THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
The Temperance Question..---Debate in Continuation.
IN SENATE.
WEDNESDAY, February 19, 1873.[CONTINUED FROM PAGE 181 - MIDDLE OF FIRST COLUMN.]
The LIEUTENANT GOVERNOR announced the special order - being the favorable report of the Committee on Temperance, submitted this morning on the bill [H. R. 327] to regulate the sale of intoxicating liquors, etc.
And thereupon -
Mr. SARNIGHAUSEN said: Mr. President : If this bill were what it ought to be, a bill to prevent and to punish drunkenness and intoxication, no Senator on this floor could vote more cheerfully for it than I would do, because no man can hate intoxication and drunkenness more than I do, and all laws and measures for preventing and punishing the same will always find my hearty support. But this bill now pending before the Senate is not such a bill, it is wrong in its start, it overrides its aim, therefore it will not only help nothing but it will make the evil worse. Our present law, if enforced, would be good and strong enough, but if this law is not enforced or cannot be enforced, what kind of guarantee can you have for enforcement of a very much stronger one? We would do better to try to find the reasons why the present law is not enforced, instead of proceeding with hasty legislation. The fault does not lie with the law but with its enforcement and if this bill should become a law, you will make the same experience.
In looking over this bill, the question arose in my mind: is the sale of intoxicating liquors, that is to say: beer, wine and alcoholic liquors a lawful business or not? If it is a lawful business, deal with it as with other lawful business; if not, say it at once and prohibit it entirely; but do not say it is true, it is not a lawful business, but we will close our eyes and allow it under such and such restrictions. That would not do. But then go a step further and prohibit the sale of such commodities, not only by retail but also by wholesale, that is to say: close the breweries and distilleries and establishments for manufacturing wine, as it would be entirely inconsistent to prohibit one man from selling five cents worth and allow another man to sell five dollars worth of the same merchandise. That would mean, in other that the law should not apply to tin who can afford to invest so much money at once, but only to the man who is not able to do so, and hence it would be not only inconsistent but the worst kind of class legislation. But if you will go on as I have indicated, do so, we shall see the result soon enough. But I hope then for one thing. It is well known that our government derives a large portion of his revenues and income from the breweries and distilleries, and I hope, the same men, who are so anxious now, to see those establishments closed, will hereafter, when they will have reached their aim, be patriots page: 499[View Page 499] enough, to put their hands into their own pockets and pay so much out of their own money as is necessary to cover the deficit in the treasury.
It is true, Mr. President, that this bill has a provision inflicting a penalty upon drunken men; it fines them the enormous (?) sum of five dollars, not one cent less. But this provision is entirely overshadowed by the main feature of the bill, the prosecution of the saloon keepers, whose fines run up to twenty-five, fifty and one hundred dollars, and in looking over this bill you would be inclined to forget that it takes two men to make a bargain, and to believe that it takes but one : the saloon keeper. The bill reads as if from the same moment, when a man steps in, the saloon keeper had no other idea, no other purpose, than to make that man intoxicated, and as if from that same moment that man had lost entirely his free will, his control over himself and was merely a tool in the hands of the saloon keepers.
Now, Mr. President, I say, if a saloon keeper goes on with that purpose, to make a man intoxicated; if he induces him to drink, although he sees, that it would not be safe for the man to drink more; if he insists upon him to drink notwithstanding the man refuses it; if he sells liquor to a man already intoxicated - I say let him be fined not five dollars, nor fifty dollars but at least five hundred dollars, and if possible five thousand dollars; because he has made a man, God's noblest creature, a dog and a hog. But, Mr. President, if a man behaves himself in a saloon, is decent and sober, you cannot make the saloon keeper responsible for the damage and mischief the man may do, after he has gone out. I am a practical man and I can give or get a practical illustration, I like to take it. What would a dealer in hardware say, if he should be held responsible for all mischief and damages a man does with a revolver he has bought in his store? We have two distinguished Senators here on this floor, both of them engaged in hardware business. I submit the question to them. I presume they will say: we would never sell to a man who would state that he intended to kill his neighbor or do harm otherwise, and that is precisely the same that I expect the saloon keepers to do, not less and not more.
I know, Mr. President, that many Senators do not agree with me herein: they believe that this bill strikes the root of the evil and that a man will give up his bad habits if he cannot go in a saloon and drink there. I do not believe so. I undertake to say, that the worst class of drunkards do not consist of such men, who go in a saloon and drink openly but of such men, who swallow their drinks behind the door and have their whisky jugs under their bedsteads, as a man who sins openly, gives more hope of reform, as a man who has his ways in the dark. And you will increase the number of drunkards by this bill. The man who wants to drink, will find means and ways enough to provide himself with his beverage, nothing in this bill prohibits him from it, he may take it home or to his friends and drink there and with them, and a great many who would be ashamed now to appear intoxicated at public places will loose his restraint. I refer to Henry Wilson, elected Vice President of the United States, who has stated that he has seen more drunkards in the State of Massachusetts during one week, than in Europe during six months. And Henry Wilson is a strong temperance man himself and they have a very strong temperance law in the State of Massachusetts. Temperance is a virtue growing up in the heart of the man and I do not believe in making men virtuous by law. That means expelling the black devil by the white devil and the white devil is tenfold more dangerous and worse than the black devil, because he is a hypocrite.
That is it, Mr. President, what I understood by saying, that this bill takes the wrong start and I shall not detain the Senate with a long explanation how far the several sections go in this wrong direction. Only for giving an illustration I will allude to section two, compelling a man, who intends to open or keep a saloon, to make himself year for year a bore in the whole election precinct; and to section six, compelling a saloon keeper to keep a list of all drunkards, not only in his neighborhood, but in the whole State of Indiana; because, as the bill reads, a saloon keeper here in the city of Indianapolis may be prosecuted for having sold a drink to a man from New Albany or Valparaiso, a stranger to him and to all appearance sober, because it can be proved that the man is "in the habit of getting intoxicated" at his place. You must not say to me: oh, the law would not be enforced in such a way; I belong to the old school, or if you prefer it, to the old foggies, believing that a law, so long as it exists, must be enforced to the very letter. I am as a legislator afraid of nothing so much as of laws, inforced to-day and neglected to-morrow, so as the interpretation or the good or bad will of the officers or the expediency may require it for the special case; the people will then not know what is law or not; they will very soon loose the respect for the law, and the law, which ought to stand firm as a granite rock, will be trampled as dust under the feet.
With the indulgence of the Senate, I have only a few words more to say in relation to two other provisions of this bill. My first page: 500[View Page 500] point is : can this bill be sustained before the courts? I refer to section eight forbidding a saloon keeper, to have his business place open before six o'clock and after nine o'clock p. m. In Europe, where it is not considered as a crime, to take a glass of beer or wine, all such efforts to fix a "police hour" as it is called, have themselves proved always as a failure, except in certain localities for certain reasons. It is true we are used to look somewhat with contempt upon the States on the other side of the Ocean, the "police States," as they are called, but such a restriction of personal freedom as proposed in this bill is entirely unheard of even in these "police States." But I ask the question: has the State a right to compel me to open or to close my business place at a certain hour ? If I wish to open my office at three o'clock a. m., the State has no right to prohit it, and if I prefer to keep it open until midnight, it is my own pleasure and it is not in the provice of the State to interfere with it, provided that I do not disturb the public peace and order. If this bill made such a discrimination, if it provided for immediately vacating all saloons, where the rest of the neighbors is disturbed by roaring and crying, I would not make the slightest objection, but this bill says nothing of it, but inflicts a penalty upon opening and closing business places, in my opinion precisely with the same right with which it could inflict a penalty upon me for refusing to take my breakfast before eight o'clock a.m., and my supper after eight p. m. Can such a provision be sustained before any court ? I am doubtful.
And here is another point. I am not a lawyer, but so far as I know, our law provides that in all cases of indictment the facts must be stated. If however, Senators will look on section seventeen, they will find that "in all cases of prosecution by indictment or otherwise, it shall not be necessary to state the kind of liquor sold, or to describe the place where sold, and that it shall not be necessary to state the names of the person to whom sold." What will such an indictment be worth before the courts? Each lawyer will defeat it at once. But it looks to me, as if the framer of this bill had assumed the right and privilege to change the laws of the State and to make new ones in behalf of his temperance bill.
That is what I understood in saying, that this bill overrides its aim, but not only in this respect, it goes a good deal further and is so anxious to prevent drunkenness, that it awards a premium for drunkenness. That is not an improper bad joke. Look on section eight: "Any person or persons, who shall by the sale of intoxicating liquors with or without permit, cause the intoxication in whole or in part, of any other person shall be liable for and be compelled to pay a reasonable compensation to any person, who may take charge and provide for such intoxicated persons for every day, he or she is cared for." And then take with this, section twelve, which reads as follows: "Every husband, wife, child, parent, or guardian, or other person who shall be injured in person, or property or means of support, by any intoxicated person or, in consequence of the intoxication, habitual or otherwise of any person, shall have a right of action in his or her name, severally or jointly against any person or persons who shall, by selling, bartering or giving away intoxicating liquors, have caused the intoxication in whole or it, part of such person," and in looking over the balance of the section, you will find, that also the proprietor of the house, in which the saloon is kept, will be held liable for damages, even if he is not the owner of the saloon.
Now, Mr. President, I say that means to award a premium for drunkenness. How will this section work? You may be sure the faithful wife, mourning in her heart over and suffering under the terrible calamity of having a drunken husband; the loving child, afflicted with sorrow over the unfortunate father; the true friend, sorry over his friends departure from the paths of righteousness they will spurn with scorn and contempt the idea of taking money for caring for her husband, his father, and friend, and to sue another man, for a "reasonable compensation" to be recovered by disgracing her husband, his father, or friend. But you will find wives, children, and friends, no better than the drunkard himself, who will come up and take advantage of this law, they will be very glad to see the old man intoxicated day for day, because by suiting other parties and extorting money from him, they can make their living better and more easily than by working, and the drunkard will heartily consent to it. He may stay at home and with the money, his good wife, and his dear children, and his beloved friends have extorted from the saloon keeper he shall send them out and cause them to buy one jug of whisky after another, they will have their jolly time at home, and after the money shall be exhausted, they shall play the same game anew. He shall go to a saloon, take a drink, break a couple of cups or glasses, abuse his wife with whom he made the proper agreement before, and she will go and with sections eight and twelve in her hands she will sue the man in whose saloon the man has taken a drink and thereby get money enough to spend some weeks more in idleness.
Do Senators call this reform? Means that prevent drunkenness? Then, indeed, they are satisfied with very small, success? Or do they doubt my word? Then I refer to what page: 501[View Page 501] has happened in the cities of Toledo and Columbus, Ohio, when the Adair law, of which the present bill is a copy, but in many points a very much stronger one, was in full blast there.
But I call the attention of Senators to the fact, that yesterdays paper announced that the courts at Columbus, Ohio, have declared the Adair law unconstitutional, therefore null and void. What can be hoped for this bill? In the same provisions, the decision of the court referred to, the Adair law and this bill, the Constitution of the State of Ohio and the Constitution of the State of Indiana agree to the very letter. Is it necessary for us to increase the number of laws passed by the legislature and declared null and void by the courts? We have enough of them ; I refer to the fate the election law of 1869, and the fee and salary bill of 1871 have had before the Supreme Court of the State, and I believe that the conflict between the Legislative and the Judiciary department of the State has hurt the conscience of the people in such a way that we should beware of further steps in that direction.
But, Mr. President, I forgot that here is one section in this bill, perhaps the worst of all, a section hurting and wounding, in my opinion, the tenderest and most sacred feelings of the human heart. I allude to section thirteen, proposed as an amendment in the other House and passed. I said before: the faithful wife, the loving child, the true friend, would not come up trying to get money by exposing her husband's, his father's, or friend's shameful conduct. But this bill will compell them to do so : if they fail or refuse to do it, the township trustee will do it.
Mr. President, think of it! Think of the wife, suffering under the dreadful calamity to have a drunkard for a husband, anxious to hide his shame before the world, but lying upon her knees before her God, beseeching him for help for her husband, that he -may be converted, for strength for herself, that she may be able to bear her heavy burden, for wisdom that she may lead him back to the path of virtue - and meanwhile the township trustee goes up to the court house and blows her husband's shameful conduct all over the town. And for what? For getting money for the township from another man! Will that prevent drunkenness ? Think of the child, imploring God for help, that it may not forget, that the unfortunate man is its father, for strength from above, that it maybe able to fulfill its duties to him and so more the less the man deserves it - and meanwhile the township trustee goes up to the court house and makes its father's name a stench before the whole world. And for what ? For getting money for the township from another man! Will that prevent drunkenness?
Mr. President, I beg your pardon, but I cannot help feeling excited when I think of it, and if I were the unfortunate son of such an unfortunate father and the township trustee would go up and expose my father's shame in open court - God knows I cannot say what I would do. My blood has curdled in my veins when I saw that section and I undertake to say, that it is a burning shame. I do not know who has put it in, it makes no difference and is the same to me; but if he were here, I would dare to say to him, face to face, that he has not a spark of human feeling in his heart, more, not a drop of human blood in his veins.
Mr. President, I can but repeat what I said before : If this bill were really a bill to prevent and to punish drunkenness and intoxication, no Senator could vote for it more cheerfuly than I would do. But it is precisely the contrary to it. I hope that it will be amended so that I may be able to support it; but I cannot and shall not vote for it in its present shape.
The report of the Committee on Temperance, recommending the passage of the bill, was then read.Mr. DAGGY moved that the report be concurred in.
Mr. FRIEDLEY, of Lawrence moved to commit the bill to the Committee on the Judicary. He said he did not make the motion in a spirit of opposition to the bill, and did not wish to be understood as opposing the bill by making the motion. He was probably as much a friend to the cause of temperance as any Senator on the floor. He would go as far to secure the passage of a just law for the suppression of intemperance as any Senator. He believed, however, that there were some features in this bill that would not stand the tests in the courts: that if the bill was passed in its present shape, it would fail in the courts, and instead of having a law for the suppression of intemperance we will be left without any law upon that subject. The temperance people of the State of Indiana ask this Legislature for a law that can and will be enforced by the courts, and he would undertake to say that this was not, and would not be such a law. This bill as he understood had not been examined by the Judiciary Committee of either House. It is a very important bill and should receive the strictest and most careful examination at the hands of the best lawyers of this body, and if it is defective those defects ought to be corrected, so that when the bill passed it will be such a one as the temperance people of the State demand. This bill is said to be substantially a copy of the Ohio law and the papers report that the page: 502[View Page 502] courts of that State within a few days have held that the greater part of that law is unconsiitutional. How far the constitutional provisions of the state of Ohio are like the provisions of the constitution of Indiana, he was not able to say; but this bill is certainly a proper matter for investigation at the hands of the Judiciary Committe of the Senate. There can be no doubt but this bill, if it passes will be severelly tested and if it will not stand the test of the courts it behooves Senators on this floor to perfect the bill. Therefore it was not in a spirit of factious opposition, but is a sincere temperance man - as one who would see a good law on the statute books, he made this motion.
Mr. SLEETH moved to amend the motion to refer to the Judiciary Committee by requiring them to report the bill back to the Senate day after to-morrow.
Mr. FRIEDLEY accepted the amendment.
Mr. SLEETH said it seemed to him that the bill would not suffer anything at the hands of that committee. A majority of that committe are friends of the bill, and every member of the committee is a friend of the cause of temperance, But just now when the courts of Ohio are striking down certain sections of her law, of which this bill is, to considerable extent a copy, he thought a little delay would be judicious and proper. For the reason that the Judiciary Committee may have time to consider and investigate this matter he made the motion to amend. Then why is the great necessity for ordering this bill engrossed to-day. Two days is a short time if by the delay of two days we can protect the people of the State from the evils of intemperance for two years. More than that, the bill is very ambigous in many of its most important provisions. He would risk his professional reputation on the statement that some of the most important sections would be struck down by the Supreme Court in less than six months unless it was amended. A bill to restrict the privileges of the whisky men of the State must be drawn so carefully that it will stand the most severe test in the courts. He had heard it said and he believed it to be true that lawyers are already employed the best counsel in the city of Indianapolis, and funds have been raised for the purpose of testing the constitutionality of this bill as soon as it is passed. If we have reason to believe that that test will be successful, and by two days delay we may avoid it, we should certainly do so.
There are some provisions in this bill that will not meet the expectations of its friends. According to section one no restrictions are placed upon the sale of liquor except it be drank on the premises where it is sold. It contains nothing regulating or prohibiting the sale of liquor by the quart or by the quantity only so that it be removed from the premises where it is sold before it is drank. Now he submitted that that was not a temperance law. The only prohibition in the bill is that liquor shall not be sold for gain. Why not strike out the word "gain" and prohibit the sale of it altogether except for medical, mechanical, or sacramental purposes. The Supreme court has already decided that the Legislature has no power to prohibit the sale of liquor for those purposes and yet this bill proposes to prohibit it. It makes no exception. Judge Perkins when on the Supreme Bench, in a decision under the old law where some defect existed said the Court would make the proper exceptions but have we any reason to hope that any other Court will make an exception under the express language of this bill? While the bill is here let us make the legitimate exceptions and prohibit everything else. These and some other trivial amendment might be made by the Judiciary Committee he thought would make this a practical temperance bill. But in the shape it is if it be passed six months will tell upon whom should fall the responsibility of intemperance for the State for the next two years.
Mr. DWIGGINS said he did not think the bill could be amended by the Judiciary committee so as to make it any better. He said it had been claimed that the provision requiring the applicant for the permit to sell intoxicating liquors to procure a petition signed by a majority of the residents of his township, was unconstitutional. If any provision in it was, that probably was. But will the Legislature or the Judiciary Committee strike out that clause because they think it is unconstitutional, or will they pass the bill with that provision in it and let it go to the courts, and let them decide wheth- it is unconstitutional or not? But it is claimed that if the courts strike down this law, we will be left without a temperance law at all. He appealed to Senators to know if the Courts would not hold that the Legislature has a right to say if a man gets drunk and exposes himself in a public place, he shall be guilty of misdemeanor. Have not the Legislature a right to say if a man sells whisky to another and makes him drunk and he damages his neighbor, that he shall pay the damages? We make everybody else responsible. A druggist who sells poison knowingly, a physican who is guilty of malpractice, a lawyer who losses his case through negligence or unskillfullness are responsible for the damages that result. Why, in God'sname, shall we make an exception of the liquor seller? Again it is insisted that liquor may be sold under this bill in any quantity, if page: 503[View Page 503] it is not sold for gain and it is proposed to strike out the word "gain." Why refer it to the Judiciary Commitee to do that? If it is thought best let it be done here and now. The Senator from Allen and Adams (Mr. Sarnighausen) says that a stranger might come here from Valparaiso and buy a drink the liquor man supposing him to be a sober man, and he might do some damage and the liquor seller would be responsible. If a citizen of Valparaiso comes here and undertakes to do business at a bank, what does he do? He procures a voucher as to his identity and character. So, if he wants a drink, let him get one of his friends to vouch for him.
If there is anything that the people of Indiana are demanding to-day, it is the passage of this new temperance bill. They are here to demand it, not Republicans, not Democrats, but everybody, the better classes in our State. If the bill was submitted to people to-day, in his opinion it would pass by a vote of two to one. There are enough provisions that are admited to be constitutional to make a good law. Delays are dangerous. We do not know what may occur between to-day and day after to-morrow and it can do no good to refer the bill. No one has mentioned a single provision that is unconstitutional yet. The broad charge is made that it is unconstitutional. The bill has passed the House where there are good lawyers, and there are good lawyers in the Senate. Let them examine it in open Senate and vote upon it.
Mr. BROWN said it seemed to him that the friends of the bill had better make haste slowly. A careful and prudent course will add greatly to the strength of its support. The bill ought to go to the Committe on Judiciary in the first place in order that the lawyers of this body may carefuly examine it and report back their opinion as to whether it is a valid or invalid law or not. A favorable report from that committee would greatly increase the strength of the bill. If the bill approved itself to his judgment and conscience as being a bill that could be sustained by the constitution and laws of the country he should vote for it gladly because he believed that some substantial reform should be had in reference to the subject of temperance. But it seemed to him that the bill might be improved. But whether valid or not; he trusted it would have every opportunity to bring to its support the greatest possible strength.
Another provision might be added that would tend largely to the suppression of the drinking of intoxicating liquors as a beverage. Suppose an additional section were added, requiring a man that drinks to take out license for the privelege of drinking, that he must first go before the Board of Commissioners and get a license, paying for it the sum. of twenty-five dollars. It seemed to him that such a provision would go further towards the suppression of intemperance than anything else. Whether it was a practicable thing or not he did not know. But he did desire that some stringent measure, one that commended itself to the judgment of intelligent sensible people, one that may stand in the courts, should be passed that would have a tendency to abolish from, the State the disgraceful booths and places that are bringing dishonor and corruption upon the people. He thought the bill should be amended in another respect. There should be a provision in it that would forbid the employment of minors by men who are engaged in this dangerous and illicit business.
Mr. STEELE said he was in favor of the bill as it was. He did not know of any good that could come to the bill, nor did he think it would acquire any additional force by being referred to the Judiciary Committee. It seemed strange to him that the amendments proposed had not been matured before, so that the friends of the bill might know just what was desired. It has been charged that the bill is unconstitutional, but there has been no attempt to point out what particular section is unconstitutional, and there is no sufficient reason given why it should be referred to the Committee on the Judiciary. It is said that Ohio, in the last few days, just before the time that we are to take a step in the direction of temperance, as we think - it is claimed by some - and nobody appears to I know who, in some paper that is not produced here at all, that perhaps some court in Ohio has made or is about to make, has struck down, or is about to strike down, the provisions of the Ohio law. Is that a sufficient reason why we should wait here in legislation until we know what Ohio has done? If this bill is referred to a committee, in all human probability it would be the last of what is called the temperance law at this session of the Legislature. He was willing to take the risk, to say to the people that they had the bill printed for a month or two and have poured in their demands in the shape of petitions by thousands and tens of thousands of names, and that we have done that which they demanded at our hands. He wanted Senators to face the music, to come up to the demands that the people have made and pass this bill as it came from the House of Representatives. If the bill should be declared unconstitutional by the courts, we shall have learned that by the next session when its defects will have been pointed out, and can then be remedied.
Mr. DAGGY did not think it necesserys a page: 504[View Page 504] far as the constitutional question is concerned, to refer the bill to the Judiciary Committee. For the purpose of anticipating objections, and leaving no doubt of the validity of the bill in its present form, he stated that the bill, in all its provisions, has been submitted to men of the best legal talent of the State of all parties, and they have declared that in their opinions it is constitutional.
Mr. FRIEDLEY of Lawrence (interposing.) I would like to ask the names of some of these lawyers who have given their opinion favorable to the constitutionality of this bill.
Mr. DAGGY. If the gentleman will call upon me at my room I will inform him. I don't think it proper to proclaim their names here. As far as its constitutionality is concerned a reference to the Judiciary Committee would not, in his opinion, give it any additional force or character. Of the demands of the people of the State for a better law on the subject of temperance there can be no doubt. The force and effect of this bill has been discussed all over the State. The people know what it is, and an almost unanimous voice from every county by the newspapers as well as by petition; is in favor of this bill as it now stands; therefore he opposed the motion to refer and favored the passage of the bill as it came from the House of Representatives. He feared a reference to the committee might result in an amendment, which would send it back to the House and it might be kept passing back and forth and so defeated. It seems a little strange that just as they were about to act on this bill, from some remote corner in Ohio, from some obscure paper, a report comes, that is copied into the papers here, that some obscure court has declared some of the provisions of the Ohio law unconstitutional. It don't pretend to point out the objection to the law, and is evidently thrown in for the purpose of operating against the passage of the bill. There may be some wholesome amendments made. The amendment suggested by the Senator from Johnson, [Mr. Brown,] that minors shall not be employed in this dangerous business, is a good one, but we have already passed a bill embracing that provision.
Mr. SLATER (in his seat.) I think not.
Mr. DAGGY. At all events the sense of the Senate has been taken on that, and I am in favor of taking a vote on this bill and passing it as it comes from the House of Representatives.
Mr. BOONE. I am in favor of the reference proposed. The fact that this, bill has been delayed to this late hour in the session is not the fault of the enemies of the measure, for it has been in the hands of its friends. It is extraordinary in the history of legislation for gentlemen to argue that a proposition of this character ought to pass because legal gentlemen outside of this body declare it is constitutional. In legislative business we select a Committee on the Judiciary to which provisions involving a question likely to be litigated should be submitted. And it is extraordinary in the history of legislation that a bill of this character should be passed without reference to the Judiciary Committee in either branch of the Legislature. Of course the question of constitutionality I do not propose to discuss. In my judgment many provisions in the bill are defective, but whether the Committee on the Judiciary would correct them or not I am not able to say.
Gentlemen insist that to recommit would delay action of the Senate to the extent of the final defeat of the bill, but that I am not willing to admit. And I am not willing to admit that the Committee of which the gentleman from Grant is chairman, have demonstrated by their action that they would pocket this bill and not present it in time for the Senate to have an opportunity to act upon it. The known energy of the gentleman himself would repel any objection of the kind. It would only delay the bill a few days - not longer than day after to-morrow. It is due to the people who are demanding this act that the bill should be passed with the application of the rules which surround legislation. They demand it with the idea that this body and the other branch of the Legislature will discharge their duty so that it may have force and effect. If you pass it defective and go home and expect to exculpate yourself, they will inform you that they supposed you would have sense enough to put it through the forms of legislation.
I think it important that this bill should be submitted to the Judiciary Committee and even if they do not amend it, it will go before the country with a better face than now. Suppose my constituents were to ask me why this bill was not referred to the Judiciary Committee as other bills of less importance are? I could give no valid answer.
Mr. HOUGH. It looks to me as though this motion was uncalled for. The distinguished chairman of the Judiciary Committee, [Mr. Steele,] if we are to judge from what he has said, has failed to discover anything that would prompt him to suggest in that Committee an amendment that would relieve it from its unconstitutional character. The distinguished member of the same Committee from Putnum [Mr. Daggy] has also failed to make any such discovery; and it seems that these two gentlemen could do nothing to shape this bill differently from what it now is if it were referred to their Committee, for they have failed to point out page: 505[View Page 505] one single element in the bill that is uncon-constitutional. The distinguished gentleman from Lawrence [Mr. Friedley] while suggesting that in his opinion there are provisions in the bill unconstitutional has failed to enlighten the Senate of them. Why can these gentlemen not inform the Senate wherein exists the necessity of referring this bill to the Judiciary Committee. The people are satisfied with the provisions of this bill as far as heard from. Some distinguished members of the bar have been instrumental in getting up this bill, and I presume they have taken the opinion of some of the best legal talent in the State of Indiana on its constitutionality. This bill has passed the House of Representatives and it seems to me that unless some Senator is able to point out some unconstitutional provision, we have a right to infer there is no such provision in it and the Senate would stullify itself by making such a reference. Since this discussion commenced the county of Hancock - supposed to be in favor of as much whisky as any other - a county I represent - sends up a petition of over three hundred names asking that this bill be passed without the crossing of a "t" or the dotting of a "i." Then why refer this bill if not with a desire to stifle it? I hope the Senate will not adjourn without passing this bill to the engrossment. I ask that this petition may be received now.
Mr. DITTEMORE moved ineffectually that the Senate adjourn.
Mr. FRIEDLEY of lawrence said. Among all the distinguished Senators who have spoken against the reference of this bill to the Judiciary Committee no valid reason had been given why the bill should not be so referred. Whenever a bill is presented involving questions of constitutional law or other legal questions, it is the invariable custom of the Senate to refer it to the Judiciary Committee. Here is a bill involving some of the most important legal propositions that can come before the Senate, and yet we are told that there is something about this bill that prevents it from following the ordinary course of other bills involving important legal propositions. Why is it that they fear to allow this bill to be submitted to the scrutity of the Judiciary Committee Is there something in it that willnot bear investigation? Are they asking Senators to pass a bill that they are fearful investigation will in some way cripple? If there are provisions in the bill are doubtful constitutionality,if there are provisions in this bill about which gentlemen have doubts why should they not be considered by the proper committee? Why should you fearto allow this bill to go as other bills go to the Judiciary Committee and be fairly and honestly investigated, by gentlemen composing that commttee? The people have petitioned for the passage of a temperance bill, but not of one of doubtful constitutionality, and it is the duty of the Senator to pass a valid bill and one that can be enforced.
Here is the Senator who is chairman of that Judiciary Committee [Mr. Steele] and here is the distinguished Senator from Putnam [Mr. Daggy] who is a member of the same committee, and there are other Senators who are friends of this bill upon that committee and a motion is made not that the committee shall report the bill back some day next week, but the motion is that they shall examine it and report day after tomorrow and yet these distinguished men say if that is done it endangers the passage of the bill. It does not as far as time is concerned then how does it damge the prospects? They must fear that there is something in the bill that will not bear investigation.
Mr. HOUGH (interposing.) Will the Senator suggest what is?
Mr. FRIEDLEY of Lawrence. Will the Senator suggest the great fears for this bill to go to the Judiciary Committee? I want to call attention to one proposition. They say the people by thousands and ten of thousands are petitioning the Legislature for a temperance law. It is true that a great number of people are petitioning this General Assembly in favor of a law to suppress intemperance, and I am as ready to turn a listening ear to that voice as any Senator but the people have not petitioned for the enactment of a law of doubtful constitutionality.
If you examine these petitions you will find that every one of them nearly have language like this: praying for the enactment of a law for the suppression of intemperance. Now when they are petitioning for a law that will suppress this evil - when these people are asking for bread these distinguished gentlemen would give them a stone. I am a better temperance man than that. I say there are times enough in the next fifteen days of this session to perfect a temperence bill, and I say woe to the Senator who by indecent haste and a disregard for the ordinary rules of legislation forces upon the statute books a law which will not meet the requirements of the people. I would rather cast my lot with those who stand up and contend for a bill carefully guarded, investigated and matured and when such a bill is presented to this Senate I am ready and willing to vote for it. Now let us not make this bill an exception to the general rule. Let us not say there is something in this bill that requires us to turn our backs upon the ordinary rules that govern legislation. Let us go to work page: 506[View Page 506] and perfect this bill and then I will help to | pass it.
Mr. SLATER demanded the previous question on the motion to recommit.
The Senate refused to second the demand.
Mr. STEELE. I am always pleased to hear the eloquent voice of the Senator from Lawrence [Mr. Friedley] who is always careful that all measures passed by the Senate shall be nicely scrutenized: and I am always willing to give way to such demands when I see a reason for the faith he professes; but when I see a man take a position in regard to anything and fail to give a reason for the faith that is within him, I always begin to doubt that there is something wrong in the thing itself. The gentleman says we should be careful not to act hastily in this matter that we should send it to the Judiciary Committee that the country expects it; yet he has had the floor twice and he has failed to point out one single objection. It is unconstitutional in his judgment. If that be the fact may we not claim that the gentleman from Lawrence is with us for he is unable to point out any one single provision in thss bill which he thinks would be unconstitutional.
And I have always had the greatest respect for the Senator from Boone [Mr. Boone.] I know him to be a candid man and a good lawyer, and I know him to be a careful man in all that he does. If there are any unconstitutional provisions in this bill there is no member, perhaps, of this Senate who would be more likely to find it out and be able to point it out to the Senate than the Senator from Boone, yet he, like the Senator from Lawrence, sits down quietly, after expressing his doubts about the constitutionality of some of the provisions of this bill, without attempting to point out any. Then may we not conclude that the Senator from Boone, as well as the Senator from Lawrence, is with us in being unable to point out to the Senate a single unconstitutional provision in the bill?
Mr. BOONE (interposing.) I desire to say that I do not think it necessary to discuss the merits of the bill on a mere proposition to recommit; but I have got them down, and, like the Senator from Putnam, will read them to him at my room - or here.
Mr. STEELE. It is right now, when it is proposed to take this bill from the Senate and hand it over to a committee - hand it over to a committee for what? For the purpose of correcting some errors that are not pointed out. I can see no reason in that. Gentlemen are offering no reason to the Senate why it should be done at all.
Mr. FRIEDLEY of Lawrence. I would ask if it has been customary heretofore when a motion is made to refer a bill to the Judiciary or any other Committee, to discuss its merits simply as a motion to refer? I have refrained from discussing the merits of this bill and confined myself to the reasons why it should take the ordinary course. It is hardly fair to say that a man cannot find an objection to a bill when he has only spoken of it on a motion to refer.
Mr. STEELE. It is proposed to send this bill to a Committee from the fact that gentlemen say there are provisions in it of doubtful constitutionality, and yet, I say, they utterly fail to point out a section, a line or a word in this bill, and venture their reputa- as lawyers that it is unconstitutional. Why is it kept back? Is it customary when a bill comes before the Senate from a Committee to refer it to another Committee without a reason why? Is it sent that there probably may be errors found? Why not say to the Senate that such and such unconstitutional provisions are in the bill; or such and such doubtful declarations are in the bill that the courts will not enforce ? Why not point them out ? Without that I assert again there is no good reason for so committing the bill.
Is it usual to refer every bill to the Judiciary Committee ? This bill on Temperance has been referred to the Temperance Committee and that Committee has referred it back and find no objection to it. Yet gentlemen say there are probably unconstitutional provisions in it; - that there are provisions objectionable in it: and still they fail to point out one single one. Is it not strange? Yet they say they are friends of temperance. I never impugn the motive of gentlemen, but I say it is fair that these gentleman who raise constitutional objections to this bill should point them out to the Senate so we may know why they are proposing to send it back to another Committee. Is it customary to send a bill back to a Committee without stating the reasons why? No sir, when you refer it back to a Committee you say to the Senate we give these reasons why it should be sent back that such a section or line is unconstitutional or such as should not be in the bill.
The gentleman from Johnson [Mr. Brown] referred to a matter which he thought should be added as an additional section, and I agree with the gentleman from Jackson, as I am always glad to do, that there should be such a law as he speaks of; but there is happily a bill on the third reading in this House to prevent the very evil he speaks of.
Mr. BROWN (interposing.) If that bill is engrafted upon this is there not a greater probability of this one being passed?
Mr. STEELE. I say no. A man who would vote against this bill on that account page: 507[View Page 507] will vote against it anyhow. That is my judgment.
Mr. HALL moved that the motion to refer the bill to the Committee on the Judiciary be laid on the table.
The motion was agreed to yeas 26 nays 22 - see page 181.
The report of the committee was concurred in by yeas 27 nays 21 - see page 181.
On motion the bill was made the special order for two 2 p. m. and the Senate then adjourned until that hour.
AFTERNOON SESSION.
The LIEUTENANT GOVERNOR took the chair at 2 o'clock and the temperance bill was read the second time.
Mr. FULLER moved to amend so that the provisions of the bill shall not apply to the sale of wine and beer.
Mr BROWN moved to amend the amendment by adding cider.
Mr. STEELE moved to lay the amendment on the table. This motion was agreed by yeas 25 nays 22 - as follows:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Bunyan, Chapman, Daggy, Daugherty, Dwiggins, Friedley of Scott, Hall, Harney,Haworth, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Ringo, Scott, Steele, and Taylor - 25.
NAYS - Messrs. Beggs, Bird, Boone, Bowman, Brown, Carnahan, Cave, Collett Dittemore, Fuller, Francisco, Friedley of Lawrence, Glessner, Gooding, Gregg, Sarnighansen, Slater, Smith, Stroud, Thompson, Williams and Winterbotham - 22.
Mr. BROWN moved to amend section six and seventeen so as to provide that any per- who shall "knowingly," sell any liquor to a minor or a person who is in the habit of getting intoxicated shall be subject to the penalties provided. He said that guilty intent was the very essence of crime. The bill proposes to license a men to sell liquor. Surely men thus licensed should not be punished unless they knowingly violate the provisions of the bill. I do not think it fair, said he, for the Legislature to legitimatize a business that is not sustained or if sustained by common law it is by sufferance and not because it approves itself to the conscience and judgement of the mind of the people,- and then provide for the preventment of a party who may ignorantly violate some of the provisions of the act.
Now the guilty intention is the gist of the offense - so regarded by both by the criminal code of this country, and we are led to believe that the guilty intention is to be the criterian by which the Almighty determines whether he will pour judgment of conviction upon a soul or not. I suppose there never was a man convicted of murder unless the guilty intention was proven. I suppose a man was never convicted of larceny unless a guilty knowledge or intention was proven: or of purjury, or of any other crime unless it was proven the party had knowledge of a guilty. The intention involved in it is nec-cessary to make it a crime.
Suppose some sleek well dressed; well behaved, well appearing man, with the cut of his jib in the appropriate height of fashion should step in to some tippling house, the existence of which is provided for in this bill and suppose he calls for a glass of liquor. There would be nothing in his appearance that would put a man upon his guard; and yet it may be the fellow is in the habit of getting drunk almost daily if not weekly or monthly yet the man allowed to carry on this kind of business if he sells to such a person whose apperance repelled the idea that he was in the habit of becoming intoxicated,he would be liable to the criminal code. I say there is no more sense or reason no more law or justice, no more right or reason for saying a man you license in this business shall be made criminal for selling to a party who is in the habit of getting drunk without his knowing of the habit, than there is in punishing a man for passing a counterfeit bill without his knowing it to be counterfeit. I have not submitted this amendment for the purpose of making captious opposition. Gentlemen may learn that there are some Senators here who desire to put this bill in a shape that a Democratic Supreme Court or any other Supreme Court may not tear it down.
Mr. HUBBARD thought the amendment was unnecessary. A law is now is now in force prohibiting the sale of liquors to minors which does not contain the word "knowingly" but the Supreme Court has decided the liquor seller was not liable unless guilty intent or negligence were shown. It puts the party on dilligent inquiry and if honestly deceived by the appearance of a person they have no reason to suspect was false, the statement of criminal intent falls in the case. The only effect this amendment has would be to send the bill back to the House of Representatives.
Mr HOUGH moved to lay the amendment on the table.
The motion was agreed to by yeas 25, nays 21 - as follows.
YEAS - Messrs. Armstrong, Beardsley, Beeson, Bunyan, Chapman, Daggy, Daugherty, Dwiggins, Friedley of Scott, Hall, Harney, Haworth, Hough, Howard, Hubbard, Miller, Neft O'Brien, Oliver, Orr, Rhodes, Ringo, Scott, Steele and Taylor - 25.
NAYS - Messrs. Begrgs, Bird, Boone, Bowman, Brown, Caraahan, Cave, Collett, Dittemore, Fuller,Francisco,Friedley of Lawrence, Glessner, Gooding, Gregg, Sarnighausen, Slater, Smith, Straud, Thompson, Williams and Winterbotham - 22.
page: 508[View Page 508]Mr. DWIGGINS moved to lay this amendment on the table. It was so ordered yeas 26, nays 20.
Pending the roll-call -
Mr. FRIEDLEY of Lawrence, in explanation of his vote when his name was called, said; I cannot vote to lay this amendment on the table. It strikes me as most extraordinary that we are preparing to pass a bill declaring certain acts misdemeanors and assessing against the parties found guilty of those acts the heaviest penalties, with an emergency clause attached. Nothing like it has been done in the history of legislation in the State of Indiana. If this measure is right if it appeals to the judgment and the consciences of men, as we are told I want to know if we must resort to subterfuge and expedients unknown to ordinary legislation in order to accomplish that which gentlemen tell us is right. I can not vote to lay the amendment on the table.
Mr. RHODES, when his name was called in explanation of his vote, said: If I understand the provisions of this bill correctly persons now engaged in the traffic and having licenses are continued until their licenses expire. No person will be allowed to sell under the operations of this act until he complies with it; so there will be no hardships if the emergency clause is left in. I vote "aye."
Mr. RINGO, in explanation of his vote, when his name was called said : I look upon every move that is made to amend this bill as a move to defeat it. That is my impression and I think it is well founded too. I wish it were possible for this respectable audience now present to have the privilege of seeing the large number of petitions laying in that post office room, asking the Senate to pass this bill in the shape it now is. I must vote "aye" for my constituents and for myself.
When the roll call was completed -
The LIEUTENANT GOVERNOR announced the vote as above.
So the motion to strike out the emergency clause was laid on the table.
Mr. BOONE moved to amend section nine by striking out that clause which requires persons convicted of drunkenness to designate the person from whom they obtained liquor on penalty of imprisonment in case of refusal. Suppose they obtain it out of the State, as they will do; or suppose they come into the State intoxicated having obtained the liquor in Louisville, or Cincinnati, or elsewhere outside of the State. It is not even required that he may name the place, but he must designate the person. It means simply to point out the person. They may not know the street and therefore it is wholly unimportant. And suppose persons to be traveling and taken on the line of travel, rather than be imprisoned they would give the name of a party, perhaps, untruthfully. The fifteenth section is to be considered in connection with the ninth section.
Mr. HUBBARD moved to lay the amendment on the table.
The motion was agreed to by yeas 26, nays 20.
Mr. FRIEDLEY of Lawrence, moved to amend section one by striking out the word "gain." He said: it is claimed that this is a bill to suppress tippling houses, and yet, under this section a man might establish a tippling house provided he does not sell liquor for gain. He might sell nails, or any other articles, and give away the whisky. I believe every one will concede that the word "gain" ought to be stricken out.
Mr. STEELE moved to lay the amendment on the table.
It was so ordered by yeas 27, nays 19.
Mr. BROWN moved to strike out section eighteen, - [see page 182]which provides that in prosecutions under the act it shall not be necessary to state the kind of liquor, the place where nor the person to whom sold. He said the provision violates all the principles of criminal pleeding and the constitution of the State, which requires that an indictment shall contain all the facts upon which the States predicates an offense. He thought an indictment which omitted to state to whom the liquor was sold would be bad. as not containing the material facts. This proposes to extend the jurisdiction of the class of cases all over the State. If a man sells a glass of whisky in violation of this act any court of criminal jurisdiction between the Lakes and the Ohio river may take him, apprehend him, try him, and convict him.
It seems to me, continued Mr. B., that this bill proposes to be put through here not, so much because of its merits as for a little bit of a triumph. I shall discharge my duty as best I can; I shall seek to strike at what I deem to be wrong and unjust, I then leave the responsibility with those with whom I act of saying whether this bill shall or shall not become part of the legislation of Indiana ; and by and by when it comes tottering down and we shall have free whisky and free Democracy in the country, I desire that some of these Senators who are moving to lay on the table continually, in the face of what their judgment knows is right, shall look back to to-day when they will see that they are fighting men who are making honest efforts to place this bill upon a solid foundation where it can stand the assaults of lawyers and judges of courts.
Mr. STEELE said if this provision were directed to the manner of the proof the objection might be valid. But as it refers merely to the statement of the case, he page: 509[View Page 509] thought it had no foundation. The gentleman from Jackson [Mr. Brown] insists that something is stated that is wrong. Suppose that is true does it militate against the bill at all? If there is something that should be declared void by the court it will amount to nothing when it comes to trial one way or the other. He moved that the amendment lie on the table.
The motion was agreed to by yeas 26, nays 21.
Mr. WINTERBOTHAM moved to amend the bill so as to prohibit the employment of minors in all places where intoxicating liquors are manufactured or sold.
Mr. FRIEDLEY of Lawrence. That amendment would do more towards reforming the people of Indiana as far as temperance is concerned than any other act we can pass. I am of opinion that there are more drunkards made by the employment of children in saloons than in any other way. If we are sincere in this work of reform, let us come up to the work manfully and let us take these little children out of these places where they are acquiring habits that must prove their ruin. If this amendment is right where is the man who has not the courage to stand up here and do what is right. I have heard Senators boast that thay simply wanted to know the path of duty and they had the courage to march straight forward in that path. They will all agree that this amendment is right, and I want to see them go , upon the record upon this question. I want to test their sincerity. Now gentlemen of the Senate, friends of this bill and of the cause of temperance, if you really desire to do society a substantial and lasting benefit you have it in your power by engrafting this amendment in this bill.
Mr. DWIGGINS said that he was in favor of the passage of a bill incorporating that provision, and one was now pending in the Senate and on its third reading to accomplish that very thing. Now, if the bill under consideration is amended it must go back to the House, and we are warned that if that occurs there is danger that it may be defeated. He moved to lay the amendment on the table.
It was so ordered by yeas 25, nays 22.
Mr. SLATER moved to amend the bill, so as to except from the provisions of the bill, mint julips, whisky cocktails, sherry cobblers and claret punches.
Mr. HALL moved the amendment be laid on the table.
Mr. STEELE moved to amend that it be rejected.
Mr. HALL accepted the amendment, and the motion prevailed.
Mr. HALL moved the previous question on the passage of the bill to the third reading on to-morrow.
The demand was seconded by the following vote:
YEAS - Messrs. Armstrong, Beardsley, Beeson, Banyan, Chapmen, Daggy, Daugherty, Dwiggins, Friedley of Scott, Hall, Harney, Haworth, Hough, Howard, Hubbard, Miller, Neff, O'Brien, Oliver, Orr, Rhodes, Ringo, Scott, Scott, Steele and Taylor - 25.
NAYS - Messrs. Beggs, Bird, Boone, Bowman, Brown, Carnahan. Cave, Collett, Dittemore, Fuller, Francisco, Friedley of Lawrence Glessner, Gooding, Gregg, Sarnighausen, Slater, Stroud, Thompson, Williams and Winterbotham - 21.
The bill was then passed to the third reading to-morrow.
On motion of Mr. HALL the Senate then took a recess of ten minutes. At the expiration of that time an adjournment was had until to-morrow.
