THE
BREVIER LEGISLTIVE REPORTS.
VOLUME
NINETEEN.
INDIANA LEGISLATURE.
IN SENATE
TUESDAY February 22, 1881--10 a. m.On motion by Mr. WHITE, his petroleum and illuminating oil inspection bill [S. 25] was made the special order to follow the bill [S. 74] to regulate the practice of medicine.
APPOINTMENT BY THE GOVERNOR.
The LIEUTENANT GOVERNOR laid before the Senate a communication from the Governor submitting for the confirmation of the Senate his appointment of William Freeman, M. D., of Switzerland County, as Commissioner of the House of Refuge for juvenile offenders, to succeed Lewis Jordan, and to serve for four years from March 1, 1881.
On motion by Mr. COMPTON, this appointment was confirmed.
MEDICAL LEGISLATION.
The LIEUTENANT GOVERNOR announced the order to be the consideration of the bill [S. 74] to regulate the practice of medicine, the question being on the amendment (by Mr. Garrigus) to Section 6, pending at the last adjournment, requiring graduates of Medical Colleges or Schools to be examined by the Board before being licensed to practice.
The amendment was rejected by yeas, 8; nays, 32.
On motion by Mr. URMSTON, the clause in Section 6, declaring that certificates may be issued to physicians not graduates, who have practiced ten years, was amended by adding the words "consecutively in any one location."
Mr. CHAPMAN moved to strike out of Section 6 the clause reciting that after March 1, 1882, certificates shall be issued to none but graduates in medicine. A just and fair criticism on this bill, that it is largely, if not mainly, in the interest of Medical Colleges in this State. It leaves the question open as to whether this bill does not make a diploma from a Medical College equivalent to a certificate of qualification from the Boards of Medical Examiners provided for in this bill. If that is to be the standard, then that and that alone should be the standard. While he felt as much interest as any one in all the institutions for the education of the people, he objected to throwing around these Colleges a legal safegaurd or requirement that no one shall practice medicine unless he or she pass through a Medical College.
Mr. VAN VORHIS said the friends of the bill would not object to this amendment.
Mr. SPANN, on the ground of justice and equity to practicing physicians, opposed the clause in the bill proposed to be stricken out, and favored the amendment. There ought to be some equitable limit prescribed, and in this bill the lines are not drawn fairly. The title of this bill should be "a bill for an act to furnish students to Medical Colleges."
Mr. COFFEY moved to amend Section 6 so as to include, among those entitled to certificates, those who have attended one full course of lectures in some Medical College,and are engaged in the practice of medicine. He believed that if the people need legislation upon this subject, if practicable, it would be better to enact a law quiring all physician to show by an examination that they are qualified to practice, before licensing them to do so.
Mr. VAN VORHIS understood the provision of the bill to include the persons referred to in amendment.
Mr. WOOLLEN also saw nothing in the objection raised by the author of the amendment.
The amendment was rejected.
Mr. SPANN moved to amend the clause in Section 6 authorizing certificates to be issued to physicians not graduates who have practiced ten years, so as as to make it three years instead of ten.
Mr. CHAPMAN favored the amendment. In seven cases out of ten a man will have as good a reputation after practicing three years as after practicing ten. He will not have the experience of course, but he can demonstrate the ability or inability to practice in three years as well as in ten. Ten years is unreasonable, especially since the amendment was adopted requiring the practice to be for that term consecutively in one locality.
Mr. BELL feared the object of some Senators was to tack upon the bill objectionable amendments. He hoped this amendment would be rejected. A man who has not attended lectures is hardly competent to practice in three years; ten years would be better.
page: 213[View Page 213]Mr. SPANN offered this amendment in good faith and at the suggestion of one of the reputable physicians who helped frame this bill. He knew not of a single physician in his County who desired this bill should go upon the statute book.
Mr. YANCEY believed a man incompetent in three years would be incompetent in ten. The practice of medicine requires experence, education and other qualifications. This bill is to protect people against incompetent practitioners of medicine. Because a man has deceived the people for ten or more years, is that any reason why such an one should be allowed to keep up the imposition? This is a gradual emancipation bill and its opponents are not the proper persons from who to expect proper amendments.
The amendment was rejected.
Mr. HENRY offered a substitute for Section 6, providing that any person who passes an examination shall receive a certificate to practice medicine. The bill does not properly present the question of qualification; in the term of twelve months it changes, and does not require of a certain class what it did before.
Mr. GRAHAM was convinced from the discussion that the bill is neither satisfactory to the physicians nor to the people of the State. A delegation of doctors have come here from his District to request him to vote against the bill in its present from.
Mr. BUNDY moved to refer the bill and pending amendments to a Special Committee of Five.
Mr. SHAFFER opposed the motion.
The motion was rejected.
Mr. VIEHE made an ineffectual demand for the previous question.
The substitue was rejected by yeas, 19; nays, 25.
Mr. BROWN made an ineffectual motion--yeas, 17; nays, 27--that the bill be ordered engrossed.
Mr. BROWN moved to reconsider the vote adopting the amendment [Mr. Urmston's] adding the words "consecutively in any one location."
Mr. SPANN moved to lay this motion on the table.
Then came the recess till 2 o'clock p. m.
AFTERNOON SESSION.
Pursuant to order adopted yesterday morning, the Senate proceeded to the consideration of the Senate proceeded to the consideration of the civil code bill [S. 271], concerning procedure in civil cases, commenceing at Section 586.
Mr. URMSTON moved to amend Section 766 so as to admit women to practice law in all the Courts of Justice in this State. The amendment proposes to add a new feature--one in keeping with the spirit of the times; and much can be said both for and against it. The most serious objection is the cry of unconstitutionality. See Section 21, Article 7. While this provision invests certain rights in voters, it does not say only the voter shall be allowed to practice. Will it admit of any other construction than that it does not limit? Surely no private right can be disturbed by adopting such amendment. If there should be a doubt our Courts of last resort would have to construe it, and, without doubt, would decide in favor of the constituionality of the pending amendment. It is only where laws infringe the constitutional restriction are they declared void. If there is a doubt, the Courts declare such laws operative.
Mr. BELL would be on the same side with the Senator who has just taken his seat but for the Constitutional provision referred to, which is too plain to be misconstrued. This Section does not pretend to exclude anybody, and we have no right to extend beyond its provisions the right to anybody to practice law.
Mr. URMSTON was unable to see anything unconstitutional in the amendment. Thereis already act permitting foreigners to practice in the Courts of this State, and if it be right to pass such a law, then this amendment could as well be incorporated in the statute.
The amendment was agreed to by yea, 28; nays, 16.
Mr. CHAPMAN moved to strike out the clause requiring an examination, upon motion, by the Judges or a Committee of the Bar. This amendment would leave the feature in the action as to moral character standing as it is. The provision he desired to eliminate was squarely in the teeth of the Constitution. The amendment just adopted is also squarely in the face of a Constitutional provision written in terms as simple as ideas can be clothed, limiting the practice of law to none but voters. That is the Constitution--the law paramount in the performance of all our duties. This is an attempt to build up barriers around the legal profession such as were prior to 1852, when no Court would admit a person to practice until after passing a regular examination before a Judge or a Committee appointed by a Judge. Upon examination of the debates it will be seen that members of the Consultation Committee desired to break down all barriers other than what is explicitly expressed.
Mr. VIEHE did not believe the Constitution prohibits any but voters to practice law. But the section under consideration, after the sixth line, contains matter of no importance, and should be stricken out. He offered an amendment so proposing.
Mr. BELL considered it incomprehensible that a lawyer should affirm. The Constitution does not exclude all but voters from practicing law. He desired to put on record his protest against the adoption of the amendment proposed by the Senator from Franklin (Mr. Urmston), being, as it assuredly is, in direct violation of the Constitution. And he opposed the amendment (Mr Viehe's) proposing to strike out so great a portion of the pending section.
Mr. GRAHAM favored the amendment. He regretted the feeling of sentiment--a kind of frivolity in legislation which should not be tolerated or encouraged--that brought about the adoption of the amendment proposed by the Senator from Franklin.
Mr. BROWN moved to reconsider the vote by which the words, "without regard to sex," were inserted in Section 766. It would be in violation of the Constitution, as well as the spirit of the members of the Constitutional Convention, as discovered by reading the debates, to fix any other qualification than is stated in the section referred to. Every Senator has a right to support the Constitution as his mind and conscience teaches him to understand it; but reason, logic, authority, practice and everything else is against the power of conferring the right on women to practice law. It is wrong to pass laws we know are in plain violation of the Constitution in the hope that the Courts will declare them operative.
The motion to reconsider was agreed to by yeas, 28; nays, 17.
The question recurring on the amendment [Mr. Urmaton's] which would permit women to practice law, it was rejected by yeas, 15 nays, 30.
Mr. COFFEY moved to strike out Section 858, requiring pleadings other than a demurrer to be filed in duplicate, and requiring receipts to be given for papers removed from Clerk's office.
Mr. TRAYLOR and Mr. GRAHAM favored the motion because it provided for unnecessary labor.
Messrs. WOOD and BROWN also regarded the section as working a hardship.
Mr. WOOLLEN had been urged by attorneys to favor the provisions in this section. Copying presses are not expensive.
The motion to strike out was rejected.
On motion by Mr. VIEHE, Section 859 was stricken out.
On motion by Mr. COMSTOCK, the clause "that no pleading, record or paper shall be removed page: 214[View Page 214] from the Clerk's office without special leave of the Judge," was stricken out.
Mr. MENZIES moved to reconsider the vote by which the lause was stricken out. Pending which--
The Senate adjourned till to-morrow.
HOUSE OF REPRESENTATIVES.
TUESDAY, February 22, 1881--9 a. m.Mr. BUSKIRK called up the special, order, being the consideration of his bill [H. R. 3] concerning interest and usury.
Mr. BENHAM made an ineffectual motion--yeas, 30; nays, 40--to indefinitely postpone the bill.
Mr. STUART moved to amend by striking out the words "contracted for" in line one, the word "or" in line two; also, the words "the defendant shall recover costs." in line four of said section, and strikeout all of Section 5. He said: As the bill now stands I can not vote for it, for the reason that, as a general thing, the man who agrees to pay a high rate of interest is equally guilty with the man who receives it, and I can not see why you should offer a premium to one man for violating a law and imposing upon the other man a penalty. Let the law put both parties upon an equal. If you want to make a 6 per cent. law, enforce a law prohibiting the borrower from 6 per cent. and no more. The bill as proposed will allow the borrower to escape from paying any interest simply because the lender contracted for more interest than is allowed by law. I think this amendment ought to prevail.
Mr. BUSIKRK--Thiis bill has been discussed in all its bearings, if the Members of this House vote as their constituents desire them to vote this bill will pass without any further delay. If you strike out Section 5, then the lender has nothing whatever to risk; he loans his money at 10 or 12 per cent., and the borrower pays it. I am surprised to hear a lawyer and a Member of the Legislature claim that when the law says that more than 6 per cent. is illegal, a man contracting debts against the law is under moral obligations to comply with the contract as entered into. I deny the legal proposition, as well as the moral one, that when a man contracts under those circumstances, there is a moral obligation to live up to it. The adoption of this admendment is equivalent to the destruction of the bill. It strikes at the very fundamental principles which the bill means to establish, therefore I hope the amendment, as offered by the gentleman, will not prevail.
Mr. TETER--An individual has, without question, the right to agree to pay such a per cent. for the use of money, or forbearance of payment, as he may deem proper under the circumstances in each particular case, and if he contracts to pay any higher interest than that which is established by law Such contract is not, in view of our present law, void, but void only, as to the excess above the legal rate of intrest, so that if he has, in writing, contracted to pay interest at a rate of 25 per cent. he can not be compelled to pay more than 8 per cent., yet he may literally perform his contract. All good Governments protect the person and property of each individual to a limited extent only, for, if he precipitate any injury upon himself or contribute thereto, the case would be rare and extreme, in which an award of damages could be given. The law does not, in general, protect the individual against the results of his own actions but will if the act be criminal, sometimes, visit him with punishment severe. The question of the greatest importance in the bill under discussion is, perhaps, how far and to what extent shall the law interfere in the protection of each individual in the paymentof interest? Surely, only to make the contract for the payment of interest void, above a certain rate per cent., for, to make the whole contract void, absolutely or to visit either the debtor or the creditor both with a penalty for having entered into a contract usurious, would be manifestly beyond the limits of the protection necessary for each individual.
Therefore, as the present law regulating interest seems not to be oppressive in its operation, but sufficiently protects the debtor, and as it is eminently advisable to avoid, as far as praticable, mutation in our laws, let the bill not pass and become a law, notwithstanding its advocates are gentlemen whose intelligence, honesty and eloquence entitle them to high respect and genuine consideration.
Mr. CARTER offered a substitute for the bill fixing the rate at 6 per cent., except that written contracts may be at 7 or 8 in certain cases. He said he was of the opinion that the minimum rate of interest should be regulated by Legislative enactment. He thought when the lawful rate of interest is too low, it has a tendency to make the rate higher. The question is, what should be the maximum rate of interest? He felt that 6 per cent. was too low a rate. If such a law passed, it would drive foreign and home capital out of the State to other States for investment. For this reason he felt willing to meet the gentlemen half way, compromise and make the maximum rate 7 per cent. The amendment which he proposed imposed a penalty on the man who violates the law--the borrower as well as the lender, thus holding both parties responsible for trespass of law.
Mr. FULLER moved to amend the amendment as follows: By striking out the word "8 per cent." where it occurs in Section 1, and insert the word "7 per cent."
Mr. BERRYMAN was not only opposed to the bill, but all the amendments. He thought there was too much legislation; that the people were fully capable of taking care of themselves. You can not by legislation compel a banker or individuals to lend money. Parties possessing money will send it out of the State rather than loan it in our midst at a lower rate than can be obtained elsewhere.
Mr. MOODY was in favor of the bill, and opposed to all amendments offered, beliving none of them could tend to its perfection. None but bankers and money-lenders, and their friends, are opposed to the bill. It ought to stand upon its merits, and every member should go upon record in that view of it. As long as people are willing to convert their money into 4 per cent. bonds, he thought it high time the people of this State should be able to obtain money at 6 per cent.
Mr. FULLER tought it very doubtful if this bill should be passed by the House, whether it could pass the Senate, and on that account he favored a compromise to make it 7 per cent. It is not money borrowers who are opposing this measure, but the money lenders. He thought school money at 7 per cent, could be loaned as easily as other money at 6 per cent.
The amendent to the amendment was agreed to.
The amendment was rejected--yeas, 43; nays, 47.
Mr. HAMILTON thought the members of this body should fully consider the practical results of this enactment before entering upon such legislation hurredly. The flood gates would be shut upon every branch of business by making the rate per cent. 6, and it would bring embarrassment upon the people of the State.
Mr. CARR, of White, was opposed to changing the law on the subject of interest, and read a speech giving his views on the subject.
The bill was ordered engrossed by yeas, 46; nays, 44.
THE TAX BILL.
Mr. WALKER moved that the tax bill be postponed until Friday at 9 o'clock a. m.
page: 215[View Page 215]Mr. NEFF moved t amendby inserting 2 p. m to-day.
The motion as amended was agreed to.
The SPEAKER announced the special order, being the consideration of the bill [H. R. 252] to extend the elective franchise for the election of President and Vice President of the United States to a certain class of women therein designated. The bill was read the third time and failed to pass by yeas, 43; nays, 46; as follows:
Yeas--Messrs. Akin, Baker, Beatty, Compton, Cotton, Edwins, Floyd, Franklin, Furnas, Gardner, Gillum, Gilman, Gregory, Hamilton, Huff, Iddings, Johnson, Kenner, Lindlay, Linsday, Marshall, Mason, McIntosh, Melroth, Miles, Murray, O'Brien, Roberts, Robinson, of Decatur; Robinson, of Ripley; Ryan, Skinner, Stewart, Sumner, Taylor, of La Grange; Taylor, of Noble; Teter, Thompson, Vawter, Westfall, Wheeler, Wilson, of Morgan, and Wright--43.
Nays, Messrs. Barnett, Bartlett, Benham, Berryman, Buskirk, Cabbage, Carr, of White; Carr, of Whitley; Carter, Cauthorne, Chandler, Cole, Cooper, Cummins, Davis, Fall, Frazer, Fuller, Gibson, Ham, Hammond, Hinton, Hottell, Huston, Jackson, Kain, Keer, Lee, McClure, McCormick, McDowell, McSheehy, Meredith, Miller, Mitchell, Moody, Neff, Null, Roelker, Switzer, Shields, Smelter, Sulzer, Walz, Weaver and the Speaker-46.
Then the House adjourned till 2 p. m.
AFTERNOON SESSION.
COMPULSORY EDUCATION.
The Speaker announced the special order for this hour to be the consideration of the bill (H. R. 8] for compulsory education.
The report of the Committee on Education, recommending its passage with amendments, was concurred in, and the bill was ordered engrossed.
The SPEAKER announced a special order at this hour to be the consideration of the bill [H. R. 204] concerning taxation.
Mr. MURRAY moved to amend Section 115 concerning vacancies of Assessors, as follows: "And if from any other cause a vacancy should occur in such office in the Township at any time, the County Auditor shall fill such vacancy by appointment, and the person so appointed shall qualify as herein required."
The amendment was adopted.
On motion by Mr. WALRER, township assessors were made members of Boards of Equalization.
Mr. THOMPSON moved to amend Section 211 concerning price for printing descriptions of delinquent list to read: "It shall not exceed fifteen cents."
The amendment was adopted.
The bill passed the House by yeas 73, nays 11.
The House adjourned till 9 o'clock to-morrow.
