IN SENATE.
MONDAY, April 12, 1869.The LIEUTENANT GOVERNOR took the chair at 2 o'clock P. M., pursuant to adjournment, and directed the reading of the journal of Saturday.
The Secretary's minutes having been read, the Senate roll and a list of the unrepresented Senatorial Districts were called, by direction of the Lieutenant Governor. When the Secretary reached the Districts of Grant, Blackford and Jay -
Mr. HENDERSON said: Mr President: the Senators from these counties are ready to be sworn in. The Senator from Jay is present and ready to come forward and take the oath.
The LIEUTENANT GOVERNOR. Sen page: 34[View Page 34]ators can come forward as their Districts are called
The list being completed, and no other Senator appearing -
Mr. HUEY was sworn in by the Lieutenant Governor.
The LIEUTENANT GOVERNOR. The Chair will lay before the Senate a communication from the Secretary of State, in response to a resolution adopted on Saturday last.
The communication having been read -
The LIEUTENANT GOVERNOR said: Including the Senator just sworn in, we have 27 Senators present.
Mr. HOOPER. As it is manifest that we have no quorum present, I desire to submit the following resolution:
WHEREAS, At the late regular session of the Forty-sixth General Assembly of the State of Indiana, seventeen Senators resigned their seats in this body and left it without a constitutional quorum to do business, thereby causing a vacancy in the Senate from the following Senatorial Districts, to wit:
- The county of Vanderburgh.
- The counties of Knox and Daviess.
- The counties of Pike, Dubois and Martin.
- The counties of Perry, Orange and Crawford.
- The counties of Washington and Harrison.
- The counties of Floyd and Clark.
- The counties of Ohio and Dearborn.
- The county of Franklin.
- The counties of Shelby and Bartholomew.
- The counties of Green and Owen.
- The counties of Clay and Sullivan.
- The county of Montgomery.
- The counties of Cass and Fulton.
- The counties of Huntington and Wells.
- The county of Allen.
AND, WHEREAS, The Governor did issue writs of election to the several counties of said Districts, and caused special elections to be held therein on the 23d day of March, 1869, to fill said vacancies;
AND, WHEREAS, Afterwards, to-wit, on the 22d day of March, in the year aforesaid, the Governor issued his proclamation summoning the members of the General Assembly to meet in special session in their respective Halls in the State House, at Indianapolis, at two o'clock P M, of Thursday, the 8th day of April, A. D. 1860, which proclamation reads as follows, to wit:
STATE OF INDIANA,
EXECUTIVE DEPARTMENT.
WHEREAS, The General Assembly of the State of Indiana, at its late regular session, failed to pass the necessary appropriations to carry on the State government and to meet the current expenses of the benevolent and other public instructions of the state, and by reason thereof the public welfare imperatively requires that said General Assembly should be convened in special session with the least practicable delay.
Therefore, I, Conrad Baker, Governor of the State of Indiana, do issue this proclamation convening the General Assembly of the State in special session, and summoning the members thereof to meet in their respective Halls of legislation in the State House at Indianapolis, at two o'clock P. M., of Thursday, the 8th day of April A D, 1869.
In witness whereof, I have hereunto subscribed my name and caused the seal of the State to be hereunto affixed at Indianapolis, this 22d day of March, A.D., 1869.
[L S]
CONRAD BAKER.
By the Governor.
M. F. A. HOFFMANN, Secretary of
State.
AND, WHEREAS, On the 8th day of April, 1869, in obedience to said proclamation, a majority of all the members of said General Assembly did meet in their respective Halls at 2 o'clock P M , of said day, and in the Senate, the Lieutenant Governor in the Chair, directed the Secretary of the last regular session, O M Wilson, to call the names of the Senators who had not resigned, and, upon said call, twenty six Senators answered to their names. Th Secretary then, by direction of the Lieutenant Governor called the several Districts, heretofore named, wherein vacancies had occurred by resignation, and no one answered, or presented credentials of election, from said Districts. The Senate then adjourned until the next day at two o'clock p. M., and in pursuance of said adjournment, again met at two o'clock P M of Friday, April 9, 1 69 when the same proceedings were had as to call of members and districts, as on the day previous, and with like result, except that twenty nine members answered to their names.
After which call, on motion, the Senate adjourned until the next day at nine o'clock A M, of Saturday, April 10th, 1869 when the same proceedings as those of the first day were again had as to calling of members and districts, and with like result, except that twenty-eight members were present, when, on motion, the Senate adjourned until two o'clock P M of said day; and in accordance with said adjournment again met in session at two o'clock, when the same proceedings as to calling of members and districts were again had with the same result, after which on motion, the Senate adjourned until the next day at two o'clock P M : and in pursuance of said adjournment, again met in session at two o'clock P M on Monday, April 12th, 1869, when the members and districts were again called, and still no one answered or presented credentials from said districts heretofore named wherein vacancies had occurred And
WHEREAS, The Secretary of State, at the request of this body has laid before us certified copies of the official returns of the several counties of the special election held therein for members to fill the vacancies in said districts, and it appears therefrom that the following persons were duly elected at said special elections, to fill said vacancies, to wit:
For the county of Vande burgh - Daniel Morgan.
For the counties of Knox and Daviess - W. S, Turner.
For the counties of Pike, Dubois and Martin - - Montgomery.
For the counties of Perry, Orange and Crawford - W. F Sherrod
For the counties of Washington and Harrison - George Donbo.
For the counties of Floyd and Clark - George V Howk.
For the counties of Ohio and Dearborn - Elijah J. Hoffman
For the county of Franklin - Thomas Gifford.
For the counties of Shelby and Bartholomew - Thomas G. Lee.
For the counties of Green and Owen - John Humphries
For the counties of Clay and Sullivan - James M. Hanna.
For the county of Montgomery - Archibald Johnson.
For the counties of Cass aad Fulton - Charles B Lasselle.
For the counties of Huntington and Wells - Wilson Smith.
For the county of Allen - Wm. W. Carson; and -
WHEREAS, It is notorious to this body that during the five days in which the foregoing enumerated proceedings were had, and said various calls of members and districts made, said members elect werein the city of Indianapolis, in and about the State House, many of them within the hearing of said calls, and all
page: 35[View Page 35]had knowledge thereof, yet during all said time they purposely and willingly neglected and refused to present their credentials and take the oath required of them by law to enable them to take their seats, thereby vacating the same and leaving the Senate without a quorum and unable to fully organize until said vacancies are filled; and
WHEREAS, The public welfare imperatively requires that the General Assembly should be fully organized with the least practicable delay and as such organization cannot be made until said vacancies are filled, therefore, in order to complete the organization of this Senate,
Resolved. That by purposely and willingly refusing to qualify and take their seats, said members elect have vacated the same and the President of the Senate is directed to notify the Governor that a vacancy has happened at the present session in the office of State Senator from each of the Senatorial Districts in the preamble hereto recited, by the said members elect refusing to qualify and take their seats.
Mr BRADLEY. I rise to a point of order, or I will say this: I would prefer that the resolution would be withdrawn for the present. I have an idea - which is very strong - that we will get along with the organization in a very short time; but if that is thrust in, the organization will be further delayed. I hope the Senator wil not press the resolution.
Mr FISHER (in his seat) How long shall we wait? Forty days and forty nights?
Mr FISHER (continuing) No sir, not forty days and forty nights. The point of order is that we can't, pass a resolution. The preamble is not - I shant say it is not true, but we have no right to declare a thing that we don't know whether it is true or not. We don't know that the men elected ever received notice of the proclamation. The Secretary of State, I see, returns that certain persons have been elected. Now we can officially take notice that the Secretary of State don't know who is elected. He can't know. He has no right to know. He can only receive notice of who received so many votes. He can't certify who is elected. Hence I say I would be glad if the Senator would not press that resolution. If he does, I think I can assure him that the organization will further be delayed.
Mr STEIN I would suggest to the Senator from Whitley, [Mr. Hooper] that the preamble requires some amendment. [He suggested the amendments - which are embodied in the resolution as printed above - with regard to the number of members responding to roll call at different times] For the honor of the Republican branch of the Senate it would be well to have the preamble set forth the facts as the Journal shows the facts to be.
The LIEUTENANT GOVERNOR This is a question not free from difficulty by any means. It seems to me - and I have thought considerably about this question, for I apprehended that it would arise - that after the Senate has exhausted its constitutional power in enforcing its constitutional right to compel the attendance of absent members, and arrives at the point where there are no absent members sufficient to make a quorum, then it would be in the power of the Senate to pass a resolution to take the next step to provide at some time for the organization of the body. And I do not know what the Senate could do, when it compels the attendance of all the members qualified and yet has no quo-runs, except to inform the Governor of the fact that they could not get members enough. There are vacant seats; they have forced the attendance of all qualified members and yet there is no quorum. It seems to me the next and only thing is to notify the Governor of that fact because it is not to be supposed that the Constitution requires the absurdity that we should stay here forty days without a quorum. Therefore, I think that the resolution is in order.
Mr. HOOPER. At the suggestion of the Senator from Tippecanoe, I will have the Secretary insert the proper number of members answering from day to day, as shown upon the journals of the Senate. And consider that as corrected now.
Mr. STEIN. It requires some further correction. I presume the Senator had better withdraw it and have it amended, as we propose to put this paper through. Inasmuch as it goes upon the record, and before the public, as an indication of our action, it would be well to have it correct.
Mr. HOOPER I will do so. I will withdraw it for the present.
Mr. WOLCOTT Mr President - Believing that the Legislature is now a duly constituted legislative body, in the absence of the members that have refused to qualify, I would like, if it is proper, to make a motion that we proceed to business. And I desire to discuss that question. The object of the people of the State of Indiana in establishing a State Government was, paramountly, the formation and maintainance of a State Government. All questions of details are subordinate and are to be construed with reference to the great paramount purpose - the establishment and maintainaace of Government. Then the Constitution and Laws of the State, by fair meaning and proper construction, can not but maintain the proposition I now state, and what nobody will deny, that the great and paramount purpose of the Constitution is to establish and maintain the Government. Then, notwithstanding the resignation of seventeen members in this body, although we thought we were disorganized, we never were, but were always a competent legislative body. The Constitution of the State, page: 36[View Page 36]in prescribing the number of members which shall constitute the Senate and House of Representatives, is silent, as to numbers. I prescribe the maximum but not the minimum, or intermediate number, which leaves that action to the Legislature itself. The Legislature, in the exercise of the powers delegated to it, has determined that the Senate shall consist of fifty and the House of Representatives of one hundred members. Now the word "shall" is a word that is used with various significance, but it is not so used in this Constitution, nor in the law. Were the law to read: "The Senate is to be composed of fifty members," it would answer the requirements of the Constitution, just as well as the present language, and more correctly express the true idea than does the word "shall," as it is considered. "Shall" does not mean that there must at all times be fifty members. Why do I arrive at this conclusion? Because the Constitution provides that there shall be a less number - it provides for vacancies, and it in no instance declares that the remaining members do not constitute a valid and legal legislative assembly. Otherwise we would always have to have the full number of fifty in this House, and one hundred if the other. It is the maximum number which is the complement. It nowhere requires that this number shall be full.
What is the language of the Constitution with reference to a quorum? It says that "two-thirds of each House shall constitute a quorum." Two thirds composed of what? An abstract number. I hold that we are bound to construe this with reference to the continuance of Government. How further, does a proper construction of the Constitution maintain this view? Does it say that, in the absence of members, we are to hold special elections?
Mr BRADLEY (interposing). Suppose forty were to resign, would two thirds of ten go on with business?
Mr WOLCOTT That is an absurd question to ask. There is no general proposition that cannot, be pushed to an extreme that would be impracticable I will admit that when, by resignation or other circumstances, the number should become small it would be proper to take some steps not incompatible with the Constitution. How ever small the number of members may be reduced to, I admit that propriety on the part of the remaining members would indicate that, they should adjourn, but I deny that when three, four or seventeen seats are vacant, when the great principle of representation is fully in force and recognized, that there should be an adjournment because of the vacancies. Take the present instance, for circumstances have something to do with -
Mr HOOPER interposed. Will the Senator give way. I will now offer this resolution for consideration. [The same as printed above. In addition to the amendment suggested by Mr Stein, Mr. Huey's district was struck out]
Mr WOLCOTT I will admit that the question would be somewhat, different were seventeen districts unrepresented by no fault of their's. But they are not represented because they refuse to come into his body. There is no accident overwhelming them. The majority are exercising no arbitrary power. It is an unreasonable thing for seventeen or any minority, willfully refusing to discharge their duties, or wilfully refusing to accept the rights and privileges they might enjoy, to prevent the majority from discharging their duties or exercising their rights and privileges. To do so would be a torturing construction of the Constitution, and in effect a defeat, of the purposes for which that instrument was made. I admit that the construction for which I contend is not the construction which has ordinarily obtained, that it is not the first time in this country, after long years, that new views and correct views of statutes and Constitutions have obtained Exigencies arise that demand critical examinations, and from these examinations new conclusions are arrived at.
Then the language of the Constitution in relation to a majority necessary to pass a bill says. "A majority of all the members elected to said House shall be necessary to pass every bill or joint resolution." It dont say a majority of fifty in this House and one hundred in the other, but a majority of members elected" Now who are members elected to this body? They are persons who have received the votes that enabled them to qualify, and who have qualified. Suppose by reason of some irregularity that should amount to illegality in some districts that there should be no election, or that the people were so apathetic or dissatisfied or for some reason they should refuse to go into an election, and but forty members were elected, would it require a majority of fifty to pass a bill? A majority of actual members is the language of the Constitution, and shall we torture the construction of this provision of the Constitution to make it mean different from what it reads, in order to destroy our own existence? It seems to me that we are called upon to do no such thing. But I have no disposition to prolong this discussion. I think the presentation of the points and a clear statement of them is sufficient to construe the whole argument.
page: 37[View Page 37]Mr HOOPER I would inquire whether my resolution has its place?
LIEUTENANT GOVERNOR requested Mr W c to send up his resolution in writing, deciding that it should be disposed of first.
Mr WOLCOTT. I will withdraw my motion for the time being.
Mr HOOPER I do not propose to enter into any discussion of the question presented by this resolution, to any extent whatever, because I submitted my views upon th question on Saturday. But it has been suggested by the Senator from Laporte (Mr Bradley) that this matter ought not now to be pressed, but that we ought to wait patiently. How long he would have us to wait he would not tell us.
Mr BRADLEY If the Senator will allow me I do not know exactly how long. I stated that I thought a resolution like this was impolitic. I have received information that the House is organized; and I suppose if that is done that the Senate will be organized, and I really hope the Senate will take no action upon this resolution I do not man the Senate. I mean this fraction of the Senate. I thought it impolitic to act in this way lest it might destroy the whole object of the organization of the House. Because if this body passes a resolution declaring the seats of certain Senators vacant, which I contend it has no right to do, the Governor may act upon it: - I don't believe he will, but he possibly may and if he does we destroy the General Assembly for the present. Hence I hope the Senator will not press his resolution.
Mr GREEN. I will ask if the Senator don't think this the most speedy way we can organize the Sentae?
Mr BRADLEY. I think not. I you will never organize it in that way.
Mr HOOPER, resuming, spoke in favor of the adoption of his resolution, though he was not specially desirous of pressing it to a vote to day. When he had concluded -
Mr BRADLEY seated objections to the ruling of the Lieutenant Governor on Saturday in entertaining Mr Craven's resolution and ruling out Mr Green's.
On motion by Mr SCOTT the further consideration of the resolution was postponed till to-morrow at 2 o'clock P. M.
Mr. WOLCOTT renewed his motion in the shape of resolution, and moved that it be made the special order for the same hour.
Tne LIEUTENANT GOVERNOR It Will be read for information.
Resolved, That inasmach as there is a quorum of all the members that are qualified under the Constitution as Senators present the President be and is hereby directed to proceed with the business of the Senate as the same now stands upon the calendar.
Mr. BRADLEY I object to that and raise the point of order -
The LIEUTENANT GOVERNOR I think the resolution is not to order.
Mr. SCOTT. I move that the districts be called where vacancies exist, and also the name of the Senator elect.
Mr. BRADLEY They will be here in a few minutes - they are not here yet. Sotto voce - I have sent for them [Laughter]
Subsequently - the Senators elect appearing in the chamber -
The LIEUTENANT GOVERNOR said: The Secretary will now call the districts with the names of the persons said to be elected from those districts, and Senators will come forward and present their credentials.
As their names were called, the newly elected Senators came forward to the area in front of the President's desk, in the following order:
- From the county of Vanderburgh - Daniel Morgan.
- From the counties of Knox and Daviess - W. S. Turner.
- From the counties of Pike, Dubois and Martin - W. H. Montgomery.
- From the counties of Perry, Orange and Crawford - W F Sherrod.
- From the counties of Washington and Harrison - George W Denbo.
- From the counties of Ohio and Dearborn - Elijah Huffman.
- From the county of Franklin - Thomas Gifford.
- From the counties of Green and Owen - John Humphries.
- From the counties of Clay and Sullivan - James M Hanna.
- From the county of Montgomery - Archibald Johnson.
- From the counties of Huntington and Wells - Wilson Smith.
The oath of office was administered by Hon. George H Chapman, Judge of the Marion Criminal Court.
A message from the House of Representatives announced the organization of that body.
Mr. FISHER offered the following:
Resolved That the officers and employes of the Senate during the late regular session, be continued during the special session unless hereafter otherwise ordered.
On motion by Mr. JOHNSON of Montgomery, the words "and employes" were struck out.
The resolution as amended was adopted.
Resolutions authorizing a joint committee to wait upon the Governor, informing the House of the organization of the Senate; and appointing a Committee on Rules, were adopted.
Mr. OCHMIG BIRD, Senator elect from the counties of Adams and Allen, appeared and was qualified by the Lieutenant Governor.
And then the Senate adjourned until three o'olock tomorrow.
