THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Notre Dame du Lac University.---Debate in Continuation
HOUSE OF REPRESENTATIVES.
FRIDAY, January 17, 1873.[CONTINUED FROM NEAR THE BOTTOM OF PAGE 49.]
[Morning Session.]
Mr. BUSKIRK, from the Committee on the Judiciary, returned Mr. Butterworth's bill [H. R. 143] for an act to amend section 1 of the act to incorporate the University of Notre Dame du Lac in St. Joseph Co., near South Bend, Ind., approved January 15, 1844, with a recommendation that it pass; but qualifying so as to express the preference of the committee to report the bill with this recommendation and leaving the place blank where it is written - "$300,000," as the maximum limitation of the amount of real estate which the corporator may hold. He said: The bill provides that the corporation shall be permitted to hold real estate to the amount of $300,000, while the committee were not prepared to say what this limitation should be. They agreed to report the bill back with a favorable recommendation, but so as that the amount may be fixed by the House at the suggestion of the framer or the bill or some one else.
Mr. BUTTERWORTH. At the proper time I shall move to put in "$300,000."The bill was now read by the clerk.Mr. BUTTERWORTH. The reason why I would make it $300,000 is this: their real property has become very valuable - this institution being near the city of South Bend. It is a Catholic School - one of the largest in the United States, embracing in its departments of learning a manual Labor School.Their charter now allows them to hold real estate to the value of $30,000; but the people of the country around have become wealthy, and their real estate original and acquired is now actually worth about $300,000; and the difficulty is, that they can't hold it under their present charter.
Mr. HENDERSON. There is no difference in the purport of this bill and that which I introduced during the last session - the bill No. 195. This is a leading Catholic Institution - the foremost in the State. - Sometime in 1841, I think it was, these agents purchased a tract of land in St. Joseph county, when land was cheap, and thereon they built this University and were incorporated in 1844. Since that time all real estate there has increased in value. Under their old charter, $30,000 worth of real estate was all they could hold. But now they hold real estate to a much larger amount. I presume their real property to be actually worth at least $300,000. And as the bill cannot effect any other Institution or any other people than the people of St. Joseph county, I hope the report of the committee so fas as the blank is concerned will not be concurred in; and that the bill will be passed with the provision for $300,000 or that that amount will be restored to the bill.
Mr. GIVAN. It seems to me that the proper question is: shall the report of the committee be concurred in so far as the page: 324[View Page 324] recommendation as to the blank is concerned.
Mr. BUSKIRK. The committee intended to report in favor of the passage of the bill, but were not prepared to say as to what should be the proper amount of real estate that should be held by the corporation. Therefore we thought it best to refer this question to the House. The report recommends the bill in its general features, but this amount $300,000 is ten times as large as $30,000 - and whilst it was the mind of the committee that the House ought to bo satisfied as to that point, it now seems to the that the amount is not too large.
Mr. HENDERSON. To leave out the amount of $300,000 would destroy the bill. Now it seems to me that it ought to be sufficient to satisfy the House to say that my colleague and myself have canvassed this matter thoroughly among our constituents, and they are satisfied that the institution could not well get along with less.
Mr. SHIRLEY. There is a law now in force in this State that deprives other educational institutions of the privilege which this bill proposes. As individual corporations are debarred from increasing their real estate beyond $40,000 the committee thought these institutions should be placed on an equality in this respect - which could not be the case if we allow this institution to hold $300,000 worth, whilst all the others are restricted to $40,000. That is where the trouble grew up in the committee on corporations. We thought it impolitic to give the right to one institution to hold $300,000 and deny that right to all others.
Mr. HENDERSON. It is not the intention of this bill to give them $300,000, but it is to so amend their charter as to enable them to keep what they have got.
Mr. BUTTURWORTH. There is a law which confines the ownership of real estate by such institutions to $40,000. But this bill is for the amendment of a special charter, which does not come under the general statute. I think with the gentleman from Morgan and Johnson, (Mr. Shirley,) that all these institutions should be placed on an equality ; but considering that this is a special charter; and that charter allows them to hold but the insufficient amount of $30,000 in real estate; and that all beyond that amount must be held for them in trust by individuals, I think their rights in this respect ought to be increased - especially since they can in no way conflict with the general interests of the state; but on the contrary this is an institution beneficial to the people and it is very creditable to the State. The University of Notre Dame du Lac stands highest among the Catholic institutions, and prominent among all the institutions of learning in the West. This bill will in no way relieve them from taxation; and the people of our county do not object to it for it is well understood there that the necessity for this amendment grows out of the fact before stated that their lands have become very valuable.
Mr. WOOLLEN. Are all these lands used by that Institution?
Mr. BUTTERWORTH. They are all used by the Institution. They are a brotherhood - their lands are used for farming.
Mr. WOOLLEN. It seems to me that we ought to grant the right to any Institution of learning to hold an amount of property that is necessary for the purposes ef education therein, whether it be $40,000 or $300,000. The purpose of the committee as I understand it, was simply to ascertain whether the property was held for the purpose of enabling them to operate strictly as an Institution of learning, and to let them have property of sufficient value fer that purpose.
Mr. WILLSON of Ripley. It seems to me that to pass this bill would be the exercise of a very dangerous power, I cannot consent for this Legislature to secure to them the power to increase the value of their property to an amount exceeding that which they can hold by law. This granting of special privileges to ecclesiastical institutions is against the policy of this government. We have only to point back a few centuries to the example of England in this direction to see how these institutions engrossed nearly all the property of the kingdom.
Mr. WOOLLEN. That is going to far, this is simply to give them the right to hold the property they have now.
Mr. WILLSON. If that is all why not provide simply that they shall not be divested of their title to property on account of increase of value? That could be easily done. But if we give them tho power to increase the value of their property to $300,000, - we might as well say three millions, or three hundred millions. It is dangerous, because it takes that property out of commerceit makes it dead property; and I say again we have a parallel case in England. We have a number of institutions of learning in this State, and they will all come in asking for the same increase of powers. I feel and see the danger to which we may drift, and that the present is not the last nor the least grant of power that will be asked, and if we extend it now, it will be an admission that we may do so indefinitely.
Mr. THAYER. I do not think the gentleman from Ripley understand the case. If he did understand it I do not think he would make an unkind speech with regard to the Institution. The value of the property of this institution has increased and so has the value of page: 325[View Page 325] the institution itself; and the number of its students has very greatly increased, and the institution has done a great deal of gooda great many citizen of the State sending their boys there obtain for them a good practical education. This institution is near the city of South Bend, and the land which they purchased there thirty or forty years ago for $2 50 an acre is now worth $250 00 an acre. Instead of repelling them we should confess and avow that these manual labor schools are the very things we want. We should do this rather than intimate that they are greedy of large amounts of property and withholding it from commerce. As for myself, whenever I have an opportunity to give my vote for the benefit of the children of the State, it will not be withheld.
Mr. OGDEN. I have nothing to say against the institutions of learning in the State. So far as my vote goes, it shall be given in aid of those institutions. But I believe it bad policy to foster such institutions by special laws. I would disabuse the mind of the gentlemen from Morgan and Johnson (Mr. Shirley) of this one thing: and that is, that the general laws allow these institutions but $40,000. This is not the case. They can hold any amount under the law of 1867. But I believe that this law if passed would be unconstitutional. The constitution says all laws shall be uniform in their operation. And if this institution could acquire nothing but what they had under their special charter, I believe they could come under the provisions of the special law.
Mr. SHIRLEY. I made my statement on the authority of the gentleman from Putnam himself.
Mr. OGDEN. The gentleman had better examine the law for himself.
Mr. HENDERSON. The property has increased in value, and it is all used for the benefit of the institution. They have large farms and shops for laborers. Scarcely a trade but is represented there. They are all the time full of students. They only want to keep what they have got. They have improved their property and could not very well divide it.
Mr. COBB. My impression is that the phraseology of the bill is different from the speech of the gentlemen. I, like the gentleman from Ripley, (Mr. Willson,) want to act a little cautious in this matter, knowing the general character of these institutions for public encroachments. I would like to go slow in this matter, and weigh the provisions of the bill pretty thoroughly. Therefore I would like to have it printed. I make the motion to lay it on the table and print.
Mr. MILLER. I could be willing to do almost anything for such an excellent institution, but I have peculiar views in regard to these corporate privileges. I am opposed to the recommendations of the committee. We must have some general policy in regard to these corporations. We should be admonished of the past before we proceed further in granting additional franchises to these corporations, by way of amendments to heso special charters of institutions incorporated before the taking effect of our present Constitution. There is a clause in the Constitution of the U. S. that has given rise to many law suits growing out of statutes of the character of that which this bill proposes to amend ; and it says that no law shall be enacted by any State that will impair the obligations of contracts. And the Supreme Courts of the U. S. the Supreme Court of the State of Indiana, and nearly every other State in the Union have decided that this clause of the general Constitution applies to powers granted to corporations so that if a State grants certain franchises to a corporation they are inviolable - they can't be taken back without the consent of the corporation - and I am obliged to say that this is becoming the bane of legislation in the State of Indiana,these private privileged corporations. When we undertake to pass a railroad law we are met with the claim that such and such Railroads are operated under special charters, and like the Jeffersonville Co. they will put off a passenger between stations with impunity. We provide that such a thing cannot be done; and the Supreme Court decides that our statute does not apply to the Jeffersonville Company.He showed further from the case of Edwards against Jackson, 19th Ind. Reps. p. 476, where a private seminary had been incorporated as the Switzerland County Seminary, previous to the adoption of the Constitution of 1850, that neither the constitutional provission requiring the sale of the County Seminaries and the proceeds to go to the common school fund, nor the act of the General Assembly in pursuance thereof could dispossess those private corporators, and the result was that the Supreme Court held a section of the Constitution itself to be unconstitutional and void in regard to those corporate rights. And he reasoned further to show that these tendencies in our legislation were like revolutions they never go backward. It becomes utterly beyond the power of the Legislature to alter or amend these special charters so as to protect the people against their encroachments. Hence the wisdom of Article xi, Section 13 of our present State Constitution, which prescribes that corporations, other than banking, shall not be created by special act, but may be formed under general laws, for which the other day here the Vice President of the U. S. claimed page: 326[View Page 326] special credit in behalf of the Constitutional Convention of 1850, - because it is against public policy - against the policy of the State to grant these private charters. Now, if it is not good policy (and I have no question about it in my mind - ) to grant these private charters, why should we entertain this proposition to take the corporators of an old charter and increase their money power from $30,000 to $300,000?thus making a mountain out of a mole-hill. If this should not be done in the beginning, why should we increase the franchises of a corporation already in existence? He then referred to and read from the decision of the Supreme Court of the U. S. in Dartmouth College case and quoted the opinion of a professor in the Law School of Michigan University, and alleged that the same principle is involved here which was, as he thought, unwisely acted upon at the last session, in the grant of power to a certain Insurance Company to water their stock, etc. He insisted that the Notre Dame folks could come in and organize under our general corporation law, and hold all the property they need, and so hold their corporate existence subject to the Legislature - to alter, repeal etc. He would leave tbem to the enjoyment of the same advantages allowed to all other corporations. He continued: Again, I question the policy of allowing them to hold $300,000 worth of real property, exclusive of improvements. Then I understand that they are not subject to taxation; and therefore, besides their chronic hostility to the common schools, they do not contribute one cent to the school fund of the State. As for myself, sir, while I am a member of this honorable body, whenever a special charter comes before the House asking to become perpetual, or for an increase of franchise, I shall vote all the time and uniformly against everything of the kind.
Mr. BUSKIRK. In behalf of the Judiciary Committee, I desire to answer some of the remarks that have fallen from the gentleman from Decatur (Mr. Miller.) He has taken it upon himself to edify the House on the subject of these institutions in general. He has deemed it necessary to explain to the House the Dartmouth College case, and the opinion of the Supreme Court of the United States, to the effect, that after certain franchises have been granted an institution of this character, they can not be taken away by the action of the Legislature. He might have said further that in that celebrated Dartmouth College case Daniel Webster made a speech, in which he sees proper to make an attack upon institutions of this character which, in its general features bore a close resemblance to the attack made this morning by the gentleman from Decatur. Now it seems to me that in making this assault upon the recipients of certain vested rights that the gentleman has drawn upon the time of the House for the consideration of what is not at all before the House - that he has been breaking his lance against a wind mill. It seems to me that there is not a proposition in this bill which is in any way connected with the learned opinions of the Supreme Court of the U. S. to which the gentleman refers; because no one can hardly be willing to take away property belonging to the institution at South Bend. The property which is sought to be covered by this bill hag long been owned by that institution. It is not intended to confer any power to acquire new property. It is simply and abundantly shown here, that $300,000 in full does not more than cover the value of the property now owned by that institution. As I understand it, this institution now holds by sufferance all this real estate in excess of $30,000, and this bill is simply to give a law for them to own and possess what they now hold by sufferance and if we refuse this it will be refusing to them the right to hold their own property. We do not propose to give to that corporation any new right, nor to confer on them any new or peculiar privilege; but simply to recognize the legal claim they have to the land they now hold. While the Committee on the Judiciary is prepared to leave the amount to the gentleman from St. Joseph (Mr. Butterworth) the gentleman from St. Joseph goes upon the record and says that $300,000 only represents the amount of property they now actually hold. The gentleman from Decatur also takes occasion to make an assault on all institutions of this kind, and intimates that we must regard them with the utmost jealousy. I can't see what that has to do with this bill; for the only other institution of thin kind which is to come before the House with such a request is the female Catholic Institution near Terre Haute. He either means in this way to occupy the House with matter which has no relevancy to the issue before the House; or he would illustrate Don Quixotte and remind us of one of the adventures of that chivalrous Knight, when he found himself in a chamber where there were numerous large leather butts of winelarge leather caskets; and he imagined them to be giants or demons (just as the gentleman regards the institution at South Bend;) so he drew out his sword and began to fight them, and the result was that the stores of precious wine were spilled on the floor. And such I suppose is to be the result of the gentleman's unsheathing his creanehant sword to-day to deprive this institution at South Bend of property which they have acquired as page: 327[View Page 327] honestly as the gentleman ever acquired any property of his own.
Mr. COBB. According to the phraseology of this bill, if they do not hold $300,000 worth of property, would it not be authority to them to go on and purchase other property and hold it to the extent of $300,000?
Mr. BUSKIRK. Undoubtedly it would. That is the reason of the report submitted from the committee on corporations, and the occasion of the remarks that has been submitted by gentlemen in regard to the amount of property belonging to that institution.
Mr. WILLSON of Ripley. If gentlemen are really in earnest, and do not desire this corporation to purchase and hold property beyond what they now have, I will offer an amendment that would make it incapable of doing so, I move to recommit the bill to the committee on the Judiciary with instructions to amend it, by providing that they may purchase and hold property to any amount not exceeding in value that which is prescribed in their charter. I think there can be no possible objection loan amendment of this kind. Now, we have another similar application from the Catholic Institution at Terre Haute. I do not see why we should grant privileges to to them which we do not extend to other similar institutions. I will stand on this amendment.
Mr. WOOLLEN. Under the general law the North Western Christian University here at Indianapolis holds property perhaps to the extent of half a million, I would not discriminate between these institutions. It seems to me that the bill proposes to give to the Notre Dame no more than what all other religious colleges have. I do not think we ought to make record here of a feeling that would discriminate against any of them. So long as they hold property only for the enjoyment of their corporate powers, let them have it. Or, if we do not thus, what shall we do with these institutions? Shall we abolish them? or any certain class of them? A very few acres of land in some places would be worth more than the amount proposed in this bill. This Institution simply conies here and asks to have the law changed so that they may hoid the properly thev have now.
Mr. WILLSON of Ripley. If the bill is amended as I propose it will give all you ask.
Mr. WOOLLEN. I think the bill accomplishes what you desire any way, and the recommitment may put it in such a nhape that it will discriminate against this institution.
Mr. BUTTERWORTH. I move to lay the motion to recommit with instructions on the table.
The motion was rejected on a division.
Mr. WALKER. I see no use in referring the the bill again to the Judiciary Committee.
Mr. MELLETT. I hope the amendment to the bill will prevail. I think it is all its friends can ask. I am opposed to any extension of the powers and franchizes of these corporations. I think the policy is unfriendly to society and inimical to Republicanism, And although the corporation may be a church, still I am unwilling to enlarge the controlling power in it. There was weight in the remark of the gentleman from Decatur, that the world has had experience of abuses of the power which is asked in this bill. I shall vote against the bill, unless the amendment of the gentleman for Ripley is applied to it .It will provide that they shall hold this property in their own lawful right. It may be that this Institution has been acquiring property by indirection. But in any event the effect of the bill will be to make an extension of their powers; and so in time we may have an Institution here controlling millions of dollars; and therefore every point should be guarded against its advancement in power to a point that might take it beyond the control of the State of Indiana. I think we ought to act here as with knowledge that we are conferring powers on an unfriendly institution.
Mr. BUSKIRK. I do not like to weary the House, but there is a point involved here. I understand that, a portion of the property which this bill proposes to confer is now held indirectly by trustees. Now, it is possible, and even probable, if this amendment prevails, that it will destroy the bill, and so far as its adoption would go to secure the House against the imputation of favoriteism, I would say that the only object of the amendment, at best, is to make it sure that the Institution will not hold property beyond the limitation of their charter, and I think we have ample assurance of this from the statements of gentlemen from St. Joseph and that region. They have given us the assurance that this amendment allowing them $300,000 only represents the actual amount of property held by them, and the House ought to rely upon these statements. Assuredly, if the proposed amendment would destroy the bill it ought not to prevail and as to the facts, I desire to hear from those who are bettor informed than myself.
Mr. COBB. I propose to amend the motion to recommit, by adding instructions to amend so that the corporation may hold the property they now have, but it shall not be applied to making additional purchases. He said: I think, with this amendment, that the bill will give them all that its friends should ask. I am in favor of saying what we mean in page: 328[View Page 328] the law itself, so as to avoid coming in here with resolutions explaining what we mean by a law which we have passed. If this is not what these parties want, let them revise it - let them draw their bill again, and make it say precisely what they do want. I am in favor of square honorable dealing in this bill.
Mr. WOOLLEN. The gentleman's amendment is out of order. There is already before the House a motion to recommit with instructions.
Mr. SPEAKER. The gentleman from Huntington offers additional instructions.
Mr. SHIRLEY. I have to some extent changed my mind. I am told that there is a beautiful lake on the hinds belonging to this Institution, and I believe that every such Institution ought to have the right to hold enough real property to enable them to carry out the object of the institution, and no more, and if it is necessary for them (and I am told it is) I am willing that they should hold to the extent of $300,000.
Mr. HENDERSON. The property of this Institution is scattered - some of it miles apart. If the House require them to hold only the property they now hold, they can't make the changes they desire in the building and other property of the University.
Mr. GIVAN. I understand that this Institution has operated under a special charter for some thirty years. Times have changed since and they have changed. All public improvements and the price of property have advanced. Society has changed and there is a new order of things, and this institution and all others must necessarily conform to these changes. Hence, we find many of them acting under special charters applying to the Legislature, time and again for amendments of their charters. At the last session of the Legislature, I remember two or three instances which we passed upon for the increase of the capital stock of Insurance Companies to $500,000 I believe. So long as we can do this, I submit that it is a little remarkable to see gentlemen so sensitive on the question of an increase of capital when an Educational Institution comes in asking for if, and telling us that they are restricted to $30,000, and their property ban so increased in value that they cannot hold it. Why are gentlemen so sensitive as to this Institution? and when a purely moneyed corporation comes in asking for an increase of capital there is hardly a dissenting voice to the granting of what they ask. Gentlemen talk about this Institution being dangerous to public liberty. I affirm, sir, that it has not been the Institutions of this class, but it has been the great moneyed monopolies of the world that have given to all men occasion to guard against them and the encroachments of their power. It seems to me that what is asked for in this bill is a plain right, and should be granted by the General Assembly.
Mr. THAYER moved ineffectually it, lay the motion to recommit the bill with instructions to amend it on the the table - yeas 43, nays 45.
Mr. BUTTERWORTH. The instructions for amendment proposed by the gentleman from Ripley are so indefinite and confused that I can see neither point nor sense in the motion.
Mr. WILLSON of Ripley. The point in my amendment is this: If they have violated their charter it is forfeited under my amendment.
Mr COBB. The amendment which I offered is, that they may hold the property they now have not exceeding: $300,000.
The motion to recommit with the instructions to amend was agreed to on a division of the House - affirmatives 46, negatives 43.So the bill was referred again to the Committee.
