THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Purity of Streams.---Emergency Clauses.---Debate in Continuation
IN SENATE.
THURSDAY, January 30, 1873.[CONTINUED FROM PAGE 97 - NEAR THE BOTTOM OF FIRST COLUMN.]
[Morning Session.]
Mr. SCOTT'S bill [S. 95,] to prevent the fouling of streams (by slaughter houses, etc.,) from which water is taken for use of cities or towns, which was under consideration at the adjournment last night, was taken up - the question being upon the amendment of Mr. Glessner as modified by Mr. Dwiggins to wit: so as to provide that no penalty shall attach unless the water-works are erected above the limits of the city: and that the bill shall not apply to the owners of pork-houses, manufactories, etc., heretofore erected.
Mr. HARNEY contended that the pollusion of streams was a necessary incident of the growth of cities, and contended that public policy was opposed to such wholesale destruction of the rights of property as the bill contemplated. This question requires more careful consideration than can be given to it by the Legislature at the present time. In the city of Indianapolis it might be a question whether the city's supply of water shall be kept pure, or whether it is better to banish the factories using that stream as a sewer, or remove the water works above the city. This matter will develope itself hereafter into a great question, and even now it is worthy the gravest consideration. And it seems to me this question is one that should be adjudicated by the Courts. The soot from hundreds of smoke stacks in the cities blackens the snow on the streets, and all cities have drains that bear their refuse into streams, which makes them unwholesome. This city could not exist if it would not empty its sewers into a stream somewhere. It is a fact we must admit that we cannot preserve the water of streams pure and the air pure and at the same time congregate large masses of people in one place and carry on manufactories on a large scale. Great cities are watered by measures reaching beyond such effects. New York conveys water thirty or forty miles, and Boston had to acquire a primary right before it could get water.
Mr. SCOTT. It may be possible that this bill will need some amendments, but it is not that terrible monster the Senator would have us believe. As yet I do not know where all these factories and great public improvements are that he talks about; if there are any along this river here, I have never heard of them to any great extent. The idea that a woolen factory or a pork house must of necessity occupy white river so as to destroy its waters is utterly preposterous as a question of necessity or fact. It is only a matter of tolerance and does not page: 393[View Page 393] militate against that principle of common law that a person using the waters of a stream above shall not use them so as to destroy them for the use of his neighbor below. Science is preparing itself to consume and utilize that smoke the Senator speaks of. It is only a question of time, sir; and if it must be used it should be put up so high in the atmosphere that it will not injure the health of people in the neighborhood, but because we allow smoke to escape in the air is no reason why we should allow our streams to be poisoned. There has been a law on our statute books as long as I can remember prohibiting persons from contaminating streams by throwing refuse in them. A man cannot obtain a prescriptive right - the statute and the law are in advance of him - and because people have erected pork-houses on the banks of a stream it does not give them the right to foul it. About a month ago I was on the banks of this river about fifteen minutes and I think I saw five wagon loads of refuse from the pork-house, I suppose, emptied into the river right where the waiter works are that supply this city with water. Will the Senator say that is a matter of necessity? that it is a matter of right of presumptive right? that the men owning pork-houses have the right to enjoy that privlege? If the Senator had a dead cow and should throw her into the stream he would have to answer for the crime before the law; and what is the difference? Now, sir, while these things are in their infancy it is time they should be checked. Where a great city like this is permitted to take water from a stream for the inhabitants, they should be protected from impurities being cast into the stream. I think probably the number of miles above the stream named in this bill is too high; I think five miles is little enough. I think the stream would purify itself in that distance, I don't think the Senator has thought enough about that bill. I would like to move that this bill be referred back to the Committee with instructions to shorten the distance. Let it go to the Committee on Rights and Privileges.
Mr. GLESSNER. Let it be referred without instructions.
Mr. SCOTT. I have no objections, I wan't to get it right, that's all I want.
The motion was agreed to, and so the bill was referred without instructions, to the Committee on Rights and Privileges.
EMERGENCY CLAUSES.
[Afternoon Session.]
Mr. TAYLOR'S bill [S. 105,] to authorize the Courts of Common Pleas to determine the heirs of legatees, who distributees of a decendent are, and to order partial distribution of his estate among such heirs, distributees, or legatees, prior to the final settlement, declaring an emergency, being read the second time -
Mr. BROWN moved to strike out the emergency clause, holding that the constitution required the character of the emergency to be stated, in order to make the emergency clause effective. He called attention to the constitutional provision referred to and made the motion to strike out in order to give opportunity for discussion.Mr. TAYLOR stated the emergency in in this case; a gentleman died some two years ago leaving a large estate in money which cannot be distributed from the fact that the heirs are non-residents - indeed it is hardly known who they are.
Mr. STEELE. I understand the motion to be to strike out a part of the body of the bill, because an emergency clause is a part of a bill. What is the body of a bill? what forms a bill It is sections 1, 2, 3, 4 and so on ; and if section four contains the emergency clause it is in the body of the bill, and in conformity with the constitution of the State. I understand that the Senate acts upon and determines, before they place it in the body of the bill, that such an emergency exists. So it is placed there under the constitution, and for a purpose the framer's of the constitution deemed proper, therefore it is part of the bill. You must have the emergency clause in the body of the bill, and the body of the bill would be whatever was between the preamble and the emergency clause and nowhere else as the gentleman argues. I understand an emergency clause is one of the sections of a bill. If the Legislature thinks there is no necessity for an emergency they will not enact the law. If they think that there is an emergency and it is required, in that case they put it in the bill. Then I cannot see the force of the gentleman's constitutional objection to the emergency clause.
Mr. BROWN. The Senator from Grant [Mr. Steele] has not comprehended the point I made. I am a friend to this bill and a friend to a valid constitutional emergency clause, not a clause that is void. The section of the Constitution I refer to is this: "No act shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, page: 394[View Page 394] except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law."-Sec. 28, Art. IV. This clause has special reference to the time when the acts shall take effect. It is well known that every act which has no emergency clause does not take effect until the laws are published in every county. All laws which have an emergency clause go into effect upon their passage. The next thing is what should an emergency clause contain? What is an emergency? The emergency is the reason why the law should go into effect on the passage of the law.
Mr. STEELE. I would ask if the Supreme Court have not already passed upon just such bills and decided that an emergency clause as in this bill is good and legal?
Mr. BROWN. I don't know. The point I make is this: That the reason why the law should go into effect upon its passage, and not upon the filing of the laws in the counties as the other laws, should be stated in the clause of the bill professing to be the emergency clause.
Mr. SCOTT. Suppose after we found there was an emergency it should turn out that there was no emergency. What would be the effect?
Mr. BROWN. The cause for an emergency belongs entirely to the Legislature of the State, and it cannot be reviewed.
Mr. SCOTT. Isn't it just as well to put our judgment forth on the reason?
Mr. BROWN. If the Constitution said so.
Mr. FRIEDLEY of Lawrence. I would like to ask whether the Constitution provides that the Legislature shall set out in the bill the reason of an emergency or the cause for an emergency, or whether it directs that the Legislature shall declare there is an emergency?
Mr. BROWN. I amswer by reading from the Constitution these words: "which emergency shall be declared in the preamble or in the body of the law." What is an emergency?
Mr. FRIEDLEY of Lawrence. The emergency is one thing and the cause of that emergency another.Mr. BROWN. What is an emergency?
Mr. FRIEDLEY of Lawrence. That depends upon circumstances. Certain reasons would create an emergency in one case at hat would not in another. It is not necessary that we should set out the reasons or cause that creates an emergency, it is enough to declare that there is an emergency.
Mr. BROWN. What is an emergency?
Mr. FRIEDLEY of Lawrence. It is not the cause of an emergency.
Mr. BROWN. The Constitution says the emergency must be declared either in the body or preamble of the bill. Is saying "whereas an emergency exists therefore this act shall take effect immediately on its passage," reciting that an emergency exists? Of course it does not. A declaration of emergency is setting out the reason in the body of the bill or the preamble, why the law should take effect immediately. For instance, if there is no law on the subject then It would be proper to say "whereas there if no law upon the subject contained in the body of this bill, therefore an emergency exists for the immediate taking effect of this act." Then, why does an emergency exist? Because there is no law on that subject. There the emergency is stated in the body of the act, and the constitutional provision is complied with. But it is not complied with when it is simply said there is an emergency, without stating what the emergency is. Why is it that an act should go into effect now and not wait the general course of the taking effect of the other acts? Whatever cause there is for the immediate taking effect of this act is an emergency, and that should be stated in the emergency clause. If there is no existing law upon the subject that perhaps is a reason why it should go into effect at once and that should be stated as the emergency requiring the immediate taking effect of the act. The Constitution says: "Which emergency shall be declared in the preamble or in the body of the law." It cannot be got around. It may not invalidate the law, but whether the emergency is a valid one or an invalid one I suppose the courts can review.
Mr. DWIGGINS moved to lay Mr. Brown's motion upon the table, whereupon Mr. Brown withdrew his motion.
Mr. DWIGGINS moved to amend the bill by providing that where the parties interested are residents of the county they may be served with personal notice instead of by advertisement. The amendment was adopted, and the bill ordered to be engrossed.
The PRESIDENT announced the following special committee on the bill providing for the relocation of county seats - Hall, Steele, Beeson, Hough, and Daugherty.
