Mr. Walker moved that Mr. Benson have leave of absence for the remainder of the session, which was decided in the negative.
Mr. Weedon from the select committee to whom was referred the bill for the relief of John M. Flinn, submitted a report, accompanied with an amendment to the said bill, which was read and concurred in and the rule being dispensed with, the same was read the third time and passed. Ordered, that the said bill be sent to the senate for their concurrence.
The following is the report submitted by the aforesaid committee.
The committee to whom was referred the accounts of John M. Flinn tax collector for the county of Monroe, have had the same under consideration, and have directed me to make the following report upon the certificate of allowance from the circuit court of the said county of Monroe, and certificate of coroners inquest; the committee has thought proper to allow the amounts therein charged, with regard to the other demands upon the treasury supported by receipts from M. D. Wilson, Esq. late of Monroe county--- the committee is not furnished with sufficient information either to reject or admit them, but is disposed to defer the consideration of their demands until the next session of the General Assembly, that they may be more correctly investigated. They beg leave further to report that it is deemed expedient to extend the payment of the balance certainly due the state for a limited time, upon the said Flinn giving ample, security. The committee deems it expedient to pursue this course more with a view ultimately to secure the demand than to give relief to persons indebted, therefore, have reported said bill with amendments.
FREDERICK WEEDON, Chairman of Committee.
Mr. Chapman from the committee on enrolled bills reported, that the committee had examined a
Resolution to extend relief to William Terry for certain services rendered the state of Alabama, as engineer.
And an act to alter and amend the laws regulating the admission and practice of councellors and attornies at law.
An act amendatory of the laws now in force for the relief of insolvent debtors.
An act for the relief of the master builders and mechanics of the state of Alabama.
And an act to reduce the expences of the General Assembly and for other purposes, which said bills said committee found correctly enrolled.
Mr. McKinley from the committee of conference on the disagreement of the two houses to the bill to apportion the representatives among the several counties of this state, according to the returns of the late census; submitted the following report:
The managers appointed on the part of the house of Representatives to confer with those appointed on the part of the senate on the disagreement of the two Houses, in the amendments made in this House to the bill to be entitled an act to apportion the representatives among the several counties in this state according to the returns of the late census, beg leave to report:
That they have met the managers on the part of the senate, but have been unable to proceed in the conference because the latter insist, that by parliamentary rule, this is a simple conference only; and require of this committee the reasons of this house, in writing, in support of those amendments. This committee not having been furnished by the house with their reasons, were unable to furnish them to the managers appointed by the senate. This committee would beg leave to suggest that at the conference appointed at the last session of the General Assembly, the committees were appointed in the same manner as at the present session, and to confer on the same subject, and proceeded as in committee of free conference. Until this morning your committee was not informed that a different course would be required, and had prepared reasons in support of the course pursued by this house, which they were ready to offer to the committee on the part of the senate, and which they declined receiving on the ground of the conference not being free, unless this committee would give them as the reasons of this house and grant time for an answer. Conceiving that they had no such power, your committee declined doing so.
The following are the reasons which this committee had prepared and were ready to submit to the managers appointed by the senate.
Signed, J. McKINLEY, Chairman of the Committee of Conference.
The managers appointed on the part of the House of Representatives to confer with those appointed by the senate on the disagreement of the senate to the amendments made by the House of Representatives to the bill which originated in the senate to be entitled an act to apportion the representatives among the several counties of this State, according to the returns of the late census; have the honor of submitting to the managers on the part of the senate the reasons which influenced the House of Representatives, to make and insist upon those amendments. The term of service of senators mentioned in the 8th section of the schedule to the constitution, has given rise to this disagreement; the Senate believing that the House of Representatives only ought to be apportioned, and the House of Representatives insisting upon apportioning both branches. In expounding the meaning of the term of service of the present senators, the House of Representatives have examined such parts of the constitution as they conceived had a necessary connexion with the subject. The third article pro-
vides for the election and organization of the legislative department, confers the powers for ordinary legislation, and also the power of perpetuating its own existence, by requiring the passage of such laws from time to time as are there prescribed for that purpose; and at the end of the body of the constitution is appended a schedule which explains in its commencement the object for which it was designed "that no inconvenience may arise from a change of territorial to a permanent state government, it is declared" is the language used. In this schedule provision is made for a temporary legislative body inconsistent with the principles laid down in the third article of the constitution. The reasons which induced this measure are obvious; no enumeration having been then made, the population of each county was uncertain and an arbitrary rule of representation had to be resorted to; founded no doubt upon a compromise of conflicting interests and opinions. This body was necessary to put the government into motion, and bring into operation its permanent features and was therefore not intended to last any longer than "until" that object could be effected. The 8th section of the schedule therefore "declares" that "until the first enumeration shall be made as directed by this constitution, the county of Autauga shall be entitled to two representatives." And according to the arbitrary rule established, proceeds to apportion representatives among the other counties, and concludes by adding "and each county shall be entitled to one senator who shall serve for one term." To ascertain when this enumeration is to take place and what is meant by "one term" we are compelled to resort to the third article of the body of the constitution. The 9th section of that article shews when the enumeration is to be made and that the apportionment of the House of Representatives is to be made at the next session thereafter. The 10th section of the same article shews that the state is to be divided into senatorial districts, and the whole number of senators fixed by law, at the same time that the House of Representatives is apportioned, and also declares that there shall be one senator for each district and no more." Provided the whole number of senators shall never be less than one fourth, nor more than one third of the whole number of Representatives. Taking the 8th section of the schedule and the 9th and 10th sections of the third article together, the meaning of each can be explained and reconciled without doing the slightest violence to either. Both branches of the General Assembly created by the 8th section of the schedule are limited in duration by the words "until the first enumeration." The term of service of neither, has any thing to do with the question by limitation.
The proper enquiry is how long can the General Assembly thus peculiarly organized and in opposition to the permanent provisions of the government last? The answer is given in the schedule in these words "until the first enumeration shall be made, as directed by this constitution." The 9th section of the 3d article points out the time when that enumeration shall be made and thus far the provisions of that section have been complied with, the enumeration has been made and returned, bringing the 10th section into operation according to its let-
ter and spirit, and it unites with the words of limitation in the 8th section of the schedule and the time of making the enumeration fixed by the 9th sec. of the 3d article and fixes the inevitable term of service of the present senators to two years, unless, indeed the term of service spoken of in the 8th section of the schedule can bear down and control the words of limitation in that section and the united force of the 9th and 10th sections of the 3d article.
Taking the word "term" as it stands in the 8th section of the schedule insulated and unaided by any other part of the constitution, it has no definite meaning attached to it; but as it had been used in the body of the constitution, the schedule refers us there for its meaning The first place that it occurs is in the 12th section of the third article, where it is declared that "senators shall be chosen by the qualified electors for the term of three years." Why are they chosen for three years and not to serve for the same period? the reason is obvious, they might or might not serve for three years according as other provisions of the constitution would permit. The 2d section of the same article says "the members of the House of Representatives shall be chosen by the qualified electors and shall serve for the term of one year." Here is a marked distinction made in the same instrument between being chosen for a given period and serving for the same period; which shews clearly that the 12th section above referred to does not aid in fixing the time which the present senators shall serve. If we refer to the 13th section of the same article, it will appear that senators chosen for three years may only serve one year, or two years or three years as chance may direct. As nothing can be found in the constitution which gives to the present senators the right to serve for three years, and as the limitation of time expressed in the 8th section of the schedule, and the provisions of the 9th and 10th sections of the 3d article are in full force, the house of Representatives are constrained to believe that it is their duty to apportion both branches of the General Assembly. The reasons why they cannot consent to apportion the House of Representatives alone are these. It is provided by the 9th section of the 3d article that the House of Representatives shall not consist of less than forty four , nor more than sixty members until the number of white inhabitants shall be one hundred thousand." By the present apportionment bill the whole number of Representatives do not amount to sixty, and it is well known the senate consist of twenty three, which is more than one third of the whole number. It would therefore be as great a violation of the constitution to make the apportionment of the House of Representatives without dividing the state into districts and fixing the number of senators as to refuse to do it altogether. The 30th section of the bill of rights expressly provides that all laws contrary to the provisions of the constitution shall be void. As one provision of the constitution is that the whole number of senators shall never be less than one fourth nor more than one third of the whole number of representatives, a law which would destroy that proportion by attempting an apportionment must therefore be void. It is also considered that if the schedule can
sustain the senatorial branch of the Legislature without an apportionment as equally competent to sustain the representative branch also.
On motion of Mr. Perry, ordered that the committee aforesaid be discharged from the further consideration of the aforesaid subject.
Ordered, that the senate be acquainted therewith.
Mr. Moore of Madison, introduced a bill to be entitled an act supplementary to the act making appropriations for the year 1821, which was read the first time and the rule being dispensed with, it was read the second time, forthwith and committed to a committee of the whole at the hour of three this evening.
Mr. Weedon obtained leave to introduce the following resolution:
Whereas an unfortunate difference of opinion exists between the majorities of the two branches of this General Assembly in regard to the duty of apportioning representatives and senators; and after full and repeated trials at the last and present session to reconcile the difference, in which the house of representatives have endeavoured as far as was in their power to apportion both branches; it is evident that this purpose cannot be effected. It therefore results from necessity, that the only alternative remaining is either to apportion the representative branch alone, or to leave the present imperfect apportionment to operate, wherein several populous counties will remain unrepresented in this branch. And believing that no constitutional provision will be violated in making this apportionment, which would not be violated by an entire neglect to apportion; while it would ensure to the people of this state a more just and equal exercise of their representative rights:
Wherefore, resolved that it has become expedient to pass a law to apportion the house of representatives according to the late census.
A bill from the senate entitled an act providing for the payment of costs in certain cases, was read the third time and passed as amended.
Ordered, That the senate be acquainted therewith.
A bill from the senate entitled an act, explanatory of the laws concerning the stay of executions and fees of certain officers therein named, was read the second time.
Mr. Armstrong of Mobile, moved that the same be indefinitely postponed, which was decided in the negative. Ayes 16, Nays 23. The yeas and nays being called for.
Those who voted in the affirmative, are
Mr. Abercrombie, Armstrong of Mobile, Armstrong of Conecuh, Benson, Isaac Brown, Cleaveland, Creagh, Coats, Draughon, Dale, Davis, Murrell, Moore of Marion, Perry Shackleford, Tagert- 16.
Those who voted in the negative, are,
Mr. Speaker, Bigham, Bailey, John Brown, Chambers, Chapman, Clay, Cook, Coleman, Edmondson, Fitzpatrick of Autauga, Fitzpatrick of Montgomery, Holderness, Jackson, Leake, Moore of Madison, Murphy, McVay, Rather, Skinner, Vining, Walker, Weedon- 23.
So said bill was not indefinitely postponed.
The house, then, on motion, resolved itself into a committee of the whole on said bill and after sometime spent therein, the Speaker resumed the chair, and Mr. Moore of Madison reported the same with amendments in which the house concurred.
Ordered, that the said bill be read a third time this evening.
Message from the senate by Mr. Chambers:
Mr. Speaker, the Senate have passed the bill which originated in your honorable body, authorising the collection of toll at the Cahawba Bridge to which they have made amendments, and ask your concurrence therein. And then he withdrew.
Message from the senate by Mr. Williams their secretary:
Mr. Speaker the senate recede from the amendments to the bill entitled an act to amend an act entitled an act to provide for assessing and collecting of taxes and for taking the census of this state, passed at the second session of the General Assembly on the 22nd day of December, 1820, and for other purposes when it was proposed, in striking out the words "chief justice," wherever they occur and inserting "Judge," in striking out the word "December," and inserting "November," and in inserting the 22d and 23d sections.
They recede from the amendments to the resolution appointing persons to examine Tuskaloosa river, to wit: the resolution disagreed to by your honorable body.
They have passed the following bills to wit : an act imposing a tax on non residents and transient persons importing goods, wares or merchandize into the city of Mobile and town of Blakeley.
An act to amend an act passed at Huntsville December 16, 1819, entitled an act to establish a public road therein named.
An act to incorporate the town of Hazle Green in the county of Madison, and a resolution relating to the county of Montgomery.
Message from the acting Governor by Mr. Rogers.
Mr. Speaker, I am instructed by the acting Governor to inform you, that he has on this day approved and signed a resolution to extend the relief to William Terry for certain services rendered the State of Alabama as engineer, and an act to amend an act to alter and amend the laws regulating the admission and practice of counsellors and attornies at law.
I am also instructed to inform you that his excellency the Governor has received official information that Nicholas Davis, Esq. who was elected on the 16th inst. Judge of the county court of Limestone county has declined accepting the appointment.
The house adjourned till 3 o'clock.
The house took up the bill entitled an act explanatory of the laws concerning executions, and the fees of certain officers therein named, and on motion Ordered, that the same be read a third time on Monday.
The house took into consideration the amendments made by the senate to the bill to be entitled an act authorising the collection of toll at the Cahawba bridge, and agreed to the said amendments.
Ordered, That the senate be acquainted therewith.
On motion, the house took up the resolution offered this morning by Mr. Weedon concerning the disagreement of the two Houses on the apportionment which was read.
Ordered, That the gentleman have leave to withdraw the same.
On motion of Mr. Morton the following resolution was adopted.
Resolved, that the senate be requested to meet this house in the hall of the house of representatives, this evening at 6 o'clock to elect a judge for the county of Limestone in the place of Nicholas Davis, who declines accepting said office.
Ordered, that the same be communicated to the senate.
On motion of Mr. Weedon, the house took up the resolution from the senate, relative to the adjournment of the General Assembly which was read a second time and amended; and the rule being dispensed with, it was read a third time and passed.
Message from the senate by Mr. Dick:
Mr. Speaker, the senate have discharged the committee of conference appointed by them to confer with the committee on the part of your honorable body, on the difference existing between both branches on the bill entitled an act to apportion the representatives among the several counties of this state according to the returns of the late census, from further considerations of the same.
They have passed a resolution extending the time of payment of a certain sum of money due this state by John M. Taylor, which originated in your honorable body, and have amended the same by annexing a proviso thereto, and by adding another resolution, in which they respectfully desire your concurrence.
The resolution extending the time of payment of a certain sum of money due this state by J. M. Taylor was returned by the senate with amendments, which were concurred in by the house.
The house took up the bill to be entitled an act to apportion the representatives among the several counties of this state, according to the returns of the late census.
Mr. Smoot moved, that the house recede from their amendment to the said bill by adding the 2nd and 3d sections thereto, which motion was lost.
The yeas and nays being called for.
Those who voted in the affirmative are, Messrs. Speaker, Armstrong of Conecuh, Bigham, Benson, John Brown, Creagh, Coats, Coleman, Draughon, Dale, Fitzpatrick of Montgomery, Fitzpatrick of Autauga, Jackson, Leake, Murphy, Murrell, McMeans, Perry, Skinner, Sargent, Smoot, Tagert, Weedon- 23.
Those who voted in the negative, are Messrs. Abercrombie, Armstrong of Mobile, Bailey, Isaac Brown, Col. John Brown, Chambers, Chapman, Cleveland, Clay, Cook, Davis, Edmundson, Hill, Holderness, McKinley, Moore of Madison, Morton, Moore of Marion, McVay, Perkins, Rather, Shackleford, Vining, Walker- 24
The House resolved itself into a committee of the whole House, on the bill to be entitled an act supplementary to an act, making appropriations for the year 1821, and after some time spent in the consideration thereof, the committee rose, and Mr. Walker, reported the said bill with amendments, in which the House concurred.
Mr. Morton moved an amendment allowing appropriations for constables attending on the superior and present circuit courts, which was carried. The rule being dispensed with, the said bill was ordered to be engrossed and read a third time at half past 7 o'clock this evening.
Message by Mr. Dick.
Mr. Speaker--- The senate concur in the amendment made to the resolution adjourning the present General Assembly, by striking out the words "Wednesday next," inserting in lieu thereof "Saturday the 16th inst."
They also concur in the resolution adopted by your honorable body for the purpose of proceeding to elect a judge for the county Court of Limestone in the place of Nicholas Davis, who declines accepting said office. They disagree to the amendments made to the bill entitled an act providing for the payment of costs in certain cases, to wit: by striking out the word "county" whenever it occurs except in the second section and inserting "State," and by striking out the 4th section. Ordered, that the senate be informed, that this House is ready to receive that body to go into the election of a Judge for the county Court of Limestone county. Ordered, that Messrs. Chapman and Benson have leave of absence from this House after to-day.
The House took up the amended bill from the senate, entitled an act providing for the payment of costs in certain cases, and proceeded to the consideration of the amendments made thereto by the senate. On motion of Mr. Perkins, the said bill was ordered to lie on the table.
The senate having assembled in the Hall of the House of Representatives, the two Houses proceeded to the election of a Judge for the county Court of Limestone; and Daniel Coleman being the only person in nomination, and all the members present voting for him, the Speaker declared him duly elected Judge of the county Court of Limestone county.
Mr. Chapman moved, that this House reconsider the vote given upon Mr. Smoot's motion to recede from the amendment made by this House, to the bill to be entitled an act to apportion representatives among the several counties of this state according to the returns of the late census, by adding the 2d and 3d section thereto.
The house then adjourned till to-morrow morning 8 o'clock.