HOUSE OF REPRESENTATIVES.
THURSDAY, Jan. 25. 1883-10 a. m.The session was opened with prayer by Elder David Walk, pastor of the Central Christian Church of this city.
The SPEAKER directed a call of the House, which, being taken, discovered ninety-five members as present and answering to their names.
Mr. SHOCKNEY made an ineffective motion to dispense with the reading of the Clerk's minutes of yesterday's proceedings.
RELOCATION OF COUNTY SEATS.
The SPEAKER announced the first thing in order to be the consideration of the subject pending at the adjournment yesterday, being Mr. Brazelton's bill [H. R. 91] to provide for the relocation of County seats, the question being on the motion to recommit it to the Committee on County and Township Business.
page: 108[View Page 108]Mr. BRAZELTON said: It was stated or insinuated by the gentleman from Marion (Mr. Wilson) on yesterday, that the mover of this bill appeared before the Committee when the same was considered. I confess that I did, as I had a right to do, and every member of this Committee will bear me out in saying that I did not in any manner urgently insist or antagonize their action in the least. I take it that this motion to recommit is simply a dilatory measure only. The gentleman from Marion said that the bill repealed certain law, and I answered that the bill does, but I understand that that law was enacted for the County which I have the honor to represent. As the law now stands, if every man, woman and child in the County desired to change the location of the County seat, they could not do it. Under the present provisions it would be removed three miles out into the woods. He continued at some length in opposition to the motion to recommit.
Mr. ADAMS stated that he would not have said anything on this question had h not been called out by the remarks made by certain members yesterday while discussing the subject. He thought that if it was a fair and honest bill gentlemen ought not to object to its going back to the Committee, so that persons might appear before the Committee who represented the opposition to the bill. He said the bill was introduced on the 10th day of January, and on the 15th of January it was reported back from the Committee. I am told by gentlemen that before they knew that the bill was before the House it had come back from the Committee. I say that it is but fair and equitable that these men should be allowed to go before this Committee and present their side of the question.
Mr. MOODY desired to know who should decide a question of relocation if 65 per cent. of the inhabitants of a County can not. This Committee has had the bill under consideration once, and it had better lie on the table than be recommitted. The House ought to act upon it now.
Mr. JEWETT spoke in opposition to the motion to recommit.
Mr. GORDON spoke in opposition to the bill and favored the motion to recommit.
Mr. HEFFREN favored his motion to recommit. There is no provision in the bill to contest a selection should one be carried by fraud.
Mr. WILSON also favored the motion to recommit.
Mr. WILLIAMS, of Knox, spoke in favor of recommittal and against the passage of the bill.
The motion to recommit was rejected by yeas, [?]8; nays, 61.
The bill was ordered engrossed for the third reading.
Then came a recess for dinner.
AFTERNOON SESSION.
Mr. JEWETT moved that the order of the day be now taken up, the same being the several reports from the Judiciary Committee as to whether or not the Constitutional Amendments are properly pending before the present General Assembly, and that the reports be referred to a Committee of the Whole House.
It was so ordered and accordingly the House resolved itself into a Committee of the Whole, Mr. Jewett being called to the chair.
The several reports were then read.
Mr. McMULLEN moved that the Committee of the Whole House concur in the majority report signed by Messrs. Williams, of Knox, Heffren, Wilson of Marion, and McMullen.
Mr. PATTEN moved to amend by substituting the minority report signed by Messrs. Jewett and Patten.
Mr. FRAZER moved an amendment to the amendment by substituting the report signed by Messrs. Adams, Stewart, Wiley, Wright and Frazer.
Mr. PATTEN said: I do not feel physically able to attempt to discuss this question to-day. I can neither do myself nor the question justice. Therefore, I will have to be excused from attempting any argument of this question. I felt that I am in the right on this matter, and I suppose that the gentlemen on the other side of this question fell that they likewise are in the right. All that I can do is to present this matter for discussion. I have acted under the best dictation of my conscience, and if I am wrong my report ought not to prevail, and if I am right then it ought to prevail. I have tried to be governed by the proper mind and feeling in this matter. I believe from what little I have examined into the question that the Constitution has been complied with in every step. I believe this and I have so entered my conclusion in our report. To decide whether or not these amendments have been properly referred is not in the province of any Committee. That is a question for this House exclusively. I am in favor of submitting this to the House and taking a fair and square vote upon it. Let the members of this House say whether or not these amendments are pending, and there is no Court in the world to repeal their decision.
Mr. FRAZER: Of the numerous questions which suggest themselves in the investigation of this question, nearly all can be readily settled by argument and without debate. It will be conceded by all-
- That Senate Joint Resolutions Nos. 6 and 7 and House Joint Resolutions Nos. 7 and 8 were properly proposed in the respective branches of the Fifty-second General Assembly. (Constitution, Article 16, Section 1.)
- That these resolutions were entered upon the journals of each House in the same manner in which bills are entered upon the journals-i.e., by copying the number and title thereof in full, in accordance with Article 4, Section 12, of the Constitution.
- That upon their passage each of these resolutions received the votes and were agreed to by a majority of the members elected to each of the two Houses of the Fifty-second General Assembly. (Art. 16, Sec. 1, Constitution)
- That the yeas and nays upon each of these resolutions were entered in the journals of the Senate and House, in accordance with Art. 16, Sec. 1 of the Constitution.
- That Senate Joint Resolutions 6 and 7 and House Joint Resolutions 7 and 8 were enrolled and authenticated by the presiding officers of the two Houses of the last General Assembly, precisely as required by Art. 4, Sec. 25 of the Constitution.
- That these joint resolutions were properly deposited in the office of the Secretary of State, as provided by Sec. 5,582, Revised Statutes of 1881.
- That the enrolled and authenticated copies in the Secretary's office are exact copies of the original resolutions as filed in the office of the State Librarian, in accordance with Sec. 4,982, Revised Statutes of 1881.
- That these resolutions were not entered at full length upon the journals of either House.
- That they were not in words referred to this General Assembly. The last two admissions in the agreed statement of facts then contain the question for consideration. It will probably be agreed that the decision of this General Assembly upon these questions is final, and that if the resolutions are agreed to and submitted to the people and by them ratified, we can't well inquire into the subject now under consideration.
Mr. F. continued his argument at some length, reading from the Constitution and citing judicial authorities.
Mr. HEFFREN said:
Mr. SPEAKER-In proceeding to discuss the question as to whether the Constitutional amendment, known as the prohibition amendment, is properly before this General Assembly, or I perhaps should say whether any such amendment page: 109[View Page 109] was properly passed by the Fifty-second General Assembly in accordance with the forms and directions of the Constitution, I shall not do so as a partisan or as an attorney. I, with the other members of this House, each took an oath to support the Constitution of Indiana, and I propose to do so to the best of my knowledge. This question may, in a certain sense, be and is partisan, but I shall direct my attention to the legal phase of this subject in this discussion. We are now, I believe, sitting as judges under the solemn sanction of an oath, and ought and I believe will decide as judges upon this question of law, for it is purely one of law and nothing else. My first impression was when I read that the proposed amendment had not been entered upon the journal of either this House or Senate, that it was perhaps a trick. A few days since I, in company with another member of this House, gave the subject the best examination we could, and I confers I became satisfied ^hat it was no trick.
I will first call the attention of the House to Section 12, of Article 4, of the Constitution of Indiana. It is as follows:
"Section 12. Each House shall keep a journal of its proceedings, and publish the same. The yeas and nays, on any question, shall, at the request of any two members, be entered together with the number of the members demanding the same, on the journal; Provided, That on motion to adjourn, it shall require one-tenth or the members present to order the yeas and nays."
THUS WE SEE
that upon resolutions, motions, references and all other matters that come before this House, although required to keep a journal, the yeas and nays were not entered thereon, together with the names of members, "unless two members demand it. We find by Section 18, Article 4, of our Constitution the following:
"Section 18. Every bill shall be read by sections on three several days in each House, unless, in case of emergency two-thirds of the House where such bill may be depending shall; by a vote of yeas and nays, deem it expedient to dispense with this rule; but the reading of the bill by sections, on its final passage, shall in no case be dispensed with, and the vote on the passage of every bill and joint resolution shall betaken by yeas and nays."
Neither this section nor the one first quoted requires the yeas and nays to be "entered" on the journal except demanded by two members. A vote on the passage of a bill by yeas and nays need not necessarily be placed upon the journal. There is nothing mandatory or directory requiring their entry upon the journal except at the "demand of two members," when they shall be so entered. It need not be done, so far as the Constitution is concerned, at all upon the passage of any bill or other matter. You may ask why. By the common law the presiding officer is presumed to know several things in connection with the business pertaining to the House over which he presides He is a sworn officer, and the law sup poses that every officer will do his duty. It is therefore presumed that he would allow no business transacted unless a quorum was present to act. It is presumed that he knows whether a resolution or motion has been adopted or rejected. It is also presumed that
UPON THE THIRD READING OF A BILL
which puts it on its passage, that in this House fifty-one members have voted for it. Yet the names of members to verify this fact may not be entered upon the journal unless demanded by two members." It is presumed that the presiding officer will not sign a bill as having passed, unless all the requirements of the Constitution have been complied with. When he signs a bill the law presumes all the necessary and proper steps in the House over which he presides to have been legally taken.
But suppose that in an action at law between John Doe and Richard Roe[?] one sets up that the law under which the plaintiff claims was not properly passed. To what then do we resort? This is the troublesome question, with Judges and lawyers. It is one, however, in which the authorities are largely on one side. Before proceeding to discuss this question let us see what the Constitution provides in regard to its own amendment. It is contained in a single article of two sections. It reads as follows:
ARTICLE XVI.
AMENDMENTS
Section 1. Any amendment or amendments to this Constitution may be proposed in either branch of the General Assembly; and 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; and, if in the General Assembly so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all members elected to each House, then it shall be the duty of the General Assembly to submit such amendment or amendments to the electors of the State, and if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of the Constitution.
Sec. 2. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately; and while such an amendment or amendments which shall have been agreed upon by one General Assembly shall be awaiting the action of a succeding General Assembly, or of the electors, no additional amendment or amendments shall be proposed.
No one will contend but that the first section is mandatory. It is a command to the General Assembly: "And 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 (a direct command), 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." Both the House and Senate journals are mere blanks, so far as the amendments proposed is concerned, nor is there any reference of such proposed amendment to the next General Assembly. But this immediately raises the question of allowing the journals of each House to be used as evidence.
THE CONSTITUTION SAYS
each House shall keep a journal, etc. They are kept by sworn officers and are presumed to do their duty. They are public record's attested by the signatures of the proper presiding officer, and I believe are competent evidence, a;id should be searched to find out the truth, Suppose an act is properly enrolled, duly signed, by the Speaker of this House and the President of the Senate and approved by the Governor, and filed, as the law directs, in the office of the Secretary of State, we all would say that it was the law of the land. But, suppose when the journal of this House came to be examined, only fifty members voted for it, as appears by the journal, would anyone say that the bill had become a law? Most assuredly not.
In the recent Iowa case of Kochler and Lang vs. Lee, the Supreme Court of Iowa, used the following language upon the proposed amendment to the Constitution of that State, and which is identical with our own:
"The question before us is to the validity of a Constitutional amendment, and we think there page: 110[View Page 110] is a material distinction between the rules which must obtain in such case and when a statute is assailed as not having been Constitutionally enacted. The Constitution provides for its own amendment, and the manner in which this may be done is prescribed with particularity, and yet its provisions are simple and readily understood. An amendment may be 'proposed in either House of the General Assembly, and, if the same shall be agreed to by a majority of the members elected to each of the two Houses, the proposed amendment shall be entered on the journals, with the yeas and nays taken thereon.'"
They quote from Cooler's Constitutional Limitations as follows:
"In all that we have said on this subject we have assumed the Constitutional provisions to be mandatory. The fact Is this: That whatever Constitutional provision can be looked upon as directory merely is very likely to be treated by the Legislature as if it is devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems with many persons to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded. If it is not so we have abundant reason and good authority for saying. If, therefore, a Constitutional provision is to be in force at all it must be treated as mandatory, and if the Legislature habitually disregards it, it seems to us that there is all the more urgent necessity that the Courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by the habitual disregard by any department of the Government of a plain requirement of that instrument from which it deliver authority, which ought, therefore, to be scrupulously observed and obeyed " [Cooley's Constitutional Limitations, 2 ed. 140 ]
After referring to the above, the Court, which is said to be
A VERY ABLE ONE,
and to be all of one political party, and that one not of my own kind, they proceed as follows:
"We deem it sufficient to say that if there is any provision of the Constitution which should be disregarded as mandatory it is not where the Constitution provides for its own amendment otherwise than by means of a Convention called for that purpose. The powers of a Convention are of course, limited. The members thereof are the representatives of the people, called together for that purpose. The object of the provision can not be doubted or misunderstood. It is to preserve in the manner indicated the identical amendment proposed and in an authentic form, which, under the Constitution, is to come from the succeeding General Assembly. No better mode court have been adopted, when it is considered that, to be effective, the proposed amend men t must be agreed to by The succeeding General Assembly. This thought; is much strengthened by the consideration that the proposed amendment is only required to be entered on the journals of th first General Assembly which acts thereon. This distinction, to our minds, is significant, and enhances the importance of the Constitutional injunction that, the proposed amendment shall be entered on the journals of both Houses of the General Assembly which first agrees thereto.
PRESERVATION OF PROPOSED AMENDMENTS.
"It is immaterial, however, whether the Constitution provides the best method for the preservation and authenticity of proposed amendments or not, for the Constitutional mode must prevail, even if it be conceded some other would have been better.
"It may be suggested that to enter or entering on the journal does not necessarily mean spreading the same at length thereon. This will be conceded, but that it may so mean must, we think, be conceded. [See Webster's Dictionary.] Various instances where the words "to enter or entered" occur in the statutes or the Constitution may no doubt be cited where they do not mean spread at length. But this is of much insignificance, for the object to be attained must be considered in determining the meaning of the word entered as used in the Constitution. The evident intention of the Constitution is that the proposed amendment shall be entered at length on the journal, or at least be so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the yeas and says can be as readily dispersed with as entering the resolution, and yet this is the Constitutional mode of ascertaining whether a majority of members elected to each House agreed to the amendment. [Cooley's Constitutional Limitations, 2 ed., 141.1
"When the object intended to be accomplished is considered, we think there is no doubt that it is the design and intent of the Constitution that a proposed amendment there should be so entered on the journals that it can be known by an examination of the journals precisely what it is that has been agreed on by each House of the General Assembly which first acts thereon to the end that the succeeding General Assembly may certainly know what its predecessor did. It seems to us that a simple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the Constitution, and the thought that this must be so is much strengthened when regard is had to all the provisions of the Constitution. That instrument provides that upon the final passage of the bill the yeas and nays must be taken and the same entered upon the journal. This necessitates the entering on the journal of the title page or substance of the bill to be voted n. This being so it no more than this was intended in relation to a Constitutional amendment, the provision as to entering on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the Constitution does require that a proposed amendment thereto 'shall be entered' on the journals 'with the yeas and nays.' This must mean that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn. Amendments were proposed to the Constitution in the Eleventh General Assembly, some of which were agreed to, but all were spread at length on the journals. The amendment afterward ratified by the electors striking out the word 'white' where it occurred in the Constitution was among the amendments proposed at that session. These amendments were spread at length upon the journals of both Houses. Here we have a legislative construction of the Constitution which should not and can not be ignored.
"It will be observed that the Constitution does not provide in what manner the amendment shall be proposed. Whether it shall be done by a bill or joint resolution seems to have been left to the discretion of the General Assembly to determine; but, in whatever way proposed, when agreed to this provided it shall be entered on the journal "
It does seem to me that this decision is decisive of the case, and that
THE SUPPOSED PROPOSED CONSTITUTIONAL MENDAMENTS
are not now nor can not be before this General Assembly. Some may say that Section 25 of Article 4, which reads as follows:
"Sec. 25. A majority of all the members elected to each House shall be necessary to pass every bill or joint resolution, and all bills and all joint resolutions so passed shall be signed by the presiding officers of the respective Houses."
Whether this supposed proposed amendment was by joint resolution, by concurrent resolution or by a resolution or motion, could page: 111[View Page 111] make no difference. The amendment must "be entered, set out at full length, re-recorded upon the journal with the yeas and nays thereon, if a majority of each House vote for it, and then the proposed amendment is "referred" to the next General Assembly elected at the next general election. The journals must show such a reference, or else the whole matter becomes null and void and of no effect in law. This was not done by the last General Assembly nor by either House thereof. There is no authority given in Article 16 for any entering or signing by the Speaker of the House, or President of the Senate, or approval by the Governor, and filing in the office of Secretary of State. It must be "entered upon the journals of each House, together with the yeas and nays thereon, and then referred to the next General Assembly" for action. The next General Assembly looks nowhere but to the journals for evidence of the acts of its predecessors in this case
THE CONSTITUTION MAKES NO OTHER PLACE A DEPOSITORY
for the proposed amendment. On this point, the Supreme Court of Iowa says:
"Now suppose a member of either House had, while it was in session, really proposed the amendment in question in the form it was agreed to by the electors and it had been entered at length on the journal and agreed to, and the amendment so entered bad been correctly copied and properly transmitted to the other House, entered at length on its journal, and agreed to and published, as provided by the Constitution and law, and the subsequent General Assembly had agreed thereto as required by the Constitution, and the same submitted to the electors, as was done, could it be said, it was not Constitutionally adopted because it was not enrolled, signed by the presiding officers of the two Houses, and approved by the Governor? If it can be so said, why or for what reason? Suppose the Governor had vetoed the joint resolution and returned it with his objections to the House in which it originated, and, upon being put on its passage, it had failed to receive a two-thirds majority In one or both Houses as provided in Article 3, Section 16, of the Constitution would this have been fatal to the amendment? No one will so contend. It was not essential, therefore, that the Governor should have approved the joint resolution; nor is there a statute which by implication requires that a Joint Resolution proposing to amend the Constitution shall be signed by the presiding officers of the two Houses. Such a signing therefore is not essential, and may be dispensed with. There is no provision of the Constitution or statute which requires it shall be enrolled. But there is a Constitutional injunction to say the least that it shall be entered on the journals. In a Constitutional sense the journals constitute and are the primary evidence, and the enrolling and signing, as above stated, at best are only secondary evidence, which may and can only be considered when the primary evidence has been lost or destroyed."
Is not this conclusive of the question? and can any lawyer who sits here as a Judge come to any other conclusion ?
A few words as to the decision of our own Supreme Court in Evans vs. Brown. 30 Indiana page. That case was in all respects different from this. That question was as to the validity of an act passed by the Legislature. It was duly signed by the Speaker of the House, President of the Senate, and approved by the Governor, and duly filed in the office of the Secretary of State. The journal of the House showed a quorum present at the last roll-call before the passage of the act. Forty-two members, I believe, resigned in the afternoon and handed their resignations to Governor Baker. He did not notify the House unto next day f their resignation; in the meantime the bill had been passed. There was nothing to show that a quorum was not present when the bill passed, and the presumption of law was in favor of its legality. The Court presumed the officers performed their duty irrespective of the Constitution. But the
WEIGHT OF AUTHORITY
is against that decision. The dicta of the learned Judge who rendered the opinion and for whose sound and discriminating judgment and accurate understaning of the law I have long entertained the highest respect, is dangerous and revolutionary.
I have no doubt, was he to re-examine the case, much that is mere dicta, would be omitted.
No section of the Constitution, no paragraph of the same, requires a bill to be "entered on the journals of each House together with the yeas and nays thereon " before it shall become a law, and as I have said, the yeas and nays are not commanded to be entered upon the journals, only as demanded by two members, save and except where the instrument provides for its own amendment. The distinction is marked plain between the two.
I will here cite a few authorities bearing upon the question of the journals being used as evidence, and I will again quote fully from the Iowa decision to which I have already alluded:
"A brief examination of some of the authorities may, however, be of advantage when we come to consider the beaming of the provisions of the Constitution and the statutes of this State on the question under consideration. The leading and better reasoned of the cases which hold the enrolled bill was Constitutionally passed by the General Assmebly, or the contents of the bill, are: The People vs. Devlin, 33 N. Y.; Sherman vs. Story, 30 Cal., 254; Pabord vs. Young, 32 N.J., 29; Pacific Railroad Company vs. the Governor, 23 Mo., 353; Evans, Auditor of State, vs. Brown, 30 Ind., 514.
"These cases are based on substantially the same reasons, which are stated in the New York case as follows: 'The journals are not made evidence by the Constitution; they are not made so by the statutes; they were never made so at common law.'
"In the New Jersey case it is said: 'They [the journals] are not required to be tested in any way whatever. There is required not a single guarantee as to their accuracy or truth. No one need vouch for them, and it is not enjoined that they should be either approved, copied or recorded.'"
"In addition to the foregoing counsel for the appellant have cited the State of Nevada vs. Swift, 10 Nev., 176; Eld. vs. Gorham 20 Conn., 7; Green vs. Weller, 32 Miss., 650; Division of Howard County, 15 Kan. 394; Annapolis vs. Howard, 32 Md., 471; Clara vs. The State, 5 Iowa, 509; and Duncombe vs. Prindle, 12 lb. 1.
"All that was determined in relation to the question under consideration in the two last named cases was that, where there is a conflict between the printed act or statute and the enrolled act filed in the office of the Secretary of State, the latter is the ultimate proof of the true expression of the legislative will. Whether the journals were competent evidence or their effect was considered in neither case. On the other hand, omitting reference to the earlier New York, Missouri and Indiana cases, there may be cited as sustaining the rule laid down by Cooley the following: Spangler vs. Jacoby, 14 111., 297; The People vs. Stame, 35 ib., 121; Miller vs Martin, 70 ib., 659: Burr vs. Ross, 19 Ark., 250; The State vs. Poatt, 2 page: 112[View Page 112] So. Car., N. S., 150; James vs. Hutchinson, 43 Ala., 721; Moody vs. State, 48 ib., 115; Smithe vs. Garth, 33 Ark., 19; Board of Supervisors vs. Henan, 2 Minn., 3[?]0; Southwark Bank vs. Commonwealth, 26 Pa. St., 446; The Opinion of the Justices, 35 N. H., 579; also 52 N. H , 622; The People vs. Mahoney, 13 Mich., 481; Berry vs. Railroad Company, 41 Ind., 446; Ostoin vs. Staley, 5 W. Va., 486 "
I have not time nor shall I weary the patience of this House by even attempting an abstract of all these cases. I wish to quote
JUDGE COOLY AGAIN,
because he is a text writer of great authority and for years Chief Justice, I believe, of the Supreme Court of Michigan. He says:
"But courts tread on very dangerous ground when they venture to apply rules which distinguish directory and mandatory statutes to the provisions of the Constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded as limitations upon the power to be exercised. It is the province of an instrument of this solid and permanent character to establish these fundamental maxims and fix those unvarying rules by which all Departments of the Government must at all times shape their conduct; and if it descences to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a Constitution provisions which the people, in adopting it, have no regard as of high importance and worthy to be embraced in an instrument which for a time, at least, is to control alike the Government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegates as by the sovereign people themselves. If directions are given respecting the times and modes of proceeding in which such a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end, especially when, as has already been said, it is but fair to presume that the people in their Constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the power delegated, and with a view to leave as little as possible to implication."
Here I might close my argument and submit this case to
THE CANDID JUDGMENT
of this House, but I will refer to few of the many cases with which our law reports abound.
In People vs. Sterne, 35 Ill., 12, the validity of an act was called in question upon the grounds that the journals were wholly silent in regard to the bill; the law was held to be a nullity. The Constitution required the proceedings to be entered on the journals, and it had not been done.
In Collier vs. Friesson, 24 Alabama, 108, Goldthwaite, Judge, in speaking for the Court said: "We entertain no doubt that to change the Constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and omission of any one is fatal to the amendment. The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed before a change can be effected, but to what purpose are these acts required, or their regulations enjoined, if the Legislature or any other department oft the Government can dispense with them? To do so would violate the instrument which they are sworn to support, and every principle of public law and sound Constitutional policy requires hte Court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law."
This body must judge for itself whether there are any amendments pro nosed to the organic law "awaiting its action," and must therefore resort to that organic law to see if its provisions have been obeyed in preparing the proposed amendments. If they have not been obeyed, the whole is null and void. The journals must show that the same amendment was proposed and voted on in each House of the General Assembly, and that said proposed amendment received
A MAJORITY OF ALL THE MEMBERS ELECTED
in each House, and that the same identical proposed amendment passed each House by a majority of all, and that the same, together with the yeas and nays, were recorded upon the journals of both Houses find that they were referred to this General Assembly.
Will some member take the House journal of 1881 and show me the supposed proposed amendment? Will he show it to me on the Senate journal? Will he show me where the amendment proposed, together with the yeas and nays thereon, was referred to this General Assembly? It can not be done. They are not there.
The words "shall be entered" is a direct and positive command, and is a mandatory order that can not be evaded. I care not what other legislators or other Legislatures have done, this question was not then raised; this is its first appearance, and we must deal with it as the supreme law commands and in no other way. One may say that it is directory. If so, whom does it direct? It directs us who have sworn before our God to support and obey it. Its direction is a command to our hearts, our consciences and to our judgments. We dare not disobey its positive instructions or its positive directions.
I have spoken of this in a legal point of view. It, Is nor for me to discuss in this argument the question of prohibition. Other times will do for that. I appeal to every member on this floor to lay aside partisan feeling and judge of this matter as men who sit upon the Bench deciding questions of law. Let not questions of expediency or of policy creep in to distract your mind from the legal question. Rise above party utterance and party bigotry, above party policy and party trickery, and solve this problem as becomes honest legislators and we shall do but our duty.
POPULAR CLAMOR
will beat in vain against our coats of mail if we but judge aright. But whatever we do let us preserve untarnished that Constitution we have so solemnly promised to obey and support. Fanaticism may for a time raise a clamor about our ears, but it will howl in vain. The people of Indiana, or a large majority at least, are not bigots. Let us stand as brave men with strong arms and stout hearts and breast the storm that would shiver our Constitution. Let us never forget its teachings nor its lessons. Let us be true and mindful of everything it contains, and follow its directions in all things upon which it speaks. Let us but do our duty and trust to God for the consequences.
Mr. Speaker, I have expressed my views upon this great question, great in its inception, great in its growth and great at its maturity. It is a question which arouses passion, incites envy, beget jealousies and rivalries, distracts neighborhoods and communities. It is a Pandora's box of evils, and even were it a thousand fold worse than it is, and the requirements of the Constitution had been followed, I should have page: 113[View Page 113] hesitated before voting against a proper submission of it at a general election. As it is I do not consider any question before us on any amendment, said to be "referred" to this General Assembly by the last one, and so shall cast my vote I am now, as I always have been, opposed to prohibition, because I believe the principle wrong and unjust.
Mr. HUSTON said: We have had this matter discussed from a legal standpoint, but I propose to discuss it from the standpoint of a citizen of Indiana. It is not for lawyers alone to decide whether or not this question is properly entered, but the people of the State will take this matter in their own hands and decide. Why was this amendment introduced? It was because 46,000 voters of the State requested it that it was introduced. It seems to me, Mr. Chairman, that this matter has been fully discussed. The press throughout the State, for the last three or four weeks, has been teeming with the considerition of these resolutions. I do not suppose that any argument could change one vote. I think that every member has decided how he will vote. I say, however, that this is not a party question, and that it was not introduced as a party question.
On motion, the Committee rose, reported progress and asked leave to sit again.
The report was concurred in by the House and then the House adjourned.
