Mr. Chapman from the committee on enrolled bills, reported, that said committee have examined the following bills and find them correctly enrolled, to wit: An act supplementary to an act making appropriations for the year one thousand eight hundred and twenty one, and for other purposes.
Resolution concerning the printing of the Journals and Laws of the present General Assembly and for other purposes.
An act concerning persons residing on the University lands, and who have not rented the same, and for other purposes.
Mr. Chapman obtained leave to spread on the Journals of this house, the reasons of his various votes on 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, which reasons are as follows:
I, Samuel Chapman, a representative from Madison county, deeming it a duty I owe to myself, my country and posterity to state the reasons which influenced my conduct upon the subject of apportionment, beg leave to make the following statement. On the 4th inst. (being the day required by the proclamation of the acting Governor for the legislature to convene) a communication was received from his Excellency, stating the necessity of apportioning the senate and house of representatives in obedience to the requisitions of the 9th and 10th sections of the 3d article of the constitution. Immediately upon the receipt of which communication, a committee was appointed for the purpose of taking the subject into consideration; which committee shortly afterwards reported a bill having for its object, the apportionment of the representatives and senators of the state of Alabama; which bill passed the house of Representatives, and was sent to the senate for their concurrence. Shortly afterwards, a bill was received from the senate, which apportioned the House of Representatives, leaving the senate unapportioned: which bill was laid upon the table, until the fate of the bill which originated in the house of representatives could be ascertained. The senate upon taking up the bill which was sent from the house, indefinitely postponed the same, and informed the house thereof. It then became necessary for the house of representatives to act upon the bill which had been received from the senate; and which had been ordered to lie on the table: when it was taken up, an amendment was offered, having for its object the apportionment of the senate which amendment was adopted; and the bill thus amended, was sent to the senate, for their concurrence. They disagreed to the amendment, and sent it back. The house insisted upon their amendment, and the senate adhered to their disagreement.-- A committee of conference was then appointed, which being unable to come to any understanding upon the subject was discharged by their respective houses.
At this state of the proceeding, a motion was made in the house of representatives to recede from their disagreement, which vote stood thus, 23 for receding and 24 against it. I voted against receding. The question was at an end, unless the vote upon receding was reconsidered. It was my opinion, if the subject thus ended, and the legislature should rise without making any apportionment whatever, the government would be dissolved, and society thrown into a state of anarchy and confusion much to be deplored by every patriot.
What consequences would result from such a state of things none could tell, but in my estimation worse, than any I had heard anticipated. Influenced by these alarming considerations, I determined to move a re-consideration of the vote to recede, and to agree to apportion the house of representatives alone, as it was reduced to a moral certainty that, that was all we could do. The vote was reconsidered, and the house agreed to recede, for which I voted, and I submit to the world the following reasons for my vote.
I have always been of opinion, that both branches of the General Assembly, ought at this time to be apportioned; I am still inclined to that opinion; and in support of it, I have done every thing within the reach of my ability: every vote that I gave has manifested my anxiety for the apportionment of both houses; but believing it to be impossible to apportion both, I have consented to apportion one. The 9th section of the 3d article of the constitution makes it the duty of the General Assembly to apportion the house of representatives at their first meeting after every enumeration- an enumeration has been made since the period has arrived when the said 9th section shall be carried into operation by apportioning the house of representatives. The tenth section of the same article, declares, that after every such enumeration, the General Assembly shall lay off the state into senatorial districts: and each district shall be entitled to one senator, and no more. It also provides, that the senate shall never be more than one third, nor less than one fourth the whole number of representatives. Now although it may be necessary to carry the tenth section into operation, surely an inability to do it does not argue any thing against carrying the ninth section into effect. It is agreed on all hands, that the apportionment of the house of representatives should be made, but it is contended by some, that it must necessarily be accompanied by an apportionment of the senate. Upon the subject of the apportionment of the senate at this time, there is great diversity of opinion amongst all ranks and classes of men from the highest to the lowest. That being the case, I may well say, it is a doubtful question.
I hold it to be a clear proposition, that if the constitution does intend that the present senators shall serve one term of three years, and therefore, that the apportionment of that branch shall not take place until the regular session of 1821. It is not required by the constitution that the proportion between the two houses should commence at this time; but it is to commence when the apportionment of the senate is to take place; because the constitution declares the existence of a senate twenty two in number; and also declares, that the house of representatives shall be limited to sixty, until the happening of a certain event, which has not yet happened. Now until the period arrives when the number of senators can be reduced, it is impossible for the proportion required in the tenth section to commence. But it is said, the period has now arrived, when the number must be reduced. Although that opinion may be correct, yet there is certainly a reason
able ground to doubt its correctness. I did not deem it a correct course to leave all undone, because I could not effect all I desired- more especially when in my opinion there can be no doubt as to the propriety, nay necessity, of apportioning the house of representatives; and there is, to say the least of it, ground for reasonable doubt, as to the propriety of apportioning the senate; and about which there is great contrariety of sentiment. Furthermore, I am of opinion, that by apportioning the representative branch, the government may be safe; but when all is left undone, I verily fear a dissolution of the government will be the inevitable consequence. For these reasons, I voted for receding from the amendment of the house, and for apportioning the house of representatives- for which vote, I feel fully justified by my own conscience, and I hope I shall be in the eyes of my country, and at the bar of my God.
An act explanatory of the laws concerning the stay of executions, and the fees of certain officers therein named- read a third time, and on the question, shall the bill pass? it was decided in the negative.
The ayes and nays being called for those who voted in the affirmative, are Messrs Bailey, Chapman, Clay, Davis, Edmondson, Holderness, Leake, McKinley, Moore of Madison, McMeans, McVay, Rather, Skinner, Vining, Walker and Weedon- 16.
Those who voted in the negative, are, Mr. Speaker, Armstrong of Mobile, Armstrong of Conecuh, Benson, Isaac Brown, John Brown, Col. Jno. Brown, Creagh, Cook, Coats, Coleman, Draughon, Dale, Jackson, Murphy, Moore of Marion, Perkins, Perry, Shackleford, Smoot, Tagert- 21.
And then the house adjourned till 2 o'clock.
House met pursuant to adjournment.
The following communication was received from the senate by Mr. Williams their Secretary:
Mr. Speaker- His Excellency the acting Governor having this day returned to the senate, where it originated, the bill entitled "an act to apportion the representatives among the several counties, of this state according to the returns of the late census" together with objections thereto, the senate, after having caused said objections to be entered upon their Journal at large, proceeded to reconsider said bill, and a majority of the whole number elected to that body, agreed to pass the same. The bill with the objections of His Excellency are sent for the reconsideration of your honorable body.
The following are the objections of His Excellency which accompanied the foregoing message.
To the Senate of the State of Alabama.
Having bestowed 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" that deliberate consideration which is dictated as well by the respect which I entertain for both branches of the General Assembly, as by the importance of the subject itself, I feel myself constrained by a deep and solemn conviction of its unconstitutionality to return it to your honorable body in which it originated, together with my reasons for so doing.
By the 1st section of the 3d article of the constitution it is declared,
"that the legislative power of this state shall be vested in two distinct branches, the one to be styled the Senate, the other the House of Representatives and both together, the General Assembly of the State of Alabama."
In this collective body composed of these two distinct branches is vested the "legislative power" which is to be exercised in such manner as is prescribed in the constitution. But in order that this power shall be constitutionally exercised, it is necessary, that the body which exercises it be constituted in conformity with certain provisions contained in the 9th and 10th sections of the same article.
In those two sections is pointed out in the most plain, positive and explicit terms the duty of the General Assembly in providing at stated periods for the continuance of the body. The principles upon which the respective branches shall be numbered and proportioned; and the rules by which that number and proportion shall be divided, among the electors of the state; and it is conceived that whenever any of these principles and rules are violated either by positive enactment, or by the omission of such provisions as necessarily creates a violation, it operates to vitiate the whole body. In the General Assembly "is vested" the legislative power and as neither branch can perform any duty or exercise any authority incident to that power without the concurrence of the other, so whenever either branch is constituted differently from the principles laid down for its creation it follows that all its acts are void
The periods at which this body is to be reorganized are on the returns of each enumeration, whenever that is done, an apportionment becomes imperative and the duty to apportion both is as imperative as is the duty of apportioning either. The number of one branch is to be first fixed when that of the other necessarily follows, and so intimately connected are they in every thing relating to their organization and power of acting that to alter the number or distribution of one branch without at the same time apportioning and dividing the other will defeat and destroy the constitutionality of both. It is true the duty to apportion and the rules by which the apportionment is to be made are defined in two separate sections, both however have for their object the formation of one body and I cannot conceive that this body can be created but by the same act and at the same time and that it is equally as unconstitutional to perform but half the duty as it is to neglect it altogether.
By the 8th section of the schedule a General Assembly was created and apportioned which should continue "until the first enumeration," should be taken, when that act should be done a new apportionment became necessary; the principles of that apportionment are to be found only in the 9th and 10th sections of the 3d article. And if there be a contradiction between the 8th section of the schedule and those sections, I conceive, the 8th section of the schedule must yield; the duty to apportion under the 9th and 10th sections being imperative and those sections containing provisions of much the highest importance and such as cannot be acted on separately.
The only difficulty which has arisen to prevent the apportionment of both branches at this time is the provision of the 8th section of the schedule which declares that the Senators chosen under the provisions of that section " shall serve for one term," the period indicated by this term I cannot understand to mean any other than the time intervening
between the election of the Senators and the return of the first census. The duty to apportion then commences under the 9th and 10th sections of the third article and applies imperatively in my view from the reasons above stated, to both branches of the General Assembly.
The bill under consideration contains a provision for the apportionment of the Representatives only and does not apportion the Senators. It thereby violates the provision in relation to the relative proportion of the two branches, it also violates the provision in relation to the constitution of the Senate which requires the State to be divided into senatorial districts, and thereby prevents an equality of representation. It operates to continue by its omission to apportion the Senate in conformity with the 10th section of the 3d article, a Senate created by the 8th section of the schedule on principles different from the permanent provisions of the constitution & which was limited in its duration of service to the return of the first enumeration which has been taken, and under which the bill itself professes to be framed.
Independent of the reasons which I have offered on the ground that this bill is unconstitutional, I have another which however would not be a sufficient inducement for me to return it to you. It makes the whole number of Representatives fifty five; a number greatly beyond the minimum required by the constitution and contrary as I believe to the policy which should govern in fixing the number. It creates an expense to, and imposes a burthen upon the people which is not required for the purposes of legislation in the present state of our population and which at all times should be avoided.
In the discharge of this painful duty of stating the reasons which compel me to refuse my assent to a bill which has undergone much deliberation and which has received the assent of both branches of the General Assembly- I console myself with the reflection, that should they be deemed insufficient they can be overruled in a constitutional manner by that body which is the immediate representative of the people, and on a subject too, which I conceive it is peculiarly the province of the people to decide.
The foregoing message and accompanying objections being entered in the journals and read, the House proceeded to reconsider the said bill. The question was then submitted on the passage of the said bill and decided in the negative.
Those who voted in the affirmative, are Mr. Speaker, Armstrong of Conecuh, Bigham, Benson, John Brown, Chapman, Creagh, Cook, Coats, Coleman, Draughon, Dale, Jackson, Leake, Murphy, Murrell, McMeans, Perry, Skinner, Sargent, Smoot, Tagert, Weedon- 23.
Those who voted in the negative are, Messrs. Armstrong of Mobile, Bailey, Isaac Brown, Col. John Brown, Chambers, Clay, Davis, Edmondson, Holderness, McKinley, Moore of Madison, Morton, Moore of Marion, McVay, Perkins, Rather, Shackleford, Vining, Walker- 19.
So there not being a majority of the whole number elected, as required by the constitution, the said bill was not passed.
Message from the senate by Mr. Williams their secretary.
Mr. Speaker- The senate have passed a resolution establishing certain election precincts in the county of Henry, in which they ask your concurrence.
The House took up the aforesaid resolution, which was read the first time, and the rule being dispensed with, was read a second and third time and passed. Ordered, that the senate be acquainted therewith.
Message from the acting Governor by Mr. Rogers, the Secretary of State.
Mr. Speaker- I am instructed by the acting Governor to inform you that he did on the 16th inst. approve and sign a resolution extending the time of payment of a certain sum of money due this state by John M. Taylor: an act authorizing the collection of toll at the Cahawba bridge: an act concerning the Cahawba bridge: resolution relating to the county of Montgomery: an act to repeal part of an act therein named, and for other purposes: an act appointing persons to examine Tuskaloosa and Buttahatchee rivers: an act for the relief of John M. Flinn: an act to incorporate the town of Hazlegreen in the county of Madison: an act imposing a tax on non resident and transient persons making sale of goods and merchandize in this state: an act to incorporate the most worshipful Grand Lodge of Ancient Freemasons of Alabama and its Masonic jurisdiction.
An act to alter and amend the militia laws of this State, and an act to amend an act passed at Huntsville, December 16, 1819, entitled an act to establish a public road therein named
Mr. Weedon moved the adoption of the following resolution, which was carried. Resolved, that a committee be appointed to act with such committee as may be appointed by the senate, to inform his excellency the acting Governor, that the General Assembly have finished all the business before them, and if he has no further communications to make, will be ready to adjourn this evening at five o'clock.
A communication was received from the senate by Mr. Chambers, informing the House that the senate had concurred in the foregoing resolution and have appointed a committee on their part.
Message from the acting Governor by Mr. Rogers, the secretary of state. Mr. Speaker, I am instructed by the acting Governor to inform you, that he did on this day approve and sign the following acts to wit:- An act concerning persons residing on the university lands and who have not rented the same and for other purposes. Resolution concerning the printing of the Journals and laws of the present General Assembly. Resolution establishing certain additional election precincts in the county of Henry, and an act supplementary to an act making appropriations for the year 1821, and for other purposes.--- Mr. Weedon from the joint committee appointed to wait on his Excellency the acting Governor, reported, that the committee had performed the duty assigned them, and his Excellency informed the committee that he had no further communication to make.
On motion of Mr. Weedon, Ordered, that the senate be informed, that this house will be ready to adjourn at the hour of five o'clock.
Message from the senate by Mr. Dick. The senate will be ready to adjourn at 5 o'clock this evening. On motion of Mr. McVay the fol-
lowing resolution being presented to the clerk, was unanimously adopted. Resolved, That the thanks of this house be presented to the Honorable George W. Owen for the ability, dignity, and impartiality with which he has performed, the arduous duties of Speaker of the House of Representatives during the present session of the General Assembly.
Whereupon, the Speaker rose and addressed, the House as follows:
Gentlemen--- Permit me to return you my thanks for this repetition of your approbation of my conduct as the presiding officer of this body. The highest reward I can ever wish to enjoy as a public agent, is the approbation of those whom I serve. We have now closed, the labors of the present session, and I should not do justice to my own feelings, were we now to part without an expression on my part of the high personal regard which I have for each of you individually. In the discharge of the various duties of the chair, I have ever found you willing to contribute your aid in promoting the important objects of our deliberations. I have never enjoyed a sincerer pleasure than that which I have experienced in observing the constant attention of this body to the weighty and important business upon which it has been assembled. With this ardent devotion of the public agents to the interests of the people, their liberty can never be endangered, and their prosperity and happiness must ever be promoted. As we are about to return to our respective homes, let me assure you, Gentlemen, that you carry with you my warmest wishes for your welfare and happiness, and that of those who may be most dear to you.
And then the House adjourned sine die.
Attest, J. J. PLEASANTS, Clerk of the House of Representatives.
ERRATA: Owing to the hurried manner in which the Journals were necessarily printed, the following mistakes escaped the publishers- which, readers will be good enough to correct with their pen. In the 38d page, and 3d line from the bottom, for Mr."President" read Mr. Speaker. And in a few copies of the Journals, page 56, 3d line from the top, an error of some import was permitted to pass. Read Mr. McVay, instead of Mr. McKinley.