ORGANIZATION OF THE SENATE....DEBATE
IN CONTINUATION.
IN SENATE.
SATURDAY, April 8, 1869.[IN CONTINUATION-p. 21.]
Mr. SCOTT, of Vigo, had introduced the following resolution:
Resolved, That the Governor be notified that no Senator from any district where special elections have been ordered, has appeared to qualify as a member of this body on a call of the districts.
Objection was made to the resolution by Senator Bradley, of Laporte, as being out of order. Some discussion was had over the point of order, but it was finally sustained by the Lieutenant-Governor on the ground that the Senate being without a quorum it could transact no business, except to adjourn or send for absent members ; and it was admitted that withholding members, who had never qualified, were not such "absent" members as could be sent for. After this ruling had been made a desultory discussion in regard to its propriety was carried on, in the course of which Senator Stein obtained the floor, and made the following remarks in reference not only to the ruling, but upon the more important question of that constitutes a quorum in case of a withholding of a portion of members at the primary organization of the Senate:
Mr. STEIN. Mr. President: There seems to be no regular question before the Senate; but, as members decline to adjourn,' talk ' may be considered the order of the afternoon; and this a good time for the expression of opinions generally. Admitting the assumption of the President, that we lack a quorum, the decision just made was, I think, right. As a body less than a quorum, I think what appears in the Constitution is the only grant of power we have. But I cannot assent to the admission, that we are so helpless-that we are really without a quorum. This may seem a wild fancy to some, but it will bear investigation, I and I am in great error, if it will not ultimately be found grounded in truth. I would have preferred broaching the proposition at a later I day, and regret that the motion to adjourn did ; not prevail. The reason assigned by the President for his ruling on the resolution of the Senator from Vigo, to wit: That we lack a quorum, compels me, however, to enter my protest at this point. My notion is, that our programme of proceedings should have been, after calling the roll and finding the vacant districts unresponded to, to consider ourselves the Constitutional Senate of Indiana ; and adjourn to to-morrow out of courtesy to those page: 258[View Page 258] who may have been elected in those districts, to give them a further opportunity of presenting themselves before the Senate. We have no official knowledge of what ails the members representing these districts. They may possibly be absent on account of sickness, or they may fail to arrive in consequence of the interruptions of travel. And it might be proper to give them another day. And inasmuch as the constitution talks about five days' manipulation before an organization, I feel disposed to-
Mr. CHURCH, (interrupting.) From information just received, I learn that they have been mired in the Black Swamps. [Laughter.]
Mr. STEIN. All the more reason why we should give them another day.
Mr. BRADLEY (to Mr. Church.) Who gave you that information?
Mr. CHURCH. I believe the rules of the House do not require me to answer. [Laughter.]
Mr. STEIN. Wherever the information came from, it is quite probable. This is a miry season. After having exhausted five days, as I was about to observe, these defaulting districts being called day by day, and remaining steadfastly aloof, we could then, before proceeding to organization and business, consider the great question, whether a factious minority shall stop legislation, throttle the State Government, and possibly reduce the State to a condition of anarchy; or whether there is some virtue in the Constitution so that we can proceed to business. As far as I am concerned, my convictions are firm, though I do not find a superabundance of members agreeing with me. Upon every principle of reason and common sense, the great standard by which we measure public law-for the narrow technicalties which sometimes prevail in muncipal law, fall back and disappear when it comes to a construction of what is known as public law-upon every principal of reason and common sense, and, I may add, of legal construction, we who remain behind are the constitutional General Assembly of the State of Indiana. And we have full authority, from and after the time we see fit to assert it, to proceed with the legislation of the State. My own opinion is, that we have the power to consider these rebellious districts, as seceded districts, and that we can consider ourselves as the remains of legislation-legal legislation, left living in the State-and proceed with our business. And, were my judgment to prevail in this matter, this body would simply adjourn to-day; and after having done all that can be done-the qualified members having been called, and the vacant districts called-and tomorrow going through the same ceremony this process to be repeated five days, as a matter of courtesy, not as a matter of right, to these districts we should then close the door of grace, assert ourselves the law-making power of the State, and proceed to general legislation.
The correctness of my position depends upon the construction of the constitution of the State of Indiana, and it is purely a question construction. The constitution is not specific upon this particular point, and not being specific recourse must be had to the principle, construction and interpretation. It says "Two-thirds of each House shall constitute quorum to do business." Is there anything specific about that? What is meant by "two thirds?" You must resort to construction and interpretation to ascertain the meaning, because it is dubious and uncertain. There is ambiguity about it, and you are therefor forced into constructions. And when you come to constructions, which will you adopt? That which declares a suicidal principle or that which declares a life-giving principle a preserving principle? In a court of justice this matter would not be permitted to be argued before any respectable judge for one minute Where have we ever heard of a court permit ting the law to be so construed as to pronounce its own destruction? This charter was made to exist, and not to be smothered throttled disemboweled. The laws are made for perpetuity, until repealed, and no construction will be allowed which would authorize the court to to decide that the constitution contains within itself a self-destroying principle. If, however, you construe this ambiguous passage to mean that two-thirds shall be two-thirds of one hundred in the other end of the Capitol, and two-thirds of fifty here, you put the entire government of Indiana in the hands of a factious minority, the government pipes out, and thus for want of breath there is no life in it. You at once impregnate this constitution with a self-destroying principle. It is in the hands of this gentleman, and this, (pointing to Mr, Bradley and Mr. Henderson) with a few of their comrades, to bring anarchy upon us. Now, I say that species of construction is violative of reason, and reason is the polar star to which we have recourse in the construction of public law.
In other parts of this constitution there are different passages. There is section twenty-five, relating to the passage of bills: "A majority of all the members elected to each house shall be necessary to pass every bill or joint resolution." How different the language in section twenty -five from section eleven. The construction I put upon section eleven is this: When it speaks of two-thirds it means two-thirds of the members elected and qualified in each House, and that preserves the House. & section twenty-five I am not at liberty to say that. I will concede (although not required by the case) that we must have twenty-six page: 259[View Page 259] Senators and fifty-one members of the House to pass a bill or joint resolution. We are limited by the expression in section twenty-five. We can not, by construction, get out of that, unjust as I think it is; but being in the constitution, I propose to abide by it. I desire to give life to this constutution and not to kill it. As far as section twenty-five prescribes the number to pass a bill, I accept it, and am bound by it. As regards section eleven I can not construe it the way these gentlemen desire without enggrafting a suicidal principle in this constitution, and that I cannot do, because all principles of legal construction forbid it. As I said before, it is a question of construction entirely- The language of section eleven being uncertain, the only way in which you can construe that in order to give life to the constitution and the government, and put a veto on every posibility of dissolution through faction, accession or rebellion, is to construe that section in connection with section twenty-five, and to mean "two -thirds of the members elected and qualified in each House shall constitute a quorum, provided they equal the majority of all elected." When we have come to that, let those withholding districts stay away. Perhaps it will be better for the State. And, after exhausting the principles of courtesy, we will proceed, as the constitutional General Assembly of Indiana, having a full quorum to do the legislative business of the State.
Mr. GRAY. Mr. President: I regret as much as any one the condition in which this Legislature finds itself, but I shall resort to no extraordinary means to accomplish anything not warranted by the Constitution. Now, I do not know as I clearly understand the Senator from Tippecanoe [Mr. Stein.] He seems to have argued a while upon one side of the question, and at the close of his speech upon the other side. I first understood him to hold clearly that we had a right to do business, and then that two-thirds of the qualified members could transact business. Now, I think there can be no doubt about what constitutes the Legislature of Indiana at all. I understand the Constitution of Indiana to limit the number of members"that the House shall not exceed 100 members, nor the Senate 50 members."
Mr. CHURCH interposing. Suppose the counties or districts which have, by the apportionment, one-third of the number, refuse to elect, or refuse to be represented here, must the business of the State stop there?
Mr. GRAY. Well, sir, I will answer the Senator. I propose to be governed by the organic act of the State, and I suppose the Senator from Porter [Mr. Church] proposes to do the same. And if he will show me any constitutional remedy by which we can escape that difficulty, I will be as ready to follow it as he. Now let him point it out. There are some things we can do, and some things we can not do. Among the latter, we can not legally legislate under the Constitution when we have no quorum.
Mr. ROBINSON, of Madison. At the commencement of the rebellion, suppose one-third of the counties in Indiana had seceded with their members, and left this body reduced below a quorum, should that overturn the Constitution?
Mr. GRAY. If the existence of the State of Indiana depended upon this Legislature doing certain business, I would be ready to do it. I believe as Daniel Webster said, that anything necessary to preserve the Constitution of the United States is in itself constitutional. But I do not think that crises has arisen yet. I do not look upon this as being very much of a revolution. I think these refractory members will get tired of that business; and then get through; and we can stand it pretty near as long as they can. I believe the ruling of the chair was entirely correct; because, if, I understand the resolution, it had no reference to compelling the attendance of absent members.
Mr. SCOTT (interposing.) That is the gentleman's construction of it.
Mr. GRAY. I think my construction is the correct one, and that the reading of the resolution will bear me out in it. It was to notify the Governer that these men who have been elected do not qualify. I say they are not absent members as long as they have not been sworn into office. If the resolution refers to the Senator from Parke, and one or two others who are absent and who did not resign, then the resolution is in order; but if it refers to-
Mr. BELLAMY (interrupting.) If there are no absent members is not this House competent to do business?
Mr. GRAY. No sir, [laughter] because I say your apportionment law has established the number of members which shall constitute this Legislature. Now I will ask the Senator from Switzerland [Mr. Bellamy] if he considers that these absent gentleman are members? He is a lawyer-I want him to say whether they are members or not.
Mr. BELLAMY. I do not know of any members being absent, except the two or three named.
Mr. GRAY. The resolution of the Senateor from Vigo [Mr. Scott] did not refer to that at all. I say you have no evidence before this body that anybody has been elected to seats here.
Mr. SCOTT (interposing.) That is what I wanted to find out.
Mr. GRAY. I say the Governor is no part of the Legislative branch of this government, and has no power to compel the attendance-
page: 260[View Page 260]Mr. FISHER (interrupting.) The object of that resolution is this: In the first place, it is well known to this body that the Governor has ordered elections in these districts. That has been published to the world. But now We come in and find that there has been nobody elected in these districts; and we wish to notify him of that fact.
Mr. GRAY. I will ask the Senator if he knows anything more about that than the Governor does? What evidence have you that the Governor has not all the knowledge about this question that you possess? I want to know what you know more than he knows about these men?
Mr. FISHER. I don't know anything about it; but I know they are not here to respond; and I want to notify the Governor of that we do know that they are not here.
Mr. GRAY. Then the Senator wants to notify the Governor of something he knows nothing about, or which the Governor knows as much about as he does. [Laughter.]
