Mr. Morton, from the committee on enrolled bills, reported that the committee have examined bills of the following titles, viz.: An act supplementary to the laws now in force concerning wills, intestates and guardians. An act to incorporate the town of Claiborne. An act to incorporate an Aqueduct Company in the city of Mobile. An act to incorporate the Flint River Navigation Company. An act granting to John Fowler the right of running a Steam Ferry Boat between the city of Mobile and the town of Blakeley. A resolution authorizing the Comptroller to receive all monies and notes arising from the rents of the Seminary Lands. An act to alter and extend the bounds of Jefferson County, and for other purposes. An act to establish certain election precincts therein named, and for other purposes. An act to amend an act entitled an act for the inspection of lumber and other articles therein named, passed at Huntsville on the 17th day of Dec. 1819. An act authorising the Judges of the Circuit Court, and Justices of the County Court, to take the acknowledgments of deeds, and the relinquishment of dower. An act concerning executions and sales by sheriffs, and for other purposes. An act concerning writs of error. An act authorizing the Governor to sell lots on the public lands, east of the Alabama River, and opposite the town of Cahawba; which said bills the committee find correctly enrolled. Mr. McKinley, from the joint committee of conference, on the disagreement of the Senate, to the bill to apportion the Representatives among the several counties of this state, and to divide the state into senatorial districts according to the returns of the late census, submitted the following report-
The committee appointed by this House as managers of the conference, requested by the Senate on the disagreement of this house to the amendments made by the Senate to the "bill to be entitled an act to apportion the Representatives among the several counties of this State, and to divide the State into Senatorial districts according to the returns of the late census," beg leave to report, that they have met the managers appointed on the part of the Senate, and in conference submitted in substance the following reasons in support of the cause pursued by this House, to wit: The constitution on the subject of apportionment is in some instances ambiguous, but like other instruments it must receive such construction as will carry into effect all its provisions if practicable; and if it be impracticable to give operation to all, the least important must yield to those of a higher character. If the question under discussion depended on this rule alone, it is believed the provisions of the constitution requiring the present General Assembly to apportion the Representatives and Senators and to divide the State into senatorial districts, is of higher import than any provision in relation to the senatorial term of service. But when the question is fully investigated it will be found, that the term of service of the senators to be elected in the incipient stages of the government is contingent, and does not depend alone, upon the term of three years mentioned in the 12th section of the third article of the Constitution; but upon other provisions which in their character are active, and require some act to be performed before they can go into operation. By complying with the requisition of the 13th section of the same article, one third of the senators will have right to serve out for one year, one third for two year, and one third will serve for three years, although all were chosen for the term of three years. If however, the Senate convened under this section shall refuse to cast lots, and make the classification therein required, the term of service of each must necessarily be the same, all having been chosen for the same term; but this refusal would be a violation of a positive command of the
Constitution, and render that body after that session unconstitutional. A senatorial term is mentioned in the latter part of the 8th section of the schedule to the constitution which for the present may be admitted to mean three years; but it can only be ascertained to be so by reference to the 12th section of the third article before referred to. As to the ninth section of the same article has pointed out the time when an enumeration is to be made and the apportionment necessary thereon, and the 10th section of the same article has commanded the General Assembly at the first session after every such enumeration, to fix by law, the whole number of senators and to divide the State into the same number of districts. It is obvious that the term of service mentioned in the schedule can only be two years unless we violate the mandate of that section by refusing to pass a law fixing the number of senators and dividing the State into districts, which refusal would be equivalent to a refusal to classify on the part of the Senate convened in conformity with the 13th section before referred to, and will make the senatorial term depend upon the will of the Legislature and not upon the constitution. If is further believed that no correct distinction can be drawn between the mandatory influence of the 10th and 13th sections of the 3d article, nor can the obligatory force of one be considered stronger than the other. Both require an act to be performed before the senatorial term can be reduced to less than three years. The performance of the act reduces the term of service and a refusal in either case must violate the Constitution. Taking all those provisions of the Constitution together it appears very clear that a senatorial term of service is nothing more than that period of time that a senator may serve without violating some positive provision of the Constitution which conflicts with the "term of three years." But in ascertaining when the term of the present senators expires and when the first apportionment is to be made the rules of construction on which that forgoing reasoning is based, becomes in a great degree necessary. Because, the temporary General Assembly created by the 8th section of the schedule limited, for two years by a fair construction of that section taken in conjunction with the other provisions to which it plainly refers. That section points directly to the time when all its powers shall cease, and that time is rendered absolutely certain by other provisions to which it points, which provisions now operate and now command us to perform the necessary acts to terminate the powers of the 8th section and carry into operation the permanent provisions. The policy and character of the permanent regulations of the government are entirely different from those in the schedule. After this period the House of Representatives cannot under the present enumeration be less than forty-four, nor more than sixty; nor can the Senate be less than one-fourth, nor more than one-third of that number. The schedule provides in the 8th section, that "until the first enumeration shall be made as directed by this Constitution," the counties therein specified shall be entitled to the number of Representatives attached to each respectively, and each county shall be entitled to one senator who shall serve for one term. The word until, limits and controuls the operation of the whole section, unless that part of the section which provides for the senatorial branch, can be released from its influence. Upon sound principles of grammatical construction, this appears to be impossible. The copulative conjunction "and," unites the senatorial with the Representative branch of this temporary General Assembly, and subjects both to the same rule of construction, consequently when one ceases to exist, the other must cease also. They are united by an indissoluble tie, and one fate awaits them both. What that fate will be under existing circumstances is fearful to contemplate. If a redeeming power still remains in the constituted authority of this General Assembly, that power ought to be exerted for the salvation of the Constitution and the perpetuation of that government which is the choice of the people, and which we as their Representatives have sworn to preserve inviolate. A refusal to carry into operation those provisions of the Constitution which direct a reorganization of the government according to its permanent form and character amounts to a dissolution of the whole and resolves it again into its elements. The people without their own consent are driven to the dire necessity of incurring the expence, trouble, and dangers of forming a new system of government for themselves because those to whom they had confided the power of perpetuating the present have refused to discharge their duty. The responsibility incurring by this act is awful, and before either branch of this General Assembly takes its whole weight upon themselves they ought to weigh well its consequences and avert the impending evil if possible. But we must all remember that we have sworn to support the Constitution, and we must therefore act upon all the dictates of our own consciences and judgments, let the consequences be what they may.
This committee received from the managers appointed on the part of the Senate, following reasons in support of the course pursued by that body on this interesting and momentous subject. All which they respectfully submit to the House.
The committee appointed on the part of the Senate to confer with the committee appointed by the Representative branch on the amendments made in the Senate to the bill apportioning the Senators and Representatives under the late census offer to the House of Representatives the reason which influence the course pursued in Senate.
It is believed the 8th section of the schedule does not lead to the 10th section of the 3d article to shew when Senators shall be apportioned, because it contravenes the main intention as will appear from the 12th section of the same article.
It is believed the duration of a Senatorial term until the classification ordered in 1826 is three years: and that the 13th section of the 3d article cannot apply to this question because this section is manifestly intended to be an exception to the general term of senatorial office, in order to effect a particular object and enters fully into the main intention of the framers of the instrument and to give effect to the 9th and 10th sections at this time would destroy the main intention unequivocally expressed, without the necessity of effecting a particular object which could not be otherwise effected. It is also believed that if the 8th section of the schedule is to form the data of a senatorial term, commencing from an election ordered in the preceding section, that it applies with equal force to the Representatives elected in 1819. This section declaring, that until the first enumeration shall be made, each county shall be entitled to the number of members therein designated. The enumeration cannot be considered as being made within the meaning of the Constitution until made to the constituted authority which has been done at the present session. It consequently follows that the Representatives now convened, hold their stations in contravention of the Constitution: for in this section, the duration of their service is measured and fixed by the first enumeration by which they are recognised as constitutional members for two sessions without an intermediate election; yet as the 2d and 12th sections of the third article goes imparatively to destroy the application given this section, the Senate cannot indulge it. In no part of the Constitution can the Senate find an authority to elect Senators for one year, which must follow if the bill passes, or they must be elected for three years, which directly goes to mandate all the provisions relevant to the senatorial department in future.
If the Senatorial districts are now laid out and persons elected to fill them, it is believed these persons cannot be viewed as constitutional Senators, the first year of their service being the last year of those senators elected in 1819, and settled by the 12th section of the 3d article. It is further more believed that if senatorial districts are now laid out and a senatorial apportionment made the senators next elected must hold their offices for three years, and cannot be construed to hold them for any less or greater duration of time. The reasons inducing this belief are these: an apportionment predicated on the basis of an enumeration of the white inhabitants, brings you to the great and permanent principles of the Constitution, viz. that Representation must ultimately proceed on the enumeration of white inhabitants, whenever therefore an apportionment of the Senate will take place on the basis of an enumeration of white inhabitants, the ultimate object of the Constitution is accomplished as regards the senatorial representation, and it must follow that their term of office will also be regulated by the ultimate provisions on this subject. It is needless to remark that in that case, their term of office is a term of three years. The Senate have never ceased to deplore the difference of sentiment existing between the two Houses, but one command is known to both.
If an unfortunate miscalculation crept into the convention in relation to the first census from which emanated the mandate upon which the present enumeration is made. If that enumeration goes to break down the intention of the framers of the Constitution, If it goes to contravene the main provisions of the constitution as relates to the senatorial department, and in doing so prostrates the best interest of the country. It is suggested how far this provision is to be viewed as nugatory going to destroy that which it was intended to preserve. On motion of Mr. Moore of Madison, Resolved, that the House of Representatives inform the Senate that this House will be prepared to adjourn sine die this day at the hour of three o'clock: Ordered, That the Senate be informed of the adoption of the foregoing resolution. On motion of Mr. Morton, the rule forbidding the introduction of new business was suspended. Whereupon Mr. Morton introduced the following resolution. Resolution allowing the clerk of the House of Representatives and Senate compensation for ex-officio services, which was read a first time, and the rule being further dispensed with, was read a second and third times forthwith, and passed. Ordered, that the same be sent to the Senate for their concurrence.
A message from the Senate, by Mr. Dick.- Mr. Speaker, The Senate have passed an act to reduce into one the several acts concerning roads, bridges, ferries and highways, and have amended the same by striking out in the 10th section, to wit, after the word road in the 22d line from the top of the 4th page to the end of the section. Also by striking out in the 11th section to wit: after the word evidence in the 1st line of the 5th page to the end of the section. They propose to strike out the whole of the 32d section. In which amendments they desire the concurrence of your honorable body.
The House proceeded to the consideration of the amendments made by the Senate to the bill entitled an act to reduce into one the several acts concerning roads, ferries, bridges and highways, and concurred in the amendments made by the Senate.
A message from the Senate, by Mr. Dick, Mr. Speaker, The Senate recede from their amendments to the bill to incorporate the subscribers of the Bank of the State of Alabama, which were disagreed to by the House of Representatives, and the Senate concur in the amendment made by your honorable body to the amendments made by the Senate to said bill. They have also passed an act, for the relief of Elijah Lawley, which originated in your honorable body, and then he withdrew.
On motion of Mr. Murphy, the rule preventing the introduction of new business into the House was suspended, whereupon Mr. Murphy obtained leave to introduce the following resolution: a resolution making Comptroller's warrants receivable into the treasury for money due upon the sale of lots in the town of Cahawba, which was read a first time and the rule being dispensed with, was read a second and third times forthwith and passed. Ordered, That the same be sent to the Senate for their concurrence.
On motion of Mr. Moore of Madison, the rule preventing the introduction of new business was suspended. Whereupon Mr. Moore obtained leave to introduce the following resolution: a resolution for printing the Journals and Laws of the present General Assembly, which was read a first time, and the rule requiring bills, &c. to be read on three different days being dispensed with was read a second and third times forthwith, and passed. Ordered, That the same be sent to the Senate for their concurrence.
A message from the acting Governor, by Mr. Rogers. Mr. Speaker, I am directed by the acting Governor to inform you, that the did on the 18th instant. approve and sign an act to establish a State University; an act to fix the seat of Justice in the county of Blount and for other purposes; and on the 20th inst. an act to incorporate the lower part of the town of Tuskaloosa; an act to alter the boundaries of certain counties therein named: an act to organize the militia of this State. All which acts originated in this House, and then he withdrew.
A message from the Senate, by Mr. Dick. Mr. Speaker, The Senate have passed the bill to alter and enlarge the terms of certain circuit courts to which they have made amendments, and desire the concurrence of your honorable body thereto, and he withdrew. The House took up the bill aforesaid, and agreed to the amendments made by the Senate. Ordered, That the Senate be informed thereof.
Mr. Morton from the committee on enrolled bills reported that the committee have examined bills of the following titles, to wit: an act, to amend an act, passed at Huntsville the 13th November, 1819, incorporating the town of Triana: an act to regulate proceedings in suits at common law; an act supplementary to an act, establishing the seat of justice in Cahawba county, passed at Huntsville 17th December, 1819; an act amendatory of an act, passed by the Legislature of Alabama, at Huntsville, the 18th, December, 1819, entitled an act, to establish a road therein named, and find the same correctly enrolled.
A message from the acting Governor, by Mr. Rogers. Mr. Speaker, I am instructed by the acting Governor to inform you, that he did on this day approve and sign a resolution authorising the payment of Chapley R. Wellborn; an act, to authorise persons who have settled on the 16th sections in each township to remove mill works, or machinery, and for other purposes; an act to authorise the payment of sixty dollars, to Samuel Dale; an act to legalize registering certain deeds or conveyances of land in this State; an act to authorise the persons therein named to sell and transfer certificates for land; an act prescribing the mode of making out and authenticating accounts against this State; an act to raise a revenue for the support of government for the year 1821; an act supplementary to the laws now in force, concerning wills, intestates and guardians; an act concerning executions and sales by sheriffs and for other purposes; an act to authorise the judges of the circuit courts and justices of the county courts to take the acknowledgments of deeds and relinquishments of dower; a act, concerning writs of error; an act to incorporate the town of Elyton in the county of Jefferson; an act concerning the appointment of county officers; an act to amend an act, entitled an act, for the inspection of lumber and other articles therein named, passed at Huntsville on the 17th December, 1818; an act granting to John Fowler the right of running a steam ferry boat, between the city of Mobile and the town of Blakeley: an act to incorporate an aqueduct in the city of Mobile; an act to incorporate the town of Claiborne; resolution authorising the Comptroller to receive all moneys and notes arising from the rents of seminary lands; an act to alter and enlarge the bounds of Jefferson county; an act to establish certain election precincts therein named, and for other purposes, and an act to incorporate the Flint river navigation company. All which acts originated in this house; And then he withdrew.
Message from the Senate by Mr. Dick, Mr. Speaker, The Senate have passed a bill entitled an act to apportion the representation among the several counties within this State, to which they desire the concurrence of your honorable body.
The House took up the aforesaid bill from the Senate, entitled an act to apportion the Representation among the several counties of this State, and the question being submitted, is it in order for the House to take this bill into consideration? It was decided in the negative, by ayes and nays, Ayes 17, nays 17. Those who voted in the affirmative, are Messrs. Speaker, Abercrombie, Bigham, John Brown, Creagh, Coats, Coleman, Duke, Evans, Hill, Murphy, Murrell, McMeans, Perry, Rather, Sargent, and Tagert, 17. Those who voted in the negative, are Messrs. Isaac Brown, Clay, Cook, Doxey, Davis, Edmundson, Leake, McKinley, Moore of Madison, Morton, Moore of Marion, McVay, Mims, Perkins, Shackleford, Vining and Walker, 17.
Mr. McVay moved to postpone said bill indefinitely which was carried. Ayes 19, nays 17. Those who voted in the affirmative, are Messrs. Abercrombie, Isaac Brown, Clay, Coats, Doxey, Davis, Edmundson, Hill, Leake, McKinley, Moore of Madison, Morton, Moore of Marion, McVay, Mims, Perkins, Shackleford, Vining, and Walker 19. Those who voted in the negative, are Messrs Speaker, Bigham, Benson, John Brown, Creagh, Cook, Coleman, Dale, Duke, Holderness, Murphy, Murrell, McMeans, Perry, Rather, Sargent, and Tagert, 17.
Mr. Morton from the committee on enrolled bills, reported, that the committee have examined bills of the following titles, to wit: an act to lay a tax on the inhabitants of Washington county; an act to provide for enclosing the public buildings and for other purposes; an act for the relief of the tax collector of Lauderdale; an act to amend an act to provide for leasing for a limited time the lands reserved by Congress for the support of schools in each township in this State; and, an act giving jurisdiction over water courses, and find the same correctly enrolled.
The House took up the bill from the Senate entitled an act concerning divorce which was read a first time, and the rule being dispensed with was read a second and third times forthwith and passed: Ordered, That the Senate be informed thereof, and then the House adjourned till 9 o'clock to-morrow.