777

CONSTITUTIONAL CONVENTION, 1901
_____________________

TWENTY-SIXTH DAY
___________

                                                                                                                                           MONTGOMERY, ALA.,

                                                                                                                                            Friday, June 21, 1901.

     The Convention met pursuant to adjournment, was called to order by the President, and the proceedings were opened with prayer by the Rev. Mr. Murphy, as follows:

     O God, Ruler, Deliverer, Judge, whose will is the order of the world, and in whose right hand is the sceptre of righteousness forevermore, rule, we pray Thee, in our hearts today. Help us, in our silence and in our speech, in work and leisure, in our going out and our coming in, to dwell in the presence of Thy light, and to feel within us and upon us the calm watching of the eternal eye.

     Defend us from all that may be unworthy in the counsels of fear, and from all that is ignoble in the devices of selfish power. Give us, we beseech Thee, the renown of the dutiful and the joy of the true in heart, keep us by the Spirit of gentleness and by the courtesies of a healing and an understanding patience from the petty discord of selfish minds, that a common statesmanship may bring truth with peace, and harmony from the multitude of counsels. Grant that we may desire that for which we pray, and that we may perform what we desire. Give us wisdom, courage, truth!

     Touch with the hand of healing and of pity, the hearts of those who suffer and who sorrow. If affliction fall on any man


778

OFFICIAL PROCEEDINGS

among us bring love and strength and hope. When the shadows lengthen, and the far lights grow dim, and the breath of the long night comes up from the fields of sleep, and the dark river rolling by, help us then to go on like men, unafraid and unabashed, in that Thou our God hast called us Home, through Jesus Christ, our Lord. Amen.

     The roll was called and showed the presence of one hundred and thirty-eight delegates.

LEAVES OF ABSENCE.

     For Today--Mr. Merrill.

     For Yesterday and Today--Messrs. Eyster, E. D. Willett, Carmichael (Colbert).

     For Today and Tomorrow (Saturday)--Messrs. Winn, Coleman (Walker).

     For Tomorrow (Saturday)--Messrs. Bethune, Jones (Bibb), Heflin (Randolph), Waddell, Burnett, Long (Butler), Miller (Marengo), Almon, Davis (Etowah), Williams (Elmore), Norwood (Lowndes), Foshee.

     For Yesterday, Today and Saturday--Mr. Altman.

     For Saturday and Monday--Messrs. Craig, Stewart, Inge.

     For Yesterday--Dr. Cunningham (Jefferson).

     THE PRESIDENT--The Chair will explain that several requests were laid on the desk, and as the session on yesterday was protracted the Chair failed to place them before the Convention.

     THE PRESIDENT--The next order of business is the report of the Committee on the Journal.

     MR. PROCTOR--The Committee on Journal is not ready to report yet. We would like to have time and report some time during the day.

     The leave was granted.

     THE PRESIDENT--The next business is the call of the roll of delegates.

     MR. ASHCRAFT--The stenographic report made me say on yesterday that Mr. Carmichael desired to vote no on the question reconsidering the resolution. Mr. Carmichael desired to vote aye, and I voted no.

     THE PRESIDENT--The stenographer will make the necessary correction.


779

CONSTITUTIONAL CONVENTION, 1901

     MR. deGRAFFENREID--I move that we dispense with the regular order this morning and proceed to the consideration of the matter which was being considered when the House adjourned on yesterday.

     MR. COBB--I rise to correct the stenographic report. I would not do this except from the fact that I am made to say just exactly what I did not say. In about the fifteenth line it is written here "those who voted in the negative to the prior proposition, have come to understand myself among the number." I am thus put in the attitude of changing the position I took originally which was not my intention or language. What I said was that "those who voted in the negative to the prior proposition, myself among the number, have been greatly misunderstood. We were perfectly willing to have the salary of the Governor made $5,000 a year, but we took the position that it was a matter to be determined by the General Assembly itself," etc.

     MR. COLEMAN (Greene)--I notice some inaccuracies in the report of what was said by me on yesterday. Some of the sentences are incomplete. I believe, however, that enough remains, if a person should hereafter read the chronicle, to understand what I intended. I therefore do not desire to have any special corrections inserted.

     In reading the report of the remarks I made yesterday it is possible that some of the delegates may have understood that I was casting some personal reflection upon my friend, the delegate from Montgomery. I wish to disclaim anything of that kind. He is one of my best friends. I believe that his administration was as pure as that of any Governor of this State, and it had my endorsement throughout, but I felt justified at the time in making the repartee, or reply that I did, not intending in any way to he discourteous or to reflect upon him.

     MR. JONES (Montgomery)--I beg to say that on yesterday I was wounded, but what the gentleman has said is in keeping with what I have always believed to be his character, and if I were not on crutches, I would walk over and shake hands with him, and I now dismiss it from my mind forever.

     MR. HEFLIN (Chambers)--I wish to correct the stenographic report. At the conclusion of the speech of the gentleman from Macon I asked him if he did not think the word "should" would be better in the resolution than the word "requested," and the stenographic report has me saying "does not the word should make it in the nature of a request."

     THE PRESIDENT--The stenographer will make the correction.


780

OFFICIAL PROCEEDINGS

     MR. KIRK--I ask unanimous consent to send up a resolution, that it may be read and referred to the Committee on Rules.

     Resolution 172 by Mr. Kirk (Colbert.):

     Whereas, the power to regulate the right of suffrage should be left exclusively, to the several States of the Union, and

     Whereas, the people of Alabama find it necessary to the preservation of good government and honest elections to restrict the right of suffrage where granted to alien and inferior races, and desiring to avoid any seeming conflict between the organic law of the State of Alabama and the Federal Constitution, now therefore

     Be it resolved, That the President of this convention appoint a committee of five, of which he shall be chairman, to prepare suitable memorials to the Congress of the United States looking to an amendment of the Federal Constitution, whereby the fifteenth amendment of said constitution may be stricken therefrom.

     Referred to Committee on Rules.

     THE PRESIDENT--The Chair is requested to read the following:

                                                                                                                                  Montgomery, Ala., June 21, 1901.

To Frank N. Julian, Secretary Constitutional Convention, City:

     Sirs--Yours enclosing resolution No. 171 of the Constitutional Convention was duly received. The resolution was read to the Alabama Press Association and received with satisfaction. I was instructed to extend thanks for the handsome recognition of this Association by a convention which will rank in history as one of the most important that ever assembled in this State.

                                                                                                                 Very respectfully,

                                                                                                                        J. A. Roundtree,

                                                                                                                             Secretary Alabama Press Association

     MR. HARRISON--I ask unanimous consent to introduce a resolution, which is short and I think will commend itself to the convention.

     Resolution No. 173 by Mr. Harrison:

     Resolved, That the Committee on Rules be and are hereby restricted to fix the time in which all ordinances reported by committees shall be considered by this convention and at the expiration of the time so fixed the previous question shall be considered as ordered and the convention shall proceed to vote upon the ordinance reported.


781

CONSTITUTIONAL CONVENTION, 1901

     Resolved further, That half of the time fixed by the Committee on Rules for the consideration of any ordinance shall be allowed to the committee reporting the same and the other half to those proposing amendments and opposing the ordinance.

     Referred to Committee on Rules.

     MR. COBB--I ask unanimous consent to introduce two very short resolutions, in the interest of saving time to this convention, to be referred to the Committee on Rules.

     Resolution 174 by Mr. Cobb.

     Resolved, That rule 17 of this convention be amended by striking out the word "thirty" in the ninth line and inserting the word "ten" so as to limit the right to close the debate--after the call for the previous question has been sustained, to ten minutes.

     Referred to Committee on Rules.

     Resolution 175 by Mr. Cobb:

     Resolved, That requests for leave of absence shall be made to the speaker who is empowered to grant the same without taking up the time of the convention.

     Referred to Committee on Rules.

     MR. GRAHAM (Talladega)--I have a substitute for the Committee's resolution 151.

     MR. deGRAFFENREID--That is the resolution that was under discussion on yesterday?

     MR. GRAHAM--Yes.

     MR. deGRAFFENREID--Then I make the point of order that it is out of order.

     The point of order was then withdrawn.

     MR. SAMFORD--I will renew the objection, Mr. President. Let it come up in its regular order.

     THE PRESIDENT--The Chair will state to the gentleman from Talladega that this will be in order when that regular order is reached, and there is a motion which the Chair will place before the convention on this subject, just as soon as the gentleman from Greene returns.

     MR. LOMAX--I ask unanimous consent for the Committee on Preamble and Declaration of Rights to submit a report, that it may be read and printed, and lie on the table.

     THE PRESIDENT--Does the gentleman request that the report be read at this time?


782

OFFICIAL PROCEEDINGS

     MR. LOMAX--That is the rule, as I understand it.

     THE PRESIDENT--The report will be read, lie on the table and be printed.

     MR. BLACKWELL--This is a minority report on the same subject and I ask that it be printed and lie on the table.

     THE PRESIDENT--Unanimous consent is asked that the report of the Committee be read; is there any objection to received and reading the report of the Committee on Preamble and Declaration of Rights?

     MR. PILLANS--I object sir. I think it will save time.

     MR. BOONE--Under the rules it has to be read twice, sooner or later.

     MR. PILLANS--If my objection will avail, I insist upon it, because I think this convention is wasting too much time here in reading. The report will be printed, and each gentleman will read it, and it will then be read section by section.

     MR. LOMAX--The rules of this convention require that the report of a committee, and the article submitted by the committee, shall be read before this convention, before it shall lie on the table or be printed. If there is a single committee of this convention, whose report is unworthy to be read before it, that committee ought not to have been appointed by this convention. If there is an article in the proposed constitution that does not deserve to be heard by the delegates of the people, in convention assembled, we ought not to have such article in the constitution. I view of the objection of the gentleman from Mobile, I move that the rules be suspended, and that the report be read for the information of the convention.

     MR. BROOKS--I rise to a point of order. The convention has already allowed the Chairman of the Committee to submit his report, and under the rules it must be read, unless the rules are suspended.

     THE PRESIDENT--The gentleman from Montgomery asked unanimous consent to submit the report of the Committee on Preamble and Declaration of Rights, and that the report be read and lie on the table and be printed; the Chair stated the question to the convention and there was objection. Now the gentleman from Montgomery moves a suspension of the rules.

     MR. LOMAX--I desire to say further, Mr. President, that whenever there comes a time in the history of constitutional government, when a constitutional convention will refuse to hear read the declaration of the rights of the people, the time is approaching when free government on the American continent will be in danger.


783

CONSTITUTIONAL CONVENTION, 1901

     MR. PILLANS--A word. I shall not permit myself to be put in a false attitude by any eloquent remarks of a fellow delegate to this convention, without replying. We have set here, twenty-five days I believe, and we have not yet adopted the first article reported to this convention. We have no prospect of ever getting through with our work at the present rate of progress. We halt at every turn, to discuss matters not connected with the organic law of the State, and I am here, sir, to object from this time out, to any unnecessary consumption of the time of the State, which is costing such a large sum of money, or of the time of delegates which they ill afford to spare to the State. Now, sir, I have no reason to believe that any gentleman will suspect me, in so objecting, of being unwilling to have read to the convention any article reported by any committee, but under our rules these reports are printed; after they are printed they are read by each member of the convention, before he votes upon it, and desides that, there is a reading clerk who reads each section of each article before it is voted upon, and the progress we have made thus far, shows that there has not been a section which has come up for consideration in this house that has not been carefully canvassed by every member of the convention, before we came to its consideration.

     Now, sir, I want to disclaim any disrespect to the Committee whatever, in making the objection. I feared that an objection would not prevent the reading, yet I said if my objection would avail, I would object; but it was without any discourteous intent, and merely with a view of objecting, on each occasion when there is a proposition to read anything that will have to be read again, and that will lie upon our desks in printed form. It was with that view I make the objection, and I do not care to consume more time on it now.

     MR. REESE--I rise to a parliamentary inquiry. Under the regular order, at 11 o'clock, isn't the next order the reports of the standing committees, after the call of the roll for the introduction of ordinances, and would not the gentleman have a right to make a report without asking a suspension of the rules?

     MR. deGRAFFENREID--And have it read.

     MR. REESE--To read this report now will consume the time which properly should go to the reading of resolutions, and ordinances and we shall have to suspend the rules to get these things in.

     MR. LOMAX--I desire to withdraw the motion to suspend the rules, because unanimous consent had already been granted to me, as I understand it, to offer that report to be read; under the rules it ought to be read to the convention, and the only reason I asked leave at this time to offer the report was in view of the


784

OFFICIAL PROCEEDINGS

notice which had already been given by the gentleman from Hale, that he would move to suspend the rules and take up the report of the Committee on Executive Department.

     THE PRESIDENT--The gentleman from Montgomery is mistaken. He made his request, and the Chair submitted the request, as was the duty of the Chair, to the Convention, and thereupon the gentleman from Mobile objected. Thereupon the gentleman from Montgomery moved to suspend the rules. Does the Chair understand that motion is insisted upon?

     MR. LOMAX--Yes sir. I move to suspend the rules, and that the report of the Committee be read now.

     Upon a vote being taken, the rules were suspended, and the report of the Committee, and the Article accompanying the report, were read as follows

     Mr. Browne here took the Chair.

     Report of the Committee on Preamble and Declaration of Rights:

     Mr. President.

     The Committee on Preamble and Declaration of Rights instructs me to report the Preamble and Declaration of Rights hereto attached for adoption by this convention. The Committee has carefully examined and considered all of the ordinances referred to it and has incorporated the principles of some of them in the Article herewith reported. A large number of them have been rejected by the Committee because it was believed that the great and essential principles of liberty embodied in the bill of rights, being, as they are, the crystalization of the experience of centuries, should be preserved, as far as possible, from change and innovation. The changes which have been made in the present Article by omission of certain parts thereof have been made because the omitted portions were not properly part and parcel of a solemn statement of the reserved rights of the people to unequivocally declare which is the aim and purpose of the Bill of Rights or the Constitution of our State. Some of the ordinances rejected by the Committee failed of adoption because it was evident that the object sought to be attained could be secured by legislative action and that, hence, they were not proper matter for Constitutional enactment. The few sections and parts of sections added by your Committee, and not proposed by any ordinance referred to it, were adopted because in the judgment of the Committee they made more clear and specific, and gave greater emphasis to, those rights of the people which are above and beyond the general power of government.

     All ordinances referred to the Committee are herewith respectfully returned.


786

OFFICIAL PROCEEDINGS

     Upon some of the sections of the Declaration of Rights reported herewith the members of the Committee are not unanimous and the dissenting members will either submit minority reports or reserve liberty of action when the Article reported is taken up for consideration by the convention.

                                                                                                                          Tennent Lomax, Chairman.

     An Ordinance adopting a preamble and Declaration of Rights for the Constitution of the State of Alabama.

     Be it ordained by the people of the State of Alabama in convention assembled that the following shall be the Preamble and Declaration of Rights of the Constitution of this State:

PREAMBLE.

     We, the people of the State of Alabama, in convention assembled, in order to establish justice, ensure domestic tranquility and secure the blessings of liberty to ourselves and our posterity-invoking the favor and guidance of Almighty God--do ordain and establish the following Constitution and form of government for the State of Alabama:

ARTICLE 1.

Declaration of Rights.

     That the great, general and essential principles of liberty and free government may be recognized and established, we declare

     1. That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.

     2. That all persons resident in this State, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama, possessing equal civil and political rights.

     3. That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government, in such manner as they may deem expedient.

     4. That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship: nor pay any tithes. taxes or other rate for the building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust, under this State; and that the civil rights, privileges and capacities of any citizen shall not be in any manner affected by his religious principles.


787

CONSTITUTIONAL CONVENTION, 1901

     5. No law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.

     6. That the people shall be secure in their persons, houses, papers and possessions, from unreasonable seizures or searches, and that no warrant shall issue to search any place, or to seize any person or thing without probable cause, supporting by oath or affirmation.

     7. That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either: to demand the nature and cause of the accusation; to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and in all prosecutions by indictment a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and that he shall not be compelled to give evidence against himself, nor be deprived of life, liberty or property, but by due process of law; but the General Assembly may by a general law provide for a change of venue for the dependant in all prosecutions by indictment, and that such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor.

     8. That no person shall be accused of, arrested, or detained, except in case ascertained by law, and according to the forms which the same has prescribed; and no person shall be punished, but by virtue of a law established and promulgated prior to the offense, and legally applied.

     9. That no person shall, for any indictable offense, be proceeded against criminally by information except in cases arising in the militia and volunteer forces when in actual service, or by leave of the court, for misfeasance, misdemeanor, extortion and oppression in office, otherwise than is provided in this Constitution; Provided, that in cases of misdemeanor, the General Assembly may, by law, dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace, or such other inferior courts as may be by law established.

     10. That no person shall, for the same offense, be twice put in jeopardy of life, or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain any advantage by reason of such discharge of the jury.

     11. That no person shall be barred from prosecuting or defending, before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

     12. That the right of trial by jury shall remain inviolate.

     13. That in all prosecutions for libel or for publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel, the jury shall


788

OFFICIAL PROCEEDINGS

have the right to determine the law and the facts under the direction of the court.

     14. That all courts shall be open, and that every person, for any injury done him, in his lands, good, person or reputation, shall have a remedy by due process of law; and rights and justice shall be administered without sale, denial or delay.

     15. That the State of Alabama shall never be made a defendant in any court of law or equity.

     16. That excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.

     17. That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption great; and that excessive bail shall not in any case be required.

     18. That the privileges of the writ of habeas corpus shall not be suspended by the authorities of this State.

     19. That the treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and that no person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or his confession in open court.

     20. That no person shall be attainted of treason by the General Assembly; and that no conviction shall work corruption of blood or forfeiture of estate.

     21. That no person shall be imprisoned for debt.

     22. That no power of suspending laws shall be exercised, except by the General Assembly.

     23. That no ex post facto law, or any law, impairing the obligation of contracts, or making any irrevocable or excessive grants of special privileges, or immunities, shall be passed by the General Assembly; and every grant of a franchise, privilege or immunity shall forever remain subject to revocation, alteration or amendment.

     24. That the exercise of the right of eminent domain shall never be abridged nor so constructed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public use the same as individuals; but private property shall not be taken or applied for public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, that the General Assembly may, by law, secure to persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved, but just compensation shall in all cases be first made to the owner; and, provided, that the right of eminent domain shall not be so construed as to allow taxation or forced


789

CONSTITUTIONAL CONVENTION, 1901

subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association.

     25. That all navigable waters shall remain forever public highways, free to the citizens of the State, and of the United States, without tax, impost or toll; and that no tax, toll, impost or wharfage shall be demanded or received from the owners of any merchandise or commodity, for the use of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same are expressly authorized by law.

     26. That the citizens have a right, in a peaceable manner, to assemble together for the common good, and to apply to those invested with the power of government for redress of grievances, or other purposes by petition, address or remonstrance.

     27. That every citizen has a right to bear arms in defense of himself and the State, and it shall be the duty of the General Assembly to define by law small arms, and regulate the bearing of same.

     28. That no standing army shall be kept up without the consent of the General Assembly, and in that case no appropriation for its support shall be made for a longer term than one year, and the military shall, in all cases, and at all times, be in strict subordination to the civil power.

     29. That no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law.

     30. That no title of nobility or hereditary distinction, privilege, honor or emolument shall ever be granted or conferred in this State; and that no office shall be created the appointment to which shall be for a longer time than during good behavior.

     31. That immigration shall be encouraged, emigration shall not be prohibited, and that no citizen shall be exiled.

     32. That temporary absence from the State shall not cause a forfeiture of residence once obtained.

     33. That no form of slavery shall exist in this State; and there shall not be any involuntary servitude, otherwise than for the publishment of crime, of which the party shall have been duly convicted.

     34. The privilege of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult, or other improper conduct.

     35. Foreigners who are or may hereafter become bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property, as native born citizens.

     36. That the sole object and only legitimate end of government is to protect the citizens in the enjoyment of life, liberty and property, and when the government assumes other functions it is usurpation and oppression.


790

OFFICIAL PROCEEDINGS

     37. That no restraint upon the privilege of suffrage on account of race, color, or previous condition of servitude, shall be made by law.

     38. In the government of this State, except in the instance in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.

     39. That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that every thing in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.

     The undersigned member of the Committee on Preamble and Declaration of Rights concurs in the majority of said report save as to portions of Section 7 and he offers as amendment to portions of Section 7 the following:

     And in all prosecutions by indictment the place in the County or district in which the crime was committed shall be stated with reasonable certainty as to enable the defendant to know the particular place where the criminal act is alleged to have been committed.

                                                                                                                          Respectfully submitted,

                                                                                                                                   J. H. Barefield.

     The undersigned members of the Committee on Preamble and Declaration of Rights do not concur in the foregoing report of the Committee so far as it relates to Section 12, Article I for the following reasons:

     In every relation of life in Alabama where the result is dependent upon the opinions and decisions of a number of persons, the principal of majority rule governs, with the single exception of a verdict of a jury. Why should a unanimous verdict on a question of fact be required arid enforced from a jury? A majority of one vote in this Convention either puts a proposition in the organic law or rejects it. A majority of one vote in each House of the General Assembly creates, repeals or modifies a positive law, regardless of the magnitude of the interests involved. A majority of the Senate of the United States ratifies or refuses to consent to a treaty with a foreign power. A majority of a single vote in a half a million in a pivotal State may elect a President of the United States, change the policy of government and bring prosperity or ruin to seventy millions of people. And yet the majority of the Committee deny this principal to a verdict of a jury in a civil suit at law. When a judgment is entered on a unanimous


791

CONSTITUTIONAL CONVENTION, 1901

verdict, if an appeal is taken to the Supreme Court of the State it can be then finally adjudicated by a bare majority of the justices. So in the Supreme Court of the United States five of the Justices against four held the income tax unconstitutional; and in the same Court five of the Justices held that Porto Rico was not under the
Constitution, and four that it was. Again in all ministerial and executive bodies the majority rules, and the will of the minority when lawfully expressed. For these reasons we think that the provision authorizing three?fourths of a jury to render a verdict in a civil case should become a part of our Constitution as it is of several other important States of the Union.

     We therefore recommend as a substitute for Section 12, Article I as reported by the Committee, the following:

     Art. I, Sec. 12. The right of trial by jury as heretofore enjoyed, shall remain inviolate, but in civil actions three-fourths of the jury may render a verdict.

                                                                                                                         Respectfully submitted,

                                                                                                                                 Sam'l Blackwell,

                                                                                                                                 E. P. Wilson,

                                                                                                                                 T. J. Cornwell.

     THE PRESIDENT PRO TEM.--Under the rules, the report of the Committee will be printed and lie on the table.

     MR. VAUGHAN--I have a short resolution referring to the report that has just been read, which I would like to offer.

     Permission was given, and the resolution read as follows:

     Resolution No. 176, by Mr. Vaughan:

     Resolved. That the report of the Committee on Preamble and Declaration of Rights shall be taken up and disposed of immediately after the report of the Committee on Taxation is disposed of."

     MR. LOMAX--I move you, sir, that the rules be suspended and that that resolution be put upon its immediate passage.

     Upon a vote being taken to suspend the rules, a division was demanded. A reading of the resolution was called for, and the resolution again read.

     MR. SANFORD--I called for a division, and after hearing the resolution again read, I now withdraw the call.

     A vote being taken the rules were suspended, and upon a further vote being taken the resolution was adopted


792

OFFICIAL PROCEEDINGS

     MR. REESE--I ask unanimous consent to have a very short ordinance read and referred to a Committee.

     THE PRESIDENT PRO TEM. -- The gentleman asks unanimous consent; is there objection? The Clerk will read the ordinance.

     MR. WADDELL--There is a motion pending before the House.

     THE PRESIDENT PRO TEM.--What motion?

     MR. WADDELL--The motion of the gentleman from Hale.

     MR. deGRAFFENREID--The house can proceed by unanimous consent.

     MR. WADDELL--I call for the regular order.

     THE PRESIDENT PRO TEM.--Objection is made -

     MR. REESE--I make the point of order that it was submitted to the House, and no objection was made.

     THE PRESIDENT PRO TEM.--The point of order is well taken. The chair submitted it to the House and no objection was made. The objection comes too late.

     Ordinance 392, by Mr. Reese was read as follows:

     Ordinance No. 392, by Mr. Reese of Dallas:

     An ordinance to be entitled Section ---- of Article IV.

     Be it ordained by the people of Alabama in Convention assembled,

ARTICLE IV.

LEGISLATIVE DEPARTMENT.

     Section ---. All members of the legislature, and the Lieutenant Governor, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation, to wit:

     I,_____________ , solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States and the Constitution of the State of Alabama, so long as I continue a citizen thereof, and I do specially swear (or affirm as the case may be) that I will faithfully and honestly uphold and enforce the provisions of Sections 20, 21, 22 and 27 of Article IV of said Constitution, and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter to the best of my ability so help me God." Which oath may be administered by


793

CONSTITUTIONAL CONVENTION, 1901

the presiding officer of either House of the legislature, or any officer authorized by law to administer oaths.

     Referred to Committee on Legislative Department.

     MR. BEDDOW--I ask unanimous consent to introduce a short ordinance, to be referred to the Committee on Executive Department. It is on a point that is about to be reached in their report.

     MR. deGRAFFENREID--I am not going to object to the reading of that, but I want to give notice that I will object to any further suspension of the regular order.

     THE PRESIDENT PRO TEM.--The gentleman asks unanimous consent to introduce an ordinance--

     MR. GREER (Calhoun)--I object.

     MR. BEDDOW--I ask the gentleman to withdraw it. It is on a subject that will come up for consideration today.

     MR. GREER (Calhoun)--I withdraw it this time, but I will give notice that I will object to any further suspension of the rules.

     The ordinance was read as follows:

     Ordinance No. 393, by Mr. Beddow:

     An ordinance to create a State Board of Arbitration.

     Section 1. The Legislature shall establish a State Board of Arbitration of which the Commissioner of Agriculture and Industries shall be ex-officio Secretary.

     Sec. 2. Whenever any disputes arise in any industry in this State between employers and employees, the different parties directly interested may agree to submit the matter in dispute to be arbitrated by the State Board of Arbitration, which shall be organized as follows.

     Each party in the dispute shall notify the Secretary of the Board of their intention to submit their dispute to arbitration, and each certify to him the names of two persons to be commissioned by him to act as arbitrators. The Secretary of the Arbitration Board shall call the arbitrators so commissioned by him to meet at the Capitol at Montgomery at as early a date as practical, who will proceed to organize by electing a disinterested person to set as umpire in case they fail to agree. The Board so organized shall take cognizance of such disputes only as voluntarily submitted to it for adjudication; but the Secretary shall have power to enforce all of its awards conferred upon it by the Legislature.


794

OFFICIAL PROCEEDINGS

     Sec. 3. The Legislature shall provide by law for the expense necessarily incurred by the Board.

     Referred to Committee on Executive Department.

     MR. PROCTOR--The attention of the Chair is called to the fact that there is pending a motion made by the gentleman from Hale.

     MR. deGRAFFENREID--'That motion is pending, but it is no longer necessary that it should be put to the House, because the hour of 11 has arrived, and, under the rules of the House the time has arrived for the consideration and discussion of the very matter to which the motion was addressed.

     MR. O'NEAL (Lauderdale)--I ask unanimous leave to offer an ordinance, to be referred to the Committee on Preamble without reading.

     MR. LOMAX--Mr. President, the rules require it to be read.

     There being no objection made, the ordinance was read as follows:

     Ordinance No. 394, by Mr. O'Neal (Lauderdale):

     To amend the first proviso of Section 24 of Article I, of the Contistution.

     Be it ordained, by the people of Alabama in Convention assembled, That the first proviso of Section 24 of Article I. of the present Constitution be amended so as to read as follows: "Provided, however, that the General Assembly may, by law, secure to persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; but, in case one railroad corporation finds it necessary to cross with its line of railroad the track of another such corporation, and such corporations cannot agree as to what amount in damages should be paid by the corporation making such crossing to the corporation whose track is to be crossed, the Railroad Commission of the State is authorized, and it is hereby made their duty, upon written application of the corporations seeking such right of crossing and after notice to the other corporation thereof, and evidence received from the parties, to fix the amount of said damage, which will be sustained by the corporation, whose track is to be crossed, and when the amount so fixed by said Commission is paid to the corporation whose track is to be crossed, or, in the event of its refusal to accept the same, is deposited with the said commission for said corporation, such crossing may be constructed without further delay, subject, however, to the payment, by said corporation making such crossing, of any further damages; which


795

CONSTITUTIONAL CONVENTION, 1901

may be recovered as just compensation by the corporation whose track is so crossed.

     Referred to Committee on Preamble and Declaration of Rights.

     THE PRESIDENT PRO TEM.--The question before the Convention, as the Chair remembers it, is upon the amendment of the gentleman from Greene, to the amendment of the gentleman from Macon--

     MR. deGRAFFENREID--To the resolution of Mr. O'Neal.

     THE PRESIDENT PRO TEM.--To the resolution reported by the committee, but there is an amendment pending, offered by the gentleman from Greene, to an amendment or substitute offerred by the gentleman from Macon, as the Chair understands it.

     The Chair is informed that the gentleman from Macon did not prepare and send up his amendment.

     MR. O'NEAL (Lauderdale)--I move to lay the amendment of the gentleman from Greene on the table.

     THE PRESIDENT PRO TEM.--That was voted on yesterday.

     MR. O'NEAL (Lauderdale)--Then I move that it be indefinitely postponed.

     MR. COBB--I think my amendment was accepted by the committee and incorporated in their report, as I understand it.

     MR. O'NEAL--I withdraw the motion which I made, Mr. President.

     MR. COBB--My amendment was accepted by the committee, and incorporated into their report.

     MR. O'NEAL (Lauderdale)--It was in the original report, and the original report was misread. That was the cause of the misunderstanding. Now I withdraw my motion. I rise to a point of order--

     THE PRESIDENT PRO TEM.--The gentleman will state the point of order.

     MR. O'NEAL--What is the question before the House?

     THE PRESIDENT PRO TEM.--The question before the Convention is upon the amendment offered by the gentleman from Greene, to the resolution of the gentleman from Lauderdale, as reported by the committee.

     MR. COLEMAN (Greene)--On yesterday, when I offered that amendment I did not have the resolution before me, and as I stated, I could not remember the exact wording of it. Upon


796

OFFICIAL PROCEEDINGS

examining the amendment this morning, I see it fails to strike out the word provided. To make it grammatical, it should have been offer "move to strike out the following words: "provided the same can be done without an increase of taxation in this State," and substitute therefor the words "if in the discretion of the General
Assembly it is for the best interest of the State."

     THE PRESIDENT PRO TEM.--The gentleman asks unanimous consent to correct the amendment offered on yesterday. If there is no objection, the gentleman's amendment will be corrected, and the clerk read the amendment as corrected.

     The amendment was read as follows:

     Motion to amend resolution No. 151, offered by Mr. O'Neal (Lauderdale), reported favorably by the committee; amendment by Mr. Coleman (Greene). Move to amend the resolution by striking out the following words "provided the same can be done without an increase of taxation in the State," and substitute therefor the words "if in the discretion of the General Assembly it is for the best interest of the State of Alabama."

     THE PRESIDENT--The question is on the adoption of the amendment offered by the gentleman from Greene to the resolution as reported by the committee.

     MR. COLEMAN (Greene)--Mr. President and delegates of this convention, I am always willing to meet in discussion any question which may be presented to this Convention, and have my conclusions made after a full discussion of the same. We ask no favors, but we desire at least an opportunity to express our views. I was, therefore, astonished that I should be met this morning in the first instance by a motion to lay this amendment on the table, or by any other movement, of the delegates of this Convention, which would cut off free debate upon so important a measure. If it be not out of order, Mr. President, I am contrained to add what I wished to withhold, that is, information that since the adjournment, parties who are opposed to this resolution have seen proper not to submit the case to discussion here, and to be decided by you, but upon an ordinance to be passed and become a part of the organic law. There has been what might be termed buttonhole pleading and log-rolling.. I believe that every man here should be guided by his convictions upon the facts of the case, and he who does less does not properly represent any constituency. I hope that I was misinformed. Mr. President and delegates of this Convention, I have but little more to add to what was said yesterday.
It seems to me, after further consideration, that this question should be left with the Legislature, and, after examining the salaries of Governors of many States, I have been unable to find a single State where the salary of the Governor reaches $5,000 and the revenues are the same or approximately the same, as in Alabama.


797

CONSTITUTIONAL CONVENTION, 1901

If I am mistaken, I would be happy to be corrected. I have the list of those States in my pocket. In one or two instances I failed to get the latest Code, but I will state to you as far as I could ascertain, the salaries of the Governors of the different States whose population and revenues are somewhat similar to our own. North Carolina, the salary is fixed at $3,000; in Ohio, in 1880, at a time when the population and revenues were largely in excess of what ours are today, it was fixed at $4,000.

     MR.GRAHAM (Talladega).-- I want to ask a question in connection with that statement.

     MR. COLEMAN--Yes, sir.

     MR. GRAHAM --Will you please state which of these States Have Governor's mansions in connection with the salaries?

     MR. COLEMAN--In the Constitution?

     MR. GRAHAM--Whether in the Constitution or otherwise--whether or not there is not a mansion included with the salary?

     MR. SAMFORD--And incidental expenses?

     MR. COLEMAN--I am glad the gentleman has made the inquiry, although it diverts me from the course of my remarks. If these gentlemen had introduced a resolution that a mansion should be provided for the Governor, it would not have the same objections to it, because it would be the property of the State. Under the proposed regulation to increase the salary $2,000 a year, in five years you will have paid $10,000 and the State will have nothing to show for it, but if you take the $10,000 and purchase a mansion for the Governor, at the end of the ten years the State will still own this mansion. I hope the gentleman is answered. That is very different, Mr. President, and delegates of this Convention, from paying out the $2,000 annually, and the State have nothing to show for it--and even that should be left, in the condition in which we are placed, to the discretion of the Legislature. Tennessee has a salary of $4,000; South Carolina has a salary of $3,500--I did not see the last Code. The salary of Georgia's Governor, $3,000; Arkansas, the salary, $3,000. Georgia has a furnished mansion, and Georgia owns it; the Governor does not own it. When Alabama procures a mansion, it will belong to the State.

     MR. SAMFORD--How about the incidental expenses, Judge?

     MR. COLEMAN--The gentleman says how about the incidental expenses? I presume that depends very much upon the Governor. We have been told in some instances that they have expended from $4,000 to $5,000 out of their pockets for incidentals or something, I don't know what; anyhow, it has been expended, but even that does not reach the question. Why should not that


798

OFFICIAL PROCEEDINGS

be left to the Legislature? In West Virginia, the salary is $3,700. In Mississippi, in 1892, $3,500.

     MR deGRAFFENREID--And a mansion.

     MR. COLEMAN--That, gentlemen, gives you an idea of what other States are doing in fixing salaries for their Governors, and why should Alabama ordain here that the salary of the Governor should be fixed at $5,000. Why not leave it in the discretion of the Legislature, and let the Legislature increase that salary as the revenues of the State will justify it? I have said again and again, that if we adopt this resolution, we will transgress the authority supposed to be vested in us by the election of this body. I repeat, it was not discussed before the people, and they have and do expect that we attend to the important duty of the franchise, and they circumscribed us in all other respects as to the limits that we should go. We notice--and I call your attention to it--the continuous efforts being made to impress this Convention with the idea that the platform and the pledge was unfortunate; that we should not be bound by it. I don't know where gentlemen get authority to disregard a pledge upon which they were elected. I had never heard it asserted by any true Democrat before. Why are we not bound by the pledges? Were they not the express will of the people at that time?

     MR. OATES--If you won't mind an interruption, I can give you a very illustrious case: Cleveland was elected on a platform which required the repeal of the 10 per cent. tax, and the first man I heard speak out and say that he was not bound by it, was W. J. Bryan.

     MR. COLEMAN--And where is W. J. Bryan today? (Laughter.) And perhaps--and I mean nothing personal about it--perhaps he who has mentioned him here as an example for us has been following his ways most closely himself.

     Have not you been patterning after Mr. Bryan a little too closely yourself.

     MR. OATES--I don't know what in.

     MR. COLEMAN--The gentleman says "I don't know what in." I don't know but I simply apply the old rule that like causes produce like results. Now, Mr. President, I trust that every delegate upon this floor will cast his vote remembering his duty as a Democrat and his duty to the State, and that is all that I ask.

     MR. KNOX--I had not intended, Mr. President, after the discussion on yesterday to renew it this morning. The gentleman from Greene made two arguments on yesterday, but it seems he was not satisfied with the case then made, and he makes another one this morning. I do not understand what he means by gentlemen buttonholing delegates. Does he mean that when an important


799

CONSTITUTIONAL CONVENTION, 1901

matter is pending before this Convention, that delegates to this Convention are not authorized to discuss those questions except upon the floor of the Convention? I remember when an important matter was pending before the Committee on Suffrage, of which the gentleman is the distinguished Chairman, and there was not entire harmony in that committee, no gentleman was more active in buttonholing delegates than the distinguished gentleman from Greene.

     Mr. President, the gentleman objects to increasing the salary of the Governor because the question was not submitted to the people, but I remember that in the Constitutional Convention of 1875, when the salaries of the Judges of the Supreme Court of this State were reduced to three thousand dollars, just the same amount
at which the salary of the Governor was placed, that the Legislature increased the salary of the Supreme Court Judges of which the distinguished gentleman enjoyed the benefit for quite a number of years, and we never heard, Mr. President, that that was unlawful because it had not been submitted to a vote of the people.

     MR. COLEMAN (Greene)--I did not understand the remark--I did not catch it.

     MR. KNOX--I said, and I was arguing that it is competent for a Legislature and it is competent for a Constitutional Convention to pass upon questions when they arise before it without submitting them to the people.

     MR. COLEMAN (Greene)--With your permission--I understood you to make some reference to some gentleman not complaining at an increase of the salary.

     MR. KNOX--I did not individualize any gentleman, but stated that when the salaries of the Supreme Court Judges of this State were increased from three thousand dollars, I never heard it objected that it was improper for the increase be made because the question for a vote upon the direct issue.

     The gentleman from Greene occupied the office of Solicitor in this State for quite a number of years, in one of the most important districts in the State. It was before the salary system went into effect. And it is generally understood that the solicitorship in that territory was worth from five thousand to ten thousand dollars
a year. The gentleman, I believe, retired from the office after it was reduced, or just before it was reduced to three thousand dollars.

     It seems to me, Mr. President, that the people of Alabama ought to be willing and I am sure they are willing to pay the Chief Executive of this State a decent salary. Suppose the salary is increased. Why, it would raise the taxes per capita less than one cent. And where is the patriotic citizen of Alabama--a delegate
suggests it would not be that much--I am sure it would not be


800

OFFICIAL PROCEEDINGS

more, but where is the patriotic citizen of Alabama who is not willing that the Chief Executive of this State should be able to hold up his head- Should be so equipped as that he can sustain the dignity of the State. I argued yesterday, and I repeat it, if it was competent for the Constitutional Convention of 1875, when the people were prostrate and financially embarrassed, to reduce the salaries, it is competent for the delegates to this Convention to give expression to an opinion that this salary should now be increased. You have refused to increase it. A number of delegates upon this floor voted against an increase because they thought it was the proper province of the Legislature. I submit that it is competent in view of that action which you have taken rather than give color to the idea that you are opposed to fair and proper compensation, you should give expression to the opinion that you think the Legislature, to whom you refer the matter, should increase it provided it can be done without increasing taxation, I do not believe, Mr. President, that in any part of this State there is any sentiment among the people which would withhold the granting of a just increase. The salaries of the Judges of the Supreme Court have been increased, why not increase the compensation of the Chief Executive, who represents the dignity of the State, who is subjected to many more expenses than the Judges of the Supreme Court. The reports that come to me from different counties in this State since this discussion has reached the people are to the effect that the people favor and want some increase made. Whatever we do will be submitted for the approval of the people. We are here as their delegates and whatever we do we will submit for their ratification; but we ought not to fail, Mr. President, to do what we think is right and then submit it to the approval of the people. The passage of this resolution will not put it into the Constitution. It is not a part of the organic law. It is merely an expression on the part of the delegates to this Convention that in our judgment this increase should be made in the Governor's
salary, if in the judgment of the Legislature it can be done without increasing taxation and Mr. President, as this discussion has been protracted to such length, unless the gentleman from Greene desires to further discuss it, I move the previous question.

     THE PRESIDENT PRO TEM--The gentleman from Calhoun moves the previous question unless the gentleman from Greene desires to be heard further. The Chair recognizes the gentleman from Greene.

     MR. SAMFORD--I rise to a point of inquiry. I have the right to do that.

     THE PRESIDENT PRO TEM--The gentleman will state the point of inquiry.

     MR. SAMFORD--My recollection of the rule is that no delegate shall be permitted to speak more than twice on any point.


801

CONSTITUTIONAL CONVENTION, 1901

     THE PRESIDENT PRO TEM--I think there is such a rule, but the Chair does not understand that the delegate from Greene has spoken twice on this question. But he spoke yesterday on the motion to lay on the table and today he is speaking on the amendment which he offered.

     MR. SMITH (Mobile)--I rise to a point of order.

     THE PRESIDENT PRO TEM--The gentleman will state his point of order.

     MR. SMITH--No two amendments were offered. The amendment of yesterday was corrected and there was unanimous consent that he might correct a clerical error, as I understand it, at any rate no amendment. The rule provides a mover may speak twice, no other more than once--the gentleman has spoken three times.

     THE PRESIDENT PRO TEM--The Chair will state his understanding: When the gentleman from Greene stated that he had inadvertently made errors in the drawing of his amendment the Chair stated that to correct it it would have to be done by amendment or unanimous consent. If it had been a matter of right the Chair would not have required that he obtain unanimous consent, because in the opinion of the Chair no change could be made except by way of amendment.

     MR. KNOX--I earnestly request the gentleman from Mobile (Mr. Smith) to withdraw his objection and allow the gentleman from Greene to be heard.

     THE PRESIDENT PRO TEM--The Chair overrules the point of order because the Chair consider the correction asked to be made by the gentleman from Greene was an amendment.

     MR. COLEMAN--Mr. President, I do not wish to be regarded as making a speech, but as making a request; there may be other gentlemen upon this floor much more able to present this question than myself; I do not wish to have them excluded, but if they are not permitted. I claim my right to reply.

     MR. KNOX--The time of this Convention is too valuable to be consumed in further discussion of this question. I did not press the call for the previous question, because I desired to hear from the gentleman from Greene, if he desired to discuss it further. He will be entitled to speak if he wishes, but I thought it would be more satisfactory for him to make his argument at this time. I renew my motion for the previous question.

     THE PRESIDENT PRO TEM.--As the chair understands the rule, after the previous question has been ordered, it will then be in order for the gentleman to close.


802

OFFICIAL PROCEEDINGS

     MR. JENKINS--The gentleman from Greene has never given up his right to close.

     THE PRESIDENT PRO TEM.--The chair will hold that the gentleman from Greene, as the mover of the amendment, will have the right to close the debate after the previous question shall have been ordered. The question is, Shall the main question be now put on the amendment, or on the amendment and report?

     MR. KNOX--On the amendment and report.

     A vote being taken, the previous question was ordered.

     MR. COLEMAN--Mr. President and delegates to the Convention, some of the remarks of the distinguished President of this Convention had a double effect upon me. I regretted that he saw proper to refer to me, especially individually, but it was gratifying to know that he did not have much else to say in support of his proposition. I was arraigned here for resigning my office as solicitor to accept that of Chancellor. The salaries were about the same, and I preferred to move upwards, and did the best service for the State that I knew how. It is said that whatever we do here must be submitted to the people. There I wish to make this statement, that if any delegate upon this Convention thinks he can tie on to this Constitution unnecessary burdens and weights--that it will be carried through anyhow--they are laboring under a great mistake. We come here for relief from my section of the country.

     MR. BOONE--Will the gentleman allow me to ask him a question?

     THE PRESIDENT PRO TEM.--Will the gentleman allow himself to be interrogated?

     MR. COLEMAN--I hate to be discourteous to anybody.

     MR. BOONE--Will the gentleman from Lauderdale (Mr. O'Neal), if passed by this Convention, be a part of the Constitution to be submitted to the people?

     MR. COLEMAN--That is a very unfair way of putting the proposition. I was going on to mention the fact- because we are just in the beginning; we are right now at the threshold of adopting a Constitution for the State of Alabama. If you lay down a precedent now, it is sure to be taken advantage of by other resolutions or ordinances to increase other salaries. Mark well the statement. If we burden this Constitution with unnecessary weights, it is my honest opinion, it will not be ratified. As I started to say, my section of country needs relief, great relief, but gentlemen must not think that we will sacrifice everything else, and particularly the pledges made to the Democratic party in order


803

CONSTITUTIONAL CONVENTION, 1901

to get that relief, unless you give us a Constitution that we can live under, and that comes squarely and fairly up to the provisions and agreements we made by which this Convention was held, it is my opinion that it will not be. I fear the delegates do not understand sufficiently with what they are tampering, with what we may lose; and, delegates of the Convention, it is the beginning and inauguration of a precedent that may lead to disastrous results. I have said all upon the other proposition that I saw proper to say, except that I call your attention to the fact that my statement as to salaries of Governors of other States was not questioned, although I asked to be corrected if there was any State in the Union of similar population and revenues that paid its Governor $5,000.

     THE PRESIDENT PRO TEM.--The question is upon the adoption of the amendment offered by the gentleman from Greene, with the resolution reported by the committee of the gentleman from Morgan.

     MR. JENKINS--Upon that I call for the ayes and nays.

     A vote being taken the previous question was ordered.

     THE PRESIDENT PRO TEM.--The question is on the amendment of the delegate from Greene.

     The yeas and nays being called and the call sustained, the result of the roll call was as follows:

AYES.

Ashcraft,

Glover,

Palmer,

Barefield,

Grayson,

Parker (Elmore),

Bartlett,

Greer, of Perry,

Pearce,

Beavers,

Handley,

Pettus,

Blackwell,

Harrison,

Phillips,

Browne,

Henderson,

Porter,

Bulger,

Hodges,

Reynolds (Chilton),

Byars,

Jackson,

Reynolds (Henry),

Cardon,

Jenkins,

Rogers (Sumter),

Carnathon,

Kirk,

Sentell,

Case,

Long (Butler),

Sloan,

Chapman,

Long (Walker),

Smith, Mac. A.,

Coleman, of Greene,

Miller (Marengo),

Sorrell,

Cornwall,

Moody,

Spragins,

Davis, of DeKalb,

Mulkey,

Stewart,

Davis, of Etowah,

Murphree,

Studdard,

Fletcher,

NeSmith,

Vaughan,

Foshee,

Opp,

Williams (Barbour).

Freeman,

O' Rear,

 

     Total--56.


804

OFFICIAL PROCEEDINGS

NOES.

Messrs. President,

Hood,

O'Neal (Lauderdale),

Almon,

Howell,

O'Neill (Jefferson),

Banks,

Howze,

Parker (Cullman),

Beddow,

Inge,

Pitts,

Bethune,

Jones, of Bibb,

Proctor,

Boone,

Jones, of Hale,

Reese,

Brooks,

Jones, of Montgomery,

Robinson,

Burnett,

Jones, of Wilcox,

Rogers (Lowndes),

Burns,

Knight,

Samford,

Carmichael, of Coffee,

Kyle,

Sanders,

Cobb,

Ledbetter,

Sanford,

Cofer,

Leigh,

Selheimer,

Craig,

Locklin,

Smith (Mobile),

Cunningham,

Lomax,

Smith, Morgan M.,

Dent,

Lowe (Jefferson),

Tayloe,

deGraffenreid,

Lowe (Lawrence),

 Thompson,

Duke,

Macdonald,

Waddell,

Eley,

McMillan (Baldwin),

Walker,

Espy,

McMillan (Wilcox),

Watts,

Fitts,

Malone,

Weakley,

Foster,

Martin,

White,

Graham, of Montgomery,

Maxwell,

Whiteside,

Graham, of Talladega,

Miller (Wilcox),

Willet,

Grant,

Morrisette,

Williams (Marengo),

Greer, of Calhoun,

Norman,

Wilson (Clarke),

Heflin, of Chambers,

Norwood,

Wilson (Washington),

Hinson,

Oates,

 

     Total--80.

ABSENT OR NOT VOTING.

Altman,

Heflin, of Randolph,

Searcy,

Carmichael, of Colbert,

King,

Sollie,

Coleman, of Walker,

Kirkland,

Spears,

Eyster,

Merrill,

Weatherly,

Ferguson,

Pillans,

Williams (Elmore),

Gilmore,

Renfro,

Winn.

Haley,

 

 

     MR. BURNS (during roll call)--With a view of moving a reconsideration I vote no.

     So the amendment was lost.

     MR. deGRAFF ENREID--I move the adoption of the resolution offered by Mr. O'Neal.

     THE PRESIDENT PRO TEM. -- The previous question was ordered upon the original resolution, as well as the amendment.


805

CONSTITUTIONAL CONVENTION, 1901

The question is on the adoption of the resolution offered by the gentleman from Lauderdale.

     MR. JACKSON--Am I too late to offer an amendment?

     THE PRESIDENT PRO TEM.--Yes. The previous question has been ordered.

     Upon a viva voce, the resolution was adopted.

     THE PRESIDENT PRO TEM.--The Clerk will read the next section of the report of the committee.

     MR. SAMFORD -- I rise to a point of inquiry. Does that take precedence over the regular order?

     THE CLERK--This is a part of the report.

     THE PRESIDENT PRO TEM. -- The Chair understands this is the report of the committee on the matter recommitted to it and the question is upon the adoption of the report of the committee as to this section.

     MR. JONES (Montgomery)--I ask unanimous consent in order to favor my friend from Sumter, who has an ordinance on this subject, which the committee reports adversely, to report it back now so that it may be considered along with this section.

     THE PRESIDENT PRO TEM.--Unless there is objection the committee will be allowed to make the adverse report.

     The report was read as follows:

     Mr. President:

     The Committee on Executive Department direct me to report herewith ordinance No. 372, with the recommendation that it do not pass.

                                                                                                                                  Thomas G. Jones, Chairman.

     MR. ROGERS (Sumter) -- I desire to have the ordinance read and I move that it be substituted for the report of the committee.

     The ordinance was read as follows:

     Ordinance 372, by Mr. Rogers of Sumter:

     The returns for every election for Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Education and Commissioner of Agriculture and Industries, shall be sealed up and transmitted by the returning officers to the seat of government, and directed to the Speaker of the House of Representatives, who shall, during the first week of the session, to which such returns shall be made,


806

OFFICIAL PROCEEDINGS

open and publish them in the presence of both houses of the General Assembly in joint convention; but the Speaker's duty and the duty of the joint convention shall be purely ministerial.

     The result of the election shall be ascertained and declared by the Speaker from the face of the returns without delay.

     The person having the highest number of votes for any one of said offices shall be declared duly elected, but if two or more persons shall have an equal and the highest number of votes for the same office the General Assembly, by joint vote, without delay, shall choose one of said persons for said office.

     Contested elections for Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendant of Education and Commissioner of Agriculture and Industries shall be determined by both houses of the General Assembly in such manner as may be prescribed by law.

     MR. SAMFORD--I ask for a reading of the report of the Committee.

     THE PRESIDENT PRO TEM--The gentleman from Sumter has the floor. If he will yield--

     MR. ROGERS (Sumter)--I consent to the reading of the report of the Committee. I would like very much to have it read in this connection.

     The report was read as follows:

     The Committee on Executive Department instructs me to report the following substitute for Section 4 of the ordinance "to create and define the Executive Department," and the pending amendments, to wit:

     Strike out Section 4 as it now stands and insert in lieu thereof the following words:

     "Sec. 4. The returns of every election for Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, Superintendent of Education and Commissioner of Agriculture and Industries shall be sealed up and transmitted by the returning officers to the Speaker of the House of Representatives, who shall, during the first week of the session to which said returns shall be made, open and publish them in the presence of both Houses of the General Assembly, in joint Convention. The joint convention shall supervise and control the Speaker in the discharge of this duty and has power, first, to determine whether the returns are in legal form, made by the proper officers, and truly give the results as ascertained and declared by the Board of Supervisors in the several counties; second, to correct such errors as may be found therein; third to


807

CONSTITUTIONAL CONVENTION, 1901

procure proper returns when, for any cause, returns from any county have failed to reach the Speaker. The joint convention shall have no power to question the returns as to any other matters, or in any other respect. The person found to have the highest number of votes for either of said offices shall be declared duly elected; but if two or more persons shall have an equal and the highest number of votes for the same office, the General Assembly by joint vote, without delay, shall choose one of said persons for said office. Contests of elections for Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, Superintendent of Education and Commissioner of Agriculture and Industries, shall be determined by both Houses of the General Assembly in such manner as may be prescribed by law.

     The Committee recommends the adoption of the substitute.

                                                                                                                            Thomas G. Jones, Chairman.

     MR. ROGERS (Sumter)--The original Section was recommitted to the Executive Committee with the hope that they would return a Section which would at least remove the objections that exists to the Section as first reported. Instead of removing the objections, they have intensified them, by that part of the Committee's report which begins and reads as follows: "The joint convention shall supervise and control the Speaker in all discharge of this duty, and has power to determine whether the returns are in legal form, made by the proper officers and truly give the results as ascertained and declared by the Board of Supervisors in the several counties; second, to correct such errors as may be found therein; third, to procure proper returns, when for any cause the returns from any county have failed to reach the Speaker; the joint convention shall have no power to question the returns as to any other matters or in any other respect.

     Now, Mr. President, I submit in what other matters would the joint convention have the right to question the returns? The laws of this State provide that the ballots shall be counted in the counties where they are cast, by the Probate Judge, the Clerk and the Sheriff, and if they are all of one party that they shall summon three other persons of a different party to be present, to hear the returns; that these officers shall certify the result, and send it sealed to the proper officers at the State Capitol. It further provides that if any one wants to contest any election, he shall give bond and shall make his case before the joint convention of the General Assembly, the Senate and House, but the functions of the Speaker of the House, in the joint convention, and those of the joint convention, when this body is first assembled, should be purely ministerial. That is to say, they should perform their duties, which are set out for them by law, and they should not go behind any returns, without there be sufficient


808

OFFICIAL PROCEEDINGS

evidence brought before them, by a proper person contesting the returns.

     It so happened, several years ago, when the lamented and distinguished Francis L. Pettus was Speaker of the House of Representatives, that this very question, which these gentlemen wish to open up, came before him. He then wisely and justly decided that the power of the Speaker was purely ministerial, and that he had no right to go behind the returns, but that his duty was to declare the result of the election as it appeared upon the face of the returns. Now, Mr. President, this seeming not important matter is one that is far-reaching. The intent or the result of it will be to destroy the autonomy of the several counties of the State of Alabama, or will do away with local self-government; because if it ever happened that the Speaker elected and that a majority of the General Assembly of Alabama should come here and wish to destroy the will of the people, all they have to do is to say that these returns are not proper; all they have to do is to say that the returns are not in accordance with the will of the people, and throw them out, and put anybody in office they may wish to.

     Why, Mr. President, there is no question but what this last report is infinitely worse than the first. They did have the grace to say in that, that the duties of the Speaker shall be purely ministerial, but that did not go far enough, and say that the duties of the convention shall be purely ministerial, but in this latter report, they have left out the word "ministerial" entirely. They have given the right to the Speaker and the Joint Convention to say whether the returns are proper or not. Why, Mr. President, it is one of the greatest innovations that has ever been made in the mode of canvassing the returns of elections in this State. Now in that Section, if you will notice my amendment, is the whole Section given in the last code, with this exception, that it clearly sets out the power of the Speaker and of the Joint Convention. In my amendment it is true that I wrote the whole ordinance because it was to be substituted for the one offered by the Committee, but the only change that I made was to clearly define the point passed upon by Speaker Pettus, so as to put it clearly out of the power of any one hereafter to overthrow that decision,
namely, "but the Speaker's duty and that of the Joint Convention shall be purely ministerial;" and that the Speaker shall ascertain the result of the election from the face of the returns, and publish the same without delay. Now, Mr. President, if any one then wishes to contest an election, the law provides in Section 1667 for a contest, and all he has to do then is to come with the proper evidence before the proper tribunal, and have the case tried, and not come where there will be no evidence submitted, because it is not contemplated in this Section that any evidence shall be submitted to the Joint Convention and the Speaker. It


809

CONSTITUTIONAL CONVENTION, 1901

simply says that the result of the election shall be transmitted in sealed envelopes to the proper officials.

     MR. JONES (Montgomery)--I shall very briefly state the reasons of the Committee for not adopting the suggestion made by my friend from Sumter. The present Constitution, as we all know, left open to discussion wide differences of opinion as to the power of the Speaker. It was sometimes contended that the two Houses were mere witnesses; that the Speaker alone opened and declared the result. A contrary view was asserted. In the original section, the Committee thought it wise to declare that the Speaker on that occasion, was the servant of the joint convention. It went no further, because it believed that there were contingencies which might arise, where it was better to leave the 133 men, who compose the two Houses and represent the sovereignty and power of Alabama, some discretion, than to put
them in a straight jacket, where they had none at all. There is no question that has given courts greater trouble than defining the shadowy line that separates ministerial power from judicial power. The Supreme Court of this State, even within the last thirty years, has reversed its rulings on this subject, finally declaring powers were judicial, which formerly it held to be ministerial.

     MR. ROGERS (Sumter)--May I ask the gentleman a question.

     MR. JONES--Certainly.

     MR. ROGERS (Sumter)--I will ask you why you put the word "ministerial" in the first report and left it out of the last?

     MR. JONES (Montgomery)--Because we simply referred to the Speaker then. When we put in the substitute that the joint convention should supervise and control him, then we harnessed him up, and put him in the power and control of the Convention, arid we thought it wise not to use the word "ministerial"--as I was proceeding to explain to my friends when he asked his question.

     Now, there is a decision of the Supreme Court of Alabama, made some twenty-five years ago, and which is still the law, in which Chief Justice Brickell says: "It may not always be easy to ascertain the real character of the power entrusted to a judicial or ministerial officer. When the power is clearly defined and enjoined, does not involve the exercise of the discretion or judgment, and no alternative is left to the officer charged with its execution: when he must act without inquiry, without evidence, and the mode of the action is expressly declared, the power is purely ministerial. When, however, the power involves the exercise of judgment and discretion, when it has to be exercised only in an ascertained event, and on the occurrence and existence


810

OFFICIAL PROCEEDINGS

of particular facts, and the officer charged with the execution of the power must determine whether the event has arisen, or the fact exists, requiring its exercise, then the power is judicial, or in its nature judicial."

     Bearing this definition in mind, the Committee did not wish to use the word "ministerial," and deliberately rejected the suggestion that the Joint Convention of Alabama could be put in a straight jacket, bound to count any returns that came up here, no matter what questions arose, after the result was declared in the
counties below.

     Let us see, Mr. President, what might arise before this Joint Convention. A gentleman sends up the returns and says this is the returns from my county, the one you have is a forgery. The Joint Convention must decide that question. They must decide which is the true return. They exercise and must exercise judicial power in that regard.

     Then, again, Mr. President, suppose some member of the Joint Convention says, "Mr. Speaker, when the result was declared in my county, John Brown had only a thousand majority; that is an admitted fact, but these returns have been tampered with, and, in order to change the result of the election in Alabama, it is now stated that Brown had two thousand majority." We did not wish to have the representatives of the people of Alabama in joint convention made so impotent that by the very letter of the Constitution that they are bound, in the first instance, to bow to a fraud, because it was in the form of a return. The committee considered some other matters in this connection. There is a penalty, I believe, of $250 on the officers for not making the returns. We must consider and provide for all contingencies that may arise. Suppose there is a close election in Alabama, and a partisan board, of either party, declines to send up the papers. There is no return before the Joint Convention from that county. Is the Convention to be bound and shackled like a slave, and compelled to declare the result on the face of the returns they have, though by that act they reverse the will of the majority of voters in the State?

     I remember seeing a Governor's private secretary, some ten or fifteen years ago, in great distress, and I asked him what was the matter. He said, "I am afraid I have lost the Government." These returns came in here, some in August, and along at different times. I have filled up one pigeon-hole with the first batch of them. There were eight or ten other returns sent here, which I cannot find. I do not know what to do; the count comes off in a day or two. I have not time to write and get new returns." If the Joint Convention is put in a straight jacket, after the plan of my friend from Sumter, this Convention, representing the sovereign people of Alabama, which also decides a contest when one is


811

CONSTITUTIONAL CONVENTION, 1901

waged, would, in a case like that, if the missing returns had not been found, have to sit here like a set of dummies. They could only say, "Yes, Mr. Speaker, the Constitution fixes your duty to be merely of announcing the result on "the face of these returns," although some are missing. The will of the people might be defeated by compelling this joint convention to go ahead, when it did not have all of the returns.

     MR. WALKER--Will the gentleman allow me to ask a question?

     MR. JONES (Montgomery) --Certainly.

     MR. WALKER--Is not the effect of the provision, as reported by the committee, to put it within the power of the joint convention to make itself the Canvassing Board, to count the returns from every County in Alabama, and ignoring the returns as set up here?

     MR. JONES (Montgomery)--No sir. The provision is that their functions are confined in that particular matter, to ascertaining that the returns sent up here were the returns declared below. No matter how fraudulently it may have been made, the joint convention cannot go beyond that. They can see, however, that the returns sent them truly declare the returns as made by the Supervisors in the several Counties. It is specially provided that the Convention is confined to the particular powers specifically defined in the section, and shall not question a return in any other respect or in any other matter. I think if my friend will look at that he will see it is not susceptible to the construction he places on it.

     MR. WALKER--Under one of the clauses which I see here the convention can correct any errors in the returns, and if they can do that, they change the result.

     MR. JONES (Montgomery)--They can correct an error and change the result if it was based in error. That is right and is only carrying out the will of the people as declared in 1872, when what was called the Capitol Legislature had the returns. By the oversight of the clerk who made out the returns, they gave in one County a large majority that the Republican Treasurer and Auditor had received to the Democrat candidates who had not received those votes. It was a notorious fact that that was not the result that had been declared below. The Capitol Legislature, respecting the known will of the people, corrected the error in the returns. Now I know my friend from Madison, if an election was to be determined on the figures in a return, would not want to put the convention in such a straight jacket in such a case as that that it could not, if need be, examine witnesses, not as to whether the return was fair, not whether the election was fair,


812

OFFICIAL PROCEEDINGS

not whether the result was affected by fraud -- none of these things--but, gentlemen, what was the result declared? The joint convention should not be powerless to correct the slip of a pen, which might change the destiny of the State.

     Ought not the convention to have the power to inquire whether the return has been tampered with in the mails, or by others in whose custody they are before delivery to the Speaker?

     The section is carefully guarded, Mr. President, to prevent the General Assembly froth being a returning board. If we are to trust returning boards, which will you trust? Shall it be a returning board composed of one hundred and thirty-three representatives of the State of Alabama, or some returning board in some County in the State who know, they could affect the result by sending a fraudulent return here--if the convention could not inquire into it, not into the validity of the election, but into the declaration as made?

     Now let us see, Mr. President, if it is possible to misunderstand this. After saying that the returns shall be sealed up and transmitted, and so on, it says; the joint convention shall supervise and control the Speaker in the discharge of those duties--that is whatever he has to do. And it has the power, first, to determine whether the returns are in legal form, made by the proper officers, and truly give the result as ascertained and declared by the Board of Supervisors in the several Counties. What objection can there be to that?

     MR. JENKINS--To what does the word "truly" there, refer?

     MR. JONES (Montgomery)--It is intended to cut out forgeries--as to whether the returns show "truly" what was declared in the several counties.

     MR. JENKINS--Does it refer to the return? Does it mean whether the returns give truly the result or does it refer to the declaration of the Board of Supervisors?

     MR. JONES--Whether they truly give the results as ascertained by the Board of Supervisors.

     MR. JENKINS -- Does that refer to the returns or to the Convention?

     MR. JONES (Montgomery)--It refers to true returns sent up here, whether they give the facts as declared by the several Boards of Supervisors. There is no possible ground for doubting to what they refer.

     MR. JENKINS--It does not refer to the Convention, then?

     MR. JONES (Montgomery)--No, sir, and it cannot have that meaning. The context and grammar absolutely forbid it. "The


813

CONSTITUTIONAL CONVENTION, 1901

Joint Convention has power, first to determine whether the returns are in legal form, made by the proper officers." The Convention is bound to pass on these things, and those things are matters which, the Supreme Court says, involve discretion and are judicial in their nature. If you put the gentleman of the Joint Convention in straight jackets by using the word "ministerial," pieces of paper would make your Governor; the Convention and the Speaker would both be dummies, and could not exercise their minds or judgment in any respect, or correct any error, or do anything else except automatically add up the returns sent up here to them.

     Suppose the Capitol were to burn down after the August election, in the month of September or October, and the Joint Convention had only the few returns saved from the fire, is the Joint Convention to go ahead and count in whoever has the majority on the face of the returns from the few counties they have, when, as a matter of fact, those people have received only a small minority of all the votes? Ought not the Joint Convention to have the power to say, "We have no returns from such and such a county. We will get the result as declared in the missing counties, and give declaration in favor of the men who have received the majority of all the voters of the State?"

     If there is, which we deny, any feature of a returning board, we have carefully cut off power to defeat the will of the people. It is expressly declared that the Joint Convention should not have the power to interfere with the returns in any other way, or as to any other matter, than those specifically named. If we must trust somebody what is the harm of trusting the 133 men of the two houses? They are the same men who determine the contest. At some stage or other of every function of government, somebody must be trusted in the first instance. I do not believe the time will ever come in the history of Alabama when 133 men, to whom are given the power to say whether the returns are genuine or whether they truly declare the result as declared in the several counties, and where there are errors in them, to correct them, will usurp the function of a contest board and practically decide a contest then and there. If they will do that under guise of correcting error, they will do it no matter what language you use. If they wish to do it they could arbitrarily throw out a return, on the pretext that it was not in legal form, or properly signed, or on any other pretext. If they do, where is your remedy? Whoever they declare elected can take his seat, and if they do that they can again cheat the will of the people on a formal contest.

     The Committee has considered this matter very maturely and earnestly, with an anxious desire to put such provisions in the Constitution as will save trouble in the future, and at the


814

OFFICIAL PROCEEDINGS

same time guard against a Returning Board, which would have power to contest the election as to its fairness, or for anything antecedent to the result as declared, and still leave the Board power to deal with fraudulent charges in the returns.

     MR. OATES--I would like to ask the delegate from Montgomery a question. This proposition is not broad enough, as I understand from your statement, for the Convention to investigate anything except that pertaining to the returns; in other words, that nothing outside, in the election itself, could be investigated by the Joint Convention under this Section?

     MR. JONES (Montgomery)--Certainly. For example, if the returns from Montgomery County showed that William C. Oates had received 5,000 votes, and some member got up and said "That is a mistake, the returns as declared by the Board of Supervisors showed that he had 7,500 votes," under the Section the Joint
Convention could ascertain what was declared by the Board of Supervisors of Montgomery County. By that they would be bound, as the gentleman from Sumter desires, to count the figures sent up, if they contradicted the figures below.

     MR. BURNS--Will the distinguished gentleman allow me to worry him with a question?

     MR. JONES--I will in a minute, just as soon as I finish answering the inquiry just propounded by the gentleman from Montgomery.

     Here is the language to which I wish to call attention: "The Joint Convention shall have no power to question the returns as to any other matters or in any other respect." The article clearly defines what they are to do. Is there an error in the figures? If it is claimed there is, the Convention has a right to inquire into that, and see if the figures returned to them are or are not different from those announced in the county by the Board of Supervisors. By those figures, as declared in the county, they are absolutely bound. Now, I will answer the gentleman from Dallas with great pleasure.

     MR. BURNS--In case there is no Speaker of the House, is there any provision as to who shall open the returns?

     MR. JONES--There is no specific provision in that respect.

     MR. BURNS?Do you think the section is strong enough
without that?

     MR. JONES--I think it would be wise to add to the section, "or Speaker pro tem in the absence of the Speaker."

     MR. BURNS--Now, I ask the privilege of worrying you with a few questions.


815

CONSTITUTIONAL CONVENTION, 1901

     MR. JONES--No worry at all.

     MR. BURNS--Take line 8 in this printed report.

     MR. JONES--What we are considering is the substitute offered for that; not the printed copy from which you are reading.

     MR. BURNS--Then any question in regard to the printed section would be out of order?

     MR. JONES--Yes, we are not considering that. There is a substitute for that. I will now take pleasure in answering my friend from Chambers (Mr. Robinson).

     MR. ROBINSON--I did not want to ask any questions. I thought he had concluded, and I was trying to address the Convention.

     MR. COLEMAN--I would ask the chairman of this committ if this provision of his does not confer judicial power upon the House.

     MR. JONES--Unquestionably it does, and was intended to do so, but in the three particulars named in this substitute. It is expressly denied any power save in the instances named.

     MR. COLEMAN -- They are to judge and determine for themselves whether there are any errors and as to the correction of them?

     MR. JONES--Whether the returns are genuine.

     MR. COLEMAN--Correct such errors as may be found. They are made the judges of whether there are errors and they are to correct them?

     MR. JONES--Unquestionably.

     MR. COLEMAN--Then they act judicially under this instead of ministerially?

     MR. JONES--Yes; and we were afraid, if we put the word "ministerially" in there, they would be put in a straight jacket and could not correct a manifest or plain error, or a fraudulent alteration in the return, after it was made.

     MR. HARRISON--Will the gentleman permit a question?

     MR. ASHCRAFT--May I interrupt the gentleman with a question?

     THE PRESIDENT PRO TEM.--Will the delegate yield for a question?

     MR. JONES (Montgomery)--To either one of them; but not to the two at the same time.


816

OFFICIAL PROCEEDINGS

     MR. HARRISON--Would it not be better, instead of saying "to correct such errors as may be found there" to make it "to permit such errors as may be found therein to be corrected?"

     MR. JONES (Montgomery)--Is not that the same thing?

     MR. HARRISON--Permit them to be corrected by the County Board; or do you intend that the Joint Convention shall act judicially and correct the errors?

     MR. JONES (Montgomery)--What the committee intended was, in view of the decision of the Supreme Court, to give this Board, or Joint Convention, the power to judicially determine when the returns were sent up, whether they were true returns, whether in proper form, signed by the proper officers, and whether the returns tally with the declaration made by the Board of Supervisors of the county at the time the votes were counted and the result declared, and if there were errors in the returns--not frauds in the election or wrongs of the election officers--to give the joint convention power to correct such errors.

     I take it for granted if there was a gentleman on the floor of the Joint Convention who said there was an error of five hundred votes in the returns sent up from his county, and there was no dispute about it, the convention would correct it by common consent, as they did in 1872 ; but if it was disputed, they would send a committee of the body to examine into the matter, or summon before them the supervisors, and say to them, "You have given this man so and so many votes--is that a mistake? Everybody else running on that ticket got nine hundred votes?" If they answer, "Yes, that is a mistake," then the Convention would correct it. If they testify "No, that is not a mistake," then the Joint Convention would not change it.

     The committee was afraid if they used the word "ministerial" purely, it would make a set of dummies of the 133 men of the two Houses, and put it in the power of any County Board of Supervisors by sending up a return, which fraudulently contradicted the result as declared by them below, or which had been tampered with in the mails to change the result, and compel the convention to make a declaration of election in favor of a men who was not elected.

     All of us know that in times of passion and political excitement, good men do a great many things they afterwards regret. Some men get so fanatical that they think they are doing God's service when, no matter how or by what means, they down a political opponent. Take a close election in the State where the vote of one County would decide it, and turn over the political power one way or the other, under the plan proposed by the gentleman from Sumter, a Board of Supervisors of three men, even after the result had been declared in their County could give a


817

CONSTITUTIONAL CONVENTION, 1901

man ten thousand votes when he didn't have but fifteen hundred, and when it was notorious that it controlled the result as declared below, and thus the will of the people could be overthrown by three men. Is it not better to insert one hundred and thirty-three?

     MR. ASHCRAFT--Will the gentleman allow an interrogatory right here?

     MR. JONES--Certainly.

     MR. ASHCRAFT--You have approached precisely the point about which I desire to ask a question. The safeguards which have been thrown around the holding of an election and the making of returns are such as to bring the returns to the Speaker of the House presumptively correct. Now, in the heat of this political condition to which you refer, you say the Board of Supervisors may certify and return a party as having received five thousand votes when he only received three thousand.

     MR. JONES (Montgomery)--And when they declared he had only received three thousand when the result was announced.

     MR. ASHCRAFT--As I say, the returns come to the Speaker presumptively correct, and suppose a member of that one hundred and thirty-three stands up and says, "Mr. Speaker, those returns are not correct." They are presumptively correct before the Speaker. The House constitutes itself into a returning board. Now, will it do that without giving notice to the parties who are interested, and if it must give notice to them in order that justice may be done, does not that incidentally place it where the body is under a later clause of this report which provides for contests in the regular form of law?

     MR. JONES (Montgomery)--There is only one way to make a contest and that is to contest the result that is declared by the Speaker of the House or the presiding officer of the two houses. When that is done the question of a contest comes in, but before a declaration is made, there cannot be any contest, strictly speaking, in a legal sense, the contest to which the Constitution refers.

     MR. ASHCRAFT -- Then the gentleman maintains that the House ought to have the authority to change what is presumptively correct and declare another persons elected and without giving the man who is deprived of that presumption any opportunity to be heard.

     MR. JONES (Montgomery)--No, sir; if the gentleman will pardon me, I said nothing about putting a man out without giving him notice. The Committee thought that the one hundred and thirty-three men who were supposed to be representing different parties, would at least act fairly and decently. We could not undertake to prescribe in the Constitution all the details for the action of a representative body of 133 men. In the case supposed


818

OFFICIAL PROCEEDINGS

by the gentleman, I take it that members of the opposition party or friends of the officer affected would say, "Put that aside, see if it affects the result." And if they found it did affect the result, if necessary, they might delay the declaration as to that officer, and send a Committee to find out what the true return was or summon the officers of the County before them. I cannot understand the sensitiveness of the gentleman about trusting the Joint Convention in a matter of that sort. They are the men who have to decide the matter of a contest, and it certainly would be an unseemly thing for Alabama to say and to these 133 men, you must put men in office, who are not elected, simply because a supervisor, after a result was declared, stuck in a few more figures or forged the returns. If we cannot trust the General Assembly in joint convention to settle a matter of that sort properly, there is no use of talking about Constitution or fundamental laws.

     MR. ASHCRAFT--Will the gentleman permit another interruption?

     MR. JONES (Montgomery)--Certainly.

     MR. ASHCRAFT--Don't the people of Alabama manifest their confidence in the General Assembly to determine the questions of the kind you mention fairly by providing they may entertain contests of elections.

     MR. JONES (Montgomery)--Unquestionably, but that relates to other matters, to going behind the returns and inquire into the validity and legality and fairness of the election. This section does not propose anything of that sort, but simply gives the body the power to see that the processes which completes the election after the result declared below were fair and expressed the will of the people.

     MR. ASHCRAFT--And to change the presumption of correctness without giving the parties interested notice.

     MR. JONES--No, sir; it don't say that at all. It puts it in the power of this body to inquire and determine as to the correctness of the returns of the supervisors, but not to go into the validity of the election.

     Now, Mr. President, I dislike to take up time on this floor about matters of law so well known, but must remark that an election consists of many processes. It does not consist altogether of putting ballots in a ballot box. There are after processes. The law exacts many safeguards, which are committed to different sets of officers. All these must be performed before there is any "election" to contest. The joint convention, under this section, deals in with addition, and ascertaining that the figures are in genuine returns, and that these returns have not been altered so as to show a different result from that declared.


819

CONSTITUTIONAL CONVENTION, 1901

     In West Virginia, owing to a dispute about returns, the Joint Convention might do, to declare the result. The Supreme Court of West Virginia decided the only way they could know who was Governor of West Virginia, was by a declaration in Joint Convention of the legislature of West Virginia and as such declaration no matter what the reason--had not been made by the only tribunal entrusted with authority to declare the result, it could not say who had been elected Governor. How can you provide against such a refusal in the part of the Alabama Joint Convention? If you left it to court, it too, if all virtue is gone out of men, might refuse to make a declaration. You must trust somebody in the first instance. Is it not wise and proper to give the Joint Convention power to deal with everything which may be done to defeat the will of the people, after the result is declared? What may happen before the result is declared is entrusted to other officials. It is not proposed to touch their work or decisions. That and that only could constitute a returning board. Surely, if in the Joint Convention, a member should rise in his place and say this return, which it counted as it now is, will change the control of the legislature, executive and judicial department of Alabama, has been fraudulently altered or the clerks below made a mistake in addition and thus sent up the wrong figures--would it be wise policy not to allow the Convention to inquire as to the truth of such a complaint and, if found to be true, not to permit the will of the people to be overturned by a fraud or a mistake. There is no ground for the fears of gentleman as to the will of the people being overthrown by the power given by this section. On the contrary it tends to secure the will of the majority against frauds and mistakes.

     MR. BOONE--I rise for the purpose of supporting the substitute as offered by the gentleman from Sumter and I do it mainly upon these grounds. For over twenty-five years we have had a Constitution which provides that this power shall be ministerial.

     MR. JONES--The present Constitution does not say a word about whether the power is judicial or ministerial.

     MR. BOONE--Then I think it is our duty to make it clear on that matter, and I think the word "ministerial" should be here. From the debate that we have had here and from the argument the gentleman has made, and which will go as a light to the court in construing what we do, it will appear that the gentleman was careful in striking out that word ministerial to say that he would confer on the 133 men what? The supreme power to decide elections in this State. This Section says they shall correct any errors. As Judge Walker has pointed out and as my friend Judge Coleman has shown, that would confer on them judicial power.

     It seems to me if we have struggled for anything in this State, it has been for the principle of home rule and if we are going to


820

OFFICIAL PROCEEDINGS

have any set of men who are going to pass upon the integrity of our elections in our counties it should be under the eye of the people and the vote should be canvassed where the witnesses can be gotten, where all the facts and circumstances are readily accessible, and not take it away, as would be the case as to Mobile,
180 miles and equally far from other parts of the State. These witnesses would have to be coming up here to Montgomery at trouble and expense, away from their homes, for the purpose of answering these charges, and forsooth why? Because these 133 men said that according to this Section the return did not truly show what the vote had been in that county.

     MR. JONES--Truly declare.

     MR. BOONE -- It is the same thing. It is nothing but a choice of terms. The legal effect is the same, whether it is cast or declared or whether it was not cast and they declared it was.

     MR. JONES (Montgomery)--Would the gentleman think it wise policy to provide in substance in the Constitution if a return was shown to be forged to the extent of adding what would give a party not entitled to a majority, that the Joint Convention would have no power to inquire into that?

     MR. BOONE--No, sir; I would not be in favor of any such a proposition, but that matter could be corrected as it is now. All those certificates are sent here in duplicate. It is hardly probable that both shall be forged and I think these matters should be decided in the local forum, so to speak.

     Now, only one word more, and I am done, and that is this: We all know that in construing any statute or in construing any constitutional provision, one of the cardinal rules of construction is to look at the mischief to be remedied, the evil to be taken out; and when we come here we find in the Constitution whether the
word ministerial was or was not in there we confer in effect as said by the gentleman from Greene judicial power upon this body. That is plain, and the gentleman admits that. But he says forsooth that these 133 men would be too good, too pure, too noble and too patriotic to put up any jobs in a matter of an election.

     Unhappily we know that in our sister States that has not been the rule. Only a few years ago judicial power given to the Legislature to decide who was elected Governor of Kentucky almost brought about a war in that State and it cost the life of a man who was determined to be elected and there was a state of anarchy
reigning in that commonwealth for months. I hope the possibility of such a thing will be forever kept away from the people of Alabama. I believe the substitute of the gentleman from Sumter clearly guards against any such danger, and I hope it will be adopted.


821

CONSTITUTIONAL CONVENTION, 1901

     MR. SAMFORD -- We leave been in session lacking nine minutes of twenty-six Convention days--working days. To the minds of many of us and to the minds of the public we have accomplished very little and it has occurred to some of us that our sessions are either too short or too widely separated. The Committee on Rules reported the other day a rule requiring us to have an afternoon session beginning at 3 o'clock, and that was laid on the table until Thursday or such other time as the Convention should see proper to take it from the table. For the purpose of taking that report from the table I move that the rules be suspended and that subject be taken up.

     THE PRESIDENT -- The Chair is unable to see how the Convention is going to get rid of the pending question. The pending question is the substitute of the delegate from Sumter. It might be laid aside temporarily by unanimous consent.

     No one objecting, the Chair took a vote on the motion of the delegate from Pike to suspend the rules, and the House refused to suspend the rules.

     MR. PILLANS--Addressing myself to pending question. I think every member in this House must have in memory the infamous Returning Board that afflicted Louisiana a few years gone by and through Louisiana the United States, and produced the necessity for the Electoral Commission that settled the Hayes-Tilden contest. And I take it no man who bears in mind the evils the Returning Board produced at that time will want to see a Returning Board established in Alabama, in our State affairs. I know that my honorable friend from Montgomery, who has charge of the matter, is insisting and will continue to insist, until he goes down under the vote of this Convention, that he has not thought in this substitute a plan for a Returning Board, and I know he is honest in that contention; but every time he opens
his mouth in justification of his plan he shows that he intends to give judicial power to the joint convention of the Houses.

     In the argument which he has made, and very ingeniously made, in support of the substitute offered by the committee and against the substitute of the gentleman from Sumter, he has given us an illustration of the necessity of standing by the substitute of the gentleman from Sumter, if we wish to be rid of Returning Boards. For example, he said "Suppose the Montgomery County Board of Canvassers or Supervisors or whatever they are styled, count the vote of this County and makes a certificate to the Secretary of State and gives out publicly that there is a majority of one thousand for A. B. against C. D. for Governor of Alabama, and suppose when this is opened by the Speaker in the presence of the joint House it appears to be two thousand majority," now, he says, that ought to be inquired into by the two Houses and settled there; that if it is suggested there is an error and nobody


822

OFFICIAL PROCEEDINGS

opposes the suggestion, it ought to be settled at once. Further on, in answer to some questions put to the gentleman, he says, "You can send it out to committees and take evidence." Right that moment he declares that he intends to have a Returning Board, nothing short of it. I wish to ask the gentleman if they desire such a thing?

     MR. JONES--Is there anything now to prevent these 133 men if it is said the returns are not genuine to have that matter settled?

     MR. PILLANS--Most assuredly there is.

     MR. JONES--Have they not the right to see whether the returns are in proper form?

     MR. PILLANS--I will answer that under the present Constitution, following the Constitution of the United States and the Constitutions of nearly all of the other States, the returns are supposed to be fairly and honestly made by the canvassing officers of the County. We have to trust somebody, and we trust the canvassing officers in the county. It there is any danger of the returns, when they are coming to the Capitol, being tampered with in the mail, it is within the power of the Legislature to provide for a safer way, but that is a matter we do not deal with in a Constitution. The idea that seems to be involved in the gentleman's proposition is that you must have a chance to contest some part of the election on the prima facie count. I deny that. I say the whole principle of republican government is founded on trust. First trust in the electorate, that they will elect good men. Next trust in the Canvassing Board that they will honestly canvass the vote without inquiring past the vote, but just find the prima facie returns. Next that when the return reaches the State Capitol that it will be honestly canvassed by the House. Don't forget gentlemen, that there will be the constitutional provision and in all the election laws the retention of two distinct ideas in the election, the first is that there shall be a prima facie count and that there shall be a speedy count and that shall be based on the face of the returns; and next that there shall always be opportunity to contest when parties are given notice and witnesses summoned and delay had for the purpose of settling the contest.

     As to the forgery suggested--

     MR. JONES -- The clock will strike before you can finish answering that.

     MR. PILLANS--Then I shall have the floor in the morning.

     A motion was made that the House remain in session until the delegate could finish his remarks but the clock struck before the motion could be put.


823

CONSTITUTIONAL CONVENTION, 1901

     THE PRESIDENT--Under the rules the Convention is adjourned and the gentleman from Mobile will have the floor in the morning.

     By consent the report of the Committee on Journal stating that the Journal for the 25th day was correct, was read and on motion was adopted.

     By further consent resolution No. 390 which had been referred to the Committee on State and County Boundaries was referred to the Committee on Amending the Constitution and Miscellaneous Provisions.

     Announcements were then made and the Convention adjourned.