Mr. Elliott from the select committee, to whom was referred the resolution requiring them to draft and report to this house, the reasons by which the senate were influenced on the subject of apportioning the two branches of the General Assembly, made the following the report, to wit:
The committee, appointed by the senate, to prepare the reasons which influenced them, in disagreeing to the amendments, made in 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: respectfully submit to your honorable body, the following statement. That they are constrained by a sense of duty, imperative in its nature, and deducing its origin from the constitution of this state, to resist, the illegal pretensions (as they conceive) of the House of Representatives, in endeavoring to coerce them into the apportionment of their own body. That this constitution was intended by the people of Alabama, as the corner stone of their political edifice, as the ark of their civil and political liberty, in a word, as the foundation of that form of government, which by the wisdom and immutablility of its essential constituent parts, was to establish for them, permanent Justice; to ensure public and private tranquility; to promote the general welfare, and to ensure to them, and their posterity, the inestimable rights of life, liberty and property--with this constitution then as the guide of their proceedings, your committee can experience but little difficulty in justifying this honorable body, to their constituents and to posterity, for the opposition they made, and the resistance they showed to the proceedings of the House of Representatives, in attempting to effect simultaneously the apportionment of both branches of the General Assembly, in direct opposition, (as they conceive) not only to its important and imperative provisions, but to its letter and spirit.
From an examination of the reasons which are presented by the House of Representatives, and which must necessarily have influenced them, in the amendments, they wished to make, to the bill from the senate, to be entitled "an act to apportion the Representatives &c." Your committee are induced to believe, that the House of Representatives, erroneously conceive, that the 8th section of the schedule to the constitution, has alone given rise to the unfortunate difference of opinion, which has existed between the two houses of the General Assembly, in relation to the question of apportionment. That the belief is deduced form the report, made by the committee from the House of Representatives, on the said subject. Your committee are therefore, of the opinion, that if the premises, assumed by the committee of the House of Representatives, as the basis of their argument, should be evidently, shown to be incorrect; the fallacy of any conclusions drawn from them, may be easily detected. In examining the term of service of the present senators, the committee have examined such parts of the constitution, as they conceived would throw any light on a subject, avowedly dark and obscure, and have governed themselves by the recognized and established rules of construction, in relation to such and similar subjects. The 8th section of the schedule provides that "until the first enumeration shall be made, as directed by this constitution, the county of Autauga
shall be entitled to two representatives," and after enumerating the several counties, in this state, and extending to them, representation in the representative branch, &c. it concludes by declaring "and each county shall be entitled to one senator, who shall serve for one term." The difference and opposite explication or difinition of this word, "term" has given rise, to the unfortunate difference of opinion, which pervades both branches of the General Assembly. According to all correct rules of construction, when a word is used in composition, the meaning of which is undefined or ambiguous, we are necessarily compelled to resort for true explication, or satisfactory definition of it, to any precedent part of the work, in which the meaning of such word may be more amply defined, or the ambiguity removed. The word term, merely, being used in the eighth section of the schedule, to ascertain its duration, we are, necessarily, compelled to resort to any preceding part of the constitution, in which such word may be amply, and satisfactorily defined. In pursuing this rule, in the present case, the difficulty which presents itself, in relation to the definition of the word term, is obviated, and apparent darkness and obscurity is substituted by the rays of light. The 12th section of the 3d article of the constitution declares that "senators shall be chosen by the qualified electors, for the term of three years" &c. Here, then, is the only place, in the constitution, in which the word term is defined. And the word term, used in the 8th section of the schedule, must evidently, for its explication, have relation to it. If, however, doubt should still attach to the mind of any one, in relation to the correct definition of the word term, used in the 8th section of the schedule, or to the time of the service of the present senators, a recurrence to the 7th section of the schedule, must remove it. This section provides, that the president of the convention shall issue writs of election, directed to the sheriff of the several counties, requiring them to cause an election to be held, for a Governor, Representatives to the Congress of the U. States, members of the General Assembly &c. and the said Governor, and members of the General Assembly, then duly elected shall continue to discharge the duties of their respective offices, for the time prescribed by this constitution, and until their successors shall be duly qualified." According to this provision of the constitution, it is, emphatically and imperatively, declared that the Governor and the members of the General Assembly, elected in pursuance of the writ of election issued by the president of the convention shall, when thus elected, hold their offices during the time prescribed by this constitution, and until their successors shall be duly qualified. A search for a prescribed senatorial term, but for the 12th section of the 3d article, would be vain and fruitless. Can it be necessary to offer any argument to satisfy the clear, intelligent and logical mind, that there is a difference between a prescribed term, and a term, which is the mere creature of construction, or implication? And yet, the advocates of the apportionment, of both branches of the General Assembly are compelled, in order to sustain their propo-
sition, to resort to the 8th section of the 3d article, and by the exercise of ingenuity give birth to an implied term.
But, it is urged, that the schedule merely provided for a temporary Legislative body; a body, which is said to be inconsistent with the principles laid down in the 3d article of the constitution. Is this proposition correct? And if correct how is the difficulty to be removed, or obviated? The 9th and 10th sections of the 3d article, are relied upon by the advocates of apportionment, to support this proposition. These sections are relied upon, as the basis of their arguments, on all occasions. Omnipotence is allowed to them --and they are said to control any and all provisions of the constitution, which may conflict with them. A temporary legislative body, only, is formed by the 8th section of the schedule, in their conception. And they attempt to support their proposition, by these words, in the commencement of the 8th section of the schedule, "until the first enumeration shall be made, as directed by this constitution" according to the spirit of the constitution, it must have been the intention of the convention, to continue the duration of the term of service of the present senators for three years. 1st, Because, in the commencement of the 8th section of the schedule, the following words are used "until the first enumeration shall be made as directed by this constitution." What are the directions of the constitution? The 9th section of the 3d article, declares that "the General Assembly, shall at their first meeting, and in the years 1820, 1823, and 1826, and every six years, thereafter, cause an enumeration to be made, of all the inhabitants of the state. Why did the constitution require two enumerations to be made, the one 1819, and the other in the following year? Because it was evidently, the intention of the framers of the constitution, (an intention which they believed they had carried into effect) to make the senatorial term of service, three years. It was their wish, perhaps to apportion both branches of the legislature, at the earliest period, they therefore, required the General Assembly, to cause enumeration in1819 and 1820. According to the former, the House of Representatives was to be apportioned; according to the latter, the Senate was to have been apportioned. The framers of the constitution, believing that they had made the senatorial term three years, were satisfied that the first senatorial term would only expire in August, 1822. They, therefore, considered it was of vital importance to the interest of the state, that the second apportionment of Senators (as they held their offices for three years) should be formed from a just, and correct estimate of the population of the state: and therefore, although the constitution required the General Assembly to cause an enumeration in 1819, they also required them to cause a second enumeration in 1820. --Again the first enumeration was to be made, according to the directions of the constitution. The 12th section of the 3d article, declares "that Senators shall be chosen for the term of three years; here in a direction of the constitution.
The 8th section of the schedule declares that each senators shall
serve for one term. This is another direction of the constitution. The 7th section of the schedule also provides, that the Governor and members of the General Assembly, elected in pursuance of the writ of election, issued by the President of the convention, should hold their offices, during the time prescribed by the constitution. Is not this another direction of the constitution? And had not its framers, their eye upon the 12th section of the 3d article? Besides the journals of the convention, evidently, show, that the senatorial term of service, was intended by the framers of the constitution, to be three years. If this were not the case, why were the 9th and 10th section of the 3d article kept separate and distinct? The answer is obvious, because the one related to the house of representatives; the other to the senate --else, why did the convention in the 8th section of the schedule, make use of the word term, when for its explication recurrence is to be made to the 12th section of the 3d article? But, admit that to establish the senatorial term, at three years, would be to cause the 12th section of the 3d article, to conflict with the 9th and 10th sections of the same article: How would the question then stand? It is an established principle of law, in relation to the construction of statutes, that they must be so construed, that the whole may if possible stand. If different statutes, or different sections are so contrary, that the whole cannot statute, the rule is, that the posterior law or posterior section, by implication, repeals so much of the former law, or section as may conflict with it. Then in opposition to the 9th and 10th sections of article 3d, it would be proper to array the 12th section of article 3d and 7th and 8th section of the schedule, which three latter sections would certainly operate to repeal the two former sections of article 3d.
The committee of the House of Representatives seem to conceive, that although senators may be chosen for three years, and in fact, admit that they were thus chosen; yet they say, there is a marked distinction between being chosen for a given period and serving for the same period. And that if reference be made to the 12th section of article 3d it will be seen that senators chosen for three years may serve for one year, two years or three years as chance direct. They, further conceive, that these deductions are supported by the 2d section of the same article, which say "the members of the House of Representatives, shall be chosen by the qualified electors, and shall serve for the term of one year. The 13th section of the 3d article, relied upon by the committee of the House of Representatives, to support their position, that senators may be chosen for three years and yet be constitutionally authorized to serve but for one year, cannot aid, or avail them because that section, specially, has reference to the apportionment, under the census, ordered to be taken in 1826, and declares "that the senators chosen under the apportionment shall be divided by lot into three classes as nearly equal as may be, and that the seats of the senators of the first class, shall be vacated at the expiration of the first year, those of the 2d class at the expiration of the section year, and
those of the third class, at the expiration of the third year. So that one third may be annually chosen thereafter, and a rotation thereby, kept up, perpetually. This section can only be carried into operation, when the permanent provisions of the constitution can be carried into effect; and cannot apply to the 9th and 10th sections of the 3d article, in such manner, as will support the singular position taken by the House of Representatives, in relation to their distinction between the phrase chosen for three years and serving for three years, or two years or one year, as chance may direct. It cannot be conceded that because a classification is ordered to take place after the apportionment, under the census ordered to be taken in 1826 is made, and the senators are to be divided by lot into three classes, that it could have been the intention of the convention to have directed, or that the spirit of the constitution would justify such a course, previous to the period designated by the 13th section of the 3d article for the classification to be made. Yet the House of Representatives concur that although, senators are chosen for three years, chance entirely, is to direct the period of their service. It is apparent, from the 13th section of the 3d article, that the framers of the constitution were not disposed to leave any thing, to it, they left nothing more than that the senators chosen under that section, should draw lots for the first, section and third class.- But they did not leave it to chance, or to the whim or caprice of man to say how long the first, second and third senatorial terms, under the constitution, should endure; or that one construction might to-day be placed on the words chosen or serve and to-morrow to permit different distinctions to prevail. But the House of Representatives in the further support of their position have referred to the 2d section of the 3d article which declares "that the members of the House of Representatives shall be chosen by the qualified electors, and shall serve for the term of one year" hence they conceive, that when the convention intended to fix any definite period, they so expressed it accordingly. And because the word term is, merely mentioned in the 8th Section of the Schedule, without assigning to it any period of time, it may mean one, two, or three years as chance may direct. It will be recollected, however, that a period of time was, and is assigned by the 12th section of the 3d article in relation to the word term, as applied to senators, and in using the word term merely, in the 8th section of the schedule of the constitution; the framers of that instrument evidently, had allusion to the 12th section of the 3d article; when a definite period is assigned to it; and did not intend, that the term should be fixed by chance. That part of the 9th section of the 3d article; which provides "that the House of Representatives, shall not consist of less than forty-four, nor more than sixty members, until the whole number of white inhabitants shall be one hundred thousand --- and the 10th section of the same article, cannot apply, at present, to the subject of enquiry, because they are permanent provisions, and were intended to have affect, and to commence their operation, only, after the temporary provisions of the constitution should expire, by the limitations affixed to
them in the schedule.-- If such was not the intention of the framers of the constitution, why did they in the 7th section of the schedule, among other things declare "that the members of the General Assembly to be elected according to the provisions of that section, should hold their office as during the time prescribed by the constitution and until their successors should be duly qualified. Where is the time prescribed by the constitution, and alluded to in this section to be found? In the 12th section of the third article! Where is the definition to the word term, used in the 8th section of the schedule, and applied to senators to be had? In the 12th section of the 3d article! Hence it is conceived that the permanent provisions of the constitution were only to go into operation, after the temporary provisions of the constitution should be, constitutionally, superceded by them.
Your committee would further remark, that it could not have been the intention of the convention, for the senatorial branch to be governed by the enumeration in 1819. Because it would prevent carrying into effect, every other enumeration to be afterwards taken. If the time of the senators now in office, was to expire in August 1821 and the state were to be laid off, under the permanent provisions of the constitution, into districts, it is believed, that the senators then elected, must serve for three years under the 12th section of the 3d article. In that event, the term of the senators elected in August 1821, would expire in August 1824, the term of those elected in August 1824, would end in August 1827. The 9th section of the constitution directs, that an enumeration shall be ordered in 1823- 1826 and every six years, thereafter." The 10th section directs, that at the first session, after making every such enumeration, the state shall be laid of into districts, and each district shall be entitled to one senator, and no more. It would therefore result, that the enumeration ordered in 1823, could not be carried into effect, as the senators would be elected in August 1824, and the enumeration ordered to be taken in 1823, could not be acted on, until the fall session, of the same year. Should this construction be correct, the census of 1819-20 would govern until 1828. But should the course pursued, by the senate prevail, no difficulty can occur. The senators first elected would go out of office in 1822; a new senate would serve in the November session of that year. They would order an enumeration, as directed by the constitution, in 1823, act on it in the November session of 1824, and go out of office in August 1825. A new senator would come in, and serve in the November session, of that year; they would order an enumeration in 1826, act on it in 1827, and go out of office in August 1828. A senate would serve in that year, and be classed as directed, by the 13th section of the 3d article. It would be well to enquire, why the convention should have selected the session of 1825, to fix on the scite for the seat of Government, and 1828 for the classification, the reasons are obvious. The session of 1825, would be the commencement of the 3d senatorial term, 1828 would also be the commencement of the 4th senatorial term
The reasons above assigned, conclusively satisfy the committee, that they cannot constitutionally, apportion their own body, previous to the regular session of 1821 -- And they are at the same time, constrained to believe, that the apportionment of the House of Representatives should be made.
Mr. Elliott moved that said report receive the concurrence of the Senate and be entered upon the Journals.
And the question being taken thereupon, the ayes and nays being called for, it was decided in the affirmative.
Those who voted in the affirmative, are Messrs. Casey, Conner, Chambers, Dennis, Elliott, Farmer, Gause, Gaines, Hanby, Hogg, Lucas, Rose, Terrell, Trotter and Ware.
Those who voted in the negative, are
Messrs. President, Davis, Devereux, Garth, and Ringgold.
Mr. Terrell from said committee, made the following additional report which was read and concurred in.
The bill apportioning the representative branch has fixed the ratio at 1740 by which Representation in several of the old counties will be reduced, others will be increased, and several of the new counties will from actual numbers be entitled to separate representation. It is considered that the apportionment of the Representative branch at this time, is commanded by the 9th section of the 3d article, predicated on, and strongly supported by the first section of the declaration of rights, "that all freemen when they form a social compact are equal in rights." to apportion therefore the Representative branch under the census of 1819 is deemed by the senate to be nothing more or less, than bringing into action under the several provisions of the social compact, rights inherent in the people and specially guaranteed by the constitution.
It is furthermore believed, that inasmuch as an enumeration has been made, upon which the equal rights of the people in relation to the representative branch at this time, seems clearly to be ascertained, that a refusal or neglect to apportion that branch must inevitably produce the following result.
That every county in which Representation would be reduced, will have in the councils of the country an excess of power; counties in which the Representation would be increased will be denied their right in government, and new counties however entitled to separate representation by absolute numbers will be placed without the pale of the constitution. Any measure calculated to produce results of this sort is believed to be an unwarrantable indulgence on the one hand, and an absolute denial of justice on the other. It is viewed as giving to certain sections of the country an undue right in government, and denying to other citizens equally free, and equally protected by the constitution that principle of eternal equality so firmly guaranteed by the social compact.
The following message was received from his Excellency the acting Governor by Tho. A. Rogers, Esquire Secretary of State, to wit
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 rule 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 relative to their organization and power of acting that to alter the number or distribution of one branch without at the sametime apportioning and dividing the other will defeat and destroy the constitutionality of both. It is true the duty of apportion and the rule by which the apportionment is to be made are defined in two separate sections, but 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 of 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.
Which was read and ordered to be spread on the journals.
The communication aforesaid from his Excellency the acting Governor assigning his objections to the bill entitled an act to apportion the Representatives among the several counties according to the returns of the late census, was again read.
The Senate then proceeded to reconsider said bill
Whereupon the question was put, shall the Senate agree to pass this bill, agreeably to the manner prescribed by the constitution, it was determined by yeas and nays and passed in the affirmative, - yeas 19 - nays 1.
Those who voted in the affirmative are Messrs. President, Casey, Conner, Chambers, Dennis, Devereux, Elliott, Farmer, Garth, Gause, Gaines, Hanby, Hogg, Lucas, Ringgold, Rose, Terrel, Trotter and Ware.
Mr. Nicholas Davis voted in the negative.
Ordered, that the secretary acquaint the House of Representatives thereof.
Mr. Chambers introduced a resolution establishing certain additional election precincts in the county of Henry. Which was read the first time.
Mr. Chambers moved that the rule which requires all bills and joint resolutions to be read on three several days be dispensed with, and that said resolution be read the second time forthwith. Said resolution was then read the second time.
On motion of Mr. Chambers the rule which requires all bills and joint resolutions to be read on three several days was again dispensed with. Said resolution was then read the third time and passed. Ordered, That the Secretary acquaint the House of Representatives thereof.
Mr. Gause from the committee on enrolled bills, reported, that the committee had examined the following bills, &c. and found the same duly enrolled, 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 the journals and laws of the present General Assembly.
An act to amend 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, the 22d day of December, 1820, and for other purposes, and an act supplementary to an act making appropriations for the year 1821, and for other purposes, which were signed by the president.
A message from the House of Representatives by Mr. Weedon.
Mr. President- The House of Representatives have passed a resolution establishing election precincts in the county of Henry, which originated in your honorable body.
Message from the House of Representatives by Mr. Morton
Mr. President-The House of Representatives have adopted the following resolution.
Resolved by the House of Representatives, That a committee be appointed on the part of the House to act with such committee as may be appointed on the part of the senate to inform his excellency the acting Governor that the House of Representatives have finished all the business before them, and are ready to adjourn if he has no further communications to make.
They have appointed Messrs. Weedon and Morton on their part
On motion of Mr. Chambers the senate concurred in said resolution.
Whereupon Messrs. Chambers, Trotter and Conner were appointed on the part of the senate.
Mr. Gause, from the committee on enrolled bills, reported that the committee had examined a Resolution establishing certain election precincts in the county of Henry and found the same duly enrolled; which was accordingly signed by the President.
A message from the House of Representatives by Mr. Weedon:
Mr. President-I am instructed by the House of Representatives to inform your honorable body that they have finished all the business before them, and will be ready to adjourn sine die at the hour of five o'clock. On motion the senate concurred therein. Ordered, that the secretary acquaint the House of Representatives thereof.
A message from the acting Governor by Thomas A. Rogers, Esq. secretary of state:
Mr. President- I am instructed to inform your honorable body that his Excellency the acting Governor did this day approve and sign a resolution establishing certain election precincts in the county of Henry.
On motion of Mr. Garth, ordered that the Journals be completed under the direction of the President.
Mr. Chambers from the committee appointed to wait upon His Excellency the acting Governor and inform him that the General Assembly were about to adjourn unless he had further communication to make, reported that the committee had done so and received for answer that he had no further communication to make.
On motion of Mr. Gause, the following resolution was unanimously adopted: Resolved, by the senate, that the thanks of this House are due to the Honorable Gabriel Moore, for the able, just and attentive manner in which he has discharged the duties of the chair during the present session.
Whereupon Mr. President arose and addressed the senate in the following manner:
Gentlemen, I feel the liveliest sensibility in receiving this testimonial of your regard; nothing can be more grateful to my heart than the belief that the manner in which I have been enabled to discharge the duties of the chair has given general satisfaction.
It is due to this honorable body, that I should state that for the facility, and despatch with which our deliberations have been conducted, much is owing indeed, to the uniform, friendly, aid and support given the chair by this honorable body.
Gentlemen, For the polite terms in which you have thought proper to express your approbation of my conduct, you will please accept my acknowledgements- and for each individual member my sincere wishes for your future prosperity and happiness.
On motion of Mr. Casey, the senate adjourned sine die.
President of the Senate.
Attest, M. WILLIAMS,
Secretary of the Senate.