THE
BREVIER LEGISLATIVE REPORTS.
VOLUME TWENTY-ONE.
INDIANA LEGISLATURE.
IN SENATE.
WEDNESDAY, January 24, 1883-10 a. m.On motion by Mr. BENZ the reading of the Secretary's journal was dispensed with.
FEES AND SALARIES.
Mr. BUNDY, by consent, offered a resolution, which was adopted directing the Committee on Fees and Salaries to report a bill revising the present fee and salary law so that the Constitutional amendment on that subject may be properly carried into effect.
PROPOSED JOINT ON "WOMEN'S COMMITTEE CLAIMS.
Mr. BROWN, under a suspension of the rules, introduced a concurrent resolution authorizing a Joint Committee of Women's Claims to consist of four Senators and five Representatives, Mr. Brown desiring the Senator from Green (Mr. McIntosh) be named as Chairman, should the House concur in his resolution.
A MARTIN COUNTY OFFICIAL.
Mr. SPANN offered a joint resolution providing for the payment by the State of the costs incurred by the Superintendent of Public Instruction in the case of the State vs. the Superintendent of Schools in Martin County, charged with corruption in selling the questions prepared for examination of teachers by the Superintendent of Public Instruction which was read the first time.
On his farther motion the Constitutional rule was suspended-yeas, 45; nays, 1-and the joint resolution was read the second time by title, the third time by section, and passed the Senate by yeas, 24; nays, 19.
Before the final vote Mr. JOHNSON asked unanimous consent to amend by providing that the warrant shall not exceed $1,000.
Mr. VOYLES (objecting): the entire amount would be probably used.
Mr. WILL A RD moved to refer to the Committee on Education, with instructions to limit the amount, [which was not entertained by the Chair].
The amendment was rejected.
ROADS AND HIGHWAYS.
The LIEUTENANT GOVERNOR announced the special order to be the consideration of Mr. Benz's bill [S. 6] for the election and appointment of Supervisor of highways. [See p. 28 and 78 of the Brevier Reports.]
The majority report recommend amendment of the bill [S. 6] by making the tax in Section 3 not less than five cents nor more than forty cents on the $100. The minority report entirely new matter as a substitute for the bill.
Mr. HENRY offered a substitute for both the majority and minority reports-being new matter from and after the enacting clause. He said there is nothing of so much importance to the farming community as the road law. The present law gives dissatisfaction and there is a demand for a new system for the repair n improvement of roads. The substituted provisions of tho measure now proposed as a substitute are: It does away with the Road Superintendent and with the Road Master: it makes the Trustee ex-officio Road Superintendent of all highways in his Township, who shall divide his Township into road districts not less than six square miles in area, in each of which there is to be elected a Road Supervisor who has charge of the work on the road, under the direction of the Township Trustee, citizens to work out the poll tax similar to the (. Id law for, working out road tax. The Township Trustee shall have control of all the roads so there may be a system of roads. The property tax shall be paid to the Township Trustee to be expended under his direction.
Mr VOYLES, interrupting, suggested that this bill be printed and the subject postponed till after the printing.
Mr. BELL seconded the motion to print.
Mr. GRAHAM thought the explanation of the author would be better than printing the bill.
Mr. HENRY (continuing): The Road Supervisors should expend this road money under the direction of the Township Trustee. The bill permits every taxpayer to work his road tax out, if it is done as cheap as other labor is performed. It makes the Supervisor an officer, requires bond, and subjects him to removal by the Township Trustee for cause. He did not claim this bill as a perfect one but insisted it contains the better provisions of the present and the old law.
page: 98[View Page 98]On motion by Mr BROWN the subject was postponed till Monday next at 2:30 o'clock. The substitute [offered by Mr. Henry] and the bill [S. 126, Mr. Davidson's] were ordered printed-300 copies of the former and 150 of the latter bill.
THE CONSTITUTIONAL AMENDMENTS.
Mr. SPANN called up the special order, being the resolution offered by Mr. Van Vorhis on the 12th inst., [see pp. 49, 50 and 76 of the Brevier Reports] instructing the Judiciary Committee to report if any amendment or amendments to the Constitution of this State were proposed by the last General Assembly and referred to this; with a majority report of said Committee, signed by five members, declaring there is nothing on the journals to show that either the House of Representatives or the Senate of the last General Assembly referred or intended to refer any proposition to amend the Constitution of this General Assembly.
The minority report, signed by two members, states: We do not find that said resolutions were spread at length upon the journals of the General Assembly, nor that they were, in words, referred to this General Assembly. We do find that they are in the same condition as resolutions heretofore adopted and agreed to as amendments to the Constitution of Indiana, which were agreed to by a succeeding majority of the electors of the State of Indiana, and declared by the Governor of the State to have been duly adopted as a part of the Constitution of Indiana. We, therefore, find and report to the Senate that the provisions of Section 1, Article 16, of the Constitution of Indiana have been substantially complied with, and that said several joint resolutions above set forth are duly and legally before this General Assembly for its action thereon.
The question being on concurrence in the minority report-
On motion by Mr. BROWN, the Senate resolved itself into a Committee of the Whole (Mr. Henry in the Chair) for the consideration of these reports.
Mr. BUNDY moved that the Committee recommend that the Senate concur in the minority report of the Committee.
Mr. BELL moved that the Committee recommend the Senate concur in the majority report.
Mr. BUNDY did not propose to discuss all the questions that arise on this subject, but to give a few reasons why the report of the minority of the Judiciary Committee should be concurred in. He conceded if the words, "entered on the journals," as used in the Constitution, mean "spread at length", then so much of the requirement of the Constitution was omitted. Nor were words entered on the journals referring such amendments to this General Assembly. The controversy arises whether this renders it possible for this General Assembly to pass upon these amendments. All Governments are founded upon the surrender of some natural rights, and no presumption should arise as to the intention to use the words of the Constitution in the strictest sense. In some cases the language of the Constitution must be literally construed without conflicting with the wishes of a majority of the people. It is said Constitutional provisions should stand exactly as written, but in nearly every State Courts have been and are now constructing Constitutions as are thought best to carry out the spirit of the instrument. It is the intent of the law that it is to be inferred, and what better manner is there to find this out than by the expressions and views stated by the law makers at the time of the enactment of the law? In the Constitutional debates not one word is recorded about spreading proposed Constitutional amendments on the journals of each House, and it is fair to presume it was considered as a mere matter of form. He read a lengthy argument, and in support of his position read from numerous judicial decisions.
On motion by Mr. BROWN, the Committee took a recess till 2 o'clock.
AFTERNOON SESSION
Mr. JOHNSON said: Mr. President-To obey and support the Constitution of Indiana as it stands to-day is what every Senator upon taking his oath has sworn to do. The Constitution is an instrument of such momentous importance that every one of its provisions should be followed and obeyed to the letter and that no room for any other construction except its literal demands should be entertained. In no ease is this. however, more necessary than when an attempt is being made to amend the great instrument which protects the rights of every man, woman and child in this State, and, as in the case of the so-called prohibitory liquor amendment, to introduce into the Constitution a provision which will, to a large degree annul and invalidate both the Constitutional and natural rights of citizens, In such case I claim more than usual caution and a strictly literal compliance with every demand and direction of the Constitution should be exercised.
It seems to me that party polities have nothing whatever to do with the question. I am well aware that the Republican party has made the adoption of the prohibitory amendment a party question, and it is pretty generally understood, and some of their ablest representatives in the press freely admit that in doing so, in placing itself upon a prohibitory platform, the Republican party has made a fatal mistake, a mistake which has in the November election cost them several great States, upon which the Republicans seemed to hold a life-long lien, and which, if they pursue in their course, will unquestionably cost them the Presidency. It is true, too, that the Democratic party, at least a great majority of the Democratic party, is opposed to the prohibitory amendment, but in doing so, the Democratic party has merely reasserted the fundamental principle underlying our system of government, the great principle that there are rights, inherent in human nature, sacred natural rights which on State and no political majority has any right or power to deprive them of. However, disregarding these Constitutional and natural rights of every citizen of this State, the Republican majority of the last General Assembly adopted a prohibitory amendment, which, for the second stage of its consideration, and in its regular course of Constitutional action, had to be referred to the present General Assembly. This reference to the present General Assembly could only be made according to certain regulations and rules, laid down in and prescribed by the Constitution itself. Article 16, of the Constitution, prescribing the mode of procedure in the case of amendments, says: "If the same shall be agreed to by a majority of the members elected to each of the two Houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election." Now, Mr. President, it seems to me the language of the Constitution is very clear on the subject, and can not possibly be misunderstood by any one who is willing and unprejudiced enough to interpret it literally. The Constitution demands that the amendment, that is to say the full text of the amendment, adopted by the Legislature, be entered at length-and every word of it-on the journals of each House. The Constitution demands it, I say, for the words "shall, with the yeas and nays thereon, be entered on their journals." in my opinion can not have any other meaning. In a question of such vital importance as a Constitutional amendment, the General Assembly, to which this amendment was to be referred for action thereon, was not to be left in page: 99[View Page 99] uncertainty as to what that amendment really was, and so that there could be no possible misunderstanding of what that amendment provided for in the mind of any Senator or Representative, the full text of the amendment was to be em bodied in the journals of each House.
Now let us see what has been done and In what manner the provision of the Constitution has been complied with. I have only had an opportunity to consult the Senate Journal, but on turning to the index I find that the final action on the House joint resolution No 7. which is the prohibitory amendment, is recorded on pages 828 and 829, and in what in what manner? [Reads ] Not one word designating that joint resolution as the prohibitory amendment, much less the full text and the language of the amendment itself! Now, Mr. President, I ask, in all candor, the gentlemen of the legal fraternity on this floor whether, in legal or legislative language, what has been done this case is correctly expressed by the word "entered?" Is it not true that there are three different words expressing, so to say, a gradation of one and the same action, but each used only in a separate stage of such action? Is it not true that resolutions may be filed, noted or entered, and that to file a resolution merely conveys the idea that a certain paper has been deposited at the proper place, and that that act is recognized by an indorsement on the back of the instrument? Is it not true that a resolution is noted, when it is marked down in an official record, journal or book, merely by reference to its number or title-but that the legislative expression entered is always used when the full text and language of a resolution are recorded and spread at length in an official journal, and that the expression "entered" is used in no other sense. It seems to me that this is this is conclusive proof of what the Sixteenth Article of the Constitution wanted done in case an amendment was to be referred to the next General Assembly. It wanted the amendment entered on the journals of both Houses, and consequently it wanted the full text, the full language of the amendment cited in the pages of the journals, and it did not require the amendment merely noted, as has been done in this case. Mr. President, this amendment is of too serious, too grave, and too far-reaching a character to be treated lightly and superficially. All amendments are the organic law of the land has been and must be surrounded by bulwarks and entrenchments, which ought to be so strong and so difficult of access that not a mere assault and surprise, but only a protracted and patient siege, can overcome and conquer them. The framers of our Constitution have in then wisdom reared those bulwarks and intrenchmems by laying down the Constitutional rules for amending it. The very words of these rules should be religiously observed, and not an iota should be tempted in going through a slow and tedious process of an amendment. It is this very difficulty and slowness which constitute our security and guarantee the perpetuity of our liberty and freedom-both as a Nation and as individuals.
In conclusion, Mr. President, I would say that I entirely disagree with the senator form Henry [Mr. Bundy], when he says that in this case it would be desirable if every Senator on this floor were a lawyer. If the language of the Constitution with reference to these amendments were clothed in complicated and technical phraseology; if to the ordinary reader or Legislator that language presented difficulties not readily to overcome then. It might be desirable to have this question decided only by a tribunal of lawyers, But this is not the case; the provisions of the Constitution are laid down in plain English, and I do not believe that there is one Senator on this floor or one Representative on the floor of the House who is not fully competent to decide the matter for himself. But even admitting, for the sake of argument, that the wish of the Senator from Henry might be justified, to have this question decided solely and exclusively by attorneys the learned expounders of Constitutional law, is he not even then beaten by the force of his own argument? Has not the Senate been informed by a majority of the Committee on the Judiciary, that is to say, by a very decided majority of the learned attorneys whom the Senate has selected as its interpreters of he law and the Constitution, that these amendments have rot been properiy referred to the present General Assembly and that they are not to be considered as pending? Mr. President, on account of the various reasons adduced by me, and because I feel conscious that the Constitutional] provisions have not, been complied with in regard to the amendment said to be pending, I am in favor of adopting the majority report of the Committee, and opposed to adopting the minority report.
Mr. McCULLOUGH: For this Legislature to Fay the proposed Constitutional amendments are Constitutionally before this General Assembly would be committing an error indefensible. The only right the Legislature has to take steps like this is a right given by the Constitution itself, and before taking such step, the Legislature must find authority therefor in that organic instrument. In plain language, the Constitution requires that the proposed amendment itself must be put upon the journals-there must be some identification of its language upon the journals. Taking it for granted, these proposed amendments were not entered upon the journals of the last General Assembly, he proceeded to call attention to some other provisions of the Constitution. By virtue of the Constitution it is provided that proposed amendments shall be set forth in the journals of the General Assembly, and the laws of the State provide that those journals shall be circulate in every County in the State. It does not take any great Constitutional lawyer to understand this plain requirement of the Constitution, and so every citizen can search those journals and see if the proposed amendments are set forth in those journals, and if one word is different in one journal from the other then the Legislature has no business to consider the amendment in which such difference in words as set forth in the two journals may be found. It is a question of their publication-in order that the people may be prepared to pass upon such question-so stated by the framers of the Constitution-that the people may know an amendment has been proposed to the organic law-not through newspapers, but in a Constitutional way; by publication in the journals of the two Houses of the General Assembly. He thought there was no very grave Constitutional question involved in this matter. It is as clear as the noonday sun that the Constitutional provision in regard to these proposed amendments has not been complied with. The only conclusive evidence as to whether these proposed amendments were agreed to by the last General Assembly is pointed out in the Constitution itself, which provides that they must be spread upon the journals of the two Houses. Members of the Legislature took an oath to support the Constitution of the State, and not to support any proposed amendments, and where there is a question or a doubt as to whether or not there is a Constitutional amendment before this General Assemble, the safest thing to do is to give the Constitution the benefit of the doubt and say the plain, simple provisions of the Constitution must be complied with before members should vote to adopt any such proposed amendments. He was anxious to see the report of the majority of the Committee sustained
Mr. FOULKE sincerely believed, as a lawyer, that the proposed constitutional amendments are ' now before this General Assembly for its consid page: 100[View Page 100]eration and action. It is true we are acting in the opacity of Judges, but let it not be forgotten that the most conscientious of all English jurists [Sir Matthew Hale] has said that it is the province of a wise Judge to extend his jurisdiction, lest there be a failure of justice. If the balance be anywhere near equal, upon one side or the other, we should remember that, and especially in this case, lest the voice of the people remain stifled. There is no doubt, the Constitution can be amended only in the manner prescribed by itself; but he contended the requirements have been substantially complied with. He held it to be unnecessary that proposed constitutional Amendments should be spread at large upon the journals of the two Houses for the reasons laid down by Governor Bake. In a message to the General Assembly, and concurred in by that General Assembly, in the passage of the Wabash and Erie Canal amendment to the Constitution. He regarded the clause as not mandatory, and even should it be considered mandatory it has been substantially complied with. He went so far as to hold that if it be commanded by the Constitution that proposed Constitutional amendments should be spread at length upon the journal, that provision in merely directory and not mandatory-we are not bound by it. These amendments are properly before us provided we have it properly authenticated, in any other form or manner, that they were agreed to by the last General Assembly. After leading from many authorities lay to whether the word "shall" in the Constitution is to be regarded as mandatory, he said: in view of this uncontradicted mass of authority we may safely lay down the proposition that the word "shall" in the Constitution is not always imperative and mandatory. The word "shall" is no more mandatory in the Constitution than in the Statutes, and the same rules apply to it in the one case as in the other. He regarded it as conclusively settled that whatever relates to The mode of procedure merely, a ad is not of the essence of the thing to be done, is to be enforced by the oaths of members only, and by no other power whatever, in discussing other modes of authentication provided in the Constitution, he insisted that, even should pages be torn from the Journals and be thrown in a waste basket, they could be supplied, because it should not be left in the power of one man to deprive the people of the State of their rights; neither should that happen because clerks fail to do their duty. The Senate Journal has been read but once since the beginning of this session. Without concluding his argument be give way for
Mr. Spann, on whose motion the Committee rose, reported progress, and asked leave to sit again to-morrow at 11 o'clock.
On motion by Mr. Brown this report of the Committee of the Whole Senate was concurred in.
And then the Senate adjourned.
