THE
BREVIER LEGISLATIVE REPORTS
VOLUME FOURTEEN
INDIANA
LEGISLATURE
IN SENATE.
INDIANAPOLIS, January 24, 1873 - ten A.M.The Lieutenant Governor took the chair and directed the reading of the minutes of yesterday's proceedings, in the course of which, on motion by Mr. Fuller, its reading was dispensed with.
Mr. Hubbard presented petitions from citizens of St. Joseph county, praying for a more stringent temperance law. It was referred to the Committee on Temperance.
Mr. Beeson presented a memorial from the citizens of the State, praying for amendment of the divorce laws so as to prevent corruption and fraud. It was referred to the Judiciary Committee.
Mr. Collett presented a petition from 130 citizens of Parke county on the subject of temperance, which was referred to the Committee on Temperance.
INTERESTS ON JUDGMENTS.
Mr. Brown called up the special order for this hour, being the bill [H. R. 27] concerning interests on judgments (shall bear the same rates as expressed in the contract) the question being on Mr. Steele's amendment providing that no greater rate of interest than six per cent shall be allowed on any judgment decreed by any Court in the State.
On motion by Mr. Sleeth, this amendment was laid on the table by yeas, 27; nays, 15.
The amendment [Mr. Gooding's] that the provisions of this act shall not apply to contracts heretofore made, being now read -
Mr. Carnahan moved to indefinitely postpone the bill and pending amendments.
Mr. Slater demanded a division of the question.
Mr. Gooding, being favorable to the bill, for fear the amendment would endanger its passage, asked, but failed to obtain, unanimous consent to withdraw his amendment.
The question being taken, first on indefinitely postponing the amendment, it was not so ordered, by - yeas, 14; nays, 27.
Mr. Carnahan explaining his affirmative vote, believed the amendment unnecessary, as the bill would not affect contracts heretofore made.
Mr. Gooding, explaining his negative vote, desired this amendment, so that the question may be placed beyond cavil.
Mr. Thompson voted "no," holding the Senator from Vanderburg (Mr. Gooding) responsible.
After debate by Messrs. Harney, Brown, Carnahan, Friedley of Lawrence, Orr, Sleeth, Williams, Boone and Dwiggins; which will appear in the Brevier Legislative Reports -
Mr. Gooding demanded the previous question.
The Senate seconded the demand for the previous question.
The question recurring on the indefinite postponement of the bill, it was not so ordered, by - yeas, 14; nays, 29.
Mr. Boone moved, as a substitute for the amendment, (Mr, Gooding's) a clause to this effect: "Provided this act should apply only to contracts executed after this act.'
Mr. Brown thought the substitute out of order, a similar one having been already voted down this morning.
Mr. O'Brien insisted if this amendment was right as to future contracts, it is right to those past.
On motion of Mr. Brown, the substitute was laid on the table, byyeas, 25; nays, 15as follows:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Bowman, Brown, Chapman, Collett, Daggy, Dwiggins, Fuller, Friedley of Scott, Friedley of Lawrence, Glessner, Gooding, Haworth, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Sleeth, Thompson. - 26.
NAYS - Messrs. Boone, Bunyan, Carnahan, Cave, Daugherty, Francisco, Gregg, Hall, Harney, Ringo, Sarnighausen, Scott, Slater, Stroud, Taylor, Williams. - 16.
Mr. O'Brien moved to lay the amendment on the table.
This motion was rejected by yeas 6, nays 34.
Mr. Brown demanded the previous question, and there being a second by the Senate, the main question was ordered, and the amendment [Mr. Gooding's] was agreed to without a division.
The bill [H. R. 27] concerning interest on judgment - shall bear interest at the rate expressed in the contract, except where no rate is expressed, or a higher rate than ten per cent, in which case page: 77[View Page 77] but six per cent shall be decreed - was read the third time.
The bill passed by yeas 28, nays 15.The Senate took a recess till two o'clock P. M.
AFTERNOON SESSION.
Mr. Daugherty, stating that the House amendments, as reported to his bank bill [S. 2] were imperfectly reported, on his motion the bill was ordered to be returned to the Clerk of the House for correction.
PRESIDENT PRO TEM.
Mr. Chapman rose to a point of order, viz: that no person under the constitutional provision in Art. V, section 11, can preside over the deliberations of the Senate, except such a member as shall be elected for the occasion - each and every occasion - when the Lieutenant Governor shall be absent. He contended that the proceedings of this body would be illegal unless the express terms of the constitution be complied with in this particular.
Mr. Dwiggins considered the word "occasion " in the section referred to means that the member elected shall serve thereafter during the session - on every occasion - whenever the Lieutenant Governor shall pbe absent. We having a precedent long established, he thought it unnecessary to discuss the question.
Mr. Williams challenged the Senator to point out a case where a President pro tem. has held during the session when there was an acting Lieutenant Governor. Having himself been a member of the Senate for twelve years he knew it was the custom to elect a President pro tem. for every occasion when the Lieutenant Governor was absent.
Mr. Glessner read the 11th section of Article V of the Constitution, and declared there was nothing therein to prevent the election of a President pro tem. to serve during the entire session whenever the Lieutenant Governor may be absent.
Mr. Scott called attention to section 10 of Article IV of the Constitution: "Each House, when assembled, shall choose its own officers, the President of the Senate excepted."
Mr. Chapman read from Cushing's Parliamentary law, page 124, chapter II, in which it is distinctly stated that the term of the President pro tem. expires with the return of the Lieutenant Governor to the chair.
Mr. Orr took a view similar to the one presented by Mr. Chapman.
The President, [Mr. Friedley of Lawrence in the chair], said: I owe it to myself to state that on the adjournment of the Senate, at noon, the Lieutenant Governor delivered to me his keys and said he supposed he would not be here this afternoon and probably not at all next week; and believing the occassion for which I was elected was his absence at any time during this session, I complied with his request, and called the Senate to order at two o'clock. But if there is any question on the subject I would not under any circumstances consent to occupy the chair. Therefore I ask leave of the Senate, if there is any question about this, to retire from the chair.
Mr. Williams had seen it frequently the case, that in the absence of the Lieutenant Governor some Senator was called to the Chair, but his term of service as Chairman always expired with the adjournment for the day.
Mr. Scott saw no prohibition against a proceeding of this kind, either in the Constitution or in the law of the State, and he thought it regular as long as the Senate recognizes the occupant of the Chair.
Mr. Orr considered that the sixth rule of the Senate settled this question.
Mr. Dwiggins asked leave to offer a resolution declaring the Hon George W. Friedley, President pro tem. of the Senate until the close of this session.
Objection being made -
Mr. Brown was clear that the proceedings had yesterday were regular. The Lieutenant Governor presides over this body in compliance with the twenty-first section of the fifth article of the Constitution. There is such a thing as electing a President of the Senate, and the contingency for such election arises as shown by the eleventh section of the same article. This officer exercises his functions whenever the Lieutenant Governor is acting as Governor, or whenever the Lieutenant Governor shall be unable to attend as President of the Senate. It clearly has reference to any time when the Lieutenant Governor is unable to attend to his duties in this character.
Mr. Beeson stated that when he was a member of this body in 1858, Hon. A. A. Hammond was Lieutenant Governor of Indiana, and in the first or second week he stated to the Senate that he was so afflicted that he couldn't possibly attend to his duties, and the Senate proceeded to elect Mr. John R. Cravens as President pro tem. and on every occasion when Mr. Hammond was absent Mr. Cravens acted in his stead.
Mr. Hough considered if that action was not consistent with the provision of the Constitution, it ought not to be a precedent for our action. The constitution requires that a certain thing shall be done on a certain occasion. Section 11 of Article 5 says, "Whenever the Lieutenant Governor shall act as Governor, or be unable to attend as President of the Senate, the Senate shall elect one of its own members as President for the occasion." Now the Constitution requires that whenever the occasion occurs an election shall take place.
Mr. Smith [Mr. Brown having been called to the chair] raised the point of order that there was nothing before the Senate.
The Presiding Officer - I am going to make a rule now, and I trust some Senator will appeal from it. I decide that the election of the Hon. Senator from Lawrence (Mr. Friedley) is valid, and that he holds the office, and that in every absence of the Lieutenant Governor he is President of the Senate. He is a little delicate about the matter, but, in order to bring the matter before the Senate, I will decide that he is President of the Senate, and that he has the right to call any Senator to act in his stead as such, except when the Lieutenant Governor is here. If there is any doubt about the correctness of the decision, I will be glad to hear an appeal taken.
Mr. Orr - I want to know by what authority the gentleman gets up there and makes that decision? [Laughter.]
The Presiding Officer - The President of the Senate called me to the chair.
Mr. Hall - I respectfully submit that the present occupant of the chair does not fulfill the exactions made in Cushing's Parliamentary Law; the Speaker ought to be religious, honest, grave, wise and discreet. [Laughter.]
The Presiding Officer - I rule that out of order. [Renewed laughter.]
Mr. Chapman and Mr. Hall appealed from the decision of the Chair.
The decision of the Chair was decided to be the judgment of the Senate by yeas 29, nays 9, as follows:
Yeas - Messrs. Armstrong, Beardsley, Beeson, Boone, Bowman, Brown, Bunyan, Cave, Collett, Daggy, Daugherty, Dwiggins, Francisco, Friedley of Scott, Glessner, Gooding, Harney, Haworth, Howard, Hubbard, Miller, O'Brien, Oliver, Rhodes, Sarnighausen, Scott, Slater, Stroud, Taylor, and Thompson - 29.
Nays - Messrs. Carahan, Chapman, Gregg, Hall, Hough, Neff, Orr, Ringo, and Williams - 9.
Mr. Hall made an ineffectual motion - yeas 16, nays 20that when the Senate adjourn it be till Monday at two o'clock P. M.
PETITIONS AND MEMORIALS.
Mr. Thompson presented a memorial from the Indianapolis Sentinel Company, stating that five page: 78[View Page 78] reports of State officers are nearly completed and other unfinished work will be completed in thirty days.
It was referred to the Committee on Printing.
Mr. Brown presented petitions on temperance from citizens of Jackson county, which was referred to the Committee on Temperance.
Mr. Gregg presented a petition from the citizens of Ripley county, praying for the repeal of the gravel road law. Laid on the table for the present.
REPORTS FROM COMMITTEES.
Mr. Gooding, from the Judiciary Committee, returned the bill [S. 223] to legalize certain acts of Notaries Public, with a favorable report thereon.
Mr. Boone, from the Judiciary Committee, returned Mr. Collett's bill [S. 207] to amend the civil practice act, with inference to defective complaints, with a recommendation that it lie on the table.
Mr. Boone also returned from the same Committee Mr. Fuller's bill [S. 200] in relation to jury trials and sickness of a juror, with a recommendation that it be indefinitely postponed.
These reports were severally concurred in.
RAILROAD AID.
Mr. Daggy, from a majority of the Judiciary Committee returned bill [S. 158] to repeal the county and township railroad aid act, with a recommendation that it be indefinitely postponed, for the reason that it would be impolitic, and that several bills amendatory of the act are now pending.
Mr. Gregg, from a minority of said committee, submitted a report recommending the passage of the bill.
Mr. Daggy moved ineffectually to lay the minority report on the table. Yeas 16, nays 25.
Mr. Neff was not hostile to the railroads but his people were decidedly in favor of repealing the railroad tax law.
Mr. Daggy believed the majority in his district were in favor of retaining the law, and did not believe the people of the State want its repeal.
Mr. Boone did not favor adopting the report of the minority of the committee, because the unconditional repeal of the law would place many districts of the State in a bad fix.
Mr. Gooding thought an unconditional repeal of this law would involve many counties in litigation, little dreamed of by Senators on this floor. Senators who do not want railroads ought not to put it out of the power of those who do to get them. He hoped the minority report will not be adopted.
Mr. Dwiggins would not let this matter pass without saying a word. In his part of the State there was perhaps more land held by non-residents than in any other Senatorial district in the State, and his people would vote in favor of retaining this law, by over two to one. Where one-half of such a tax has been paid, those who have not paid go scot free. As a rule, non-residents are the last to pay taxes, and the residents, therefore, having paid, the non-residents will get off and won't pay a cent. Properly guarded, the General Assembly never passed a law of more general benefit than this statute. The only way you can break down railroad monopoly is to grant liberal laws for their construction, and then properly restrict their tariffs for freights and passengers.
Mr. Gregg spoke in favor of the adoption of the minority report. When he had concluded -
On motion by Mr. O'Brien the reports were laid on the table.
REPORTS FROM COMMITTEES.
Mr. Scott, from the Committee on Education, returned his bill [S. 153] to amend the State Normal School act, with amendments inserting the sum of $32,006 83 to liquidate the indebtedness, and an annual appropriation of $2,000. Concurred in.
Mr. Daggy. from the Judiciary Committee, returned Mr. Taylor's bill [S. 105] to authorize the Courts of Common Pleas to determine the heirs of an estate, etc., with a favorable report.
He also returned the bill [S. 218] to amend section 16 of the real property alienation act, with amendments providing that deeds and mortgages shall be recorded within forty-five days.
He also returned Mr. Steele's bill ]S. 188] to empower executors to to enforce partition of real estate in certan cases, with an amendment.
He also returned the bill [S. 220] affording relief to counties and townships voting railroad aid, with a recommendation that it lie on the table.
He also returned Mr. Steele's bill [S. 210] to authorize counties and townships to aid railroads, with a similar recommendation, considering it as superseded matter.
Mr. Gregg, from the Judiciary Committee, returned Mr. Thompson's bill [S. 72] to amend section 397 of the practice act of June 18, 1852, recommending the passage of a new bill therefor relating to actions for money demand on contract, which was read the first time.
He also returned the bill [S. 217] to authorize satisfaction of mortgages in certain cases, with a favorable report thereon.
These reports were severally concurred, in.
JURORS' QUALIFICATIONS.
Mr. Boone, from the Judiciary Committee, returned Mr. Brown's bill [S, 107] in relation to the qualifications of jurors, recommending its indefinite postponement.
Mr. Brown said that this bill had been placed in his hands by Gov. Baker last session, and he regarded it as a very good bill. It provides that no person shall be disqualified from acting as a juror on account of his opinions as to capital punishment. One class of persons believe that what God has given to man no man has the right to take away; and there is another class who believe in the old Mosaic doctrine that he who sheds man's blood his blood shall be shed in return. There should be in the courts no inquiry upon this subject. This is a question of no trivial importance, and he was surprised that the Judiciary Committee should propose to dispose of this bill in so summary a manner. He moved that the report be amended so as to lay the bill on the table.
Mr. Boone favored concurring in the report of the Committee, for he thought the object of the bill was to do away with capital punishment entirely. This benevolent feature of the law has added to crime in this country, and nothing tends so to prevent high crime as the knowledge that severe punishment awaits it.
Mr. Orr could not endorse the doctrine advanced by the Senator from Jackson, (Mr. Brown) but would vote for the motion because it is hard treatment to indefinitely postpone a bill.
Mr. Brown disavowed that there is anything in the bill proposing to abolish capital punishment, but it makes the practice in the criminal court in accord with the humane statute allowing imprisonment for life in high criminal cases.
The motion to amend the report was agreed to.
So The report lays on the table.
REPORTS FROM COMMITTEES.
Mr. Boone from the Judiciary Committee, returned Mr. Hubbard's bill [S. 173] authorizing school trustees of towns to sell school property, with a favorable report thereon.
He also returned Mr. Taylor's bill [S. 138] prescribing the limitations on civil actions - on judgments or decrees of courts for ten years - with a recommendation that it lie on the table.
Mr. Gregg, from the Judiciary Committee, Mr. Carnahan's [S. 202] to amend section fifteen of the officers' new bond act, with a favorable report thereon.
Mr. Daggy, from the Committee on Organization of Courts, returned Mr. Beeson's bill [S. 119] page: 79[View Page 79] to amend the act establishing Common Pleas Courts, with a recommendation that it be indefinitely postponed.
Mr. Orr, from the Committee on County and Township Business, returned the bill [H. R. 59] to amend the supervisors' act, so as to call out hands not less than two nor more than four days in the months of March, April, May and June, with a favorable report thereon.
Mr. Ringo, from the same Committee, returned the bill [H. R. 69] denning the time for supervisors' annual settlement with township trustees, recommending that it be laid on the table.
Mr. Banyan, form the Committee on County and Township Business, returned Mr. O'Brien's bill [S. 144] to amend section four of the gravel road assessment act, with a recommendation that it lie on the table.
These reports were severally concurred in.
PUBLIC PRINTING.
Mr. Brown called up a message received from the Governor, transmitting reports from several State officers - the Auditor of State, State Geologist, Superintendent of Public Instructions, and Secretary of State Board of Agriculture, from which it appears that the public interest will be promoted by the completion of works now in the hand of the State Printer.
Mr. Dwiggins moved that the message be referred to the Committee on Printing.
Mr. Hough considered that these memorials ahould have been addressed to the officers in whose hands this subject has been placed by a joint resolution of the two Houses.
Mr. Chapman favored the reference of these papers to those gentleman, with instructions to report by next Tuesday.
Mr. Slater understood that the present prices are very reasonable.
Mr. Dwiggins accepted the amendment proposed by Mr. Chapman, and -
The motion, as amended, was agreed to.
Mr. Hubbard, from the select committee thereon, returned the bill [H. R. 137] authorizing Prosecuting Attorneys to open and close the argument, with a favorable report thereon.
The report was concurred in, and -
The bill was ordered engrossed, on motion of Mr. Brown.
Mr. Daggy offered a joint resolution authorizing a donation of a full set of Indiana Reports and Statutes to the Chicago Law institute.
Mr. Brown moved to amend by providing, in the same language, for a donation of a set to Judge Gookins, of Chicago - a former Judge of our Supreme Court
Mr. Chapman feared this would set a bad precedent, and he opposed it on general principles.
Mr. Slater also resisted any such proceeding.
Mr. Gooding thought this would be setting a bad precedent - one not correct in principle, and one the people would not approve of.
Mr. Brown then withdrew his amendment.
The joint resolution was then adopted, by yeas 41, nays 0.
NEW PROPOSITIONS.
Mr. Gooding introduced a bill [S. 231] for an act to amend an amendatory act of the Evansville city charter.
Mr. Neff introduced a bill [S. 232] for an act to regulate the sale of mineral oils and other substances for illuminating purposes.
These bills were read the first time and severally passed to the second reading.
The Senate then adjourned till tomorrow morning at ten o'clock.
