THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
The Organization of the Senate --- Debate in Continuation.
IN SENATE.
THURSDAY, January 9, 1873.[CONTINUED FROM PAGE 19SECOND PARAGRAPH FROM TOP OF SECOND COLUMN.]
[Afternoon Session.]
Mr. SCOTT. I understand that until a quorum answers 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 the 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. Unfortunately for the gentleman's argument we have none of that kind.
Mr. SCOTT. But we are trying to get a quorum.
Mr. WILLIAMS. Not of Senators who were never here.
Mr. SCOTT. It don't make any difference whether they have been here or not.
Mr. DITTEMORE. I desire to get a little light from the Senator for Vigo, [Mr. Scott] on this Constitutional provision: "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."
Mr. SCOTT. A smaller number of what?
Mr. DITTEMORE. Of Senators of this body.
Mr. SCOTT. I beg your pardon. Read it again.
Mr. DITTEMORE. "Two-thirds of aech House shall constitute a quorum to do business ;"Mr. SCOTT (interposing.) What is a House?Mr. DITTEMORE (continuing,) "but a smaller number may meet, and adjourn from day to day, and compel the attendance of absent members."
Mr. SCOTT. But you must have a "House" before you do that; and you can't have a "House" without a quorum.
Mr. SLATER. The Senator from Vigo, [Mr. Scott,] is certainly disposed to be very technical.
Mr. SCOTT. I don't want to be. The only difficulty we find is that we ain't got men enough to form a quorum, and what are you going to do?
Mr. DITTEMORE. Send for them.
Mr. SCOTT. Who will you send ?
Mr. WILLIAMS. Officers.
Mr. SCOTT. We haven't any.
Mr. DITTEMORE. Send the Sheriff.
Mr. SCOTT. I would like to see an officer take me by color of authority derived from this body. But there is no doubt about this point: Enough members have not answered to make a quorum; and what are you going to do? Suppose we meet to-morrow and they don't come, what are you going to do? We can only wait for the Governor to order a new election, as I understand it. I admit page: 277[View Page 277] that some rules of an organized body come in here. The general law prevails in this body although not organized. The ordinary parliamentary law would apply, and we are governed by that in matters of decorum, I admit: but, when you come to the other point we simply lack members enough to have a House. We can talk here from now till the middle of next week, if we want to, without a quorum being present.
Mr. SMITH. I rise to a point of order. There is nothing before the Senate.
Mr. SCOTT. I agree with the Senator exactly on that point; but he is too late in making the point on me.
Mr DWIGGINS. I rise to a point of order. The point of order that I make is that there is no Senate for anything to be before.
Mr. ORR. I understand the Senator from Vigo has the floor and has not yielded it. He is still standing.
Mr. BROWN. That is a way the Senator has of taking his seat. [Laughter.]
Mr. SLATER. I would like to ask if the Senator knows that these absent Senators will not come in, or have bolted to prevent the repeal by the Senate of that outragethe odious apportionment bill passed at the last session. [Renewed Laughter.]
Mr. WILLIAMS. I am happy to hear that the Senator from Vigo [Mr. Scott] acknowledges that there is some law to govern us; and I hope the Senator will not take it back. Mr. W. read from Jefferson's manual page 27, authority for a less number than a quorum to send the Sergeant-at-Arms, or any other person or persons, for absent members, and said: There are members here who have been sworn in as Senators, the presiding officer is in the chair, and they have the right to send for members of the Senate who have been sworn in.
Mr. STEELE, (interposing.) Is there a Senate here?
Mr. WILLIAMS. When we have no Senate we may send for absentees; and if we have no Sergeant-at-Arrns we may appoint one.
Mr. BROWN. We are again the victims of what the Senator from Knox [Mr. Williams] frequently brings in here for the purpose of taking, not intentionally, unfair advantage of Senators, not so well versed in Parliamentary Law as himself. The Senator has brought in a rule for the government of the Senate of the U. S. when it becomes an organized body, which was adopted in 1868 or thereabouts. The Senator from Vigo [Mr. Scott,] is right about the matter. The 10th section, of Art., IV of the Constitution provides :"
Section 10. Each House when assembled shall choose its own officers, (the President of the Senate excepted,] judge the elections, qualifications, and returns, of its own members, determine its rules of proceeding, and sit upon its own adjournment. But neither House shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which it may be sitting."
This has reference to what a body may do after it is organized. The next section provides: "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." This also applies to what a body may do after it is organized. It is laying down rules for the government, action and conduct of a body after its organization. It provides that after you have a Senate organized and equipped for the transaction of legislative business, that a less number than two-thirds may meet, adjourn from day to day, and compel the attendance of absent members. The 12th section provides:"
SEC. 12. Each House shall keep a journal of its proceedings, and publish the same. The yeas and nays, on any question, shall, at the request of any two members, be entered, together with the names of the members demanding the same, on the journal: Provided, that on a motion to adjourn, it shall require one-tenth of the members present to order the yeas and nays."
This has application to the action of a body after it is organized, therefore I may well say that we have no power to call the yeas and nays. There is no power to go beyond the inquiry whether the number of Senators are present which the Constitution requires as sufficient to do business. It is perhaps a weakness on the part of the Constitution that there is no section in it authorizing less than a quorum to compel absentees to come in before an organization is effected. I suppose that the good men that made the Constitution, thought the members of the Legislature would always come together at the appointed time, and so there was no provision made that in case of a failure of the requisite number coming together to organize, those who did come should compel the attendance of those who did not come. The idea of sitting here and calling the yeas and nays, is outside and not inside the Constitution. There is no rule governing the conduct of the persons here trying to perform a little of the duties of Senators. I should like to see the Senator from Knox [Mr. Williams,] fasten his grip upon some one he thought to be a Senator, and try to compel that one to come here and participate in the deliberations, or an attempt to organize the Senate. It is only after the Senate is organized that you can compel the attendance of absentees. Therefore, as I said a while ago, when we met this morning, and adjourned, we discharged all the legislative functions the Constitution has clothed us with. It was an page: 278[View Page 278] adjournment until to-morrow. The Constitution so fixes that adjournment, and it has been a mistake that we assembled this afternoon. Let us do what I think is a reasonable and proper thing; let us rise and come back tomorrow, and see whether a sufficient number is then present to complete and perfect an organization. If not, then do what the Constitution says - adjourn till next day. After giving it a fair trial, if no quorum appear then the organization of the Senate goes by default by reason of the absence of persons who should appear here. There is no power in the Constitution to punish them for it, and no power to bring them here. It is simply resting upon; their good faith they impliedly gave to the people that elected them, that they should appear at the time the Constitution says they should appear.
Mr. WILLIAMS (interposing.) Has not Marion county got two Senators, elected and qualified?
Mr. BROWN. Yes sir, she has.
Mr. WILLIAMS. They are not here.
Mr. BROWN. I can't help that. They are elected and qualified; I concede that: at the same time Senators must agree with me that before any legislative action can be had there must be an organization of the Senate: and until that organization has been had and perfected, there is no power to send for these absent Senators and bring them in. They come voluntarily or they do not come at all. It is with their consciences for them to determine, and there is nothing in the Constitution to compel their attendance.
Mr. ORR. The Senator from Shelby [Mr. Glessner,] told the Senate that the gentleman; from Jackson [Mr. Brown,] didn't make a good point on the Constitutionality of the subject now before us. I will say now to the Senator, and if the Senator ain't here, I will say to the audience that I will not agree - never would I agree with the Senator from Jackson when he was wrong; but I concede that the gentleman from Jackson made a good point on the Constitutionality of this question, which I think settles it. There is no doubt of it. The 11th section of the Constitution in Article IV settles it clearly. It says "two-thirds of each House shall constitute a quorum to do business." As I regard it there ain't two-thirds of the Senate here. The Constitution goes on to state: "but a smaller number may I meet, adjourn from day to day, and compel the attendance of absent members." I have been informed that you met here and adjourned. Now that adjournment carries you over till to morrow according to the Constitution. That is the point the gentleman from Jackson made, and I say he has the right on that point.
Mr. DITTEMORE. The proposition before us, as I understand it is as to whether wehave a right to call the yeas and nays upon a motion to adjourn. [The motion was made immediately after the call of the Senate this afternoon, upon which motion Messrs. DitU -more and Bird demanded the yeas and nays, y-printed immediately before the last paragraph on page 17 of this book.] I desire to make ;i remark or two in reference to that point. The discussion has taken a wide range, and I have not been edified by any arguments as to whether we have the right to call the yeas and nays or not, but I have a reason why 1 think we can have the yeas and nays at any time. It is obvious that a proposition' to call the yeas and nays is always in order, for the reason that if it is not allowed, the presiding officer might assert a power that does not belong to him, There is but one or two things the presiding officer can do, either declare the body adjourned on his own volition, or allow the yeas and nays to be called. The voice of the majority of the Senate should be received and their votes should be recorded for or against this proposition.
Mr. GOODING. It seems to me the only proper thing to be done is for the chair to prorogue this body, as has been suggested. This morning we were in session under the Constitution, and there not being a quorum present; a motion was made to adjourn; that motion was carried and the adjournment was under the Constitution till to-morrow. Our session at this time is clearly a voluntary assemblage, and not a meeting of the Senate. It strikes me we are not in a position to entertain a motion to adjourn, or call the yeas and nays, but we should simply disperse. I think a call for the yeas and nays is out of order. The only proper thing is for the chair to declare that we have assembled by mistake, the Senate having adjourned this morning, under the Constitution it was adjourned till to-morrow.
Mr. DITTEMORE. Can the Senator give us an intelligent answer as to when his brethren will be in?
Mr. GOODING. I would refer the gentleman to the Senator from Montgomery who has more information on this subject, probably, than any Senator on this floor.
The PRESIDENT. The Chair is of the opinion that it is not in order to demand the yeas and nays at this time. The question is upon the motion to adjourn. As many as are of the opinion that the Senate should adjourn will say "aye." [After the response.] Those of a contrary opinion will say "no." [After the response, a division being called for.] Those voting in the affirmative will please rise.
Mr. STEELE. I rise to a point of order. Nobody made a call for a division.
Mr. BROWN. A division is provided for by the rules, and we have none.
The PRESIDENT. The Chair will take the vote again upon this question.
page: 279[View Page 279]Mr. BOONE. I rise to a point of order. As I understand the authorities as they have been ably discussed, there is only one thing this body can do. It has to do an affirmative thing, and that is to adjourn. It can't refuse to adjourn if I understand the authorities. This body not having a quorum will have to adjourn. It can't do a negative thing. It can't refuse to adjourn at all;a negative vote counts for nothing.
The PRESIDENT. I believe a division was called for. As many as are of the opinion that the Senate should adjourn, will say "'aye." As many as are of a contrary opinion say "no." I believe the motion does not prevail.
So 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 to their names.
Mr. BROWN. It is apparent that we cannot get a quorum this afternoon. I think we have tried as fully as it can be reasonably expected we should. We have already expended a great deal of moral energy in attempting to get a quorum but have failed. For some reason or other a good many Senators wha don't belong to the Republican party are not here, and for some reason or other some Senators who do belong to the Republican party are not here. I do not know why it is so.
Mr. WILLIAMS (interposing.) Does the Senator yield the floor ?
Mr. BROWN. Yes sir.
Mr. WILLIAMS. I move that the absentees be sent for.
The PRESIDENT. The motion is out of order.
Mr. BROWN. Coming back to where I started: There is no need of staying here any longer, and I trust the President of the Senate will exercise the right the Constitution reposes in him, and declare the Senate adjourned.
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 until to-morrow morning at ten o'clock.
