THE
BREVIER LEGISLATIVE REPORTS.
THIRTEENTH VOLUME.
INDIANA LEGISLATURE.
IN SENATE.
TUESDAY, December 10, 1872.The Senate met at 10 o'clock, a. m., pursuant to adjournment.
On motion of Mr. ORR the reading of the journal was dispensed with.
Mr. THOMPSON presented a petition for a rigid temperance law, which was referred to the Committee on Temperance.
RAILROAD TARIFF.
Mr. WILLIAMS called up the special order for this hour, being the bill [S. 6] to fix the freight and passenger tariff for railroads doing business in this State; and also the bill [S. 115] to prevent extortionate charges for and unjust discriminations by railroad companies and other common carriers in this State. The first named bill having been read the second time heretofore--bill [S. 115] was read the second time so that both bills may be considered on the same reading.
Mr. BROWN said it enforces the rights of the people against common carriers, and that is all there is in it.
The Senate refused to lay the bill on the table.
Mr. SCOTT thought that the title of the bill [S. 6] should be changed to something like this: "A bill to provide for making law suits between the people and railroad corporations and other common carriers in this State." A law might as well be passed proposing to regulate the price of labor and the price of meat. The principle of the bill is wrong, for whenever the price of carrying is higher than the people can afford, the carrying will be done by horses or oxen, or the evil will be corrected in some other way. The bill proposes an innovation in the practice in this State, and an entire change, involving too much risk to the industry and progress of this State. He moved that the bill [S. 115] be printed.
Mr. ORR hoped the bill would pass, but desired to see it printed.
Mr. HOUGH opposed the motion to print, because he should oppose the passage of the bill.
Mr. NEFF was confident there is no wrong demanding a remedy more impperatively than this thing of the freight and passenger charges of railroad companies.
Mr. BROWN thought Governor Baker was a pretty good lawyer. His excellency put in about three weeks in getting up this bill. But it seems that it strikes at these tender plants--these railroad companiesthat we ought not to put our hands upon it at all. The bill [S. 6] is a bill of doubtful constitutional character, and no lawyer that has examined it but has expressed grave and doubtful question as to whether it could be upheld in the courts of justice.
Mr. ROSEBRUGH regarded Governor Baker as one of the best lawyers in the State, and would be very slow to object to a bill proposed by his excellency without careful consideration of its provisions. He was for every reform measure before this Legislature, and thought it important that this General Assembly should give early consideration to all such propositions. Especially should an effort be made page: 221[View Page 221]to regulate railroad charges in this State at an early day; and for the reason that it would delay the consideration of this bill, he opposed the motion to print.
The motion was agreed to.
Mr. HARNEY urged careful consideration of this matter, and desired to avoid hasty legislation in the consideration of this as well as every other measure that comes before the General Assembly. A railroad should not charge more from any competing station, or from the terminus of the road, than from or between any interimediate point or points on the road. The origin of one third of the railroads now proposed to be built arose from a desire to make important towns competing points.
Mr. WILLIAMS explained the provisions of the bill; cited instances of extortion in charges for the transportation of freights short distances in this State, and insisted that his bill [S. 6] would remedy this evil. The bill did not attempt to control the rates of charges for through rates.
Mr. WADGE was in favor of any action that will protect the people against monopolies. But it is a question whether this bill would not injure the people, for if it should be impossible for railroads to furnish transportation between local stations, of course the people would be injured by being deprived of railroad facilities. He had taken pains to furnish himself with some facts and figures on this subject, which he recited.
Mr. HALL referred to the Ohio and New York laws on this subject, but his remarks were not heard at the reporter's desk.
Mr. SCOTT moved to make the bill of Senator Brown [S. 115] the special order for Friday at ten o'clock.
Mr. STEELE moved to amend by including in the special order the bill of Senator Williams [S. 6].
A long debate ensued, not only upon the question, but running off into desultory discussions as to the merits of the two bills, and the subject of railroad legislation generally.
Mr. WILLIAMS moved (ineffectually) to lay the amendment upon the table.
The question being upon Mr. Steele's motion, the yeas and nays were demanded and the vote resulted--yeas 23, nays 20.
Mr. BROWN moved to make the bill [S. 6] a special order for Thursday.
The PRESIDENT ruled that the motion was not in order.
Mr. BROWN then moved to amend the pending question by making the bill [S. 115] a special order for Thursday.
The PRESIDENT ruled that this motion was also out of order, and a debate followed on rules of order.
The motion of Mr. Scott, as amended by Mr. Steele, to make the two bills a special order for Friday, was then rejected--yeas 16, nays 26.
Mr. BROWN moved to make the bill [S. 6] a special order for Thursday morning.
Mr. STEELE moved to make the bill [S. 115] a special order for the same hour.
Mr. BROWN moved to table the amendment.
It was agreed to--yeas 37, nays 4.
Mr. OLIVER moved to adjourn.
The yeas and nays were demanded, and Mr. Oliver withdrew the motion.
Mr. HOUGH moved to make the bill a special order for Thursday at two p. m.
Mr. WILLIAMS moved to lay the motion on the table.
The motion was agreed to.The original motion to make the bill the special order for Thursday morning was then put and carried.
Mr. ORR moved that bill 115 be made the special order for Thursday at two p. m.
This motion was agreed to.
Mr. OLIVER renewed his resolution to adjourn, which was agreed to, and so the Senate adjourned till two p. m.
AFTERNOON SESSION.
The Senate met pursuant to adjournment.
THE DRAINAGE LAWS.
The PRESIDENT announced the special order for the hour being Mr. Dwiggins' bill [S. 1] for an act to repeal an act entitled an act to authorize and encourage the erection of levees, dykes and drains, and the reclamation of wet and overflowed lands by incorporated companies, and to repeal all former laws relating to the same subject, which went into effect without executive approval, May 22, 1869; also an act to repeal an act supplemental thereto, approved February 23, 1871. The bill being on the second reading--
Mr. BROWN said he was in favor of the bill. He had all along been in favor of a fair draining law, but the end of the session was appoaching and he would rather have no bill at all than that one now in force. He should, therefore, favor the passage of the bill and hereafter legislation can be had which would give the State a good substantial draining law. Relying upon the professions of Senators from the northern part of the State that they will favor the enactment of a just page: 222[View Page 222]drainage law, he would favor the passage of this repealing bill, and therefore moved that it be considered as engrossed and read the third time now. But he withheld this motion for the present.
Mr. BOONE opposed the unconditional repeal of the drainage law of 1869. To repeal all drainage laws without a saving clause would work great injustice to many, and parties interested in a large amount of work in his county alone would be without a remedy in the courts. If their remedy in courts of justice is destroyed it is doubtful whether a new act would enable such persons to recover the rights they now have. He regarded the Chapman bill [S. 68] as being better than any bill on the subject that has ever yet been on the statute book, and hoped to see it passed. There were several lines of drains in Boone and Hendricks counties yet unfinished, and which would never be finished if the draining laws were repealed. He protested therefore against the repeal of these acts unless a new draining law was passed to take their place.
Mr. DITTEMORE offered the following amendment:
Amend section 2 by adding thereto the following words: "Provided that the existence and the rights, franchises and powers of all incorporated companies organized under said acts, or under any prior law of this State, repealed by said acts, the main line of whose contemplated work does not exceed ten miles in length, shall be saved, unimpaired and unaffected by this repealing act.
Mr. ORR favored the amendment.
Mr. SLATER would prefer seeing the Chapman bill passed before the bill under consideration shall be acted favorably upon.
Mr. WADGE desired to see this bill go through without any amendment. He had presented a petition here from twelve hundred citizens in his district praying for the unconditional repeal of the present drainage laws, and though he should vote for the amendment, it would be under protest, believing that the entire law should be swept from the statute book.
Mr. O'BRIEN, in order to do justice to his own constituents, who are interested in ditches with main lines more than ten miles long, offered the following amendment: Strike out "ten" and insert "sixteen." He did this in a spirit of compromise and concession. It is all wrong to give corporations unlimited power and control over real estate by reason of their assessments.
Mr. BOONE thought the amendment was not sufficient and would not provide for a remedy to parties aggrieved by the bill.
Mr. WADGE could pledge the support of Senators from the northern portion of the State for the Chapman bill, but the urgencies are so great that he asked the early passage of the pending bill.
Mr. O'BRIEN believed that the assessments should in no case exceed the actual cost of the improvement.
Mr. DITTEMORE accepted the amendment.
Mr. HUBBARD offered the amendment saying that if the bill was passed to repeal the act they would look out for themselves as against any claims of the Kankakee Draining Company on account of vested rights.
Mr. BOONE desired the repeal of the thirteenth section of the law of 1869 and the entire law of 1871.
The amendment as amended was agreed to by yeas 37, nays 7.
On motion of Mr. DWIGGINS, the bill was considered as engrossed and read the third time.
The question being on the passage off the bill--
Mr. DWIGGINS said he wished to correct an impression that had gone abroad that the Kankakee valley was an impassable morass, and ought to be drained as a sanitary measure. This was not now true. For the last two years the greater part of the Kankakee marsh had been in such a condition that a mowing machine could be run over it, and therefore could not have been a serious detriment to the public health. He urged the passage of the bill which repealed the acts of 1869 and 1871. It was true that he and other Senators from the Kankakee valley voted for supplemental act of 1871, but it was simply because they found that they could not then procure the defeat of the act of 1869, and they thought the act of 1871 would mitigate the evils suffered under the act of 1869. Now, however, they were in favor of the unconditional repeal of both acts.
Mr. BOONE said he should vote against the bill. It would not cost the citizens of his county less than one thousand dollars to determine the questions that would be raised by the unconditional repeal of the present law.
Mr. SLATER said: I hope the Senator from Boone (Mr. Boone), in the magnanimity of his nature, will withdraw his opposition. It is evident that the loyal and patriotic denizens of Jasper, Pulaski, Benton, White, and other classic lowlands of the northwest, have been terribly outraged, and are now suffering manifold page: 223[View Page 223]indignities from the encroachments of the Kankakee Draining Company. It has robbed them, not of their historic cascades and waterfalls, nor of their murmuring brooks "that gush forth in the midst of roses," but it has robbed them of their lowland sloughs and shimmering lakes that have rested on their bosom for ages like dazzling breast-pins upon the bosom of the landscape. Fish, frog and other animalculae of the aqueous element--that great propagator of brain power--which has shown such beneficent results upon the adults of that latitude, can now no longer be acquired as a food for the intellectual development of the rising generation. The melody of the sonorous bullfrog no longer lulls into the land of dreams the infantile prodigies of the Senator from Jasper. Frog's hams are a choice dish to the fastidious Frenchman, and who knows but their constituents, or even the Senators from Jasper and St. Joseph themselves are the noble scions of some doughty warrior who fell at the bridge of Lodi under the Old Napoleon, and has inherited a voracious and insatiate appetite for the posterior pedals of the sonorous bull frog. This draining law, under the operation of the Kankakee Draining Company, have robbed the people of Jasper of their bogs and marshes, their sloughs and bull-frogs, without which they are destitute of any primeval history, and in the event of no relief, the Senators from Jasper and St. Joseph would represent a constituency whose history had been sent "kiting" down the twilight shades of dire oblivion.
Mr. HOUGH agreed with Mr. Boone. He feared that the repeal of the law would imperil the vested rights of men in other parts of the State than in the Kankakee Valley, who had acted honestly, and whose work had been of great benefit to the localities where it was done. He also opposed the bill, because there are too many interests bound up in this bill detrimental to many of his constituents. Unless an amendment were made to this bill such as he suggested he would not stand by and see it passed without entering a protest.
The bill then passed the Senate by yeas, 42; nays, 3.
On motion by Mr. STEELE, the title was amended by adding the words, "and having the rights therein mentioned."
The PRESIDENT pro tem. (Mr. Williams in the Chair) announced another special order for this hour, being Mr. Chapman's bill [S. 88] to authorize the construction of levees, dykes, drains and ditches, and the reclamation of wet and overflowed lands by incorporated associations, and providing for the organization of such associations.
[The bill provides that any number of persons, not less than five, may associate themselves together for the construction of levees, dykes and drains, and the reclamation of wet and overflowed lands, of which any person may become a member by signing the articles of association. Before commencing the contemplated work the Board of Directors shall cause a survey to be made and a full description of the proposed improvement, which shall be open at all times to public inspection. The appraisers shall be appointed by the County Commissioners, and all persons whose lands will be affected by the proposed improvement shall be served with notice of the time and pla'ce where the Appraisers will begin the examination and assessment of lands. After the assessment is made, a printed notice shall be posted in not less than five public places in each township through which the work extends of the time and place, when and where the appraisers will meet to equalize their assessments. The assessments, when perfected and completed, shall be a lien on the lands assessed, provided that if the assessments of benefits do not equal the estimated cost of the work and the damages assessed and 10 per cent. of the whole amount in addition thereto, the work of the association shall not be further prosecuted. Any person feeling aggrieved by the assessment upon his lands may take an appeal to the Circuit Court or Common Pleas. If the work shall exceed five miles in length, it shall be let by the Board of Directors to the lowest responsible bidder. Otherwise it may be let by contract or done as the Board may deem best, Any person through whose lands the proposed work may pass shall be entitled to do so much of it as is upon his land, provided that he shall make application within twenty days after the filing of the assessment and will do it on equally resonable terms with those offered by any one else. The Board of Directors shall have power to collect only so much of the assessment as shall be necessary for the construction of the work and its protection and repair and to defray the necessary expenses of the association. The members of the association shall be individually liable for all debts contracted by and all damages assessed against the association during their membership. The bill repeals the act of 1869: provided, that the rights, franchises and powers of all companies organized under that act, the main line of whose work does not exceed page: 224[View Page 224]twenty miles in length, shall not be impaired by the repeal.]
Mr. DITTEMORE moved to postpone its further consideration till Friday at two o'clock.
On motion this motion was laid on the table.
The bill was read through the second time by the Secretary, as was also the amendments proposed by the Committee on Corporations.
[The Committee on Corporations recommended several amendments, one of which provides that the work shall not be commenced until one-third of the resident land-holders whose lands are to be affected thereby shall have petitioned for the appointment of the appraisers.]
Mr. DAGGY moved to amend the amendment proposed by the committee to section 13, by requiring the consent of the majority of the resident land owners interested in the construction of a drain, instead of one-third, before appraisers shall be appointed.
Mr. O'BRIEN thought in many cases the amendment proposed would be equivalent to stopping the work proposed. If the drain was a considerable length, where the average fall would not be more than three or four feet to the mile, a majority might be obtained, but in another case, such as he stated, it is not probable that more than one-third interested could be found willing to petition for appraisers.
Mr. BOONE opposed the amendment. He said that in many cases persons owning wet lands could not find an outlet for the surplus water without passing through the lands of others whose lands would not be benefited by the drain, and who, therefore, would not join in the petition, and thus the former might be deprived of the benefit of the act.
Mr. STEELE took the same view of the case.
Mr. WADGE favored the amendment. A majority ought to have control in such matters. It puts the matter where it rightly belongs.
Mr. ROSEBRUGH insisted that the doctrine that the majority shall rule is so completely an American principle, it should certainly be adopted in this case.
Mr. HUBBARD thought it no more than right that a majority should sign the petition for the appointment of appraisers, and could not see how this proposition can be objected to. It is contrary to the spirit of our laws and institutions that a minority should force the majority into the adoption of any measure.
Mr. SCOTT thought there should be an amendment including only persons within the limits of the water line of the proposed drain--persons owning land above the summit.
Mr. HOUGH was of the opinion that neither the amendment, nor the amendment to the amendment, was desirable, but that the bill as it is affords ample protection.
Mr. DAGGY modified his amendment by adding the words "liable to he assessed for benefits."
Pending which--
The Senate adjourned till ten o'clock to-morrow.
