THE
BREVIER LEGISLATIVE REPORTS.
THIRTEENTH VOLUME.
INDIANA LEGISLATURE.
IN SENATE.
FRIDAY, December 6, 1872.The Senate met at 10 o'clock, President Friedley in the Chair.
The reading of the Secretary's minutes of yesterday's proceedings was dispensed with.
PETITIONS.
Mr. BIRD presented a petition from about 200 citizens and tax- payers of Allen county, interested in the maintainance of the Wabash and Erie Canal, and praying that it may not be abandoned, but that a law may be passed authorizing the Commissioners of counties through which the canal passes, to make appropriations for repairs, etc. The signers were principally business men.
Mr. HUBRARD, from citizens of St. Joseph county, praying for the repeal of the drainage laws.
These petitions were referred to the Appropriate Committees.
REPORTS FROM COMMITTEES.
Mr. DWIGGINS, from the Committee on Corporations returned the bill [S. 56] to amend sections 22 and 57 of the town incorporation act of June 11, 1852, and the amending act of March 2, 1855, recommending its passage with sundry amendments. The bill authorizes the collection of license fees by towns for the keeping of billiard tables and the sale of intoxicating liquors.
The report was concurred in.
Mr. HUBBARD, from the same committee, returned the levee and drain bill [S. 43] recommending that it lie on the table.
The report was concurred in.
Also the bill [S. 73] with amendments. The bill proposes to make town marshals elective by the town trustees instead of at a general election.
The report was concurred in.
Mr. THOMPSON, from the Committee on Benevolent Institutions, returned the bill [S. 97] appropriating $20,000 for an experimental school for feeble minded children, reporting it inexpedient at this time, and recommending that the bill lie on the table.
Mr. COLLETT moved to recommit it, with instructions to report the bill back with a recommendation that a small amount of money $4,000 or $5,000 be appropriated to start an institution of this kind.
The motion was agreed to.
Mr. STEELE, from the Committee on the Organization of Courts, recommending the passage of the bill [S. 77] to amend section 476 of the general practice act.
The report was concurred in.
WABASH AND ERIE CANAL.
The special order for this hour was taken up, being Mr. Steele's bill [S. 85] to protect the Wabash and Erie Canal, and the tolls and revenues thereof, from sale or sequestration for the satisfaction of the lien of certain bonds or stocks of the State, issued prior to the transfer of said canal to the present Board of Trustees thereof, and to provide for the satisfaction of said bonds or stocks, on its second reading.
page: 188[View Page 188]Mr. BROWN moved to amend by striking out from the first section of the bill the words: "Protect said canal by taking up and redeeming the bonds," and insert in lieu the words, "take up and redeem said bonds," so that it shall read:
SECTION 1. Be it enacted by the General Assembly of the State of Indiana, That the Governor, Attorney General and Secretary of State and Treasurer of State, or a majority of them, be, and they are hereby authorized and empowered to tske up and redeem said bonds with the coupons thereto belonging, mentioned in or contemplated by the preamble to this act and for that purpose a sum of money sufficient to accomplish the object, is hereby appropriated, etc.
Mr. BROWN said if the bill shall pass it should not recognize any liabilty on the part of the State to protect the canal. If the bonds are to be paid at all, it should be as though no suit had been commenced, and as though no person had made a demand for pay, but as though the State had come forward and paid them of her own volition. There should be no section in the bill permitting the State to be brought into Court at all. A State should not go into court to put her rights in jeopardy, but for the purpose only of asserting her rights.
Mr. STEELE accepted the amendment and it was agreed to.
Mr. BROWN moved to amend by striking out the fourth section of the bill, which reads as follows:
SECTION 4. If any question should arise as to the validity of any bond contemplated by this act, or as to the amount due on any of the bonds or coupons contemplated by this act, or any other point or question which is, or may be involved in said suit now pending in said Cass Circuit Court, which, in the Judgment of the Attorney General ought to be litigated, that officer may, with the advice and consent of the Governor, Secretary of State and Treasurer of State, or a majority of them, cause the State to be made a party to said action now pending as aforesaid, for the sole purpose of asserting the right of the State to redeem said canal and its appurtenances from the operation of the lien of said bonds and coupons, by paying the amount which may be legally and justly due thereon, and the State after being made a party to said action, shall have the right to make any defence which the trustees of said canal might or would do; but under no circumstances shall any court, because of the State having become a party to said action, have or assume jurisdiction to render any Judgment against the State for any amount, or under any pretence whatever.
The motion was agreed to.
Mr. BROWN moved to further amend by striking out the fifth and sixth sections of the bill, which read as follows:
SECTION 5. The State after having been made a party to said suit, shall have the same right of appeal that the trustees of said canal may or might exercise, and if the Attorney General shall, with the advice and consent of the Governor, Secretary of State and Treasurer of State, or a majority of them, determine to appeal from any judgment that may be rendered in said cause, then it shall be the duty of the trustees of said canal to join in such appeal, and the Governor, Attorney General, Secretary of State and Treasurer of State shall procure the necessary sureties to become bound, in the proper appeal bond, such bond to be executed by the Governor for and on behalf of the State, and the State hereby pledges herself to indemnify and save harmless those who may become sureties in such appeal bond, from all loss, costs or trouble by reason of such suretyship.
SECTION 6. If from any cause the State should fail in being admitted to become a party to said action for the purposes aforesaid, it shall be lawful for the Attorney General, with the advice and consent of the officers aforesaid, to file a new complaint and commence anew action in said Cass Circuit Court for the purpose of redeeming said canal and its appurtenances from the operation and effect of said lien by paying such sum or sums of money as may be legally payable on the bonds and coupons which constitute the lien, making the said Garrett and other. holders of said bonds defendants to said action, and making such other defendants thereto as the Attorney General may deem necessary and proper, and the Attorney General in such new action shall apply to the court for such injunctions and restraining orders against said John W. Garrett and his co-plaintiffs as may be necessary to restrain and enjoin proceedings in the said action now pending as aforesaid, until the rights of the State can be fully and fairly adjudicated.
This motion to strike out was also agreed to.
Mr. BROWN moved to strike out the preamble which referred to the Garrett suit, and provided that the State should be made a party to the suit, and for an appeal of the case.
The motion was agreed to.
Mr. BROWN then moved to substitute therefor the following:
WHEREAS, There are still outstanding 191 of the old bonds or certificates of the State stock issued by and under the authority of the laws of this State prior to the year 1841, upon some of which no interest has been paid since January, 1841, and upon others of which the interest has been settled up to July, 1868. Therefore."
Mr. STEELE consenting, it was agreed to by the Senate.
Mr. HARNEY said, in 1860, when a member of the Legislature, he examined the character of the act under which the arrangements were made with the State's creditors. The General Government held certain old bonds of the State in trust for certain Indian tribes, and refused to pay to the State the three per cent. bonds due us until we paid up these bonds the Government held in trust. It was the duty of the State to satisfy the General Government, and the arrangement made was just and proper as the General Government stood in a different position from our other creditors. It had been a beneficiary to the extent of donating the bonds that stood almost as the only basis of that great improvement, and it looked hard that we should refuse to pay the interest on the bonds it held only in trust for othere, and the question has since continually recurred as to whether the arrangement made with the Federal Government was just, that it was based on sound and correct principles.
page: 189[View Page 189]The bonds in dispute contain these words: "For the payment of which the faith of the State is irrevocably pledged." This is the language of sovereignty, the language of treaties, and, by implication, the language of every statute. The State, in her sovereign capacity as the fountain of law and justice, must be the only and final arbiter of what her plighted faith demands of her. This power she may not delegate, nor commit so sacred and vital a trust to any tribunal less responsible and competent to decide than the State itself, speaking through its constituted organs to express its sovereign will.
As between parties subject to its laws, the State, in its constitution, says it shall make no law impairing the obligation of contracts, but as between itself and another party no deliberate act of the State can be construed as violating a contract, because the State itself is the arbiter and so declares it in the contract, and therefore her ruling must be taken as conclusive as that of any court to which the law gives the power of ultimately deciding questions submitted to it. Any other construction would put the State in the power of a creature of its own construction, and would give the courts, its creatures, power to decide upon its duties and its franchises, or treat it like any corporation over which the court held control.
But while we claim for the State these high prerogatives, without which it could no exist as a State, we admit that she is amenable to that code of public law recognized by all States and sovereignties in the civilized world, binding upon the State as upon the conscience of individuals, and this is the law which the State takes notice of when deciding between hersef and individuals.
Individuals dealing with a State must know these facts, for they are written in the bond; and when the State decides that she has complied with her plighted faith, they must accept her decision as final and conclusive.
The question then is, has the State in good conscience discharged her obligation to her creditors, or the private parties contracting with her in the matter of these bonds?
We must first premise that the contract must be taken within the rules of interpretation known and accepted at the time it was made, and not as being absolute according to the letter. Mankind has long since decided that all the duties and obligations which the party was known to be under at the time he secured the confidence of his creditor must be taken into the account, as the State could not destroy itself or tax its subjects beyond their ability to pay the demands of a creditor.
Its only resources are known to be taxation--and that taxation is limited by the ability of the subject to pay in all good conscience.
The same rule holds good with individuals. The right of food and clothing for himself and family, and some means to educate his children, is paramount to the claims of any creditors, and a Shylock can no longer enforce his bond for the pound of flesh.
At the time those bonds of the State were given the surroundings were peculiar. The State was young and over sanguine. It was at a time of great expansion in money affairs. Money was plenty and capitalists were eager to invest in public enterprises that promised any degree of security. Loans were taken with a reckless prodigality, and the means were squandered in unproductive improvement. This speculative period, characterized by rash borrowing, and still more reckless loanings, was succeeded by the darkest period in our financial history. Money was not to be had. The business of the country was largely carried on by barter and exchange. All the schemes and speculations and corporations made to carry them out failed. Collection of debts was restricted or suspended, and stay laws, valuation and exemption laws passed. These attest the terrible stringency in money affairs. Then the bankrupt law was passed by Congress, which swept away a large amount of indebtedness at once, and reduced the ability of their creditors to pay.
There was nothing feigned in the inability of the State to pay interest on her debt She failed from sheer inability. The necessary taxes, when placed on the duplicate, could not be collected. Especially in the Western States commerce and manufactures were utterly paralyzed. The financial seas were stripped of ships, and their shores were strewn with wrecks.
Gentlemen whose memories do not go so far back as that period can have some faint conception of the state of affairs by drawing upon their imagination and figuring what would be the result, suppose that within a few months the value of our currency should depreciate and it should die on our hands, and gold should be demanded in its place, and there were no mines in our borders from which we could dig the precious metal--suppose all our railroads were destroyed and the telegraph ceased to work. With all of these supposed disasters we can then only have page: 190[View Page 190]approximate idea of the condition of affairs in this State from 1841 to 1847. The State was totally unable to pay, and her creditors knew it.
We can well sympatize with the condition of our creditors, but they were no worse off than others: and the result proved they were in a far better condition than the great mass of creditors in the land, the most of whom lost all and had no remedy. It partook much of the character of a revolution, and after the fiercest of the storm was over, by common consent there was a general new adjustment of debts, formed on the basis of affairs then existing, that all appreciated and acknowledged. The State was first challenged by her creditors to make a new arrangement with them. Although the interest had not been paid for years, she had not been accused of violating her plighted faith. She was unable to pay, and there seemed but an indefinite prospect that she would pay the accumulating interest that was compounding upon her.
The State responded and by law made a new arrangement, drawn up by her creditors themselves and adverse to her, and the bill bears to-day the name of the agent of her creditors. "The Butler Bill," by enactment, became a law upon our statute book--as much so as the law authorizing the creation of the debt. It was made to redeem the plighted faith of the State in the original bond, sealed and doubly authenticated by common consent at the time, and it has been defended by many of the best and purest men from then until now.
But it is said that the Butler Bill was a new contract setting aside the old, and therefore parties to the old not being present and assenting were not bound by the new. This would have been the case with individuals, but in this case one party is a State--her official acts are public, and all parties affected must take notice without special service. The bondholder, situated like Mr. Garrett, must have known of the proposed sale of the canal. They stood by and without protest suffered the State to sell the canal, making provision for what equitable interest they had in the canal by virtue of any lien they had. Their own silence to a public act would imply a binding consent. But suppose they had protested against the passage of the bill, or had no legal knowledge of any action in the premises, they only occupied the position of some minority under the operation of almost every law passed. The State is under no higher obligation to her creditor than to her own subjects. The minority are made to suffer same real or imagined loss or ill convenience, that the public good may be subserved. In the adjustment of her public debt the State aimed to and did perform substantial justice to her own citizens and to her creditors, treating them all alike.
But, again, it is said the State is now able to pay these bonds outstanding, and therefore she should not plead the act of 1847. This argument comes with a poor grace from parties who repudiate the act by which she was enabled to overcome her embarrassment and finally establish her solvency. If there is any special courtesy or partiality is it not in favor of the parties who cheerfully accepted the position and assisted to sustain our credit? If all our creditors had shown the same disposition as these there is no telling to-day what might have been our financial condition.
The simple question now is was the adjustment acts of 1846-47 binding and operating upon all affected by it? We must take it all or reject it all. The whole of it was intended for one purpose. If in that pupose it failed the whole of it was a failure. If the law was unconstitutional, inoperative, or void as to these bonds contemplated in this bill, were not other parties injured aggrieved who were made to believe that the State meant what she said when she declared year after year that she would never make any other arrangement with her creditors than the one declared by law to be her ultimatum?
Suppose that the Legislature at any time while the funding of the old State debt was going on had said that creditors who refused to accede to the arrangement should finally be paid in full, principal and compound interest, but few would have ever accepted of the terms offered, and to-day most of the partes holding canal stock would have been holding the old bonds against us. Can we say now that during time the State was merely using brute force to force or drive her creditors into acquiescence with her plans, and that in after times she intended to withdraw her threats and pay in full those who refused to put confidence in her repeated assertions?
For my part, as one of the representatives of the people of this State, whose sentiments I knew and represented, I have often asserted to our creditors that the provisions of that Butler bill was a finality, and I can not go back upon that record now without stultifying myself and my constituency.
page: 191[View Page 191]I must still maintain that the adjustment bill of 1846 and 1847 was framed in justice and equity; that in it there was no violation of contract, that in the spirit of the act the State redeemed her plighted faith and all that the most exacting judge could have demanded of her. She surrendered all her property and consented to tax her people all they were able then to bear. The act was public and authoritative, and her faith was pledged to its observance as much as it was in the act authorizing the debt.
But the case now before us has new complications, differing from any presented before. Two parties, both State creditors, and therefore both adverse in interest to the State, are at law over property once owned and ceded by the State, and by a species of logic new and peculiar, worthy of the school of the Sorbonnie which Pascal so aptly delineated, it is now made to appear that in any event of that suitthe State is liable for claims and demands which have been adjusted by the State twenty-five years ago.
If the controversy referred to in the bill before us is between two parties, and the result cannot affect the State, why bring it before us and make their acts a subject of legislation? If the decision of the court affects the rights or interests of the State why is she not made a party to the suit? If by reason of her sovereignty she cannot be made a party, how can the suit be brought and the State be made to suffer where she cannot appear? If the the solemn acts of the State founded in justice and directed to the public good and sustained by courts and people for twenty pears can be nullified or set aside by the decision of a Circuit Judge upon a collateral issue where the State is not a party, who is to be the custodian of the public faith and why may not the State be made to answer in every court of the State in civil suit and abide the decision of the court, and thus become a subject of the administration of justice rather than its administrator?
Mr. HARNEY spoke at greater length on the subject, and when he concluded, the motion [Mr. Steele's] that the bill be ordered engrossed for the third reading, was agreed to by yeas 32, nays 15, as follows:
YEAS--Messrs. Beardsley, Beeson, Bird, Brown, Bunyan, Collett, Daggy, Dittemore, Dwiggins, Friedley, of Scott, Gooding, Hall, Haworth, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Rosebrugh, Sarnighausen, Scott, Sleeth, Steele, Taylor, Thompson, Wadge, Winterbotham, Mr. President--32.
NAYS--Messrs. Armstrong, Boone, Bowman, Carnahan, Cave, Daugherty, Francisco, Glessner, Gregg, Harney, Ringo, Slater, Smith, Stroud, Williams--15.
Pending the roll call--
Mr. ROSEBRUGH, in explanation of his vote said: This question is one that has puzzled almost every person that has attempted to look into it. It was not in a condition he would like to see it, although his views were somewhat changed since the original question came before the Legislature. His vote was based upon the ground that the State owed a debt that the public works were pledged to protect, and inasmuch as the public works cannot discharge the debt the faith of the State is pledged to discharge it: therefore, he voted in favor of the engrossment of the bill.
The vote was then announced as above recorded,
So the bill was ordered to be engrossed.
On motion of Mr. STEELE, the bill was read the third time, and put upon its passage.
Mr. STEELE then took the floor and commenced an argument in favor of the passage of the bill. Before he had concluded, he gave way for a motion to adjourn.
And then the Senate took a recess till two o'clock p.m.
AFTERNOON SESSION.
Mr. STEELE resumed the floor, and continued his remarks in favor of the immediate passage of his bill. He contended that the State is bound to pay these bonds as they fall due, or else we are bound to submit ourselves to the charge of having broken our contract.
He argued that it was never the intention to cut off the rights of those who failed to surrender their bonds. The eighth section of the act itself recites that "a large portion of the bondholders" had signified a desire to compromise, thus recognizing the fact that the desire was not unanimous.
As to the certificates held by those who surrendered their bonds, he held that no liability could arise on the part of the State for their payment. By the Butler compromise two kinds of certificates were issued, one payable by taxation and the other to be liquidated by the transfer to the holders of the canal, its lands, tolls, and revenues. Those belonging to the first class have already been paid, and those belonging to the second class were provided for as indicated. The entire liability of the State upon the surrendered bonds, then, has been discharged, and the holders of the certificates can have no page: 192[View Page 192] claim against the State as long as the canal and its tolls and revenues are secured to them according to the provisions of the bill.
The act itself recognizes a difference between the status of those who surrendered their bonds and received certificates therefor and those who retained them.
A priority of payment was given to the bonds of the latter. After a certain date other bondholders could indeed come in and surrender their bonds, but they could not stand upon the same footing as those who availed themselves of the privileges accorded by the Butler bill.
He then read the section of the law which pledges the tolls and revenues of the canal to the payment of the certificates, and that the State will not permit the tolls and revenues to be diverted from that purpose until the certificates are fully redeemed. He maintained that by this pledge the State was bound to defend the canal against the suit brought, and to protect it from sale and sequestration, and that if the State did not so protect it she would become liable for the payment of the certificates by taxation. The amount for which the State would thus become liable is about $18,000,000.
He said those who oppose the passage of this bill practically advocate repudiation, and made a strong appeal to Senators not to cast this stain upon the fair fame of the State. When he had concluded
Mr. NEFF made a demand for the previous question, to stop this argument at once. But by request he withheld it for the present.
Mr. HARNEY again took the floor and replied to Mr. Steele, declaring that he could not consistently vote for the bill in its present state. He said it seemed that whatever position was taken by the Assembly, the most direful consequences were to be apprehended. The Senator from Grant (Mr. Steele) supposes that all who embraced the provisions of the Butler bill did so from choice; that the inducements offered to them were such that they voluntarily came into the arrangement. That was not the case. Very many of them did so under a species of duress with the knowledge that the canal was good for nothing and upon the representations of the State that she would never make any other settlement with her creditors than that provided by the bill.
Now, he said, suppose that Mr. Charles Gould, who, in January, 1872, surrendered four of the old interhal improvement bonds and took in place of them certificates of stock, to be paid by taxation, for one-half the amount and certificates of canal stock for the other half, the only value the canal stock had then being a prospective value to grow out of future legislation--suppose that Mr. Gould should come before this House and represent that he had been induced by the statements of the representatives of the State to believe she would make no other provision for the payment of the bonds than that prescribed by the bill and had therefore been persuaded to surrender his bonds and take one-half the amount in worthless scrip; that he had been deceived by the representation and, therefore, asked relief. Suppose the Assembly should refuse to give him relief, then on whose shoulders would lie the oblequy? Could he not go out and herald it to the world the State of Indiana had falsified her word to him, induced him to give up his bonds and take worthless scrip on a false representation?
Now, suppose, on the other hand, that Mr. Rothschild, for instance, who had given up his original bond and was a subscriber to the canal stock should stand by and see the canal sold by the order of the Carroll County Circuit Court and he dispossessed of his rights; and suppose after the canal had been sequestered that he should come back and say that the State had pledged herself to protect him in the possession of the canal, and had suffered it to pass from his control, and therefore was bound to indemnify him for the original debt? Which of the two cases is the hetter?
The speaker could not see any course they could take that was not encompassed with dangers except one. The people of the State at one time adjudicated on this matter. They did it in the most solemn manner, at a time when the facts were fully before them, and announced their decision in such clear terms that no one could mistake it; and the people for twenty-five years have acted on that decision. If it is repudiation to stand by a bill that has been on the statute books for twenty-five years, we are still in honorable company. All the officers of the State from the Governors down to those of the minor departments, have stood by the law. It has been the understanding on all hands that that settlement was a finality. It seemed to him that after we have spent the money and endeavored to rescue the credit of the State from the stain which is likely to be cast upon it, we are still liable to the same insinuation and obloquy from the other side claiming that we have not page: 193[View Page 193]done justice by them. The fact that their original bonds have passed out of their possession does not extinguish their claim against the State any more than the destruction of a promissory note under a misapprehension of its value extinguishes the debt of which it was an evidence.
He said, in conclusion, that he would be willing to pay these parties a reasonable gross sum in final settlement of the controversy, but he could not vote for the pending bill.
Mr. BOONE held that by the fact that these holders of canal certificates stood off while the suit was in progress, and made no attempts to assert their rights, they would be barred from recourse on the State. He maintained, further, that the provision in the Butler bill that the State would make no provision for the payment of the improvement bonds other than that contemplated by the bill was still valid, and the State was bound in honor and good faith to abide by it. He said that for those of the 191 bonds held by the Morris Canal Banking Company the State received no consideration.
Mr. GLESSNER was the last speaker in opposition to the measure, who stated, as a matter of history, that no consideration whatever was received by the State on account of the Morris Canal Banking Company, and the State was a loser of hundreds of thousands of dollars. He reiterated the statement that the State never received any consideration for them, and that they were therefore void. In 1841, through the perfidy and bad faith of many of those who received and negotiated these bonds the consideration that was to come to the State in exchange for them failed entirely, and that added greatly to the embarrassment of the State at the time when she failed to pay any interest on the bonds, and she was unable to pay interest on the bonds until 1846, when the Butler bill was passed. This bill was passed shortly after the issuing of the bonds, and the presumption was that they were still in the hands of the original holders. This bill of 1846 gave notice to the world that they would pay these bonds in no other way than the one presented in the act. Therefore, those persons holding those bonds or who have received them since that time are not innocent hoIders, but stand in the same position with the original holders and therefore have no more equity than the original would have. When this bill was passed the best men in the State were in the Legislature. They said that that was a fair adjustment. They did not regard it as a repudiation, and it was understood at that time that the bondholders were satisfied with it.
He did not believe that the State was legally liable for the payment of these bonds, and yet we are told that the good faith of the State requires us to take from the pockets of the people and pay not only the principal, but the interest that has accumulated thereon, on account of which the State of Indiana has never received a dollar.
Mr. BROWN closed the debate with a speech in favor of the bill, declaring that he should cast his vote for the pending bill more from what appeared to him as a question of expediency, perhaps, than from what the legislative contract of 1846-7 expresses. The Legislature may do what it will, and the holders of the canal scrip will make its act a pretext to come back upon the State and call upon her to liquidate their claims. He believed it was better for the State to take up these bonds that are now surrendered, than to hazard the dire calamity which might follow having the canal taken away. His opposition heretofore to the payment of these bonds has been for fear the State might be dragged into a court of justice in order that some undue advantage might be taken of her. In his judgment, the State is now voluntarily doing more than, under the law and the contract, she could be called upon to do, and ke thought she perhaps had better do that than to stand by and allow the holders of the Wabash and Erie canal to harden their hearts against it so that they would allow that trust to be swept away, in order that they may bring up against the State a claim for the redemption of some eighteen or twenty millions of dollars.
He then reviewed the history of these bonds, and the legislation in regard to them. He reiterated his belief that it was the intention, by the bills of 1846-7, to relieve the State from all liability for the payment of one-half of the internal improvement debt. He read from the memorial presented to the General Assembly in 1852 by the creditors to prove that the adjustment was made on their application, and they were not dragged into it, as had been said. It is a matter of history that the bill was drawn up by Charles Butler, the accredited agent and attorney of a large portion of the creditors. He believed the contract relieved the State from all liability for the payment of one-half the debt, placing it upon those who surrendered the bonds, and that it was so understood on all hands at the time. He contended that if the State paid these out- page: 194[View Page 194]standing bonds the holders of the certificates would claim payment from the State on the ground that she had violated her contract by paying the holders of the unsurrendered bonds in a different manner from that provided in the bill. But which course will give them the greater claim, to allow the canal to be sequestrated and sold, or the other course which will enable them to say that the contract has been broken. It was a choice between two evils, but he thought there would be less risk in pursuing the former course. Believing this he should vote for the bill.
At the close of Mr. Brown's remarks--
Mr. STEELE demanded the previous question, and the bill was passed by yeas, 30; nays, 18:
Yeas--Beardsley, Beeson, Brown, Bunyan, Collett, Daggy, Dittemore, Dwiggins, Friedley, of Scott, Gooding, Haworth, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Rosebrugh, Sarnighausen, Scott, Sleeth, Steele, Taylor, Thompson, Wadge, Winterbotham, Mr. President--30.
Nays--Armstrong, Boggs, Bird, Boone, Bowman, Carnahan, Cave, Daugherty, Francisco, Glessner, Gregg, Hall, Harney, Ringo, Slater, Smith, Stroud, Williams--18.
Pending the roll call Mr. CARNAHAN explained his vote in opposition to the bill. He had the honor of a seat in the General Assembly at the time of the passage of the Butler bills, and was satisfied that the majority of the people of Indiana were opposed to this measure.
Mr. GREGG, when his name was called also explained his negative vote, believing that in voting against the bill he was fairly representing ninety-five per cent. of his constituency.
Mr. HALL voted no, believing the State to be entitled to the result of the negligence of these bondholders in allowing their guarantees to die by lapse of time.
On motion by Mr. BROWN the title of the bill was stricken out and the following substituted therefor:
"AN ACT to provide for the payment of sundry bonds or stocks, of the State of Indiana, issued prior to the year 1841, and declaring an emergency.
The following is the form of the bill as passed:
AN ACT to provide for the payment of sundry bonds or stocks of the State of Indiana issued prior to the year 1841, and declaring an emergency.
WHEREAS, There are still outstanding one hundred and ninety-one of the old bonds or certificates issued by and under the authority of the laws of this State prior to the year 1841, upon some of which no interest has been paid since January, 1841, and upon others ofwhich the interest has been settled up to July, 1868; therefore,
SECTION 1. Be it enacted by the General Assembly of the State of Indiana, That the Governor, Attorney General, and Secretary of State and Treasurer of State, or a majority of them, be, aad they are hereby authorized and empowered to take up and redeem the bonds (with the coupons thereto belonging) mentioned in or contemplated by the preamble to this act and for that purpose a sum of money sufficient to accomplish the object is hereby appropriated; the same to be drawn from the Treasury on warrants of the Auditor in such sums and at such times as the Governor, Attorney General, Secretary of State and Treasurer of State shall, from time to time, in writing order or direct; every such direction stating the amount to be drawn and the purpose for which it shall be used, and every sum thus drawn shall be applied by the Treasurer of State under the direction of the Governor, Attorney General and Secretary of State, to she purposes for which it shall have been drawn.
SEC. 2. No money shall be drawn from the Treasury by virtue of this act over and above what may be necessary to pay and redeem one hundred and ninety-one bonds (and their coupons) such as are described in the preamble to this act, and such bonds shall be redeemed in the order of their presentation at the Treasury of the State for redemption: Provided, That no bond or coupon shall be paid or redeemed until it shall have become due and payable according to the tenor and effect thereof.
SEC. 3. It shall be the duty of the Governor, Attorney General, Secretary of State and Treasurer of State to exercise the utmost scrutiny in testing the genuineness and validity of each bond and coupon which may be presented for redemption under the provisions of this act, and no bond or coupon shall be paid or redeemed unless the same is surrendered to the Treasurer of State at the time of redemption, and the bonds and coupons so redeemed shall be preserved by the Treasurer of State, and be subject to such disposition as the General Assembly may hereafter cause to be made thereof, and the Governor, Attorney General, Secretary of State and Treasurer of State shall, immediately after making; any redemption under this act, prepare and sign a detailed description of the bonds and coupons so redeemed, with the date of their redemption, and such discription shall be filed in the office of the Auditor of State, and shall be recorded by him in some book to be provided and kept for that purpose.
SEC. 4. If at any time there shall not be money enough in the Treasury not otherwise appropriated to enable the officers of State, hereinbefore mentioned, to carry out the provisions of this act then, and in that case, it shall be lawful for the said officers of State to negotiate and make for, and on behalf of the State, a temporary loan or loans of such sum or sums of money as may be necessary, not, however, exceeding in the aggregate the sum of two hundred thousand dollars, on the best attainable terms, such loan or loans to be payable at the expiration of forty days from and after the commencement of the next succeeding session of the General Assembly.
SEC. 5. An emergency is hereby declared to exist requiring the immediate taking effect of this act; wherefore the same shall take effect and be in force from and after its passage.
THE DRAIN LAW.
On motion of Mr. HUBBARD, the vote by which a substitute for the drainage law [S. 88] was made the special order for next Tuesday, was reconsidered.
Mr. HUBBARD moved that the bill [S. 88] in relation to the construction of sewers, dykes and drains be taken from the table and read the second time.
The motion was agreed to.
Mr. DWIGGINS said that the bill provides that assessors shall be appointed by the several counties interested, and in a great many other respects is superior to the present law.
page: 195[View Page 195]On motion by Mr. HUBBARD the bill was then referred to the Committee on Corporations.
TWO PER CENT. CLAIMS.
Mr. STEELE, by consent, offered a joint resolution in relation to the two per cent. claims of Ohio, Indiana and Illinois pending before Congress, directing our Senators to favor the passage of a bill for the payment of said claims.
It passed the Senate: yeas, 45: nays, 0.
[NOTE.These claims on the part of Indiana amount to about $400,000.]
Mr. COLLETT, from the Committee on Enrolled Bills, reported that they had found Bill No. 65, ceding jurisdiction to the United States of ground in Indianapolis on which to erect public buildings, properly engrossed.
THE SUPREME COURT.
The PRESIDENT presented a cominunication from the Reporter of the Supreme Court, stating that about 460 decisions had been rendered other than those which would be contained in the thirty-fifth volume, which will appear in a few weeks. After the publication of that volume, the reports will be in arrears about six months. The causes of the failure to comply with the law, the Reporter states to be that since the advent of the new court, decisions have been made with unprecedented rapidity; and with the assistance and facilities at his command he was unable to keep up with the work, but that he has now obtained additional help and more material, and will be able soon to recover the lost ground.
It was referred to the Committee on the Organization of Courts.
The Senate then adjourned until to-morrow at 10 o'clock a. m.
