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Brevier Legislative Reports, Volume XXI, 1883, 311 pp.
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THE
BREVIER LEGISLATIVE REPORTS.
VOLUME TWENTY-ONE.

INDIANA LEGISLATURE.

IN SENATE.

WEDNESDAY, January 17, 188310 a. m.

THE MORGAN AND JOHNSON CUTEST.

The LIEUTENANT GOVERNOR stated this question to be on the substitute pending at the adjournment last evening authorizing the Committee on Elections to send for persons and papers necessary to support or negative the charge of bribery made against Senator Overstreet.

Mr. SPANN insisted the Committee had no need of the power sought for in this resolution. A party charged with disqualification should be brought before the Bar of the Senate. Under the statute the issue is on ineligibility. The Committee ought to hear nothing in this case except as to the contest. If Senator Overstreet is arraigned before the Bar of the Senate, he is ready to meet the charge. If the Committee should find the Senator guilty of bribery, although unseating him, it would not seat Mr. Johnson. It looks like the purpose is, under cover, to gather evidence to bolster up the contest for the seat. The law says the contestor and contestee shall bear the expense of the contest themselves. The law evidently intended that evidence should be taken entirely before the Commission provided by law, and should there be closed to all intents and purposes, and the Commission of Justices for the purposes of taking the deposition has expired. He spoke further against the adoption of the substitute.

Mr. WILLARD considered this a purely legal question, and could see no reason for excitement in its discussion. He regarded the question to go as far as to ineligibility, The statute distinctly provides for cases like this. It is clearly within the province of the Committee to inquire into the eligibility of the sitting member. The Senate is a Court having exclusive jurisdiction as to the qualifications of its own members. The English rule has been well settled, and there is no variance from that rule where the majority candidate is ineligibile, the candidate receiving the next highest number of votes is entitled to the seat. He read from XIV Ind , page 93, where there was ineligibility on account of holding a judicial office. The question narrows down to this: Did a sufficient number of the voters in this contest have knowledge of the charge of of bribery? It is the purpose of the resolution I(P i quire into that matter. If there be no notice then there is no cause of removal on that charge. Will you deny the right of having evidence on this subject? It can not be told how long it will take to obtain necessary depositions, and the Senate or the House has power at all times to send for persons and papers He could not, understand why Senators on the other side are unwilling to have the matter thoroughly investigated.

Mr. VOYLES thought the discussion had taken a wider range than is proper at this stage of the proceeding. The inquiry is narrowed down to the one question of bribery. He favored, if evidence is heard at all, that witnesses should be sent for. Their bearing and consistency upon the stand should be observed. The taking of depositions might be made almost interminable. All material evidence can soon be obtained by sending for witnesses, and the losing party having to pay the cost. No more witnesses would be sent for than are necessary. After grounds have been filed in s contest under the statute, the contestor has the right to present supplemental ground where he shows a good excuse for not filing the same in the proper time No respectable authority will deny the right to amend or supplement such complaint. If it be true a bribe was given by the sitting member and known to a number of voters sufficient to change the result, the contestor would be entitled to a seat. This is a question of fact.

Mr. BUNDY insisted the argument of the Senator from Rush [Mr Spann] has not and can not be answered. The question pending "before the Committee is in the nature of a contest. That is the matter referred to the Committee, and not a question of bribery-that has not been referred to the Committee. The pending resolution asks authority to send for persons and papers, that evidence may be taken to support and negative a charge of bribery. A Committee has no power except to answer questions referred to it, and that question was not referred as a charge of bribery, but as an additional ground of con lest. Bribery Is not a cause of contest under the statute in an election to the General Assembly. There is a difference between the question of ineligibility and the question of qualification. The object of the page: 67[View Page 67] resolution is evidently to make the State of Indiana pay the expense, instead of letting it fall upon the parties to the contest.

Mr. BROWN sent to the Clerk's desk and had read the supplemental cause of contest discovering a new cause, viz: the second statutory cause-said contestee did offer and give a bribe of money to secure his election. He said: That paper shows it was intended to be regarded as additional ground; and it is double-to much as recites the fact as to the majority of votes cast is in the nature of a contest; but so much as refers to the bribe, that act has placed a bar of disqualification as to holding office. If the sitting Senator is proved to have given a bribe to secure the position, that does not seat the contestor. This has been settled after discussion ten years ago in this Senate, and the person asking for the seat then did not claim it. There can not be a single case shown in the annals of legislative bodies where a man has been turned out and the man who ran against him the one turned out seated. This discussion ought not to have come at this early time. It has been brought to the notice of the Senate, by the solemn oath of a citizen, that a sitting member is disqualified by giving a bribe or offering a bribe-that we take notice of it on our own account entirely. If that be proved true the seat becomes vacant. That is the universal rule everywhere. The question of disqualification can be heard at the same time with the questions of contest, and therefore it is proper to adopt the resolution. In the case before the Senate ten or twelve years ago, not a single deposition was taken. Those friendly to the sitting member should not seek to stop the most full and fair investigation.

Mr. GRAHAM said the Senator from Johnson [Mr. Overstreet] cares nothing, personally, whether he retains the seat or not, though honestly and fairly elected to this body; but he cares for his reputatation, which is attacked in a manner not warranted by law and the facts in the case. The Committee can not find any ground for contest under the statute the specifications can not be sustained by evidence, even in the hands of a Democratic majority. It is attempted to bring in this case a charge of bribery, which is not a ground for contest. The arguments of Senators on the other side can not be understood until the vote shall be taken. The law making power ought to be as fair in dealing with citizens as the Courts of the land are. How long would this charge stand under a motion to quash? Not a Justice of the Peace in the land would allow a case to go to trial under a charge of this kind. If there is a charge of bribery in the paper referred to, it could have been made specifically. The charge is too indefinite, and for many reasons the resolution should not be adopted. Let this case be fairly tried, and tried only upon the questions in issue. Let not anything be irregularly tacked on a proceeding in a case of contest.

Mr. McCULLOCH. in reply to a question, stated the papers came regularly in the hands of the Committee, and whether the additional paper be considered as a memorial or an additional cause of contest, it is the duty of the Committee to ascertain the facts in the case. The question as to whether the contestor is entitled to a seat or not does not first arise; the first question is, can the grounds of contest be sustained? The subsequent paper came to the Committee in the regular way, and no resolution or request has been made for its return to the Senate. The two questions may be tried together. The matter is before the Committee. It is the duty of the Committee to investigate and report it, and then the Senate can act as it deems fit. The pending resolution goes to the charge of bribery. It won't do for the Senate to say when a charge is made that a member has been guilty of bribery that the Senate must not take action, nor should we simply convict the member on depositions; but rather we should send for witnesses and weigh testimony. It is due to the member against whom the charge is made that the Committee should have the witnessees meet the Senator face to face. We would favor brining the witnesses before the whole Senate that each member may weigh the testimony for himself.

Mr. SAYRE thought under the view presented by the Senator from Gibson [Mr. McColloch] the resolution should not be adopted. The supplemental charge is not a ground for contest. The investigation should not be had on the grounds before the Senate as no time, person or place is set forth. The forms of law should be observed here as well as in the Courts of Justice. The meanest tramp should not beheld on such a charge before the most incompetent Justice of the Peace in the State.

Mr. McCOLLOCH and Mr. BELL demanded the previous question, which was seconded by the Senate-yeas, 27; nays, 20-and under its operations the substitute was adopted by yeas, 26; nays, 20, and the resolution as amended was adopted without a division.

Mr. HENRY, when his name was called, saying he concurred in the position taken by the Senator from Jackson [Mr. Brown] that the charge of bribery ought to be investigated when properly presented, but considering that this charge ought not to go to the Committee on the original ground of contest, he should vote "no."

Mr. HOOVER, when his name was called, declined to vote because of his pair with the Senator from St. Joseph [Mr. Campbell, absent on account of sickness] on all political questions.

[On motion of Mr. MAGEE the courtesies of the Senate were extended to Hons. William McKee Dunn and John M. Foster.]

Mr. SPANN offered a resolution to instruct the Committee on Elections to make a separate report on the additional causes of contest charging Senator Overstreet with bribery, and hear full, complete and searching evidence on that charge, disconnected and independently of the contest now pending between Overstreet and Johnson.

Pending which, came the recess for dinner.

AFTERNOON SESSION.

Mr. SPANN offered the pending resolution with a desire to divide the question and place it in a position that will be fair to the Senator from Johnson, Mr. Overstreet.

Mr. BELL thought this will be in advance attempting to determine a legal proposition which may prove embarrassing. If knowledge is brought home to enough of the voters to determine the result, the contestor would be entitled to the seat. So he oppossen the attempt to circumscribe the action of the Committee as proposed in the pending resolution. The inquiry will necessarily have to be taken separately, the testimony being oral. He knew nothing of the merits in this controversy, not having even talked about it with contestor or contestee, or either of their attorneys. The resolution already adopted is the only one that should go before the Committee to which the question may be safely left.

Mr. FOULKE moved to amend by instructing the Committee to require the contestant to specify the persons to whom and the things offered as a bribe in each case, etc., etc. Senators on the other side have spoken about this not being a political matter, yet it seems a curious thing that even in preliminary matters we divide exactly at the party line. In this matter it may be well for them not to go too far. The Democratic Senators voted to a man this morning in favor of the demand for the previous question, thus stopping further debate. It is not enough to show that one or two or three voters had notice of a bribe. He desired a full and fair investigation, and by his vote no man shall retain a seat here who has blistered a hand with giving a bribe to secure an election. We must be governed by ordinary rules of legal procedure. Witnesses may be obtained page: 68[View Page 68] and suborned, and the sitting member may not know the charge till it is spoken by the mouth of the witness. No man should be called to answer an infamous crime without full knowledge of the charge in every particular item.

Mr. BROWN: The statement that the sitting member has been guilty of offering and giving bribes is in exact accord with the precedents in this State. To the end that we may make some honest effort tot do something in this case before being called from time to eternity, he moved to lay the resolution on the table.

The motion was agreed to by yeas, 24; nays 19.

Mr. SPANN offered a preamble and resolution requiring the informer to make specific terms as to the charge of bribery; requiring a return of the paper making a charge of bribery from the Committee, and that this inquiry be before the entire Senate in Committee of the Whole. In supporting which, he remarked: It has been said by a Senator on the other side that these witnesses were desired in order to bring them face to face. Now in all fairness he demanded that witnesses shall be brought before the face of every Senator, and not that the evidence shall be taken before a Committee composed largely of Senators of opposite politics.

Mr. BROWN liked the old way the best. There never was a time in the history of Indiana when the action proposed by this resolution has been resorted to. He moved to lay the motion on the table.

This motion was agreed to by yeas, 26; nays, 19.

VERBAL FALSE PRETENSE.

Mr. Ernest's bill [S. 12] to define the crime of false pretense coming up in regular order, it was read the third time.

On motion of Mr. BROWN the emergency clause was stricken out.

Mr. HENRY opposed the passage of the bill, stating the proposed change is to allow any person to be convicted by making any false pretense, even under a verbal presentation, the law being now that it must be under a written pretense. He opposed allowing the criminal law to be used by persons to force the collection of a debt; as would be the case under an act such as proposed by this bill.

Mr. BELL favored the bill. It simply places the law back to where it was previous to 1881, and he regarded it as an omission by mistake. He saw no reason why the getting of money or goods by verbal false pretense should not be punishable. Another change proposed is imprisonment from one to seven instead of from two to ten, as now.

Mr FOULKE joined in the desire that the bill may pass. Under the present law a party can be punished only where the false pretense is written, while in the bill the punishment is also for oral false pretense. The fact a law may be abused is no reason why a good and salutary law should not be enacted. There is a hiatus in the present law that ought to be filled, and this will fill it.

Mr. GRAHAM has noticed that under the law of 1881 the people are left without remedy from a class of swindlers. He could conceive of no case where this bill would interfere with the rights of an honest man.

Mr. HENRY remembered this clause was left out of the code at the last session on purpose, and it ought to remain out. It persons would ask for the representation to be put in writing they can be protected under the law as it now is. The law is right as it stands, because the question of conviction is in writing and does not depend upon the testimony of persons who may be angry.

The bill finally passed the Senate by yeas, 33; nays, 13.

[Messrs. Spann and Voyles were appointed a Committee to invite Mexican soldiers to visit the Senate Chamber on motion of the former. ]

TELEPHONE MESSAGES.

Mr. Graham's bill [S. 32] to punish persons who disclose messages or conversation passing over telephone wires, being read the third time-

Mr. GRAHAM said bill was very nearly the law governing the transmission of telegraph messages.

The bill passed the Senate-yeas, 41; nays, 2.

Mr. RISTINE'S bill [S. 22] to amend Section 5,097 of the Code of 1881 concerning the construction of McAdam and other roads (see page 29 of the Brevier Reports), with an amendment adopted heretofore allowing 2 percentum of each $100 valuation, being read the third time-

Mr. SAYRE objected to the 2 percentum tax-the entire legal limit-being permitted for the buildup of gravel roads

Mr. WILLARD made the point of order that the bill does not refer to the section of the Revised Statute proposed to be amended.

The PRESIDENT pro tem. directed the Secretary to have the section of the Revised Statute replaced.

Mr FOULKE intended the rule which he drew up to be for the convenience of the public more than for the Senate.

JUROR QUALIFICATIONS.

Mr. Overstreet's bill [S. 20] relating to the qualification of Petit Jurors was read the third time.

Mr. HENRY said the bill was the re-enactment of a law of 1875 or 1877. There is a question whether it is in force or not. This law is held to be repealed by implication.

Mr. FOULKE objected to the emergency clause.

Mr. BELL thought the provisions of this bill commends itself to everybody. It strikes at the professional Juror, who, under this bill can only get one strike a year at you anyhow.

Mr. OVERSTREET spoke a few words in favor of his bill, inaudible at the reporter's table.

The bill passed the Senate-yeas, 39; nays, 3.

The Senate Committee on Invitation appeared with the Mexican veterans, who were received by Senators standing. General Mahlon D. Manson, the Preside of the Association, responded to the welcome address of the Lieutenant Governor. Speeches were also made by Major Jonathan W. Gordon and Governor Porter. On Major James B. Mulkey's motion, and by a vote of the veterans present, Governor Porter and Lieutenant Governor Hanna were made honorary members of the Association, and invested with badges.

Mr. SPANN offered a resolution, which was adopted, recognizing the grand achievements of Mexican soldiers, and pledging the Senate's aid in obtaining from the General Government recognition for their services.

The Senate took a recess for interchange of courtesies-

And them came the adjournment.

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