THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Municipal tax on Bank Stock.--- Divorce law.--- Womans' property rights.
IN SENATE.
TUESDAY, January 21, 1873[CONTINUED FROM BOTTOM OF FIRST COLUMN PAGE 59.]
[Morning Session.]
Mr. GREGG called up the special order for this hour, being his bill, [S. 4] to provide for the taxing of all banks, national as well as others, for municipal purposes.
The report of a majority of the Committee on Banks was also read, recommending the passage of a substitute, which simply provides that bank stock shall be taxed for municipal and all other purposes in the same manner as other personal property, and that where the stockholder is not an inhabitant of the State the stock shall be taxed where the bank is situated, otherwise, where the stockholder resides.
A minority report was also read recommending the passage of the original bill.
Mr. GREGG hoped the minority report would be adopted and Senate Bill No. 4 passed. The substitute bill is defective in many of its provisions. It has no provision by which the city authorizes may ascertain - the amount of capital stock, the number of - shares it is divided into, and names of stockholders, the amount held by each one, etc. The original bill contains such a provision, requiring the sworn statement of the officers as to these facts. This provision he deemed essential to the effectiveness of the bill, and its absence from the substitute bill was a fatal defect. Again, the original bill makes the tax an absolute lien on the shares of stock, which insures its easy and certain collection from both residents and non-residents. Still further, the substitute bill provides that a stockholder, who is a resident of the State but not of the city where the bank is situated, shall be exempted from taxation in said city. This he believed was unfair. All the property in a city should be subject to taxation for municipal purposes. He caused to be read a clause from a law passed by Congress in 1872, expressly declaring that national bank stock may be taxed for State, county and municipal purposes, provided that the taxes asssessed shall not be at a greater rate than is levied upon other monied capital, and that the shares of non-residents of the State shall be taxed in the town or city where the bank is located. This, he said, disposes of the vexed question whether national bank stock might be taxed for State, county and municipal purposes. He had been told that the amount of national bank stock in Indianapolis is over $7,000,000. As the rate of taxation for municipal purposes is 1 1-2 per cent. Indianapolis loses annualy by the present exemption of that stock stock over $100,000. The same may be said, though of course the figures would be less, of other cities in the State.
While on this subject he called attention to an act passed in 1871, to provide for common schools in cities of 30,000 inhabitants and over. It might have been entitled a bill to provide for common schools, in the city page: 332[View Page 332] of Indianapolis, for no other city in the State has the requisite number of inhabitants to take the benefit of the act. This bill provides that the school tax shall be levied as a muni-icipal tax, and the levy may be twenty-five cents on the hundred dollars of taxable property. The school tax being levied as a municipal tax, and no law being enforced to subject bank stock to municipal taxes, of course for the last two years this great amount of National Bank stock has laid clear of school tax in the city of Indianapolis and the school fund of that city has lost very largely thereby probably from seventeen to twenty thousand dollars annually.
He believed it to be the imperative duty of the Legislature to provide for the equal taxation of all property in the State, as required by section 1, Article X, of the State Constitution, in the following language:"
The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation ; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious or charitable purposes, as may be specially exempted by law."
Mr. BROWN was not much in favor of the principle embodied in the bill, even if the enactment would be legal, which he doubted. The original law of Congress, for the incorporation of national banks, provided that the stock should not be taxed other than that of the Slate banks was taxed, and the charter of the Bank of the State of Indiana provides that its stock shall not be taxed for municipal purposes. Since that there have been some other laws of Congress with which he was not very familiar. But it is questionable whether they interfere at all with the original act. At any rate it is a very grave question whether the banks that organized under the original law of Congress, and before any of these subsequent acts were passed in reference to the taxing of their stocks, can be taxed in this State beyond the taxes that were authorized by law at the time of their incorporation. Even if the late law of Congress does provide for the levying and collection of taxes for municipal purposes, it is a question whether they can be levied or collected on banks organized under the original law. Again, he was not in favor of taxing a man who lives out of a city and owns a few shares of stock in a city bank, for the purpose of keeping up the city government. Take the city of Seymour, in his county, for instance. They have a bank there with a capital of $50,000, some of the shares being owned by men who do not live in the city, and have no interest in it beyond their snares in the bank. They have simply invested their means in an institution for the accommodation of the people of Seymour. Is it fair to tax them to maintain the city government, the fire and police departments and all the municipal officers? He thought not.
Mr. NEFF. Suppose a man living in this city owns a thousand head of cattle in Jackson county - is he not taxed on them there?
Mr. BROWN. The personal property follows the person, and is taxed where he resides.
Mr. FULLER. Suppose a merchant has a store in Indianapolis, and lives outside of the corporate limitswhere is that property taxed ?
Mr. BROWN. Where he lives, of course.
Mr. FRIEDLEY, of Lawrence. Suppose all the merchants of Indianapolis should conclude to reside without the corporate limits.
Mr. BROWN. They ought to be taxed on all their personal property where they reside. I am like the boy who said the horse was seventeen feet high - I stick to it. [Laughter.] The 69th section of the act provides that the tax shall be a lien on the shares of stock. The 70th section provides that nothing in this act shall be so construed as to exempt from taxation for municipal purposes the shares of capital stock of any bank or banking association organized the laws of this State or the United but that all such shares may be assessed for local purposes at the same rate as other property. Mr. Brown held that the act passed at the special session contains every thing was in the bill. But, since there were some doubtful questions involved, he moved that the bills and the two reports be referred to the Committee on the Judiciary, to investigate and report whether any further legislation is needed on this subject.
Mr. DWIGGINS thought the substitute bill of the majority of the Committee should become a law. The only difference between Senators seemed to be whether the stock should be taxed in the city where the bank is situated, or where the stockholder resides. The only argument in favor of the former proposition is that the city furnishes the gas, the fire department and the police to protect the property. If he came to this city and loaned a thousand dollars, and took a mortgage on a house in this city, the mortgage was not taxed. But it is proposed if a mancomes here and invests a thousand dollars in bank stock, to tax his share. He did not see any reason for the distinction.
Mr. FULLER. Suppose a gentleman living in the country has taken stock in a manufacturing establishment in the city of Indianapolis, is not he in business here, and is not that business taxed?
Mr. DWIGGINS. Yes, sir.
page: 333[View Page 333]Mr. FULLER. Well, is not it the same with a bank?
Mr. DWIGGINS. No, sir, I don't take it as a parallel case.
Mr. D. was in favor of taxing stockholders where they reside, if they live in the State. If not, they must be taxed in the city where the bank is located. The Senator from Dearborn [Mr. Gregg] complained that by the law passed at the last session authorizing the levying of taxes for school purposes, this bank stock was not taxed, and the schools were losing that tax. Now, if $350,000 of that bank stock is owned by gentlemen living outside of the city, and that stock is taxed for school purposes at all, it should be taxed to support the schools where these gentlemen reside, to educate their children, and not the children of Indianapolis.
Mr. NEFF. What will you do with section 62 of the present revenue law? That provides for the taxation of bonds in cities where they are located.
Mr. DWIGGINS. It provides that they shall be taxed for State, county and township purposes, not for municipal. The 70th section provides that the stock shall not be exempt from taxation for municpal purposes.
Mr. NEFF. Take the two sections together.
Mr. DWIGGINS. If they can be taxedfor municipal purposes under this law, as he believed they could, they should be taxed in the cities where the stockholders reside, and not where the bank is located.
Mr. CHAPMAN. Suppose there is a bank in this city with a capital stock of $700,000, half owned by a resident of the city and the other half by a man who lives just outside the corporate limits. Would it be fair to tax the shares of the former and exempt that of the latter?
Mr. DWIGGINS. It is very easy to putextreme cases, and I will answer by putting another. Is it right that a man living at a distance from here should pay a school tax for the benefit of the children of a man who lives in Indianapolis? No law operates with equal and exact justice upon all persons. The best we can do is to make the laws apply equally to the greatest possible number.
Mr. WINTERBOTHAM. The revised law enacted by Congress on the subject of National Banks, contains two restrictions, that they shall not pay taxes at any larger rate than the bank capital held by private citizens. Now in the city of Laporte there was a bank chartered by the State, with a capital of $200,000 and deposits amounting to $400,000. That bank is doing a large business, three times what the National Bank is doing. He asked whether National Bank could be taxed when the State Bank was exempted. He did not think it would be equitable or legal to tax a National Bank, and exempt under a State law, the Bank of the State of Indiana.
Mr. GREGG. The law of Congress as it now is, provides that we shall not tax the stock of National Banks at a greater rate than is levied on monied capital belonging to individuals residing in the State. It don't tax the notes of banks at all.
Mr. WINTERBOTHAM. It seems to me the bill is in clear violation of the law of Congress; and with that understanding I shall vote for the motion of the Senator from Jackson [Mr. Brown] to refer the bill to the Judiciary Committee.
The Senate here took a recess till 2 o'clock.
AFTERNOON SESSION.
The Senate met pursuant to adjournment, and the consideration of Mr. Gregg's bill to tax banks, was resumed.
Mr. HOUGH said he was in favor of the object sought to be effected by the bill, but did not think any further legislation was necessary. He believed the object was fully covered by the act passed at the last special session. Banks were artificial persons and might be taxed wherever located, without violation of the law requiring persons to be taxed where they reside. Any man who becomes a part of a banking corporation by investing his money in it, divests himself to the extent of his investments, of his right to claim to be taxed where he resides, and transfer his liability to taxation to the city where the bank is located. Every tax payer in the State has a right to retain his personal property under his own control, or, if more profitable, to make himself amenable to the laws of an artificial person by taking stock in some manufacturing or other kind of a company; and when he does that it is not his personal property any longer, but the property of this artificial person of which he has become a part. That part of his property necessary to give him an interest in that company is liable to be taxed where that artificial person is. The 12th section of the act passed at the special session of 1872 provides that where the capital stock is taxed as a whole, the individual shares are not taxable. Sections 62 and 70 provide that where the capital stock is not taxed the shares may be, and that for all purposes, municipal as well State, county, and township. He believed these provisions covered the whole ground, but favored the reference of the subject to the Committee on Judiciary.
Mr. NEFF. Does section 70 confer the power to tax bank stock or shares for municipal purposes?
Mr. HOUGH. I think it does.
Mr. FRIEDLEY, of Lawrence, said if there were doubts whether the shares could page: 34[View Page 34] be taxed under the act of 1872, there was the more reason for passing this bill as soon as possible, and not delay it by referring it to a committee.
Mr. FULLER moved to lay Mr. Brown's motion to refer the matter to the Committee on the Judiciary upon the table.
This motion was agreed to.
The question then recurred on concurring in the minority report.
Mr. BROWN said he had not found a Senator who understood this question. He believed the bill of last session commonly known as the Shoemaker bill conferred the power to tax the shares of National Banks as fully and completely as any legislation can do. If there is any doubt about it, that is one of the highest reasons why the bill should be considered by some committee, and he moved to refer it to the Committee on Corporations.
Mr. SCOTT said there were grave difficulties surrounding the question. If any one would examine the law of 1872 he would have serious doubts whether all laws providing for municipal taxation had not been repealed or so impaired as to require re-enactment, and if an assessment law for municipal purposes has to be enacted he could not see why the whole thing should not be put together. Why we should single out one item of property and provide for its taxation and allow the whole of the balance go by, he could not conceive. He did not see why laws should be passed to provide specially for the taxation of banks more than a farmer's horses or any other personal property. He thought it would be best to revise all the laws in reference to the assessment of municipal taxes, to apply to all property not exempt by law, and not single out one kind off property. If we revise the law for the assessment of municipal taxes and make it correspond to the changes already made we are doing all that is necessary. All property naturally and by law and the Constitution is subject to taxation and can only be relieved by statute exempting it.
Mr. STEELE said it was beyond question that the revenue law of 1872 leaves the power to tax all property, bank stock as well as other, where it was before. It was necessary, however, that we should have a law prescribing the manner in which the assessment shall be made. We had a law on that subject, but in his opinion that law was repealed by the act of 1872, and now we had no law for taxing such property for municipal purposes. At all events, it is left sufficiently doubtful to require a revision of the legislation on the whole subject. That being the case, there was no present necessity for the passage of either the original bill, No. 4, or the substitute. It would be better to send the bill to some committee and let the subject be fully investigated, and let the committee do all that is necessary to do in regard to the assessment and collection of municipal taxes.
Mr. GREGG said a reference to a committee would kill the bill. Able attorneys had declared that the act of 1872 did not authorize o assessment of bank stock by city authorities. It conferred the power to levy taxes upon it for State, county and township purposes, but not for municipal purposes, and such authority ought to be given in clear and unmistakable terms. Such a provision is contained in the original. There are none of the provisions of the act of 1867 authorizing cities to levy taxes in conflict with any of the provisions of this bill. I am informed by a Senator [Mr. Neff,] that this bill was drawn by an able lawyer [Governor Baker.] I think the country demands its passage, and I think we will be held responsible if we don't pass it.
Mr. ORR. I have come to the same conclusion as the honorable Senator from Jackson (Mr. Brown,] that there are but few Senators who understand this bill. I do not understand it myself. If the motion to refer would tend to kill the bill, I would oppose it, but believing otherwise, I am in favor of its going to some committee so that we all may have a chance to understand it fairly and squarely. I cannot see why shares of bank stock should not be taxed for municipal purposes as well as other property.
Mr. BOONE. It occurs to me the bill passed last session applies solely to State and county taxes, and has no application whatever to the levy or assessment of municipal taxes. They have different assessors and a different time for returning the assessments, and therefore it could not have been the intention of the Legislature that this should apply and be substituted in lieu of the city laws with reference to the assessment of taxes. The gentleman from Delaware [Mr. Orr,] seems anxious for the reference of the bill to some committee. I would rather take a square vote upon the proposition now.
Mr. GOODING. It seems to me that we have had discussion enough to develope the fact that we would be voting in the dark if a vote were taken now upon this bill. I think, considering the vast importance of this question, and the intricacy of it, that it ought to be referred to a committee. I regret that this Senate voted down the motion to refer to the Judiciary Committee, but an the next best is the Committee on Corporations, I think the pending motion ought to carry. After a committee has considered the bill we will be all the better prepared to vote upon it. I am in favor of a bill to effect the object purposed by this one. The page: 335[View Page 335] city of Evansville is probably more deeply interested in it than any other city in the State except Indianapolis. But I am not satisfied, and I know many other Senators are not, that this bill is in exactly the properform. I therefore favor its reference to a committee in order that it may be perfected and presented in such a shape that Senators would have the confidence to vote for it. I think the friends of the bill ought to be willing to its reference, with instructions if they please. If the gentleman from Jackson [Mr. Brown,] will withdraw his motion, I will move to reconsider the vote by which the motion to refer to the Committee on Judiciary was lost.
Mr. BROWN. I will do so.
Mr. GOODING. I now move to reconsider the vote by which the motion to refer the bill to the Judiciary Committee was rejected.
Mr. GLESSNER. This bill has been referred to the Committee on Banks and reported on. The two political parties of the State of Indiana in every single campaign since the establishment of National Banks, I believe, have promised their constituents that they would favor the adoption of this law, as it has been complained that every species of property within the limits of a corporation has to bear its burden of taxation except shares in banks, and my judgment is that we are just as well prepared to vote upon this bill now as we will be at any time in the future. I desire the friends of this bill to consider this one fact, that at each session of the General Assembly that has past where this bill has been considered, it has been defeated almost universally by reference. In fact a reference is equivalent almost to defeating the measure; and while I do not impugn the motives of any Senator who may desire to refer the bill to a committee, I will venture to say that in nine cases out of ten he is against the bill. Therefore I say to the friends of this bill that they ought not to allow it to go to a committee. I am opposed to this second reference. I believe in justice to ourselves and our constituents we ought to take this bill up at once and pass it.
Mr. GOODING. I perhaps have as much interest in the passage of this bill as any Senator, except the Senators from Marion county, and it is because I am in favor of the principles of the bill, and desire to have it passed in a shape that will effect its object, that I want the bill refered to the Judiciary Committee. I am not prepared te vote for the bill until satisfied that it will accomplish the object for which it is intended. I think that shares of bank stock ought to be taxed for municipal purposes, and I want to vote for a bill that will accomplish that. If you force this bill to a vote now many Senators are compelled to admit that they don't understand its provisions and it is safest for them to vote against it. For the friends of his bill I insist that it shall have a hearing before the Judiciary Committee and be reported back at an early day. I believe the author of the bill himself is on that Committee.
Mr. SCOTT. The basis of the assessment of taxes in cities are the acts of 1858, and the acts supplemental thereto. Now by the law we passed last session these laws are all repealed.
Mr. WILLIAMS. I think the Senators from Vigo [Mr. Scott,] and Grant [Mr. Steele,] are laboring under a mistake. The law we passed last session cannot effect the municipal laws. I understand the law we passed provides "for a uniform assessment of property and for the collection and return of taxes thereon." And I find the 21st section of the Constitution, Article 4, says: "No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended, shall be set forth and published at full length." Now you have not even referred to it by title.
Mr. SCOTT. Do I understand that we may repeal parts of a law with reference to State and county taxes, and leave all in regard to cities?
Mr. WILLIAMS. Certainly.
Mr. SCOTT. I do not understand it so.
Mr. WILLIAMS. Why is it they single out the single item of banks? Simply because heretofore National Banks have not been taxed and it would require a special act for the purpose. I cannot see how this act of the special session interferes with that.
Mr. GOODING'S motion prevailed, and the motion to refer the whole subject to the Committee on Judiciary was carried by the following vote:
YEAS - Messrs. Beardsley, Bird, Brown, Banyan, Carnahan, Collett, Daggy, Dittemore, Dwiggins, Gooding, Haworth, Hough, Howard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Scott, Steele, Taylor, Wadge, Williams and Winterbotham - 25.
NAYS - Messrs. Armstrong, Beeson, Boone, Bowman, Cave, Chapman, Daugherty, Fuller, Francisco, Friedley of Lawrence, Glessner, Gregg, Hall, Harney, Ringo, Sarnighausen, Slater, Smith, and Stroud - 19.
THE DIVORCE LAW.
[CONTINUED FROM THE TOP OF PAGE 60.]
The subject under discussion when the special order was called, viz: the report on Mr. Orr's bill [S. 117] for amendment of the divorce law, was again taken up, and the question recurred on Mr. Orr's motion to amend the report by substituting laying on the table for indefinite postponement.
Mr. DWIGGINS offered a substitute to Mr. Orr's amendment to make willful abandonment for one year a cause for a divorce, page: 336[View Page 336] and to add two other causes, impotency and the conviction after marriage, of either party of a feloney.
Mr. GLESSNER offered an amendment to the substitute providing that the parties in divorce cases be allowed to testify.
Mr. DITTEMORE made an ineffectual motion to lay the substitute and the amendment on the table - yeas 20, nays 22.
Mr. BROWN moved to lay Mr. Glessner's amendment on the table.
Mr. DITTEMORE moved to amend the motion so as to lay the whole subject on the table.
A division being demanded the vote was taken on Mr. Dittemore's amemdment, which was rejected - yeas 19, nays 23.
Mr. BROWN'S motion was then agreed to by yeas 32, nays 12, as follows:
YEAS - Messrs. Boone, Bowman, Brown, Bunyan, Cave, Daugherty, Dittemore, Dwiggins, Fuller, Francisco, Gooding, Gregg, Hall, Harney, Haworth, Hough, Howard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Ringo, Sarnighausen, Scott, Slater, Smith, Steele, Stroud, Taylor, and Williams - 32.
NAYS - Messrs. Armstrong, Beardsley, Beeson, Bird, Carnahan, Chapman, Collett, Daggy, Friedley, of Lawrence, Glessner, Wadge, and Winterbotham - 12.
Pending the roll call -
Mr. BROWN, in explanation of his vote said: I am in favor of laying the amendment on the table, and shall so vote for this reason: while I believe in allowing parties to testify as a general rule, I think it against public policy to allow parties to a divorce suit to testify. I am opposed to indefinitely postponing the subject matter, and I hope a good and proper revision of the Divorce Law may be had so that the seventh clause or seventh section may be stricken out.
Mr. DWIGGINS, when his name was called, in explanation of his vote said: I am opposed to this amendment for one good reason: If we adopt it without a proviso it will allow the party who brings the suit for divorce to swear to a sufficient number of facts so that the court would be bound to grant a divorce. These instructions are imperative. Are we ready to enact a law under which one person may go into court, in the absence of the other and file a petition and swear a case through? I am not. I vote "aye."
Mr. GLESSNER, in explanation of his vote said: I am in favor of adopting that amendment for this reason: I have had some little experience in these matters, and especially as to the testimony of witnesses, in these cases. All lawyers know that some visi prius courts, have always decided that even parties to divorce cases may be permitted to testify under the present law, and that question has been appealed to the Supreme Court, and the Supreme Court has been divided on this questiontwo judges deciding that parties were competent to testify. And I know in my own experience cases where if parties had been permitted to testify the courts trying the cases would have been in a better condition to determine the merits of the cases than the way the present law is. My impression is that such a measure would defeat one half the divorce cases brought in Indiana. My judgment is it would be a good law and therefore I vote "no" on this motion to lay on the table.
Mr. GOODING, when his name was called, in explanation of his vote said : I think parties to such suits would be tempted under the excitement of the case to commit perjury. Trials of divorce cases develope a sufficient amount of disgusting evidence without the parties coming in and revealing things that ought to be screened from the public gaze. And I am opposed to the amendment for another reason : If we adopt it instead of restricting the Divorce Law we enlarge it. It would open flood gates to fraud and would attach odium to the Divorce Law not now attached to it, for a non-resident might come from a foreign State and after being here only six months swear to a residence in the State of one year and swear to facts necessary to get a divorce. As it is now a party who comes here to get a divorce must find witnesses to prove the necessary facts. I vote to lay the amendment an the table. I vote "aye."
Mr. HOUGH, in explanation of his vote, when his name was called, said: I am opposed to parties to a suit testifying in any case unless it be a criminal case. As far as my experience goes, and I have been practicing ever since the law was enacted authorising parties to civil actions to testify, it has done more to demoralize society than any law enacted within my recollection. Where only a few dollars and cents are involved neighbors go out of court with the impression that one or the other has perjured himself for a few dollars. I am opposed to extending such a law, and would rather vote for its repeal. I vote "aye."
Mr. ORR, when his name was called, said: A word in explanation of my vote. When it is admitted by all who have spoken in the Senate Chamber, that the statute has cast odium upon our State, I look upon this amendment as tending to cast additional odium on us. Under the statute, as it now stands, a man may get out of humor with his lady, in Massachusetts, come to Indiana, be here one year, go into court under this amendment, and swear his case through. Such parties who go into court with their minds highly excited, as my friend from Vanderburgh [Mr. Gooding,] says, are likely to commit purjury. I vote "aye."
page: 337[View Page 337]The vote was then announced as above recorded.
So the amendment was laid on the table.
RIGHTS OF MARRIED WOMEN IN PROPERTY.
[CONTINUED FROM PAGE 60 TOP OF SECOND COLUMN.]
Mr. STEELE from the Judiciary Committee, reported back Mr. Dwiggins' bill [S. 110,] to repeal section 18, and amend section 24 of the act regulating descents, &c., with a recommendation that it lie on the table.
Mr. DAGGY from the same committee, presented a minority report, recommending, the passage of the bill.
Mr. D. stated the object of the bill was to strike down the law allowing the widow only a life interest in the real estate of her deceased husband. Then the bill leaves off the proviso "If a man marry a subsequent time," &c. He thought the wife was entitled to one-third of her husbands' real estate - not dependent upon whether or not she marries a second husband. He favored enlarging the rights of married women; and although in conflict with a majority of the Committee, desired the Senate to take action upon the question as brought up by the minority report.
Section 24, as proposed to be amended, would read as follows: If a man die intestate, leaving a widow and child or children, not exceeding two, the personal property of such intestate shall be equally divided among the widow and children, the widow taking an equal share with one child; if the number of children exceeds two, the widow's share shall not be reduced below one-third of the whole. The object of the bill is to secure to the widow, in case of her subsequent marriage, something more than a life interest in the property of her first husband, and to make it her seperate estate.
Mr. STEELE combatted the minority report. In cases where there is any considerable amount of property at stake, the widow generally soon looses control of what would have kept her in good circumstances during old age. He knew not why this was the case and yet it is. At least one-third of all the widows and widowers married in the country are divorced, and can it be that it was only the money one or the other possessed that brought them together? The law provides that the widow shall not convey the realty if she marries a second time, and it is because the marriage contract is, as a general rule, made without due consideration on the part of the widow, and then soon after the property left by the former husband is swept away. The present law he thought a wholesome one, and opposed its disturbance, giving reasons that moved the majority of the Committee on the Judiciary to report unfavorably on the bill.
Mr. S. was opposed to the bill. He thought the provisions of the present law were necessary to protect the property of the widow from being squandered by some spendthrift who might marry her. The bill proposed would only offer a premium to those infernal scoundrels who are seeking property by such marriages as these.
Mr. NEFF. While willing to admit that there may be hardships on both sides I am in favor of the minority report. I am in favor of such a modification of the 18th section of the present act that a woman might sell the real estate which she may have inherited from her deceased husband and dispose of the proceeds as she may think best. I believe the real estate the law gives to her should be hers absolutely. I introduced a bill at the beginning of the special session, to amend section 18 of the present law, so as to give her the right to sell with the consent of her husband any real estate she may have inherited from a previous husband, and loan or re-invest the proceeds. There are a great many hardships in some cases where a woman marries a second or a subsequent time ; for instance where a husband has left her a large quantity of uncultivated lands, on which the second husband is compelled to pay taxes. In reference to the 24th section I am in favor of the law as it now stands.
Mr. GLESSNER thought the restrictions imposed by the statute were just and aquitable and necessary to the protection of widows, who may marry the second time, and her children by her first husband, from these sharks who have reduced marriage to a fine art, and are continually going about seeking out rich widows.
Mr. HARNEY. I am satisfied there is no law in reference to descents, more favorable in its effects than the statute proposed to be amended. In my opinion, the provisions of the present law has saved more women from poverty than any other provision on the statute book. If she desires the property to become her's absolutely, all she has to do is to alienate the property before her second or subsequent marriage, and she can then dispose of the proceeds as she pleases. But in most cases they do not do that. Another reason why I should not favor a repeal of the section is that this statute gives such general satisfaction among men that they are willing to let their property take the course of the law. If this repealing act is passed almost every man will make his will. I hope the minority report will not be concurred in.
Mr. BROWN said if a woman marries a widower and has no children by him, she akes only a life interest in his estate on his22 page: 338[View Page 338] death. If she has children by him, she takes a fee. Suppose she has no children, and he dies, and she inherits one-third of his estate in fee, what becomes of it on her death? It goes to her family; to people who are connected by no ties of blood with him by whose toil the property was accumulated. The doctrine of descents has been carefully considered by the courts, and is pretty well settled, and it seemed to him that it would be the hight of folly to dispute it now.
Mr. DAGGY. I am astonished at the position Senators take. In legistating we are to legislate upon general propositions, and not upon exceptional cases. The Senator from Grant [Mr. Steele,] and the Senator from Jackson [Mr. Brown,] alluded to exceptional cases. You can pass no law but what will work hardships occasionally. The changes in the law that I wish to make are wholesome. The objections to the bill are first, that the woman has no right to the property that is made by the joint labor of herself and husband, that it is all his earnings, and he has a right to lay his hand on it and say "this is mine and you have no interest in it." I say the accumulations of the marriage relations belong as much to the wife as to the husband. Therefore when the husband shuffles off his mortal coil, it is not too much to say to her, "You have helped accumulate this property; one-third of it is yours to do what you please with." Again,Senators were treating married women as if they were fools and idiots,- as if every fool who came along could hoax and deceive them in regard to their property. These cases are exceptional. A majority of the women are competent to take care of their property and the interests of their children. I take it for granted that a man who has sense enough to accumulate property will not marry improvidently a woman who has not the sense to take care of it. Men sometimes marry women who have property. If she dies the husband takes one-third of her property absolutely, and she can't prevent it even by will. He has absolute and unqualified control of it, and it descends to his heirs and not to her'sit leaves the descent of her blood and goes to his blood. This discrimination in favor of the husband was unfair and unjust, a bit of petty tyranny. Ain't it right that a man's surviving partner should have one-third of his property so that she may do with it as she pleases? - the property she has helped to accumulate? Am I asking too much when I say give that to her? I believe I will submit the question without further argument. I think it would be placing women in the proper position to repeal that section.
Mr. BROWN moved to lay the minority report on the table, which was carried, and the majority report was then concurred in. So the bill was indefinitely postponed.
