IN SENATE
SATURDAY April 10, 1869.The LIEUTENANT GOVERNOR, commanded order at 9:20 A M, and directed the reading of the Secretary's journal of yesterday's proceedings.
The Secretary's minutes having been read,
The LIEUTENANT GOVERNOR directed the Secretary to call the roll of Senators and read the names of the unrepresented districts.
The seventeen unrepresented districts having been called, and no response being heard -
The LIEUTENANT GOVERNOR said: Twenty-eight Senators answered to their names.
Mr. GREEN. Mr. President, I offer the following resolution:
Resolved, That the Secretary of State be requested to lay before this body, as soon as he can conveniently, a certified statement of the returns for the election of Senators in the districts declared vacant by resignation at the close of the last session of the General Assembly.
Mr BRADLEY. Mr. President, I rise the point of order. There is no body here to pass a resolution.
The LIEUTENANT GOVERNOR The point of order is sustained. No resolution can be passed and certified to unless there be two-thirds of the Senators present.
Mr HENDERSON Mr President, I move that we adjourn till Monday, at two o'clock P M.
The motion was rejected.
Mr GREEN Do I understand that the President holds the resolution to be out of order?
The LIEUTENANT GOVERNOR. Yes, sir.
Mr. GREEN. Then that question is not debatable, and I can only say as I stated here the other day, that we are tied up. While we have less than a quorum present, the Constitution provides that we may meet and adjourn from day to day, and compel the attendance of absent members. It is clear that we cannot pass any act in our present condition. But are we helpless? Is the Constitution itself its own destroyer? Then we must remain here and do but one solitary thing. Is it not legitimate that we should require into the cause of the delay of legislation in this body? Have we not the power to ascertain who are absent, that we may send for them? or to call upon the Secretary of State to know who have, prima facia, a right to seats here? I cannot for a moment see any objection to doing any thing that will aid us in organizing. Certainly we ought to know who the members elected are. And if there has been no election we ought to know it. It may be that we have jurisdiction over these men if there have been legal elections. As the Constitution provides, their term of office commences the day after, it may be that we have the power to send for and compel the attendance of these men. And if we have that power, ought we not to know who they are? and from what districts they come? I can not see any objection to the resolution, and I hope your honor will not rule so as to prevent its discussion.
The LIEUTENANT GOVERNOR. The Chair is not inclined to limit discussion; but it does seem to me that the provision of the Constitution is very clear, that when there is less than a quorum the only thing the Senate can do is to adjourn from day to day, and compel the attendance of absent members.
Mr CRAVENS If we have no power to do anything of that sort, under the strict and rigid construction of the Constitution, I would like to ask the Chair by what authority do you sit in that desk? The Constitution declares that the Lieutenant Governor shall be the presiding officer of the Senate, and if we have no Senate -
The LIEUTENANT GOVERNOR. The Constitution provides that the Lieutenant Governor shall organize the Senate.
Mr. CRAVENS. I cannot find that clause.
The LIEUTENANT GOVERNOR It amounts to the same thing. Until members are sworn in it is his duty to take the initiative.
Mr CRAVENS. I think there is but one clause ot the Constitution bearing upon the point, and than is that the Lieutenant Governor shall, by virtue of his office, be President of the Senate. He certainly cannot, by virtue of his office, be President of a body that is not a Senate, and as such by his rulings interpose obstructions to the organization of this body. It is only by virtue of his office as Lieutenant Governor that that officer presides over the Senate, and until there is a Senate he has no right in that chair. Nor has any body elected President of the Senate at any other time a right, to that seat: I have not, having been elected heretofore. These members might call some one to the Chair, or they might organize through another officer. It been customary for the Secretary of the body to organize the body; and until there is a Senate I hold that the Lieutenant Governor can not hold that chair. When there is a Senate he takes it, and nobody will object, but put the same rigid construction upon that clause of the Constitution that you put upon the other, and we are without a President until this body appoints some one to preside. I want to offer a resolution pretty much of the same page: 28[View Page 28]kind. It explains itself, and I will send it up now
The Secretary read as follows:
Resolved That the Secretary of State be and he is hereby requested to lay before this body whatever information may be on file in his office in respect to the special election, held on the 23rd day of March, 1869, to supply the vacancies in the General Assembly, occasioned by the resignation of the members thereof, on the 4th day of March, 1869, with a view to taking the necessary steps to compel the attendance of absent members.
Mr. CRAVENS What I desire is this: I want to confine myself strictly to the Constitution.
Mr. BRADLEY (interrupting), I rise to a question of order
Mr CRAVENS (continuing) While I hold the floor the Senator can not rise to a point of order. When I state the purpose of the resolution he can make his point of order.
Mr. BRADLEY (interrupting) I insist upon my point of order
Mr. CRAVENS (continuing) I want to call the attention of the Chair to that clause of the constitution under which the Chair has been acting: "Two thirds of each House shall constitute a quorum to do business, but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members" This resolution expresses clearly the object it has in view. We can not move to compel the attendance of absent members because we do not know what members are elected. We are tied hand and foot. The firs step is to ascertain whether we have members. It is a rule of law that when the law requires certain things to be done we must presume that they have been done. We know that under the proclamation of the Governor by virtue of law these elections were ordered. We presume the elections were held and that members were elected, but we do not know the fact I want to know it officially, and have that information sent here by the proper officer I want to ascertain whether or not there have been elections held, and if there have been there are members elected to this body who are not here; and I want to take the steps to compel their attendance. Some say they are not members, although elected I say the Constitution upon which we are acting recognizes the men elected as members of this body in that clause of the Constitution where it makes the provision that Senators and Representatives elect shall be entirely free from civil process during the session of the General Assembly and for fifteen days before the commencement thereof. That is a constitutional provision which clearly recognizes them as members of this body. They say they are not members because they have not qualified I don't care whether they have or not to all intents and purposes they are members and the mere swearing to support the Constitution of the State and the Constitution of the United States, is a mere incident to the fact. If they are members, I want them brought in, and, as far as my voice will go, I am for having it done. If necessary to call in the entire power of the State, it should be done. As representatives here we stand in the attitude of a population of two millions in numbers, being held at bay, and being restrained from doing whatever is necessary for the salvation and welfare of the State by seventeen men who ought to be in this body. What else do I want to do? If they are not members I want to put a legitimate construction on the construction that will authorize us as a body to go an on and transact the business of the State. There is no use of meeting here day after day and doing nothing. There is no use of being met at the threshold of every proposition with the cry: It is out of order. Under what rule? We have no body of rules, as the President decided yesterday. And how can anything be out of order here unless it conflicts with the constitution? We are not proposing to do any legislative business until we determine these preliminary questions. If there are members absent, then our duty is clear under the constitution that we shall compel an attendance in this body.
Mr HOOPER Mr President, I apprehend that, perhaps, the first question we ought to decide this morning is whether we will now, in open Senate, determine upon a policy we will pursue, or whether we had better adjourn and consult in a different manner upon this question. However, as it seems to be in order to present views on the question, I will submit a suggestion or two, as to what I consider to be our situation at this time. Now, I think the Lieutenant Governor is legitimately in that Chair. There is no question about that in my mind; and I will not stop to discuss it.
Mr. CRAVENS interposing I only raised that point on the ruling of the Chair, that this is not a Senate. And, of course, if that is true, the Lieutenant Governor could not be our presiding officer. Some years ago that question was raised, whether or not the Lieutenant Governor has the power to preside over a body that was not a Senate, which created quite a difficulty at that time, and was decided against
Mr HOOPER, continuing: We must always remember, in considering this question, that for the purpose of organizing a legislative body, we inherently possess certain powers and rights, that can not be page: 29[View Page 29]taken from us. It has always been usage to do a certain class of business that is necessary, in order to complete the organization. It is not necessary, in order to employ the organization of a legislative body, that there shall, in the first instance, be present, what is recognized by the Constitution as a quorum; for, I repeat, you will find that, it has been the uniform practice to do a certain class of business absolutely essential to an organization. And I believe there are such acts which we can do.
As I said before, I apprehend the simple question is whether we shall adjourn and consider this matter in another way or discuss and determine it now, for I believe the time is come when we ought to act. I believe we have waited long enough on these men, who are revolutionary in their attempts. I undertake to say, and I believe the authorities sustain me in the assertion that in sixteen or seventeen Senatorial districts there are to day vacancies. They have created vacancies by refusing to come in and qualify. That, I undertake to say is one way by which vacancies can be brought about. If the Senate will bear with me a moment I will refer to a work regarded by all of us, I suppose, as good authority. It is, Cushing. Here is what he says: "Vacancies may occur in a legislative body in consequence of death, removal, refusal to qualify, resignation, expulsion, or disqualification of members, or of their return or election being vacated by the assembly" That, in my judgment, is the precise situation of this General Assembly today, both in the Senate and the House. From each one of these districts refusing to qualify, there are vacancies existing, and our duty is plain, simple, and direct. Where vacancies occur during a session of the General Assembly, it is the duty of the presiding officer of each house to certify that fact to the Governor, and that is the end of our duty. Then a duty devolves upon the Governor, and that, I apprehend, is to issue writs of elections. Whether vacancies exist or not, is a matter competent for this House, or the other House, to determine for itself. That is the only principle acted upon since the organization of Parliament
In England, the House of Commons has always regarded the right of determining upon the existence of vacancies among its members and of taking measures to fill them, as essential to its free and independent existence; and has consequently asserted and maintained it, as a most important and undoubted privilege, resting upon the same foundation with the right of determining upon the election and return of its members. - Lex Parliamentaria Americana p 185
That is one of the rights which inherently exists in legislative bodies: as well to determine upon existing vacancies, as to provide for filling vacancies. That is as much the law of the State as if enacted in our own statutes. The plain wording of the Constitution itself simply affirms this right; for it gives to us the power necessary for a free and independent legislative body. It is our duty, plain and direct, simply to certify the fact of existing vacancies to the Governor
I hope the Senate will indulge me a little further in these references.
In this country, writs of election to fill vacancies are either issued directly by the Assemblies themselves, or, on their authority, by the Governor. But there are various constitutional and statutory provisions, relating to filling vacancies, which in some States, supercede - in others, extend - and, in others again, are su[?]uidiary to - the principle which has just been stated, namely, that it is the right of a legislative assemby to determine upon the existence of v cancus among its members, and to take measures to fill them - Lex Parl Americana pp 187, 188
That is the principle recognized all the way through. Now, our statute provides, that when a vacancy occurs during the session, it is the duty of the residing officer to certify that fact to the Governor. What has been the practice in the House of Congress? Simply, when the fact becomes notorious, is generally understood, the Speaker has been in the habit of issuing writs of election. Suppose a member has deceased, how does the Chair determine that fact? He sees that the seat is vacant. It is notorious that such is the fact; and it, would be his duty simply to certify that fact to the Governor; and then the duty of the Governor is plain. How is it now? Here is evidence before us that these seats are vacant. It is notorious - as notorious as could be that of the decease of any member. And it is notorious as to why these seats are vacant. Simply because members have refused to come in and qualify. We have waited a sufficient length of time. We know it is for in consequence of sickness or delay in travel; but it is simply notorious that their seats are vacant because they have refused to come in and qualify, therefore it is the duty of the presiding officer of either House to certify this fact to the Governor. It can not be said that we can not, consider the question because we have not two-thirds of all the members here, because this is a right inherent in this body in order to perfect its organization; and it is the duty of the presiding officer, in my judgment to certify this fact, up. And now, the only remaining question, in my judgment, is whether we should determine upon that e of action now, or whether we should adjourn and consult with the members in the other end of the capitol. I will not make a motion to adjourn, because other Senators may desire to express their views upon this question; and it would hardly be page: 30[View Page 30]proper after indulging in such extended remarks myself.
Mr. BRADLEY Mr President, I do not, intend to discuss this question at the time, but I desire to correct some positions taken by the Senator from Whitley [Mr Hooper]. He stated from Cushing's Manual the causes or modes by which vacancies occur more specific than I can state them. There are but four ways in which a vacancy occurs; first, by expiration of the term of office; second, by the death of the incumbent; third, by resignation of the incumbent; and fourth, by forfeiture. But a forfeiture must be declared by a court of justice or the legislative branch to which he belongs. He may forfeit his office by non usage, by misconduct, by removal from the State or District, but before that vacancy exists that vacancy must be declared by competent authority. Then let us go to the Constitution to find that authority.
But the Senator says certain powers are inherent in the Senate. I deny it. I insist that the Senate has no inherent power. The power is inherent in the people and not in the Senate or House of Representatives. The Constitution is not a grant of power, as contended by my friend the Senator from Tippecanoe. It is simply a distribution of powers and a limitation upon their exercise. The Government is divided into three departments - the executive, the legislative and the judicial. The legislative department has legislative power and the mode of administering or exercising that is limited to the Constitution; it shall do no business except legislative, and the Constitution expressly says it shall do no business unless there is a quorum present with the single exception that it may adjourn from day to day and send for absentees. Now what do they propose to send for? Absent members? No sir. They propose to send to the Secretary of State. On Thursday - the first day of the session - they proposed to send to the Governor. Now I insist until we become a Senate, and until the other branch becomes a House, we have no right nor no power to communicate with the Governor, Secretary of State or anybody else. We can not make members; we can not make vacancies. We must accept the situation. Senators talk about revolution. The plan of proceeding which they propose to adopt is revolutionary and nothing else. They wish to depart from the provisions of the Constitution, break down its safeguards and act as a mob and not as a legislative body of Indiana. I protest against that.
Mr. ROBINSON, of Madison, I desire to ask the Senator a question. Are there any absent members?
Mr. BRADLEY. There is one.
Mr. ROBINSON, of Madison. Who is it?
Mr. BRADLEY. Mr Huthes
Mr. ROBINSON of Madison. And Mr. Taggart and Mr. Colley.
Mr. BRADLEY. I presume so. You can send for them.
Mr ROBINSON, of Madison, Are there any others?
Mr BRADLEY. I do not know whether there are or not.
Mr. ROBINSON, of Madison. Then the members are all present.
Mr. BRADLEY. It was not my purpose to enter into a discussion of these things because it will result in no good. Now I am not disposed to stir up strife, I wish to allay it as far as it is in my power. I had hoped that there would have been a quorum here before this and I still hope that there will be; and I almost promise that, if there is nor a quorum present on Monday I will make no further steps in regard to this matter.
Mr. BELLAMY, interposing. I will ask the Senator if "almost," with him, is stronger than "perhaps?"
Mr. BRADLEY I do not wish to answer discourteously. There is a time when forbearance ceases to be a virtue; and, if we can not organize next Monday, I will vacate my seat and return to my constituents the trust they have reposed in me, and let the Legislature work out its own salvation.
Mr CHURCH. The question by the Senator over yonder (Mr Robinson of Madison) is one in point: Are there any absent members? If there are not, what do we meet here day after day for? What is the use of it? If there are absent, members, let us send for them. A member states here, that he does not know whether there are absent members or not. Shall we sit here forty days and not know, and not send to the Secretary of State for information?
Mr. BRADLEY interposed: Does the Secretary of State know any better than we?
Mr. CHURCH. I take it for granted, that we have the right to send anywhere. I care not where the information may come from, It is our business to be diligent, and use every effort to know whether or not there are members present. We act foolishly to come here day after day, when we do not know whether there are absent members or not. The Senator from Laporte meets his friends in caucus, I presume, for the purpose of determining whether they shall take their seats or not, And, by the daily papers, I take it, there is 25 against to 23 for coming in. And yet, we are to meet here day after day, not knowing whether there are any absent members or not. page: 31[View Page 31]Shall we take any steps to find out whether there are any or not? No; that is unconstitutional. The Senator says we meet here for the purpose of breaking down the Constitution! That is a pretty sentiment to come from a class of men hanging outside of these Halls with credentials as Senators in their pockets
Mr BRADLEY, (interrupting) That remark did not come from outside this Chamber.
Mr. CHURCH. I say it comes from one who knows that there are men hanging round with credentials in their pockets - men of his own party refusing to come in. He say as we propose to break down the Constitution. Do we? The Constitution is in the way of an organization then? He says we propose to act as a mob. And this coming from a class of men who scatter in every direction the moment the gavel is sounded from that desk. I say, the question is the one I started out with: Are there any absent members? If we have no power to inquire, we have less power than I ever presumed. If there are absent members, we have the power to send for them. And that is all there is in it, as I can see.
Mr. SCOTT. One of the difficulties in this matter is, that we have no precedence upon the subject. The General Assembly has never been left with such a question before it. We have been in the habit of construing these things one way, because there has been no particular reason for a different construction. I wish to call the attention of the Chair to the 25th section of the Constitution of Indiana. And I insist, under the authority of that section, that the resolution offered this morning is in order. "A majority of all the members elected to each House shall be necessary to pass every bill or joint resolution" This is not a joint resolution. It is simply a resolution of this body. There is another section of this Constitution which I wish to call the attention of the Chair to. It is the sixteenth section: "Each House shall have all powers necessary for a branch of the legislative department of a free and independent State" Now, sir, we have been in the habit of construing that as authority after the House is organized - after there was a quorum present, according to our construction of the Constitution, heretofore. I do not understand by that construction, that any harm can be done to the State; but, I do understand, and firmly believe that, that clause of the Constitution gives to us that are elected and qualified, the power to preserve the life of this State and the legislative power of the State. And when the gentleman insists that all the powers of this Government are inherent in the people, I agree with him upon that point, and I do insist that we are here representing that people - seeking their rights here, and attempting to preserve the legislative power of the State, and preventing a minority from destroying it. Now, sir, if I am correct upon that subject, that a resolution of this body is in order which is not a joint resolution, and may be passed by this body, when it is not required to be passed by the other branch in this Capital, and that this House has the necessary power, as a branch of the legislative department, to preserve its own life, then I understand that the resolution is in order, for the reason that it proposes to perfect the organization of this House. How does it propose to perfect it? Simply, to ascertain from the Secretary of State the only legitimate mode pointed out by the Constitution where it can be known what persons have been elected. Where else can we be informed whether the writs of election have been respected by the people? We may know it as individuals. We may feel it in our bones to be true. But we do not know it as Senators upon this floor. And I know of no other way, except by sending to the State Department to ascertain whether returns have been made there. Now, sir, that is legitimate to the purpose for which we are acting. It is a matter looking to our own life and preservation. Suppose we send there, and find that no returns have been placed upon the files - that there are no persons elected - what is the duty of this body? To fill these vacancies in the legitimate mode pointed out by the Constitution. Then writs of election must be reissued. But, if there have been elections, and these men have been elected, it is for us to take such action as may be warranted, either to declare their seats vacant or send for them I believe we have the power to do either; and I don't care which we do. When we have official information before us, I am willing to act. I am determined, as a Senator, that the life of the State shall not be destroyed by this faction. I am willing to call in the power of the State to compel the attendance of these men, or obtain official information that they will return the trusts reposed in them by the people.
Mr. KINLEY. The only strange thing to me is, that we hesitate a moment in our course. We are either a Senate or not a Senate. It is true the constitution provides that the Senate shall not exceed fifty members, and our law provides that the State shall be divided into fifty Senatorial districts, and it also provides that the State shall be divided into one hundred districts for representation purposes. It says, in effect, that there shall be one hundred members in the House of Representatives. If that is to be construed literally, then page: 32[View Page 32]ninety-nine members would not be a House. A single member resigning would destroy the House, if the law is to be considered literally. The constitution provides that a majority of the members elected can enact a law or pass a joint resolution. If these gentlemen who stand outside of the bar are not members, then they are no members elected, and the thirty or so members that are here are the Senate, and we can transact any business we choose.
The LIEUTENANT GOVERNOR. If the Senator will allow me. The constitution also provide that it shall take two thirds of each House to constitute a quorum to do business; and with less than that number only certain acts can be done. On that ground the Chair has based its decision.
Mr. KINLEY. But what is a Senate? The members elected here - the thirty, or so - and we are therefore able to transact business. It is true that we have no official notice of the fact that these gentleman standing outside of the bar are members elect. But it is notorious that they have been elected and are refusing to qualify; and that is precisely one of the modes by which a seat can be made vacant. If you, a Lieutenant Governor, had come up here and refused to qualify, that act would vacate your seat, and authorize this Senate to appoint a Lieutenant Governor in your place. If the Governor had refused to qualify, it would have virtually vacated his office. And if a County Treasurer refused to qualify it would vacate his office. And so the offices of every one of these gentlemen were virtually vacated. And it is certainly within the power of the Senate not to send for them, as they have already ceased to be members, or rather, never have been members. There are so many vacancies; and it should be so construed.
Mr. CRAVENS Would it be competent for this body to declare their seats vacant, when we have no official knowledge of the fact that there have been elections? The resolution before the Senate proposes to fortify us in that particular - to bring out the information.
Mr KINLEY I believe it is a principle of law, that the statute may be plead in evidence. It is law.
Mr. CRAVENS. Suppose, without information, we should send for these men, and find the men whom we supposed elected, were not members; what would our condition then be?
Mr KINLEY. Our condition would be simply that of arresting the wrong men.
Mr. BRADLEY I would ask the Senator if we have the power to send for any person until be becomes a member?
Mr. KINLEY. That is precisely the point I make; that they are not members. The very fact that they stay around this hall and refuse to qualify, in my opinion makes them cease to be members.
Mr. CHURCH. I desire to ask the Senator from Laporte, whether these persons have been privileged from arrest for a certain number of days by reason of their having been elected?
Mr BRADLEY That is a hard question. I do not know that any of them have been arrested.
Mr CHURCH Presuming that they have, what would the Senator say?
Mr BRADLEY. I do not know anything about it.
Mr. CHURCH. Then they are enjoying privileges by reason of their election, and refusing to perform the duties they owe to the State.
Mr KINLEY. There is certainly a time when they cease to be members.
Mr. BRADLEY They will cease to be members whenever we get a sufficient number of members to do business and declare their seats vacant.
Mr. KINLEY. Haw many members are sufficient?
Mr. BRADLEY. Thirty four.
Mr. KINLEY. How do you make that out?
Mr. BRADLEY. By the Constitution of the State.
Mr. KINLEY What article?
Mr. BRADLEY Section eleven of article four.
Mr KINLEY I assure you, Mr. President, there is not one word in the Constitution about it [Laughter.] The Constitution says the Senate shall not exceed fifty members.
After further debate, in which Messrs. Gray, Stein, Hooper, Rice, Robinson, of Madison, Fisher, Church, Bradley, and Cravens took part, the resolution submitted by Mr. Cravens was adopted - yeas 28,nays 2
And then -
On motion of Mr CRAVENS, the Senate took a recess till 2 1/2 o'clock.
AFTERNOON SESSION.
The Lt. Governor resumed and ordered the roll called and a call of the unrepresented districts. Twenty-four Senators answered
Mr WOLCOTT As the Senate has now no business before it, I move we adjourn till Monday 2 o'clock.
Mr. CRAVENS I would like to know before we adjourn whether there has been any response from the Secretary of State.
The LIEUTENANT GOVERNOR. The Secretary informs me that the resolution has been sent; but no response has been made.
And then the Senate adjourned.
