THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
. H & I. R. R. Co.---Gravel Roads, etc.---Debate in Continuation.
IN SENATE.
THURSDAY, February 6, 1873.The Senate met at ten o'clock A. M. Lieutenant Govrenor Sexton in the Chair. Prayer was offered by the Rev. S. M. Houston, Elder of the Christian Church in Crawfordsville.
Mr. TAYLOR, from the Committee on Finance, reported back Senate Joint-Resolution No. 8, providing for the manner of canceling the canal bonds as paid, and recommended its adoption, which was accordingly done.
On the application of Mr. WADGE, leave of absence was granted to the Prison Committee until Saturday evening.
SENATE BILLS ON THIRD READING.
On motion the rules were suspended and the following Senate bills were read the third time and disposed of as indicated:
Mr. DAGGY'S [S. 100] To amend sections 352 and 354 of the Practice Act. The 352d section is to amend so as to provide that not more than two new trials shall be granted except for irregularity in the proceedings of the court, jury or prevailing party, misconduct of the jury or prevailing party or error of law occurring at the trial and excepted to by the party applying. The 354th section is so amended as to enable a party to make application for a new trial after the close of the term at which the verdict is rendered, if un avoidably prevented from doing so, was passed by yeas 36, nays 2.
Mr. HAWORTH'S [S. 64] To provide for the collection and publication of statistics was passed over informally owing to-the sickness of the author.
Mr. SARNIGHAUSEN'S [S. 69] To authorize and empower incorporated cities to sell and convey real estate and fix the mode of proceedure, was passed by yeas 40 nays 1.
CITY SCHOOL TRUSTEES.
[CONTINUED FROM PAGE 132BOTTOM OF FIRST COLUMN.]
The bill [H. R. 155] To provide that School Trustees shall be elected by the people in cities of eight thousand or more inhabitants instead of by the City Council, which was the special order for 10:30 o'clock was called up by Mr. Scott.
Mr. SARNIGHAUSEN said this bill proposed to make a radical change in the common school system, and he thought it ought to be carefully investigated. What is the necessity for the change? The present system has worked well and satisfactorily throughout the State, except perhaps in one instance. In the county of Wayne a few men have had a difficulty with their local Trustees, and this bill was framed to enable them to get rid of them. The Senator from Wayne presented a remonstrance against the passage of the bill much more numerously signed than the petition for ite passage. Mr. S. believed if this election was thrown into the hands of the people inferior men would be elected, because page: 431[View Page 431] the men best fitted for the position would not engage in the struggle. All the local questions and the political differences and sectarian feeling would enter in to embitter the feelings of the people and restrain capable and competent and reputable men from entering the field. Mr. S. said: probably the most competent man for shool trustee in our county is Mr. who is such a modest man that he never would allow his name to be used as a candidate by either party, but he has been elected and re-elected from year to year. A member of the school board of the city of Fort Wayne, some twelve years ago had a seat on this floor and has been a prominent member of the Senate. Since that time he has retired entirely from politics, and he cannot be induced to take a political position, but he considers it a pleasure as well as an honor to serve on the Board of School Trustees. And you can find similar cases in almost all the large cities of the State. If the bill before the Senate should prevail the result would be that such men would not be elected because you could not, separate the election of school trustees from politics; and the result will be that another avenue will be opened to the introduction of politics in our public school management, and in the election of school trustees. In one ward the churches, in another ward politics, and in another ward local interests will be felt;Republican wards will not elect Democrats, and visi versa. There will be party issues made in the election of school trustees - you cannot avoid it because you cannot separate the election. Under the present law our school trustees are elected independent of such influences, at least such is the case so far as my knowledge and experience goes. We are told that the principle of the bill now pending is in force in cities of more than thirty thousand inhabitants. That is for the city of Indianapolis, only. I know the school law was changed two years ago for the great city of Indianapolis, but I am willing to believe it was for local reasons; and as I remember it met with no opposition at that time. And even if the law should give satisfaction here it is by no means certain it would work in the same way in other places. And I am entirely unwilling to vote away a system known by experience to try a doubtful experiment. In the light before me now, Mr. President it is my honest opinion that the law ought not to be changed, and therefore I move that the report of the Committee be amended by -
The PRESIDING OFFICER [Mr Brown in the Chair.] It cannot be amended unless the vote concurring in the report be reconsidered.
Mr. SARNIGHAUSEN. I am of opinion that the report was not concurred in. Senator from Kosciusko [Mr. Chapman,] made the remark that the minority report could not be concurred in, but only could come up as a substitute for the majority report.
On motion by, Mr. CHAPMAN the vote was reconsidered by which the majority report of the Committee on Education, recommending the passage of the bill was concurred in.
Mr. CHAPMAN then moved that the report of the committee be amended by substituting for the majority report, the minority report, which recommends that he bill be laid on the table. The yeas and nays being demanded and being ordered and taken - The vote resulted as follows:
YEAS - Messrs. Armstrong, Beadsley, Beeson, Bird, Boone, Bowman, Chapman, Daugherty, Dittemore, Dwiggins, Fuller, Francisco, Friedley of Lawrence, Gooding, Gregg, Harney, Hough, Howard, Hubbard, Miller, Neff, Rhodes, Ringo, Sarnighausen, Smith, Stroud, Wadge and Winterbotham - 28.
NAYS - Messrs Brown, Bunyan, Carnahan, Daggy, Glessner, Hall, O'Brien, Oliver, Orr, Scott, Steele, Taylor and Thompson - 13.
So the bill was laid on the table.
Mr. BEARDSLEY'S bill [S. 73.] To amend Sections 15 and 16 of the act for the incorporation of towns so as to provide for the election of one Trustee from each district and a Clerk, Assessor and Treasurer, to serve for one year, provided that the three last offices may be held by one person; also for the election of a town marshal by the township trustees, was read the third time and finally passed the Senate by yeas 37, nays 3.
TERRE HAUTE AND INDIANAPOLIS RAILROAD AND THE SCHOOL FUND.
Mr. BROWN, from the Committee on Railroads, asked and obtained leave to submit a report in relation to the alleged failure of the Terre Haute and Indianapolis Railroad Company to pay over surplus profits to the school fund as required by its charter.The report sets forth that the committee took all the evidence which they reasonably could in the time allowed them. The officers of the company afforded them every facility to enable them to obtain the facts. They reported that said company has at all times, when called upon by the proper authorities, made full and complete reports in accordance with the 23d section of their charter. In the investigations made the committee found no evidence of corruption, concealment or fraud in the matter of the said company's relations and obligations to the State.
page: 432[View Page 432]The committee further report that the evidence shows that the reasons upon which the officers of the company act in failing to pay over any sum of money to the Treasurer of the State as a part of the earnings for the benefit of the common school fund are these: first, Said officers claim and insist that there is nothing due under any circumstances. Second, Acting under the advice and council of their attorneys, Hon. R. W. Thompson, J. P. Baird, Messrs. Porter, Harrison & Hines and Maj. J. W. Gordon, the officers of the company claim and insist that nothing can be due to the State, or any funds thereof, until the Legislature first asserts the right of the State in the premises, and by legislation fixes and regulates the tolls and freights and income of said company. They claim that they have been strengthened by the opinion of the Attorney General of the State, dated April 29, 1869, and which, in the judgment of the committee, coincides with the views and opinions of the Company's attorneys. It is insisted, however, by the attorneys who claim to represent the State, together with the Attorney General, that no such precedent steps are necessary in order to fix the liability of the Company, but that the Company is bound to pay over without any action by the Legislature.
The solution of this question depends upon the construction which is put on the 22d, 23d, and 24th, sections of this charter of the Company. The Company claim that by the 22d, section it has a perfect right to charge and receive such freights as shall be for the interest of the Company, and that the only limitation upon this right is contained in the 23d, section, which provides that when the aggregate amount of dividends declared shall amount to the full sum invested and 10 per cent per annum thereon, the Legislature may so regulate the tolls and freights that no more than fifteen per cent, shall be divided, and the surplus profits, if any, after paying the expenses and reserving a fund for contingencies, shall be paid over to the Treasurer of State for the use of common schools. They argue that all the earnings of the road belong solely to the corporation until the State has first asserted her right to the surplus profits by the regulation of the tolls and freights. This is purely a legal question, and a suit is pending, which will probably be decided this month, which involves this question.
If the construction put on the sections of the charter by the company and the ex-Attorney General is not correct, and the State has a right to claim that no precedent legislation is necessary, is there, in reality, any thing due to the common school fund? We find from the evidence that if there is any thing due it grows mainly out of the Company's having diverted the earnings of the road, which would otherwise have been dividends for the purpose of subscribing for stock and purchasing bonds of other railroad companies to enable such Companies to complete railroads forming a connection with the road of said company. The officers of the Company insist that they have the right to do so. The attorneys claiming to represent the State insist that the corporation has no such right. So another legal question is raised which should be decided by the judiciary. The officers of the road insist that if such investment had proved a total loss, the investment increased the business and dividends of the road, and thus enured to the benefit of the school fund by enabling the Company to get back sooner its investment and put the State in a condition sooner to regulate the tolls and freights. Both parties claim that the committee have not all the evidence on that subject.
The committee further report that the Hon. James C. Denny, Attorney General of the State, with Courtland C. Matson, Prosecuting Attorney, and Hon. Sol. Claypool and W. R. Harrison, all of whom claim to represent the State, appeared before the committee and advised the committee that it was unwise and unnecessary te recommend any legislation on the subject of their investigations. The committee therefore had no recommendations to make.The report was signed by Senators Brown, Dittemore, Sleeth, Gooding and Bird.
Mr. BROWN moved the adoption of the report. He said a suit was pending in the Owen Circuit Court, commenced in the Putnam Circuit Court, for the forfeiture of the charter of this Company under the 23d, section. If the Legislature passes a resolution recognizing the existence of that corporation it will prove a complete stop to further proceedings in this suit. The attorneys for the State do not feel sure that they can collect this money under the twenty-third section but they do feel sure that they can mantain their action against the Company on other grounds so as to work the forfeiture of the charter. The committee think thnt it would be wise not to interfere with this pending litigation and jeopardize and hazard the collection of this money altogether under the twenty-third section.
Mr. B. feared that precedent legislation was necessary before any liability is incurred on the part of this company to pay any money to the school fund. It will be remembered further, that a forfeiture of the charter does not necessarily obtain this money. Where a forfeiture is worked, a trustee or receiver is appointed to sell the page: 433[View Page 433] property. He administers upon it something as a trustee on his trust. He takes the franchise and the property, and everything belonging to it, and makes settlement with the creditors of the corporation. So if this franchise is forfeited in this suit, before one dollar of money can be collected by the State for the school fund, they have got to go to some court and get that court to decide, unless they can make a compromise, that the construction of this charter claimed by those claiming to represent the State is the true construction. So it is thought by the lawyers claiming to represent the State that the Legislature had better not interfere. On the other hand, the corporation has been here by its attorneys and insisted that a resolution should be passed by the Legislature directing that a suit should be brought against them at once. They know that that will be a complete estoppel and bar to this suit in Owen county. The committee thought that it was the part of wisdom to allow the suit to take its natural course. There is full and ample remedy by reason of the existing law for the institution and prosecution of such a suit against the company. All there is involved now is this, that the Legislature make no decision on the merits of this controversy, but leave the case to be disposed of in the court where the suit is instituted. Another reason is that the Judge down there, in deciding a demurrer filed by the company to the complaint in the action, has construed this section twenty-eight in favor of the State, and it seems to me that we had better not legislate this case out of existence and pass it to another judge, who might possibly construe it the other way. The late Attorney General construed this section to mean this, that in the first place they had a right to charge just such rate of tolls as they pleased; next, they had the right, in the first place, to get back by dividends the full amount of the sum invested, and ten per cent. per annum thereon and that after they had done that the Legislature could then come in and assert its right to regulate their tolls, and if, in the regulating of the tolls the freights and tolls they received afforded an amount beyond fifteen per cent. upon the actual amount invested and the fund for contingencies, then and not till then could anything go to the school fund; and that seems to me to be the true construction of that section. But the learned Judge down here has construed it otherwise, and the committee think it is the part of wisdom now to leave that which properly belongs to the judiciary to the judiciary. The legislative department cannot forfeit a charter or collect a debt. It only affords the means by which the judiciary can cause these things to be done. The law is ample and the question is, shall we legislate this suit out of existence or leave it there to be adjudicated by the court?
Mr. O'BRIEN said he understood that there was an information pending in the Owen Circuit Court against this company to forfeit its charter, and that that information contains an allegation of fraud on the part of the Company, but the committee express the opinion in their report that they have not been guilty of fraud.
Mr. BROWN. The committee say so far as any evidence presented to this committee is concerned.
Mr. O'BRIEN. If the question is pending in that court, why make a legislative record on that point?
Mr. BROWN. The committee was sent out to ascertain whether there was fraud or not. It has investigated that subject and finds none. But we have refused to put that question in the shape of a legislative expression upon that subject for the very reason that if we did it might prejudice the claims of the State.
Mr. HARNEY said this was an old question. He had investigated the matter somewhat independently, and had come to a conclusion entirely in accordance with the report of the committee, but in some measure upon a different basis, looking at it not from a legal point of view, but merely from an equitable point of view. The act incorporating this Company was passed in 1847. It was the time when the State conferred special charters on all incorporated companies. On looking through the records of those times he found it was a very common occurrence for the State to reserve certain rights as immunities that would accrue to the State, as a consideration for the special powers and privileges granted to the companies. This company was chartered previously to 1852, but the road was not completed, or at least had not begun to be remunerative until after the general act was passed allowing all corporations to come in under the general law. At that time all the special protection that the State had extended to this Company had ceased, at least they were no longer protected against competition. Section eighteen of its charter virtually implies that the State would protect it against competition. Under the act of 1852, no protection of that kind was passed, and now we have a road running parallel with this road. Finding that the State reserved these proceeds for the extraordinary protection afforded, and that the State afterwards, by general law, allowed all roads to come in under the same provisions the right in equity, to these proceeds would not exist, and he did not think because a road had been more prudently and economically managed it would be fare for the State to extort from it a portion of its earnings. If there28 page: 434[View Page 434] is a legal liability in this Company, let the courts determine it.
Mr. GOODING confessed that a short time ago he was in favor of a resolution directing the Attorney General, or the Superintendent of Public Instructions, to bring a direct suit for the purpose of testing in the courts this question that lawyers dispute about in the twenty-third section, and the further purpose of recovering any sum of money that might be due to the State, if the construction should be contrary to what the railroad says it is. But when the committee met the time before the last, the Attornoy General of the State, an officer whom they were bound to recognize, and the Prosecuting Attorney who had brought a suit in behalf of the State in the Putnam Circuit Court, and Judge Claypool and Mr. Harrison, all representing the interests of the State, came voluntarily before the committee and stated in most earnest and emphatic terms that they desire no action should be taken; that they had a case already pending for that express purpose, and that any action taken by us would tend to embarrass that case in court; and that they could recover to the State all that was due. For this reason the committee made no recommendation. On the other hand, a memorial, which was spread before the Senate here in behalf of the road requested that a suit should be brought. [See BREVIER LEGISLATIVE REPORTS, Vol. XIII pages 201, 202 and 203.]
If we were to recommend such action we would be recommending it against the advice and consent, and over the protest of men representing the State in cases now in the courts. The present Attorney General is of opinion that under the twenty-third section of the charter of this Railroad there is something due the State. The proper place to settle this question is the courts and not the Senate Chamber; and it is unwise to call upon this body, only part of which are lawyers to pass upon a legal question; and for these reasons the committee, against their own preconceived notions were induced not to recommend the commencement by the State of a suit. But suppose we had come in here, in compliance with the request contained in the memorial from the Railroad company, and over the protest and advice of the Attorney General and the prosecuting Attorneys, what light would it put us in before the country? Some gentlemen say we ought to take some affirmative action. What affimative action could we take? The committee has had some labor to perform, have spent some time at it, had some anxiety about it, and have arrived at the conclusion that the case being in court, we will not undertake to settle a legal question about which the best talent of the State differs. Suppose we were to undertake to settle the point made in that twenty-third section, how many members of the Senate are lawyers? We would be taking a great responsibility upon ourselves.
Our government is organized upon the principle of three separate departments - executive, legislative and judicial. If there is any lack of legislative power let us supply it. If there is no law empowering an officer the State to bring such suits as are necessary, let us pass such a law, but Senators will find by reference to the power given the Superintendent of Public Instruction that no legislation is necessary. I desire to call the attention of lawyers in the Senate to section twenty-six of the Common School Law. It reads as follows: [Mr. G. read it.] Here is ample power given to bring all the suits necessary to recover money due the school fund. In view of the letter of the Attorney General which is made part of this report, your committee have seen proper to report back the facts to the Senate, and recommend that the facts be allowed to be litigated before the courts. Let us leave to the Judiciary the questions that properly belong to that branch of the Government.
Mr. DWIGGINS. I do not desire to make an argument but a brief statement. It will be observed that my name does not appear as signed to that report. While I agreed fully with the Senator from Vanderburg (Mr. Gooding) as to the best policy to be pursued, I prepared a report, which I thought it was proper the committee should present, but for the reason stated such report has not been made. We were met by the Attorney General and requested not to recommend legislation on the subject - that is the reason.
Mr. O'BRIEN was satisfied with all of the report except that part which exonerates the Company from fraud. While he thought probably no fraud had been committed, he did not believe it would be expedient to so declare by concurring in the report of the Committee. He said: In my opinion, when we concur in that report we put it upon the record as the opinion of the Senate that the officers of the Terre Haute Railroad Company have not been guilty of fraud. That being the case I want to leave that question also to be decided by the courts after investigation, after they have heard all the evidence - which this committee has not heard. Why gentlemen should come into this Senate and make a report exonerating a company from a charge made against it in the courts and leave other questions to be considered there, I cannot tell. I think this question might just as well be considered there as the other. I am inclined to think the committee are right in their opinion. As far as my information goes I am inclined to think the officers of this company have not page: 435[View Page 435] been guilty of fraud; but if there is any necessity for leaving any portion of this question to the courts, that portion should go with it. I am not willing to vote for this report with that opinion in it.
Mr. BROWN contended that this expression of the opinion of the Committee could not prejudice the case of the State, and that to strike it out would charge the Company inferentially with fraud, and he said that when a case is tried in the courts the questions of fact found upon the trial, are the only questions of fact that turn the verdict in the case, as far as the question of fact is concerned. And I go even farther and say that should both branches of the General Assembly concurrently investigate the naked question of fraud, and upon that investigation report no fraud, that that report would not be a bar to the trial of the case upon a question of fraud in any court in the State, but it would be a bar to a suit in which was involved the question of the franchises, because it would be a recognition on the part of the Legislature of the corporation, and that recognition of the corporation would be an estoppel to any previous inquiry with reference to the existence of the corporation.
Mr. O'BRIEN. I would ask the Senator if, in his opinion, a concurrence by the Senate in the report of this Committee would be used against the State in any court ?
Mr. BROWN. It is my opinion it would not. The investigation made here is certainly ex parte. And even if it would be introduced in evidence it could not control the case, because it is a finding of a case on facts presented to this body and this alone. And if this report should be introduced into evidence any way, the report would have to be accompanied with the evidence upon which it is founded. Here is what the report says: "The Committee further report that in the investigation they have made they find no evidence of corruption, concealment or fraud."
Mr. GOODING. In another place it states distinctly that both sides claim the facts in the case have not been before the Committee.
Mr. STEELE. The question is as to the effect of such action by the Senate.
Mr. BROWN. My judgment is that the State of Indiana is no party to this action down here.
Mr. STEELE. The simple question is this: If the Legislature does not represent this fund - if the Legislature does not control this fund, what power is there to do so? That is the question.
Mr. BROWN. I answer that there can be no legislative expression, unless by concurrent action of both Houses, and in this case there is no proposition to concur. Here is a Committee charged with the duty of making an investigation, and upon it, here, as a question of fact, it has been unable to discover any fraud; and I say that all this talk about the Terre Haute Railroad Company bribing and buying members of the Legislature is the sheerest clap-trap and nonsense. I believe it simply to be an ill-founded charge, and in my place in the Senate, say that my opinion is adversely to such a charge; I don't believe gentlemen connected with that road have committed bribery and corruption. If gentlemen want to lay that charge to old Chauncey Rose, Dick Thompson, or, W. R. McKeen, I don't propose to.
Mr. SCOTT. I would inquire if the rights of the State would be enlarged or diminished, whether fraud is found one way or the other?
Mr. BROWN. Not in the least, because if the franchises of the road is stricken down on account of fraud by the managers that puts the road in the hands of a commissioner or receiver for sale, and he sells it, - for what, purpose? For the purpose of settling and adjusting with creditors and turning it over to the owners, but before the school fund gets one dollar they have got to show that they are entitled to it, and in my judgment they never have a claim until precedent legislation is enacted. That is my opinion.
Mr. DWIGGINS. Other members of the Committee have a different opinion.
Mr. O'BRIEN. I understand that there is a charge in that information that this Company enlarged their stock for the express purpose of preventing their dividends from being large enough to get into the school fund.
Mr. BROWN. The complaint expressly alleges bribery of members of the Legislature, and general fraud and dishonesty. These men did take their surplus earning and diverted them to the purchase of stock in other lines, which would have been dividends, and would have sooner paid back the sum invested. Whether they had the right to do that or not, depends upon the proper construction of this twenty-third section. If the true construction is that the school fund is not entitled to a share of the earnings until precedent legislation is had, of course they had the right to do it. They believe that construction is right, and supported by the Attorney General of the State, they acted upon that belief.
Mr. O'BRIEN. Is not that part of the charge in the information, that they used their surplus earnings to enlarge their own stock?
Mr. BROWN. Whether in the information or not, in so far as that act is concerned we have found no fraud, and in my judgment there is no fraud.
Mr. O'BRIEN. Whv not transfer that to page: 436[View Page 436] the court with the rest? I understand the duty of the Committee is to report the facts with the evidence, and not that they express an opinion upon a question of fact which is brought before a court. And at the same time the Committee don't pretend to have all the evidence.
Mr. BROWN. Then the opinion is worth nothing in the case. It is not a matter of public record recognized by any law of this State, as evidence in any court. As far as my personal opinion goes, I would be in favor of passing a resolution striking down that suit. In the first place, I do not believe the company is liable to the school fund; and in the next place, if liable it is solvent,and any judgment found against it can be made without striking down its franchises. But because the Attorney General and these men beseeched and implored that the case should be let alone, I gave up my opinion. The Terre Haute and Indianapolis road is the only railroad between the east and the Pacific coast that is a domestic road and owned by Indiana people. It is to the interest of foreign companies to break down its franchises and place it in the hands of the Pan Handle.
Mr. STEEL. I think the report with a slight amendment should be concurred in, and for the purpose of testing the sense of the Senate I offer the following amendment to the report: Strike out that part of the report which declares that "in the investigations made the committee found no evidence of corruption, concealment or fraud." The action of this Committee should have no influence one way or the other, upon the trial of the present suit or suits that may be brought. I can not see the necessity of saying one thing or another. Why not leave it as the balance of the report leaves it - expressing no opinion one way or the other? The matter of fraud, is a matter I think will come up in the investigation of this case, or in suits that may hereafter be brought; therefore I can see no harm in striking out that part of the report. And I don't see why the Committee will not be exonerated as well by doing so as by allowing that part of the report to remain. I think it right to leave it to the Judiciary to find everything that is necessary to be found in the case. I think that would bring the whole Senate together. I think the main question presented to the Committee for investigation was to ascertain whether suit should be brought directly.
Mr. HOUGH. An investigation has been had, and the report does not recommend any affirmative action. It is thought by some members that if the report is concurred in it may work a prejudice to the school interests; and if the report is laid upon the table the information will be as available as to concur in it. The case in the court may be disposed of during the present month and before the adjournment of this legislature; and it seems to me the best disposition of the report would be to lay it on the table. I make that motion.
Mr. BROWN appealed in vain to have the motion withdrawn.
Mr. HOUGH refused and the vote on the motion resulted as follows:
YEAS - Messrs. Beardsley, Boone, Bowman, Bunyan, Chapman, Fuller, Gregg, Hull, Hough, Hubbard, Sarnighausen, Slater, and Winterbotham - 13.
NAYS - Messrs. Armstrong, Beeson, Bird, Brown, Carnahan, Collett, Daggy, Daugherty, Dittemore, Dwiggins, Francisco, Friedley of Lawrence, Gooding, Harney, Howard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Ringo, Scott, Smith, Steele, Stroud, Thompson, Taylor and Wadge - 29.
Pending the roll call -
Mr. DAGGY, in explanation of his vote, said: I will vote against laying the report on the table. The case may not be tried this term of the court; it may be postponed, and I think to lay the report upon the table we would be just as much in the dark as now. I vote "no."
Mr. GOODING, when his name was called, in explanation of his vote said: I don't think to lay the report upon the table would be treating the Committee exactly right. If there is any part of the report wrong, let's expunge it, and not say that because we can not approve of one little particular therefore we will lay it upon the table. I do hope the Senate will not impliedly cast an impression abroad that they disapprove of the report of the Committee. I vote "no."
Mr. GREGG, in explanation of his vote, when his name was called said: In casting my vote to lay the report on the table, I do not do it with any intention to reflect upon the Committee. If I understand it the adoption of this report would bind the hands of the General Assembly during this session, and for two years to come, from authorizing any direct suit to be brought to recover the money due the school fund, or to investigate the matter. I vote "aye."
Mr. HOUGH, in explanation of his vote, when his name was called said: In making this motion and voting for it, I do not intend to cast any reflection upon the Committee. I vote "aye."
Mr. NEFF, when his name was called said in explanation of his vote: With the amendment offered by the Senator from Grant [Mr. Steele,] I would have no objection to the report; without that I would be in favor of laying it on the table, with a view of corrrecting the report. I vote "no."
Mr. O'BRIEN, in explanation of hie vote when his name was called, said: I can't vote for this motion because I want page: 437[View Page 437] this subject disposed of, I am inclined to think that perhaps the report of the Committee is right. They have investigated the subject, and the report meets my views with the exception of the particular in which we are proposing to amend it. With that amendment I want the report adopted. I vote "no."
Mr. SMITH. I would like to enquire whether the Senator from Jackson, [Mr. Brown,] has accepted the amendment proposed by the Senator from Grant [Mr. Steele?]
Mr. BROWN. Not yet.
Mr. RHODES, when his name was called, in explanation of his vote said : As the Proposition stands I shall vote "no." I understand there is a proposition to amend by striking out certain matter referred to in the report, and I am not in favor of laying the whole proposition on the table in that condition. I vole "no."
The result of the vote was then announced as above recorded.
So the Senate refused to lay the report on the table.
Mr. BROWN demanded the previous question on Mr. Steele's motion to strike out that part of the report expressing the opinion that there has been no fraud, etc. It is in these words:
"And your committee further report that in the investigations made they find no evidence of corruption, concealment or fraud in the matter of said company's relations and obligations to the State."
The Senate seconded the demand for the previous question, and under the operation thereof the motion to strike out was agreed to by yeas 24, nays 19 - [See page 133 of this book for the yeas and nays and explanations of the votes of several Senators.]
The question then recurred on concurring in the report of the Committee as amended and it was concurred in by the following vote:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Bird, Boone, Brown, Bunyan, Carnahan, Collett, Daggy, Dittemore, Dwiggins, Francisco, Friedley of Lawrence, Glessner, Gooding, Harney, Howard, Hubbard, Neff, O'Brien, Oliver, Orr, Rhodes, Ringo, Sarnighausen, Smith, Steele, Taylor, and Thompson - 30.
NAYS - Messrs. Bowman, Chapman, Daugherty, Fuller, Grearg, Hall, Hough, Miller, Scott, Slater, Stroud, Wadge, and Winterbotham - 13.
Pending the roll call.
Mr. SCOTT, in explanation of his negative vote when his name was called said: I think with that stricken out there is not a single word or sentiment in the report of benefit to the State. I vote "no."
The vote was then announced as above recorded.
So the Senate concurred in the report of the Committee.
And then came a recess till two o'clock.
AFTERNOON SESSION.
After the disposition of other business - see pages 133 and 134.
About half-past three o'clock Mr. BROWN rose to a priviledged question. He said that at the adjournment an evening or two ago a motion to reconsider a certain vote and to lay that motion on the table was pending. He asked that that question be disposed of.
(The motion was to reconsider the vote by which the Senate refused to concur in the House concurrent resolution indorsing the President's Indian policy, and to lay that motion on the table.)
Mr. DITTEMORE, the author of the motion, sought to withdraw it, but Mr. Brown objected.
Mr. FULLER made the point of order that the motion had not been stated by the chair before the adjournment, and therefore the motion expired with the adjournment. The chair stated that the journal showed that the question was stated by the chair.
Various points of order and other stratagems known to parliamentary tactics came from the Democratic benches to prevent action on Mr. Brown's motion, but all in vain.
The points of order were overruled, and finally Mr. Brown demanded the previous question, which was seconded - yeas 24, nays 20.The question then being on the motion to lay the motion to reconsider the vote on the table, it was rejected - yeas 20, nays 24a strict party vote.
The motion then recurred on the motion to reconsider the vote by which the motion was lost, which was carried.
Mr. BROWN then moved the adoption of the resolution, and Mr. Dwiggins, demanded the previous question, which was seconded - yeas 25, nays 19.
The resolution was then adopted by the following vote:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Brown, Bunyan, Chapman, Collett, Daggy, Dwiggins, Friedley of Lawrence, Gooding, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Scott, Steele, Taylor, Thompson, and Wadge - 25.
NAYS - Messrs. Begge, Bird, Boone, Bowman, Carnahan, Daugherty, Dittemore, Fuller, Francisco, Glessner, Gregg, HalI, Harney, Ringo, Sarnighausen, Slater, Smith, Stroud and Winterbotham - 19.
Mr. DAGGY moved to reconsider the vote, and Mr. Brown moved to lay that motion on the table, which was carried.
page: 438[View Page 438]THE GRAVEL ROAD LAW.
Mr. Miller's bill [S. 18,] to repeal the act authorizing the assessment of lands for plank, macadamized and gravel road purposes, and also the act authorizing the construction of plank, macadamizad and gravel roads, saving the rights already required, being read the third time -
Mr. MILLER, said that was his bill and he hoped it would be voted down.
Mr. GREGG said he hoped it would pass, for it was one of the most important upon which the Senate was called to act. The Senate has already indicated its feeling by its action in reference to assessments for the construction of ditches and railroads against the will of the people. It is correctly assumed that these corporations are always organized for selfish purposes, for the benefit of a few at the expense of the many.
Mr. STEELE thought the law would work great injustice. In many cases roads have begun in good faith and completed for a distance of, say four or five miles. The effect of this law would be to enable those living along the line of the road to enjoy the improvement without paying a cent. In other cases it would stop work on roads which were greatly needed and desired by the people.
Mr. GLESSNER made an earnest speech in favor of the preservation of the gravel road law.
Mr. DITTEMORE demanded the previous question on the passage of the bill, and there being a second to the demand, under the operations thereof the bill was rejected by yeas 15, nays 25 - as follows:
YEAS - Messrs. Bird, Bowman, Collett, Fuller, Francisco, Friedley of Lawrence, Gregg, Hall, Harney, Howard, Neff, Oliver, Orr, Stroud and Wadge - 15.
NAYS - Messrs. Armstrong, Beardsley, Beeson, Biggs, Boone, Brown, Bunyan, Carnahan, Chapman, Daggy, Dittemore, Glessner, Hubbard, Miller, O'Brien, Rhodes, Ringo, Sarnighausen, Scott, Slater, Smith, Steele, Taylor, Thompson and Winterbotham - 25.
Pending the roll-call -
Mr. GREGG, in explanation of his vote when his name was called said: I shall vote in accordance with the petition of hundreds of thousands of farmers not in these lobbies with the representatives of these corporations. I vote "aye"
Mr. HALL, when his name was called in explanation of his vote said: I wish the law repealed because it is productive of so much ill feelling. I vote "aye."
Mr. HARNEY, in explanation of his vote when his name was called said : Mr, Glessner has given reasons why we should vote for this bill. It is very arbitrary and therefore I vote to repeal the law. I vote "aye,"
Mr. NEFF, when his name was called in explanation of his vote, said : I would like to discuss the merits of this bill somewhat, but it has been a rule of this Senate that after certain members have discussed their side of the question fully they move the previous question and cut off the debate. I would prefer to say what I desired to before any one voted ; but now in explanation of my vote I simply desire to say that I vote in favor of the repeal of the law; first, because of its defectiveness. I would be in favor of wiping out the present law and then passing one not so defective. I do not favor its repeal because I am in favor of turnpikes, but there is another reason why I am in favor of a repeal of this law. I believe it is wrong to tax men against their will for the purpose of placing funds in the hands of any corporation. I was opposed to the Railroad tax law on the same principle. You take money out of the pockets of the citizen and place it in the hands of a corporation without giving him any value received for it. The same principle obtains in this turnpike tax law that does in the Railroad tax law, for this reason that it takes money unwillingly out of the pockets of the tax payer - the farmer, the mechanic and the laboring man and gives it into the hands of a private corporation. For that reason if for none other, I would be in favor of repealing that law. You might as well tax the people to support a particular church or school, for instance the Roman Catholic's, as they believe their mode of tuition best, might ask for a tax to support their kind of schools, and yet I apprehend the people of the State would rebel against it. So if you were to attempt to build up a Presbyterian or Methodist school I apprehended the balance of the people would rebel against that. For these reasons I favor the repeal of the law. I vote "aye."
Mr. ORR, when his name was called said: I wish to explain my vote. I believe the law passed regarding turnpikes was wrong, and its operation upon the people of the State oppressive. I am well satisfied that in my neighborhood it has produced ill feeling, heavy litigation in the Courts and we have not succeeded in getting our roads built. Entertaining these views I think it is my duty to vote to repeal any law that has produced so much discontent in neighborhoods. It has been a great expense both in money and kind-feeling in our locality, and I therefore vote "aye."
Mr. SARNIGHAUSEN, when his name was called, in explanation of his vote said: The present law has some provisions in it that ought to be repealed, but so long as page: 439[View Page 439] there is no better I cannot vote to repeal it. I vote "no."
Mr. SMITH, in explanation of his vote when his name was called, said: I agree with the Senator from Shelby, [Mr. Glessner,] that it would be ill advised to repeal the law, and therefore I vote "no."
Mr. STEELE, when his name was called in explanation of his vote said : I am opposed to the repeal of of this law. Like the gentleman from Randolph, [Mr. Neff.] I am in favor of passing some law well guarded. But I am opposed to repealing the present law, and therefore vote "no."
Mr. THOMPSON, in explanation of his vole when his name was called, said: If this law would take effect giving notice six months in the future, I think I could vote for it, but I am afraid it would do great damage to contracts already let.
Mr. NEFF. It saves all.
Mr. THOMPSON. From my stand point I believe I shall vote "no."
Mr. WADGE, when his name was called said: I wish to state the reasons why I shall vote to repeal this law. I was, sent down by my constituents to repeal all laws which give to corporations the power of taxation without representation. For that reason, therefore, voting as I did for the repeal of the Kankakee Valley Draining Company I will also vote to repeal the gravel road law. I vote "aye."
The vote was then announced as above recorded.
So the bill was rejected.
