THE
BREVIER LEGISLATIVE REPORTS.
VOLUME TWENTY-ONE.
INDIANA LEGISLATURE.
IN SENATE.
THURSDAY, January 25, 1883-10 a. m.The LIEUTENANT GOVERNOR requested Senators to attend while prayer was being offered by Rev. H. Doddridge.
PETITIONS, MEMORIALS AND REMONSTRANCES.
Petitions praying for a submission of a prohibition amendment to the Constitution, at a special election, were presented and referred to the Committee on Temperance, without reading, by Messrs. Ernest, Brown, Henry, Campbell, Compton, Davidson, Duncan, Faulkner, Foulke, Adkison, Hoover, Hutchinson, Johnston, Keiser, Lockridge, Macartney, Marvin, McIntosh, Rahm, Ristine, Smith of Lawrence, Smith of Jay, Spann, Van Vorhis, Voyles, Willard, Yancey, Youche and McCullough.
Mr. FLETCHER presented a petition concerning the public health; also, by Mr. RAHM, on the same subject.
Mr. FOULKE presented a petition from the Woman's Equal Suffrage Society of Indianapolis, praying for the right of suffrage.
Mr. HENRY presented a prayer from officers of Anderson, Madison County.
Mr. BUNDY presented a petition from fifty-eight citizens of Henry County praying against the repeal of the State Board of Health act.
These reports were severally referred to appropriate Committees.
THE BENEVOLENT INSTITUTIONS.
Mr. SPANN called up the special order, being Mr. Brown's bill [S. 1] for the better management of the Benevolent Institutions of the State-see page 87 of the Brevier Reports-and asked and obtained leave to withdraw his pending substitute for the majority and minority reports, the latter recommending indefinite postponement of the bills.
The question then being on concurrence in the minority report, it was rejected by yeas, 21; nays, 26.
The majority reports, recommending the passage of the bill, with amendments, as set forth on page 87 of the Brevier Reports, was concurred in by yeas, 27; nays, 22-as follows:
Yeas-Messrs. Bell, Benz, Brown, Compton, Davidson, Duncan, Ernest, Faulkner, Fletcher, Hill, Hilligass, Hoover, Howard, Hutchison, Johnson of Tippecanoe, Marvin, May McClure, McCullough, McIntosh, Null, Rahm, Richardson, Smith of Jay, Voyles and Willard-27.
Nays-Messrs. Adkison, Bichowsky, Bundy, Campbell, Fleming, Foulke, Graham, Henry, Keiser, Lockridge, Lindley, Macartney, Magee, Overstreet, Ristine, Sayre, Smith of Delaware, Spann, Van Vorhis, White, Yancey and Youche-22.
Mr. BROWN moved to amend the bill by adding an additional section, providing for the removal of officers for cause, the Governor to fill the vacancy until the next meeting of the Legislature, and that the General Assembly shall elect the first incumbents immediately on the taking effect of this act. He said this section is taken from what is known as the Wilson bill [H. R. 42]
These amendments were agreed to by yeas, 27; nays, 20.
Mr. SPANN moved to amend by inserting a section requiring the Female Department of the Insane Asylum to be placed in charge of a competent female physician. He insisted that there should be this recognition given to the women of the State.
Mr. BROWN opposed the amendment, as that question will properly come up for decision before the Trustees of that institution, and if they think it advisable, a female physician will be selected by them. He demanded the previous question.
The demand was seconded by yeas, 26; nays, 28; and under the operation of the previous questions the amendment (Mr. Spann's) was agreed to by yeas, 25; nays, 24.
The bill as amended was ordered engrossed.
JOINT COMMITTEE ON WOMEN'S CLAIMS.
The LIEUTENANT GOVERNOR announced the special Joint Committee on the part of the Senate on woman's claims, viz: Messrs. McIntosh, Yancey, Foulke and Hilligass.
THE CONSTITUTIONAL AMENDMENTS
The LIEUTENANT GOVERNOR announced the special order for this hour-11 o'clock-being the consideration of the proposed Constitutional page: 106[View Page 106] amendment resolution, and the majority and minority reports from the Judiciary Committee thereon, in the Committees of the Whole, and thereupon he gave place to the Chairman, Mr. Henry, who stated the question to be on the motion pending at the adjournment yesterday to concur in the majority report.
Mr. FOULKE (continuing his speech, begun yesterday afternoon) regretted the consumption of so large an amount of time in his argument of this question, but it is to be presumed that members of the Senate are trying so to do their duty, and their duty is to decide this case according to the Constitution and the law. No party pledges were made in consideration of this defect, the amendments not being found in the Legislative journals, and the question whether or not this General Assembly is to consider the amendments was not sprung. A large number of this body not being members of the legal profession, it seems right to present fully the legal aspect of this case. He insisted wherever the means of identification are complied with that is all the law requires. The requirement that the amendment be entered on the records in directory only and not imperative. But even if imperative it has been sufficiently complied with. It has been said that two of the resolutions passed by the last General Assembly are concurrent and not joint resolutions. The title says they are joint resolutions, but the style indicates they are concurrent. In the Brevier Reports an examination showed [he had not examined the journals] that the same course was taken with them as with bills. They were read three times and passed by a yea and nay vote. And so it would seem they can properly be construed as Joint resolutions. If they are concurrent resolutions they are not properly before us, but if from the mode of procedure they can be considered as joint resolutions they have been properly authenticated and they properly before us. If in our duty to submit these amendments to the people They are before us and we have no right to stifle the popular voice upon a mere technical plea. He tried to discuss the question as free as possible from all political bias, and was extremely glad to find his convictions on the legal aspect of the case agreed with his convictions as a man. It is presumed all will try to pass upon this question as free as possible from party affiliations. If gentlemen on the other side feel themselves bound by the dictates of party let them remember a course that shall stifle the voice of the people unless it is imperatively demanded by the Constitution, will read upon the persons and the party attempting it.
We are acting as a Court in this matter-a Court of exclusive jurisdiction-and a decision has heretofore been rendered in a precisely similar case. He bad gone over the record of proceedings in the Wabash and Erie Canal amendment question pretty fully and found that the amendment was referred to the Judiciary Committee, of which the present Senator from Jackson (Mr. Brown) was a member. The Judiciary Committee reported favorably on the amendment and the General Assembly adopted it with a knowledge on the part of every member just what the law was. But the Senator from Jackson said the other day it was adopted without considering this point. That could hardly be excusable, after Governor Baker had called attention, to it in his message to that body. But the record shows the point was considered in the Judiciary Committee, considered on the floor of the Senate and considered by the Senator from Jackson [Reread some remarks made by that Senator as printed in volume XIII. of the Brevier Legislative Reports, p. 52.] So Senator from Jackson would indicate that if the original resolutions were dragged from the Secretary, of State's office and brought here, that would satisfy the necessary conditions of identification. The question is which Senator from. Jackson shall we follow the Senator from Jackson in regard to the Wabash and Erie Canal or the Senator from Jackson in regard to these Constitutional amendments?
Mr. BROWN (interposing): The Senator from Jackson was a very young man when he was a Senator on the Wabash and Erie canal. [Laughter ] And another infirmity the Senator from Jackson then suffered was that he was outside of the Democratic camp, and just then was among you fellows. [Renewed laughter.]
Mr. FOULKE continued his remarks but a few moments longer. When he had concluded.
On motion by Mr. BROWN the Committee rose, reported progress and asked leave to sit again at 2 o'clock.
The report was concurred in by the Senate.
ALCOHOL AND ITS EFFECTS.
Mr. BELL presented a petition from the President and Secretary of the Women's Christian Temperance Union of Indiana, praying a hearing before the Senate be given Mary A. Hunt, of Boston, to show why this Legislature should enact laws requiring instruction in the nature of alcohol and its effects upon the human tissues, brain and character, given in all schools supported by public moneys, and on his motion time was granted immediately after the close of the discussion, probably 2 o'clock to-morrow afternoon. "
NEW PROPOSITIONS.
The following described bills were introduced, read the first time and severally referred to appropriate Committees, unless otherwise stated:
By Mr. MARVIN, by consent, [S. 167] defining the Twentieth Judicial Circuit.
By Mr. MACY [S. 168] to legalize the incorporation of Cannelton, Perry County, and each and every act of every officer of said town.
By Mr. GRAHAM [S. 169] to regulate the liability of principals and sureties upon new or other official bonds.
By Mr. RISTINE [S. 170] to create the Forty- fourth Judicial Circuit making Montgomery County a Circuit to itself.
By Mr. HENRY [S. 171] to give authority to Sheriffs to administer oaths and take affidavits, etc., in connection with the discharge of their duties.
And then came a recess till 2 o'clock.
AFTERNOON SESSION.
The LIEUTENANT GOVERNOR called the Senate to order. The hour having arrived for the Senate to resume its sitting as in a Committee of the Whole, he vacated the chair and requested the Chairman [Mr. Henry] to preside.
Mr. VOYLES had thought of expressing his views on the merits and demerits of the proposed amendment, but as the main point in this discussion has been made a legal one, he would detain the Senate but a short time in referring to the conclusions of the majority and minority reports under consideration. There is much unnecessary detail in the minority report. It will not be supposed anything is proved because much is said. The field of citing authorities has been well scanned. He regretted this legal obstacle stood in the way, because there is something always in a legal proposition that appeals so strongly to a lawyer that he can not resist its influence. But the legal obstacle stands in the way of a clear and fair presentation of the question concerning those amendments.
The Senator from Wayne [Mr. Foulke] took a perilous route in his argument, endeavoring to divide Constitutional essentials and Constitutional non-essentials, and then subdividing the essentials and non-essentials, making a distinction too fine for a man of limited comprehension. There can be no reason for this attempted distinction. It doesn't address itself to the common sense or common right to undertake to go page: 107[View Page 107] behind the plain letter of the Constitution, and where there has been an unpardonable omission on the part of the preceding General Assembly for a succeeding one to take it up and say; "It is a great party necessity or emergency; we are responsible, therefore we will take the risk. It is true the Constitution has not been complied with," but the necessities are very great, and we will goon as if the Constitution had been complied with." If the General Assembly two years ago desired to refer these amendments to this General Assembly, there must have been a proposition from same source by some member on the floor of the House or the Senate by which it would have been pro- posed to refer the amendments which had been agreed to to this General Assembly. But that was not done. It is admitted on all sides the was not done. So, as far as the records are concerned, we have none to go by-we have no record what- ever.
Mr. CAMPBELL said he was no lawyer, had no experience or ability to range the wide fields gleaned so fully and so ably by the lawyers from both sides; that he could only decide this question by the rule of practical common sense and by precedents, which he knew to exist in our own State and by the decisions to which others had called his attention. He was surprised to note the independence with which Senators had so often on this floor proclaimed themselves uninfluenced by others, and that they considered they need no advice and should in no way be governed by what others may do or have done. As for himself, he confessed that in his boyhood's days and first flush of manhood he had possibly felt some of that independence and strength which needed no advice and would brook none, but he had long since passed that age, and found that in all walks of life and in all that he had to do, he almost invariably was glad to go for advice to some precedent or some authority that he regarded as worthy to lean upon, and that he had never regarded it as reflecting upon his manhood to thus seek advice, and so in the validity of this question, in the opinion of Governor Baker, given after a careful examination, saying that he had no doubts as to the legality of the Wabash and Erie Canal amendments in the exact condition that these are, and added to this that the Assembly, after having their attention called to the the condition of the record, had concurred in the amendments with but one dissenting voice, and Governor Hendricks had approved them, declaring them duly passed and a part of the Constitution, without suggesting a question of doubt All found a precedent satisfactory to him, and gave him confidence to follow without hesitation or any feeling of having lost his dignity or his independence of manhood. He felt this all the more because the canal amendments were of vital importance, protecting in their scope millions of the State's money, and as there was no emergency calling for undue haste, he felt that the Governors and the Assembly setting the precedent had established a very formidable one, and one that he did not hesitate to follow. He occupied the floor about fifteen minutes, referring briefly to several points that had been made, and to the importance of the question under discussion.
Mr. BROWN gave a history of the state of affairs prior to the consideration of the Wabash and Erie Canal amendment, and conceded Governor Baker then took the ground that the portion of the Constitution requiring the amendments thereto entered upon the journals of the two Houses was advisory. He repeated what he said the other day: To at the question was not raised or considered in the Legislature twelve years ago. What had been read this morning by the Senator from Wayne (Mr. Foulke) from the Brevier Legislative Reports, Volume xiii, as remarks of his on that occasion is entirely true, and it is also true, as there recorded. ' that he then charged upon the Republican party dereliction of duty. He said then, and would make no appology for it now, that there was in existence a joint resolution which was authenticated by the signatures of the presiding officers of the preceding body. The decision of the Supreme Court referred to on the floor bad just been published, and he then relied upon that decision because there was no discussion and no controversy in the Legislature about that question, for everybody desired this amendment to go into the Constitution, to prevent the possibility of any Legislature assuming this debt created by the bills of 1846-47. When he said twelve years ago mat the signatures thereto authenticated thereto resolution, he made one of those grevious mistakes and grievous blunders that a boy of his age might have made, and he is not ashamed. When he has made a mistake, to stand before the Senate and the country and acknowledge it Mr. B. then proceeded to discuss the question before the Committee, declaring it to be the meaning of the Constitution that every word, line and syllable of every proposed amendment thereto shall be placed upon the journals of each House of the General Assembly, referring such amendments o the succeeding one; and until that is done no action can be taken by the succeeding General Assembly.
Mr. SPANN replied to Mr. Brown's speech, insisting there is no Senator on that side who can answer the legal arguments made on this question by the Senator from Henry [Mr. Bundy], and the Senator from Wayne [Mr. Foulke] This question has been made a political one on this floor by the Senator from Tippecanoe [Mr. Johnson], who said the Republican party forced this measure in politics. The question of prohibition never would have been before the people in the last campaign had it not beau for the vote of the Senator from Jackson and five other Democrats on this floor. He continued for some time, recounting the course of the Democratic party in the last canvass, and concluded by asserting his strong belief as a lawyer and Senator, that the only question now before the Senate is one of jurisdiction, and being a jurisdictional question as far as the proposed amendments are concerned, it is a Court of the last resort. When Courts of Record are determining a question of jurisdiction upon the record the Court will always give the benefit of the doubt to the record. He took the equitable side of this question, and equity takes him him over on the side of the people. He never will allow his vote on a technical question to override the will of the people of Indiana. When he had concluded-
On motion by Mr. BELL the Committee rose, reported progress and asked leave to sit again to-morrow at 10:30 o'clock.
The report was concurred in by the Senate.
And then the Senate adjourned.
