IN SENATE.
THURSDAY, Jan. 9, 1873 - ten o'clock A.M.Pursuant to a provision in section 9 article 4 of the Constitution of Indianathis being "the Thursday next after the first Monday of January"State Senators assembled in the Senate Chamber in the Capitol at the city of Indianapolis, at ten o'clock A. M. The Hon. George W. Friedley, the President of the recent special session, took the chair and announced that the proceedings would be opened with prayer by Dr. Black, Pastor of the First Christian Church of this city and President of the Northwestern Christian University.
THE ORGANIZATION.
Mr. Dwiggins, in order to ascertain if there be a quorum present, demanded a call of the Senate.
The President directed Mr. D. H. Olive, the Principal Secretary of the last session, to act as clerk in calling the vote. This service having been performed,
The President announced that there was but twenty-six senators present.
The following Senators answered to their names on roll call: From the county of Allen, Ochmig Bird; from the counties of Adams and Allen, John D. Sarnighausen; from the counties of Brown and Jackson, Jason B. Brown; from the counties of Carr and Fulton, Milo R. Smith; from the counties of Clinton and Boone, A. F. Boone; from the counties of Clay and Sullivan, M. B. Ringo; from, the county of Franklin, John Beggs; from the comities of Green and Owen, W. E. Dittemore; from the counties of Grant, Blackford and Jay, Asbury Steele; from the counties Howard and Carroll, Ad Armstrong; from the counties of Huntington and Wells, Hugh Daugherty; from the counties of Johnson and Morgan, M. R. Slater; from the counties of Knox and Daviess, James J. Williams; from the counties of Monroe and Laurence, George W. Freidley; from the counties of Laporte and Starke, J. H. Winterbotham; from the county of Montgomery, John F. Harney; from the counties of Ohio and Dearborn, R. Gregg; from the counties of Posey and Gibson, Marcus T. C. Carnahan; from the counties of Perry, Crawford and Orange, John Stroud; from the counties of Pulaski, White, Benton, Jasper and Newton, Robert Dwiggins; from the counties of Putnam and Hendricks, Addison Daggy; from the counties of Shelby and Bartholomew, Oliver J. Glessner; from the county of Vanderbugh, H. Clay Gooding; from the county of Vigo, Henry D. Scott, from the counties of Merrick and Spencer; Benoni S. Fuller; from the counties of Washington and Harrison, John A. Bowman.
Mr. Glessner moved for an adjournment till two o'clock P. M., as there was no quorum present.
The resolution was agreed to.
And so the Senate took a recess.
AFTERNOON SESSION.
The President resumed the chair at two o'clock P. M.
Mr. Scott moved that the Senate adjourn.
Mr. Dittemore and another Senator near him demanded the yeas and nays, and the same being ordered and taken resulted - yeas 9, nays 19.
Mr. Dittemore moved that the doors be closed and the absentees be sent for.
The President. That motion is not in order, as the Senate is not organized.
THE ORGANIZATION.
Mr. Gooding moved a call of the Senate. This order being executed, answers were made as follows: Ochmig Bird, J. D. Sarnighausen, Jason B. Brown, Milo R. Smith, A. F. Boone, M. B. Ringo, James Orr, John Beggs, Abet W. Hall, W. G. Dittemore, Ad. Armstrong, Hugh Daugherty, Hervin Francisco, M. R. Slater, James D. Williams, Geo. W. Friedley, J. B. Winterbotham. John F. Harney, R. Gregg, M. T. Carnahan, J. Stroud, Robert Dwiggins, Oliver J. Glessner, H. Clay . Gooding, Harvey D. Scott, Benoni S. Fuller, John A. Bowman.
The yeas and nays were demanded by Messrs. Dittemore and Bird.
Mr. Brown. I rise to a point of order. Senators have no right to call the yeas and nays until after the body is organized. This body is not acting under any rule. We are but trying to organize.
page: 18[View Page 18]Mr. Dittemore (in his seat.) Trying to organize?
Mr. Brown. Yes sir, trying to organize. The Constitution provides that 34 members shall constitute a quorum to do business, though a smaller number may meet and adjourn from day to day and compell the attendance of absent members. That all has reference to proceeding after the body has been organized. The calling of the yeas and nays is a matter provided for by the body after it has been organized. The calling of the yeas and nays is a matter a party has the right to have done by reason if some law or rule governing an organized body. But where there is no organized body there is no law or rule governing it at all. The Senate is not organized but is in process of organization. It is seen that there are not enough persons here to organize. The next question is: What is to be done? It is to adjourn to give persons belonging to the Senate an opportunity to come in and participate in the organization. Calling the yeas and nays, making motions to lay on the table and the introduction of bills and resolutions are all in the category provided for by rules and regulations applicable to and governing an organized body. There is no such thing here, and for that reason nobody has the right to call the yeas and nays; and all that can be done is to adjourn.
Mr. Williams. I will call the attention of the Chair to the 2nd rule. "Nine Senators, with the President or ten in his absence, having chosen the President pro tem shall be authorized to call a Senate, compel the attendance of absent Senators, make an order for their fine or censure, and may adjourn." special session.
Mr. Gooding suggested - These are rules of the
Mr. Williams. True, of course; but it is common sense, and that ought to govern till we have rules.
Mr. Brown. I hate to lock arms with so good a parliamentarian as the Senator from Knox (Mr. Williams) who is always so earnest and sincere. But I am constrained to doubt his sincerity a little to-day. The rule which he read refers to an organized body that had adopted it for its government. Now, if the body was organized, and had adopted this rule as one of a series for its government, then if the Senators from Knox, Owen, Allen and several others should absent themselves, why nine Senators with the presiding officer would have power to send for them and compel their attendance, because then they would be authorized to do that by a rule of an organized body. In the absence of a rule for it, there is no authority to call the yeas and nays, and nothing could be done but to adjourn from day to day.
Mr. Slater suggested, if we have a President pro tem., we have an organized body.
Mr. Dittemore. I take this position under the second rule, that if there is a disposition not to send for absentees, that there is a sufficient nnmber of members present to enforce the rule: and that is to proceed to elect a pro tem, and send for absent members; and I desire to make the motion that we proceed at once to elect a President pro tem.
The President. The motion is out of orderthere is already a motion pending.
Mr. Dwigging. The question is upon the right of Senators to call the yeas and nays. There is not, perhaps, a Senator on this floor, except the Senator from Knox, who will insist that these rules are the rules of this Senate. This Senate has adopted no rules, and the only thing we can be guided by at this stage is the constitution of the State. The eleventh section of article four provides as follows: "Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members. A quorum being in attendance, if either House shall fail to effect an organization within the first five days thereafter, the members of the House so failing shall be entitled to no compensation, from the end of the said five days, until an organization shall have been effected."
Mr. Brown - I rise to this point of order, that this assemblage here this afternoon is irregular. We have no business here. If we do our duty we will take our hats and leave. The Senators not here have more sense than we. The Constitution says: "two-thirds of each House shall constitute a quorum, to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members. A smaller number met this morning; a less number than a quorum was here; and the record shows it. An adjournment was made, and the record shows it; and the Constitution says that adjournment is from day to day; and that carries it over till to-morrow.
Mr. Dwiggins. That is the point I was about making. [Laughter.] As I was proceeding to remark, the only legitimate argument that can be drawn from the latter part of the constitutional provision is that when there is less than thirty-six Senators present, we can only adjourn from day to day. I say all that can be done is to meet once on each day and order the call of the Senatorial Districts of the State, and if less than thirty-six Senators respond, all they can do is to adjourn till to-morrow.
Mr. Glessner. The Senator from Jasper [Mr. Dwiggins] has been discussing what we can do with reference to an adjournment. I understand the question to be as to whether Senators can demand the yeas and nays on a motion to adjourn.
The President. That is the question before the Senate.
Mr. Dwiggins. If I have not satisfied the Senator from Shelby, [Mr. Glessner] that this can not be done, I am sorry. It seems to me that it is the duty of the President pro tem of the last Senate as soon as the call of the Senatorial districts has been had and there is found to be no quorum present, to announce that there is not 36 Senators present and he can not proceed with the organization of the Senate and therefore declare the Senate adjourned till tomorrow.
Mr. Slater. I will ask if it would not be in order to move that the absentees be sent for?
Mr. Dwiggins. There is no power to compel their attendance until we have a quorum. Show me authority under the constitution by which we can place a Senator under arrest. Who is the officer of the Senate to issue, the warrant? or where is the sergeant-at-arms to execute that warrant?
Mr. Williams. We are either Senators, or we are not Senators. Why we are called by counties I can not understand. I presume there will be no order to swear in Senators this session for there are none but what have been sworn in. If there is no organization, why did the President take the chair? Now, if we have the right to go on and do business, and I think we have. I think we have the right to have Senators called by their names. I don't think the Chair will order a Judge of the Court to swear us in; and I page: 19[View Page 19] think we have the right to call for the yeas and nays on a motion to adjourn, or on any other question; and I think we have the right to close the doors and send for absentees.
Mr. Glessner. There has been a motion made to adjourn, and the yeas and nays being called for. A point of order was made, that a minority of the members present could not call the yeas and nays, and for the reason that the body is not organized - that we have no rules by which this body could be adjourned.
We all understand that the action of this body or of any other body, in the absence of other special rules, is governed by the recognized parliamentary usages. We have met to-day under the Constitution with a view of organizing the Senate and proceeding to business. On examination of the Constitution we find that there is less than a quorum present. All we can do, therefore, is to meet and adjourn over from day to day, or send for absent members. Now in the absense of standing rules we are governed by the recognized parliamentary usages. If so we have the right to have the yeas and nays called, and we have the right to direct the manner in which the call is to be taken. If we are not organized, a majority of the members present can determine in what way the oath can be taken. Therefore, when we demand the yeas and nays shall be taken, the presiding officer, or the person occupying the chair, should allow himself to be directed in what way to put the vole in the absence of specific rules. Therefore, I say that when a question is put we have the right to say as to whether we shall have the yeas and nays called or not.
Then, as to the question raised by the gentleman from Jasper (Mr. Dwiggins), and also the Senator from Jackson (Mr. Brown), that under the constitution, in the absence of a quorum, nothing can be done but to adjourn from day to day, except to send for absent members. The Senate met this morning, and the adjournment went till two o'clock this afternoon. Under the constitution, even construing it strictly, may we not meet in the morning and adjourn to the afternoon, and then to the next day?and would not that be adjourning from day to day under the constitution?
It will not be controverted that it has been the usage from time out of mind, in the absence of a quorum, to submit the question to the body as to what moment it will adjourn. It has been the usage of the Legislature of Indiana, and, I presume it has been the usage of the Legislature of Indiana, and, I presume, in all other bodies, to submit the question to the body as to what moment it will adjourn. Therefore, the joint made by the gentleman from Jasper is no point at all. The idea that a presiding officer has any right over the voice of the majority, although no quorum may be present, to declare this body adjourned, can not be recognized. With that view I think we have the right to make a motion to adjourn, and that it ought to be entertained ; and when the yeas and nays are demanded, especially by a majority of the body, the question of adjournment should be determined in accordance with the directions so made by the body.
Mr. Scott. I am in doubt whether anybody knows that there are any Senators here or not. I never heard of this body or the one in the other end of the Capitol being sworn before doing business. And I doubt whether we have any right to be. I may be right or I may be wrong on the question of swearing.
Mr. Harvey. I find, in looking over the list, that there are some four or five or more Republicans now in the city and not in their seats, which has the appearance of a disposition on their part to break a quorum.
Mr. Scott. I understand that until a quorum answer to their names upon a call by the Clerk, the Senate can do no business, because it is not an organized body. It is nothing. Suppose they never come? What is the remedy? The Governor must order an election from the districts where parties do not appear, and you can't put your finger upon a law that will compel a man to come here who has not appeared at this session.
Mr. Williams read from Jefferson's Manual authority for a less number than a quorum to send the Sergeant-at-Arms, or any other person or persons, for absent members. He asked Mr. Brown: Has not Marion county got two Senators?
Mr. Brown. Yes, sir.
Mr. Williams. They are not here.
Mr. Brown. I can't help that.
The President. The Chair is of the opinion that it is not in order to demand the yeas and nays at this time. The motion to adjourn was rejected by a viva voce vote.Mr. Brown demanded a call of the Senate.
The President directed a call by counties and districts.
It was taken, and -
Mr. Neff, from the county of Randolph, and Mr. Wadge, from the counties of Lake and Porter, having appeared since the last call -
The President reported twenty-eight Senators present and answering.
Mr. Dwiggins moved that the Senate adjourn,
Messrs. Dittemore, Williams and others demanded the yeas and nays, but the President declared the motion carried, and that the Senate was adjourned till to-morrow morning at ten o'clock.
