IN SENATE.
TUESDAY, January 15, 1875.
REPORTS FROM COMMITTEES
Mr. JOHNSTON of Parke from the Committee of the Judiciary returned his bill [S. 58} supplemental to the voluntary assignment act of March 5, 1859, with amendment striking out the words "upon petition of such trustee, and."
Mr. BOONE from the Committee on Agriculture returned Mr. LaRue's Cherokee of Texas Cattle fever bill [S. 56-decided on page 24 of these reports] with a clerical amendment.
These reports were severally concurred in.
STATE PRISON DIRECTORS - SOUTH.
Mr. LARCE, from the committe thereon, returned Mr. Friedley of Lawrence's concurrent resolution for the election of two Director's for the Southern State Prison, and Mr. Harney's proposed ammendment thereto, (see page 25 of these reports,) with a report that they have examined this subject; that the two vacancies shown have occurred in the Board of Directors of said Prison, to be filled by the Legislature, but that there is great doubt thrown upon this matter and the disposition to be made of it by the action of the Legislature of 1873. Two Directors were chosen in 1873, but who is to suceed W.W. Curry and which R. S. Heiskeil is the question in doubt. The report shows that the Senate Journal and the House Journal for the same session, states the same transactions, in different terms and the entry of the declaration of elections of each House is Consistent with the entry of the nominations.
Mr.LaRUE. In reporting upon this matter, we simply submitted the facts in the case. The difficulty grows out of the action of the Legislature in the year 1873. The Senate Journal of proceedings in joint convention names one man for the long term, and the House Journal of the same proceedings names another;which is to have the preference is the question. It seems to me that there should be some legislation to get rid of this difficulty. There is no action recommended by the committee.
Mr. HARNEY. Around the record as it appears in the Journals of the two Houses it is impossible to go. Both records are equally conclusive in law, yet stating facts diametrically opposed to each other. This makes a state of affairs that seems difficult to overcome. It is evident to my mind that these records have been tampered with in one House or the other. It would not be fair to suffer both these gentlemen t continue in office, especially while it would seem that they or some of their friends in some way or other, have tampered with the record. The matter must be got through some way, and I think we should elect two directors.
Mr. WILSON [interposing.] With the page: 63[View Page 63] gentleman's permission, I will more that this whole matter be referred to the Attorney General.
Mr. HARNEY. I do not think the Attorney General can decide a question where the records are diametrically opposed to each other. I see no other way to settle the question than by Legislation or some arbitrary manner.
Mr. SMITH. I move to refer this matter back to the committee with instructions to prepare a bill that will obviate this difficulty. I insist that the gentlemen who had this matter in hand, should arrive at some conclusion; and if legislation is needed, let them present a bill, that will cover the case.
Mr. SLEETH. As stated by the Senator from Montgomery, [Mr. Harney] there is a conflict between the records of the two Houses. The Journal of the House hows one state of facts, and the Journal of the Senate shows another in reference to the same transaction. Both cannot be true. It seems to me the only way to get the facts in the case, where the records do act show the truth, is to take the sense and recollection of those who were present at the lime, and throw that in with the Journal that supports and corroborates such testimony, and act upon that. This committee might proceed in that way.
Mr. LaRUE, [interposing.] Where do we get authority to take outside testimony to correct the Journal if we found it wrong?
Mr. SLEETH. It would not be correcting the Journal, but ascertaining a fact which one Journal shows and another contradicts. We can act upon the truth, although our Journals may show that which is not true.
Mr SMITH. Let the committee take the papers and report a bill to remedy the evil, and, if necessary, send for persons and for persons.
Mr. LARUE. I do not think it will be necessary to Send for persons and for papers. We can't change the evidence. We could abolish the office and get rid of it in that way, but is it desirable? It seems to me the easiest way to get rid of this matter is to require that two be elected at the next session of the Legislature, and one now. I do not think we can take outside testimony to determine a question where we have conclusive evidence The evidence is the record in the journals. It is conclusive; and having conclusive evidence both ways, how are we to decide? It is positive that Mr. Hill was elected for four years, and just as positive that Mr. Munson was, when one ought to have been elected for four years and one for two years. Suppose we enact a law declaring that one of these men are not in office, would the Supreme Court pay much attention to it? Had we better not avoid litigation by electing one now and two at the next General Assembly?
Mr. SCOTT. The Journal can't declare how long an officer is elected for. It is the succession that - controls, and if you can make out the succession that is all you want to know.
Mr. BELL. Does the journal show one or two vacancies?
Mr. LaRUE. Both journals show two vacancies, but the difficulty is not there.
Mr. DYKEMAN. It is clear to my mind that there are two vacancies, then why fill but one? We should decide this question, and not leave it to the courts. If we adopt the resolution of the gentleman from Lawrence [Mr. Friedley] we will hold a man in office two years longer that he was elected for. Let's stand by the record we have made. Possibly the House will find out that our record is right. Shall we allow ourselves to raise a question as to the correctness of our own record, simply because some other body has made a different? I never heard of any nunc pro tunes going into legislative bodies before. That is a new thing. Now I am in favor of standing by our own record, and I am much more in favor of doing it from the fact that the message of the Governor shows that there is something rotten, in that Denmark on the Ohio river. Hence I think the amendment of the Senator from Montgomery [Mr. Harney] should prevail.
Mr. FRIEDLEY, of Lawrence. The Senator from Cass [Mr. Dykeman] says the effect of my resolution is to continue the term of an officer two years beyond the time for which he was elected. I would like to know where the Senator gets the authority for making that assertion? I understand that both these gentlemen were commissioned for the term of four years less than two years ago. Then is it true that my resolution proposes to continue a man in office after his term of office has expired? Until there is some legal proceeding had showing their commissions were improperly issued, I take it that these officers would hold, and I take it that it is not the effect of my resolution to continue an officer in office after his term expires.
Suppose we elect two Directors and the contested case is taken to the courts. If the plaintiff succeeds, he must succeed by a preponderance of evidence. He brings in one Legislative journal to show that he is the successor of Mr. Hill; and the defendant brings in the other journal show page: 64[View Page 64] ing the opposite. One carries with it just as much weight as the other, and so the plaintiff fails because he has no preponderance of evidence. I think the Senator from Montgomery [Mr. Harney] is right, when he says there should be some legislation to settle this question. - I have no doubt, indeed, I am informed that the original minutes, taken by our assistant Secretary are still in existence, and if they show on their face that there have been no interlination or erasures, it will be strong evidence that our record is correct I believe, under all the circumstances that this resolution should be referred back to the committee.
Mr. HARNEY asked and obtained leave to substitute for his amendment the following; - differing only in phraseology: - "By inserting: Elect two Directors for the State Prison, south, one to succeed John Kirk, and the other to succeed a vacancy that may occur"
Mr. LaRUE. Is it customary to elect an officer to fill a vacancy, that we see no provision of law which is likely to occur?
Mr. HARNEY. It is to elect to fill the first vacancy that may occur.
The motion [Mr. Smith's] to refer the motion back to the Special Committee with instruction to prepare a bill covering the case - was agreed to
A MESSAGE FROM THE GOVERNOR.
By the hand of SAMUEL R. DOWNEY, Esq., Executive Messenger, announced the approving and signing of Mr. Dykeman's bill [S. 33] appropriating $125,000 for Legislative expenses. His Excellency also transmitted a communication accompanying a copy of a report of the Lake Shore and Michigan Southern Railroad Company made to him.
LIABILITY OF CLERKS.
Mr. LaRUE submitted a resolution instructing the Committee on the Judiciary to inquire into the expediency of enacting a law making the sureties of clerks of Circuit Courts liable upon their official bonds, jointly with their principals, for monies paid into the courts in partition and other cases, and monies paid into the court for the satisfaction of Judgements, or by administrators or executors in part settlement of estates.
Mr. BELL. I hope that resolution will be promptly adopted, and a bill in accordance therewith promptly reported by the committee, and as promptly passed by this General Assembly. Our courts have acted upon the assumption that such is now the law, but he Supreme Courts has indicated recently, that its decision would be to the contrary; and inasmuch as large sums of money are being continually paid into courts upon the assumption that clerks and their assurities are liable, I hope no delay will be had in this matter.
The resolution was adopted.
SUPERINTENDENT OF PUBLIC INSTRUCTION,
Mr, SLEETH submitted a resolution, which was adopted, reciting the facts connected with the creation of the office of Superintendent of Public Instruction, the election of the late incumbent, the appointment to fill the vacancy caused by his death, the election last October of his successor, and calling upon the Attorney General for an opinion as to whether the Governor had power to fill the vacancy beyond the general election, and as to what is the legal status of the office.
TOWNSHIP ELECTIONS.
Mr. HACKLEMAN submitted a resolution, instructing the Committee on Elections to inquire into the expediency of changing the time of electing township officers from October to the first Monday in April, or any other subsequent time; and also, as to the propriety of each road district electing its own supervisor.
It was adopted.
NEW PROPOSITIONS.
Mr. GOODING introduced a bill [S. 102] for an act to require township trustees to levy a tax of fifty cents on each [$100] one hundred dollars worth of taxable property to pay debts incurred in the building of school houses [each year until such debts are paid.]
It was read the first time and referred to the Committee on Education.
Mr. LaRUE introduced a bill [S. 103] for an act to enable administrators appointed by the authority of other States to lands to pay debts, and declaring an emergency.
It was read the first time and referred to the Committee on the Judiciary.
Mr. SLATER introduced a bill [S. 104] for an act to provide for the speedy collection of wages due to laborers for labor performed by them for their employers. [Shall pay the full amount due once a month in lawful money of the United States.]
It was read the first time and referred to the committee on the Judiciary.
Mr. BAXTER introduced a bill [S. 105] for an act requiring county Auditors to publish a statement of all allowances made by County Commissioners [in the newspaper having the largest circulation in the county.]
It was read the first time and referred to the committee on County and Township Business.
page: 65[View Page 65]Mr. GIVAN introduced a bill [S. 106] for an act to authorize incorporated towns to negotiate and sell bonds to procure means with which to complete public buildings, and to levy additional tax for the purpose of paying such bonds [not to exceed fifty cents on each one hundred dollars of taxable property, and one dollar on each poll.]
It was read the first time and referred to the Committee on Corporations.
Mr. DAGGY introduced a bill [S. 107] for an act to amend section 6 of the Divorce law. [Striking out the provision that when divorces are procured on notice by publication, the applicant shall not marry for two years.]
It was read the first time and referred to the Committee on the Judiciary.
Mr. SLEETH introduced a bill [S. 108] for an act to amend an act incorporating the Indiana Fire and Marine Insurance Company, approved February 13, 1851.
It was read the first time and referred to the Committee on Insurance.
Mr. OLIVER introduced a bill [S. 109] for an act making it a misdemeanor for any one having a wife or a wife and children, to abandon the same without just and reasonable means of support.
It was read the first time and referred to the Committee on the Judiciary.
Mr. WILSON introduced a bill [S. 11C] for an act to limit the number ot Grand and Petit Jurors in this State [to six persons.]
It was said the first time, and referred to the Committee on the Judiciary.
Mr. MAJOR introduced a bill [S. III] for an act allowing the same defence to notes and bills of exchange made payable in bank that are allowed by law to such paper not made payable in bank.
It was read the first time and referred to the Committee on Banks.
Mr. CHAPMAN introduced a bill [S. 112] for an act to create the forty-first Judicial Circuit, to amend sections 34 and 39 of an act, to divide the State into Judicial Circuits, approved March 6, 1873; also to provide for the holding of courts in the 33rd, 38th and 41st Judicial Circuits. [The county of Alien to constitute the 38th, the counties of Kosciusko and Whitley, the 33rd, and the counties of Marshall and Fulton the 41st.]
It was read the first time and referred to the Committee on the Organization of Courts of Justice.
Mr. STOCKSLAGER introduced a bill [S. 113] for an act to amend section 219 of the Civil Code of the State, and declares an emergency. [It provides that the statue of limitations shall not commence to run in any case where the person against whom a cause of action exists, shall conceal the same from the person entitled thereto, until the expiration of the period ot limitation after the discovery of the cause of action against such person.]
It was read the first time and referred to the Committee on the Judiciary.
Mr. HOWARD introduced a bill [S. 114] for an act to amend section one of an act to enable incorporated towns to lay out, open, grade and improve streets, alleys, etc., approved April 27, 1869.
It was read the first time and referred to the Committee on Corporations.
ASSIGNEES' SALES.
Mr. JOHNSTON, of Parke. Senate bill No, 68 to amend the assignment law, has been reported back from the Judiciary Committee, and with the consent of the Senate, I would like to take it up and put it on its passage. It is to amend the 10th section of the assignment act. As the law now stands, in sales of real estate, the trustee has no power to extend a credit beyond nine months. This bill provides that the court having jurisdiction, may order a private sale when it can be sold at its appraised value, and extend the credit on the last payment to two years.
The bill was read the second time; and, under a dispensation of the constitutional restriction, - yeas 39, nays 4, it was read the third time, and finally passed the Senate by yeas 42, nays 0.
LEAVES OF ABSENCE
Were asked and obtained for Mr. Cree (in poor health) till Tuesday morning, and for Messrs. Ringo and Humphrey, till Monday noon.
And then the Senate took a recess till two o'clock p. m.
AFTERNOON SESSION.
The LIEUTENANT GOVERNOR resumed the Chair at 2 o'clock, p. m.
Mr. DAGGY demanded a call of the Senate and it being taken discovered but thirty-five Senators present and answering to their names.
Further proceedings under the call were dispensed with.
Mr. FRIEDLEY, of Scott, introduced a bill [S. 115] for an act to provide for the sale of property held in trust in certain cases therein provided.
It was read the first time and referred to the Committee on the Judiciary.
DECEDENTS' ESTATE.
Mr. BOONE submitted the following:
page: 66[View Page 66]Resolved, That the Committee on Rights and Privileges of the Inhabitants of the State, be, and they are hereby instructed to inquire into the expediency of so amending the law of decedents and the law providing for the settlement of decedents estates, as to provide that in case of the death of the wife of the decedent before him and there are surviving the deceased father one or more infant children, under the age of ten years, that the five hundred dollars which would have been the individual right in the personal property of the surviving widow, shall descend to and be invested in the said minor child, or children in the same manner and to the same extent as to the widow of the said decedent, and that they report by bill or otherwise at an early day.
He said: I desire to say with regard to this matter that, of course the provision of five hundred dollars is intended for the benefit of the widow and minor children. I have found cases, where within a few days or even hours, of the death of the father, the mother has died, leaving sometimes, three or four children, all of them under ten years of years of age, where the creditors would come in and take the entire estate. Very often it is a small estate and the children become subjects of individual charity, and are soon sent to the public poor house. I know of at least three cases in my district, where children were left absolutely without any provision for their maintenance by this accidental death of their mother, when if she had lived, there would have been five hundred dollars in her hands for the support of her minor children. I submit this as a matter of inquiry to this honorable committee.
The resolution was adopted.
Mr. OLIVER introduced a bill [S. 116] to establish a State Board of Health, to provide for the appointment of a Superintendent of vital Statictics, and to assign certain duties to local Boards of Health. [The Board to consist of seven members - six appointees of the Governor - to elect its Secretary who shall be the seventh member and Superintendent of vital statistics.]
It was read the first time and referred to the Committee on Rights and Privileges of the Inhabitants of the State.
DOG TAX.
Mr. HUMPHREYS. Seeing from the State Auditor's Report that $200,000 was collected last year on account of dog tax, and thinking possibly that the money has been squandered, offered a resolution, which was adopted, instructing the Auditor of State to report to the Senate the amount of dog tax collected since 1865.
NEW PROPOSITIONS.
Mr. SLATER introduced a joint resolution [S. 4] for transferring business pertaining to the Sinking Fund, from the State Treasurer's office to the office of Auditor of State. He said: These papers are scattered all around - some of them in the Treasurer's office, some of them in one building and some in another. Often people come to the Auditors office to look after some matters pertaining to this fund, which can not be found.
It was read the first time, and referred to the Committee on Finance.
Mr. JOHNSTON, of Parke, introduced a bill [S. 117] for an act to amend section 19 of an act prescribing the powers and duties of Justices of the Peace in State prosecutions, approved May 29, 1852. [To enable Justices to collect costs in such cases.]
It was read the first time and referred to the Committee on the Judiciary.
REPORTS FROM COMMITTEES.
Mr. GOODING, chairman of the committee on Organization of Courts of Justice; returned Mr. Beardsley's 34th Circuit Court bill [S. 25, described on page 17 of these Reports] with a recommendation for its passage.
Mr. CHAPMAN, chairman of the Committee on Finance, returned Mr. Roe's members per diem bill [S. 8, described on page 6 of these Reports] with a recommendation that it be referred to the committee on Fees and Salaries.
He also returned his bank-fund transfer bill [S. 81, described on page 48 of these Reports] with a recommendation that it do pass.
These reports were severally concurred in.
And then the Senate adjourned till Monday two o'clock p. m.
