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Brevier Legislative Reports, Volume XXI, 1883, 311 pp.


WEDNESDAY, Feb. 7,1883-10 a. m

Principal Clerk Edwins called the House to order at 10 o'clock, stating it necessary for the House to select a Speaker pro tem. to act in the absence of Mr. Speaker Bynum, and called for nominations.

Mr. TULEY nominated the Representative from Washington County (Hon. Horace Heffren.)

There being no other nominations the Clerk put the question to a vote of the House, and declared Mr. Heffren was unanimously elected Speaker pro tem.

And thereupon-

The SPEAKER pro tem. took the chair and announced prayer by Rev. G. S. Steigerwald, of St. John's Cathedral.

On motion by Mr. SCHLOSS the reading of the Clerk's minutes of yesterday's proceedings was dispensed with.


The following bills were introduced, read the first time, and severally passed to the second reading:

By Mr. SHOCKNEY [H. R. 364] to require page: 170[View Page 170] County Auditors to give bonds in the sum of $30,000, and repealing all laws in conflict therewith.

By Mr. SHOCKNEY [H. R. 365] to amend Sections 6 and 7 of an act concerning proceedings in criminal cases.

By Mr. MERING [H. R 366] to abolish the Maple Lawn Cemetery of Richmond[to prohibit the interment of any bodies therein to provide; tor the removal of bodies now buried therein to a new cemetery where ground can be obtained free of charge for such re-interment; for the sale of the cemetery, the proceeds to be devoted to the purchase and improvement of the new one. The town is built up all around and it is expected to sell the ground for a city park ]


The following described bills were returned from Committees with a recommendation that they be indefinitely postponed; which reports ' were severally concurred in, unless otherwise stated:

Mr. McMULLEN from the Committee on Judiciary, reported back Mr. Mellet's bill [H. R. 263] to amend Sections 64, 75, 78, 89. 95 and 106 of an act concerning proceedings in criminal cases.

Mr. WILEY moved to reconsider the vote by which House bill 263 was indefinitely postponed.

On motion by Mr. McMULLEN the motion to reconsider was laid on the table.


Mr. McMULLEN, for the. majority of the Committee on Judiciary, reported to the House the Neal & Co. claim with the recommendation that the bill in relation to said claim and accompanying the report pass. Mr. McMullen explained that the bill reported empowered the claimants to file their complaint against the provisional Board of Commissioners for the Indiana Hospital for the Insane in the Superior Court of Marion County, and provides further for an appeal, and especially provides that the Court shall not be allowed to render any judgment against the State, but that the Hading of the Court under the bill when made shall be referred to this or the next General Assembly, and nothing paid there- on until such Assembly indorses and allows said claim.

Mr. PATTEN presented a minority report from the same Committee, recommending that the bill be indefinitely postponed.

Mr. WILES moved the adoption of the minority report.

Mr. STEWART said: "It seems to me that the majority report ought to prevail. Here are men 'who claim that they entered into a contract with the State to do certain work, and these men claim that they did the heavy part of the work-the part on which they could not realize any profit and then the light work, and that on which they expected to realize the profit for the entire work was refused them because of the modifications made by the architect. Now these men want a trill passed that will allow them to go into Court and present their claim against the State. This bill does not grant their claim; It simply gives thee men an opportunity to go into Court and let the Court say whether or not there is anything due these men from the State; and if, after a fair 'hearing, the Court decides that there is any money coming to the men, then the next Legislature will be called upon to grant or refuse this claim. If these men have a just claim let the 'Court so say, and if they have no just claim that will be the end of it.

Mr. ADAMS stated that the minority report was made as they claimed upon the provisions of the contract; that the provisions of the contract al- lowed the modification which the architect made, and this the gentlemen knew when they accepted this contract. Now these gentlemen should have looked to this matter before accepting this contract, provided they were capable of making such contract, find he believed they were. This minority report should be concurred in, or else we should make provision for a guardian for these gentlemen.

Mr. GIBSON was of the opinion that these gentlemen desired to get a judicial construction on this claim, and then come before the Legislature and say, Is this Legislature going back on the claims that the Court has decided legal?

Mr. WILEY said: Mr. Speaker. I am heartily in favor of concurring in the minority report. As a member of the Judiciary Committee I signed the report, and believing now as I did the a that this Legislature should do nothing that will permit any favored class or company of men to bring an I action against the State for alleged damage upon breach of contract, I am opposed to the bill. I have two reasons for my opposition.

1. Under Section 24 of Article 4 of the Constitution, just referred to by me gentleman from dark, the bill, if passed, would, in my opinion, be clearly unconstitutional, for the Constitution plainly says: "But no special act authorizing such suit (suit against the State) to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." It is she intent of this bill to permit Messrs. Neal, Dodd & Co. to bring such action against the State, and hence for that reason I am opposed to it.

2. The alleged claim of Messrs. Neal, Dodd & Co. is based upon a statement of facts, which if true and the bill should pass, the claim could not be enforced a law.

It could not be enforced because it is based upon what our Courts have been pleased to denominate "speculative damages," and has been frequently held by our Supreme Court that this class of damages can not be enforced.

In short, the bill seeks to make the possible profits of the contract of Neal, Dodd & Go. with the State a measure of damages, when that contract was broken, by virtue of its own provisions, and such profits can not be the measure of damages, for it is contrary to public policy and ban been so held.

Mr. JEWETT stated that the objections urged by members on the floor against this bill were considered by the Committee, and was the reason why the gentlemen had submitted the minority report. He did not think that the House should attempt to decide this Constitutional question. These gentlemen do not ask the Legislature to pay them any special amount of money.

Mr. WILLIAMS, of Knox, (interrupting) asked Mr. Jewett if he knew the amount of these claims.

Mr. JEWETT did not know, and did not think the matter of paying an honest claim should depend upon the amount of the claim.

Mr. GORDON thought it was but fair to suppose that this Provisional Board acted fair about this matter, and it is but fair to believe that this Board had better knowledge of the facts than any Board or any Court that might be called upon to settle the fact of his claim.

Mr. ANTRIM said because differences arise between parties leading to litigation it does not follow that either party is dishonest. Because those contractors claim that the State owes them money it does not follow that they are dishonest, nor does it follow because these claims are not paid that the Provisional Board is dishonest. Now, this bill does not propose to pay the contractors one cent. it simply proposes to allow them an opportunity to prove their claim, and if they establish their claim the next General Assembly max or may not make appropriations for the payment of said claims. I see nothing unfair in this. It is just and right, gentlemen, being that if the contractors establish their claim the State will have to pay the cost of the suit. This the State should do if It owes these men and compels them to go into Court to establish their claim.

Mr. SHIVELEY thought that the claims should have been referred to the Committee on Claims page: 171[View Page 171]and allowed this Committee to have made a thorough investigation.

Mr. WILLIA.M8, of Knox, said: Mr. Speaker, I signed this minority report, and I am glad of it. The gentlemen who favor this majority report and advocate the payment of the Neal claim have talked a great deal about it, and the lobby is a most persistent and impudent one. In my five minutes I can not review this subject fully, but I wish to call the attention of the House to a few facts which the greedy advocates of this grab have failed to give us, but which are, nevertheless, facts that can not be disputed. In the first place this bill is in direct conflict with Section 24, Article 4. of the State Constitution, which rightly and expressly prohibits the General Assembly from passing any special act authorial suits to be brought against the State. The bill under consideration is a special bill for the benefit of Neal & Co. The fact is that Neal & Co. have been fully paid in cash for every dollar's worth of labor and materials furnished by them to the State. This claim, enormous in amount and extraordinary in character, is purely and entirely for speculative damages. It is not claimed that Neal & Co. lost any money on their contract with the State. It is not claimed that the State in any way violated the letter or spirit of the written contract made with Neal & Co. It is true that desiring the progress of the work some modifications were, with the knowledge and consent of Neal & Co., made in the contract, but, Mr. Speaker, in the original contract the State reserved the right to modify it, Neal & Co. assented to the changes and completed the work and got every dollar due them. It simmers down to this, that this is a claim for additional profits which they might have made upon this work if they had been working under a more liberal contract. They made money, but are sorry they did not make more. The gentleman from Kosciusko says Neal & Co. ought to have a day in Court ought to be provided with a tribunal before whom they can present their claims. I say to him that the law has provided a Court for them. The Provisional Board is the tribunal where this now stale claim has had its day in Court. This Board had the power to pay this claim, it was their duly to pay it if it was equitable and just. The Board did examine this claim years ego and decided that it was without merit and refused to pay it. I hold in my hand an able opinion by Judge Holman In the case of the State ex rel. John Martin vs. Provisional Board, etc., in which the Court holds that this Board has full and excessive jurisdiction. The opinion says: "It must rest with tile Board, however, to say whether or not they will issue the warrant, and whether or not he is a bona fide creditor of the State, and if so to what extent, in these particulars, they are the Judges." Mr. Speaker, Neal & Co.&s claim had its day in Court; It was rejected, and since that time the lobby has had it in charge. I can not give a list of the persons to whom this money would go it its claim is paid because I do not follow who the members of Neal & Co. are. This work was done years ago. If the claim is what the gentlemen from Kosciusko (Prazer) says it is, how did it happen that the Legislature of two years ago did not approve it? It was unnecessary to mention Mr. Hendricks' name here; he simply wrote the bill because he was attorney for Neal & Co. My constituents are perhaps old fogy people. They abhor repudiation, but they are also opposed to the payment of a single dollar out of the public funds except there be a legal or equitable reason for so doing, and speaking for them, I object to this majority report and demand the yeas and nays upon the pending question.

Mr. SMITH was of the opinion that we ought to establish a Court of Claims, to which all claims could be referred. He would not impugn any man's motives, but he thought thi8 question should be relegated to the Judiciary Committee, who should present a bill that would cover this whole question.

Mr. PATTEN desired to call things by their right names, and when he denounced this as a steal he meant what he said. He thought that because these gentlemen had made a bad contract, or a contract on which they had not realized as great a profit as they desired, they have appeared ere asking the members of the House to put their hands in the pockets of the State and pay them this extra amount.

The minority report was concurred in by yeas, 75: nays, 10.

The question now recurred on the majority report as amended by the minority report.

Mr. WILSON of Marion, thought that a Judicial question of this kind should go to a Judicial Tribunal. The Provisional Board desired that this matter should have a fair and judicial investigation. This bill asks that privilege and that privilege only. If these gentlemen think that they can not trust the Court they had better take some steps to purify this Court. If a judicial investigation decides that these gentlemen should have this claim they will then be allowed to come before the Legislature with this fact.

Mr. MOODY said: Mr. Speaker; this debate has at least resulted in changing the mind of the gentleman from Marion on Constitutional tribunals, and I suppose, hereafter, the submissionists will count on this support, as he says: "Of all bodies in the world the Legislature is the most unfit body to pass upon a Constitution I question " I think the gentleman from Knox takes the proper view of this question. Who are urging this bill? I will not impugn the motives of any man, but I do think that the justness of this claim should at least be vouched for by the friends of the bill before we voluntarily open the door to endless litigation. If this claim, amounting to $60,000 or $70,000, is just and the State ought to assume the payment thereof, then, certainly, these contractors will meet with a respectful hearing before the Committee on Claims.

This Committee has been provided for for this purpose, and why should this claim be an exception t all others? Again, Section 24, Article 4, of the Constitution of Indiana provides:

"Sec 24 Provisions may be made by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed "

Now, this bill proposes to do indirectly that which the Constitution provides can not De done directly. The bill provides that these contractors shall be authorized to go into Court and there establish the justness of their claim, and then with this club in their hands come back to the next Legislature and say, now we have a just claim. It had no merit four years ago; it gained none in two years, but now it is just because the Court to whom the last Legislature referred it, has so decided, and a refusal by you to make an appropriation for its payment is repudiation. I trust, gentlemen, that you will concur in the minority report.

Mr. JEWETT demanded the previous question which was seconded by the House, and under its operations the report as amended was adopted.


Mr. STEWART, from the Judiciary Committee reported back Mr. Jewett's bill [H. R. 26] to amend Section 6 of an act concerning promissory notes, bills of exchange, bonds or other instruments of writing, with a recommendation that it pass.

Mr. McMULLEN submitted another report from. page: 172[View Page 172] the same Committee recommending that the bill [H. R. 26] be indefinitely postponed.

Mr. JEWETT moved that the report presented by Mr. Stewart be adopted.

Mr. McMULLEN moved to substitute for that report the report signed by himself and four other members of the Committee.

Mr. FRAZER moved that the consideration of the two reports be made the special order for 2 o'clock.

The motion was agreed to.


Mr. FRAZER, from the Judiciary Committee, reported back Mr. Price's bill [H. R. 223] to amend Section 194 of the decedents' estate acts of April 14, 1882, with the recommendation that the bill be amended by striking out all after the enacting clause and inserting new matter.

The report was concurred in and the amendment adopted.

Mr. SHIVELY moved to amend by striking out the words "fifty dollars."

On motion the bill was made the special order for this afternoon at 2 o'clock.

The House took a recess until 2 o'clock.


The SPEAKER announced that the special order was Mr. GRAHAM'S bill [H. R. 256] to provide a fund for the permanent endowment of the State University.

Mr. GIBSON moved the House resolve itself into the Committee of the Whole to consider the special order. The motion was agreed to and Mr. Gibson was called to the Chair.

Mr. McMULLEN moved that the Committee rise, report a recommendation that the bill be recommitted to the Committee on Education to be reported back to the House not later than Friday night.

The motion was agreed to, and the Committee rose and the Chairman reported as directed.

The report of the Committee of the Whole was agreed to.


The following described bills were introduced, read the first time, and severally passed to a second reading, unless otherwise stated:

By Mr. MOCK [H. R. 367] to provide for the assessment and collection of taxes by cities and towns in certain cases.

By Mr. McCORMICK [H. R. 368] to amend Section 4 of an act to provide for the government and discipline of the State Prisons.

By Mr. SUTTON [H. R. 369] concerning the duties of County, Township and State officers.

By Mr. SUTTON, by request, [H. R. 370] to amend Section 4,273 of the Revised Statutes of 1881, concerning drainage.

By Mr. W1LEY, by request. [H. R. 371] for the relief of Baker, Smith & Co.

By Mr. CHITTENDEN [H. R. 372] concerning voluntary associations.

By Mr. WILEY [H. R. 373] to amend Section 261 of an act concerning; proceedings in criminal cases.

By Mr. STERRITT [H. R. 374] to amend Section 309 of the Revised Statutes of 1881, concerning proceedings in civil cases.

By Mr. JEWETT [H. R. 375] to amend Section 815 of the Revised Statutes of 1881, concerning proceedings in civil cases.

Mr. Jewett moved that the Constitution rules be suspended; that the bill be read the second time by title, be considered engrossed, read the third time by sections and put upon its passage. '

The motion was agreed to by yeas, 85; nays, 0.

The bill was read a second time by title; a third time by sections, and passed the House by yeas, 85; nays, 0.


The special order [H. R. 223] was now called up, the question being on Mr. Shively's amendment striking out the word "fifty dollars," when it refers to filing of claims of that amount and upward.

Mr. DEEM moved an amendment to the amendment by inserting "one hundred dollars" instead of "fifty dollars."

Mr. FRAZER made an ineffectual motion-yeas, 36; nays, 48-to postpone indefinitely the amendment to the amendment.

Mr. FRAZER moved the previous question, which was seconded by the House and under its operation the amendment to the amendment was adopted.

The amendment as amended was agreed to by yeas, 46; nays, 37.

On motion by Mr. FRAZER the bill as amended was ordered engrossed.


It was announced by the Speaker that the special order for the hour was the Committee reports or the bill [H. R. 26] to repeal Section 6 of an act concerning promissory notes, etc.

Mr. WILSON, of Marion, said: The principal object of this bill seems to be to protect those who can not protect themselves against the patent-right and hay-fork sharpers. It comes with humble professions of good will to the people of this State and a benediction upon our business interests. It would have been better to have entitled the bill as one to strike down all business men working on credit, to paralyze business at home and excite ridicule abroad!

If a man of ordinary care is so stupid that he can not tell the difference between the promissory note payable in bank and one that is not, or a promissory note end a contract that is not a promissory note, he should have a guardian appointed, or he should interpose the defence, when sued, that he was non compos mentis, in which event he would escape liability. If he does not exercise ordinary care, then it ill becomes this Legislature to protect him against his own folly, and at the same time, while thus encouraging carelessness, break in upon a law, the practical value of which to the business world has been attested by the experience of centuries.

Under the law as it now stands a third party can not recover on a promissory note payable in bank, unless he gets it before maturity, bona fide, in the ordinary course of business, for a valuable consideration and without knowledge of defence to the same; even when so gotten he can not recover if it was forged, procured by duress, executed by one under disabilities, or for a consideration prohibited by statute. This is enough.

The repeal of the present law will do no good and must do infinite harm.

The stupid innocent who can not tell what he is doing will be induced to accept bills of exchange or indorse them, or to put his name on a blank paper, which will blossom into a bill of exchange; or he will sign a promissory note as heretofore, not payable in a bank in Indiana, but payable in Kentucky, Michigan, Ohio or Illinois; this will be governed by the law of the plea of payment. So you will not protect those you seek to protect.

But you will do harm. You repeal a law which had its origin from the inexorable demands of business; had its origin from the usages and customs of merchants; a law that is recognized in every civilized country on the face of the earth as of practical value in business. Without it you cannot issue and negotiate a single bond (for they are but promissory notes); without such negotiable bonds (unless payable out of the State) what building enterprise of any magnitude can be ventuted on? You will drive capital out of the State; what credit will be gives by a business man when he page: 173[View Page 173] knows he can not get a bank to discount the paper? What bank will be anxious to loan money directly when it can not dispose of the paper?

Mr. McMullen's report was rejected by yeas, 19; nays, 64.

The question recurring on Mr. Stewart's report, it was concurred in by yeas, 66; nays, 19.

Mr. JEWETT moved that the bill be ordered engrossed.

Mr. SHIVELEY moved to amend the bill by striking out all after the enacting clause and inserting in lieu new matter.

Pending which-

The House adjourned.