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__________________

TWENTY-SEVENTH DAY

________

                                                                                                                              MONTGOMERY, ALA.,

                                                                                                                              Saturday, June 22, 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, the Father of spirits, from whom all souls have come and to whom all shall at last return, abide with us, we pray Thee, in the seasons of our pilgrimage. Grant that we may serve, as serving Thee, and that we may find the succor and the security of the people in the leadings of Thy truth and in the counsels of Thy will. Guide us, we beseech Thee, that with hearts quick to conceive, and of good report, the dignities and liberties of the people may be fashioned in the forms of law, and the horizons of their contentment may be broadened to our utmost borders. Confirm them in the gifts of patience and of confidence; and confirm in us, O God, those probities of heart and those sobrieties of temper which befit the stewards of the peace of generations!

     If any man among us be found in any trouble or distress, if there be sickness here, or doubt or sorrow, or a heart in its loneliness of bitter need, come, we pray Thee, to comfort and restore. For all the good that Thou hast wrought for us, for days of strength and for a world of honest love, grant us the joy of grateful hearts. Help us to believe Thee and to know Thee and to prove Thee, that Thou are God indeed; through Jesus Christ our Lord. Amen.

     The roll was called and showed the presence of 138 delegates.


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LEAVES OF ABSENCE

     For Today--Messrs. Coleman (Greene), Bulger, Parker (Cullman), Howze, Long (Walker), Carmichael (Colbert), Reese, Vaughan.

     For Today and Monday--Messrs. Fletcher, Renfro, O'Rear, Spragins.

     Mr. Ely for Monday, Tuesday and Wednesday.

     Mr. Weatherly for yesterday (Friday).

     Mr. Kirkland for Friday, Saturday and Monday.

     Mr. Sollie for Wednesday, Thursday and Friday of the present week.

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

     MR. deGRAFFENREID--I move that time be granted the Committee within which to make their report until Monday.

     MR. BURNS--I ask the consent of this house to offer a short resolution.

     The consent was given and the following resolution read:

     Resolution No. 177 by Mr. Burns:

     Whereas, but twenty-five (25) more working days are allotted by the enabling act; which, counting six (6) hours per day (being more than double the number of hours already utilized) would give to each member less than one hour.

     Be it resolved that the time occupied on this floor by each delegate be recorder, and that no delegate, who is not chairman of some committee or to whom the time of some other delegate has not been yielded, shall consume more than his prorata share, except by leave of the convention.

     Referred to the Committee on Rules.

     MR. REYNOLDS (Chilton)--I ask consent to introduce a resolution.

     The consent was given, and the resolution read as follows:

     Resolution 178, by Mr. Reynolds (Chilton):

     Whereas this convention was called chiefly for the purpose of regulating the suffrage.

     And whereas, this convention has previously pledged itself to be bound by the enabling act of the General Assembly, and


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     Whereas, one half the time limit of said enabling act has already expired and it would be unwise to rush through a suffrage plan,

     Be it resolved by the convention assembled that the Suffrage Committee be and is hereby instructed to make a report not later than Monday next.

     Referred to Committee on Suffrage and Elections.

     MR. GRAYSON--I ask unanimous consent to offer a resolution.

     The consent was given and the resolution read.

     Resolution 179, by Mr. Grayson:

     Resolved that the daily sessions of this convention shall begin at 10 a.m. and adjourn at 2 p.m.

     Referred to the Committee on Rules.

     MR. SMITH (Mobile)--I desire to call up a resolution reported favorably by the Committee on Rules in regard to the sessions of this convention.

     The resolution and substitute were read as follows:

     Resolution 146, with substitute: Resolved that after next Monday this convention shall meet regularly at 10 o'clock in the morning and shall remain in session from that time until 1 o'clock p. m. when a recess shall be taken at 3 p. m. and the convention shall remain in session until 5 p. m. when the convention shall stand adjourned until 10 a. m. of the succeeding day.

     Substitute for the resolution reported by the Committee on Rules.

     Resolved that after the passage of this resolution this convention shall, meet regularly each day at 10 o'clock in the morning and shall remain in session from that time until 1 o'clock p. m. when a recess shall be taken until 3 p. m. and the convention shall remain in session until 5 p.m. when the Convention shall stand adjourned until 10 a. m. of the succeeding day.

     MR. deGRAFFENREID--I move the adoption of the substitute.

     Upon a vote being taken the motion prevailed.

     MR. deGRAFFENREID--I move that the regular order be dispensed with, and that we proceed to the consideration of the matter which was being considered by the house at its adjournment on yesterday afternoon.


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OFFICIAL PROCEEDINGS

     . GRAHAM (Talladega) -- I hope the gentleman will withdraw it for the purpose of letting me introduce a resolution, and I will renew his motion.

     MR. deGRAFFENREID--I withdraw it for that purpose.

     Resolution 180 by Mr. Graham (Talladega).

     Resolved, That it is the sense of this convention that the substance of the resolution hereto attached be incorporated in the article heretofore reported on the subject of taxation.

     Resolution adopted by the State Association of County Superintendents of Education and approved by the Alabama Educational Association, June 20, 1901.

     Whereas, there is a crying need for better school houses in the rural districts of Alabama, we, the County Superintendents of Education in Association assembled in Montgomery, hereby petition the Committee on Taxation and Education in the Constitutional Convention now assembled to recommend that public school houses be declared public buildings in making provision in the constitution for a special county tax for the erection of court houses, bridges and other public buildings of the county, and that such aid may be given by the county to the building of public school houses in the county as the commissioners court or boards of revenue in the several counties may deem practicable.

                                                                                                                    W. S. Neal,

                                                                                                                        Acting President,

                                                                                                                     L. V. Rosser,

                                                                                                                        Secretary.

     Referred to Committee on Taxation.

     MR. PARKER (Elmore)--I ask unanimous consent to offer a resolution.

     The consent was given, and the resolution was read as follows:

     Resolution No. 181.

     Resolved, That a committee be appointed by the president of this convention to consist of the president, the three other delegates from the State at large, and one from each Congressional district, to prepare a memorial to the Congress of the United States, on the repeal of the fifteenth amendment of the Federal Constitution, said committee to report ad libitim during the session of this convention.

     Referred to the Committee on Rules.


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     MR. BROWNE--It will be impossible to get a meeting of the Committee on Taxation before the report of that committee will be considered. The resolution introduced by the gentleman from Talladega, Mr. Graham, simply provides that school buildings shall be classed among those public buildings for which special taxation is provided, and for the purpose of testing the sense of this convention upon the subject, so that the committee may be directed to place school buildings with the other public buildings, I move to suspend the rules in order to put the resolution upon its passage.

     MR. deGRAFFENREID--I object, Mr. President.

     MR. GRAHAM (Talladega)--I hope that the gentleman from Talladega will let the matter stand until his report comes up for consideration, so, that I may have a conference with him.

     MR. BROWNE--I do not see any good reason why the committee should not have the sense of the convention--

     THE PRESIDENT--The gentleman from Talladega says to the gentleman from Talladega that he wants to have a conference with him before this matter is brought before the convention.

     MR. BROWNE--I withdraw the motion then.

     MR. HARRISON--I ask to have Ordinance 352 returned by the Committee on Corporation, and that it be referred to the Committee on Taxation.

     The reference was changed as requested.

     MR. O'NEAL (Lauderdale)--I ask unanimous consent to submit the report of the Committee on Local Legislation. It is very short and will consume very little time.

     The report of the committee was read as follows:

     Report on the Committee on Local Legislation:

     Mr. President.

     The Committee on Local Legislation instructs me to report herewith an ordinance to be made an article on that subject.

     The evil of local legislation has long been recognized, not only in Alabama, but in many other States of the Union. A number of recent State constitutions have endeavored to check this tendency on the part of the Legislative Department, by absolute prohibition of local or special laws in certain enumerated cases. This method of enumerating the subjects, as to which the legislature is prohibited from passing local, special or private laws, seems to be the only feasible plan of accomplishing the result, and has received the approval of the following States: California,


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Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, South Carolina, North Dakota, Oregon, Pennsylvania, South Dakota, Texas, Washington, West Virginia, Wisconsin and Wyoming. The reason why the other States have not sought to check this evil by similar constitutional limitation on the power of the legislature, is no doubt due to the fact that they have not framed new constitutions since the danger from this class of legislation has become so patent, and its rapid and ever increasing growth so alarming.

     The Constitutional Convention of 1875 endeavored by what were then regarded as stringent provisions, to prevent the growth of such legislation in Alabama, but that their efforts failed, is made evident by the ever increasing flood of local and special laws which fill volumes containing the act of the General Assembly. In recent years the number of local laws enacted have outnumbered the general laws in the proportion of about twenty to one. The books containing the general laws of the last two sessions of the General Assembly are less than the size of the old blue backed Webster spelling book, while the volumes containing the local laws of those sessions are nearly ten times the size.

     These local, special or private bills which we have sought to prohibit and regulate destroy the harmony of the law, consume the time of the legislature, and in some State have been the fertile source of jobbery In the enumeration of subjects concerning which it is proposed the General Assembly shall not legislate by special, private or local law, we have endeavored to include those matters which seem to have consumed most of the time of the legislature and occupied most of the space in the published acts. The requirements that the notice of intention to introduce a special, private or local law shall be affirmatively shown by the journals of each house, and that the courts and not the General Assembly shall be the judges of whether the subject of any local law is provided for by any general law, and whether the relief sought can be granted by any court, will in the opinion of the Committee very materially aid in preventing local legislation.

     We have also provided for the repeal of local laws now in existence upon the same notice being given and shown as is required in the passage of new ones.

     One of the most common methods of evading provisions against special, private and local legislation consists in passing acts which, because they purport to amend general acts, are themselves deemed general. Another method consists in evading such laws by the partial repeal of general laws by excepting certain counties, municipalities or corporations from their operation. We have provided that the legislature shall not indirectly enact such laws.


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CONSTITUTIONAL CONVENTION, 1901

     We have sought to prevent the assumption by the State Legislature of the direct control of local affairs. The General Assembly is authorized to confer upon local courts powers of local legislation and administration, thereby not only saving the time and expense required in the passage of local acts, but also relegating these matters to the local authorities and forum, which can best appreciate and understand restrictions.

     One of the most alarming evils which is the outgrowth of local legislation, and which has increased enormously in the last few years, is the unlimited power of counties and municipalities to borrow money. The last two legislatures alone, authorized the issue of many million dollars worth of bonds in this State. This we have endeavored to check or to safe guard by proper local necessities and demands.

     The Committee has not deemed it necessary to report specially upon the several ordinances and resolutions referred to it. All have been maturely considered, and the principles of most have been incorporated in this ordinance. These ordinances are herewith respectfully returned.

                                                                                                                           Emmett O'Neal, Chairman.

AN ORDINANCE

     Concerning Local Legislation.

     Be it ordained by the people of Alabama in Convention assembled, that the following article on local legislation be inserted in the Constitution:

ARTICLE --

LOCAL LEGISLATION

     Section 1. The General Assembly shall not pass a special, private or local law in any of the following cases:

     1st. Granting a divorce;

     2nd. Relieving any minor of the disabilities of non-age;

     3rd. Changing the name of any corporation, association or individual;

     4th.  Providing for the adoption or legitimizing of any child;

     5th.  Incorporating a town, city or village;

     6th.  Granting a charter to any corporation, association or individual;

     7th.  Establishing rules of descent or distribution;

     8th.  Regulating the time within which a civil or criminal action may be begun;

     9th.  Exempting any person, corporation, county, township, municipality or association from the operation of any general law;


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     10th. Providing for the sale of the property of any individual or estate;

     11th. Changing or locating a county seat;

     12th. Providing for a change of venue in any case;

     13th. Regulating the rate of interest.

     14th. Granting any exclusive or special privilege, immunity or franchise whatever.

     15th. Fixing the punishment of crime or misdemeanors.

     16th. Providing for or regulating either the assessment or collection of taxes;

     17th. Giving effect to invalid will, deed or other instrument.

     18th. Legalizing the invalid act of any officer;

     19th. Authorizing any township, city, town or village to issue bonds or other securities;

     20th. Amending, confirming or extending the charter of any corporation or remitting the forfeiture thereof;

     21st. Creating, extending or impairing any lien;

     22nd. Chartering or licensing any ferry, road or bridge;

     23rd. Regulating the jurisdiction and fees of justices of the peace or the fees of constable;

     24th. Establishing separate school districts;

     25th. Establishing separate stock districts;

     26th. Creating, increasing or decreasing fees, per centage or allowances of public officers. No special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case, which is provided for by a general law, or when the relief sought can be given by any court of this State, and the courts and not the General Assembly shall judge as to whether the matter of said law is provided for by a general law and as to whether the relief sought can be given by any court; nor shall the General Assembly indirectly enact any such special, private or local law by the partial repeal of a general law.

     The General Assembly shall pass general laws for the cases enumerated in this section.

     Sec. 2. No special, private or local law shall be passed on any subject not enumerated in Section 1 of this article, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law, and be published at least once a


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CONSTITUTIONAL CONVENTION, 1901

week for four consecutive weeks in some newspaper, or if there is no newspaper published in the County, by posting the said notice for four consecutive weeks at five different public places in the County or counties, prior to the introduction of the bill; and the evidence that said notice has been given shall be exhibited to each house of the General Assembly, and the fact of said notice spread upon the journal. The courts shall pronounce void every local law which the journals do not affirmatively show was passed in accordance with the provisions of this Section.

     Sec. 3. The General Assembly may repeal any special, private or local law upon notice being given and shown as provided in the last preceding section.

     Sec. 4. The operation of no general law shall be suspended for the benefit of any individual, corporation, association, towns, city, county or township, nor shall any individual, corporation, town, city, county or township be exempted from the operation of any general law.

     Sec. 5. The General Assembly may by general law confer upon courts of County Commissioners, Boards of Revenue or other courts, such power of local legislation and administration, touching all matters and things not provided for by general law, and not inconsistent with the provisions of this Constitution as the General Assembly may from time to time deem expedient.

     Sec. 6. A general law within the meaning of this article is a law which applies to the Whole State; a local law is a law which applies to any political sub-division or sub-divisions of the State less than the whole--a special or private law within the meaning of this article one which applies to an individual, association or corporation.

     THE PRESIDENT--The report will lie on the table and be printed under the rules.

     MR. O'NEAL (Lauderdale)--I ask that the rules be suspended and that the report be made a special order, after the consideration of the report of the Committee on Preamble to the constitution.

     MR. HARRISON -- I do not wish to object to the motion made by my friend from Lauderdale, but it seems to me that this report should be considered in connection with the report of the Committee on the Legislative Department, which committee has not yet reported, and I hope the motion will not be insisted upon. I hope that these reports may be considered together.

     MR. OATES--Before that is put, I want to say that last night we had a conference with reference to this matter, and as I understood the Committee on Legislative Department went over the items in this report, the large majority of which they agreed to, but I informed the chairman and his associates last night, that after they retired we would go on through, and if there were any proposition in the bill which we had prepared touching this subject,


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which were not embraced in theirs and which we thought should be, that we would furnish such suggestions to them this morning. I have them ready to furnish, but I find the committee making its report. Now I do not wish to have any conflict at all. While all that belongs usually to the Legislative Department, and comes under that head, all that I desire for the committee of which I have the honor to be the chairman, is that we may have a voice in it, and as nearly without conflict as possible. But we have some propositions not embraced in their article, that we think it is our duty to present and urge, and I have no objection to an order, if it necessary to take one, to take up the subject of legislation after the other orders that have been made, but I think that the Committee on the Legislative Department should have an opportunity, and not be cut off of having considered, in the same connection, the propositions touching local legislation, which are not covered by this report.

     MR. WEATHERLY--Will the gentleman from Montgomery allow me to make a suggestion.

     MR. OATES--Certainly.

     MR. WEATHERLY--Perhaps the convention does not understand the fact that a number of these ordinances relating to the prohibition of local legislation have been referred to the Committee on Legislative Department and a number to the Committee on Local Legislation, so that it is as much the duty of the Committee on Legislative Department to make their report on the ordinances referred to it as it is the duty of the other committee to make a report on the ordinances referred to it.

     MR. OATES--The delegate from Jefferson is quite right. He is a member of the Committee on Legislative Department, and knows these facts, that ordinances have been referred to the committee, touching the same subject. All we desire, Mr. President, is a fair opportunity to have our views represented in this connection. We do not wish to antagonize the Committee on Local Legislation, but the committee last night went over it, after they retired and think it is not broad enough, and there are other propositions that ought to go in there, and of course, the committee having made a report, I presume the Committee on the Legislative Department will also make a report, covering the points not covered by the report of the Committee on Local Legislation. Therefore, I think that while it may be conceded that this matter of legislation may come up next after the orders already made, I think that their report should be considered probably along with the report on the Legislative Department, and wherein there is a difference that it may be taken up along with that so as not to have any conflict. That is all we desire. But the Committee on Legislative Department feels that it is their


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duty to report on ordinances touching this subject that were referred to them, and they have done so after careful consideration.

     MR. LOMAX--Will the gentleman permit me to ask him a question.

     MR. OATES--Certainly.

     MR. LOMAX--Are you prepared to indicate to the convention about what time you will be ready to make this report?

     MR. OATES--The Committee will have a meeting this evening, and are ready to make a report. I will state furthermore, that the delegates from Montgomery himself offered an ordinance, a very extensive and well constructed one, which was referred to the Committee on Legislative Department, and some of its
recommendations were adopted by the Committee. All we want is to cover the subject well, and not be concluded from it by the Committee on Local Legislation. So I would suggest that this matter lie over until--

     THE PRESIDENT--The Chair would suggest to the gentleman from Montgomery that the pending question is the motion to suspend the rules, and unless a satisfactory arrangement can be made between the gentleman and the gentleman from Lauderdale, probably the matter could be reached by a proposition to amend his motion.

     MR. OATES--Mr. President it will simply result in this, to go on in that way, the Committee on Legislative Department will be offerings propositions and amendments that will throw more work before the convention, and we wanted to avoid that if we could.

     THE PRESIDENT -- Is the suggestion of the gentleman from Montgomery satisfactory to the Committee on Local Legislation?

     MR. WATTS--No sir, and we desire to say--

     THE PRESIDENT--Then the motion before the convention is the motion to suspend the rules.

     MR. WATTS--I hope the convention will permit us to answer at least the implied charge of bad faith made by the gentleman from Montgomery against the Committee on Local Legislation.

     MR. OATES--Mr. President, the delegate from Montgomery is assuming a good deal. I never used the word bad faith at all. I simply stated facts and nothing but facts.

     MR. WATTS -- That is the matter we propose to discuss. Now the gentleman from Montgomery, Mr. President, alleges


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that we went to his office last night, and submitted to his committee the report of the Committee on Local Legislation. That is true. We did that at his request. The gentleman from Montgomery, the Chairman of the Committee on Legislative Department, promised to return to us our report this morning, with a statement of what objections his committee had to it. Instead of that, the report was not returned to us at the time indicated, and we sent for it, and it was sent back to us without any suggestions whatever. We therefore made our report--

     MR. OATES--Let me interrupt the delegate--

     THE PRESIDENT--Does the gentleman consent to be interrupted?

     MR. WATTS--I have no objection at all.

     MR. OATES--Now the promise that was made, was to return the ordinance to his office by 9 o'clock this morning. It was left with the clerk of the Committee on Legislative Department, and he promised to return it. When I went there he had not done so, but started to carry it just at the time the messenger came in from Mr. Watts's office. Now I never promised to send the objections with the report to his office, but promised to bring them here this morning, when I came, and that the committee would confer with the gentleman, and I have the paper ready to submit to them and confer with them.

     MR. O'NEAL (Lauderdale)--If the gentleman will permit, I will say we understand him to say that he would inform us with the return of the report, what objections, if any, he had to it. That was our understanding of the agreement.

     MR. OATES--No. I made no such agreement.

     MR. O'NEAL--And upon the return of the report without any explanation or objection, we thought it proper to prepare it and submit it to the convention. We thought that we had carried out our agreement.

     MR. OATES--I could not undertake to write out an explanation of everything in that time, but I expected to see the gentlemen on arrival here this morning, and explain to them what the position of the committee was.

     MR. WATTS--The only reason we advert to the matter at all is because of the statement of the gentleman from Montgomery, in his remarks to the convention, implying that we had broken faith in our agreement. If it was a misunderstanding on his part, as to what the promise or agreement was, or upon our part, of course there is nothing more to be said upon that subject.

     MR. OATES -- I will state that the misunderstanding was with you.


 

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CONSTITUTIONAL CONVENTION, 1901

     MR. WATTS--But we understood when the gentleman failed to send us the report at the time agreed upon, and we had to send for it, and when he sent it back to us without any comments whatever, we took it for granted that he had no comments to make, and there was no reason why we should not make our report.

     Now in reference to the suggestion made by Mr. Weatherly and also by the distinguished gentleman from Montgomery, that their Committee should report upon matters of local legislation, I respectfully submit that the Committee on Local Legislation was established by this convention for the purpose of considering matters of local legislation, or it has no functions whatever. If the Committee on Local Legislation has jurisdiction of his subject, then the Committee on Legislative Department has not. There cannot be two committees with concurrent jurisdiction in this convention, and with all due respect to the learned gentleman from Montgomery, the Chairman of the Committee--

     MR. HEFLIN (Chambers)--I rise to a point of order. A motion to suspend the rules is not debatable.

     THE PRESIDENT--The point of order is well taken.

     MR. WATTS--I obtained leave. No one objected to my remarks.

     MR. HEFLIN--I did not so understand it.

     MR. WATTS--The gentleman is unfortunate in not so understanding it. Leave was granted. I asked leave and no objection was made.

     MR. HEFLIN (Chambers)--I insist upon the point of order.

     THE PRESIDENT--The proposition was not stated to the convention, the Chair will suggest, but the Chair by indulgence was allowing the gentleman to proceed, in reply to the remarks made by the gentleman from Montgomery, by common consent, but the question was not put to the convention.

     MR. WATTS--I insist that if other gentlemen is not fair to cut off the committee. The committee always has the right to close any discussion affecting their report.

     THE PRESIDENT--That is a matter with the gentleman from Chambers, who makes the point of order.

     MR. WATTS--I merely want to state the position of the committee, in reply to the gentleman from Jefferson and the gentleman from Montgomery.

     THE PRESIDENT--The Chair will state when the gentleman from Montgomery commenced to discuss the matter, it was not debatable, but the Chair simply allowed some debate by indulgence,


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because no point had been made against it. If the gentleman from Chambers insists upon his point of order, the Chair will sustain it.

     MR. HEFLIN (Chambers)--I will withdraw it. I thought we were consuming a good deal of time on this question, but if the gentleman will be brief in his remarks I will withdraw.

     THE PRESIDENT--The gentleman will proceed.

     MR. WATTS--I was about to remark, Mr. President, that it seems to me that if by inadvertence any ordinance introduced into this Convention was referred to the Committee on Legislative Department, which related to the subject of local legislation, it was their duty, instead of considering it to report it back to the convention, and have it referred to the proper committee, the Committee on Local Legislation, and I do not think that the Committee on Legislative Department should have gone on and considered the question, unless they had first come into the convention and asked that the Committee on Local Legislation be discharged, and I think that if the gentleman has objections to the report of the Committee on Local Legislation, he can make them by offering to amend the report, in the various and sundry particulars, but I do not think we should be subservient to that committee, any more than we would be subservient to any other--

     MR. BROOKS--I would like the indulgence of the Chair and of the gentleman, to make a suggestion to the gentleman from Lauderdale, who offers the report of the committee.

     It is this: suppose he lets this question go over. After we get through with the discussion on the report of the Committee on Executive Department, there is the report of the Committee on Taxation, and after that the report of the Committee on Preamble and Declaration of Rights, and it will not prejudice the gentleman's case, if he will wait a day or two, until the report of the Committee on Legislative Department is in and then a special order can be applied for, for both reports, one after the other, and in that way the Convention will have the opportunity and advantage of having both reports before them to read, before they come up for consideration as a special order. I would therefore suggest to the gentleman from Lauderdale that he withdraw the motion for a suspension of rules and let the matter go over. It will be without prejudice to his case.

     THE PRESIDENT--The Chair expresses hope that the different Chairmen of the Committees will get together and come to some agreement.

     MR. O'NEAL--Other committees have made their reports and they have been assigned as special orders by this Convention. I see no reason why the Committee on Local Legislation


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CONSTITUTIONAL CONVENTION, 1901

should not enjoy the same privilege. Therefore, I cannot assent to the proposition of the gentleman from Mobile. We have made our report and I know of no reason why this report should not be made a special order by this Convention and I cannot assent to the proposition that our report should be made subordinate to the report of any other Committee.

     MR. CUNNINGHAM--I rise to the point of order that under the rules of the report of the Committee on Legislative Department will take its regular place on the Calendar which will be following the report of the Committee on Preamble and Declaration of Rights. Therefore the motion to make it a special order succeeding that is out of order.

     MR. O'NEAL--If that point of order is well taken, I withdraw the motion.

     THE PRESIDENT--In the opinion of the Chair the report of the Committee will lie upon the table and be printed, and, under the rules, will come up for consideration, in the absence of some special order in the order prescribed in the rules.

     MR. O'NEAL--Will the Chair permit an inquiry?

     THE PRESIDENT--The reports of Standing Committees will be called in the order printed in the rules.

     MR. O'NEAL--But that course was taken in reference to other reports and I desire to make this inquiry: If this report is not made a special order and some other report subsequently made is made a special order does not that come up before this? In other words, I want to know where this will come?

     THE PRESIDENT--That is in the power of the Convention to determine.

     MR. O'NEAL--The report of the Committee on Suffrage may be made some day next week. We cannot anticipate but it is evident that that report will consume a large amount of time and interest in the Convention will to a large extent cease when that report is disposed of.

     MR. SAMFORD--I rise to a point of order. A motion to suspend the rules is not debatable.

     Mr. Oates here endeavored to secure recognition.

     THE PRESIDENT--Does the delegate from Pike withdraw his point of order?

     MR. OATES--I do not rise to debate, but simply to make a suggestion.

     MR. SAMFORD--No, sir.


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     THE PRESIDENT--Is there any objection to hearing the suggestion of the delegate from Montgomery? The Chair hears none. (Laughter.)

     MR. OATES--The Committee on Local Legislation makes its report and moves to suspend the rules. All I have to suggest. is that the Committee on Legislative Department make its report and where it has anything upon which we have any matter, we will offer it by way of amendment to his report when it is under consideration and in doing that we do not intend any disrespect to that Committee and are not trying to displace them.

     MR. O'NEAL--Under our report we ask that this Article on Local Legislation be made a separate Article in the Constitution and not incorporated as a part of the Article on Legislative Department.

     A vote being taken, the motion to suspend was lost.

     THE PRESIDENT--The next regular order will be the consideration of the report of the Committee on Executive Department and the pending question is the substitute offered by the delegate from Sumter for the Section reported by the Committee and the gentleman from Mobile had the floor when the Convention adjourned.

     MR. PILLANS--I regret that the clock struck just when it did for I had about concluded all I had to saw and when a man is cut off by an adjournment and commences the next morning, he always runs the risk of getting wound up again. However, I shall endeavor to be brief in what I have to say in opposition to the novelty proposed by the Committee in their substitute, and in favor of the substitute offered by the gentleman from Sumter.

     Just at the close of yesterday's session I was about to answer a question put by the honorable gentleman who is the Chairman of the Committee, the report from which I am antagonizing, as to what is to be done if we keep the provisions of the old Constitution or the provisions recommended by the gentleman from Sumter, which follows closely upon the old Constitution. I believe the question was if we adopted the substitute offered by the delegate from Sumter what would be done by the Speaker and the Joint Convention and the two houses, acting ministerially, in the event a forgery had been committed in a return which had come to them.

     In the first place the whole theory and practice of republican governments are based on true official returns. We cannot surmise in the organization of a republican government that there are no human beings to be trusted with the true performance of official duties. In the prima facie establishment of the result of an election we have to trust the sworn officials who have in charge


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the making of due returns and, the counting of those returns as ministerial officers. But has any man ever yet heard it claimed that a forgery was anything whatever but a void thing. I take it that a forgery is like a void decree or a void law. It does not exist. I take it when you say a return is a forged return it is no return, and, therefore, the dilemma the gentleman puts, is no dilemma, that if forged returns are sent to the Secretary of State and when they go into the hands of a speaker of a joint convention, that they are as much bound to disregard them as ministerial officers as a probate judge would be bound to disregard a forged bond of a tax collector. There is a ministerial act performed by the judge, but suppose the tax collector of Montgomery County brings up a bond, not really signed by any sureties, but having on it the names of men of amply sufficient estate to make them good sureties on his bond, and suppose those names are forged--

     MR. JONES (Montgomery) --Will the gentleman allow me to ask him a question?

     MR. PILLANS--I will, but I would like to finish the sentence.

     MR. JONES (Montgomery)--When the joint convention refuses to receive returns because forged, what kind of power do they exercise, ministerial or judicial?

     MR. PILLANS--They undoubtedly exercise ministerial power. That is the proposition I am trying to get before the house.

     MR. JONES (Montgomery)--And when the probate judge refuses to receive a forged bond tendered to him as the bond of a tax collector, is he acting judicially or ministerially?

     MR. PILLANS--I think he is acting ministerially.

     MR. JONES (Montgomery)--My friend runs counter to the decision of the Supreme Court of Alabama when he makes that claim.

     MR. PILLANS--I do not think I am and if the gentleman will refer me to them I shall be glad to discuss them with him on brief and not detain the house.

     MR. JONES (Montgomery)--They are the cases of ex parte Harris and ex parte Thompson. If you will read those decisions you will find they hold exactly to the contrary of what you say.

     MR. PILLANS--I was saying that in the very organization and creation of a republican form of government you have to permit the prima facie decision of who is elected to an office else you have anarchy and discord invited into your State.


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     What is the objection to the proposition of the gentleman?  He says he is only a little one, and therefore it is not a serious one and ought not to be punished severely. He says when it is charged against his report that it invites a contest on the threshold that it is not a contest because it is only a contest from Montgomery County back to the county seat, that if they have declared, as he by way of illustration suggested, that they declared in Montgomery or any other county the result and the result certified proved different, that that would be a fraud which was apparent and could be inquired into by sending a committee down to investigate.

     Now, the proposition of the gentleman is to make this a returning board having judicial power, a Board of Contest before whom must go the returns which reach the Secretary of State under forms of law and from the Secretary of State is sent to the speaker of the joint houses and he says it can go behind those returns. It is true he limits that question to what occurred between the action of the canvassing board in the county and the action of the Board in Montgomery.

     Has it proved to be the experience of American public bodies, that no trouble arises from such power as this? Has it not rather proved to be the experience of those bodies whenever you invite or give the power to discuss the validity of an election that chicane enters into the discussion.

     I will point you for an illustration to the Electoral Commission which was elected to do the very thing which my learned friend wants the convention to provide for by doing of by the joint convention and the speaker. It was a quasi judicial body to examine returns, quasi judicial and quasi ministerial and it passed on the question of who was elected and that body divided strictly on party lines, even the members of the highest judicial tribunal in the world and they decided one way on a question that arose in Florida and ruled precisely the other way on a question from Louisiana. We know whenever you put the returns of an election when the first count is to be made and the commission issued into the hands of political bodies, politics will dominate and not facts. There is an unwillingness to put the word ministerial in. It was admitted by the Chairman of this Committee in answer to the remarks of the gentleman from Mobile, my colleague, that it was intended to be a judicial and not ministerial body. If that is to be, you have simply invited trouble, you are seeking trouble. If there is a hotly contested election for State offices in Alabama, the houses are bound to be close as they are elected at the same time, you invite trouble at the very opening. I would like to ask the Committee if there is a Constitution in the United States which has a similar clause to this?


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     MR. JONES (Montgomery)- I don't think there is. So far as I have examined I have not seen one, but the question has not come up in any of the recent constitutional conventions.

     MR. PILLANS--I confess it is a novelty. I looked hastily through the annotated New York Constitution which contains references to similar clauses in the Constitutions of other States and while I am not absolutely sure my impression is you will find in eight-tenths of the States a similar clause to what we have in our constitution now, and which is contemplated in the substitute I am advocating. In a few of the New England States, Connecticut and Massachusetts and one or two others, the clause runs this way, that the returns from the select men or whatever they are termed there, shall go to the Secretary of State and be placed by him in the hands of the houses who shall declare the result. In all the cases I could find there is a constant idea that no contest is to be dreamed of until the result is declared. Now, when we elect a Governor, we want, a Governor. It is not so material to the interest of the State that John Smith, a Democrat, or John Jones, a Populist, should be Governor, but that there should be peace and order in the State, order in its affairs. If there is an error committed we are too just to allow that error to go uncorrected. How is it corrected? By the perfectly orderly proceeding of a contest. If it be in county or city matters the contest is in their legal forum. If it is in an election for general State officers such as those named in the section, the contest is before the highest body, unhappily a political body, but the only body in which it could be imposed--the joint Convention of the two Houses of the General Assembly. When those houses sit as a judicial body to hear the complaint of the apparently defeated candidate and hears the evidence, every man unless a bad man feels as each Senator must feel in a matter of impeachment. "I am a judge, I will decide honestly as a judge." At least we may suppose those will be the feelings of those sitting as judges. But this proposition submitted by the Committee undertakes to make that political body a set of judges at the beginning, and merges the idea of contest with the idea of count, a thing which has never been done except, perhaps, in the celebrated returning board incident in Louisiana, and which, from that experience, certainly should not be encouraged to exist here.

     Now, a word more as to the suggestion that there may be a declaration of a vote in the County by the canvassing board and that when the Speaker opens the returns from that County he finds greatly differing returns. And the suggestion it made that that ought to stop the count until a committee of investigation has gone down and ascertained the truth of that matter. That to my mind, involves the substitution of political hearsay, in times of passion, for certified official papers. The law has declared that the people who have handled these returns are all impeachable.


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I doubt not that there are sufficient laws on the statute books to cover all those cases, and if not sufficient, other laws can be put there that will throw propel protection around the people in that regard. And there are seals in the circuit courts of every county to certify the signature of the officials sending up the returns. But above all that, the gentleman says that A. B. may arise in the Convention, when they have nothing to do but count the vote, and say it was announced in Shelby County at the time the vote of the electors was declared that the majority was 2,000 and it appears here as 1,000 or 5,000. If the Houses are to stop on that, they stop on hearsay as distinguished from certificates of sworn officers, and I take it that has never been the practice in any republican form of government and never will be the practice. There always has been and always will be a recognition of something coming from officials as being valid and upon the recognition of that something as being valid the count is closed, and upon the count being made the commission will issue and nothing will then be left for the joint Houses.

     MR. JONES (Montgomery)--I regret very much that as chairman of the committee it is my duty to speak again on this subject. It reminds me of a conversation a very dear friend of mine once had with a newspaper reporter. My friend was driving through the country in midwinter, over miserable, muddy roads, with one lone newspaper reporter for a companion. He was a candidate for re-election for Governor, and had been going over the State from day to day, sometimes making five or six speeches a day. Being gloomy he sought some sympathy from his companion. He said he was so tired of having to talk, making the same speech with slight variations, over and over again--that he was getting tired of the sound of his own voice. Is it best to have to do this? He got no consolation, however, for the bright newspaper reporter responded: Yes, it is bad; but if it is bad on you, what do you think it is on me, who have to listen to all your speeches? I hope the Convention has not yet got in the frame of mind of that reporter.

     I will detain you no longer than is necessary to answer some objections to the substitute.

     There are two propositions before the House. One is the substitute by the committee, and the other is the substitute for the report offered by the gentleman from Sumter. They are very different propositions. The proposition of the gentleman from Sumter is, that the joint convention shall be a ministerial body only, and have nothing but ministerial power. The substituted report by the committee gives the joint convention, as we think it has always had, judicial power in certain respects only. I generally yield great deference to any statement of law coming from my friend from Mobile (Mr. Pillans), because he is usually very


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accurate. I am satisfied if he has examined this question, with the care the committee has, that he would not be in favor of a proposition that the convention should have only ministerial power, or assert that it has only ministerial power under the present Constitution. I said that when an officer approved a bond, when question of forgery or any other objection came up, and he acted upon it, that he exercised a judicial and not a ministerial power. My friend thought I was mistaken. I will read very briefly from the case of ex parte Harris in 52 Ala. page 91, where the court used these words:

     "The form of an official bond, its condition and obligation, are prescribed by law." So far so good, there is no trouble about that. "Whether a bond offered conforms in this respect to the requisition of the law, the officer must determine before approving. He is forbidden to approve, if the bond does not conform to the statutory requisition. Can it be said that in determining the sufficiency of a bond in this respect, ministerial, and not judicial power is exercised? Some of the most difficult questions which have been the subject of investigation and decision in this court were whether bonds sometimes official, sometimes taken in the course of judicial proceeding, conform to the statutes authorizing them, and were to be esteemed statutory bonds, or valid only as common law obligations. The approving officer must also inquire into and pass on the solvency of the obligors. This requires the hearing and weighing of evidence. If he should adjudge them insufficient, the exercise of his judgment will not be controlled by mandamus. In the exercise of the power of approval, however erroneous his action, in the absence of statutory provisions subjecting him to liability, he is exempt on the common law principle, which protects a judge from liability to suit or indictment for judicial acts or omissions. We therefore must pronounce the approval of an official bond is the exercise of power in its nature judicial, not ministerial. A different conclusion was attained in State vs. Ely, and in ex parte Candee, 48 Ala., on reasoning not satisfactory to us."

     The Supreme Court overruled those cases which had said it was a ministerial power. The Supreme Court of Alabama holds that when a ministerial power only is exercised you have no discretion, you have no right to take evidence, etc.--you are bound to act when certain things happen--as if I go to a clerk and say file this complaint. He is bound to do it. You give to a tax collector a warrant to collect taxes, he is bound to do it. He has no discretion, he cannot determine anything, when the warrant is presented, his act follows automatically. That is not the case when you exercise judicial power. I hope members will bear in mind that under the present Constitution not a word has been said about the powers of the Speaker. All that is left is uncertainty. The gentleman lays some stress on the fact that in the


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Constitution of no State has any such limitation been made; but are we not to learn from the wisdom and experience of our fathers? The Congress of the United States never made any provision for a contested election for the Presidency, until the question arose in the case of Hayes and Tilden. Then they passed statutes on the subject. Here we are framing a Constitution which we hope will be the fundamental law of Alabama for manly years to come. We are, or hoping, to make vast and beneficial changes as to our elections. We wished, taking warning from the experience of our fathers, to make provisions which will prevent the will of the people from being defeated, when the result is declared in the Joint Convention. My friend from Mobile (Mr. Pillans) said that I could not get it into my head--that I would keep on arguing that we were not making a Returning Board until we went down under the adverse vote of this Convention. It may be that this Convention may not see this matter as the Committee does, but I don't think I am a sanguine prophet when I venture the assertion that perhaps the House sees the matter as the Committee does. Much has been said about the Returning Board of Louisiana. This report is likened to that. Is there any reason for such a parallel? What was the Louisiana Board? Composed of four or five State officers, headed by Mr. Madison Wells, which had power to canvass the returns and to decide nothing going behind the returns. They did not inquire whether the returns sent up declared the results as ascertain in the different counties; but they overthrew them. They constituted themselves into a Board of Electors for the State. The officers had sent up returns showing so many votes for the Democratic electors. They said there was intimidation, that there was fraud, that there was. not a fair vote and therefore, they would not confine their functions to ascertaining what was declared below, but would go on and vote for the people of Colfax County. They formally counted up what they thought would have been the vote if the people had not been "bull-dozed," and gave certificates based on such supposed votes to the Republican electors.

     MR. WALKER (Madison)--Will you allow me to interrupt you?

     MR. JONES--Certainly.

     MR. WALKER--In the Section of the report by the Committee, in the first subdivision, powers given to the Joint Convention, they are authorized to ascertain the genuineness of the returns?

     MR. JONES--Unquestionably.

     MR. WALKER--In the third subdivision they are authorized to procure correct returns from proper offices?

     MR. JONES--Yes sir.


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     MR. WALKER--As I understand your argument that is really as far as it is desired to give power to that Joint Convention?

     MR. JONES--Unquestionably.

     MR. WALKER--Then what is the use in the second subdivision of authorizing them to correct such errors as may be made, isn't the effect of the second subdivision to give them the power of a Returning Board?

     MR. JONES--I do not know that it adds any great force to the Section, and for that matter the Committee would be perfectly willing to put in the word "clerical" or strike it out. When I was interrupted, I was about to say, Mr. President, what became of the Louisiana Returning Board? They were convicted of forgery, of a violation of the laws of the State of Louisiana, and finally, pardoned by the authorities of that State in consideration of the fact that Mr. Hayes had withdrawn the troops and that the people of Louisiana ruled themselves.

     MR. PILLANS--May I ask a question?

     THE PRESIDENT--Does the gentleman permit an interruption?

     MR. JONES--Certainly.

     MR. PILLANS--Then the only example we have, that Returning Board of Louisiana as I understand it, and which was with powers very similar to those you propose, resulted disastrously and encouraged that Board probably to go beyond the powers intended?

     MR. JONES--No sir. Because they were a set of rascals and violated the law, and usurped authority. Their conduct does not illustrate the contention that the Louisiana Returning Board had authority to do as they did from such provisions as embodied in the Committee's substitute. On the contrary the Supreme Court of Louisiana. said they had not such power, under terms of an act like ours and convicted them of forgery.

     We are contending in this substitute for the position that was contended for by the great party which supported Mr. Tilden, when a contested election was threatened in the two Houses. They said, we do not admit that Congress has the power to go behind the action of the State; but we do insist that Congress has the power to ascertain what the State has declared; and therefore they insisted that Congress had the power to took at these returns sent up from the different counties which the Louisiana Returning Board had cancelled and held of no effect.


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     MR. ROBINSON (Chambers)--I would ask the member from Montgomery if they didn't make a mistake and will they ever make the same mistake again?

     MR. JONES--Who made the mistake?

     MR. ROBINSON--The Democrats.

     MR. JONES--I think perhaps, they did. They made a mistake in law, in submitting it to a commission instead of deciding it for themselves--speaking from a point of constitutional law. If the gentleman means in a point of policy. I say no, because the South at that time was in a position where it could not go to war. It was better to yield to arbitration than to be humiliated by defeat in an useless war. For that reason, it was well to have a board of honor, so to speak. It was statesmanlike, especially on the part of Southern men to yield to the creation of an Election Commission.

     I ask the members of this House to read this section. Don't take it up and find a line, or a word, or a sentence in it, and immediately strike at that as though that were the only sentence or line in the section. It is common knowledge and common learning in considering a section of a writing that you must consider it all together. You must attach some force to each word of it. You must give each word its proper significance, and ascertain from the language used what the intent was. If it is not clear then you enter into construction, the evil to be remedied, etc. Let us see the power that this Board has under this section? After saying that the returns shall be published in the presence of both houses, we have added "the joint Convention shall supervise and control the Speaker in the discharge of his duty." That was not in the old Constitution, Mr. President. The claim was that this Speaker who was a mere creature of one House, had vested in him the sole sovereign power of Alabama to declare the result when the election returns were made up that has been the claim many a time. There were other great jurists and authorities who said no. What are the two houses about? Why are they required to assemble in joint Convention? Are they mere satellites there to surround and honor the Speaker? Can't they open their lips? Have they no power whatever? And these jurists, and some very great men among them contended, and I think rightfully, that the Speaker was the instrument of the joint Convention, and that they could control him. We all agreed if that was not the law, that it ought to be, that one man sitting in that chair ought not to have the right, in violation of the will of 132 others on this floor, to decide and determine as he pleased, questions that arose on a count of a vote.

     MR. PILLANS--Is not that part of your objection to the old law met by the language of the substitute as proposed by the gentleman from Sumter?


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     MR. JONES--There never was any trouble upon that point between the gentleman from Sumter and the Committee; because we all agreed that we wanted to put the Speaker in a straight jacket and make him obey the two Houses so far as that was concerned and that was the original report of the Committee but we did not think it wise to go into the powers of the Joint Convention; but in deference to what seemed to be a desire in the house we undertook to define the powers of the Joint Convention --first, you are the master of the Speaker, he must obey you. Nobody objects to that. Now what next? "And has power, first, to determine whether the returns are in legal form." Does anybody object to that? Could the body discharge any duty at all unless they had that power? I can't think there will be any objection to that? "Made by the proper officers." Unquestionably they should not accept returns made by anybody not officers. And do what? "Truly give the result as ascertained and declared by the Board of Supervisors in the several counties." What truly give--the returns sent up? Second, to correct such errors as may be found therein. Third, to procure returns when none have been sent up.

     I submit to the House that the sole purpose so far is to maintain the integrity of the returns as made in the different counties; to say to that Convention, you shall not go beyond them, you shall be bound by them. If a return comes up here which it is shown violates the integrity of these returns, then you must take the returns with the result as ascertained and laid down in the county canvass. It is in line with the demand for "home government." It says in case of doubt you shall go down there, and see whether the returns sent up here testify to the same result as ascertained below. This and only this--not whether the votes were legal or not; not whether there was fraud. The latter matters must be left to the Supervisors in the several counties. The substitute shows solicitude for carrying out the will of the people. It gives the Joint Convention power to determine everything which may be done to carry out the will of the people of Alabama as declared in the sixty-six counties. That is all that it does. My friend does not seem to remember that a little further on it says "they shall not have power to question a return in any other respect or for any other matter." Later on it says "contested elections shall be determined by both Houses in such manner as may be prescribed by law." How, then, is it possible to say that the Committee in framing this substitute gave this body and power to resolve itself into a Returning Board, and overthrow the will of the people as declared in the several counties? Mr. President, I concur with the statement made by my friend from Mobile that you must trust somebody in the first instance, in every governmental act that is to be performed. I concur in it heartily. These 133 men, who compose these two houses and sit in Joint Convention, are the very same men who ascertain and declare the result if there


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is a contest. If they are going to cheat, if they are going to usurp power, for instance, you cannot help it by laying down rules in a statute. It is impossible. There has not been a day since Alabama was a State, when the Speaker, if the Joint Convention permitted, did not have the physical power, and I might say legal power, because it would take some time to correct it, to say here are the returns from such and such a county. They are not in proper form. They are not signed by the proper officers. I will throw them out and not count them, and thus, although there might not be a word of truth in the objection--although it might be a bald usurpation, still it is a matter which is dependent solely upon the honor and integrity of 133 men who come here to witness this county, every time you elect State officers. You cannot provide against that by any words or provisions, so long as you give the Speaker power to count. Now the Committee desired to preserve in its integrity all the power to the election officers below, including the declaration of the result below; but they did not want to put the Speaker of this Joint Convention in a ministerial capacity, under which, according to the Supreme Court they must eat whatever is fed to them. We did not wish to deprive them of what is plainly the judicial power, to say this is or is not the genuine returns, the figures have been changed in this thing, since it was sent up here. Mr. President, some gentlemen seem to think it is a very small matter, this prima facie declaration. On the prima facie declaration may depend the welfare of the State, the transfer of power in all of its branches, and if you put this Convention in a ministerial straight jacket you can make a Governor, it may be a slip of the pen, and you make this Convention powerless to resent a fraud which may be practiced on it in changing the figures in returns. We do not want this joint convention to be a mere clerk, who must say, I am powerless to reject the fraud, though I know it is in the returns. Who in the language of the substitute offered by the gentleman from Sumter, must "count them on the face of the return?" But we want the Judge to speak in behalf of Alabama. Now there is nothing in that, Mr. President, in the nature of a contest. There is never an election for a State officer in the legal sense, until the steps have been taken, starting out with the deposit of the ballot in the ballot box, including the returns to the County Board, etc., declaration of the result, the returns sent up here, and finally a declaration of the result by the joint convention then declaring who has been elected Governor, and to State offices. Until that declaration is made by the Speaker, or by the two houses there has been no election to any State office. You must have an election, a declaration of the result, before you can have the contest. Now there is not a line in this section that can be tortured into a jurisdiction or power to go behind the returns. It is explicitly stated they shall not have power to object to returns for any cause whatever, except the three mentioned. A little later on, the section says "contested


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elections shall be determined in such manner as shall be provided by law." Is it wise, is it, a sound policy of government to use words which we know, from Supreme Court decisions, put our State offices, our General Assembly, our Speaker, in a position where a fraud not in the returns as made out, but as allowed might nullify for the time being at least the will of the people of Alabama. Let us suppose a Speaker, under the operation of the substitute of the gentleman from Sumter, and here are the returns. Somebody objects. Why, he says, isn't that genuine, isn't it sent by the Board of Supervisors, yes. Didn't it come through the mails? Yes. But, Mr. Speaker, I don't ask to prove that the election was not fair, nor to go behind that, but I have proof that a clerk in the office it may be, who was left to fill in the figures, purposely, put in 2,000 or 3,000 votes more than the man got, in order to change the result in the State. The Speaker must answer, I am a ministerial dummy. I am bound to count it. The State election not many years ago hinged on the vote of one county, and about 1,500 votes at that. The difference as to that caused the Smith-Lindsay contest. If your Speaker and General Assembly are bound up in a ministerial jacket, the answer must be, when any one of the questions arise to which I have adverted we are doing what the Constitution says we must. We have no discretion. We must take that return. It is here and we must count it; and thus the act of a clerk may put out the officers elected by the people of Alabama and give their offices to others, and drive the real elected officer into a contest--and all because of one single little fact--the ascertainment of which does not seek to go beyond the return--could not be investigated by the General Assembly, because inadvertently this Constitutional Convention had put in the word "ministerial." I hope, therefore, that this convention will not put in the word "ministerial" as regards the functions of a General Assembly. We did put it in as regards the Speaker in the article first reported, because we wanted him to be subject to the powers of the two houses, but we said nothing about the power of the two houses. Afterwards we came in and limited that but left them some judicial power, and the gentleman from Sumter wishes to strike out that, and say, "None of you are to have any power except what is purely ministerial.'' I do not think his view is wise. I hope it will not be adopted. If the convention in its fear of Returning Boards, which is not justified under the language of this section, think that nothing ought to be said about the powers of the joint convention, let us strike out the substitute, but don't let us play on words, and put our representatives, our officers in a position where the fact that a man commits fraud binds them, hand and foot and, makes them powerless to prevent a reversal of the will of the people. They say this prima facie declaration is a small matter; but the power of State may be changed by this fraud, and the very power you give a man who is not elected may be the means of defeating the will of the people.


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     My friend said something yesterday about the unfortunate condition of affairs in Kentucky, because there the legislature was vested with judicial power. So here the legislature is vested with judicial power to determine contests, and it is the only body that can be given that power unless we want to demoralize our courts and destroy their usefulness, by making them the arbiters purely of great political questions. You are bound to trust the General Assembly. The unfortunate condition of affairs in Kentucky did not arise from the fact that the General Assembly of Kentucky had power to decide who was Governor on a contest; but it arose from the bad and vicious passions of men which resulted in the assassination of the Governor of Kentucky. I say it reverently, if the power to decide that contest had been relegated to the Almighty, instead of to a human board, nevertheless his opponents would have killed him. His death did not arise out of the clause in the Constitution of Kentucky of giving judicial power to the General Assembly. I have spoken longer than I intended, but I felt it a matter of duty. I have been surprised to find gentlemen on this floor who believe this Committee on Executive Department, who are certainly men of ordinary ability, ordinary good lawyers and of ordinary patriotic impulses, have been engaged here today in trying to get this Convention to adopt a vicious doctrine; and by putting it in the Constitution do something that would be destructive of the liberties of the people of Alabama.

     MR. SOLLIE--If it were not that the amendment or substitute offered by the gentleman from Sumter is in lieu and stead of the section now proposed by the Committee I, perhaps, should be against the amendment offered by the gentleman from Sumter, for the reason that as I read Section 4 of the article under consideration there is no need for a change at all. There is an old adage to the effect substantially, that we are prone to endure the evil that we bear rather than fly to those we know not of; and our fathers in making the Declaration of Independence gave us the same idea as applied to government, but in different language. Here we have a section in our present Constitution which has been tried for twenty-five years. So far as I have been able to ascertain from inquiry among the older members of the Convention and so far as I have learned from my own reading and observation, the evil which the change purports to remedy has never been practiced in Alabama. I learn from the more aged members that there has been no time when the officers charged with the duty of certifying returns in Alabama have so falsely handled those returns as to change an election; and we have a history of eighty-two years covering the rise, life, fall and death of quite a number of political parties. We have had the Know Nothings, we have had the Greenbackers, we have had the Whigs, we have had the Populists, and all of them have come and have had their day and gone. The Republican party has come into existence since we


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have been a State and with all these changes of parties and with the fact that we have been engaged in one national and one civil war, and that our people have been through all the experiences that are supposed to lead men away from their moorings and arouse their passions and sidetrack, if the Convention will excuse the expression, their judgments, there has never been an occasion when there has arisen a practical need for the changes sought.

     MR. ROGERS--I wish to say to you that in my amendment I simply wish to define the power of the Joint Convention and Speaker as it is understood to exist at the present time.

     MR. SOLLIE--I was coming to that later.

     Now I will state to the Convention what I understand the meaning of Section 4 in this Article to be. As I understand it the Joint Convention in canvassing the returns and declaring the results acts ministerially. The language of this section of the Constitution is as plain and simple and straightforward as can be, and I can scarcely conceive how gentlemen on the floor of the Convention can conclude that out of this language there may be raised up the proposition that the Joint Convention in canvassing the returns act in any aspect of the case judicially. My construction of this section of the Constitution is that the Joint Convention, together with the Speaker of the House of Representatives in the act of declaring the result of an election act ministerially and not judicially. The amendment proposed by the gentleman from Sumter is simply a constitutional declaration of what I conceive to be the meaning of the section as it now stands. I further contend that there is not, in section 4, such uncertainty in the language as to leave it open to doubt as to whether or not the joint Convention has control of the Speaker in declaring the result. I will read the language of the Convention. "He shall, during the first week of the session, to which said return shall be made, open and publish them in the presence of both Houses of the General Assembly in joint Convention. The persons having the highest number of votes for either of said offices shall be declared duly elected." My contention is that that means "shall be declared elected by the joint Convention, not by the Speaker of the House." The Speaker of the House simply opens and places before the Convention the returns from the different counties as a clerk might do, and then the joint Convention takes up and canvasses the returns and declares the result. Therefore, as I say, with the section as it now stands in the Constitution the amendment of the gentleman from Sumter is not necessary, because it only seeks to do that which is apparent and clear in the section as it now stands.

     Now, as to changing the present Constitution and giving the Convention which is to declare the result of the election, new duties, new powers and new authority. The proposition is to


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give them in addition to ministerial powers which they now hold by law certain judicial authority and clothe them with certain judicial functions. The gentlemen of the Committee and the Chairman of the Committee undertake to avoid the force of the argument that the joint Convention should not be made in the first instance and before the declaration of the result, a body for contesting the election--I say, they seek, it seems to me, to avoid the force and effect of that argument by making them a contesting body or a body for the purpose of carrying on contests only to a very limited extent.

     Now, Mr. President, a contested election begins with and includes the result as it is declared, and all that pertains to that result, the holding of the election, the counting of the votes, and everything from the beginning to the end of the election and up to the time when the returns are placed before the Speaker of the House and there laid before the Convention. All that is back of that which is fraudulently and wrongfully done comes within the scope and purview of the contest.

     Why, then, should we invite a body organized not as a court but as a political organization, without any definite rules, without any limitations upon their power to act, without any demarkation lines, without anything by which the people may know how they are going to proceed or how far they will go in this direction or that, or what processes they will resort to, or how they will conduct their proceedings--all left to them, to proceed nolens volens, and to say, "we do this or that," with no provisions of law laying down the rules to govern them, while the people stand off and wait and this joint Convention proceeds to set as a judicial tribunal and goes certain lengths into the contest of the election for the purpose of ascertaining whether there has been fraud in the election. If we may take the first step, if we may put upon the joint Convention the power or the duty or the right ex mero motu to judicially take this first step, why not let them go two steps or three steps or half way or nine-tenths and leave only one-tenth of the contest to come up and be passed on finally when the contest has in fact been started in the ordinary way? I say where is the rule of reason for putting these men a short distance into the judicial aspect of the case and not allow them to go any further?

     Well, let us see. The gentlemen speaking before the report of the Committee and against the substitute offered by the gentlemen from Sumter, have given some reasons. They say that if a forgery has been committed by the Judge of Probate, or the result as declared is sent in falsely, this at least should be corrected. I suppose they expect to cover in that suggestion, both mistakes and forgeries; that it would be only fair to permit the Joint Convention, to unravel at least that far, which could easily be


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done, in order that as near the truth as may be ascertained in declaring the result as is possible.

     But let us see if when we view the case on all sides, we do not see rising up before us greater evils than those that exist as the matter stands today. We have in favor of the Constitution as it now stands, the fact that it has never worked evil. We have the probability that it will not work evil. We have the fact of its proven wisdom, that it has been tried; it is a tried friend and tried fundamental law; something that the people know how to confide in, to cling to, and lean upon; something that the people of Alabama will have confidence in, having lived under it for a quarter of a century, and when it is sent back to them for ratification they will readily ratify it.

     We have as against that, the possibility that some ministerial officer from the counties will, either through mistake or through fraud, send up, from the county to the State, a false return. What more have we against that? We have the fact that these returns come in just at the time when men's minds are excited; when their
judgment is perhaps off its guard for the time being, and place is given to their passions, to their political aspirations, and to their ambitions. We have a body with no defined limits, with no lines within which it must act, with power to go down to the counties. They can go to the rural districts, where officers in charge of elections, as we know, as a matter of fact, are not very well trained in law, and not very capable of getting up the returns as the returns should be. Perhaps in some cases, if you take these returns and compare them with the law, there would be such substantive defects in them as that the Joint Convention, hearing the matter, would hold them so defective as to require them to declare for the counties what the results were, and especially might that be true, Mr. President, when there was a dominant political faction after a contest of that kind. In the meantime the man who is elected on the face of the returns, is held out of his office by a sort of bybrid, half ministerial, half judicial and largely political investigation--a new system of tribunal foisted upon the people of Alabama.

     We say that when we come to consider it in these various aspects, that we think it would be an error to make the change recommended by the Committee; that it would be against right and justice, so to alter this Section of the Constitution as to put these questionable changes into it and give to the Joint Convention these questionable powers. While it remains as it is, they meet, and upon the face of the returns declare the result; and then, under the present Constitution, as it now is, there follows the provision that a contest may be had before them, in Joint Convention, under such rules and regulations as may be prescribed by law.


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     And here arises another objection--the prescribing by law. When you begin to give the particulars of how the laws should be executed, and what shall be done in detail, in Constitution making, you always run the risk of going apart from the legitimate office of the Constitution and descending into the domains of simple legislation. There is a well defined distinction between the two, the office of a Constitutional provision and the office of a legislative enactment. The Constitution has finished its office, when it declares and defines the frame of Government and the general principles of that Government, and sets out and secures the personal liberties of the people. It is the office of legislation to go into details, but not a Constitution, and it is just at this point, that we run against the danger. We put into this Constitution, in the first Article that is passed upon by this Convention the dangerous precedent of permitting this Constitutional Convention to go into the domain of legislation, instead of keeping in the bounds of what legitimately comes within the purview of the Constitution. And, Mr. President, we might go on ad infinitum with reasons why this charge should not be made in our present Constitution, but will not pursue the subject further. And inasmuch as we choose between what appears to be the evil of the substitute and that of the Section as reported by the Committee, I for one shall vote for the substitute offered by the gentleman from Sumter, although, if I had a chance to vote it down, so as not to leave a worse one before us, perhaps I would object to both of them.

     MR. DUKE--This convention has been listening for nearly two days to the able arguments on this subject, and it appears to me that a majority of the orators have spoken on it, if not all of them, and I think this convention is sufficiently enlightened on the subject, and I do not believe, Mr. President, that there is any one in this convention now so eloquent and so logical as to be able to change the vote of any delegate upon this floor. I think every delegate has made up his mind as to how he will vote on this question, and I do not see any reason for protracting this debate, at the cost of a thousand dollars a day, when there is no good to come of it. I therefore move the previous question.

     MR. ROGERS (Sumter)--As the mover of this resolution, under the rules of this body, I have the right to close?

     MR. DUKE--After the question is put to the House.

     THE PRESIDENT pro tem--The Chair concedes the right of the gentleman to close, but the previous question has been called; is the call for the previous question sustained?

     The main question was ordered.

     MR. ROGERS (Sumter)--I desire to yield the time allotted to me, to Judge Robinson of Chambers to close this debate.


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     MR. ROBINSON (Chambers)--I have listened carefully and attentively to the able, long and prolonged argument of the gentleman from Montgomery, giving his construction of this section of the Article reported by the Committee on Executive Department, and every step he took was along a precipice that was dangerous to the peace and prosperity of the State of Alabama.

     Now, he concedes himself, that this is a Returning Board, but a very small returning board. Now, Mr. President, I will ask the delegates to this convention who is to construe that section the member from Montgomery, or the joint convention that sits and before which this vote is counted. Possibly the member from Montgomery will not be present. Possibly he may not be a member of that joint convention, and if there are differences of opinion in this body, and if there are some of us that construe it to mean that the door is open, why may not that joint convention construe that the door is open to have a judicial investigation of the matter.

     Now, Mr. President, he concedes that this joint convention acts judicially, to a limited extent. What is a judicial tribunal?  It is a tribunal that has the power to hear and to determine. If it has the power to hear and determine, it has the power to hear and determine the whole case, and that convention is the body that construes it and acts upon it. Now what do we have here. We have the same body that has a judicial investigation to establish a prima facie right, and if a contest is inaugurated, we have the same judicial tribunal to try over the same case, and make the final decision. Now isn't that so. Now they would probably say, why go into these two judicial determinations on the question.

     Mr. President the object of that provision under the constitution of this State, and the constitution of the United States and of all of the States, is that the Speaker shall stand there as a simple machine. What power has the joint convention under the old construction? Simply to be present and hear. Now that power is delegated to the Speaker, because there is no other State officer who can take those returns and count them up and declare the result. Why? Because they are all elected at the same time. Every State officer is elected at the same time, except the judges of the Supreme Court, who possibly have two years longer sometimes, but the next time they are elected at the same time, and then there is no machinery at all, by which you can say, you must meet and open these returns and declare the result.

     Mr. President, this is dangerous because the danger will only rise when there is a close contest between two parties. That is the question that the General Assembly will be divided on politically as the two candidates for Governor are divided politically. Let us look at the practical results, and illustrate how this will operate. The Speaker opens the returns, and a gentleman objects;


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he objects on the ground that it is a fraudulent return, that the officers did not sign it. That is a question to be determined by the court that this committee has established. What will they do? Hear the testimony of one witness? No, Mr. President, they will hear the testimony of all witnesses, and arrive at the fact is that a fraud, is that a forgery, and on that question they sit, as a court and they must hear all the testimony and all the argument that may be brought up in this joint convention. It would take possibly three or four days to determine one county, and every county is subject to the same exception and the same objection and same investigation.

     MR. JONES--Could not the Joint Convention now, if they were mean enough, throw out a good return that was not objectionable, in order to elect a Governor or State officer of any party?

     MR. ROBINSON--They could not, because they have no power. The Speaker would declare that the man was elected, and that Joint Convention could make no other declaration, and the courts of the country under that power would say that the Speaker was the party to declare the result and not the Joint Convention.

     MR. JONES (Montgomery)--Could not the Speaker, if he was mean enough to do it, throw out the return, and elect his man, on the ground that the return was wrong.

     MR. ROBINSON--Yes, and that is simply what the Joint Convention is there for, to be present and see that he declares the result, as it appears upon the face of the returns, and that is directly and simply the substitute offered by the gentleman from Sumter.

     Now, Mr. President, if that investigation could be prolonged, by an able and astute and profound lawyer as the gentleman from Montgomery, he could consume two or three days in the examination of witnesses, and how are you going to stop it. Here is a court with this question before it. And it would be so with every county where the objection was raised. If you come here and establish a judicial tribunal to establish a prima facie right, and when a contest comes into the other end of the Capitol, the same court institutes and carries on another judicial tribunal to establish and ascertain the same results. Mr. President, that is dangerous. The policy of this State, and of other States, has been that this Speaker sits there as a machine, and if we could adopt a machine that we could dump their returns into from the different counties, and turn a crank and grind out how many votes each candidate received, and who was elected, that would serve the purpose of the Convention, and the policy of the State, as well as the speaker does. If you examine the old Constitution you will


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see that it says the Speaker shall open and declare the result in the presence of the Joint Convention composed of both branches of the General Assembly. Now, Mr. President, what is the great danger here? We have got to trust the report of the county officers. They are sworn to discharge their duty. The public knows what the election has been declared and I do not think that you could find any Judge of Probate, or any Circuit Clerk, or any Sheriff, that would send his name to perdition in the estimation of the people, by saying that a candidate received 100 votes, when he received 500 votes and you all know it. It never has been done; it will never likely be done, and this is only to establish the prima facie case. That is all that the Joint Convention and the Speaker should be allowed to do. It is dangerous the other way. Whenever you open the door for an investigation, you cannot say when it shall be shut. You cannot say how far it shall be opened. You cannot say how far we will go, but that Joint Convention may go and determine that this man ought not to have the prima facie case, because he was fraudulently elected.

     THE PRESIDENT pro tem--The question before the Convention is the adoption of the substitute offered by the gentleman from Sumter, and the report of the Committee.

     MR. ROGERS (Sumter)--And upon that question I demand the ayes and noes.

     The call was sustained, the roll call resulted as follows:

AYES.

As

Ashcraft,

Jenkins,

Parker (Elmore),

Banks,

Jones, of Hale,

Pearce,

Barefield,

Jones, of Wilcox,

Pillans,

Blackwell,

Kirk,

Pitts,

Boone,

Ledbetter,

Reynolds (Henry),

Brooks,

Leigh,

Robinson,

Burns,

Locklin,

Rogers (Lowndes),

Carnathon,

Lowe (Lawrence),

Rogers (Sumter),

Case,

McMillan (Wilcox),

Searcy,

Chapman,

Martin,

Sentell,

Cobb,

Maxwell,

Smith, Mac. A.,

Cornwall,

Merrill,

Sollie,

Cunningham,

Miller (Wilcox),

Sorrell,

Davis, of DeKalb,

Moody,

Thompson,

Eley,

Morrisette,

Walker,

Espy,

Murphree,

Weatherly,

Grayson,

NeSmith,

Whiteside,

Greer, of Perry,

Norman,

Willet,

Haley,

Oates,

Williams (Elmore),

Heflin, of Chambers,

O'Neill (Jefferson),

Wilson (Clarke),

Henderson,

Opp,

Wilson (Wash'gton),

Hood

Totals--64.


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NOES.

Bartlett,

Hinson,

Reynolds (Chilton),

Beddow,

Hodges,

Samford,

Byars,

Howell,

Sanders,

Cardon,

Jackson,

Sanford,

Cofer,

Jones, of Montgomery,

Selheimer,

Dent,

Knight,

Sloan,

Eyster,

Lomax,

Smith, Morgan M.,

Ferguson,

Macdonald,

Spears,

Fitts,

McMillan (Baldwin),

Tayloe,

Foster,

Malone,

Watts,

Freeman,

Mulkey,

Weakley,

Gilmore,

O'Neal (Lauderdale),

Whiteside,

Graham, of Talladega 

Pettus,

Williams (Barbour),

Handley,

Phillips,

Williams (Marengo),

Harrison,

Porter,

 

Totals--44.

ABSENT OR NOT VOTING.

Messrs. President,

Foshee,

Norwood,

Almon,

Glover,

Opp,

Altman,

Graham, of

O'Rear,

Beavers,

   Montgomery,

Palmer,

Bethune,

Grant,

Parker (Cullman),

Browne,

Greer, of Calhoun,

Proctor,

Bulger,

Heflin, of Randolph,

Reese,

Burnett,

Howze,

Renfro,

Carmichael, of Coffee,

Inge,

Smith (Mobile),

Carmichael, of Colbert,

Jones, of Bibb,

Spragins,

Coleman, of Greene,

King,

Stewart,

Coleman, of Walker,

Kirkland,

Studdard,

Craig,

Kyle,

Vaughan,

Davis, of Etowah,

Long (Butler),

Waddell,

DeGraffenreid,

Long (Walker),

White,

Duke,

Lowe (Jefferson),

Winn.

Fletcher,

Miller (Marengo),

 

                                                              Miller (Marengo),

     During the roll call:

     MR. DUKE--I would vote no on this question, but I am paired with the delegate from Greene, Judge Coleman, who would vote aye.

     MR. KYLE--I would vote no, but I am paired with the delegate from Walker, Mr. Long.

     So the substitute was adopted.

     MR. BOONE--I move the adoption of the section as amended by the adoption of the substitute.


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     A vote being taken the section was adopted.

     MR. O'NEAL--I desire to ask unanimous consent to introduce a resolution.

     "Resolved, That the report of the Committee on Local Legislation be made a special order for consideration immediately after the conclusion of the consideration of the report of the Committee on Preamble and Declaration of Rights.

     MR. O'NEAL--This morning I made a motion that the report of the Committee on Local Legislation be made a special order immediately after the report of the Committee on Preamble and Declaration of Rights which Committee received unanimous consent to have its report considered and made a special order following the special order we are now considering. The refusal of the Convention to accord the same courtesy to the Committee on Local Legislation, could only be construed as a discourtesy, which I am sure was not intended. I think the refusal of the Convention to allow this report to be made a special order was due to a misunderstanding which seems to have occurred between the Committee on Local Legislation and the Committee on Legislative Department. I desire to say the Chairman on the Legislative Department has agreed to submit a supplemental report as to any matters to which that Committee objects in the report of the Committee on Local Legislation, which supplemental report can be considered at the same time the report of the Committee on Local Legislation is considered. He agrees with me it would be utterly impossible for this Convention to consider the report of the Committee on Local Legislation and the report of the Committee on Legislative Department at the same time. We have agreed, therefore, that the report of the Committee on Local Legislation and the supplemental report which the Committee on Legislation Department may submit covering any objections they may have to any part of the report of the Committee on Local Legislation, may be considered at the same time; and, therefore, I renew my request and ask unanimous consent to have this report made a special order immediately following the report of the Committee on Preamble and Declaration of Rights.

MR. WEATHERLY--I would suggest that the latter part of the agreement about the supplemental report should be added to your resolution.

MR. BURNS--I rise to a point of order. That is out of order without a suspension of the rules.

MR. O'NEAL--I have moved that the rules be suspended.

MR. HEFLIN (Chambers)--What is the gentleman's answer to the question just propounded?


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     MR. O'NEAL--I consent that that be embodied in it.

     MR. HEFLIN (Chambers)--That the supplemental report shall be considered at the same time the report of the Committee on Local Legislation is considered.

     MR. O'NEAL--Yes.

     Upon a vote being taken the rules were suspended.

     MR. O'NEAL--Now, my motion is that the report of the Committee on Local Legislation, and any supplement report submitted by the Committee on Legislative Department, shall be made a special order, immediately after the consideration by this Convention of the report of the Committee on Preamble to the Constitution and Declaration of Rights.

     The resolution was read, and upon a vote being taken the resolution was adopted.

     MR. WILSON (Clarke)--I desire to make a report for the Committee on the Journal.

     The report of the Committee was read, stating that the journal for the twenty?sixth day had been examined and found to be correct. On motion of Mr. Boone (Mobile) the report was adopted.

     MR. CARNATHAN--I ask leave to introduce a resolution.

     MR. JONES (Montgomery)--I inquire of the gentleman if it will take up much time.

     MR. CARNATHAN--No, it is very short.

     The resolution was read as follows:

     Resolved by the people of Alabama in Convention assembled, that hereafter no member shall speak longer than ten minutes nor more than twice on the same subject.

     Referred to the Committee on Rules.

     MR. JONES (Montgomery)--I ask that we now take up the next section in the report of the Committee on Executive Department.

     I think we are at Section 23.

     Section 23 was read as follows:

     Sec. 23--The Secretary of State shall be the custodian of the Seal of the State, and shall authenticate therewith all official acts of the Governor; his approval of laws, resolutions, appointments to office and administrative orders, excepted. He shall keep a register of the official acts of the Governor, and when necessary,


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shall attest them, and lay copies of same, together with copies of all papers relative thereto, before either House of the General Assembly when required to do so, and shall perform such other duties as may be prescribed by law.

     MR. JONES (Montgomery)--I move the adoption of the section.

     MR. EYSTER--I move to amend by adding the word "great" just before the word "seal."

     THE PRESIDENT PRO TEM.--The gentleman will send up his amendment.

     MR. JONES (Montgomery)--I will state to my friend that that is the language of the Constitution now, and there is no seal of the State except the Great Seal, and for that reason we did not put the word "great" in there.

     MR. SAMFORD--I move that the amendment of the gentleman be laid on the table.

     THE PRESIDENT PRO TEM.--The amendment has not yet been prepared.

     The amendment was thereupon sent to the clerk, and read as follows:

     Amend by adding the word "great" before the word "seal" in the first line.

     MR. SAMFORD--Now I move that it be laid upon the table.

     The motion to table was carried.

     The President here resumed the chair.

     MR. SAMFORD--I now move the adoption of Section 23.

     The motion prevailed and the section was adopted.

     THE PRESIDENT--The Secretary will read the next section.

     Section 24--All grants and commissions shall be issued in the name and by the authority of the State of Alabama, sealed with the Great Seal and signed by the Governor and countersigned by the Secretary of State.

     MR. JONES (Montgomery)--I move the adoption of that Section.

     The Section was adopted.

     THE PRESIDENT--The Secretary will read the next section.


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     Section 25 was read as follows:

     Sec. 25.--Should the office of Secretary of State, State Auditor, State Treasurer, Attorney General, Superintendent of Education, or Commissioner of Agriculture and Industries become vacant, for any cause, the Governor shall fill such vacancy until the disability is removed or a successor elected and disqualified. In case any of said officers shall become of unsound mind, such unsoundness shall be ascertained by the Supreme Court upon the suggestion of the Governor.

     MR. JONES (Montgomery) -- I move the adoption of that Section.

     The Section was adopted.

     THE PRESIDENT--The Clerk will read Section 26.

     MR. COBB--I move the consideration of Section 26--

     MR. JONES (Montgomery)--If the gentleman will permit me, I will say something that will do away with that and make his motion unnecessary.

     Sec. 26. The Governor, Lieutenant-Governor and Attorney-General are constituted a Board of Conciliation, for the adjustment of differences between employer and employe engaged in mining, manufacturing, transportation, or other lawful industries, to which Board may be added in each case coming before it, two citizens of this or of some other State of the Union, to be appointed by the Governor. The Board may propose arbitration before it of any such dispute, whenever it deems proper; and in its discretion may hear such disputes when requested by either parties thereto. In all cases coming before it, the Board shall pass on the merits and recommend in writing what ought to be done to adjust the dispute or difference. Its judgment or award shall be advisory merely, unless both parties agree in writing, in advance, to perform the award, when it may be enforced by appropriate proceedings in the courts, under such rules and regulations as may be prescribed by law. The Board shall have the power to compel the production of papers and the attendance of witnesses in matters germane to the dispute or difference under such rules and regulations as may be provided by law.

     MR. BEDDOW--I desire to offer a substitute.

     THE PRESIDENT--The gentleman from Montgomery has the floor.

     MR. JONES (Montgomery)--I am going to move, after explaining why I do it, to lay this Section on the table, and then the gentleman can offer the substitute.


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     MR. BEDDOW--I will yield if the motion to lay on the table does not deprive me of the privilege of offering the substitute.

     MR. JONES (Montgomery)--I do not wish to deprive the gentleman of the privilege of offering his substitute but the Committee is going to ask to lay the Section on the table.

     MR. BEDDOW--If it is laid on the table, I think it would deprive me of the privilege of offering the substitute.

     MR. JONES (Montgomery)--Then I yield for the purpose of allowing the gentleman to offer the substitute, if he will yield in order that I may dispose of the Committee's report.

     The substitute was read as follows:

     Amendment to Section 26, Executive Department, by Beddow of Jefferson:

     Amend by striking out Section 26 and insert the following in lieu thereof:

     Section 26. A Board of Arbitration is hereby created of which the Commissioner of Agriculture and Industries shall be ex-officio Secretary, and said Board shall be composed of five members two of whom shall be appointed by the employer, two by the employes, and one by the four members hereinbefore provided for. When any dispute shall arise between employer and employe in this State each party to such dispute shall notify the Secretary of the Board of Arbitration of their intention to submit such dispute to arbitration and each party to such dispute shall certify to said Secretary the names of the two persons selected by such party to act as arbitrators. The Secretary of the Arbitration Board shall forthwith call and commission the Arbitrators so named to meet at the Capitol, who shall proceed to organize by electing a disinterested person to act as such fifth member of said Board. The Board so organized, shall take cognizance of such disputes only as are voluntarily submitted to it for adjudication, but the Secretary shall have power to enforce in the court all of its awards. The Legislature shall, at its first session after the adoption of this Constitution enact laws for the enforcement of the awards of the Board herein created and provides compensation for the members thereof.

     MR. SAMFORD--Mr. President--

     THE PRESIDENT--The gentleman from Pike--

     MR. JONES--I yielded the floor, as I understood it, with the distinct understanding with the chair and the gentleman from Jefferson, that as soon as his substitute was read, I could resume the floor, and state why the Committee withdraws the article that it reported.


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     MR. SAMFORD--I have no objecion to that. I was on the committee myself. If I have the floor, I yield it to the Chairman of the Committee.

     THE PRESIDENT--Ordinarily the mover of the resolution would be entitled to recognition after introducing his resolution. The gentleman from Jefferson, and the gentleman from Montgomery made some arrangement about the floor that the chair did not hear exactly.

     MR. BEDDOW--I desire, Mr. President, only to make an explanation as to why I offer that as a substitute for the sec.

     MR. JONES--Of course I will not stand in the way of my friend from Jefferson, but I started to state the Committee was going to withdraw this article, but we wanted to give the reasons for its withdrawal, and after that I was going to move to lay the section on the table. My friend from Jefferson said that would prevent his putting in his substitute, and I said I had no objection to yielding the floor for the purpose provided he would allow me to speak as to the reasons why we want to lay on the table the section reported by the committee.

     THE PRESIDENT -- The gentleman from Jefferson may make his explanation.

     MR. JONES--I yield the floor to him for that purpose.

     MR. BEDDOW--Mr. President, when the Committee on the Executive Department made their report, I for one, was willing to adopt it as a whole, but I am one of the delegates from the largest County in the State of Alabama, and within whose domains there are more laborers than I suppose any three other countries of the State. After this report of the Committee on the Executive Department had been printed and got into the hands of my constituents, members of this Convention began to receive communications from the various labor organizations throughout the State, opposing the section as reported by the Committee. They maintained that a Board of Arbitration or conciliation, as the case may be, in the words of this section amounted to nothing. I immediately put myself in communication with my constituents, and I had a favorable opportunity to do so, because the delegates to the United Iron Workers Convention was in session in the city of Birmingham, and is no win session, and I inquired of them as to their desire in this matter. I will say to this convention that that body of men represent from six to ten thousand laboring people in the district from which I hail and the amendment that I have offered as a substitute to this section is the embodiment of what they themselves desire, and which they themselves drafted and sent to me, and which I introduced on yesterday. I have changed the language somewhat, so as to make it applicable to this article that is now under consideration, but


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CONSTITUTIONAL CONVENTION, 1901

the substance in its entirety is as they desire. I have no desire, except to cast my vote, and lift my voice in behalf of what they themselves desire. They have represented that by the assemblage that is now assembled in the city of Birmingham, and as this body has not been worried by petitions from any laborers throughout the State as they have left all the matters entirely to the discretion of this convention, and as this is the only thing that they have asked at the hands of this convention, I feel that it is the duty of this body of gentlemen to give it to them. There is no use in our putting an article or section into the constitution, constituting the Governor, the Secretary of State and Attorney General a mere advisory board, but should this section that I have introduced as a substitute, be enacted into law, it leaves it with both the employer and employe to determine for themselves whether or not they shall submit their matters to arbitration. If they agree to that, this amendment affords them the opportunity to select their own arbitrators, and it is not fixed by the constitution in an arbitrary way. It affords the same opportunity to employer to select his two arbitrators and these four men select the fifth man, and it also provides that when they consent to it, that the award of the arbitrators shall be final, and that the legislature shall pass such laws as will enforce this award of the arbitration board. This is a small request from this large citizenship of the State. It is a small thing for us to recognize, and I hope, before this convention turns it down that they will give it the consideration that it deserves.

     MR. GRAHAM (Talladega)--I would like to ask the gentleman a question. Does this substitute that is offered, contemplate the creation of five constitutional offices that would carry salaries?

     MR. BEDDOW--It constitutes a Board of Arbitrators, two to be selected by the employer, and two by the employe and those four select the fifth. The ordinance provides that in case of dispute, they shall select the Board, and it also provides that the Legislature shall provide such compensation as in their description they may see fit to pay for their services.

     MR. O'NEAL--What is the term of office of these Arbitrators?

     MR. BEDDOW--These Arbitrators have no terms of office. In case of any dispute arising, they are selected, and when that dispute is over, their term is out.

     MR. O'NEAL--There are different arbitrators for every dispute?

     MR. BEDDOW--Yes Sir.

     MR. O'NEAL--But the Commissioner of Agriculture is to be a permanent arbitrator?


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     MR. BEDDOW--He is ex-officio secretary of the Board, for the purpose of calling them together, and he is already provided by law with expense money with which he could defray his necessary expenditures in these matters.

     MR. CUNNINGHAM--I ask the Chairman of the Committee if he will yield the floor for a minute. I rise merely to call the attention of the delegates who were present at the meeting at Birmingham, a while before the election, that my understanding of what meeting was that this convention would in no way interfere with the rights and the privileges of organized labor. A committee of the Trades Council composed as it is of labor organizations of different kinds in the county of Jefferson, waited upon the delegates then present, and a resolution was introduced, granting the request that they made. It strikes me therefore that gentlemen on this floor who voted affirmatively on that question in the city of Birmingham, would be violating a covenant into which they entered and agreed. The substitute offered by my colleague of Jefferson is from the largest body of organized labor in the county of Jefferson. Not only the largest, but probably the most influential, and also the most important, but I do not believe that this convention has the right to take up the question here presented by one particular class of organized labor, and enact it or ordain it, into the constitution, over the pledge made to the Trades Council, which represents all of the different sub-divisions of organized labor. There is one other point, Mr. President, which refers to the merits of the question. I myself favor arbitration. I have been informed by competent lawyers that this can be done by the legislature unless the Constitution restricts it. There is no proposition pending, nor will any be introduced into this convention, prohibiting the legislature from providing for Boards of Arbitration. If there was such a provision I should feel it my duty to vote against it. But inasmuch as the legislature can establish these Boards of Arbitration, defining their duties, their salaries and all things necessary, it strikes me we should not place it in the organic law, and for these reasons I feel that it is my duty to oppose not only the original section offered by the Committee, which it seems they are anxious to get rid of, but also the substitute offered by my colleague from Jefferson, and I hope that it will not prevail.

     MR. BEDDOW--I would like to ask the gentleman a question before he takes his seat.

     MR. CUNNINGHAM--Certainly.

     MR. BEDDEW--Do you understand that the pledge made to the laboring people of our district, when the delegates were assembled in Birmingham, was that we would not do anything in this convention looking to the good of the working people.


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     MR. CUNNINGHAM--No sir.

     MR. BEDDOW--Was it not their request that nothing be done that would injure.

     MR. CUNNINGHAM ---- Or in any way interfere with the rights and privileges and immunities of organized labor.

     MR. BEDDOW--Yes, but not as to those things that look to their good.

     MR. CUNNINGHAM--Well, I admit that they would not ask this Convention not to do anything that would look to their good, but they seemed, on that occasion, to interpret that it would not be to their good for this convention in any way to interfere with the rights and privileges, I will say to my colleague from Jefferson, is the adjustment of wages. The miners' organization adjusts its wages, not the Trades Council. The brick layers' organization adjust their wages and not the Trades Council, nor the Miners' organization. The Amalgamated Association of Steel and Iron Workers adjust their wages, separate and distinct. Therefore if this ordinance should obtain and become a part of the Constitution, I undertake to say that while the intention of it might be good, and it might in reality be to the benefit of the laborer yet I would say that it would take away from them, largely at any rate, their system of regulating wages, as it now exists. The miners, for instance, have a sliding scale, and it would transfer from organized labor to this Board of Arbitration this question of the settlement of wages, and for that reason I do not believe that we should place it in the Constitution.

     MR. BEDDOW--I would like to ask the gentleman a further question. Does the gentleman from Jefferson understand that the substitute offered by me requires them to submit to arbitration.

     MR. CUNNINGHAM--No sir, I understand it to say that it was optional.

     MR. BEDDOW--Purely voluntary, whenever they desire to.

     MR. deGRAFFENREID -- Cannot they do that now, Mr. Beddow, without any law?

     MR. BEDDOW--I presume they could without any law. But this is at their request.

     THE PRESIDENT--The question is on the substitute offered by the gentleman from Jefferson.

     MR. GRAHAM (Talladega)--I move that this Convention do now adjourn until 12 o'clock on Monday--


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     MR. O'NEAL -- I make the point of order that under the rules, we adjourn until 3 o'clock. The rule takes effect today.

     Additional leaves of absence were granted, Mr. Proctor for Monday, Mr. Hodges for Monday, Tuesday and Wednesday, Mr. Ledbetter for the 24th and 25th, and Mr. Opp of Covington for this afternoon.

     The Chair made a number of announcements.

     MR. O'NEAL (Lauderdale) -- I rise to the point of order that under the rules this Convention is now adjourned.

     THE PRESIDENT--The point of order is well taken, and the Convention stands adjourned until 3 o'clock this afternoon.


__________

AFTERNOON SESSION

     The Convention reconvened at 3 o'clock p.m. Upon a call of the roll, one hundred and one delegates responded.

     The following additional leaves of absence were granted: Mr. Banks for today and also for the 13th; Mr. O'Neal for Monday; Mr. Cornwall for this afternoon.

     MR. BURNS--I ask unanimous consent to introduce a resolution by request

     The resolution was read as follows:

     Resolved, that it shall not be considered a breach of etiquette for members of this Convention to wear shirt-waists at the afternoon session of the Convention.

     THE PRESIDENT--The resolution is out of order.

     MR. FITTS--I desire to offer a very short resolution.

     MR. deGRAFFENREID--I believe that the matter was before the House when we adjourned for dinner was the resolution of the gentleman from Birmingham which was offered as a substitute for the report of the Committee to Section 26. I move that that resolution be laid upon the table.

     MR. BEDDOW--On that I call for the ayes and noes, and I hope there are enough delegates here who will sustain the call.

     MR. deGRAFFENREID--I want to say, Mr. President, that if the gentleman from Birmingham desires to make any further remarks upon the subject. I will withdraw the motion for that purpose, but for that purpose alone.

     MR. FERGUSON--I also desire to say a word on that proposition.


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     THE PRESIDENT--The question is, is the call for the ayes and noes sustained?

     The call was not sustained.

     THE PRESIDENT--The question is on the motion of the gentleman from Hale to lay upon the table the substitute offered by the gentleman from Jefferson.

     The motion to table was carried upon a viva voce vote.

     THE PRESIDENT--The question recurs upon the original Section as reported by the Committee.

     MR. O'NEAL--I have an amendment to offer.

     MR. JONES (Montgomery)--I had the floor. Mr. President, I will state that in drawing this provision, the Committee was conforming to what they believed to be the wishes of a large number of the employes and of a good many employers. We simply wished to have a Board, a part of which was constituted in advance, which could offer its good offices. We learned afterwards that there was considerable objection on the part of the employers of labor who thought that the publicity might not be agreeable, and some of the laboring men themselves did not like the Constitution of the Board, and those are the reasons, without going into the details of all the provisions of the Section, why the Committee is now willing, and I move in their behalf, to lay the Section as reported by the Committee, on the table.

     Upon a vote being taken the motion to table was carried.

     MR. BROWNE--I desire to offer an amendment to the report of the Committee on the Executive Department.

     THE PRESIDENT--To what Section?

     MR. BROWNE--It will be Section 26 as proposed, to be inserted for Section 26.

     MR. ROBINSON--I rise to a point of order.

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

     MR. ROBINSON--There is nothing before the Convention.

     MR. deGRAFFENREID--There is no Section 26.

     MR. SAMFORD--There is nothing before the Convention to amend. The Section has been laid upon the table, and cannot be amended while it is laying on the table.

     MR. BROWNE--I do not propose to amend that Section, but to amend the report. The whole report is before the body, and subject to amendment.


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OFFICIAL PROCEEDINGS

     THE PRESIDENT--The whole report is not before the Convention at this time. The question would be confined to the particular Section. It seems to the Chair that unless the gentleman moves to take the Section from the table?

     MR. BROWNE--I do not desire to amend the Section at all, but it is to insert a Section.

     THE PRESIDENT--The gentleman might add it as a Section to the entire report, as an additional Section.

     MR. BROWNE--Yes, but there would be the same condition after the whole report is adopted; there would be no Section before the House, and there being nothing before the body, it would be out of order.

     THE PRESIDENT--At that time the whole report would come up for consideration. Read the next Section.

     The Clerk read Section 27, as follows:

     Sec. 27. The Governor, Auditor and Treasurer, or the Governor and either the Auditor or Treasurer, when there are funds in the Treasury not immediately needed, may loan out the same on call, for such time and at such rate of interest, as they may deem advisable, taking as collateral, bonds of the United States, or of this State, to the full value of the amount loaned, and the interest agreed to be paid therefor; such loans shall not be made until after one week's public notice, through some paper published at the Capital, and a record of such loans shall be kept in the office of the Auditor, and reported by the Governor to the General Assembly at its next meeting.

     The Committee's amendment to the Section was then read "Amend by adding after the words `as they may deem advisable' in the third line, the following words, `to the best bidder.' "

     The minority report of the committee was read, as follows:

     And he further recommends that Section 27 (which relates to the loaning of money in the State Treasury) as reported by said Committee, be stricken out and do not pass.

                                                                                                        Respectfully submitted,

                                                                                                                         Watkins M. Vaughan.

     THE PRESIDENT--The question is on the adoption of the minority report.

     MR. HANDLEY--As I understand it, there is a majority report, a minority report, and an amendment. I desire to offer a substitute for all of them.

     The substitute was read as follows:


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     "That if at any time there is a surplus in the State Treasury above the needs of the State Government, economically administered, it shall be the duty of the Governor to report that fact to the General Assembly, and, in that event it shall be the duty of the General Assembly to reduce the rate of taxation allowed by this Constitution, in the proportion that such surplus bears to the ordinary expenses of the State Government, honestly administered.

     MR. HANDLEY--It pains me very much to disagree with this committee, and especially the distinguished Chairman, but as I understand it, this is a proposition to go into the loan business, and to loan out the money belonging to the people of the State. I am unalterably opposed to the State of Alabama going into any business whatever. She has been in business frequently. Eleven years before I was born, sir, they went into the banking business. In 1823 and in 1832 and '36 they established three branch banks, one at Montgomery, one at Mobile and the other at Decatur, and in 1841 and 1842 they went into liquidation, and today we are paying taxes on three or four millions of dollars in bonds, and have been paying it for sixty years nearly--

     MR. JONES (Montgomery)--A thousand dollars a day.

     MR. HANDLEY--No, not that much I reckon. This State, when it went into the banking business issued bonds to an amount of fourteen millions of dollars, and the record shows it. They went into the banking business, and the result was they lost in the liquidation, and in the final wind up, three or four millions of dollars, and the people of Alabama have been paying interest on that money ever since.

     That is not all. In 1868 or '70, when this State was under Republican rule, they loaned the credit of the State to the extent of sixteen thousand dollars per mile, for railroads. What was the result? Alabama was found to be in debt about thirty or thirty-two millions of dollars. In '74 the Bald Eagle of the mountains was elected Governor, Mr. George S. Houston, and he came down here, sir, and with his Legislature he reduced that debt to about ten millions of dollars.

     I have been connected with the financial world for thirty or forty years, and I know it is almost an impossibility far any law, or anything to be contrived with sufficient security to take the people's money out of the treasury. I have studied it a long time. I have been to Boston, New York and elsewhere, and I know it is a troublesome thing, and I do not want the State of Alabama to go into the loan business at all, at any price.

     They say there is no danger, you have United States bonds as collateral. Well, I am just from New York only a few days ago, and if a man in Alabama owns United States bonds, he can


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OFFICIAL PROCEEDINGS

go to New York and borrow his money at 2 per cent, per annum. If he owns Alabama bonds he can get it very cheap. Under all the circumstances it is a dangerous thing. We have never opened the treasury, and we have never loaned the credit of the State of Alabama, without being paralyzed, so to speak, and I am opposed to it. I think it is a bad precedent to set, and I hope that this Convention will strike out that Section 27, and knock out the minority report and amendment and let us establish sir, this idea: That if the treasury of the State of Alabama is overflowing let it be the duty of the Governor to notify the Legislature of the fact, and then reduce the taxes. I understand that our treasury has got some money in it now; later on they will have more money. My idea is for the people to hold it in their pockets. I do not want a rich government and a poor people. I would like to have a rich government though, and a rich people.

     Now, sir, I know the point is going to be made, that you want this money in circulation. Well, I have had a great deal of experience along that line. I have loaned money and I have borrowed money, and my idea is when you loan out large sums of money that it is sometimes very difficult to get it back, even if you do have gilt-edge security. Then there is a chance for litigation, and long litigation to come up, and we have never, until this day, opened the vaults of the treasury of the State of Alabama without we lost money. That is my experience, and I have been watching it a long time. I do not want to loan her credit or her cash. If we ever get too much cash in the treasury, I want the taxes reduced, and collect less from the people.

     Now that is my idea, from a business standpoint, but I know the point will be argued that it will flow among the people. Yes, and it is dangerous. It is hard to get back, when you get it out and it gets to circulating for hundreds of miles over Alabama or somewhere else.

     Then, we have got very few United States bonds in Alabama, and they are registered and registered bonds would not be worth a cent as collateral, because they are registered at Washington, and some expert lawyer might pass on the collaterals and make a mistake right there. Then there is another fact, which is, that money is a thing that takes wings and flies away. It is a dangerous article to handle, and I do not want Alabama to go into business, and I trust that it will not do so. Now, sir, it looks just like we would hold the strings all the time, but the political world is sort of like the financial world, about every ten years there is a collapse, one way or the other. You know the financial world about once in ten years gets down to rock bottom, and everything is hard, hard to manage and it is hard to get money at any price or in any way, and politics is pretty much the same way. There might come a tidal wave, like in 1892, and


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CONSTITUTIONAL CONVENTION, 1901

do some harm, and somebody else might have charge of the Treasury, and the doors would open.

     Now, sir, I am opposed to it. I am emphatically opposed to this measure, and I have got a substitute that simply means that if you have got an overflowing treasury, reduce the taxes of the people, and that is the way I stand on it. It is dangerous to do otherwise.

     I might say something else, I suppose, but I think you understand my position. The State of Alabama issued fourteen millions of bonds, and sold them, and went into the banking business, and then way back in sixty-eight, or seventy they signed bonds for the railroads, sixteen thousand dollars a mile, and got bit again. It is a dangerous thing. How many banks, and loan institutions, with millions behind them, with the best talent that can be found, men of experience to conduct their affairs, have gone into bankruptcy in the last few years I just ask that question. How many banks have gone into bankruptcy, or liquidation, with millions of dollars behind them? I will tell you, gentlemen, there is nothing sure about large amounts of money. There are schemers and sharpers, and others who will get control of it, and if they cannot do it one way, they will work some other way, and it is a dangerous experiment, and I trust you gentlemen, and especially you gray-haired men that have had some financial experience, will consider this thing, and vote against this resolution. (Loud applause).

     MR. SAMFORD--The proposition in section 27 is to loan the money, when there is a surplus, to any individual who has State bonds or United States bonds. I am utterly opposed to the class legislation which that of itself promotes. No man in Alabama, if he is worth millions, could borrow a dollar from the Treasury of the State, unless he should own State bonds, or United States bonds. How many men in this Convention hold State bonds, or United States bonds. It is in favor of a particular class of men, who usually are too wealthy to require the loans. The poor man, for whose benefit it might be made, is unable to furnish the security. He may have land, but that is no security under the 27th section. It must be State bonds, which he is unable to purchase; it must be United States bonds, which he cannot buy, and therefore he is shut out entirely from what is intended to be a privilege granted by the State, for it is a privilege, for the benefit of the people.

     My friend alluded to the banking system here in 1837. We must remember at that time that the State of Alabama issued five millions of bonds, and to this day, we have never paid the debt that was incurred by lending them. We have never been able to collect it entirely. As a basis of the indebtedness of the State, five millions of dollars, largely arising from the issue of bonds for the


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OFFICIAL PROCEEDINGS

purpose of raising money to lend to the people. Much of it was never collected. Our indebtedness today is something over nine millions, and it arises largely from the banking enterprises of the State sixty years ago, and its endorsement of railroad bonds, to which my able friend from Randolph has alluded. I trust that we will not go into banking, for what is it but banking? It is a fundamental principle of the Democratic party to be opposed to all banking, and especially for the government to be connected with banking establishments.

     Why in 1831, the Legislature of Alabama passed a resolution, denouncing the United States banks; pretesting against the establishment of a branch of the United States Bank within the limits of Alabama, saying it was a corrupting influence, and it was intended for the benefit only of a class of citizens. They denounced it as unconstitutional, in the first instance, and extremely impolitic in the second. Therefore I hope that we will not try to repeat the folly of 1837, by entering into a banking policy, and that we will stand by the theories of those men of thirty-one who did not wish banks of a particular class established inside of the limits of this Commonwealth. I hope that the substitute will be adopted.

     MR. BROOKS--It seems to me that the motion before the House is the adoption or the rejection of the minority report, and it is not in order now to go back to the original report and offer a substitute for that in entirely different form, and entirely different matter. It seems to me we have to dispose of the minority report first. That is the point of order I make.

     MR. CUNNINGHAM--I beg to dissent from the opinion of the gentleman from Mobile. The minority report comes in as a report and therefore can be amended, and the question is to strike out and the gentleman from Randolph moves that instead of striking out, that we substitute the amendment that he offers, and I make the point of order that it is germane and is in order.

     MR. JONES (Montgomery)--This Committee has placed the convention under obligations in making this report, if for nothing else, because it has been the occasion of a very fine speech from my friend from Randolph.

     We were well aware of the history of Alabama in the days of its banking and railroad experience. None of us had forgotten them. We were also aware of a sentiment which has exhibited itself in many legislatures, and at times very strongly among the people, that it was unwise to have a large sum of money in the treasury, which was earning nothing, and which might go into circulation. The proposition therefore, is a plain business one. Is it wise for a trustee, when he has funds which he cannot use immediately, to loan them out on safe security. That is


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CONSTITUTIONAL CONVENTION, 1901

the whole proposition. It does not involve any question of going into banking. Every man who lends money is not a banker. That is only one of the functions of a bank. It is not a question of the State involving itself in precarious enterprises like it used to, when it went into the banking business, but the whole thing is this, whether we have got, not a surplus taking the year round, but a million or so of dollars in the treasury which we will not need for six months. Now we cannot loan that out except on good security. Is it wise to lend it out at all? If the House is of the opinion that it is not wise to lend it out at all, and it had better stay in the treasury, then as a business proposition, they can vote it down. But it does not involve the proposition of banking, or going into railroads or old United States banks or Federal power. I do not propose on behalf of the Committee to take up any more time on it.

     MR. PEARCE--I desire to offer an amendment to the minority report.

     The amendment was read as follows:

     Strike out the words "on call" in the line three of section 27, and insert after the words "or of this State" in line four, the following words, "mortgages on farm lands, crop liens, farm products, such as cotton, corn, cabbage and potatoes and all other farm products all of which loans shall not be due until the crops are gathered."

     THE PRESIDENT--The gentleman's amendment will be in order after the pending substitute is disposed of. The minority report of the committee moves to strike out the entire section. It would have been in order for the minority to have moved to strike out the words contained in the section and add in lieu thereof other words. The gentleman from Randolph moves to amend the report of the minority of the Committee, by moving to add in addition to the motion made by the minority of the Committee to strike out. Therefore it seems to the Chair that the point of order made by the gentleman from Mobile is not well taken. The question will be on the adoption of the substitute offered by the gentleman from Randolph.

     MR. JONES (Montgomery)--There seems to be so much opposition to this proposition, that I move to lay on the table the original section, the minority report, and all amendments and substitutes offered on it.

     MR. HANDLEY--I object to laying the substitute on the table.

     That is the very thing I want. The substitutes comes in any times, all the while; if we ever get an overflowing treasury, you can reduce the taxes.


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     Upon the motion to table a division was called for, and by a vote of 62 ayes and 21 noes the motion to table was carried.

     THE PRESIDENT--The Secretary will read the next section.

     Section 28 was read as follows:

     Sec. 28. The State Treasurer, State Auditor, Attorney General and the Commissioner of Agriculture and Industries shall perform such duties as may be prescribed by law. The State Treasurer and State Auditor shall every year at a time the General Assembly may fix, make a full and complete report to the Governor, showing the receipts and disbursements of revenues of every character, and all claims audited and paid out by items, and all taxes and revenues collected and paid into the Treasury, and from what sources and they shall make reports oftener upon any matters pertaining to their office if required by the Governor or General Assembly.

     MR. MURPHREE--I have an amendment.

     Amend Section 28 by inserting after the word "Auditor" in the first line, the word "Secretary of State."

     Upon a vote being taken the amendment was adopted.

     MR. SAMFORD--I move the adoption of the section.

     The section was adopted.

     Section 29 was read as follows:

     Sec. 29. The State Auditor, State Treasurer, Attorney General, Secretary of State and Commissioner of Agriculture and Industries shall not receive to their use any fees costs, perquisites of office, or other compensation than their salaries as prescribed by law, and all fees that may be payable for any services performed, through such officers, shall be at once paid into the State Treasury.

     MR. WATTS--I offer an amendment.

     Amend Section 29 by inserting after the word "Secretary of State," in the first line, the word "Superintendent of Education."

     MR. GRAHAM (Talladega) -- I hope the gentleman will withdraw that amendment, because there are no fees going into the office of the Superintendent of Education. An incidental fund is provided for his expenses, but there is no law by which he receives any fees or commissions or anything of that kind into his office. That is provided for an incidental expense fund.

     MR. WATTS--Then I will withdraw it.


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CONSTITUTIONAL CONVENTION, 1901

     MR. WILLIAMS (Marengo)--I move that the section be adopted.

     Upon a vote being taken the section was adopted.

     The next was read as follows:

     Sec. 30. A Sheriff shall be elected in each County by the qualified electors thereof, who shall hold his office for a term of four years unless sooner removed, and shall be ineligible to such office as his own successor. Whenever any prisoner is taken from the jail or from the custody of the Sheriff or his deputy, and put to death, or suffers grevious bodily harm, owing to the neglect, connivance, cowardice or other grave fault of the Sheriff, such Sheriff may be impeached under Sec. 2 of Article VII of the Constitution; and the Governor, when satisfied, after hearing the Sheriff, that he should be impeached, may suspend him from office for such time as he may think proper, until the impeachment proceedings are finally disposed of.

     MR. WILSON (Washington)--I desire to offer an amendment: Amend Section 30 by striking from lines two and three the following words, "And shall be ineligible to such office as his own successor."

     MR. WILSON (Washington)--I am aware of the fact that this provision is in the present Constitution, and has been there for many years, but the bare fact that a thing was and is, is no good reason that it should be forever. I see no reason why a Sheriff should not be allowed to succeed himself any more than any other county officer. You may as well say that the Tax Collector would refuse to do his duty you ought as well say that the Tax Collector would wink at escapes and would not make up his delinquent list; you might as well say that an Assessor would not do his duty, and, Mr. President, where is there a county officer that has a stronger hold and more influence with the people than the Probate Judges--you might as well say that they would not do their duty. I understand that formerly sheriffs handled the administration of estates of deceased persons to a large degree in this State--that I do not think is the case today. That is the only reason that I can imagine that ever existed for preventing a Sheriff from succeeding himself. Now if we are going to say that the Sheriff shall not succeed himself it is only just to say that no county officer shall succeed himself, and I, for one, do not believe that it is right, just or wise. Now, Mr. President, I do not care to bring about a long discussion upon this matter, and knowing that the Chairman of the Committee will have the right to close the debate, I move the previous question on this amendment.

     The motion for the previous question on the amendment was carried.


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     MR. JONES (Montgomery)--I will say, very briefly, that it has been the law, for many, many years, he is an executive officer, we have put everybody else in a straight-jacket of that sort, and I do not see now why we should depart from the wisdom of our fathers.

     MR. WILSON (Washington)--May I ask the gentleman a question.

     MR. JONES--Certainly.

     MR. WILSON--Would the other county officers be put in the same fix?

     MR. JONES--Not that I know of.

     A vote was taken on the amendment, which was lost, and the question recurred on the amendment of the gentleman from Pike.

     The Clerk read the amendment as follows: Amend Section 30 by striking out that part of the Section after the period in line three.

     MR. SAMFORD -- I desire to say that at the time of the adoption of this particular Section by the Committee of which I was a member, I gave notice to my brethren on the Committee that I would reserve the right to move to strike out this part of the Section before the Convention, and to state to the Convention my reasons therefor. Under the law as it now is, sheriffs are elected by the people of a county. They are not elected by the people of the State at large, and they are only State officers in the sense that they are a part et the executive. They are not responsible to the Chief Executive of this State, but they are responsible to the people who elected them. Under the law as it now is, there is a mode provided for their impeachment whenever by neglect of duty, by cowardice, or for other reasons, they fail to perform the duty imposed upon their by law, and the enforcement of that law and their removal from office is placed in the hands of the courts of the county in which they serve. They are all bonded officers, giving perhaps the largest bonds of any class of officers within the State, and they and their bondsmen are liable for any neglect of duty, or any cowardice shown on their part in any respect in the discharge of their duties, and I say to this Convention today that it is a long step towards centralization of government to attempt to remove from the hands of the people to whom the duty is owed, the right to pass upon the impeachment of one of its officers. The argument may be made that as long as you leave it to the juries of the County in which these crimes are committed that no Sheriff will ever be impeached. That argument can never be good unless this Convention declares that the people of the counties are not capable of self-government. It is wrong in principle, it is wrong in practice to


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take away from the people of the counties the right to impeach the officers that they now have and remove the impeachment to the Capitol of the State. I mean no reflection upon the Supreme Court of Alabama when I say that it should not be given the jurisdiction in cases like this, but I am here pleading for the rights of the people of the counties to have control over the officers that they elect and to whom their duty is.

     MR. OATES -- Is not the Supreme Court overloaded with business now?

     MR. SAMFORD--I thank the gentleman from Montgomery for the suggestion that the Supreme Court of this State is constantly complaining that they are much crowded with work and we need not be hunting to give them any more. Now, Mr. President, I do not desire to detain this convention further along this line. I simply am here raising my voice and expressing myself in my feeble way in behalf of local self-government, in behalf of the people of the counties of this State controlling their own affairs, and against the tendency towards the centralization of power at the Capital of the State. They talked to me on yesterday about county autonomy, I tell you we cannot too jealously guard the county autonomy and the right of self government and the right to enforce the laws of the different sub-divisions of the State, and I desire, for one, to go on record here and now as being unalterably opposed to the proposition as laid down in the report of the Committee.

     MR. ESPY--This provision sought to be stricken out by the amendment is evidently inserted for the purpose of preventing lynching, and, Mr. President, if there is one evil from which our State is suffering more than another, it is the deplorable condition of affairs with reference to lynching. If there is a crime for which there can be absolutely no excuse it is that of taking the life of a prisoner when he is in the hands of an officer. It is a further fact, Mr. President, that cannot be successfully controverted, that the negligence or the cowardice of Sheriffs in this State contributes largely to the loss of life by mobs. So long as the Sheriff can with impunity turn over his prisoner to a mob and let them take him and do as they will with him and only be answerable to the people of his county where the crime is committed, just so long lynch-law will prevail in the State of Alabama. But whenever it is ascertained by the people that elected the Sheriff that if they go and deprive the officer of his prisoner, that not only the prisoner will lose his life, but that the officer will lose his office, then a public sentiment will be created, if not against lynching, at least to protect their officer in holding his office. The only objection I have to this section, Mr. President, is that it does not go far enough. If it would go further and say that the Sheriff should be put out of office, and if that law were


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in force, it would not be twelve months before lynching in the State of Alabama would be unheard of.

     MR. SAMFORD--Are all the lynchings in Alabama caused by the negligence or cowardice of the sheriffs?

     MR. ESPY--No, sir.

     MR. SAMFORD--Why then would the turning out of all Sheriffs in Alabama stop lynching in Alabama?

     MR. ESPY--It might not absolutely stop it, but it would certainly reduce it to a very great extent--it would certainly do that. Lynchings are the result, if I may be pardoned for using the expression, of depraved sentiment, and wherever the good people of a county cease to connive and cease to render indirectly protection to the mob that does the lynching, then the victory is very nearly won in the fight of saving the life of prisoners. It is like everything else, whenever the moral sentiment of a community where it is done condemns it, then the thing practically ceases. What good would it do to undertake to impeach a Sheriff in the county where the lynching is done, and as a rule, Mr. President, so far as this section would apply, the man must be tried right in the community where the lynching takes place, unless this provision or some other provision be enacted so as to get beyond the local influence, and I know of no better tribunal before which the Sheriff may be brought for trial. Now, there is nothing in this provision here that is harsh or unjust. It don't say you can without cause suspend the Sheriff, or that you can impeach a Sheriff, but he must be guilty either of neglect, or connivance, or other grave fault. In other words, when you group the words altogether they mean no more or no less than if the Sheriff or deputy fails to discharge his duty he lays himself liable to impeachment. What good reason can be assigned why the Supreme Court of Alabama shall not be the tribunal before which he should be arraigned. They are certainly competent. The history of the past has shown that it is a matter of impossibility to convict a sheriff in his own county. Why? Because of the influence he has over his constituents, and unless, as I said, this provision is adopted, lynching will continue to prevail in Alabama, and I hope, Mr. President, that the amendment will not prevail.

     MR. FITTS -- Upon this subject, the distinguished gentleman from Pike (Mr. Samford) in the Committee, as he has stated, gave his brethren of the Committee warning and notice that he would raise this question upon the floor of the Convention. I desire to assure the Convention that this matter was the subject of most careful consideration in the Committee room, and your Committee believes that this provision as embodied here is a step in the right direction; they believe that it is a step towards the civilization that is demanded in this country; towards a condition


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of affairs that ought to be brought about especially at the time of the holding of this Convention especially in this Convention, especially in this body which has met for a paramount issue, for the purpose of lifting a burden of apprehension from the people of Alabama, and especially from the people of a particular section of Alabama. It is meet and proper at the same time that the same clarion voice proclaim that relief, that the same Constitution that is going to bring about the fabric under which the new conditions can prevail, it will be meet and proper that at the same time, when you say to the black man "we propose to set limitations about your rights to participate in the affairs political of this country or to vote when you are ignorant and unfit to exercise the right of suffrage," it will be but meet and proper and common justice to say with the same august instrument that we propose to protect your life from the hands of mob violence, and we propose to see that you will be brought into the court houses of this country and given fair and impartial trials, and that you are not taken by mobs out of the hands of sheriffs of this country and hung up to the nearest tree or the nearest telegraph pole. We say that these two things go hand in hand, and that they should be written down in this Constitution side by side. It does not answer this proposition at all to say that sheriffs are elected by the people, and that they ought not to have this additional terror to make them doubly anxious to see that their prisoners are protected and that the law is enforced. It is a fact that they are taken--that prisoners are taken from sheriffs by mobs, and it is a fact that it ought to be stopped. The Committee thinks that this is a safe and conservative measure when it says that the right of removal shall be had until the Supreme Court can pass upon the merits of the case, and it does not take the office of any Sheriff away from him unless he is found to be guilty of cowardice or connivance in these lynchings--

     MR. SAMFORD--Or other grave fault or neglect.

     MR. FITTS -- Neglect of his official duty, cowardice that would not withstand the mob, connivance that permits them to take away, giving them the keys when he was pretending not to give them. We all know the habits, the ways of mobs. It is no answer to this proposition to say that the Supreme Court is crowded and ought not to be asked to stop and hear these impeachment proceedings. It don't make any difference how crowded it is, in that important matter it ought to and certainly will rise to the new duty that is imposed upon it and make rules and regulations to hear the impeachment proceedings when they came up. The gentleman says that he is opposed to this proposition, he says that he is opposed to it because sheriffs are only a part of the executive in the sense where the arm of the executive extends into the county, he is opposed to it because, the Sheriff is elected by the county and ought not to be removed by the Supreme Court.


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I say there cannot be any reasonable complaint by any good and faithful Sheriff at a mere temporary removal until the Supreme Court can hear his defense of all his actions .and official conduct. I say it will be a long step and a considerable stride towards the stopping of lynchings in this country and in this State, and that is a stride greatly to be desired, and almost any price is not too dear that does not invade the sacred rights of man. The distinguished gentleman (Samford) should remember the eloquent words, almost the last words that ever came into this hall from eloquent lips that are still--from his great father--among the last words that he ever sent into the General Assembly. The very concluding words of one of the last messages that ever fell from the eloquent pen of that beloved man, was a prayer to the General Assembly of this State to do something along this very line. And now that the Constitutional Convention proposes to rise to that high duty I say that this is a fit time and a fit place, in the very instrument itself, that is to set proper metes and bounds around this people, to give them every guarantee that no matter if your
political rights are limited, your court rights and your right to be protected while under arrest and being brought to a trial, and protected in the courts, shall remain inviolate, and that any Sheriff who allows these to be disturbed will be punished. I think that this Section as written by the Committee and as reported by the Committee should pass and go into the Constitution.

     MR. BURNS--Do you know of any instance in the State of Alabama where any sheriff has connived at lynching?

     MR. FITTS--I have not been mixed up in any mobs and don't propose to be.

     MR. BURNS--But do you know of any instance?

     MR. FITTS--I don't know the details of any mobs.

     MR. BURNS--I deny that any lynching ever took place.

     MR. FITTS--Your denials are very broad.

     MR. deGRAFFENREID--We rave already passed upon the question as to whether or not the Governor of Alabama shall be charged in this constitution with seeing that the laws of this State are faithfully executed, and we have already by an article which has been passed upon by this convention declared that it shall be the duty of the Governor to see that the laws of the State are executed. The Governor is an Executive officer. Each sheriff is an arm of the Governor and it is only through the sheriff that the Governor can see that the laws are faithfully executed in each county because the sheriff represents the Executive in the county where he is elected and where he perform his duties. As we have charged the Governor in the Constitution with seeing that the laws are faithfully executed,


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it would seem that it would be proper also in the very same Constitution to have a provision whereby he may have some authority to act, and whereby he can require his Executive officer in each county to perform his duty and to faithfully execute the law. It is a matter of history that in one of the recent administrations in this State, a Governor called upon a sheriff in a county that adjoins the county of Montgomery demanding that he see to it that a prisoner was presented, and the Governor received a reply informing him that so far as the Governor was concerned he was helpless. While the Constitution requires the Governor to see that the laws are faithfully executed he was politely informed by the sheriff that he had no power. I believe the sheriff replied to him "you cannot enforce it, it is none of your business." There is a section providing for the impeachment of the probate judge. He is a county officer elected by the people of his county. The probate judge is answerable only to the people of his county and yet under a constitutional provision which has been the fundamental law of the State at least since 1875 every probate judge has been liable to impeachment at the hands, not of the people of the county who elected him, but of the Supreme Court of the State of Alabama.

     MR. SAMFORD--Because he is a part of the judiciary system.

     MR. deGRAFFENREID--And the Sheriff is part of the executive branch and the same reason would apply to one that would apply to the other. The same reason underlies the constitutional provision in the Constitution of 1875 that would underlie the present provision if this should ripen into a constitutional enactment. Why, Mr. President, the people of a county are not the only people who are interested in the acts of the sheriff of that county. They are not the only people who are interested in the proper execution of the laws of the country. It was only recently that the Governor of the State was called upon--I know nothing of the merits of the case--to pass upon the question as to whether in an adjoining county there had been a flagrant violation of law by officers of that county and my recollection is that he came to the rescue of persons who had been convicted by the exercise of executive clemency because they had been improperly convicted by the law officers of the county. We have, as I have said, a constitutional requirement that the Governor of the State should see that the law is faithfully executed. We should not leave it to the legislature, but should fix in the fundamental law a provision by which he will be able to see to it that this constitutional declaration is not an idle set of words, but that it means something. That it means that he shall have the power that can be enforced, not through legislative enactment, but through the fundamental law of the State.


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     MR. JENKINS--I remember the incident to which the gentleman has alluded. It happened in Lowndes County, did it not?

     MR. deGRAFFENREID--Yes, sir.

     MR. JENKINS--I remember the reply the Sheriff telegraphed back. The import of the telegram to the Sheriff was that he ought to have placed himself in front of the mob and shot them down to save the life of a man it was impossible for him to save. The Sheriff telegraphed back to the Governor, or made the statement, "I believe in protecting the life, liberty and property of the citizen. I have tried to do my duty. I think the mob has done wrong, but I do not propose to be shot down in the face of a mob to save the life of a man in my care when I know I cannot do it." He used these remarkable words, "I am not fashioned after that heroic mold." You will find there is not today a Sheriff in Alabama, if there is he is a remarkable one, that is fashioned in that heroic mold. It is not human nature. And yet we propose to come here and by constitutional law say, it matters not how many bayonets or guns stare you in the face, you must walk out there and draw your pistol and say the first man who advances is a dead man' and then be shot down in your tracks." I tell you all, there are some crimes so black, and heinous, that have been
committed in this country of men, of which I am a representative on this floor, that there is no man who could stem the tide of indignation of wrath that has been aroused in the hearts of the people.

     MR. FITTS--May I inquire, would this section touch those conditions? Would that be cowardice or connivance?

     MR. JENKINS--But you leave it to the Governor to say what it is, and upon his opinion that sheriff is deprived of office and not given the presumption of innocence and what everyone, even the lowest in the land, is entitled to, a trial by jury.

     MR. PILLANS--Except the victim that is taken from the Sheriff?

     MR. JENKINS--There is no man in this Convention more opposed to mob law than I am, but I lay down this as a deliberate proposition, that there is no law or constitutional enactment that this convention or any legislature can pass that will do away with it under the present conditions. There is but one way and only one, and that is, you must educate and reform the moral sense and sentiment of the people. Until that comes about, your laws are as empty as the paper upon which they are written. You must build up a public sentiment in the minds of our people that every man is entitled to trial, and when he goes to trial he must receive justice and not be allowed to escape the gallows by the technicalities of the law and the fine web of sophistry the lawyers weave around their clients. That is the proposition for


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this Constitutional Convention. We should reform our judicial system and let the people know that when a man has committed a heinous crime he shall be walked up to the bar and tried before a jury, and be sentenced to the death to which he is entitled if he is guilty. Do that, and I maintain mob rule and mob violence will not stalk like a threatening spectre throughout this country, as it were, like some great black cloud hovering over this Republic. I am afraid of it, and dread it, but it is here and you cannot remove that by any constitutional enactment or act of the legislature. You must get down to the meat of the proposition, to the people themselves, and reform the sentiment of the people. I maintain that the present Constitution has all the requirements that we can provide. The Governor, the Secretary of State, the
Auditor, the Treasurer, the Attorney General and the various other officers may be removed from office for willful neglect of duty, corruption, etc. If any officer of the law allow a criminal to escape from him by willful neglect of duty or cowardice, you can have an indictment.

     The third section of the Article on impeachment says, "The Sheriff, Clerks of the Circuit, City or Criminal Court, etc. and all other county officers may be removed from office for any of the causes specified in Section 1 of this Article by the Circuit, City or Criminal Court of the County, provided that the right of trial by jury and appeal in such case be secured." Now you do not propose to give him this right until you remove him from office and debar him of the presumption of innocence to which he is entitled.

     I have been forced in the adoption of this report to vote against many of the sections offered and I want to say in justice to myself that I was present at one meeting of the Committee and that myself when the section as to Lieutenant Governor was being considered. I had other Committee meetings at the same time and was not able to get to this Committee and have voted conscientiously on every question.

     MR. SOLLIE--I am in the unfortunate attitude of having again to oppose a section of a report brought in by the Committee on the Executive Department. I approve in this instance of the spirit of the thing attempted--the object in view. I approve of the sentiment underlying the effort made. The whole of the moral bearing of the argument coincides with my judgment but when it comes to the measures employed, the manner and methods of curing the evil, in my judgment they are not the best that could have been resorted to. So far from that I consider that the evil that will be created by this contemplated act will well nigh set off the evils against which it is directed. For that reason, although I so greatly desire to see mob violence in Alabama come to an end, so greatly desire to see the day come when almost every newspaper will not contain a report of a lynching of some


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person in our State, although I do so much desire this--and it is an earnest desire that goes with me through my life--yet when we come to the reading of this Section of the report of the Committee and see how broad it is, how far-reaching it is, how many of the ordinary rights of the citizen it entrenches upon. I cannot give my assent to it. I believe with the gentleman who has preceded me that it is wrong for us to single out the sheriffs in the counties, sixty-six men in the whole State, and on that small body of men visit a punishment that should be visited upon the whole citizenship of the State of Alabama with respect to the crime of lynching. We bring forward and emphasize the fact that the Sheriff must stand between the prisoner and the mob at any and every cost to himself, notwithstanding he did not start the mob violence, notwithstanding he did not connive at it. The whole vengeance of the law is thrown on him while the Constitution says not a word condemning any other citizens. It does not direct any court to take any step, and does not set out any system. In making a Constitution we should make a system reaching all parties. I submit that the effort here is too much against the Sheriffs. Some constitutional provisions require legislative enactments to put them in force, others need no legislative enactment, but are self-executing. 'There is at least one feature of this provision that is self-executing; and although it is very vague and indefinite, it does not call upon the legislature to do anything with it. That part is this: "And the Governor, when satisfied, after hearing the Sheriff, that he should be impeached, may suspend him from office for such time as he may think proper." "After hearing him," How is he to be heard, what right of hearing, is he to have? Is the Governor to hear him by letter or simply by conversation between the Governor and him? Is he to hear him upon affidavit or how is he to hear him? The Section is silent as to all these matters and I presume they would be left to the discretion of the Governor.

     Now, what has the Governor power to do at this point? He has power to suspend the Sheriff, to take away a constitutional right of his, that is, to hold his office until he has been condemned by the judgment of some court and held to be unworthy of it. It not only takes from him the right of trial by jury, but it takes from him the right to be heard by any form of court procedure and puts him at the caprice of the Governor, because Governors, notwithstanding their greatness, may be capricious.

     I say such far-reaching provisions as these provisions covering so broad a field, so limitless, left to the discretion of one man, provisions, the penalties for the violation of which are so severe, and the odium growing out of which is so great, should not be made we know as a matter of fact, as the gentleman who has preceded me well said. that in most cases where prisoners are taken from sheriffs the force of the mob is such that if the Sheriff


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did his very best to keep the mob from taking the prisoner, they would get him anyhow.

     Then "for any neglect of duty" I would construe that to mean for the slightest neglect of duty -- it provides that he shall be impeached. And impeachment under these provisions of the Constitution would mean removal from office. "Neglect of duty on the part of the Sheriff connected with the prisoner's being taken from the jail or from the Sheriff or his deputy." It is too broad. It puts upon the Sheriff the necessity to be free from all neglect of duty, to be always wide-awake. Suppose a Sheriff, not expecting a mob, puts a weak deputy in charge of the jail, one who would be strong enough for ordinary occasions, but in view of the fact that a mob may arise, not a proper man for all occasions. The Sheriff puts him there, and every honest and candid mind, though disposed to Sheriff, when called upon to speak under oath, and say whether the Sheriff had neglected his duty, would be compelled to say he had. Here is the law directing his impeachment for that. And it puts him out of office. The provision puts too severe penalties and burdens upon the sheriffs.

     I cannot say that I entirely agree with the amendment. It undertakes to leave the matter entirely open. I agree as to the evil of mob violence on prisoners who have gone into the custody of the sheriff. They should be panoplied about and protected by all the force and power of law. I agree that something should be done; but an amendment to this section of the report would be an exceedingly tedious matter to do in open Convention. Therefore if I can get a second to the motion I will move that both the minority report and the Section as report by the Committee be recommitted.

     MR. JONES -- Would the motion to recommit cut me off

     THE PRESIDENT -- It would not

     MR. PILLANS -- Would not the word "gross" before "neglect" meet your objection?

     MR. SOLLIE -- It might

     MR. JONES (Montgomery) -- The principles which gave birth to this section had as well be met squarely. The trancendant issue they present can not be evaded by objection to details or appeals for "people's rule" There is a great principle -- a vital principle involved. It will not down. It must be met and faced. It concerns all alike. In its enforcement civilization, religion and good government are alike promoted. Without it all languish and wither.

     Let us be frank with ourselves. Every time a citizen rises up and appeals for the law, some man says some negro has committed


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an unmentionable crime, and, therefore, the sacredness of all law must be cast to the wind.

     People in Alabama who have not taken the trouble to keep pace with events, will be startled to be told that in the last ten years over one hundred citizens of Alabama have been taken by mobs from sheriffs and jails and murdered. Yet such is the case. Such is our bloody record. And yet over two-thirds of those people were not guilty of a crime which I will not mention, because of fair listeners in the gallery.

     Some years ago down in Butler County, a tax collector was murdered. A mob went to the jail and took two white men and and in flagrant contempt of law and the court hung them up in front of the Court House door that the judge of an Alabama court, when he went to deal out its justice, must be informed by the swinging bodies, how little people recked of law or courts.

     We all recognize what I might call "justifiable humanity," when a criminal is caught red handed in the act with the screams of his victim still vibrating in the air, that wise and good men may be moved to acts of lawless vengeance. But when a prisoner is once in the hands of the law, it should be taught all men that the prisoner, like the ark of the covenant, is sacred, and that the profane hand with touches either, will be palsied.

     Why is it of all men on earth, who are entrusted with the keeping of others, that a standard of honor must be made for officers different from all others, and that he should take no risk. Mr. President, the minister of the gospel who would fail to see the veriest stranger, much less one of his congregation, who is stricken with a deadly disease, because of personal fear, would be outlawed and scourged for all time. We are locomotive engineers every day standing by the throttle and risking their lives to save their passengers. We have seen captains of ships standing on the bridge, that the women and children might be saved, and going down to death in the waters. What policeman would be allowed to wear his uniform five minutes if he refused to make an arrest, at the risk of loss of life? What man would have respect for the Alabama State troops, no matter what the odds, if they allowed a mob to take a prisoner from them? Such a standard as is claimed for sheriffs has no recognition in any laws of honor.

     It is a false standard of duty; if I may be pardoned for saying it, a cowardly standard of duty.

     Now, Mr. President, objection is made to the word "neglect." Neglect about what? A. man's life, the dignity of the law, the honor of the State. When a man is guilty of neglect at all, as to such a matter, he should be removed. Mob violence is a thing which grows by what it feeds on. Here and there searching


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the public records, are cases which all men admit are excusable excuses outside of the forms of law. In some communities this spirit has grown and grown until in some cases the smallest thief is shot down in the jail. Who does not remember some years ago in Pickens County when three or four prisoners, one of them a woman, were shot down in jail though the charge was larceny. From that day to this no officer or grand jury or power of any kind has ever been able to find out who did it, or willing to declare the names of the criminals. We see lynchings almost every week not for the one crime, but for any crime. Some man is suspected of burning a house, and the honor of the State and the peace of the County is invaded. A lawless mob leads the suspect out to death. And so it goes on from bad to worse. In all these cases the guilty go unwhipt of justice.

     Let us not deceive ourselves. Two-thirds of the executions of prisoners by mobs are due to one of two things, either the cowardice of the sheriff--and I don't think there have been many cases of cowardice--or to a willingness for the mob to succeed, from the false conviction that a Sheriff in fighting for them is fighting not for the law but for some worthless prisoner. In county after county, everybody but the grand jury knowns who did the deed. Case after case of this sort has happened ever brought to the bar of justice. There is no prosecution. No strong voice even condemns it. We owe it to ourselves, we owe it to our children, we owe it to our God, to put a stop to this base indifference to murder, and making excuse for men who will not risk anything for the preservation of human life and the honor of the State. We have laws enough. Let us put a provision in the Constitution that will execute them. That is what the Committee means. If the gentleman asks me if I am unwilling to trust the people of the County. I tell him frankly yes, because the people of the county never find out who commits these crimes. We don't wish the mob and its friends to murder the law. Nobody knows who is in the mob when the authorities investigate it. Yet it is known to everybody else but the officers of the law and the grand jury.

     MR. OATES--Let me ask if a prisoner has not been taken from the Sheriff right in Montgomery, in broad open daylight, and shot to death by a mob and if the Governor did not offer all the reward he could offer and yet nobody was apprehended and no grand jury ever found out who did it?

     MR. JONES--I think there are two cases of that sort instead of one though in one case the prisoner was taken from the police. One prisoner was brought in from West Point, and while the military were forming under orders of the Circuit Judge to protect him, by some hocus pocus the mob found out before the judge, when this man would arrive within three miles of the city


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and they took him and hung him before the military posses could reach him, and the police made no resistance worthy of the name.

     MR. FITTS--They flagged the train at a road crossing.

     MR. JONES--Day before yesterday I read of somebody accused of burning a house. A mob formed, a citizen is murdered, and nobody knows or cares who did it. Every week or so, we read of something of that kind.

     The gentleman from Wilcox (Mr. Jenkins) makes the argument you must not have a law to punish the Sheriff for failing to defend a prisoner after he is in the possession of the law, because forsooth people may sometimes wish to hang a rapist. Let use build up a sentiment that when a man is in the hands of the law he is sacred, sacred from lawless violence, sacred for justice's sake. Every citizen in Alabama is interested. All of our civilization is based on the idea that "no man can be deprived of life, liberty or property without due process of law." Without its enforcement there can be no civilization?no government worthy of the name.

     Public opinion is powerful. It makes war or it makes peace. It protects the helpless when no other power can do it.

     Who does not remember the lone prisoner of Fortress Monroe? Bowed in the agony of suffering and defeat, but undaunted still, cruel captors immured him in a cell of a frowning fortress lashed by the seas and ironed him to insult his people and their cause. No eye looked upon him except to mock him, save that of an all-pitying God. His people were disarmed and prostrate in defeat. Not a hand could they lift to aid him. What broke his shackles? The power of public opinion of the civilized world.

     At another time, when General DeTrobrian led a file of soldiers into the legislative halls of Louisiana and ejected the representatives of the people, what stayed the hand of oppression, and, with a force greater than that of any mailed hand, barred the door of the legislative halls against the soldier, again for generations to come? It was the power of public opinion in New York and the Fast, which burst out quick and grander than the storm, speaking in tone millions could read--"thus far, and no further."

     We ought to be willing, we ought to be anxious, to have and desire the good opinion of mankind. We are looked upon, and I will not say with how much justice, in many sections, as utterly unmindful of the one great duty of government--the sure and steadfast protection of the weak and the helpless. We are thought to be disbelievers in the sanctity of human life--if that life happens to be that of a negro. We are looked upon as tacitly consenting, if not openly approving the right of any body of men


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to mete out death, without trial or evidence, if the suspect can be found, to kill him, not for rape alone, but for any offense against the laws. As Southern men, let us ask ourselves how far appearances justify the belief. Have we stopped mobs at rape? Is not the thirst of mob violence for blood as great in many lesser crimes? And are not our courts open? Is justice administered by our judges or our own juries? How many of these continued outbreaks and assaults upon officers and jails have been punished? We know and the world knows. Does it not behoove us to pause and consider? To devise some remedy? To strike some blow for the sanctity of human life and the honor of our State?

     These mob executions are brutalizing our children, blunting our religion, and undermining our civilization. Can any one in the sound of my voice, rise up and say that this is not so? We are undermining all noble ideals of duty and manhood. When we surrender to any local public opinion, which dominates in some places, that a Sheriff is not bound to take any risks, even to loss of life or limb, in defense of a prisoner, we abdicate all our past and bow down and worship false and base standards of duty. Why should not the Sheriff die at his post as well as the locomotive engineer, or the priest, or the doctor, or the soldier? (Applause).

     We are setting a baleful example to our young sons, who are coming up around us, if we teach that when a prisoner is given to an officer, that officer is free to desert his post of duty, because there may be danger in it. It is not like Alabama or the South to tolerate such a doctrine. Let us declare our faith as to this in our fundamental law. (Applause).

     I do earnestly trust that this last Article framed by this Executive Department will not be touched in a line, but that it will go out from these halls that the law shall be executed, that we despise mob violence, and we intend that human life shall be regarded as sacred, and be taken only by the law. (Applause).

     MR. FITTS--I want to make a motion.

     THE PRESIDENT--The gentleman from Pike is recognized.

     MR. FITTS--Will the gentleman yield, I want to make a motion to continue the session.

     MR. SAMFORD--We have fifteen minutes yet. I desire to say so far as I know, every thought of my distinguished friend from Montgomery is of the highest nature, that for him the highest models of honor are selected, that his high-mindedness is not surpassed in the State, but when he says that he is not willing to trust the administration of the laws of this land to the people of the State, he raises a standard to which I am not willing to subscribe.


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OFFICIAL PROCEEDINGS

     MR. CUNNINGHAM--He never said that.

     MR. SAMFORD--The only difference between the gentleman from Montgomery and myself is the method by which the same end may be obtained. There is a law already for the impeachment of the Sheriff. There is a law already that wherever a Sheriff in this county fails to be at his post, like the captain of a great ocean steamer, or the locomotive engineer with his hand on the throttle, as he goes down to death and destruction, that he shall be impeached and removed from office.

     Gentlemen on the other side of the controversy contend that the Supreme Court is the place where they ought to be tried, and away from the people who elected them, and away from the jurisdiction before whom they had a right to be heard, at the Capital of the State. Where would this thing lead? I understand men have been shot down on the streets of Montgomery, shot in the back, and no indictments have ever been returned by the grand jury of Montgomery County.

     MR. JONES--I do not understand that such is the case; but if that be so we should have some tribunal who would indict and if there are none in the county we should seek them elsewhere.

     MR. SAMFORD--Is that an argument that the Supreme Court ought to have jurisdiction in this county and not the people of Montgomery in the enforcement and punishment of crime? Can you say that the people of Montgomery are not capable of administering the criminal laws of this State and therefore the administering of them ought to be put in the hands of the Supreme Court of Alabama? You can see where it leads to. If you start with sheriffs, if you adopt the plan of the gentleman from Montgomery with sheriffs, why not go on and change the venure from different counties and allow the juries in the different counties to try crimes in other counties, and allow the grand jury of one county to return indictments where offenses have been committed in another county.

     MR. FOSTER--Are not chancellors and probate judges now impeached before the Supreme Court?

     MR. SAMFORD--Yes, but they are part of the judicial system of the State and for that reason probably it was provided that their impeachment should take place before the Supreme Court of the State.

     MR. deGRAFFENREID--Are not the sheriffs part of the Executive Department?

     MR. SAMFORD--Yes, but the Executive is not asked to impeach him. Whenever you give the Governor power to appoint the sheriff I will subscribe to the doctrine that he may be permitted to remove him, but not until then. But I do subscribe to


893

CONSTITUTIONAL CONVENTION, 1901

the doctrine that the probate judges ought to be impeached by the Supreme Court of the State, with circuit judges and chancellors it is different, they are responsible to no particular subdivision in the State. Circuit and chancery divisions are different from county organizations entirely.

     MR. FOSTER--Are not probate judges county officers?

     MR. SAMFORD--They are and I was remarking that I do not subscribe to the doctrine that they ought to be impeachable only by the Supreme Court. I am opposed to taking the power to administer the laws of the State out of the hands of the people of the county in which crimes or the offenses have been committed.

     MR. HOWELL--Is it it not the law that the Governor can remove the Tax Assessors and Tax Collectors when cause exists for it?

     MR. SAMFORD--I think so, but that does not change the proposition that I am stating, that I am opposed to it.

     It may be the case that in other States the Supreme Court is the only court of impeachment, but it does not necessarily follow that that is right because it is so.

     The only difference of opinion between us in the court before which these matters shall be tried and in order for us to adopt this section we have to say to the citizenship of this State "You are not worthy of trust in the administration of the laws of the land" and whenever you do that then you make a long step in the direction of worse things than we have ever experienced in this State. And when this convention makes such an affront to the people of the State, I fail to see how they can go back and ask them to ratify the constitution that we are now about to adopt. I do not know what the sentiment of the convention is upon it, but it is wrong in principle and I have done my duty, as I conceive it, by my State in raising my voice against it.

     MR. O'NEAL--I had not intended to add anything in favor of this provision after the very eloquent remarks of the distinguished gentleman from Montgomery, but I cannot refrain from saying a word in reply to the gentleman from Pike. He says the adoption of this provision will be an affront to the people of Alabama. Does the gentleman believe that the people of Alabama favor lawlessness in this Commonwealth?

     MR. SAMFORD--Allow me, Mr. President, to set myself right with the gentleman. The people do not favor lawlessness, nor do I, and I do not favor mob violence. I simply said, and I correct the gentleman now by saying I shall never endorse the doctrine that the people of this State are not capable and worthy to administer the criminal laws of the State.


894

OFFICIAL PROCEEDINGS

     MR. O'NEAL--I understand the gentleman to say this, but I thought it was not his meaning, but the idea was that there was a large and influential class of office holders who would oppose the ratification of the Constitution if we adopted this provision. If there is a class of office holders in this State who are opposed to the enforcement of law and order in this Commonwealth I would let them understand now and forever that we propose in this convention to see to it that every man who is in the custody of the law, every helpless prisoner, is protected, and that if the ratification of this constitution cannot be secured except by our pandering such sentiments as that, I would rather see the constitution go down in defeat.

     MR. BAREFIELD--In the sixth line of this section it says "And the Governor when satisfied, after hearing the sheriff that he should be impeached, may suspend him from office for such tune as he may think proper until the impeachment proceedings are finally disposed of." The Governor then could order the sheriff suspended.

     MR. O'NEAL--Yes.

     MR. BAREFIELD--Until the Supreme Court passes on the cases and they could hold the matter up for the full term of the sheriff's office, four or six years, no matter how innocent the sheriff may be.

     MR. O'NEAL--This section simply provides, that any sheriff who, by reason of cowardice, connivance, neglect, or other grace fault of the sheriff permits a prisoner to be put to death, when the Governor is satisfied of that fact, can be suspended by the Governor from office. Does any delegate deny that a sheriff who, by reason of cowardice or neglect of duty, permits a prisoner to be put to death ought to be suspended pending trial?

     MR. SAMFORD--Who is to pass on that?

     MR. O'NEAL--The Governor can pass on it pending trial by the Supreme Court. The Governor who is the Chief Executive officer of the State. The Constitution clothes him with the duty of seeing to it that the laws are faithfully executed. What folly would it be to clothe him with that power and yet say to him you have no control over the inferior executive officers of the commonwealth, the inferior executive officers can permit murder in the jails of the State and yet you be powerless to enforce the law.

     THE PRESIDENT--If it is the pleasure of the Convention to dispose of this article this evening, it will be necessary that some motion to suspend the rules be made.

     The delegate from Lauderdale yielded for a motion in this regard.


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CONSTITUTIONAL CONVENTION, 1901

     MR. FITTS--I move that the rules be suspended and that the Convention stay in session until the pending section is disposed of.

     Leaves of absence were given Mr. Jackson and Mr. Jones for the remainder of the afternoon.

     A division being called for on the motion of the delegate from Tuscaloosa.

     MR. SAMFORD--I rise to a point of order. There is no quorum voting.

     It appears there is a quorum present.

     MR. SAMFORD--I give notice, that on the adoption of this section I will make a demand for the yeas and nays and make the point of no quorum.

     The motion to continue the session vas cleared carried.

     MR. O'NEAL--The statement is made by the gentleman from Pike that the sheriffs are not responsible to the Chief Executive of the State in the performance of their duty.

     THE PRESIDENT--The Chair will ask the doorkeeper to notify members not to leave as the point of no quorum will be made and the Chair would like to retain a quorum.

     MR. O'NEAL -- Just a word and I shall conclude. The paramount purpose of this Convention is to remove from our suffrage a certain element in this State, the idle and the unworthy and the purchasable vote. While that is our purpose and it is for the best interest of the State and for the good of all its citizens that we undertake to purify and reform our suffrage by removing this element from our electorate, let us say to those whom we deprive of the elective franchise by this Constitution, we will do it and we do it because it is for the interest of the people of the State and of good government and for the purity of the ballot, but we intend to see to it that the strong arm of the law will protect you in all your rights of person and property in this commonwealth. We will extend and accord to you that justice which the strong always owe to the weak. That is the purpose of this section, and that purpose should commend itself to every delegate within the sound of my voice.

     I cannot endorse the sentiment of the gentleman from Wilcox when he says it is the duty of the sheriff to risk his life to protect his prisoner. It is his duty to risk and even to sacrifice his life if necessary, to protect the prisoner against mob violence because mob violence is anarchy and mob violence in this Commonwealth. I apologize to the Convention for these remarks at this late hour and I move the previous question upon the amendment.


896

OFFICIAL PROCEEDINGS

     MR. JENKINS--I did not say it was not the duty of the Sheriff but I said there was not a Sheriff in Alabama who would risk his life when there was no chance of it doing any good.

     MR. O'NEAL--I withdraw the motion for the previous question and move to lav the amendment on the table.

     A vote being taken the amendment was tabled.

     MR. BOONE--I offer an amendment which has been accepted by the Committee and the Chairman of the Committee.

     The amendment was read as follows: "Amend Section 30 in line seven after the word `impeach' by adding `may suspend him from office until the impeachment proceedings are decided'."

     The amendment was carried.

     The amendment offered by Mr. Murphree was read as follows :

     "Amend Section 30 by inserting in the second line after the word `and' `he and his deputies shall be ineligible to such for four years after the term of the Sheriff expires.' "

     A vote being taken on a motion to table this amendment made by Mr. deGraffenreid, the same was tabled.

     MR. BLACKWELL--I offer an amendment.

     Amend report of the Committee on Executive Department by adding to the 30th section: "If the Sheriff shall be impeached, he shall not be eligible to hold any other office in this State during the time for which he was elected as Sheriff."

     MR. JONES (Montgomery)--That is the law already.

     MR. BLACKWELL--No, it is provided that if he is impeached during the balance of the term for which he is elected he cannot hold "any other office." Without this amendment if there were sympathy in the community for the Sheriff after he had been impeached and another office even a better one should be open, by an election they might as a reward to him if they were in sympathy with him give a better office than the one he had lost.

     MR. deGRAFFENREID--I move the adoption of the amendment.

     MR. BAREFIELD--I move to lay the amendment on the table.

     A vote being taken on a division--

     MR. SAMFORD--I make the point of order that there is no quorum.


897

CONSTITUTIONAL CONVENTION, 1901

     THE PRESIDENT--The Chair will proceed to count a quorum.

     MR. JENKINS--I move that we adjourn.

     MR. deGRAFFENREID--I had moved the adoption of the amendment.

     A vote being taken the amendment was adopted.

     MR. JENKINS--I move to adjourn.

     THE PRESIDENT--The motion is out of order.

     MR. JENKINS--I rise to a point of order, that a motion to adjourn is always in order.

     THE PRESIDENT--The Convention has established the rule that this Convention shall remain in session until the pending matter is disposed of.

     MR. JENKINS--Does the Chair rule that a motion to adjourn is not in order?

     THE PRESIDENT--Not while this question is before the House.

     MR. OATES--A motion to adjourn is always in order, but the gentleman has to be recognized by the presiding officer before he can make it.

     MR. BURNS--I have an amendment.

     The amendment was read as follows: Amend Section 30 by striking out all after the word "successor" in the third line.

     On motion of Mr. deGraffenreid this amendment was tabled.

     MR. deGRAFFENREID--I have an amendment in the hands of the Secretary.

     Amend Section 30 by striking therefrom the words "such office as his own successor" in the third line and insert in lieu thereof "election or appointment to any office in this State for one year after the expiration of his term."

     MR. deGRAFFENREID--The effect of that amendment is to place the Sheriff so far as re-election or election to any other office is concerned, upon the same footing that the Governor now occupies.

     Dissent was audibly manifested.

     MR. deGRAFFENREID--Allow me to explain and then you can vote upon it.


898

OFFICIAL PROCEEDINGS

     It is already the law that the Sheriff cannot succeed himself, but we know that under the practical operation of that law the Sheriff is always a candidate for re-election, not in his own name, but in the name of his chief deputy, and the Sheriff, if he succeeds in electing that deputy, still administers the office. There are now in the State of Alabama many men who either directly or indirectly through the election of their deputies have held office of Sheriff three or four terms, when it has been the purpose of the law-makers, as I have said, to remove from the Sheriff any temptation to exercise the duties of his office for political purposes to secure his own election.

     By adopting this amendment you carry into effect the purposes of the law?makers when they declared that the Sheriff shall not be his own successor.

     The Sheriff as we all know is the chief executive of the county, a man of great power. Under the common law, in England, the sheriff was Earl, the proudest of the nobility next to the Duke, ranking all other orders. He was the principal figure of his county, and upon him was cast the burden of the administration of the law. As the sheriff is, in his county, what the Governor is in the State, the chief executive officer, it seems to me that both should be placed on the same footing. They belong to the same department of the State and the duties of both are to see to the due execution of the law.

     MR. CUNNINGHAM--I move the previous question on the Section and all pending amendments.

     MR. JENKINS--I rise to a point of order and I call the attention of the Chair to Rule 26, that a motion to adjourn is always in order.

     MR. WILLET--I rise to a point of order that the rules were suspended.

     THE PRESIDENT--It was submitted to the House and the order of the House was that the Convention should continue in session until the pending Section was disposed of. If the Chair was in error in overruling the point of order on that ground, the ruling of the Chair was nevertheless proper upon the other ground stated by the gentleman from Montgomery, that the Chair had not recognized the gentleman from Wilcox and the gentleman had not the floor to make the motion to adjourn, so that whether the Chair stated correctly the reason, the result was correct.

     A vote being taken the main question was ordered and a further vote being taken on the amendment, the result on a division was 43 ayes and 26 noes.

     MR. SAMFORD--I rise to a point of order. There is no quorum, and I demand a call of the house.


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CONSTITUTIONAL CONVENTION, 1901

     MR. WILSON--I call attention to the fact that if there is no quorum this amendment is not adopted. I am opposed to the amendment cutting off the sheriffs succeeding to any other office and I make the point of order that there is no quorum voting. You have no right to bring people in and vote them.

     MR. OATES--The delegate may be right in opposing the amendment, but he is mistaken in one thing. The call of the House brings absent members in but it cannot vote them. The vote has to be taken over again.

     MR. BURNS--I rise to a point of order. An hour was set for the Convention to adjourn and how many amendments have gone out since that was done?

     THE PRESIDENT--I overrule the point of order.

     MR. O'NEILL (Jefferson)--I make the point of order that there was no quorum present when the previous question was ordered, and I now have a right to offer an amendment.

     THE PRESIDENT--The point of order is overruled.

     MR. CUNNINGHAM--Rule 33 says, "Twenty-five delegates shall have power for absent delegates to move a call of the House; but no call of the House shall be made except on the concurrence of a majority of the delegates present. On a point of no quorum being made, the call of the cannot be ordered to this Convention cannot be ordered, unless a majority of the delegates present shall vote it." The purpose is to take from one delegate the power to stop the proceedings of the Convention by demanding continued calls of the House.

     MR. deGRAFFENREID--I move a call of the House. There are eighty-three members in the House and a roll call will develop it.

     THE PRESIDENT--A call of the House is moved. Is it sustained.

     The call was sustained.

     MR. SAMFORD--I do not desire to interpose dilatory tactics. I am informed there is a quorum present and I will withdraw the call. I did it thinking there was no quorum, and there was not at that time.

     MR. WILSON--I renew the point that no quorum voted on the motion on that amendment.

     MR. O'NEILL--I make the point the gentleman is too late.

     THE PRESIDENT--The Chair thinks the gentleman made his point in time, and in the opinion of the Chair the point is well taken.


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OFFICIAL PROCEEDINGS

     MR. WHITE--I submit if a quorum is present, which there is, it don't make any difference whether the quorum votes or not.

     MR. JONES--The first business when a quorum appears is to take up business where we left off when the lack of a quorum appeared. Therefore I move that we take up business at that point.

     MR. JENKINS--I make the point of order if it appears a quorum was not voting a motion is lost and the only way they can reach it is to reconsider it.

     MR. WILSON (Clarke)--In response to the point made by the gentleman from Jefferson, I insist that the Chair can know and does know that a quorum did not vote because the vote was taken by a rising vote and under the last clause of Rule 33 it is provided "a majority of the Convention shall be a quorum to transact business." So I say that no business is done unless a quorum does vote. I agree with the point of the gentleman from Montgomery. I know it is ruled frequently otherwise, but the better rule seems to me to be if no quorum is voting, nothing is done.

     MR. deGRAFFENREID--A good many of the delegates did not vote on either side. There is a quorum present.

     THE PRESIDENT--If a quorum didn't vote and that appear upon the face of count it is competent for any gentleman to make the point of no quorum and the Chair sustains the point. Thereupon a call of the House is demanded and it has not yet appeared that there is a quorum.

     MR. WILLET--Can you ascertain whether there is a quorum without a call of the house?

     THE PRESIDENT--A vote was taken on a division and there was not a quorum voting.

     MR. WILLET--Some delegates may not have voted on the division and can you ascertain a quorum or no quorum without a call of the house?

     MR. JONES (Montgomery)--Is there a quorum now present?

     THE PRESIDENT--The Chair don't know.

     MR. JONES (Montgomery)--Can't the Chair count?

     THE PRESIDENT--The Chair could.

     MR. JONES--I submit if there is no quorum voting when a quorum appears the unfinished business is taken up right where it was left off.


901

CONSTITUTIONAL CONVENTION, 1901

     MR. deGRAFFENREID--In order to settle whether there is a quorum I move the adoption of my amendment and on that the previous question was ordered and I demand the yeas and nays.

     The roll call resulted as follows :

AYES

Messrs. President,

Handley,

Pitts,

Ashcraft,

Hodges,

Reynolds (Henry),

Beddow,

Hood,

Searcy,

Blackwell,

Howell,

Sloan,

Boone,

Jones, of Wilcox,

Taylor,

Brooks,

Kirk,

Thompson,

Browne,

Kyle,

Weakley,

Case,

McMillan (Baldwin),

Weatherly,

Cofer,

McMillan (Wilcox),

White,

Cunningham,

Malone,

Whiteside,

deGraffenreid,

Maxwell,

Willet,

Espy,

Mulkey,

Williams, (Barbour),

Foster,

NeSmith,

Wilson (Wash'gton).

Freeman,

Norman,

 

Graham, of Talladega,

O'Neal (Lauderdale),

 

 

Pillans,

 

Totals--44.

NOES

Barefield,

Grayson,

Phillips,

Bartlett,

Henderson,

Porter,

Beavers,

Jenkins,

Robinson,

Burns,

Jones, of Montgomery,

.Roger (Sumter),

Byars,

Knight,

Samford,

Cardon,

Leigh,

Sanders,

Carnathon,

]Locklin,

Sanford,

Chapman,

Martin,

Smith, Morgan M.,

Davis, of DeKalb,

Murphree,

Sollie,

Eyster,

Oates,

Spears,

Ferguson,

O'Neill (Jefferson),

Walker,

Fitts,

Pearce,

Williams (Marengo),

Graham of Montgomery,

Pettus,

Wilson (Clarke),

 

 

 

Totals--39.

     During roll call:

     Mr. Eyster did not vote. The President's attention was called and the delegate was requested to vote.

     MR. WATTS--I would vote aye, but am paired with Mr. Jones of Hale, who would vote no.

     MR. WILSON--I desire to give notice that on Monday I will move to reconsider the vote.


902

OFFICIAL PROCEEDINGS

     MR. WHITE--I move to reconsider this vote and move to lay that motion on the table.

     THE PRESIDENT--The motion to reconsider, under rule, lies over one day.

     MR. WHITE--This is a motion to table, not to reconsider.

     THE PRESIDENT--The motion to reconsider is not before the House until Monday. But for the rule requiring it to go over until Monday it would be in order.

     MR. deGRAFFENREID--I move the adoption of the Section as amended.

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

     The call was not sustained.

     A vote being taken on a division stood 54 yeas, 22 noes.

     MR. JENKINS--I rise to a point of order, that the section is lost for the want of a quorum.

     THE PRESIDENT--In the opinion of the Chair a quorum failed to vote.

     MR. WHITE--I ask a call of the house.

     MR. MALONE--I make the point that the Chair just ascertained a quorum and nobody has left.

     THE PRESIDENT--A quorum is present, and the Chair cannot understand why they won't vote.

     A verification of the vote was had and showed 56 ayes and 22 noes and the section was adopted.

     MR. WILSON--I move a reconsideration of the vote by which the section was adopted.

     MR. HOWELL--Would it be in order to lay that motion on the table?

     THE PRESIDENT--Not until Monday morning.

     MR. BROWNE--I have an amendment to the article as reported by the Committee.

     MR. PILLANS--Did we not by our resolution resolve to stay in session until we disposed of the section then under consideration, and is it not time for adjournment?

     MR. BROWNE--The motion was until the pending measure which would include the whole article.

     Mr. Browne's amendment was read.


903

CONSTITUTIONAL CONVENTION, 1901

     Amend the report of the Committee on Executive Department by inserting the following Section: Sec. 26. The Governor, Attorney General, Secretary of State, Auditor, and Treasurer, shall constitute a Board of Equalization, the duty of such Board to be to adjust and equalize the valuation of real and personal property for taxation among the several counties of the State and to perform such other duties pertaining to the equalization of taxable values of property among the counties as may be prescribed by law.

     MR. BROWNE--I consider that is a very important ordinance and desire that it will be discussed in brief upon Monday when we have all the members present. I now move that we adjourn.

     MR. CUNNINGHAM--Will the delegate permit me to introduce a short and spicy resolution to be referred?

     The consent was given and the resolution was read as follows:

     "Resolved. That after Tuesday next, no per diem will be allowed to the delegates to this convention who are absent, except those who are granted leaves of absence on account of sickness."

     The resolution was referred to the Committee on Rules.

     MR. SAMFORD--I move that the amendment offered by the delegate from Talladega be laid on the table.

     A vote being taken on a division, a quorum did not vote.

     THE PRESIDENT--There is a quorum present and I cannot understand why gentlemen will not vote.

     A second vote being taken on a division, the amendment was tabled.

     The convention, on motion, then adjourned.