SUPPLEMENTARY
TO
THE BREVIER LEGISLATIVE REPORTS.
VOLUME ELEVENTH
Education of Colored Children,----Fifteenth Amendment to
the
Constitution of the United States,
IN SENATE.
WEDNESDAY, May 12, 1869.[IN CONTINUATION-p. 213. FIRST COLUMN.]
Mr. SCOTT moved to take up the bill, [H. R. 113.] A bill to render taxation for common school purposes uniform, and to provide for the education of the colored children of the State.
Mr. CRAVENS moved to amend by inserting the Specific Appropriation bill [H. R. 311.]
Mr. STEIN moved to substitute the Constitutional Amendment.
Mr. BALLAMY moved to lay these amendments on the table.
Mr. WOLCOTT demanded a division of the question.
The substitute [Mr. Stein's] was laid on the table by yeas 32, nays 10as follows:
YEAS - Messrs. Audrews, Bellamy, Bird, Bradley, Carson, Case, CaAen, Church, Denbo, Elliott, Fosdick, Gifford, Gray, Hadley, Hanna, Henderson, Huey, Huffman, Humphreys, Jaquess, Johnson of Spencer, Laselle, Lee, Montgomery, Morgan, Rice, Robinson of Decature, Scott, Sherrod, Taggart, Wolcott and Wood - 32.
NAYS-Messrs. Beardsley, Cravens, Fisher, Green, Hamilton, Hess, Hooper, Kinley, Reynolds and Stein-10.
Pending the roll call-
Mr. CRAVENS said he would vote "no" for the reason that the Senate has already taken up the Constitutional Amendment question and postponed it.
Mr. FISHER when his name was called, in explanation of his vote said: I shall vote against laying the Constitutional Amendment question on the table and in favor of taking it up with the view of moving for its postponement till Friday. I know it is neccessary after the resolution adopted the other day that we should take up this question, for it is not now postponed till Friday. I vote "no."
Mr. FOSDICK in explanation of his vote, when his name was called said: I see no necessity for taking this up and postponing it till Friday. It is generally understood by the majority that there is an agreement to postpone it, and it as lies on the table it can be taken up Friday as well as to-day, and for that reason I vote to lay on the table. I vote "aye."
Mr. GIFFORD, when his name was called, said: For the same reason I vote "aye."
Mr. HAMILTON, when his name was called, said: I voted by yeas and nays pledging myself to defer the consideration of this question till Friday, and I want it distinctly understood that I vote against laying it on the table with a view of carrying out our arrangement.
Mr. HOOPER, in explanation of his vote, when his name was called said: I desire to say in explanation that I do not consider that there is a contract out here by which there is an agreement to postpone this subject to a given day. I know it is true that at a certain caucus it was concluded that they would postpone it, but there was no contract or agreement-it was our own voluntary action.
Mr. FISHER (interposing.) I predicated the contract upon the fact that the Senate has passed a resolution to that effect.
Mr. HAMILTON (in his seat.) Under the yeas and nays.
Mr. HOOPER. That I apprehend to be binding only upon those who voted in the affirmative. I consider myself at liberty to vote to take it up at any time. I have been
page: 389[View Page 389]ufactures, and it is these that make the prosperity of a city. The true policy is to offer every inducement to bring capital from other points, for can it be doubted that its influence in building up manufactures and promoting commerce and business is of far more value than the exercise of the right to tax it for municipal purposes?
In point of fact a large portion of the stock in our Banks is owned by persons who do not jive in the city where the Bank is situated. Take Indianapolis as an'example: There are in two Banks alone $350,000 of stock owned by persons who live in the counties of Delaware, Dearborn, Shelby, Jefferson, Scott, Clark, Washington, Knox, and elsewhere outside of the corporation of Indianapolis.
Now this stock is personal property, and instead of being taxed where the stockholder lives, like other personal property, it is all now taxed for State, county, school and township purposes Li Marion county, and all goes into the treasury of that county and for her exclusive benefit.
Not being satisfied with making these nonresident stockholders pay tribute to Marion county and to the schools of Indianapolis, it is now proposed to go a step further, and make them pay such additional sums as may suit the whims and caprices of the Common Council of the city. This Council can levy taxes for a thousand purposes which the owners of houses and lots can well afford to pay, because the expenditure of the money for city improvements may greatly add to the value of their properly, but will it, to the same extent, if at all, add to the value of naked capital invested in a National Bank, especially by a non-resident?
Is the mere protection of the fire department and police not more than compensated by the benefit which the use of the capital is to the business of the city, and especially when it is considered that the Banks have, at their own expense, provided against fires by procuring fireproof vaults and safes, and in many instances, as in Indianapolis, employ and pay their own police? Besides, tax is now paid, under the present law, upon all the stock of the Banks, no matter where the stockholder lives, to build school houses and support schools in the city where the Bank is situated.
But even admitting it to be right and proper for incorporated cities and towns to levy a tax upon the shares of National Bank stock for mere municipal purposes, the grave and vital question remains to be considered whether the Constitution and laws do not preclude it from being done in this State.
The Fourth Section of the Eleventh Article of our Constitution authorises the General Assembly to establish a Bank, with branches.
By virtue of this authority the General Assembly, on the 3d day of March, 1855, chartered a Bank for twenty years from the date of its organization, with an express provision that said Charter should not be altered or amended without the consent of the President and directors of said Bank. - See Sec. XCI.
The 15th Section of this Bank Charter reads as follows:
The Capital Stock of said Bank shall be subject to the same rate of taxation for State and County purposes as the property or stock of other monied corporations, and the real estate and other property of said Bank and branches situated in any city or town shall be taxable for municipal purposes in the same manner as other property so situated, but the Capital Stock of said Bank or Branches shall not be taxable for municipal purposes.
And the latter clause of this Section, that "the Capital Stock of said Bank and brandies shall not be taxed for municipal purposes," has been declared to be constitutional by the Supreme Court of Indiana, in several cases.-11 Ind., 139.-16 Ind., 105.17-Ind., 48.
The Act of Congress creating National Banks authorizes their taxation under State laws, but with an express provision
That the tax so imposed under the laws of any State upon the Shares of any of the associations authorized by this Act shall not exceed the rate imposed upon the shares in any of the Banks organized under the authority of the State where such association is located.
It follows clearly that if the State cannot authorize the taxation of the Stock of the Bank of the State for municipal purposes, it cannot tax the Stock of National Banks. It is evident that the object of Congress was to place National Banks upon a footing as favorable in relation to taxation "as any of the Banks organized under the authority of the State where such association is located." This language is too plain to admit of any question. If it is not right it is the fault of Congress, and Congress can apply the remedy by repealing the restriction.
The Bank of the State having a legal existence under its Charter, which Charter forbids taxation for municipal purposes, and no change of said Charter having been consented to by its President and Directors, it follows that this Legislature has no power to impose municipal taxation upon its Stock, nor has it any power to impose such tax upon the shares of National Bank stock, for the reasons already stated.
The Committee therefore report back the bill, with recommendation that it do not pass.
THOMAS N. RICE,
JAMES M. HANNA,
MILTON S. ROBINSON,
GEORGE V. HOWK,
JOHN A. STEIN,
HARVEY D.
SCOTT.
Mr. HANNA in behalf of himself and Mr. Howk, submitted the following supplemental report:
page: 390[View Page 390]Mr. PRESIDENT:
The undersigned would state that two questions present themselves upon all propositions submitted to a Legislative body for action.
First. As to the authority to legislate in the manner asked upon the given subject.
Second. Conceding the authority, then as to the policy or impolicy of the exercise of that right.
The Charter of the Bank of the State is peculiar in this; that it provides sec. 79, that "the capital stock of the Bank and branches shall be divided into shares of fifty dollars each" and then in the 15th section: "That the real and personal property but not the capital stock, shall be subject to assessment for city purposes." How can a distinction in this particular instance be drawn between the share and capital stock. That distinction must be drawn as to this Charter or else an official decision of the highest courts running through many years must provide to exempt the taxation of the shares of capital stock of the Bank of the State for city purposes. As the law of Congress under which the National Banks were organized prohibits the State from discriminating in taxation against such Banks; that is in levying taxes upon them, which cannot under the laws of the State be levied upon State Banks, it would seem to follow that the remedy is with Congress in reforming the laws of the States upon that point.
As this first question meets us in this shape at the threshhold it is clearly unnecessary for us to discuss the second; and we have not therefore examined as to the questions discussed by the Committee on that point. It is needless for the undersigned to say what their views are upon the abstract question of equality of taxation of all kinds of property. We suppose it is well known, and in joining in the majority report we did so solely with the reference to the legal question involved.
Signed
J. M. HANNA,
G. V. HOWK.
Mr. CAVIN, as the minority of the Judiciary Committee, submitted the following report:
Mr. PRESIDENT: The undersigned a minority of the Judicial Committee to whom was referred House Bill No. 170, viz:
A bill "to provide for the assessment and collection of taxes for mnnicipal purposes on the shares of stock owned in Banks and Banking associations doing business in this State," has given the same the best consideration he could in the short time permitted and now respectfully submits this minority report.
The bill proposes "Sec. 1. That the Shares of Capital Stock owned or held by any person or body corporate, in any Bank or Banking Association chartered or organized. &c., under the laws of this State or of the United States, (including the Bank of the State of Indiana and its several branches and National Banks,&c., shall be taxed &c., for municipal purposes," &c.
The object is to subject National Bank Stock to city taxation.
To render property liable to taxation requires affirmative legislation-that the power be conferred by the Constitution or laws. This affirmative provision is to be found in our Constitution, sec. 1 art. 10:
The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation and shall prescribe such regulations as shall secure a just valuation for taxation of all property both real and personal excepting such only for municipal, educational, literary, scientific, religious or charitable purposes as may be especially exempted by law.
No property then under this section is exempt from taxation, miles the Legislature has failed to provide a uniform and equal rate of taxation, or else falling within some of the Constitutional exceptions. In addition a law has been enacted specially exempting it Or unless some other section of the Constitution authorizes it.
The National Banks claim that their stock is not taxable for municipal purposes and to make good the claim as it clearly does not fall within the permitted exemptions of section 1, article 10, it must be shown that some other clause in the Constitution permits it, or else that the Legislature has not provided for their taxation.
In the act of Congress (National Bank law) approved June 3, 1864, in Sec. 41, it is enacted as follows: "Provided further, That the tax so imposed under the laws of any State upon the shares of any of the Associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the Banks organized under authority of the State where such Association is located."
The Act Chartering the State Bank which passed both Houset of the General Assembly March 3, 1855, over the Governor's veto, sec. 1, G. & H. p. 142, contains the following provision: "Sec. 15. The Capital Stock of said Bank shall be subject to the same rate of taxation for State and county purposes as the property or stock of other monied corporations, and the real estate and other property of said Bank and branches situated in any city or town shall be taxable for municipal purposes in the same manner as other property so situated; but the Capital Stock of said Bank or branches shall not be taxable for municipal purposes."
As the question whether the National Bank Stocks can be taxed finally hinges upon the force and Constitutionality of this section it will become necessary to examine the decisions upon the subject.
Sec. 1, Art. 10 has already been recited and
page: 391[View Page 391]requires first in hard and general terms that the General Assembly shall provide for a uniform and equal rate of assessment and taxation and then permits certain exceptions.
Although the State Banks do not fall within these exceptions and although the Legislature has not assumed to "specially exempt" them, as such exceptions, yet Sec. 15, of the Bank law does specially exempt them and the Supreme Court as reported in 11th Indiana p. 139, decide that sec. 15. is Constitutional and does prevent cities from taxing the Capital Stock of State Banks-that the Constitution expressly authorized the Legislature to Charter a Bank with branches and that such a grant unqualified carried with it the power to fix the conditions upon and under which the corporations might exist and that one of these conditions might be an enlargement or curtailment of the right to tax and that the power to make such grant or charter by the Legislature of Indiana was only controlled by the express limitations of the Constitution and that although there were limitations, yet there were none upon the power of taxation, and hence that subject was under the unlimited control of the Legislature and was independent of sec. 1, art. 10; and hence the Legislature might by the charter have relieved the State Banks of all taxation even for State and county purposes, or might have taxed them more than other property - that their existence being authorized as a special and independent creature of another clause of the Constitution and that they do not come under the rule of uniformity and equality and the Court go further and decide that sec. 1, art, 10; does not refer to municipal taxation so that the Legislature might exempt any property from municipal taxation and the Court refers to the fact that the Constitution of 1816, authorized the Legislature to Charter State Banks, and that such a charter was granted Jan. 20, 1834, and that sec. 15 of that Charter, and sec. 5, of an amendment thereto, of Feb. 6, 1841, made certain exemptions from taxation and that the Supreme Court in 7th Black, 393 and 395, and 6 Black. 349 and 3 Ind. 43, had decided that these exemptions were valid but it should be remembered that the Constitution of 1816, did not contain the clause requiring uniform and equal taxation contained in that of 1851, and that in the decisions refered to no constitutional question was discussed or decided.
A later decision, however, in 27 Ind. p. 223 decides that "this section of the Constitution, (viz. sec. 1, art. 10,) is applicable to and furnishes the governing principles for all laws authorizing taxes to be levied either for State, county, township or corporation purposes: in effect, annulling 11 Ind. 139 on this point. This would bring municipal taxation under the provision of art 10, and would settle the question that sec. 15 of the Bank law, and thus remove the only obstacle to municipal taxation of Bank stocks; but a later decision 27 Ind p. 333, does not seem to recognize the decision on page 223 as going so far.
In 23 Ind. p. 331, is a decision that the city of Madison could not tax the capital stock of a Bank organized under the General Banking Law of 1852, bat upon a different ground, viz: that United States Bonds could not be taxed and that as the "capital stock" consisted of these bonds, therefore the capital stock could not be taxed.
This decision has also been annulled, 27 Ind. 341, and by the United States Supreme Court in two cases in which it is decided "that a tax upon the shares is not a tax upon the property belonging to the corporation," and in the same volume p. 338 it is decided that "The shares of National Banks are, by the act of Congress authorizing such associations placed within the taxing power of the States." But that "under existing laws the shares of National Banks cannot be taxed in this State because no such tax is imposed upon the shares of Banks organized under authority of the State." So that the reason they could not be taxed for State and county purposes was not the absence of power to tax them, but because the Legislature had failed to provide by law for their taxation: and in 27th Ind. p. 332 involing the exact question of the power of a city to tax a stockholder upon his shares of stock, the Court says: "That the question whether sec. 15, of the State Bank law was in violation of sec. 1, art. 10, of the Constitution had not been fully argued before them, and that upon it the Judges had not reached a united conclustion and that it was probable from the reasoning in the case in 11 Ind. p. 139, deciding it Constitutional that it had not been thoroughly considered and prefered to express no opinion as the case could be decided upon another point, showing that the Court did not consider the Constitutional question even as to cities settled by that case, but discredit the reasoning and treat the question as yet open and decide the case upon the ground that the city of Indianapolis could not tax National Bank shares because the city charter of 1865 did not authorize taxing stock of State Banks. Not deciding that the Legislature had no power to tax but that it had not been exercised and for that reason decline to decide the Constitutional question and hence without such affirmative legislation no decision upon the Constitutional question can be obtained.
We find then that the State Bank law exempted the capital stock of State Banks from municipal taxation and a decision of the Supreme Court that such exemptiom is Constitutional.
page: 392[View Page 392]That the same Court has decided that the Constitutional provision of uniformity and equality does not apply to municipal but only to State and county taxation.
The same Court has also decided that to tax an individual upon his shares of stock was a tax upon so much of the capital stock and hence prohibited by sec. 41 of act of Congress.
We find the decision that the 15 section was Constitutional and also that it did not apply to cities doubted and shaken.
That the shares of National Banks are within the reach of State taxation.
That a tax upon the share of an individual assessed against him is not a tax upon the property of the Bank.
These recent decisions very much qualify the former and advance far on the road to recognizing the power of the Legislature to authorize cities to tax the stockholder on his shares but in order to do so to test the question finally, further legislation is necessary.
The Charter to the Bank is a grant of exclusive and beneficial privileges-it is true it is a vested franchise and such grants are even termed contracts binding upon the grantor as well as upon the grantee, yet being peculiarly a benefit to the grantee-an exclusive privilege and may be forfeited. One of the modes of forfeiture is by non-user.
The National Bank law of 1863, sec. 61, p. 681, as also that of 1864, sec. 44, p. 118, authorized any Bank authorized by law in any State to accept the provisions of the law and become a National Bank.
These provisions were voluntarily accepted by all the State Banks and they became National Banks; still with valuable and exclusive privileges and the State Banks practically ceased to exist.
The Bank Charter required the State Bank to keep an office at Indianapolis, and that the Directors should meet once in three months, and then invested them with the necessary powers, and contemplated that they should conduct an active banking business-to loan money, buy, sell and negotiate bills of exchange, to "discount notes, and issue and put in circulation bank bills, &c.
But for several years none of these Banks have conducted a banking business as contemplated, and whether they have quarterly and annual meetings of the Directors we do not know, or if reports are made to the Legislature as required, but if these things are done it is merely nominal, and the stock has but a nominal existence, the National Bank stock, having been issued therefor. There is no such one of the powers granted as was contemplated by the Legislature when the Charter was granted.
As it is true that the grant of some general power carries with it such implied powers as are necessary to the execution of such general power; so it is equally true that to cease to exercise the general power for which a corporation was created is such a non-user as carries with it a forfeiture of all the lesser and incidental powers though expressed, and there has been for years such a voluntary non-user of the general power of the State Banks such an abandonment of all its main and supposed beneficial purposes as amounts to a non-user, and it cannot be that some incidental and subordinate grant having only a purpose in the exercise of the main grant and one too which even in that connection, but more so standing alone is against public policy and common right should survive the main purpose merely as an obstacle to important legislation.
The object of sec. 15 was to protect State Bank stock from municipal taxation or to be exempt. There is no such stock now to tax and hence the law can no longer serve the purpose for which it was intended, and when that on which the law was intended to operate ceases to be, when the reason of the law ceases the law ceases also.
If it was only a franchise held at the favor of the State, then the State has power to revoke it, and if it was a contract for which there was a consideration, that consideration was that they should perform the functions of banks the functions prescribed in their charter, and this they have ceased to do and they cannot insist upon the continuance of a contract which they have broken, or claim that the State is still bound on her part, while they continually utterly fail in performance, on their part; they cannot abandon all that was beneficial to the public and retain only that which was injurious.
As a non-user cannot be made available in any collateral proceeding, some action, either by legislation or by a court upon a writ of quo warranto to declare a forfeiture will be neccessary, for so long as the State, the other party to the contract or the grantor of the franchise is content to overlook the violation the charter still stands and the non-user could not be pleaded in any collateral proceeding.
It is no doubt competent for the Legislature the other party to the violated contract, or the sovereign grantor of a perverted franchise to recind such contract or revoke such franchise. The conditions are at least mutual and reciprocal and a violation by the one party is cause for release of the other if electing to assert it and hence the Legislature having enacted this law and the Banks accepted it, when the Banks by non-user abandon and reject it the Legislature may repeal the law.
From the fact then that exemptions from taxation are against common right and public policy-that at this time taxation is extremely
page: 393[View Page 393]heavy, and laws exempting from taxation should be strictly construed, and that the original exemption was of doubtful Constitutionality; for although former decisions seem to-sustain, it yet later decisions throw doubt on the former; and as the law is now subserving a purpose not at all originally contempated and as the Banks on their part, have abandoned their charter, in so far as it could be useful to the public and as the decision of the Supreme Court leave the Constitutional question undecided and as that question cannot be finally tested without some legislation; therefore the undersigned a minority of said Commttee recommend the adoption of a preamble to the present bill reciting the fact of non-user and then amend by repealing the State Bank law and when so amended which amendments are presented herewith, recommend the passage of the bill.
J. CAVEN, Minority Committee.
Mr. HANNA moved to make the subject the special order for two o'clock to-day in Committee of the Whole.
Mr. GRAY preferred its consideration at onee and now.
Mr. GREEN was of the opinion if the Senate went into Committee of the Whole this would close up all Legislation for this session.
Mr. CRAVENS did not propose to contribute to dodging the result of the consideration of the Constitutional Amendment, and as much business of importance was before us, he moved to indefinitely postpone the bill.
Mr. MORGAN declared there was now eleven millions of dollars in the hands of the wealthy men escaping taxation for municipal purposes, and he regarded it as important a measure as is before this Legislature, consequently it should be acted on now.
Mr. GRAY did not understand that any rule required this bill to be discussed in the Committee of the Whole, as is contended by the Senator from Sullivan [Mr. Hanna] and others.
Mr. CHURCH undertook to say the country districts did not demand that this measure should be passed. He was not disposed to lay aside the important legislation of this session for the consideration of this bill.
Mr. GRAY showed the invidious distinction made by the present law, as between investments in Bank stocks and investments in the mercantile business, and declared that this bill would remedy it. The question of justice is the most important one to be discussed and acted upon in any legislative body, and this bill should claim immediate attention by the Senate.
Mr. CARSON also regarded this as a very important measure. He regarded this bill as one called for by one hundred thousand people of Indiana, and recommended by the chief Executive officer of the State in his message to the Legislature.
Mr. CRAVENS made his motion not to avoid a decision by the Senate, for he felt convinced this matter would have to be adjudicated by the courts, and it could be sent to the courts as well without the bill as with it. He demanded the previous question.
The Senate seconded the demand.
The motion to indefinitely postpone the bill was then agreed to by yeas 25, nays 21-as follows:
YEAS-Messrs. Andrews,"Beardsley, Bird, Case, Church, Cravens, Eliott, Fisher, Gifford, Hadley, Hamilton, Hanna, Hooper, Huey, Jaquess, Montgomery, Rice, Reynolds, Robinson of Madison, Robinson of Decatur, Scott, Sherrod, Stein Wolcott and Wood-25
NAYS-Messrs, Armstrong, Bellamy, Bradley, Carson, Caven, * Denbo, Fosdick, Gray, Green, Henderson, Hess, Humphreys, Johnson of Spencer, Johston of Montgomery, Kinley, Laselle, Lee, Morgan, Smith, Taggart and Turner-21.
Pending the roll call-
Mr. FISHER, when his name was called, in explanation of his vote said: It has always been contended by the Democratic party that the consumer paid the taxes, and it was conceded by the other party. I apprehend the same rule will apply to Banks. If we levy a tax upon the Banks they will increase their rate of interest, and the borrowers will pay the excess; and the borrowers will pay a diminished price for produce in consequence of the increased interest they pay; and thus the farmer of the country support indirectly the municipal expenses of the country. I vote "aye."'
Mr. GRAY, when his name was called said: If the theory of the Senator from Wabash, [Mr. Fisher.] is correct you should take the tax off of every thing, and thereby reduce the expenses of the farmer, and we would have no revenue for the government at all. I vote "no."
Mr. GREEN, when his name was called, said: I do not wish to make any explanation, for I have already made my speech on this subject the other session. I vote "no" believing the vote I give will determine the question, and I want the friends of the measure to vote in the negative and that will settle the question. I vote "no."
Mr. KINLEY, in explanation of his vote, when his name was called said: The Constitution provides that taxation shall be equal and natural justice demands that it shall be equal, therefore I vote "no."
Mr. MORGAN, when his name was called, in explanation of his vote said: I have taken an oath to support the Constitutton of the
*The Secretary's journal is wrong in recording Mr. Denbo among the yeas on this vote. He voted "no" on this question.
page: 394[View Page 394] State, and as I believe there can be no taxes collected except by authority of law, and I am sent here for the purpose of helping to make the laws; and as Banks when they pay no tax at all except an income tax charge from twelve to eighteen per cent, for discounting, and afterwards when they had to pay a tax of four and one third per cent., according to the written Bank account, they put down their discounts at ten per cent. I think it an advantage to tax them and it would be doing them a great injustice to have the matter postponed. I vote "no."Mr. WOLCOTT, when his name was called, in explanation said: It is impossible to discuss this question of postponment at this stage, without discussing the merits of the bill, because it is of that nature, that its merits alone, or its demerits are the reasons for a vote upon this question. I apprehend the friends of postment must be laboring under a misapprehension of the facts if their statements are honestly made. They claim that National Banks are paying taxes exceeding that of other property. They don't offsett the peculiar advantages which render this no tax at all, but which makes the property of National Banks worth more than the property held by any other persons in community. They are authorized on the deposit of bonds to receive ninety per cent, of the deposit in circulation. Take a bank which deposits one hundred thousand dollars in bonds; upon that deposit they receive six per cent, interest in coin, which is worth about eight in currency, then they receive ninety per cent, in circulation which is money to them. In other words the one hundred thousand dollars they have deposited pays 98 per cent, in fact and that makes a net profit of seven per cent, they get on circulation and securities or bonds. That is two and two thirds per cent, more than the tax they pay. So they have property above taxation which is worth two and two thirds per cent.
Then the National Banks are the Depositories of the public monies. In all collection districts the money belonging to the United States goes into them, and upon these deposits the Banks pay no interest. This is money they lend; and it is a valuable privilege they enjoy, worth in addition to the two and two-thirds per cent above the taxes at least two or three per cent more. Then there is a little fallacy in what is called "taxes." What is taxed on circulation is simply a reinbursement to the government, the cost of printing and furnishing their circulation. It is no tax at all, but simply a charge upon their own business. Then there is a fallacy in reference to this subject of residence. They said this:
"Now this stock is personal property, and instead of being taxed where the stockholder lives, like other personal property, it is all now taxed for State, county, school and township purposes in Marion county, and all goes into the treasury of that county and for her exclusive benefit."
This is not a full statement. What do they mean? The farmer who resides income other part of the State or outside of the State owning stock in a bank in this city has to pay taxes here--
Mr. RICE (interposing.) Mr, President: other Senators have not had the privilege of going into the argument of this question The gentleman has certainly exceeded the limits allowed heretofore.
The LIEUTENANT GOVERNOR. The Chair has decided that speakers must confine themselves during the call of the yeas and nays, to the reasons which influence their votes; but it is impossible for the Chair to say exactly what latitude a Senator will be allowed. I think the Senator from white [Mr. Wolcott] has gone to the limit, at least, of the latitude allowed in a discussion at this point. Still the Chair does not feel disposed to rule it out of order.
Mr. RICE. Then the gentleman's time is out.
Mr. WOLCOTT (continuing.) It is stated that farmers have certificates in the country representing property here which consist in money, in discounted personal notes and in the various forms of assets which constitues the capital of a bank; and here it should pay taxes like other property. The farmer's property is not with him in the country. There is an entire fallacy on that subject. National Banks in other States are not exempt from municipal taxation and it is not deemed a burden or oppression. No Banks throw up their organization, and I think there is not a single bank in the State whose stock is not at a large premium. I vote "no."
Mr. WOOD, when his name was called said: Without giving any other reason which controls my vote I will give one. I am going to cast my vote for the best interests of the people I represent. Most of the Bank stock in my district is owned by parties living outside of the cities, and if I vote for this bill and it becomes a law I simply vote that they shall help sustain a municipality which they have no interest whatever in. I vote "aye."
Mr. HANNA now requesting his name to be called said: Mr. Presient, I am informed that the tally shows that there are not twenty-six votes against the indefinite postponement. If that is so it is evident that this bill can't be passed and therefore to vote against indefinite postponement and go into Committee of the Whole would be to waste the balance of the day in useless discussion. I am anxious to have the business of the session transacted. I page: 395[View Page 395] have given my reasons on this subject, as a lawyer, in the report I made. I am trammelled as a lawyer and as a sworn judge. The seventy-ninth section of the peculiar charter of our State Bank says that the stock shall be divided into shares of fifty dollars each; the fifteenth section says that the capital stock shall not be taxable for municipal purposes and the Supreme Court has uniformly held that charter Constitutional. They had this question before them in XXVIIth Ind. and refused to decide it-they evaded the question Without they decide that charter unconstitutional they could not with this law before them, get at the question of taxing them. As it is manifest there is not sufficient strength to pass this bill even after discussing it the whole of this day, it seems to me it is my duty, looking to the interests of the people to vote in favor of the indefinite postponement of this measure. I vote "aye."
Mr. JAQUESS, also desiring his name called again, was understood to say, that as time was precious he too would vote "aye."
Mr. SHERROD, also haing his name called again said: I wish to change my vote for the reasons given by the Senator from Suliivan [Mr. Hanna.] It is evident that this bill can not get the necessary Constitutional vote to pass it. It is therefore a waste of time to discuss it, and especially at this late hour of the session, when there are so many measures waiting the action of the Senate in which the people are directly interested. I shall therefore vote for the indefinite postponement. I vote "aye."
Mr. GIFFORD, also had his name called again, and said: For the same reason I change my vote. "Aye."
Mr. ANDREWS, also had his name called again, and said: I will change my vote for the same reasons. I vote "aye."
Mr. WOLCOTT, also had his name called again, and said: I will change my vote for the purpose of moving a reconsideration. I vote "aye."
The LIEUTENANT GOVERNOR then announced the vote as above recorded.
So the motion to indefinitely postpone the bill was agreed to.
Mr. WOLCOTT now moved to reconsider the vote just taken.
Mr. CHURCH moved to lay this motion on the table.
Mr. GRAY demanded a call of the Senate.
It was ordered and being taken
The Secretary reported forty-five members as present and answering to their names.
Mr. BELLAMY moved to dispense with further proceedings under the call.
The motion was agreed to by yeas 39, nays 6.
The motion to lay the motion to reconsider on the table was then agreed to by yeas 26, nays 20-as follows:
YEAS-Messrs. Andrews, Beardsley, Bellamy, Bird, Bradley, Case, Church, Cravens, Eliott, Fisher, Hadley, Hamilton, Hanna, Hooper, Huey, Jaquess, Montgomery, Rice, Reynolds, Robinson of Madison, Robinson of Decature, Scott, Sherrod, Stein, Turner and Wood-26.
NAYS-Messrs. Armstrong, Carson, Caven, Fosdick, Clifford, Gray, Green, Henderson, Hess, Huey Humphreys, Johnson of Spencer, Johnston of Montgomery, Kinley, Laselle, Lee, Morgan, Smith, Taggart and Wolcott-20.
Pending the roll call-
Mr. BRADLEY in explanation of his vote, when his name was called said: While I would be glad to tax Bank stock for municipal purposes, yet under the laws I am convinced we have no power to do it; therefore I am compelled to vote "aye."
Mr. GRAY, when his name was called said: This bill has been fought bitterly ever since it came before the Senate. It was taken to the Judiciary Committee and kept there; a printed report was brought out; they attempted to get the previous question on it; then the vote came on the indefinite postponement and before the vote was announced from the desk it was stated that 26 votes were not cast against it, I vote "no."
Mr. LASSELLE, in explanation of his vote when his name was called said: I vote "no" because I like to see a square vote on the question. I believe we have a right to tax the shares of Bank stock for municipal and other purposes because the Constitution says taxation shall be uniform and equal.
Mr. MORGAN, when his name was called, in explanation of his vote said: There seems to be a determination to get rid of this question without getting upon the record; and ingenuity and everything else is brought to bear upon it to get rid of it. I want to record myself as being opposed to any postponement of the matter. I want to have the question come up square and fair. The bill is decided by lawyers here to be unconstitutional. I give it as my opinion, and pledge myself as a lawyer-a constitutional lawyer-that it is constitutional. I vote "no.'
Mr. TURNER, in explanation of his vote, when his name was called said: Two ballots lave shown that this bill cannot be passed. We have but about six hours remaining in which we can do legislative business this session; and I shall vote "aye."
Mr WOLCOTT, when his name was called, said: I am of opinion that with a full and fair discussion this bill can pass; and regret that Senators favoring this bill vote as they have. I vote "no."
The LIEUTENANT GOVERNOR then announced the vote as above recorded-yeas 26, nays 20.
page: 396[View Page 396]So the motion to reconsider the vote indefinitely postponing the Bank tax bill was laid on the table.
CHAPMAN'S LIQUOR BILL.
Mr. KINLEY moved to take up the bill [H. R. 288.] A bill to amend sections four and eight of the Liquor Law of March 5, 1859, that it may be read by title the second time, and the third time by sections.
It proposes to amend the said section four by appropriately inserting these words: "And that he has filed in the office of the County Auditor the petition of a clear majority of the legal voters of the township, ward or voting precinct, as ascertained from the poll books of the last preceding election, verified by the oath or affirmation of the Township Trustee as to its correctness."
It proposes to amend said section eight by excluding from sale "any person who is in the habit of becoming intoxicated," and adding these words: "And any person so licensed as above provided shall be at all times responsible for and liable in all cases of violation of the provisions of this act by any and all persons in his employ. Any person violating the provisions of this section as amended, shall be fined in any sum not less than ten dollars nor more than fffty dollars, and may be imprisoned for not less than ten nor more than thirty days."
Mr. TURNER. Mr. President: I intend to vote against the passage of this bill but shall vote to have it brought up in order that the party opposed to me in politics which has pretended for the last ten years to be, and have obtained a large vote in this State on the ground that they were temperance men, when practically they were no more so than us who do not make any pretention-that these gentlemen may now have an opportunity of manifesting the truth of their pretensions.
I make these remarks now because at the last end of the roll, where my name occurs, it would not be so well to make them. I want to try this thing on, and let the people see how this party, which gets ten or fifteen thousand votes on the ground that they are temperance men, goes on this question. I want to see if the people will aid them as well hereafter as they have heretofore on the strength of this temperance plea.
The motion was agreed to and accordingly-
The Temperance bill [H. R. 288] was read the second time by title and the third time by sections.
The question being: "Shall the bill pass?"
A constitutional provision requiring the yeas and nays, they were ordered and being taken resulted-yeas 22, nays 23-as follows:
YEAS - Messrs, Andrews, Armstrong, Bellamy, Case, Church, Cravens, Eliott, Fosdick, Gray,Green, Hadley, Hamilton, Hess, Hooper, Johnson of Spencer, Kinley, Reynolds, Robinson of Madison, Robinson of Decatar, Scott, Stein and Wood - 22
NAYS - Messrs. Beardsley, Bird, Bradley, Carson Caven, Fisher, Gifford, Hanna, Henderson, Huey Huffman, Humphreys, Jaquess, Johnson of Montgomery, Laselle, Lee, Montgomery, Morgan, Rice, Sherrod, Smith, Turner and Wolcott - 23.
Pending the roll call
Mr. BRADLEY, when his name was called said: I prefer that this bill should pass if it must without my vote. I vote "no." '
Mr. CHURCH, in explanation of his vote when his name was called said: If I understand this bill it is Republican in character. It provides that if a majority of voters of any precinct desire the luxury and benefit of a whisky shop they can have it if they can find a man of a good moral character willing to engage in the business, and give a bond to the State for the protection of citizens. I am inclined to think a majority of the people ought to have this matter in their own hands: and I believe if a majority of the people declare whisky shops to be nuisances-and I believe such places are nuisances-it is time a majority of the people should speak upon this question and their voices should be heard. I believe if a majority of the people desire to have in their vicinity nuisances they ought to have them. And I believe so with reference to any thing else.
This has ever been my opinion, but sometimes during my attendance on the Legislature I have voted contrary to my opinions giving my reasons for it. The reasons are: that the country has been engaged in a civil war, and in consequence of that I have thought it better to vote to postpone this question which might arouse other questions and the bearing might affect out country disastrously. I have endeavored to keep this question out of politics, but now we have the right and it is our duty to legislate on this subject. I vote "aye."
Mr. FISHER when his name was called, in explanation of his vote said: Prior to the prohibitory law of 1855, I was an advcate of that law. I believed it was the most important thing the State Legislature could do, to pass such a law. This I think if carried out will be precisely the same as the prohibitory liquor law. The result of that was in effect to set back the progress of the cause of temperance some fifteen years in the State of Indiana. I do not believe the principle is as far advanced now as then.
I believe if we pass this law it will remain upon the statute books no longer than the next session of the Legislature. I believe a Legislature will be elected here in two years that will repeal it and open the floodgates of intemperance wider than ever. I do not believe a majority of the people are in favor of this law. I vote "no."
page: 397[View Page 397]Mr. GIFFORD, in explanation of his vote, when his name was called said: I represent Franklin County here and I know a majority of the voters there are against this law. I vote "no."
Mr. GREEN, in explanation of his vote, when his name was called said: Ten years ago I spent the whole winter in getting up the present temperance law. At that time we had the Maine Liquor law men to fight and the liquor men of course, were opposing the passage of that law. We got it throngh and it operated as well as any law upon the subject. I think with proper enforcement of that law it is as stringent as the people will enforce, and at this time they have got a great temper anoe excitement in my district, and I would do violence to the feelings of the people there by voting against this bill, yet I think the bill objecfionable. I vote "aye."
Mr. HAMILTON, when his name was called, in explanation of his vote said: It is scarcely necessary to state that I always have been in favor of temperance. If I vote against this bill I had better send home for my family and not go up there any more. If I have been beset by my people to ask for any thing here it has been for a law upon the liquor subject something such as is presented in this bill. It aint enough for me, but I am satisfied with what I can get. I vote "aye."
Mr. HOOPER, in explanation of his vote, when his name was called said: I believe in the principle that the action of the majority on this question is perhaps as near correct as we can get. I realize the great difficulty of properly regulating this question. It is one of the matters almost impossible to determine. But while I must confess some doubts as to the advantages of this law over the present law whether it will accomplish the purpose its friends expect - I am willing to cast my doubt in the direction of correct public morals in the State. I vote "aye."
Mr. JAQUESS, in explanation of his vote, when his name was called said: I believe I can say practically that I am as good a temperance man as any Senator here. But it is a plain case that our Democratic friends are seeking to gain political advantage out of this thing, and preferring to live under the rule of King Alcohol to living under the rule of the Democratic party I vote "no."
Mr. JOHNSON, of Spencer, when his name was called, in explanation of his vote said: Two years ago I voted against the temperance bill for reasons not satisfactory at that time to the temperance party, nor were they satisfactory to the whisky sellers. This law refers the question to a majority of the people interested and there is where I believe it ought to be. I vote "aye."
Mr. KINLEY, when his name was called, in explanation of his vote said: This bill does not contain all I should like; for it is well known to the Senate that I favor prohibition; but I think it a great improvement on the present law. One feature of the bill I wish to call attention to is that, as far as it operates, it throws the question of temperance out of politics and refers it to the people of the township, town or ward. I vote "aye."
Mr. LASELLE, when his name was called, said in explanation of his vote: While I am in favor of a temperance law, I am not in favor of taxing any one business in the land higher than any other business. I think, sir, the present law is too stringent upon one class of persons, and therefore I am opposed to further restriction by the way of license. I vote "no."
Mr. LEE, in explanation of his vote, when his name was called, said: For myself, Mr. President, I am in favor of this bill, but my constituents, I think, would not countenance me in voting for it. This liquor question has been one of the principal planks in their platform for many years, and I do not think they would like to have it knocked out at this late day. I vote "no."
Mr. MORGAN, when his name was called, in explanation said: I claim to be as good a temperance man as any in the House. I helped form the first temperance society in the State in 1824, and I believe I helped form the first one at Evansville. I helped form the first lodge of the Sons of Temperance and I never was drunk in my life, and I don't want to be. The people in my section of the State are divided into two classes-Democrats and Republicans. The Democrats are the first class and the Republican class are those who sell whisky [A VOICE-"And the Democrats drink it"-Laughter]-they sell it wholesale and retail, and the Democrats sell beer. Now I look upon the thing as being morally wrong. I do not think it right for any man to sell whiskey or intoxicating liquors of any sort. I say it is morally wrong, and I say also that I am unwilling to go in partnership with any man to do the business. If it is wrong I say the State of Indiana has no right to go into partnership with the sellers and take part of their earnings. I say a prohibitory liquor law or none at all. I do not believe there can be any good done but by moral suasion. The more laws you make the worse you make the evil. For one I am opposed to all laws I vote "no."
Mr. RICE, when his name was called in explanation of his vote said: It is a question to settle which is the best law. Believing as a friend of the Temperance cause, as I have believed for the last ten years, that the present liquor law if properly backed up and enforced by the temperance men and the moral page: 398[View Page 398] sentiment of the State is the best law on the subject we can get. I am satisfied to retain the law as it is. I have no confidence, and never had in prohibition. This is a prohibitory law for it requires a man, in order to obtain a license to get a majority of the legal voters to petition, and then requires the township Trustee to swear that he has obtained a majority. I say it is prohibitory in effect, and having no faith in any kind of a law that is not backed up by the moral force and determination of the temperance and moral party of the State-or in any law executing itself without the aid of that force, I, of course, go against prohibition. In our county we do it by moral suasion. The selling of whiskey is made so odius that the trafficker deserts it at once. I vote "no."
Mr. ROBINSON of Madison, when his name was called, said: I vote "aye" and I don't care whether it pleases my constituents or not.
Mr. SHERROD, in explanation of his vote when his name was called, said: I am opposed to all these innovations, I introduced a bill into the House several years ago to repeal the Main Liquor law. I do not believe you can legislate against a class of men in a certain business. I do not believe in sumptuary laws. They are not in keeping with the letter and spirit of the constitution. I vote ''no."
Mr. SMITH, in explanation of his vote, when his name was called said: I would have been glad had the friends of Temperance adopted a different course. Every man on the Wabash river knows that I have been a temperance man for forty years, but I will vote for no bill that makes the Stare of Indiana or me a partner in that which is wrong. I hold that liquor selling is wrong; that it is an evil; a great evil, and a curse to the nation; but this will not stop it. No temperance law has been made that will remedy it, and until the friends of temperance start in the right direction it cannot be remedied. The other party in this Senate call my party the whisky party, and by implication they claim that they are Temperance men; and yet you Republicans come here and refuse to pass the very law you abuse us for not passing. I vote "no."
Mr. TURNER, when his name was called, in explanation of his vote said: I should like to have the bill passed on account of members of the Legislature, and if it was applicable only to the city of Indianapolis I should give my vote for it. But as it is not applicable to the city of Indianapolis alone, I believe the majority of the people have decided that prohibition is wrong. I am opposed to the bill. I should be in favor of it if it applied only to members of the Legislature upon the ground, that I do not now expect, after to-day to be a member of this Legislative body, "no."
Mr. WOLCOTT, when his name was called in explanation of his vote said: It is with some regret that I am compelled to vote against this bill. Senators holding over from the last regular session remember that I introduced Senate bill 46, a most stringent bill in its provisions as to the liquor traffic; and I urged it till it passed the Senate. I believe the intemperance of the State is a great evil, and that it should be restrained, but no laws, if against the moral sense of the people can be enforced; All reforms must proceed slowly and gradually. Had this law provided that at any election the question of License or No License should be submitted to the people, I would vote for that. But it goes much farther. It requires the applicant to travel over the township and get the signatures of a majority of the legal voters, and after he obtains these he has got to get the ratification of the township Trustee. Even a majority of the voters might favor the petitioner, but if the Trustee should be unfavorable the will of the majority would be defeated. I believe the law would not be just in its operations and I will vote against it "No."
Mr. WOOD, in explanation of his vote, when his name was called said: I believe the good overbalances the evil in this bill. It provides, if I understand it, that the principal may be made criminally liable if convicted with his agent; and I am inclined to think that the courts would rule that part invalid. The first part of the bill which requires a petition from a majority of the legal voters of the Township before license is issued, I concur in. I vote "aye."
Mr. CRAVENS, having requested his name to be called, said: I do not know but that I have had a little more extended and bitter experience than most members on this floor. I fear that the friends of this bill, who have been actuated and influenced by the best of motives, have been induced to press its success against what is manifestly the public good. In 1855, under pressure of the public sentiment-by which I was elected, I voted in favor of a prohibitory liquor law. I was then foolish enough to think that the enactment of a law by the strong power of the State would effect the purpose designed. I recollect during the time we were discussing this matter, one of the best statesmen in this State said to some of us in a room at the Bates House: "You need not pass that law. If you do the Courts will not sustain it; and if they do, public opinion will not." A friend asked him: "Then what would you do?" Said he: I would resort to something that is practicable and license the whiskydrinker himself.
The more I have thought of that suggestion page: 399[View Page 399] the more I am satisfied that a law of that sort would be of more effect than the one proposed. A prohibitory law in my judgment will not be enforced. The people are afraid that it will strike at certain powers necessary to be maintained for the welfare of the country. While the bill has some unconstitutional features in it, in that it depends upon some other authority than that which enacts the law for the purpose of taking effect, on the other hand I decidedly favor the Democratic principle which runs through the bill; that is that the majority shall decide; for that great principle runs through the entire frame work of our Government. It is a Democratic principle and a Republican principle.
But I see that this bill will not become a law. I see that from my keeping of the tally. Other considerations rise higher than mere party. From those considerations, and those alone of a character which no man has a right to inquire into, I give my voice and vote for this bill. I vote "aye."
The LIEUTENANT GOVERNOR announced the vote as above recorded.
So the Liquor Bill [H. R. 288] failed to pass the Senate by yeas 22, nays 23.L
