SUPPLEMENTARY
TO
THE BREVIER LEGISLATIVE REPORTS.
VOLUME ELEVENTH.
Can Executive Messages be Received when there is no
Quorum
Present?----What Constitutes "a House?"
IN SENATE.
FRIDAY, May, 30, 1869.[IN CONTINUATION-p. 236-FIRST COLUMN.]
The LIEUTENANT GOVERNOR commanded order at nine o'clock, and directed the reading of the Secretary's minutes of yesterday.
Mr. JOHNSTON of Montgomery, demanded a call of the Senate, and it being ordered and taken, discovered the fact that but thirty-two Senators were present and answering to their names.
Subsequently-
After a lengthy discussion of points of order-
Mr. GRAY demanded a call of the Senate.
A message from the Governor being announced at the door, transmitting the names of members of the Senate who have presented their resignations
Mr. BRADLEY said: Mr. President, I raise the point of order that this is not the Senate; it is a mob; and the communication from the Governor cannot be received.
The LIEUTENANT GOVERNOR. The chair has decided heretofore that we cannot receive a communication from the Governor until there is a quorum present. Call the roll.
The Secretary proceeded with the call, pending which-
Mr. JAQUESS, when Mr. Gifford's name was called, said: I see Mr. Gifford and two or three other Senators in the lobby.
When the roll call was completed-
Mr. GRAY said: I move that the absentees be sent for.
Mr. BELLAMY. Mr. President: I move that we dispense with further proceeding under the call. It is announced that certatn Senators have resigned, and what are we to do? Ascertain whether they have resigned, or set here all day? If we are to ascertain that, we can ascertain it officially, if at all, only through the Governor. I have ascertained from the Secretary that the Governor's private secretary has delivered a message showing what Senators have resigned, and showing whether we really have a quorum according to the ruling of the chair or not. In order to get that message considered, so that it may go upon the journal and show who have resigned and who we have a right to send for, I move that further proceedings under the call be dispensed with.
Mr. JOHNSTON of Montgomery. Has the number present been announced?
The LIEUTENANT GOVERNOR. I do not think it has. Thirty-two: that is the number the Secretary's tally shows.
Mr. BRADLEY. I would like to have the names read.
The LIEUTENANT GOVERNOR. Read the names.
The Secretary having performed that service-
The LIEUTENANT GOVERNOR said: The Senator from Randolph [Mr. Gray] moves that the absentees be sent for.
Mr. BRADLEY. In order to ascertain who the absentees are I move that the communication from the Governor be read.
Mr. BELLAMY. That is not in order during a call of the Senate.
The LIEUTENANT GOVERNOR. It only could be done by unanimous consent.
Mr. FISHER. The call of the roll shows who the absentees are. We don't want to go to the Governor to find that out.
page: 401[View Page 401]Mr. BRADLEY, Suppose some Senator should die, or suppose one should remove from the State, we would have no right to send for him. And suppose some have resigned, we have no right to send for them. I think that communication should be read.
Mr. GREEN. There is another way to get it on record. When the sergeant at arms gets his return made out. If these men are dead, civilly or politically, he can make the return. [Laughter.]
Mr. BELLAMY. I move to lay the motion to send for absentees on the table.
The motion was agreed to by yeas 26, nays 5.
Mr. GRAY. There is no quorum present, is there?
The LIEUTENANT GOVERNOR. No sir. There are only 32 present.
Mr. BELLAMY. I renew my motion that further proceedings under the call be dispensed with.
The motion was agreed to.
Mr. SCOTT. Mr. President: I think it proper to receive that message. Whenever this Senate dispenses with further proceedings under the call, then there is no evidence before this body that there is no quorum present. That is the way the Senate stands now. In contemplation of law there is a quorum present, and any proceedings are proper now, and will be until it is ascertained that there is no quorum. The motion was not proper before, because there was pending a call of the Senate. We were proceeding under that call, but this Senate has dispensed with further proceedings under the call of the Senate, and we have a quorum as far as our record is concerned, and I think the motion is in order to entertain the message of the Governor, and move that the message now be taken up.
Mr. JOHNSTON, of Montgomery. Mr. President: According to the proceeding this morning and a call of the Senate just taken there is no quorum here, and now there is a proposition to send for absentees. This message comes from the Governor, and is in relation to certain citizens. If we send for the absentees I suppose the reading of the message is legitimate because it proposes to show whether we can get a quorum here, and it is perfectly legitimate for that message to be read; as it is the only channel through which we can get the information.
Mr. SCOTT. I agree with the first propotion, but deny that there is a question pending as to whether there is a quorum present or not.
Mr. JOHNSTON, of Montgomery. It appears to me that the chair announced that there was no quorum present.
Mr. SCOTT. The chair can only announce that the Senate dispensed with further proceedings under the call.
Mr. JOHNSTON of Montgomery. The journals will show that there was a call of the Senate; that but 32 members answered; that immediately a motion was made to dispense with further proceedings under the call. The last thing was to show that there was no quorum,and then further proceedings under the call are dispensed with. Now we ask to have the communication read so we will know the cause of there being no quorum.
Mr. SCOTT. The presumption of law is always in favor of there being a quorum. It must be so.
Mr. JOHNSTON, of Montgomery. The presumption of law is frequently one way and the facts another.
Mr. SCOTT, I say the presumption of law ought to be that way. Our record shows that we have forty-nine members qualified. We have no record - no official record showing any thing to the contrary;and I say the presumption of law is that there is a quorum upon this floor at this moment: therefore any proceeding the Senate has a mind to inaugurate is in order, unless pending that proceeding some Senator shall interpose a call of the House and it is ascertained as a matter of fact that there is no quorum upon the floor. The moment the Senate dispenses with further proceedings under the call that presumption of law again comes in, and this House cannot do business; and until that message of the Governor is read, showing that we have lost members since the organization by death, resignation or withdrawal, there is a quorum here in contemplation of law. I say nothing about the other questions.
Mr. MORGAN. Mr. President: It seems from the Constitution of the State that each House, when assembled, shall choose its own officers (the President of the Senate excepted) judge the elections, qualifications and returns of its own members, determined its rules of proceeding, and sit upon its own adjounment. The first thing is to elect a moderator of the House until the Lieutenant Governor takes his chair, and the next thing is to see who are members-who are constituted members of the body, and they are competent for that purpose to judge of the elections and qualifications and returns of members and determine rules of proceeeding, and to sit upon their own adjournment. That is all they can do until they find they have got a quorum.
Mr. SCOTT (interposing.) I desire to ask the Senator, Does he suppose the Constitution only applies to the organization?
Mr. MORGAN. Of course it applies all through the sittings of the Senate, because when it is ascertained that there is no quorum or that persons claiming seats are not members, the Constitution requires us to go to work and find out whether there is a quorum to be found or not. And as we have had a communica page: 402[View Page 402]tion from the Governor on this very point, the Senate is competent to receive that communication, because it is upon the very subject matter before us.
Mr. FOSDICK (interposing.) How do you know that it is upon that subject?
Mr. MORGAN. Because the announcement was made at the door.
Mr. FOSDICK. We could not receive that announcement because we had no quorum.
Mr. MORGAN. Mr. President: The Constitution IVth Article 10th section, says: We can judge the elections, qualifications and returns of our members; and that is what we are to do here. It is competent for this Senate to determine who are Senators and who are not.
Mr. FOSDICK. Have we not already decided under that rule who are Senators?
Mr. MORGAN. That matter was decided six weeks ago, bnt the Republican party is a progressive party, and what happened six weeks ago may not stand now. They decided the other day that they would not take up the consideration of the proposed XVth amendment to the Constitution of the United States, but what did they do yesterday?
Mr. CRAVENS. Mr. President: This seems to be a question of Constitutional law. I want to insist upon this proposition; for it seems to me to be as clear as any proposition, and that is: That we are now, according to the statements of these gentlemen, a clear quorum; and not only from their statements but from the showing of the roll-call. Now admitting, as these gentlemen say, that fifteen Senators have resigned and two Republicans are absent, that makes seventeen, and that would reduce---
Mr. MORGAN (in his seat.) Sixteen Senators have resigned.
Mr. CRAVENS. I don't care how many; that reduces us below thirty-four. Under our Constitution two-thirds of each House constitutes a quorum. Admitting it to be a fact that all of these men have resigned, as they say, and admitting the fact shown by the roll call that we have thirty-two members present, we every day act upon the principle that less than 34 in this House, and less than sixty-seven in the other House composes either as a House. The Constitution only requires that two-thirds of each House shall constitute a quorum competent to do business.
What is a House? Suppose we start out with fifty members in the Senate and one should die, forty-nine would constitute the Senate; or if two should die forty-eight would constitute this House, and two-thirds of forty-eight would be competent to do business. But suppose that ten die or ten resign-suppose our number is reduced either by a natural or a civil death, would the power of the State of Indiana have ceased by a reasonable construction of the Constitution? Does It contain that principle in itself that it works its own destruction? You pass bills frequently when there are not more than thirty-four members present. You say that a bill is passed because it recieves twenty-six votes. Twenty-six is a mere quorum of thirty-four. You can run it down to where there is a bare majority. Twenty-six is a majority if you have thirty-four or forty; and we have now thirty-two here.
I insist upon the proposition that under a clear construction of the Constitution we have now a quorum competent to do business, and in that view of the case insist upon the motion of the Senator from Vigo, [Mr. Scott,] for the reading of this message. Even if the chair decides we are not a quorum to do business, a smaller number than ten may sit here and receive message from the Governor. If that be not the case, why do a few of you remain after the close of the business every session? You have to receive messages yet from the House and from the Governor, and this House is perfectly competent to do it.
The chair said but a moment ago that we could not receive the message because we had no quorum; yet the chair said the other fact that the proposition could be maintained by unanimous consent. If not a quorum how can the unanimous consent of this body which is not a Senate be given to receive a message addressed to the Senate? This message has come from the Governor. You set here day after day, after the Legislative business of the session is over, for the purpose of receiving messages from the Governor and from the other end of the Capitol,and you have to have the messages read. And now you have to remain here till Monday. This House has to be kept open, with an officer in that desk, and a journal has to be kept open in which the daily transactions have to be recorded.
I insist that we have to read that message; we cannot do otherwise. It would be treating a co-ordinate branch of the Government with disrespect not to do it. And I want it read to show the fact conclusive and legally that there is not what these men have called a quorum of this body. And I want it decided by this body whether or not there is a quorum here provided there is over twenty-six members present, or whether it is in the power of one man or fifteen to destroy the power of the government.
If it developes the fact that so many Senators have resigned with a view to reduce the number below a certain number, 1 want this body to determine it and pass some act of legislation and let it go to the Courts of the State, and let them determine whither a factious minority of one or fifteen men can destroy the Legislative power of this State. I do not see how we can refuse to read the message.
page: 403[View Page 403]Mr. GRAY. It is for the chair to decide; whether there is a quorum present.
Mr. SCOTT. The chair never determines there is a quorum-he has no business to do so. The only way that is ascertained must be by a roll call. I think that is enough for this proposition. At the last regular session, after these gentlemen had resigned too, the chair did entertain a message from the Governor which was read and spread upon the journal on the eighth day of March, wherein the Governor reported his approval of a certain bill to this House.
The LIEUTENANT GOVERNOR. If there was any such message come in it was not while I was in the chair. If it was on the eighth I was not in the chair, for I had gone home.
Mr. SCOTT. I did not say that the present incumbent was in the chair. I only cited it as a precedent for whatever it is worth.
Mr. HOOPER. While I hold that we can do no Legislative act without a quorum yet I insist we ought to receive this message because of our peculiar position. At this moment the presumption of law is that we have a quorum here. We were proceeding under a call of the House and we dispensed with that call. Now what situation does that leave us in? Clearly in the presumption of law, with a quorum present. There is nothing showing to the contrary in the journal, and at this particular moment, unless something else intervenes the presumption of law is that we have a quorum.
FISHER. Suppose on the question to receive this message the yeas and nays should be called, what would be the result?
Mr. HOOPER. That would unquestionably show there is no quorum and would defeat the matter. But would it not be prudent to refrain from calling the yeas and nays and let the message come in?
Mr. SCOTT. The proposition in accordance with a ruling of the chair made a short time ago, could be entertained by unanimous consent. Of course it cannot be otherwise; but that unanimous consent is shown by no man calling for the yeas and nays or asking for a call of the House.
Mr. STEIN. Mr. President: I agree with the Senator from Vigo, [Mr. Scott,] that this message ought to be taken up, but I disagree with the opinion that we have no right to receive it because we have no quorum. For the life of me I cannot see it in that way. A fact being once established a continuation of that feet is supposed to go on, and we must have new evidence before we can consider ourselves with a quorum. I will accept the opinion of foe President as regards that question, for the present. We have been acting upon the premises all the time heretofore: that we would not pretend to go on with business so long as the last record showed that we had no quorum
Unless we have the right to receive this message we are at a dead lock, and have simply to sit here and adjourn or send for those absent. But we know there are resigned members who cannot be brought here. Whenever we put a construction upon the constitution which leads us into an absurdity we must know that we put the wrong construction upon it. The Constitution says that less than a quorum have powers; and they may adjourn or send for absentees; and we are strictly confined to this. But when we send for absentees, other powers incidentally come as a matter of course. This message purports to be from the Governor giving us some information with regard to absentees; and I say we have a right to receive anything that is calculated to put us in possession of necessary facts concerning the sending for absentees. As this is a paper which purports to give us that information I say it ought to be received and must be received. The parliamentary authority cited is to the effect that we cannot receive messages without a quorum, but that relates to Legislative business evidently. I claim that we have a right to received any message, verbal or written, or any evidence that qualifies us to send for absentees.
The LIEUTENANT GOVERNOR. I want to state to the Senate my own notion about this matter. In the first place it is manifest that we cannot receive a message from the Governor without we have a quorum present. Presuming that this was a message in the ordinary way of communication to the General Assembly, when the point of order was made by the Senator from Laporte[Mr. Bradley]that this message could not be received, I sustained the point. But it is assumed that this message relates to a quorum of the House--
Mr. WOLCOTT (interrupting.) The Governor's private Secretary announced that fact at the door.
The LIEUTENANT GOVERNOR. The Secretary has no right to give the contents of a message in that way. That goes for nothing. At the commencement of the session the Senator from Whitley, or the Senator from Jefferson, introduced a resolution calling upon the Secretary of State to know whether any members had been elected, and I ruled that resolution in order because it tended to perfect the organization of the Senate. I will now decide that the message may be read for information and then the chair will determine whether it goes to the point. If it does the chair will order that the message be received.
Mr. BELLAMY. I call for the reading of the message.
page: 404[View Page 404]The LIEUTENANT GOVERNOR (to the Secretary.) Read the message.
Mr. GRAY. There is no precedent in Legislative history where a Legislative body ever sent to the Governor to ascertain who are absentees.
The LIEUTENANT GOVERNOR. The Senator will remember that we sent to the Secretary of State at the commencement of the session to find out whether we should ever have a quorum or not.
Mr. GRAY, What would be the decision of the chair if a Senator objects to the reading of the message.
LIEUTENANT GOVERNOR. I would put the question to the Senate. (To the Secretary.) Read the message for information!
Mr. GRAY, I object.
The LIEUTENANT GOVERNOR, Objection is made. All who favor the reading Of the paper say "aye." Contrary "no." The "ayes" have it; it will now be read for information.
The Secretary read the message printed on page 236 of these Reports.
