by the law of 1852--the cities and towns to vote in each ward, the Trustees designating the places where elections shall be held outside of towns. He said complaint has been made that there were not places enough to vote in the cities. The next change: where there are more than one place of voting in the township, then the Trustee shall appoint a qualified voter to act as Inspector, the Inspector to appoint two Judges, and each Judge shall appoint a clerk. The Judges are to be appointed from persons belonging to the two largest political parties in the voting precinct.
He stated that, although the two political parties were divided in the composition of the election board, under the present law, yet County Commissioners appointing would select an active man on one side and a ninny on the other, and so evade the purpose of the law. His amendment provided against this by appointments by the Central Committees. He provided also a penalty for violation.
Mr. KERCHEVAL proposed to add to the third section: Provided, The Judges and Clerks of elections shall each take an oath that he will not disclose to any person for whom any elector voted.
The pending amendment was agreed to.
The question being on the adoption of the first amendment of Mr. Coffroth as amended by striking out the word "town" wherever it occurs--
Mr. RATLIFF objected to the recognition of "central committees" in the statute.
Mr. MONROE thought it was giving too much power to the township trustees. The power to appoint would be better retained with the county commissioners.
Mr. COFFROTH said the object was to get the exercise of this power as near the people as possible.
Mr. VATER proposed to amend Mr. Coffroth's amendment by striking out that part which refers to appointments by the central committees.
On motion of Mr. BUSKIRK, the further consideration of this subject was postponed, and it was made the special order for Wednesday at two o'clock p. m.
NEWSPAPERS, ETC.
Mr. PIERCE of Porter, (by unanimous consent) reported, for the Committee on Stationery, in favor of taking five copies (additional) for each member of the House of Weekly Zukumft--a German organ of the society of Turners.
Mr. WILE opposed concurrence in the report.
Mr. RATLIFF moved to lay the report on the table.
Mr. PIERCE of Porter, demanded the yeas and nays, and they were ordered, resulting page: 343[View Page 343] yeas 54, nays 26--so the report was laid on the table.
Mr. VATER moved ineffectually, that his State printing office bill, [H. R. 17] be taken up and made the special order for Tuesday two o'clock.
On motion of Mr. RUDDELL, the Committee on Prisons were authorized to appoint a sub-committee of three to visit the Southern Prison, in connection with a sub-committee of the Senate to complete investigations.
FOURTH JUDICIAL CIRCUIT.
Mr. CORY, by unanimous consent, introduced a bill [H. R. 248] fixing the time of holding the Circuit Courts in the several counties composing the fourth judicial Circuit.
Mr. SLEETH, stating the fact that the foregoing bill was made necessary by a mistake in the enrolled act of the House, No 2, (introduced by Mr. Cory, on the 8th of January;) that that mistake was working hardships in the Fourth Circuit etc., and therefore he moved a suspension of the constitutional restriction, to enable the House to pass the bill at once. There could be no possible objection to it.
The restriction was was suspended--yeas 77, nays 8--and the bill was then read the second time by title.
Mr. GILHAM proposed to amend by making the term "five" weeks, instead of "four," in Decatur county.
The amendment was agreed to.
The bill was then read the third time and passed the House of Representatives--yeas 84, nays 1.
On motion of Mr. BUSKIRK, the common pleas court bill, [S. 227] and Mr. Kercheval's House of Refuge appropriation bill, [H. R. 202;] Mr. Smith's 21st and 22d judicial circuits bill, [H. R. 11;] Mr. Higbee's circuit court bill, [H. R. 59;] Mr. Osborn's railroad bill, [H. R. 6;] and Mr. Ruddell's 12th district common pleas court bill, [H. R. 64] were taken up, and the constitutional restriction was suspended, so as to admit of their passage by two readings this day--yeas 63, nays 19.
JENNINGS, LAWRENCE, JACKSON, BARTHOLOMEW.
Whereupon the bill, [S. 227] fixing the times of holding Common Pleas Courts in the counties of Jennings, Lawrence, Jackson and Bartholomew, was taken up, read and passed the several readings, without amendment in the House of Representatives--yeas 78, nays 1.
HOUSE OF REFUGE.
Mr. Kercheval's House of Refuge specific appropriation bill, [H. R. 202] for purchase money for site of the House of Refuge, twelve thousand dollars borrowed by the Governor, eight hundred dollars to Mr. Donnard and three thousand five hundred dollars to Mr. Lawrence, was taken up, read the second time, ordered to the engrossment, considered as engrossed and passed the third reading in the House of Representatives--yeas 72, nays 0.
TWENTY-FIRST AND TWENTY-SECOND JUDICIAL CIRCUITS.
Mr. Smith's bill [H. R. 11] to create the twenty-first and twenty-second Judicial Circuits, and to provide for the election of the Judges, etc., thereof, was taken up.
Mr. COFFROTH showed the necessity of the bill, from sundry considerations, and among others the fact, that the county of Huntington is not now included in any Circuit Court District in the State.
The bill was read, and passed the final reading in the House of Representatives--yeas 70, nays 5with an amendment of title, adding, "and to fix the time of holding courts therein; to provide for the election of Judges and Prosecuting Attorneys therein; and also to fix the time for holding the spring term of the Court of Common Pleas in Miami county."
LATERAL RAILROADS.
Mr. Osborn's bill [H. R. 6] providing for the location and construction of lateral railroads, and for the assessment of damages occasioned by the location, construction and use of the same was taken up.
Mr. OSBORN stated that this bill was the same as one passed to the engrossment in the House at the last session of the General Assembly, which could not be passed for want of time, and which he had obtained leave to withdraw from the files in the Library for this purpose.
The bill was finally passed the House of Representatives--yeas 65, nays 4.
COURT IN KOSCIUSKO AND NOBLE.
Mr. Higbee's bill [H. R. 59] fixing the time of holding the Circuit Court in the counties of Kosciusko and Noble, was taken up on the third reading and finally passed the House of Representatives--yeas 72, nays 0.
Mr. Ruddell's bill [H. R. 64] defining what counties shall constitute the Twelfth Common Pleas District, and fixing the time of holding court therein, [the counties of Marion and Hendricks;] was taken up on the third reading and it was passed the final reading in the House of Representatives--yeas 71, nays 0.
On motion of Mr. WILLIAMS of St. Joseph, Mr. Hamilton of Vigo, obtained indefinite leave of absence, on account of sickness in his family.
And then--
The House adjourned till to-morrow at half-past nine o'clock, a. m.
