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______________        

THIRTY - SEVENTH DAY

MONTGOMERY, ALA., Friday, July 5th, 1901.

The Convention met at 9:30 a. m. pursuant to adjournment, was called to order by the President, and opened with prayer by the Rev. Mr. Patterson, as follows:

O Lord how excellent is Thy name in all the earth. Before the mountains were brought forth, or ever Thou didst form the world, even everlasting to everlasting, Thou are God.  Thou art the same yesterday, today and forever.  Because Thou changest not, in Thy mercy, and Thy love, therefore the sons of men are not consumed.  Thy throne is the throne of glory: Thy place is the place of wisdom and of righteousness.  Thou art worthy to be praised and to be held in reverence by all Thy people.  As we Thy servants come into Thy presence this morning, we invoke Thy blessing and pray for Thy guidance.  We thank Thee for all past blessings that Thou hast bestowed upon our country since the day of its birth, until the time when in strength and power it stands amid the nations of the earth, and we pray that Thy blessing may continue to rest upon it, and Thy presence go with us and Thy counsel and wisdom be given to direct.  That all things that are done here and elsewhere in counsel and deliberation may be for the glory and honor of our God, and for the well being of all the citizens of this great Commonwealth.  Be with us now we pray Thee as we wait before Thee and in the work of this day.  Give us Thy presence and Thy blessing, and at last receive us to Thyself for the Redeemer's sake, Amen.


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Upon the call of the roll 116 delegates responded.

Leaves of absence were granted to, Mr. Miller (Marengo) for today and tomorrow on account of sickness; Mr. Morrisette for Friday, Saturday, Monday and Tuesday next, on account of sickness; Mr. Boone for Tuesday, July 2nd and July 3rd, on account of sickness in his family; Mr. Jackson for this morning's session on account of sickness; Mr. Sollie for today owing to sickness; Mr. Graham of Talladega for Wednesday last; indefinite leave for Mr. McMillan (Baldwin) on account of sickness in his family, commencing with today; Mr. Samford (Pike) for today and tomorrow; Mr. deGraffenreid for Saturday and Monday, owing to sickness in his family; Mr. Thompson (Bibb) for last Wednesday; Mr. Howell for Wednesday last; and Mr. Freeman for Wednesday last.

The report of the Committee on the Journal was read, stating that the journal for the thirty - sixth day had been examined and found to be correct, and the same was adopted.

Ordinance No. 409 by Mr. Carmichael (Colbert).

To provide for the filing and arranging; of the papers and documents, pertaining to the Constitutional Convention, by the Secretary of the Convention; also to provide fear the delivery by the Secretary of a correct copy of the journal of the Convention to the Public Printer with a proper index thereto: also to provide for the superintendence of the printing of said journal by the secretary; also to make appropriations for the compensation of said secretary for his services.

Be it ordained by the people of Alabama in Convention assembled, That the Secretary of this Convention shall within forty days after its adjournment file label and arrange the journal of said convention all the papers and documents pertaining to said convention in the office of the Secretary of State.  He shall also copy and deliver to the public printer the journal of said Convention with a proper index thereto within said forty days . He shall also superintend the printing, and read and correct the proof of said journal.

Be it further resolved. That for the services herein required of said Secretary, he shall receive the sum of five hundred dollars ($500) and upon the production by the said Secretary of the receipt of the Secretary of State for such papers, journal and documents so required to be filed and labeled together with the receipt of the public printer for a copy of the journal of the convention, the State Auditor shall draw his warrant upon the State Treasurer for said amount herein provided and the said warrant shall be paid by the State Treasurer.

Be it further resolved, That there is hereby appropriated


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out of any money in the State Treasury not otherwise appropriated the sum of five hundred dollars ($500) for the compensation of the said Secretary for the said services herein required of him.

Petition No. 11 by Mr. Murphree (Pike).

The State of Alabama,

Pike County, Brundidge.

The Hons. Joel D. Murphree, J. C. Henderson and W. H. Sanford.

Dear Sirs - We, the undersigned citizens of Pike County, petition the Convention through you for the following items of interest to us to be incorporated into the Constitution.

First - We desire that the Railroad Commission that we now have be abolished and in lieu thereof create a commission to be elected by the people and paid out of the State Treasury as other officers are paid.

Second - We ask that the membership of the General Assembly be not increased before the year 1920.

We believe that the interest of the people and the State will be as safe in the hands of one hundred representatives and thirtythree Senators as with a greater number.

Third - We wish to say to you, that we have at least 4,000 farmers in Pike County, the greenest of whom know very well who pays the 50 cents per ton tax on guano.

We protest against the action of the Convention last week on that matter and respectfully ask that the question be reconsidered and future legislatures be forbidden to levy a higher tax on fertilizers than the actual expense of analysis.

If you will not do this please say in the organic law that coal, iron and other products may be taxed.

Guano is used by one class ; other products by all classes.

We understand that a great lobby hovered about the Convention while this question was pending who came from all parts of the State, from the University down to the guano school, who thought it would be very unwise to do anything that would stop the collection of this tax.

We would respectfully submit to the Convention that but few of us down here knew that the Convention was doing about the tag tax and we were and are too busy with grass and weeds to journey to Montgomery to protest against an unjust tax.

Respectfully submitted,


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Griffin, T. A. Collier, S. M. Waters, J. M. Logan, J. H. Lawson, J. B. Collier, J. E. Helms, W. D. Lee, R. O. Lawrence, H. W. Catten, G. A. Griffin, W. B. Kimball, J. B. Colley, D. C. Allen, J. W. Robinson, F. A. Waters, T. G. Carlisle, W. W. Logan, J. F. Hightower, W. L. Fleming, D. J. Helms, Jonathan Williams, J. E. French, F. C. Bass, H. P. Griffin, H. Franklin, D. D. Stephens, Fax French, E. A. Butter, A. S. Dickerson, W. H. Bolger, N. W. Galloway, Jasper Johnson, J. H. Childers, W. R. Pierson, James O. Ramsey, Joseph Shepherd, L. C. Blickinson, J. M. Conner, M. Lightfoot.

Ordinance No. 410, by Mr. Reese:

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

Article—

Sec. — . In all prosecutions for rape, adultery, fornication, sodomy or crime against nature, the court, may in its discretion, exclude from the court room all persons except such as may be necessary in the conduct of the trial.

Referred to the Judiciary Committee.

Ordinance No. 411, by Mr. Reese:

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

Article IV.

Sec. — . The Legislature shall enact penal statutes to suppress the evil habit of using obscene and profane language in the hearing of children.

Referred to Committee on Legislative Department.

Resolution No. 222, by Mr. Reese:

Whereas, the chief and most important purpose for which this Convention was called, was and is the revision of the provisions relating to Suffrage and Election, and

Whereas, more than 46 days have passed since the assemblage of this Convention without any consideration by it of said provisions, therefore

Be it resolved, that immediately after the conclusion of the consideration of the report of the Committee on Taxation, the report of the Committee on Suffrage and Elections be and the same is hereby made the special order of the Convention, and former orders and resolutions of the Convention to the contrary are hereby revoked.


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Resolution No. 223, by Mr. Mac A. Smith:

Resolved, by the people of Alabama, in Convention assembled, that it is the sense of this Convention that the General Assembly should, as early as practicable, so amend the laws of said State as to more certainly punish the offense of vagrancy, which is becoming such a common and alarming evil in many sections of Alabama.

MR. SPRAGINS - I wish to offer this petition, and move that it be read and referred to the Committee on Corporations.

The motion was carried.

The petition was read as follows:

Petition No. 12, by Mr. Spragins:

Huntsville, Ala., June 12, 1901.

To the Honorables A. S. Fletcher, R. W. Walker and R. E.

Spragins, Emmett O'Neal and John W. Grayson, Members of Constitutional Convention, Montgomery, Ala.:

Dear Sirs - This is to say to you that at the meeting here this evening of the Chamber of Commerce of this City, the following resolution was introduced and passed unanimously, which expresses the wishes and views of our body on the question of having a Railroad Commissioner elected and paid for by the people, and you are hereby respectfully requested, as our representatives in the Constitutional Convention, to give this matter a thorough investigation and use your influence both inside and outside of the Convention, to secure a passage of an ordinance as will give us such a commission as we desire. We believe that after investigating the matter you will find that the relief which we seek from unjust taxations, that are now being imposed upon us by the railroads of this State, could best be relieved by a Railroad Commission, elected and paid by the people. We herewith beg to give you the resolution as passed by our body and as above referred to:

"We respectfully represent that whereas the Railroad Commission appointed by the Governor and paid by the railroad has, proven an entire failure, and whereas the shipper and consumer should have some representation in the naming of rates and making rules by what is otherwise alien and arbitrary power. That whereas, the express, telephone, telegraph and railroad franchises are given by the State, the power of these franchises to tax should be limited by the State. We therefore request that your honorable body will give the State Commission, elected and paid by the people, and place all franchises, which have power to tax, within their review."


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We, the undersigned, are authorized to transmit you the above, which is respectfully submitted.

R. E. Pettus, President.

F. J. Thompson, Secretary.

On the call of the standing committees:

MR. COLEMAN (Greene) - I understand the report of the Suffrage Committee has been printed and is ready for distribution. I desire to state that in the first line on page two of the report, not a part of the ordinance, but the report of the committee, the word "spent" has been used instead of the word "spare ". 'That is about the only defect I find in this copy, and I do not think it is sufficient to delay the distribution of the printed report.

THE PRESIDENT - The Chair will call the attention of the delegates to the error in the printing of the report of the Committee on Suffrage, on the first line on page two, where the word "spent" is used instead of the word "spare."

The Executive Department—

Mr. Jones (Montgomery) - Submitted a report for the Committee on the Executive Department as follows:

Mr. President, the Committee on Executive Department direct me to return Resolution No. 200. with the recommendation that it do not pass. In view of the extensive and protracted debate over the matter to which it relate, the committee deems it entirely unnecessary to make any argument in support of their adverse report.

Thomas G. Jones. Chairman.

Resolution No. 200, by Mr. Burns (Dallas):

Whereas, this Convention has seen proper to reject all amendments to Article V, looking to the relief of Sheriffs, and whereas as the Supreme Court has already been burdened with sufficient labors; and

Whereas, local government should be maintained and for other valid reasons.

Resolved. That it is the sense of this Convention that Section 30, of Article V, should be stricken out and the Sheriffs should be left on the same footing as other county officers.

Referred to the Committee on Executive Department.

MR. HEFLIN (Chambers) - I want to ask the chairman of the Committee on Executive Department what has become of the Minority report?


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CONSTITUTIONAL CONVENTION, 1901

MR. JONES (Montgomery) - The Minority report is on the ordinance offered by the gentleman from Chambers. The minority did not dissent as to this. They thought one was enough, I suppose.

MR. HEFLIN (Chambers) - Wasn't your report and some amendments made on the ordinance?

MR. JONES - No, sir; not on the ordinance offered by the gentleman from Dallas, or his resolution.

The report of the Committee on Ordinance No. 408 was read as follows:

Report of the Committee on Executive Department on Ordinance No. 408:

Mr. President, the Committee on Executive Department to whom was referred Ordinance No. 408, direct me to return the same with the recommendation that it do not pass. It proposes to change the present Constitution and the article on the Executive Department adopted by this Convention so as to make Sheriffs eligible as their own successors, and to change the provisions of the article adopted by the Convention to the mode of impeachments of Sheriffs.

All these matters have been so frequently discussed before the Convention, and it has so frequently acted adversely to the principle sought to be enacted by the ordinance herewith returned, that the committee refrains from any argument in support of its adverse report.

Thomas G. Jones, Chairman.

The Minority report of the committee was read as follows:

Minority report of Executive Department:

We, the undersigned members of the Committee on the Executive Department, do not concur in the Majority report on Ordinance No. 408, introduced by Mr. Heflin of Chambers.

We recommend the adoption of the ordinance as amended by us, which is as follows:

An ordinance entitled Section 28 of Article V:

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

A Sheriff shall be elected in each county by the qualified electors thereof, who shall hold his office for the term of four years, unless sooner removed, and he shall be ineligible to such office as his own successor. Vacancies in the office of Sheriff


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shall be filled by the Governor, as in other cases; and the person appointed, shall continue in office until the next general election in the county for Sheriff, as provided by law.

The Sheriff may be impeached or removed from office in the manner and for the causes mentioned in Article VII of this Constitution.

Be it further ordained that Section 28 of Article V., which was finally passed on July 2, 1901, be and the same is hereby repealed.

T. W. Hodges,

M. S. Carmichael,

M. M.. Smith.

THE PRESIDENT - The ordinance will lie upon the table and be printed. Is it the pleasure of the Convention that the report of the Committee shall also be printed? The Chair has several times called attention to the fact that the rules provide only for printing the ordinances.

MR. WILLIAMS (Marengo) - I move that the report of the committee be printed, along with the ordinance, including the minority and majority reports both.

THE PRESIDENT - What is the pleasure of the Convention as to the resolution? To take the same course?

MR. JONES - Unless the gentleman from Dallas desires it, I do not see any need to print it at all, because it is the same old straw we have been threshing over for days. Does the gentleman from Dallas wish to have his resolution reported back printed ?

MR. BURNS - I suppose it will be printed in the report. The stenographers take down everything, word for word, that is said, and it will be printed there.

The motion to print the reports, minority and majority, and ordinances was carried.

MR. JONES - There is one other matter that I forgot to report. The Committee requested me to return to the Convention the petition of the Sheriffs, Clerks and Registers. The committee had already acted upon so much of the petition as referred to the article on Executive Department, and they ask me to return it and that it be referred to the Committee on the Judiciary. It seems to relate to matters coming up before that committee.

The petition was received and referred to the Committee on Judiciary, as requested.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT - The next business before the Convention is the consideration of the report of the Committee on Taxation.

MR. WALKER - I believe when the Convention adjourned day, before yesterday it had under consideration the amendment offered by the gentleman from Lauderdale, to section 10 of the committee's report.

THE PRESIDENT - And there is an amendment pending by the gentleman from Mobile, an amendment to the amendment of the gentleman from Lauderdale.

MR. WALKER - Two amendments being before the house, I understand another one is not now in order. Objection is made to the section as reported by the committee---

THE PRESIDENT - The Chair will call the attention of the gentleman to the fact that the gentleman from Lauderdale has the floor on that proposition.

MR. O'NEAL (Lauderdale) - I am willing to yield to the gentleman from Madison, provided I am recognized after the conclusion of his remarks.

THE PRESIDENT - The Chair does not entertain any proviso. It will take into consideration the application of the gentleman when made.

MR. WALKER - Objection was made to the provisions reported by the committee that the operation of the section would prevent the acquisition by municipal corporations of public utilities, in reference to which the indebtedness would not bear upon the revenues of the city, because of the possibility of arrangements being made by which those utilities could be made to bear the burden.

Objection on the other hand was made to the amendment offered by the gentleman from Lauderdale, on the ground it practically amounts to dispensing with all limitations upon the debt creating power of municipalities. It occurs to the in reference to each of these objections there is considerable force. We do not want in the first place, to tie the hands of municipalities so that they will be unable to acquire certain conveniences of municipal life, that may be acquired in such a way as not really to create additional burdens upon the revenues from taxation of the municipality. On the other hand I take it this convention must recognize the necessity of fixing some limitation upon the power of municipalities to create debts in any direction, and the limitations which have been suggested before the Convention by each of these ordinances have in view really the limiting of the capacity of municipalities to make debts, and I assume that it is not


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the purpose of this Convention to leave it free to the municipalities to create debts beyond their capacity to pay, and the argument that this debt creating capacity should be left untrammeled because of the good things that might be acquired by the municipalities, is no reason for leaving it without limit. The limitation upon municipalities should stand very much upon the footing that the limitation upon individuals creating debts, and that the limitation should be the capacity of the individuals or of the municipalities to pay those debts. In order to meet, however, the objections that have been suggested to the plan of the Committee on the one hand, and to the plan of the amendment on the other hand, I have undertaken to frame an amendment to the ordinance as reported by the Committee, which I propose to offer when the opportunity presents itself, or when the parliamentary situation is such that an amendment can be offered, and I desire now to have the proposed amendment read as a part of my remarks.

The amendment was read as follows:

Sec. 10. No city, town or other municipal corporation shall become indebted in an amount exceeding 5 per centum of the taxable value of the property thereof; Provided, that for the construction or purchase of waterworks, gas or electric light plants, sanitary sewerage, or street or sidewalk improvements, an additional indebtedness not to exceed 3 per centum of such taxable value may be created so as to be a charge upon the revenues from taxation of such city, town or other municipal corporation, and that any debts or liabilities in excess of such 3 per centum limitation incurred by such city, town or other municipal corporation in the construction or purchase of water works, gas or electric light plants, sanitary sewers, or street or sidewalk improvements, may be made charges upon or against, respectively, such water works, gas or electric light plants, and upon the liens in favor of or the liabilities to such city, town or other municipal corporation, acquired in or by reason of the erection or construction of such sanitary sewers, or street or sidewalk improvements; Provided, further, That the limitations contained in this section shall not apply to any indebtedness in excess of such limitations already created or authorized by now existing law to be created.

MR. WALKER (Madison) - The Convention will observe if the purport of that amendment has been understood from the reading of it, that the effect of it is to leave the 5 per cent limitation made by the Committee as it stands, to leave the 3 per cent additional power of contracting debt stand to the extent of limiting that power of contracting debts to those which will be a charge upon the tax revenues of the municipalities, but to remove the limitation to the extent of allowing municipalities to pledge or make charges upon the properties or utilities that they acquire in making a debt above that limitation. For instance, in


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the case of the acquisition of a water works by a municipality, it would be competent to create a debt in addition to the 5 per cent limitation, to the extent of a 3 per cent limitation, which would bear upon the revenues front taxation of the municipalities, but beyond that 3 per cent limitation, the debt for such water works would be chargeable, not upon the revenues from taxation of the municipality but upon the water works plant, that they might acquire.

MR. ROGERS (Sumter) - That they could mortgage their plant?

MR. WALKER- Yes, so far as they have security to offer which is acceptable in commercial circles, that their powers shall not be restricted, but beyond the limits of such security, a prudent limitation upon its capacity to create debts shall be fixed by this Constitution, and I conceive that it cannot be argued by any one that some such limitation as this should not be put upon the municipalities of this State. Municipalities should not be left in a position to commit financial suicide at any time for the creation of any kind of utilities for the municipalities. They should have thrown around them the safeguard and the protection which prudent individuals should throw around themselves, and debts in the case of municipalities no more than in the case of individuals should be created beyond the possibility of satisfying those debts.

MR. WEAKLEY (Lauderdale) - Will the gentleman permit me to ask him a question ?

THE PRESIDENT - Will the gentleman consent to an interruption ?

MR. WALKER - Certainly.

MR. WEAKLEY - Suppose, for instance, the municipality has already incurred an 8 per cent. debt, what security has that municipality under that plan, to offer to the owner or owners of the water works plant for the payment of that, except the revenue from it?

MR. WALKER - If it be a good plant as stated in the case of Montgomery, the mortgage upon the plant would be a good security. It was argued that Montgomery had recently acquired a plant that was in such a situation that the mortgage given and the securities upon the plant were sufficient to float the bonds in the market and give security - as a matter of fact the revenues from the property were more than sufficient.

MR. WEAKLEY - Did I understand the bonds issued by the city of Montgomery for the purchase of water works were not general obligations of the city?

MR. WALKER - I did not say that, but in the argument


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made here, it was argued by the gentleman from Montgomery that the water works plant itself was sufficient to more than reimburse the city for the liabilities incurred by it.

MR. WEAKLEY - The gentleman did not understand the question. I asked if the city of Montgomery had no other security than the plant itself, which they were to buy, could they have bought that plant upon the faith of the revenues of the plant alone, without the endorsement and credit of the city of Montgomery.

MR. WALKER - It seems to me they could if the statement made about the earning capacity of the plant is correct, but whether it could or not if it has exhausted its power of creating debts which can in any view or probability be paid, it ought not to go any further.

MR. OATES - I suggest to the gentleman from Madison that he was quite right, they knew that the income from it would be ample to more than pay it.

MR. WALKER - I say that this additional security given a municipality in arranging to borrow money upon such plants as these, the securities will be so arranged as to secure the proper maintenance and the proper revenue producing capacity of the plants that are pledged as security, and not only the public officer but the persons from whom they acquire money will be interested in seeing that the arrangements are so made that the plants will be kept upon a revenue paying basis.

MR. PILLANS - Wouldn't the effect of the adoption of the plans suggested in your paper be such that no street paving could be made by any city which has reached the 7 per cent.. unless it was by putting the whole burden of the paving on the adjacent property owners. In other words, whether the city could then pay one - half of the general assessment of paving and assess the other half on the abutting property owner, whether in other words you would not deprive the city of any credit for any part of a debt for paving except that part which was to be borne by the abutting owner?

MR. WALKER - If the city had already gone beyond the limit of indebtedness where there was any probability of its being paid, that would be the situation, and I submit, gentlemen of the Convention, as I stated before, that inconveniences of that kind by municipalities are in the same situation as like inconveniences for individuals. There are a great many things individuals want and would like to get, but if their debt - contracting power and means are insufficient they ought to do without them, and that homely rule should apply to corporations as well as to individuals - they cannot eat their cake and keep it, and you cannot make for a public body, any more than for individuals, a rule that can get


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around that homely expression. If they have already exhausted their debt - contracting power, they are not in a position to get the good things of the world that people can get who have good credit and are entitled to get credit.

MR. PILLANS - You mean that they have already exhausted this arbitrary limit of debt?

MR. WALKER - No sir, I do not think that is an arbitrary limit.  I think there should be some reference, under the tax limitations which we have, and which we do not intend to abandon, to the capacity of municipalities to meet their indebtedness.

I desire in discussing this matter and expressing my opposition to the pending amendment to explain to the Convention that in event of its being voted down by the Convention that the substitute that I have had read in their presence will be offered.

MR. O'NEAL (Lauderdale) - Mr. President, I see no necessity for the passion and temper which has been displayed in this debate by those who oppose the substitute offered by the gentleman from Lauderdale. Distinguished gentlemen on this floor have denounced the substitute as an effort to repudiate debts, and to involve the cities and towns of Alabama in bankruptcy and ruin. Those of us who favor the substitute are characterized as the advocates of increased burdens upon the people. This charge is wholly unfounded and I am sure would only be made in the heat of debate. What is the proposition that we are considering? It is simply a plain business proposition. The report of the Committee on Taxation, in my judgment, if adopted by this Convention, would result in preventing any progress or improvement by the great industrial cities of this State. It says that no city or town shall go beyond a limitation of 5 per cent., and makes no exception for street improvement. No gentleman who has spoken has undertaken to answer the array of facts and figures offered by the gentleman from Lauderdale. The figures he has produced show beyond controversy that all of the principal towns and cities of this State have already a debt exceeding 6 to 7 per cent. Then if you adopt the section as reported by the Committee on Taxation, you say to the city of Florence, to the city Birmingham, to the city of Decatur, and to all the great industrial cities of the State, that you have already reached your limit, and you shall no longer continue the system of street improvement now prevailing. What is the system that prevails in most of the cities and towns in this State? On account of the limitation which now exists in the Constitution, the revenues derived from taxes are not more than sufficient to meet the ordinary expenses of a city government. Our cities are confronted with the necessity to secure streets and sidewalks, to levy a tax upon abutting property. That tax is paid by the city, and a lien enforced for its collection. In the city of Florence and in the other cities of this State, after the


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improvement is completed, the city issues to the contractor a bond payable in ten years. That bond is negotiated and the property owner can come up and pay it in ten annual payments with a low rate of interest. Under that system all of our great cities and towns have secured good streets and pavements. Now I am sure it is not the disposition of this Convention to prevent any further improvement of that character. What is the substitute offered by the gentleman from Lauderdale? The first provision is that no city or town shall become indebted in an amount exceeding 7 per cent, of the assessed valuation of the property. What is excepted from that? First, Section A, is indebtedness in anticipation of collection of taxes. What objection can be made to that?  The burden of taxation is not thereby reduced. If the city has any revenue which it will receive at a particular time upon its taxes, what objection can there be in the case of an emergency to borrowing money in anticipation of the collection of such tax? Such emergencies occur in the life of every city in the State, and hence it would be manifestly unjust to call the temporary loan in anticipation of taxes a debt upon the people of the city. Now the next Section B, is bonds issued for the purpose of purchasing water works or the construction of sanitary sewerage. Unless you adopt that provision, none of our great cities can purchase their water works, because they have already reached a 7 per cent. indebtedness with possibly one or two exceptions. I mean all cities over 5,000 inhabitants. And what is the difference between the water works and debt? When you purchase a water works system you purchase a property that yields a revenue, you increase the taxable value of your property. Now, the next is C, obligations incurred and bonds issued to procure means to pay for street or sidewalk improvements or storm water sewers, the cost of which is to be assessed against the property abutting the same. That ought not to he considered a debt of the city, unless the city pays for the improvement, and here I am willing to accept something on the line suggested by Judge Walker. But where the improvement is wholly paid by the abutting property owner, it is not a debt of the city, it is merely a debt which the city guarantees, and for which guarantee it has sufficient collateral. If I guarantee a debt, endorsing a note with collateral worth ten times the amount of the loan, I am not creating any debt, and unless that provision is incorporated in the section as reported by the Committee on Taxation, as the gentleman from Jefferson has stated, it will result in checking forever the progress now made in all the great industrial cities of this State. I am sure that such is not the wish of this Convention. You would say to Birmingham, Florence, Decatur, Huntsville, Dothan, Tuscaloosa and Montgomery, which have now reached the limitation provided for that when you undertake to negotiate bonds for street improvements, the Constitution forbids it, and hence the progress now being made in the great industrial cities of this State must cease.


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MR. MACDONALD - I would like to ask the gentleman a question.

THE PRESIDENT - Will the gentleman consent to the interruption ?

MR. O'NEAL, - Certainly.

MR. MACDONALD - Do you construe Subdivision C a bar to municipalities imposing the entire cost of street and sidewalk paving and the construction of sewers on abutting property owners?

MR. O'NEAL - I do not.

MR. MACDONALD - Your argument would seem to indicate to that.

MR. O'NEAL - I admit that local assessments of this character sometimes work great hardships. I concede that there are ways in which the Legislature can remedy this evil, but that is a matter for the Legislature. We know that in all cities of the Union all improvements have been made by this system of local assessments. Shall this Convention say to the people of Alabama that that system which has prevailed in all the great cities of the Union, that system which has prevailed in Alabama, shall no longer continue, but by the fundamental law we will forbid you from ever making any debt even though that debt may be paid by the abutting property?

MR. MACDONALD - May I ask another question? In that portion of this debt which is not covered by the assessment against the abutting land owner which is a general debt against the city, they would have no limit in the creation of that particular character of debt. I contend that if Subdivision C of the substitute does not give the municipalities the power to assess the entire cost of improvements against the abutting property owners, then the excess of cost of construction over and above what is assessed against the abutting property owner would be a debt against the municipality generally and might be without a limit?

MR. O'NEAL - I am in favor of limiting the power of a city to create a debt for streets or improvements of that kind where it comes out of the general revenue of the city, but where the improvements are taken from abutting property, there ought to be no limit. Of course we all agree that there should be some limit upon the debts of cities and municipalities in this State. We all agree that the unlimited power to tax is the power to destroy. The argument made on this floor against the dangers of unlimited taxation meets the views of every gentleman in this Convention. What have we done about this limitation on taxation. We say you shall not go beyond one - half of 1 per cent., and the re-


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port of the Committee on Municipal Corporations, has a Section in reference to this subject, Section 5. Now the trouble is that under the present system, any member of the Legislature can, without consulting his constituents, come to Montgomery and impose a debt upon any community of this State. That is true- without consulting his constituent, without asking their views or wishes in the matter. Now the Committee on Municipal Corporations has a Section which will prevent this in the future. Sec. 7. "No county, city, town, village, district or other political subdivision of a county shall have authority or be authorized by the General Assembly after the ratification of this Constitution, to issue bonds, unless such issue of bonds shall have first been approved by a majority vote by ballot of the qualified voters of such county, city, town, village, district or other political subdivision of a county, voting upon such provision. In determining the result of any selection held for this purpose, no vote shall be counted as an affirmative vote which does not show on its face that such vote was cast in approval of such issue of bonds. This Section shall not apply to the renewal, refunding or re-issuance of bonds lawfully issued, nor prevent the issuance of bonds in cases where the same have been authorized by laws enacted prior to the ratification of this Constitution, nor shall this Section apply to obligations incurred or bonds to be issued to procure means to pay for street and sidewalk improvements, or sanitary or storm water sewers, the cost of which is to be assessed against the property abutting said improvements or drained by such sanitary or storm water sewers."

THE  PRESIDENT - The time of the gentleman has expired.

MR. WEAKLEY (Lauderdale) - I offered a substitute for Section 10 of the report of the Committee on Taxation, and an amendment was offered to the substitute, and I desire now with the consent of the gentleman offering the amendment to withdraw the substitute, and I offer to the Convention in lieu thereof, this substitute:

Sec. 10. No city, town or other municipal corporation shall become indebted in an amount, including present indebtedness, exceeding 5 per centum of the assessed value of the property thereof, except for the construction or purchase of water works, gas, or electric lighting plants and sewerage or for the improvement of streets for which purpose an additional indebtedness, not exceeding 3 per centum may be created, and excepting also temporary loans to be paid within one year, made in anticipation of the collection of taxes, not to exceed one - fourth of the general revenues of such cities and towns; Provided, however, that this limitation shall not apply to towns and cities having a population of 6,000 or more, nor to the City of Gadsden, which last described cities and towns shall not become indebted in an amount, includ-


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ing present indebtedness, exceeding 7 per centum of the assessed valuation of the property thereof, and provided further, that there shall not be included in the limitations of the indebtedness of such last described cities and towns the following classes of indebtedness, to - wit : Temporary loans to be paid within one year, made in anticipation of the collection of taxes, and not to exceed onefourth of such taxes; bonds or other obligations  already issued or which may  hereafter be issued for the purpose of acquiring, providing or constructing school houses, water works and sewers; and obligations incurred and bonds issued for street or sidewalk improvement, where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvement.

Nothing herein contained shall prevent the funding or refunding of existing indebtedness.

MR. WEAKLEY - After the presentation of the report of the Committee on Taxation and the substitute recommended by the Committee on Municipal Corporations, there developed such a contrariety of opinion upon the subject of debt limitation, that the representatives of nearly all the municipalities of the State set to work to frame a section which would meet as far as possible the objections that have been offered upon this floor. The Convention will bear in mind the words of a distinguished statesman who said it was a condition and not a theory that presented itself. I will admit that if no city in the State of Alabama had a debt, that neither the proposition presented by the Chairman of the Committee on Taxation, nor the proposition presented by the distinguished gentleman from Madison County would have my support.

MR. COLEMAN (Greene) - Has the delegate from Mobile accepted that in lieu of the amendment offered by him ?

MR. WEAKLEY - That is my understanding.

MR. PILLANS - I will accept it.

MR. COLEMAN - There is but one amendment offered to the report of the Committee on Taxation, and that is the one you have in your hand?

MR. WEAKLEY - That is my understanding the Convention consented to the withdrawal of my original substitute.

THE PRESIDENT - Does the gentleman from Mobile consent to the withdrawal and the introduction in lieu of it of the substitute of the gentleman from Lauderdale.

MR. PILLANS - Yes sir.

THE PRESIDENT - Leave has been granted to substitute the proposition offered by the gentleman from Lauderdale, and it is so ordered.


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MR. MACDONALD - What is the parliamentary situation of the question now? The substitute offered by the gentleman from Lauderdale is now before the house - this last substitute. If it were proper I would like to offer an amendment at this time to that substitute.

THE PRESIDENT - The gentleman from Lauderdale has the floor.

MR. WEAKLEY - Upon an examination of the financial condition of the various cities of Alabama and municipalities, the fact develops that certain cities of this State have exceeded the limitations proposed to be imposed upon them by the Committee on Taxation. That certain other towns in the State have not incurred these debts, and desire the protection of that report. We now propose that the debt limitation fixed by the Committee on Taxation, with a slight modification, shall apply to all towns and cities in Alabama of less than 6,000 persons, and that the limitation with certain modifications proposed by the committee on Municipal Corporations shall apply to all the towns and cities in Alabama in excess of 600 people, except the city of Gadsden. This section which is now offered to the Convention has been arrived at after studying carefully the situation as pertains to every city in the State. This section puts a limitation upon the power of every municipality in the State of Alabama to contract debt in proportion to its ability to pay, and at the same time it does not put them into the hands of contractors and lobbyists, it does not take from them the power of constructing sewers and sidewalks and of acquiring a system of water works. The gentleman will understand that with the varying amount of debts, and the varying needs of the cities of Alabama, that it is impossible to fix one limit which will apply to all municipalities. The report of the Committee on Municipal Corporations, as now amended, excepts from the limitation three different characters of debt. The first is temporary loans issued in anticipation of the collection of taxes. These loans are generally unnecessary. You will bear in mind that very few cities collect their revenues until almost the expiration of a year, in fact, we are compelled to run the cities for ten months in the year before receiving the taxes, and there are always periods of depression and of dullness in the affairs of cities just like there are periods of depression and dullness in mercantile business. This provision enables the city to go to the bank and borrow not more than one - quarter of its revenue, the loan shall not extend longer than twelve months and must be paid when the taxes are collected. It enables the city to meet its obligations towards the police force, Fire department, etc., and at the same time preserve the credit of the city. The other exception is debts created for sewers and water works. I can conceive of no argument which ought to prevent or preclude that a city should be prevented from acquiring a sewerage system and system of water


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works after it has acquired a population of 6,000 people. Now, gentlemen, the other exception is the section which permits the city to incur obligations for street improvements or sidewalk improvements, where the cost of such improvements is levied in whole or in part against the abutting property. We do not contend and 'tis not the purpose of the committee on this section to regulate how much or what part of that assessment should be paid by the property owners, but whatever part it may be we do not think that that ought to be included in the debt limit of cities. Now, gentlemen, just one word more. It does not occur to me that this Convention can afford to tie the hands of the municipalities of Alabama, for I say to you that the growth and prosperity of the State of Alabama is the growth and prosperity of the towns and cities of Alabama, and any restriction placed by this Convention upon these cities in the proper exercise of their functions of preserving the life, the health, the safety and the comfort of the people is a restriction upon the State itself. We have heard a great deal said about the debt of the city of Montgomery, the city of Mobile and the city of Birmingham. I want to say to you that the creation of these debts has increased taxable values in Alabama by millions of dollars, that $2,000,000 of debt incurred by the City of Birmingham has added $40,000,000 to the taxable values of the State of Alabama, and the addition of this tremendous amount of wealth by these towns and cities in Alabama has made it possible by a system of taxation to largely increase the public school system of the State. You do not want to stop that source of revenue.

THE PRESIDENT - The gentleman's time has expired.

MR. REESE - I yield my time to the gentleman.

MR. WEAKLEY - I desire to say one word in regard to the amendment which has been proposed by the gentleman from Walker. I say under the operation of that section in the Constitution that it would be absolutely impossible for any city in the State of Alabama which had reached 8 per cent. of debt limit to contract any further debt under the plan which he proposes. The proposition which the city of Montgomery, when it desired to purchase the water works system, would have been able to make to the bond buyers would be simply this, that if you will sell us your water works system, we will give you a mortgage on the plant. Who ever heard of any man with money to lend, lending it upon such security? Isn't it a fact gentlemen, that every man who lends money fixes a limitation upon the amount which he will lend upon a given piece of property, and is it not always the universal rule that no man will lend money exceeding 50 per cent. or 60 per cent. of the value of the property? Do you suppose that a different rule would prevail when you begin to deal with large figures. I say to you that it would have been absolutely impos-


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sible for the city of Montgomery to have constructed or purchased its water works system, it would have been absolutely impossible for the city of Mobile to have constructed its water works system unless there had been given the city the power of endorsing the obligation issued for the acquirement of those properties.

MR. OATES - Permit me to ask a question. Which do you consider the most economic and best policy, to facilitate the capacity for effecting loans, or rather to repress it, than to keep cities within their income?

MR. WEAKLEY- I think the best policy is to put reasonable restrictions upon the power to create debt, but I consider it fatal to the growth or prosperity of any city, or to the growth or prosperity of any State that puts restrictions upon the power of cities to build its water works, to improve its streets or construct its sewerage systems. The great cities of the world could not have been built under such laws as that. This is no new proposition. The gentleman talks about the question of street assessments. There is only one State in the United States that prevents the construction of streets like that, and that is the State of South Carolina, and if the gentleman will go to South Carolina he will not find a modern, well built, well constructed street in the whole State.

MR. COLEMAN (Greene) - There are more factories there than anywhere else - great improvement in the establishment of manufacturies ?

MR. WEAKLEY - I will state this in answer to the proposition of the gentleman from Greene, suggested the other day by the Chairman of the Committee on Taxation, that on account of this restrictive rate of taxation that more manufactures and more industries would be located in Alabama. I say, gentlemen, that it is a proposition well known by everybody that more cotton manufacturies have been located in North Carolina and South Carolina than any other State in the South. In neither of those States are there limitations upon the debt - creating power or the taxing power, and I say further that the town of Charlotte, N. C., almost similar in its conditions and surroundings to the city of Huntsville, has been able to float its bond bearing 3 per cent interest, and the city of Huntsville and Selma cannot float theirs at all. That is the condition today.

MR. OATES - Does my friend know how many cotton factories there are in Charlotte?

MR. WEAKLEY - My information is that in the neighborhood of thirty - eight or forty. I am not sure. I say, gentlemen, that it is absolutely impossible under the restrictions which are about to be thrown around the cities of Alabama for this State to prosper. The Committee on Municipal Corporations has report-


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ed, and I favor, the proposition that no bonds shall be issued by any city of the State of Alabama, unless the proposition is first submitted to a vote of the people. We have restricted their power of creating debt. We have restricted their power of taxation; and certain distinguished gentlemen now want to restrict the power of cities in raising revenues by licenses. I say, gentlemen, it looks to me as if the Convention has set out with an avowed purpose of strangulating the towns and cities of Alabama, and, in the language of the distinguished gentleman from Greene, this is the most momentous question that has ever been brought before this Convention. If you make it impossible for the city of Birmingham to grow and prosper, if you tie the hands of the city of Montgomery, and Mobile, and Gadsden, and Anniston, and Huntsville, and Florence, and Tuscaloosa, you tie the hands of the most productive towns in the State of Alabama. You gentlemen that have talked upon this floor about reduction in State tax rate will soon come to the proposition that there will be an amendment to the Constitution to increase the debt limit of the State because, just as sure as the policy now advocated upon this floor prevails, the increase in the taxable properties of this State will be very slight. There is a proposition in the amendment which I offer, excluding from the debt limit bonds issued for school houses. In answer to any objection that may be raised against that, I say that, framed as the section is now, after giving it all the care and thought that representatives of the various municipalities could give it, there was still a very decided limitation upon the power of these larger cities to contract debts, and it would have been absolutely impossible for a single one of them to construct another school house. If this Convention is not going to do anything for what are called the bare - footed boys of Alabama, then I beseech you, gentlemen, let the cities do it. I live in a town that has a school population of 2,000, and out of that 2,000 there is an enrollment in the public school system of the city of Florence of 1,033 pupils, and in addition to that in the State schools and private schools in my town there are in attendance 500 additional. Right now, when the schools are in session, they are filled to overflowing, and the teachers are working there at a pitiful salary of $35 per month, teaching one - half of the class from 9 o'clock to 11 o'clock and the other half from 11 until 2 o'clock, and even thus dividing up the work, the pupils are sitting in the windows, two on a seat, and others denied admission for want of room. Gentlemen, we want the permission of this Convention to build another school house, and we want to tax ourselves to do it.

MR. WALKER - I desire to offer a substitute for the section reported by the committee and for the amendment of the gentleman from Lauderdale.

The substitute was read as follows:


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Section 10. No city, town or other municipal corporation shall become indebted in any amount exceeding 5 per centum of the taxable value of the property thereof; provided, that for the construction or purchase of water works, gas or electric light plants, sanitary sewerage, or street or sidewalk improvements, an additional indebtedness not to exceed 3 per centum of such taxable value may be created so as to be a charge upon the revenues from taxation of such city, town or other municipal corporation, and that any debts or liabilities in excess of such 3 per cent limitation incurred by such city, town or other municipal corporation in the construction or purchase of water works, gas or electric light plants, sanitary sewers or street or sidewalk improvements, may be made charges upon or against, respectively, such water works, gas or electric light plants, and upon the liens in favor of or the liabilities to said city, town or other municipal corporation, acquired in or by reason of the erection or construction of such sanitary sewers, or street or sidewalk improvements; provided, further, that the limitations contained in this section shall not apply to any indebtedness in excess of such limitations already created or authorized by now existing law to be created.

MR. WALKER - I desire to offer a substitute for the Section reported by the Committee and for the amendment of the gentleman from Lauderdale.

The substitute was read as follows:

MR. WALKER - This discussion has developed the fact that it is recognized that the Convention has made up its mind to put some kind of limitation upon the debt creating power of municipalities. That is recognized in the substitute that was offered a few moments ago by the gentleman from Lauderdale; but that substitute would really defeat that manifest purpose of this Convention because it established, in the first place, a limitation, and then selects the class of objects for which it is recognized the municipalities of Alabama are disposed to go into debt, and excepts from the operation of the limitation each one of those objects. So that in reference to the erection of gas and water works and electric light plants and sewerage systems and sidewalks and street improvements, the result will be that this Convention has made no limitation at all but that in reference to those matters, which are the only ones as to which there is any disposition on the part of the municipalities of the State to create debts and put themselves in the position of being unable to pay those debts, or still leave them without any limitation at all.

Now I submit to the gentlemen of the Convention if we propose to put a limitation upon the debt creating faculties of municipalities, we should put a real limitation and not a limitation which amounts. to nothing, and if we are to accept from the constitutional provisions all these matters which alone are those mat-


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ters in which municipalities are interested in tangling themselves up in, we really put no limitation at all and we had better leave the matter without remark in the Constitution and let the Constitution remain just as it is.

MR. LOWE (Jefferson) - Will the gentleman permit me a question?

MR. WALKER - Yes.

MR. LOWE -  What effect will this amendment have upon the salable quality of the bonds to be issued where the city is prohibited from becoming security on those bonds? In other words, if a debtor offers a piece of property as security and declines himself to be liable over the value of the property, would not that minimize the market value of the property and thereby require a higher rate of interest?

MR. WALKER - Yes, sir; it would operate on municipalities just like on individuals. If an individual has exhausted his competency to pay debts except with the particular security offered, the security would be the only thing looked to.

MR. LOWE - And would not that require a larger rate of interest?

MR. WALKER -- No; if they had already exhausted their credit, my contention is they should not be allowed to go farther.

MR. LOWE - If they have exhausted their credit, how can they go farther? It requires two persons to create a debt, a debtor and creditor.

MR. WALKER - Yes, but the State of Alabama has in its power the right to determine the limits beyond which a municipality cannot create indebtedness and to have regard to the capacity of that municipality to pay the debt, whether or not they would be able in a particular circumstance to float bonds or not. They should look to the question of the tax limit being such that there will be the capacity in the municipalities to pay the debts they contract.

MR. LOWE - Is it not true that the debt limit which you seek to fix is for the protection of the creditor and not of the debtor?

MR. WALKER - Yes, and for the good name of the municipality.

MR. LOWE - But it is for the protection of the moneyed interests— the creditors.

MR. WALKER - No, sir, it is for the protection of both. It is for the protection of the municipality and for the protection of


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the good name and the credit of the people of Alabama.

MR. PILLANS - Are we to understand that the gentleman apprehends the amendment offered by the gentleman from Lauderdale is putting lighting plants in this class of objects for which there is no limitation?

MR. WALKER - That was my impression.

MR. PILLANS - I want to call the gentleman's attention to the fact that lighting plants are expressly cut off. It is only sewers, water works and street improvements.

MR. WALKER - Now, the gentleman from Lauderdale speaks of strangulating the municipalities of Alabama. Alabama has had some experience in strangled municipalities and counties and how have they been strangulated? By the possession of an unlimited power to create debts. Have you ever heard of a municipality, county, city, town or village, being strangulated by not being permitted to go into debt? I have not. Look at the history of Alabama and you see strangulated communities but you will see that you have tied the rope around their necks with an unlimited power to create debts. That is the way strangulate the communities and municipalities of the State, to allow the present to mortgage the future beyond the capacity to pay. I submit this is an important question and that this Convention should lift its hand and prevent the possibility of that which has been done in the past being done in the future.

MR. MACDONALD - I do not know whether the proposition I propose to make is in order at present. As I understand there is the Section as reported by the Committee and a substitute offered by the gentleman from Lauderdale to the report of the Committee and an amendment to that offered by the gentleman from Madison. Is that the situation of affairs?

THE PRESIDENT PRO TEM (Mr. Cunningham) - The parliamentary status is this: The original substitute of the gentleman from Lauderdale by unanimous consent of the Convention has been withdrawn and in lieu thereof he offered a substitute, which has been read. To that substitute there was an amendment offered by the gentleman from Madison, which is the pending question.

MR. WALKER - Mine was offered as a substitute for the Section as reported by the Committee and all amendments.

THE PRESIDENT PRO TEM - And further amendment is not in order.

MR. MACDONALD - Briefly I propose to address myself to and hereafter to offer another amendment to the substitute offered by the gentleman from Lauderdale.


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The special objection I had to the original substitute and which has not been obviated or to the slightest degree changed by this new substitute is the tacit- I might say direct- permission to municipalities to place upon property abutting upon streets upon which sidewalks have been made or sewers constructed, the entire cost of these alleged improvements.

On Wednesday my friend from Montgomery (Mr. Graham), in a rather heated speech, called the attention of the Convention to what he was pleased to term my unavailing attempts to fight such assessments in the courts of this State, and in the course of his remarks he fell into an error, unintentionally, I suppose, in stating that the Supreme Court of this State and of other States in which this matter had come up, had lately decided the question adversely to the contention I had made. Now this is not the fact. The cases that he alluded to began in the City Court of Montgomery on the equity side of the court. The judge of that court, in a decree rendered in the Birdsong case, which was the first case brought in that court, decided in my favor. That judge, than whom no wiser, abler or more learned judge sits upon the bench in Alabama or in the United States, for that matter, decided every proposition in favor of the taxpayer. He decided that such assessments for sidewalk purposes, the entire cost of which was assessed against abutting property owners, were invalid. He furthermore decided that all assessments predicated on an arbitrary basis of front footage of property were null and void under the charter of Montgomery and under the general law of the land. An appeal was taken by Montgomery to the Supreme Court, and that court held that the court below erred only in one respect, and that where it held that the charter of Montgomery did not predicate those assessments on any benefit derived therefrom. The Supreme Court said the charter was susceptible of that construction, and, therefore, the assessment was valid. The upper court held as has always been held by every intelligent court in the land, that the only just basis of such assessment was the benefit the property derived therefrom, and whenever these assessments exceeded the benefit the property derived, it became confiscation and not taxation, and it cited with approval Dillon on Corporations and a number of decisions to like effect in the State of Alabama. That case came back to the City Court in Equity, and another suit of a like character was tried before that same able judge, and the point was raised that the ordinance of Montgomery making the assessment predicated it solely on the front footage and without reference to benefits derived, and that same able judge repeated his decree and held that the assessment was void, and that question is now up before the Supreme Court of Alabama, not on appeal by the taxpayers, as the gentleman would have you believe, but on an appeal taken by the municipality of Montgomery.


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The gentleman said further that I had been to the Supreme Court of the United States on the matter. I have never been to the Supreme Court of the United States on this proposition, but will certainly go there if the decision of the Supreme Court of Alabama is adverse to the uniform rule, based on justice and common sense, that wherever an assessment exceeds the special benefit the property derives from the improvement, it is void.

It was my purpose, and I propose later to introduce an amendment to this substitute, which, if adopted, will provide that no city or other municipality shall make any assessment upon property abutting on streets so improved in excess of the actual increase in value of that property by reason of such assessment, and that is the only just and honest rule for the imposition of such assessment.

My friends here, and especially my, friend from Jefferson (Mr. Lowe), entertained this Convention day before yesterday with a remarkable history from the paradoxical condition of affairs in the city of Birmingham. Birmingham has always been more or less of a paradox in many respects. We have heard in olden times of martyrs in will and not in deed, and of martyrs in deed and not in will. We also know it is a common axiom that there are two certain things, death and taxation, and we also know that mortals are prone to avoid both of these. And yet, in Birmingham, we are told by the learned gentleman from Jefferson (Mr. Lowe), that people are so clamoring for the opportunity of paying taxes for sewers and streets, that they absolutely break down the cordon of police they have put around the City Council so that they may have the opportunity to impose taxes. That may be true as to Birmingham, but that is not so in other municipalities. The tax - gatherer in Montgomery is not earnestly sought after, nor is the City Council clamorously importuned to impose taxes.

Gentlemen speak of strangulating municipalities, stopping them in their march of prosperity and progress. They seem to forget that there are other objects of strangulation that these municipalities are engaged in strangulating and bankrupting taxpayers.

We have a remarkable picture of that in this city.  We have contracted a debt in this city since 1875 of over $1,750,000—

MR. SANFORD-$1,900,000.

MR. JONES (Montgomery)-$1,879.000. not including the baby bonds, from the official reports.

MR. LOMAX - What about the L. and N. Railroad and the market bond tax?


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MR. MACDONALD (Montgomery) -- And thereby hangs the tale. This city issued bonds to aid in the construction of the South and North Alabama Railroad, and, as I am reliably informed, has been collecting for fifteen or twenty years $10,000 a year more than enough to pay the interest on those bonds, and has not paid one of those bonds and has never used the excess for the purpose of creating a sinking fund for the payment of those bonds, but has absolutely been using it in violation of constitution and law for their own purposes.

Mr. President, I received this morning a communication from a gentleman in this city who is perfectly familiar with the facts he states, and I would like to have it read by the clerk as a part of my remarks, and read with that power of vice and excellence of enunciation for which he is known.

The communication was read by the clerk as follows:

Montgomery, Ala., July 4, 1901.

Hon. Gordon Macdonald, City, Dear Sir:

I notice that in considering the question of a debt limit of cities, the status of local assessments for street and sidewalks was the subject of discussion at the evening session of the Convention. Under the amendment offered by Mr. Weakley the obligations or bonds issued for raising "means to pay for street and sidewalk improvements, or storm water sewers," the cost of which is to be assessed against adjoining property, is not to be included in computing the debt of a city.

It seems to be a curious fact that most of the gentlemen who spoke for the amendment have at one time or another been Mayors, City Attorneys or Aldermen of some city and it may be that Col. Sanford was not altogether wrong in saying "that you could not find an ex - Alderman or an ex - Mayor or an ex - City Attorney who is not in favor of all these exactions in favor of municipalities. The Convention certainly furnished no examples. Members who seek to limit the right to contract debts by the city for the citizens to pay are said by Mr. Graham to be "having their hands upon the throat of the municipalities of this State and attempting to choke the very life out of them," though he admits further on that the city of Montgomery under the beneficient administrations of the local authorities is in debt two and a half millions and "unless relieved by legislation in this Constitution will go to the wall."

THE PRESIDENT - The gentleman's time has expired.

MR. LOMAX - I move that the gentleman's time be extended to permit him to finish his remarks.

MR. OATES - I will yield my time to the gentleman.


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THE PRESIDENT PRO TEM. - The Chair had not recognized the gentleman from Montgomery - and he has no time to yield.

MR. OATES - If it is admissible I thought it would be a saving of time rather than having a vote to extend the time.

THE PRESIDENT PRO TEM - The Chair will hold that the gentleman from Montgomery not having been recognized has no time to yield.

A vote being taken the motion to extend the time was carried and the reading was continued as follows:

I respectfully suggest that the local authorities who are responsible for this condition should not be allowed to continue in the debt contract business. I notice also that none of the gentlemen have any provision for preventing all the cost of these so called improvements from being assessed against the property of the citizen. Mr. Watts blandly remarks that this section does not make any assessments against property, but any man who reads the section will know that there is enough sanction in the section for that practice to have every city official claim full power to do so, under it.

It is well to consider the history of these municipal authorities, since 1875 and note their attitude toward the Constitution of the State. Our city had a debt of almost $750,000 at the adoption of that Constitution and it has created about $750,000 since. By that instrument the city was allowed 50 cents on the $100 for general expenses and allowed in addition to levy sufficient to pay the debt it owed when it was adopted. For the last twenty years the beneficent municipal authorities have levied 62 1 - 2 cents ostensibly to pay the interest oil the debt existing in 1875, when it was not needed for that purpose, and in defiance of Constitution and law have used it at their own sweet will. For the last fifteen years there has been collected in excess of what was paid on interest on the debt at least $10,000 a year and the fact remains that the debt has not been reduced a single cent. It is justified or condoned on the plea of necessity. This course was pursued when Mr. Watts was an Alderman and was so plainly and palpably in violation of law that Mr. Watts protested and voted against the levy while a member of the Council. Can it be said that a necessity created by the municipal authorities is a valid excuse for a plain violation of the Constitution and that a municipal corporation which persists for twenty years in such violation is a safe custodian of power to contract debt for its citizens toy pay. This has been the course of the City Council on the subject of taxation, and its course on the paving question is marked by the same assumption of power to do as it pleased with the property of the citizens. I will state its action on the paying of Madison Avenue, An Al-


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derman lived at the head of the street and at his request an ordinance was passed to pave the street under the baby bond act and assess the entire cost against the abutting property.

MR. REESE - I rise to inquire what part of that is pertinent to the pending question?

MR. MACDONALD - It is all pertinent. It shows the effect of unlimited power on the part of a municipality.

The reading was continued.

It was protested under the terms of that act, and on the very night the protest was presented to the Council, that body in defiance of the protest, again passed an ordinance to pave the street under the provisions of the same act. A second protest defeated this ordinance, but the Council still knew better than the people who lived on that street that it ought to be paved and having, as they thought, found out that the elimination of two blocks would enable them to pave the balance of the street under the baby bond act, they ordered the pavement of these two blocks under the general paving law under which the citizen has no voice, though the property is assessed one - half the cost of the street and he must pay his part in a single payment. Having paved these two blocks in this manner, the Council again gave the inhabitants a chance to see the error of their way and passed the baby bond ordinance for the balance of the street, but the people again protested, and again the Council resorted to its power under the general paving act and forced the paving of three more squares. The stubborn fact remains that not a block has been laid on this street from Perry Street east which was not laid against the protest of the property owners on it.

It is likewise true that in order to pave Lawrence Street under this baby bond act the frontage of churches, and of the Government Building and the County Court House were counted, to escape the force of a protest of a majority of the people who paid taxes on that street.

This then is the spirit that the municipal authorities have administered the powers they now have in regard to assessments for street improvements and no stronger case could be made to show the absolute necessity of curbing that power. I earnestly urge that you insist on some limitation being put upon the amount of such assessments. On this Madison Street property the assessments for the so - called improvement amount to about 15 per cent. of the value of the property, and with the 16 per cent. bonded debt of the city constitute a charge of above 30 per cent. of its value.

MR. PILLANS - I protest that this is not a part of the remarks of the gentleman.


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MR. MACDONALD - I have offered this as part of my remarks and the clerk is reading it as such.

MR. PILLANS - This seems to me to be in the nature of dealing with the local a parochial quarrels of Montgomery with which we have no concern here. I make that point of order.

THE PRESIDENT PRO TEM - The point of order is overruled.

The reading was continued.

I simply call your attention to these facts. and the further fact that this property has paid taxes to the city of Montgomery of $1.12 1 - 2 on the $100 for twenty years, and, by the beneficent rule of the municipal authorities. is now subject to charges which aggregate a third of its value.

I think the citizen has some right to say when such improvements shall be made and that it is time that the hands of these municipal authorities be taken from the throat of those who happen to own property in the city of Montgomery, before the very life is choked out of them.

Yours truly,

Edwin F. Jones.

Now I can add but little to what Mr. Jones, has said.

My friend from Montgomery (Mr. Graham) on day before yesterday made some allusion to a decision of the Supreme Court on this paving question wherein he stated what was a fact that the latest announcement by that court was that the entire cost of such improvements might be assessed against abutting property owners if the Legislature so provided and the Constitution of our State did not prevent. That decision was absolutely contrary to the decision in Norwood vs. Baker, although the ingenuity of the court was strained to show that they were not in conflict. But conceding that to be the law, it shows the further wisdom of incorporating in the organic law of the State such limitations so that the Legislature cannot grant to a municipality the power of putting unlimited burdens on taxpayers. The Supreme Court of the United States has on more than one occasion indulged in similar assaults more or less seemly and the last devision referred to by the gentleman of Montgomery is on a par  with the income tax decision and the Porto Rican absurdity and I think a majority of this Convention will agree with me in insisting that a limit should be put on the powers of municipalities to assess their citizens for improvements which are for the benefit of the whole public.

MR. WEATHERLY - Mr. President and gentlemen of the


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Convention, I know it is not the desire of this Convention to work any wrong or injustice upon any of the cities of the State.

I believe that the committee in making its report and that the gentleman from Madison in offering his substitute are acting with the sincere desire and purpose of doing what they think would be for the best welfare of all the cities of the State, and yet, I think it is manifest at the outset that the general regulations which they propose may work great injustice to at least shall apply to all the cities of the State. They propose an arbitrary rule which shall apply to all the cities of the State without reference to population, without reference to the peculiarities of any city, without reference to the desires of its citizens, and really in opposition to the modern rule with regard to the regulation of cities, which admit that cities should be classified for the express purpose of applying rules to the government of such cities, based upon the peculiarities which mark one class of cities from another. It is generally unsafe in the matter of the government of cities to lay down one rule for them all which shall disregard the characteristics of any. Now, I am sure that the committee in making this report could not have considered, for instance, the peculiar situation and demands of the city of Birmingham. Indeed, I do not know that the members of the committee consulted a single representative from the county of Jefferson and therefore a representative of the city of Birmingham.

MR. BROWNE - I will just rise for the purpose of informing the gentleman that one of the representatives from Jefferson county was a member of that committee.

MR. WEATHERLY - Then I take it for granted he was not consulted, though I do not know who the member was - Yes, I do know. I beg pardon of the Chair (Mr. Cunningham), but I can state to the Convention now that the delegate from the county of Jefferson is unanimously opposed to the report of the committee as it now stands.

MR. JONES (Montgomery) - Does that include the committeeman?

MR. WEATHERLY - Including the committeeman.

Now will this Convention hasten on to the adoption of a report not specifically devised to suit the conveniences or the welfare of the city of Birmingham and in opposition to the wishes of her citizens merely to satisfy some general theory of construction whereby the committee thinks it has dealt satisfactorily with the debt proposition. The mere fact, as I think I can show, that the report of the committee is totally out of harmony with the demand and requirements of Birmingham will show to the members of this Convention that this report should not be adopted as it is. I


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am sure there is no cautious, conservative member of this Convention who would here in the course of this morning hour adopt an ordinance which is to last for a quarter of a century, the effect of which will be, in our opinion, to blast the prospects of one of the chief cities of the State.

MR. PILLANS - You may add Mobile to your remarks.  The situation would be the same there or worse.

MR. WEATHERLY - And by consent Mobile is added.

MR. COLEMAAN (Greene) - Why not except your cities.

MR. WEATHERLY - There might be too many of them.

MR. COLEMAN (Greene) - Perhaps if you try you will find that the Convention is willing to except your city.

MR. WEATHERLY - I believe if there were only one or two, we might do it, but the Convention will concede that it looks like a crude performance to put at the end of an ordinance like this a lot of exceptions.

The delegate from Lee (Mr. Harrison) and the gentleman from Montgomery (Mr. Macdonald) each desired to interrupt the speaker.

THE  PRESIDENT PRO TEM - Does the gentleman yield for an interruption?

MR. WEATHERLY - Certainly.

THE PRESIDENT PRO TEM.- The gentleman from Montgomery may put his question.

MR. WEATHERLY - I had recognized the gentleman from Lee.

THE PRESIDENT PRO TEM. - But the Chair had recognized the gentleman from Montgomery.

MR. MACDONALD - Is not Birmingham now an exceptional case, have there not been amendments adopted for her case alone?

MR. WEATHERLY - Yes ; I am willing to admit that Birmingham is an exceptional case.

THE. PRESIDENT PRO TEM. - The gentleman from Lee is recognized to ask his question.

MR. HARRISON - The gentleman froth Montgomery asked the question that I desired to put.

MR. LOWE (Jefferson) - I suppose both the gentleman from Montgomery and the gentleman from Lee know that the tax


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rate in Montgomery under the Constitution is higher than the tax rate in Birmingham?

MR. MACDONALD - To our sorrow, we know it.

MR. WEATHERLY - Now this ordinance, as reported, and the substitute of the gentleman from Madison fixing the limit at 5 per cent on taxable values for ordinary purposes, allows 3 per cent additional for certain other purposes. Birmingham at present has gone up to 14 per cent. Our debt is $2,124,000. Our taxable values are something in excess of $15,000,000. She has gone beyond the limit. As I construe this ordinance and the proposed substitute, she will be deprived of the 3 per cent additional. She has already, by ordinance, proposed the construction of $586,000 of street improvements, most of which will be assessed against the property owners, but for which her bonds will be outstanding, guaranteed by a lien upon the property. I do not know that I state the figures accurately, but $270,000 and odd have been contracted for, leaving $280,000 and odd which have been authorized by ordinance but not contracted for.

The time of the gentleman here expired, and, on motion, was extended.

MR. WEATHERLY - As I was saying, Birmingham has just started upon a career of street improvement. She has started upon a system of general improvement. She is a city in a beautiful valley called Jones valley, and anyone who stands upon the top of Red Mountain and looks down upon her as she nestles in that beautiful valley, and sees her stretching her limits up and down the valley, almost growing while you look at her, would be an unworthy citizen of Alabama if his heart did not swell with pride and enthusiasm at the sight, and if he would wish to do one thing that would check the onward movement of her citizens. Around and about her now are growing smaller towns which might be called her satelites - Wood lawn, Avondale, East Birmingham and a number of others I might mention, all of which will sooner or later be incorporated into this great town. We hope in the future, under this Constitution, to have more than a hundred thousand population; indeed, her population will be only limited by the confines of that valley and the absence of a water course through the valley. These little towns will be taken in, necessitating further street extensions and improvements of sewers and other sanitary improvement. We propose that all of these shall be paid for in the manner in which the improvements have already been made, as authorized by a recent act of the Legislature by assessment against the property owner. Our citizens do not object. I am proud to say to the gentleman from Montgomery that the citizens of Birmingham do not fear either death or taxation when they know it is not all of life to live, and when


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they know by the payment of taxes, under a faithful administration, they will get full benefits therefrom.

Now, as I say, gentlemen of the Convention, we have authorized $586,000 of street improvements for the immediate future, $79,000 of which have been built and about one - half of the remainder already contracted for. The report of the committee and the substitute of the gentleman from Madison will stop that immediately. We have gone beyond our limit. Our hands are tied, and we can do nothing else.

Not only that, but you must remember that this is not merely an act of the Legislature, but you are putting it in your organic law. Now, it has been suggested to me that there are 203 municipal corporations in Alabama. The report of the committee and the substitute of the gentleman from Madison will bear equally upon all of these corporations without exception and without regard to the peculiar needs of any of them and without regard to the wishes and desires of their citizens. The limitation in the first part of the amendment proposed by the gentleman from Lauderdale, which is practically as reported by the committee, will control 194 of these corporations, and to that extent that substitute will adopt the general system reported by the committee ; but the virtue and efficacy and equity and reason of the substitute of the gentleman from Lauderdale lies in the fact that it contains some exceptions which apply only to the eight chief cities of Alabama. They apply to Mobile, Birmingham, Montgomery, Huntsville, Florence, Bessemer and Gadsden - those are nine. I believe. The virtue of the proposed substitute of the gentleman from Lauderdale is that it does not lay down a blind rule against the chief cities of Alabama, because most of the smaller towns demand that rule, but it concedes the rule established by the committee to the small towns and excepts from it the cities which do not require the application of that rule but demand something better.

Now, I will conclude my remarks by appealing to you not to apply this hard and fast rule to these growing cities, these progressive cities, these cities that are constantly expanding, and whose needs are constantly increasing. Don't apply this hard and fast rule to those cities without further deliberation, and don't apply it at the close of a debate which, perhaps, has not afforded opportunity to instruct the members as to the real needs of these cities. I know no member of this Convention would feel that he ought to apply a rule, for instance to Birmingham, which her representatives tell you with unanimous voice will hurt and injure and cripple her in the modern race for success.

Rather than have such action, we would ask that this matter be recommitted. We would rather have the substitute of the gentleman from Lauderdale, but if that cannot be done, we ask that


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Birmingham be excepted, and if that cannot be done, we ask that this matter be re - referred to the committee and some broad, liberal, considerate and able scheme be devised and laid down that will not work inequality and injustice to some of your most important cities, and which will really and indeed be so well founded in reason, that you may afford to put it in your organic law.

MR. JONES (Montgomery) - Mr. President, if the city which I have the honor in part to represent, were not vitally interested in this question, I would not trespass upon the time of the Convention.

It seems we have mixed in the discussion of this question two propositions. One is whether the rate for local benefits ought to be curtailed and the powers of municipal bodies as to that, limited. As to this last proposition, I am in hearty accord with the gentleman from Montgomery (Mr. Macdonald) upon my right. But it seems in order to force favorable action on that proposition; some of our friends, to my apprehension, have unwisely combatted the right of a city to go in debt for other purposes, and seek to confine them to narrow and unsafe limitations.

What is the condition of Montgomery? I am satisfied nobody here wants to "throttle" anybody if they know it. It is because I believe some of the delegates do not know that they will choke Montgomery if they adopt the substitute of the gentleman from Madison, that I call their attention to these figures.

The city of Montgomery has an assessed value of real and personal property of $12,555,000. It has a total debt of $1,879,000 in round numbers, not including therein, approximately $100,000 of what are called "baby bonds." Of that indebtedness $600,000 is for water works, and that debt will take care of itself. The other indebtedness is $1,279,050 or about 10 per cent of the assessed value of all of the taxable property in the city.

If the substitute offered by the gentleman from Madison is adopted, what becomes of Montgomery? I have great reluctance to differ from the gentleman from Madison, for I have often avowed my admiration for his common sense and honesty of purpose. I think, however, in that substitute, he has, unintentionally, struck a blow at cities in the condition of Montgomery.

Now let us take an account and see where we are, what has this debt been contracted for, outside of the water works debt? Five hundred thousand dollars was to build a railroad years ago, the completion of which prevented the town from drying up and getting in the condition of the town of Cahaba. Whatever may be said about that debt and the taxation for it, it was a beneficial investment, I will further say that it was voted by the people, sometime before the city actually incurred the debt. I believe the


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Supreme Court declared the act, under which the election was held, to be unconstitutional. The balance of the debt is for sanitary sewers, street paving, storm sewers and school bonds, in round numbers about $600,000. It is to this expenditure and our magnificent sewers that the city is indebted to its practical escape three years ago from yellow fever, which was confined practically to one part of the city, and which outside of the alarm and the death of a few good men, did no real damage to the city. We have a death rate, I believe, as low as any city on the continent. This is due to our expenditure for water and sewerage. We have a growing city. We need to extend our system of sanitary sewers and under this limit we cannot do it. Our people are proud of our school houses. They are a good investment, and if we want to put up more we can't do it. I ask the Convention if it is wise, if it is right, if it is just, especially in view of the fact that we may take it for granted that hereafter all debts will be required to be approved by a majority vote of the tax payers, to put the city of Montgomery in a condition where she must stand still, and can not extend its sewerage when needed, and may, perhaps, he compelled to go backwards.

MR. SANFORD - When you pay your debts you can go forward.

MR. JONES (Montgomery) - Sometimes a man is not able to pay debts, although he can pay interest, and sometimes if he is honest and wants money and needs bread and meat, and has a family which will starve without it, it is wise to leave it to the people he deals with to determine whether to credit him. He ought not to be cut off from the use of his creditors.

MR. WALKER - May I interrupt the gentleman?

MR. JONES (Montgomery) -  Will that come out of my time?

THE PRESIDENT PRO TEM- Yes.

MR. JONES - Then, I hope he will make it short.

MR. WALKER - The suggestion in behalf of Montgomery, Birmingham and perhaps some other cities in the State goes to show that they are not in position to stand this kind of a limitation, because of what they have done in the past. Would not that objection be obviated by adopting the scriptural example and excepting the prodigal sons from this limitation?

MR. JONES (Montgomery) - Unquestionably it would, but we cannot tell whether this Convention will accept that mode of relief. We have had these propositions up for several days, and we do not know what the Convention will do. So we must fight for an acceptable proposition at all points.


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Now, I wish to state another fact about the city of Montgomery which illustrates the unwisdom of cast iron constitutional provisions in regard to municipalities. We are restricted to one half of one per cent for current expenses. It is the universal experience of every one connected with the city government that they cannot do it. Although I fall in that class to which allusion was made by my distinguished friend from Montgomery and no man loves him better, an ex - alderman, I desire to give my experience and to say that during ten years in the City Council with such men as George W. Stone, Jno. W. Durr, we found the city could not live on the fifty cents. What is the result? It drives these corporations to do many of the things of which such just complaint is made. They are bound to have revenue and they reach out everywhere for it, and compel individuals to bear burdens, which should be borne by the city. I appeal to my friend, who wants to cut down the unbridled power of local assessments, not to cut down the debt limitation to such an extent that the municipalities will be forced to do what they have been doing, go out in the highways and under the claim of police power take up a bootblack and make him pay $10 of license, take a contractor working two or three hands and make him pay a heavy license, and put unwarranted burdens on even the smallest kinds of business. It is most unjust to pay in this way things that should be paid by general taxation.

The time of the gentleman here expired and on motion of the delegate from Walker (Mr. Long) was extended.

MR. JONES - I am obliged for the courtesy of the Convention and will detain the Convention but a few moments longer.

I was about to call attention to the patriotic attitude of the people of Montgomery to this illegal taxation of about $20,000 a year, which has been collected for years to keep our heads above water, to preserve our health. Although it is a matter of common knowledge that the tax is illegal, and at any moment could be stricken down by an injunction, there has never been in the history of the city but once, when any citizen raised that point, and what was at a time when our people did not control Montgomery. Ever since 1875 the people have gone on submitting to what was a notoriously illegal burden, because they were willing to make sacrifices for the growth and honor of their city, and to promote the welfare and prosperity of the Capital of Alabama.

Now that is our condition, and we appeal to the delegates who represent the sovereign power of Alabama not to put the people of its Capital in a position which they will hereafter regret.

MR. WEAKLEY - In order to meet the wishes of a number of gentlemen on this floor, I ask unanimous consent of the


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Convention to amend the substitute offered by me by adding certain words which the clerk will read.

The amendment was read as follows: Amend by adding after the word "improvement," "provided, that the proceeds of all obligations issued as herein provided in excess of said seven per centum shall not be used for any purpose other than that for which said obligations were issued."

There was no objection and the amendment was made.

MR. BROWNE- I have no particular objection that this Convention should place no limit whatever upon the capacity of debt of municipalities, but if it does undertake to put a debt limit, it should be a reasonable one. The substitute of the delegate from Lauderdale is 10,000 times worst than no debt limit. because it invites extravagant expenditures of money. If a man owns a plantation and has an honest overseer upon it and goes away allowing him to expend money, as needed, he will probably, being an honest man, only expend a reasonable amount, but if, when he leaves he tells him "I limit you to $100 to buy feed for the mules, but for all other purposes spend as much as you please," no matter how honest that man may be, when you come home you will find he has made extravagant expenditures.

This substitute says you can expend 7 per cent. for general purposes, but for waterworks that ought to come under general expenses, for sewerage and for street and sidewalk improvements of all kinds, you may spend whatever you may see fit to. After carefully studying this, I say that the debt limit is not for the benefit of the people, but for the benefit of the bondholders, and I say that for this reason: Our courts have a way of holding that you cannot mandamus a city and make it appropriate its general fund or the money it derives from taxation for the payment of interest on a bonded debt until it shall have expended whatever money was necessary for general expenses. Suppose 7 per cent. is not enough for the general expenses. Suppose, in other words, a city becomes indebted in an amount greater than 7 per cent., and a bondholder comes up and says "you cannot pay one dime of that debt you have created for general purposes, we will go to the courts and mandamus you against paying the debt created for general purposes and force you to apply it to the payment of interest on the bonded debt," and Mr. Bondholder says allow an unlimited bonded debt of the character we deal in. I say it would be better to lay the whole matter on the table than to let this substitute become the law.

I am entirely impartial in this matter and I am willing to admit there is no provision in the Section as reported to meet the necessities of Montgomery, Birmingham and other towns, and that there ought to be some provision and that if you want to put a


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debt for paving streets on abutting property holders and let the city endorse that, that there should be some power to do it but not to this extent. There are smaller cities in Alabama who are not entitled to the luxury of water works, and gas, and electric light plants and paved streets and they ought not to be allowed to float bonds for these purposes. Such expenditures would be pure extravagance. The smaller towns do not need these things.

I made the proposition to the gentleman from Lauderdale awhile ago and you heard it made by the gentleman from Greene, why not make an exception to your cities? Why not? These cities have a right to levy taxes to 1 per cent. of the taxable value where the other towns have only a right to levy one - half of 1 per cent. Their income per $100 of the taxable property is double that of other cities and they should have a right to create a larger bonded indebtedness. If your income is $2,000 and mine is $1,000, you can safely incur a greater debt than I can, but, gentlemen, I propose to leave this Section just as reported, which will suit the larger number of cities and then if these other cities want to be excepted, we can except them. You have it now because it provides that the Section shall not apply to cities over 6,000 inhabitants, but there are a number of cities under 6,000 that long before another Constitution will be over 6,000, and who don't want any such provision.

MR. HARRISON - Are there seven cities in Alabama that have the right to levy one - half additional tax?

MR. BROWNE - No, sir. I have said to the gentleman like the gentleman from Greene said, why not make exceptions to their cities. The truth is they don't want to call attention to their adversities. There is the milk in the cocoanut. They recognize that it makes against the city to have it known that they have a right to create an enormous debt.

MR. PILLANS - We have no such feeling in the world.

MR. WEATHERLY - The gentleman can except us also.

MR. BROWNE - Then we have it down to the gentleman from Lauderdale and we can compromise in a moment. We have it in here cities over 7,000. There may be a city over 6,000 that don't want the limit. If we have this shall not apply to the city of Mobile, and Birmingham, which can do so and so, that looks to me like it would end the matter. And I understand Montgomery wants to come in and be allowed to levy a greater amount.

MR. SANFORD - Montgomery is not willing to it, whatever may be the views of some of the delegates.

MR. BROWNE - If the Convention wants to give to these cities the right they ask, don't put it on every other city in Ala-


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bama when they are not asking for it - don't allow them to create tremendous debts when they are not requesting It. I am opposed to reckless and extravagant expenditures. My town has been burnt and I am one of the children who dread the fire. I am willing for any city which desires to have what it wants in this regard, but I don't want to put in a general limit that may cover some towns that don't want it.

MR. REESE - What objection will there be to saying a city of 6,000 according to the last census?

MR. BROWNE- That would satisfy me.

MR. HARRISON - Don't you carry out the spirit of the proposed limit if you allow those cities and towns a greater rate that they ought to levy a greater rate of taxation so as not to contract a debt without a reasonable probability of paving?

MR. BROWNE - I think so. No city that levies a tax of one - half of 1 per cent. can pay a debt greater than 5 per cent. of its taxable value, or pay the interest on it. Of course there is allowed by the Committee's report 3 per cent. for waterworks and electric light and gas plants which are of course sources of revenue but whenever a city goes in debt to a greater extent than 5 per cent. of the taxable value it is bound to default in payment of interest if it cannot levy a greater rate than one - half of 1 per cent.

MR. PILLANS - If a city buys waterworks with which it increases its revenue, would that be lessening, the ability to pay ?

MR. BROWNE - I answered that before you asked it.

MR. PILLANS - I beg pardon. Or if the cost or a great part of it, of payments is paid by the abutting property owner, is that a permanent charge against the city?

MR. BROWNE - I thank the gentleman for the suggestion. I for one care not what Montgomery has, if you want to confiscate the property of your citizens as it is charged upon the floor of this House you are engaged in doing now to some extent; you may go on and do it, but we do not want that law to be enforced all over the State of Alabama. I drew up an amendment to this section, but it was not acceptable, providing that there should not be assessed, against abutting properties for street, sidewalk and sewerage improvements a greater amount than 10 per cent. of the property, and they said that was not enough.

MR. PILLANS - May I ask a question?

MR. BROWNE - Yes.


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owners of vacant lots ought to pay, not according to a percentage of the value of the property, but according to the front foot, when the people on each side by heavy expenditures in building have increased the value and usefulness of such vacant lot?

MR. BROWNE ‑ I do not know how that is. I know in some towns they will build a sidewalk for you, and in less than two years will tear it up and build another. It always did seem to me there was a job in it, but I have known it to be done.

Now, no doubt upon one proposition, under the recent decisions of the Supreme Court of the United States it has become the law of the land, not of the State of Alabama, but it probably would be in case they sued in the Federal Court, that you can absolutely confiscate property for street improvement.

MR. MACDONALD ‑ You mean only in cases where the Legislature permits such a thing to be done, not that it is the law?

MR. BROWNE ‑ Yes. Under the decision of the Supreme Court, the Legislature of Alabama can pass a law that will allow a city to confiscate the property, and there is nothing in our Constitution to justify the court in holding it unconstitutional, and certainly the Supreme Court of the United States, under their last two utterances on this subject, would hold that it is perfectly right and proper. They undertook in overruling the Norwood case, to say they did not overrule it, but in effect they did, because one of those cases is where they assessed suburban property going out to a park, for street improvement, for the benefit of all citizens and visitors, and after the assessment was made they had to sell the property, and the proceeds of the sale did not pay the assessment, but the Supreme Court said it was not a confiscation of that property. They had to explain that they did not overrule the Norwood case. In effect they did, but they said they did not. So, when the courts have come to that pass, where they uphold the absolute confiscation of property, I do not want the town that I represent, or the town that I live in, to have the right to go in debt to an unlimited amount and confiscate the property of its citizens.

I am not opposed to improvements. It has been said by the gentleman from Mobile that he wants them to assess his property. I will state, Mr. President, that on the street where I live in Talladega, the owners for two blocks there have offered to pave the street entirely free of any cost to the city, if the city would make the owners from there to town pave theirs, by charging them one ‑ half the cost and the city paying the other half. I am in favor of this kind of improvement, but I am not in favor of allowing it to be done under the guise of law.


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MR. PILLANS - Did the other people agree to do that? Those outside of the two blocks named?

MR. BROWNE - The city has not yet done it, but we think they will.

MR. PILLANS - But if the others do not agree, and it is not made compulsory on them, and you pave your two blocks you can never make the others pave.

MR. BROWNE - There are some poor people living between ourselves and town. One case of two orphan girls, and another case of a widow, and we do not want to confiscate their property.

And another thing, the town of Talladega can get along with 5 per cent., and 3 per cent. for its water works, and then pay onehalf for street improvements, but we do not propose to pave our streets in an expensive manner. The town of Talladega has no right to pave as the streets are paved here in Montgomery. A brick sidewalk is all that they ask for.

Now in conclusion we ought not to spend so much time looking at this question from two different standpoints. I admit Montgomery and Birmingham should have relief, but I submit they ought not to say we will take it, and take it in a way that will hurt the other cities and towns in Alabama, or nut take it at all.

MR. KNOX - I have supported the Committee on Taxation I believe in every proposition that they have submitted to the Convention, and I have the greatest respect for the ability and wisdom of that committee, but it seems to me that in considering a matter having reference directly to the interest of the cities of the State, we ought to give weight to the committee which has had this matter specially in charge; we ought to consider carefully the recommendations of the Committee on Municipal Corporations, when we come to deal with the delicate questions of municipal taxation.

Now, the argument of the distinguished gentleman, the Chairman of the Committee on Taxation, suggesting that this whole matter will be relieved by exempting the cities of Montgomery, Mobile and Birmingham, from the operation of the law, assumes, Mr. President, that we are not going to have any more cities in Alabama. Why, the State is undergoing a rapid development. We have coming on the cities of Anniston, Huntsville, Florence and Decatur. All of these cities are receiving an impetus of growth, and we hope within a few years we will have many cities like Birmingham, Mobile and Montgomery! And why is it, Mr. President, that these cities are here asking for more latitude in the matter of taxation? It is because, when you build a great city, you must have revenues. This condition is not confined to the


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few cities in Alabama. If you will go into Georgia and consider the conditions prevailing in Atlanta and Savannah and other cities, and if you look at other cities in other States, you will find they require ample revenues. You cannot pave streets, you cannot lay sewers, you cannot establish water works without revenues. It seems to me that we ought to go cautiously in this matter. We are establishing a Constitution here that may last for fifty years or may last for a hundred years, and we do not know in that time how many cities in Alabama will be circumstanced just like these cities that the Chairman of the committee now proposes to except from the provisions of the article.

I turn the gentleman's argument back upon him when he suggest, here that we except Mobile, Birmingham and Montgomery from the operation of this law, and ask him why he does not instead except Talladega from the operation of the law, which is limited by its terms to cities of over six thousand inhabitants? It seems to me, Mr. President, that the terms of the amendment proposed by the gentleman from Lauderdale sufficiently cover the question and ought to be adopted.

The gentleman from Lauderdale is the author in this Convention of this proposition of limiting the right of cities to create debts. I think he first suggested it. I advocated it in the opening remarks that I made before the Convention, and my mind was prompted to investigation along this line by hearing him discuss the question, and reading several papers on the subject which he had delivered in other cities in this country. He has advocated this restriction, but it seems that when he has sought to enforce his views along that line, some delegates have thought it such a good thing that they want to make the restrictions greater than seem prudent. It seems to me, Mr. President and gentlemen of the Convention, that we should adopt the substitute proposed by the gentleman from Lauderdale, and upon that I move the previous question.

Mr. Coleman (Greene) rose for recognition.

MR. KNOX - If the gentleman from Greene desires to discuss the question I will withdraw the motion.

MR. SANFORD - Would not it necessarily increase taxation if you have no limitation upon the amount of indebtedness which they can contract? Will they not have to increase taxation to meet that larger indebtedness, or go into bankruptcy?

MR. KNOX - I reply to that, Mr. President, by saying that the amendment offered by the gentleman from Lauderdale does limit the power to create debts except that it does not limit it with reference to laying sewers, purchasing water works, and with reference to street improvements, and it seems to me that the


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people of these different cities will be able to place sufficient limitation upon the law - making power to protect themselves on that point. When the city of Montgomery purchased the water works here, it was competent for the people of Montgomery to have expressed their views on that question, and had it been contrary to the wishes of the city of Montgomery and its people, I doubt not the purchase would not have been made.

MR. JONES (Montgomery) - Nearly all expressed themselves as in favor of the purchase.

MR. SANFORD - They were in favor of that because it was no burden.

MR. KNOX - There is another clause in the Article reported by the Committee on Municipal Corporations which restricts the issue of bonds, except by a vote of the city that makes it. That is a sufficient limitation, and we should not make an iron - clad rule that will hamper our cities in the future. I move the previous question.

THE PRESIDENT PRO TEM. - Will the gentleman from Calhoun allow the present presiding officer to retire to his desk to offer a little short amendment before that is done.

The President resumed the chair.

MR. CUNNINGHAM - I ask unanimous consent to offer this little bit of an amendment to the original proposition offered by Mr. Weakley. It will cause no debate, but it is pregnant with facts and prospects. "Amendment - After the words Gadsden, insert the word Ensley."

MR. CUNNINGHAM - I hope there is no objection.

There being none, the amendment was allowed.

Mr. Cunningham took the chair.

MR. COLEMAN (Greene) - The honorable President of this Convention commended the delegate from Lauderdale for having been the first person to suggest a limitation upon the tax rate of the cities. We accepted that suggestion with great applause, but the amendment now offered by him shows that suggestion was a promise made but to be broken in performance.

Under the statement of the delegate who last addressed you, he says we ought to assume that there are going to be other cities in the State of Alabama, and that they should be provided for. Mr. President and delegates of the Convention, it is in anticipation that those cities will grown up in our State that we resist this unlimited power of taxation. We have heard from delegates from these cities the condition that they are in, and what need


1589

CONSTITUTIONAL CONVENTION, 1901

they have for greater taxation, and it is to provide against that emergency and that contingency that we wish to place a limit upon the power of taxation for cities hereafter to come. It seems to me it will not be out of place at this time to explain what perhaps is not realized by every member of this Convention as to these arguments which have been made in favor of taxing property owners abutting sidewalks and streets. Under the law which prevails in this State the rate of taxation could not exceed the value of the improvements added to the abutting owners. You could assess the abutting owners, but you were controlled by the increased valuation made by the improvements, and there was equity in that provision and I have heard no voice against it, but when the argument is made before this Convention that we should stand by the decisions of the courts, and that legislators should always recognize the decisions of the courts, it suggests a very dangerous proposition. To my mind, courts should be governed by the Legislators, and by conventions, and whenever the court detects a deficiency in the law, and points out the hardships that may operate against the citizens of a State by reason of the defect in the law, it becomes the duty of the Legislature, or body creating the organic law, to provide against the defect, and protect the citizen from imposition and unjust burdens.

Under the late decision of the Supreme Court, it has been said that you may sell all the property adjoining these improvements for the cost. That is the proposition you are now confronted with. Not the one which we supposed prevailed in Alabama, that you could increase the tax up to a point that it enhanced the value, but the whole property may be subjected to the cost. Now, when the courts announced the proposition of that kind, it behooves the legislative powers to interfere and restrain the courts and impose restrictions which will prevent any such unjust exactions. The reason why those decisions are made, is because in the Constitution or in the statutes, there is no legislation respecting the power of the Legislature to confiscate or appropriate property in favor of abutting improvements.

It seems to me when I take occasion to state on behalf of the committee, that the committee has been anxious to meet the views and conditions of the towns in the State, we propose, as a committee, to except these towns, if they desire to be excepted, and they decline to do so, and when the suggestion has been made here, time and again, are you willing to have your town or city excepted, we have been met with a refusal. Now, will the delegates to this Convention consider whether it is right or not for the remainder of the State to have a burden placed upon it, in order to accommodate the cities mentioned, rather than relieve the balance of the State, and except those cities ? I judge there is not a man in this Convention who will object to excepting the cities named, except perhaps the city of Montgomery. There the dele-


1590

OFFICIAL PROCEEDINGS

gates seem to be divided, and it becomes the duty of this Convention to determine as between the two parties representing Montgomery which is the better plan, and to decide according to law, but as for the other cities, I venture to assert there is not one single objection, and why should they insist upon driving the balance of the State down, in order to pass us along with them? What injustice is it to except them by name and relieve the balance of the State? What unfairness is there in it? Why should not they be named, and if they desire to be excepted, give them all the latitude they want? This Convention will no doubt accept that proposition. We have made it time and again, but if, as intimated on the floor, these cities have formed a combination and will not desert each other, then I say to the delegates of the Convention, you who represent the taxpayers of this State, it becomes you to look well to your own interests and to their interests. We should protect the people whom we represent, and if these cities are not willing to be excepted, they should abide the consequences.

MR. KNOX - I move the previous question upon the original section and pending amendment.

Mr. Lowe (Jefferson) sought recognition.

THE PRESIDENT PRO TEM - For what purpose does the gentleman rise?

MR. LOWE (Jefferson) - I rise to suggest to the gentleman who made the motion, that an amendment is to be offered now, providing for the contingency of excepting certain cities.

MR. KNOX - Then I suggest that the previous question be restricted to the amendment.

MR. BROWNE - To the two amendments - limit it to both.

THE PRESIDENT - The previous question has been called on the amendment offered by the gentleman from Madison, and the amendment offered by the gentleman from Lauderdale. The question is shall the main question be ordered on the two amendments offered to the report of the Committee on Taxation?

The main question was ordered.

The clerk was directed to read the amendment by Mr. Walker.

MR. JONES (Montgomery) - I rise to a point of order. There was a substitute offered-

THE PRESIDENT PRO TEM-.The substitute was offered by the gentleman from Lauderdale, and to the substitute the gentleman from Madison offered an amendment, which is now the pending question.


1591

CONSTITUTIONAL CONVENTION, 1901

The amendment to the substitute was read.

MR. SANFORD - I call for the ayes and noes.

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

THE PRESIDENT PRO TEM - The motion is out of order, the previous question having already been ordered.

The call for the ayes and noes was sustained by the requisite number rising.

THE PRESIDENT PRO TEM. - The question is on the adoption of the amendment. Those in favor of the amendment will vote aye, and those opposed, no, when your names are called.

MR. PILLANS - I suppose it is perfectly well understood that the amendment now being voted on is the amendment offered by the gentleman from Madison.

THE PRESIDENT PRO TEM - It is.

During the call of the roll.

MR. BAREFIELD - I am paired with Mr. Miller of Marengo. If he were here he would vote aye and I would vote no.

MR. deGRAFFENREID - I am paired with the gentleman from Dallas, Mr. Craig. If he were here he would vote aye and I would vote no.

MR. STEWART - I am paired with some gentleman whose name I cannot now recall. I would vote no, but I do not know how the other gentleman would vote.

The call of the roll resulted as follows:

AYES

Beavers,

Fletcher,

Oates,

Browne,

Foshee,

O'Rear,

Bulger,

Freeman,

Palmer,

Byars,

Glover,

Phillips,

Carnathon,

Grayson,

Rogers (Sumter),

Chapman,

Kirk,

Sanford,

Cobb,

Leigh,

Smith, Morgan M.

Cofer,

Lowe, of Lawrence,

Spragins,

Coleman, of Greene,

Malone,

Walker,

Espy,

Maxwell,

Fitts,

Moody,

 TOTAL - 31.


1592

OFFICIAL PROCEEDINGS

NOES

Messrs. President,

Hood,

Pettus,

Ashcraft,

Howell,

Pillans,

Banks,

Howze,

Pitts,

Beddow,

Inge,

Porter,

Bethune,

Jenkins,

Proctor,

Blackwell,

Jones, of Bibb,

Reese,

Boone,

Jones, of Hale,

Renfro,

Brooks,

Jones, of Montgomery,

Reynolds (Chilton),

Burnett,

Jones, of Wilcox,

Reynolds, of Henry,

Burns,

Kirkland,

Rogers (Lowndes),

Cardon,

Knight,

Sanders,

Carmichael, of Colbert,

Kyle,

Searcy,

Carmichael, of Coffee,

Locklin,

Selheimer,

Cornwall,

Lomax,

Sentell,

Cunningham,

Long, of Walker,

Sloan,

Davis, of Etowah,

Lowe, of Jefferson,

Smith (Mobile),

Dent,

Macdonald,

Smith, Mac, A.,

Duke,

McMillan (Wilcox),

Sorrell,

Eley,

Martin,

Stoddard,

Eyster,

Miller (Wilcox),

Thompson,

Ferguson,

Mulkey,

Waddell,

Foster,

Murphree,

Watts,

Graham, of Montgomery,

NeSmith,

Weakley,

Graham, of Talladega,

Norman,

Weatherly,

Haley,

Norwood,

White,

Harrison,

O'Neal (Lauderdale),

Williams (Barbour),

Heflin, of Chambers,

O'Neill, of Jefferson,

Williams (Marengo),

Heflin, of Randolph,

Opp,

Wilson (Washington),

Henderson,

Parker (Cullman),

Winn,

Hodges,

Parker (Elmore),

 TOTAL - 89

ABSENT OR NOT VOTING

Altman,

Greer, of Perry,

Robinson,

Almon,

Handley,

Samford,

Barefield,

Hinson,

Sollie,

Bartlett,

Jackson,

Spears,

Case,

King,

Stewart,

Coleman, of Walker,

Ledbetter,

Tayloe,

Craig,

Long, of Butler,

Vaughan,

Davis, of DeKalb,

McMillan, of Baldwin,

Whiteside,

deGraffenreid,

Merrill,

Willet,

Gilmore,

Miller (Marengo),

Williams (Elmore).

Grant,

Morrisette,

Wilson (Clarke),

Greer, of Calhoun,

Pearce,


1593

CONSTITUTIONAL CONVENTION, 1901

MR. OATES ‑ I am paired with Mr. Morrisette, the delegate from Monroe, but not knowing how he would vote if he were present, I voted.

By a vote of eighty ‑ nine noes and thirty ‑ one ayes, the amendment to the substitute was lost.

THE PRESIDENT PRO TEM ‑ The question is on the adoption of the substitute offered by the gentleman from Lauderdale.

MR. deGRAFFENREID ‑ I have a substitute I desire to offer.

THE PRESIDENT PRO TEM ‑ It is out of order. The previous question has been ordered on both amendments.

MR. HARRISON ‑ I demand the ayes and noes on that amendment.

THE PRESIDENT PRO TEM ‑ The question is on the adoption of the substitute offered by the gentleman from Lauderdale. As many as favor the adoption will say aye, and those opposed no, as your names are called.

A reading of the substitute was called for, and the clerk read the substitute, and before the reading was concluded the clock struck one.

MR. WATTS ‑ I move that we remain in session until this vote is taken.

THE PRESIDENT PRO TEM ‑ The gentleman moves that the rules be suspended.

MR. deGRAFFENREID ‑ I rise to a point of order. The hour of one has struck and this Convention is adjourned.

THE PRESIDENT PRO TEM ‑ It seems to the chair that the point of order is well taken.

And thereupon the Convention adjourned until 3:30 p. m.

_____________

AFTERNOON SESSION

The Convention reconvened at 3:30 p. m.

THE PRESIDENT ‑ The question before the Convention will be on the adoption of the substitute proposed by the gentleman from Lauderdale to Section 10, reported by the Committee on Taxation. The ayes and noes have been called and the call 


1594       

OFFICIAL PROCEEDINGS

sustained. As many as favor the adoption of the substitute will say aye, and those opposed no, as your names are called.

MR. OPP - I desire to obtain unanimous consent to amend the substitute of the gentleman from Lauderdale by adding the words "town of Andalusia" after the word "Ensley."

There being no objection the amendment was incorporated into the substitute as requested.

MR. REESE - I ask that the substitute be read.

The substitute was again read.

MR. WEAKLEY - Before proceeding with the vote, it appears in the draft of the bill, one Section was omitted which was intended to go in there, and it has been called to my attention by the Chairman of the Taxation Committee. I ask unanimous consent that the substitute be amended in that respect.

MR. SANFORD - I make a point of order that it is too late to make amendments.

MR. BULGER - Read it.

The amendment was read as follows:

Insert after the words "may be created" where they first appear in the substitute "provided this limitation shall not apply to any debt now authorized by law to be created.

There being no objection, the amendment was incorporated into the substitute.

MR. EYSTER - I ask unanimous consent to add a couple of words. Add the words "Decatur and New Decatur" after the words "town of Andalusia."

There being no objection, the substitute was amended by making the addition as requested.

Thereupon during the call of the roll:

MR. BAREFIELD - I am paired with Mr. Miller of Marengo, if he was here he would vote no and I would vote aye.

MR. GLOVER - I am paired with Mr. Mulkey. If he were here he would vote aye and I would vote no.

And the call of the roll resulted as follows:


1595

CONSTITUTIONAL CONVENTION, 1901

AYES

Messrs. President,

Heflin, of Randolph,

O'Rear,

Ashcraft,

Hood,

Palmer,

Banks,

Howell,

Parker, of Cullman,

Beddow,

Howze,

Parker, of Elmore,

Blackwell,

Inge,

Pettus,

Boone,

Jenkins,

Pillans,

Brooks,

Jones, of Bibb,

Pitts,

Bulger,

Jones, of Hale,

Porter,

Burns,

Jones, of Montgomery,

Proctor,

Cardon,

Jones, of Wilcox,

Rogers, of Lowndes,

Carmichael, of Colbert,

Kirkland,

Sanders,

Carmichael, of Coffee,

Knight,

Selheimer,

Cornwall,

Kyle,

 

Smith, of Mobile,

Cunningham,

Locklin,

Smith, Mac. A.,

Davis, of Etowah,

Lomax,

Thompson,

Dent,

Long, of Walker,

Waddell,

Eley,

Lowe, of Jefferson,

Watts,

Eyster,

McMillan, of Wilcox,

Weakley,

Ferguson,

Martin,

Weatherly,

Fletcher,

Merrill,

White,

Foster,

Miller, of Wilcox,

Williams, of Barbour,

Freeman,

Norman,

Williams, of Marengo,

Graham, of Montgomery,

Norwood,

Wilson, of Clarke,

Graham. of Talladega,

O'Neal, of Lauderdale,

Wilson, of Washington,

Grayson,

O'Neill (Jefferson),

Haley,

Opp,

TOTAL - 77

NOES

Browne,

Kirk,

Rogers, of Sumter,

Burnett,

Leigh,

Sanford,

Byars,

Lowe, of Lawrence,

Searcy,

Carnathon,

MacDonald,

Sentell,

Chapman,

Malone,

Sloan,

Cobb,

Maxwell,

Smith, Morgan M.,

Cofer,

Moody,

Sorrell,

Coleman, of Greene,

Murphree,

Spragins,

Fitts,

Oates,

Stewart,

Foshee,

Phillips,

Walker,

Harrison,

Reese,

Winn,

Hodges,

Renfro,

Jackson,

Reynolds (Henry),

 TOTAL - 37


1596

OFFICIAL PROCEEDINGS

ABSENT OR NOT VOTING

Almon,

Glover,

Mulkey,

Altman,

Grant,

NeSmith,

Barefield,

Greer, of Calhoun,

Pearce,

Bartlett,

Greer, of Perry,

Reynolds, of Chilton,

Beavers,

Handley,

Robinson,

Bethune,

Heflin, of Chambers,

Samford,

Case,

Henderson,

Sollie,

Coleman, of Walker,

Hinson,

Spears,

Craig,

King,

Studdard,

Davis, of DeKalb,

Ledbetter,

Tayloe,

deGraffenreid,

Long, of Butler,

Vaughan,

Duke,

McMillan (Baldwin),

Whiteside,

Espy,

Miller, of Marengo,

Willet,

Gilmore,

Morrisette,

Williams, of Elmore,

MR. WEAKLEY - I move the previous question upon the Section as amended.

MR. MACDONALD - I would ask the gentleman to withdraw that, as I desire to present an amendment.

THE PRESIDENT PRO TEM (Mr. Cunningham)  - Does the gentleman withdraw the call for the previous question?

MR. WEAKLEY - No sir.

MR. BROWNE- I move to lay the Section on the table.

MR. LOWE (Jefferson) - I rise to a point of order.

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

MR. LOWE (Jefferson) - The previous question has been ordered.

THE PRESIDENT PRO TEM - The previous question having been moved, not ordered, the point of order is not well taken and the question is on the motion to table.

A vote being taken the Convention refused to table.

THE PRESIDENT PRO TEM - The question recurs on the call for the previous question and the question is shall the main question be put? For what purpose did the gentleman from Mobile (Mr. Pillans) rise?

MR. PILLANS - I thought the question had lapsed and I was going to renew it.

A vote being taken, the previous question was ordered, and a further vote being taken the Section as amended was adopted.


1597

CONSTITUTIONAL CONVENTION, 1901

MR. BROWNE. - I offer an additional Section.

The Section was read as follows:

Amendment to Article XL:

Add an additional Section and number the same Section 5 as follows:

Sec. 5. No county in this State shall be authorized to levy a larger rate of taxation in any one year, on the value of the taxable property therein, than one - half of 1 per centum. Provided, that to pay debts existing at the ratification of the Constitution of 1875, an additional rate of one - fourth of 1 per centum may be levied and collected which shall be exclusively appropriated to the payment of such debts or the interest thereon: Provided further, that to pay any debt or liability now existing against any county, incurred for the erection, construction and maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection and maintenance of necessary public buildings, bridges or roads, any county may levy and collect such special taxes, not to exceed a rate of one - fourth of 1 per centum, as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purpose for which the same were so levied and collected; provided further, that for additional aid to the public schools any county may levy and collect such special tax as may be authorized by law, provided such tax, at the time it is to continue, and the purpose thereof, shall have been first submitted to a vote of the qualified electors of the county and voted for by a three - fifths majority thereof voting at such election; but the rate of such special tax shall not increase the rate of taxation in any one year to more than $1.25 on every $100 worth of taxable property, for all State and county purposes, excluding special taxes for necessary public buildings, roads, bridges and payment of debts existing at the ratification of the Constitution at 1875 ; and provided, further, that such tax for schools shall be apportioned equitably and paid through the proper school officials to the public schools for white and those for colored pupils respectively, by the Court of County Commissioners or Board of Revenue, and that the amount apportioned to white schools shall be paid to each in proportion the number of pupils therein bears to the total number in all such white schools, and the amount apportioned to colored schools shall be paid to them in like manner.

MR. BROWNE - It is proposed that this amendment shall be incorporated in the Article as Section 5. Section 5 as reported by the Committee was laid on the table.

MR. FOSTER - Was not that Section laid on the table the other day to be taken up and considered with the report of the Committee on Education?


1598

OFFICIAL PROCEEDINGS

MR. BROWNE - No, sir. I will state to the Convention and to the President if they will listen, how that matter stands.

Section 5 as reported by the Committee was laid on the table. The gentleman from Tallapoosa first moved to lay on the table certain amendments and the proviso to the Section. The Chair started to put the question and a point of order was made that the gentleman from Tallapoosa could not move to lay part of a Section on the table. That point of order was sustained and the gentleman from Tallapoosa thereupon moved to lay the section as amended on the table, without anything further. This Section proposed has some features like Section 5 as originally proposed, but it is different. I could move to take Section 5 from the table-

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

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

MR. KIRKLAND - If I understand it, the Section the gentleman now promises to amend is now on the table to await the pleasure of the Convention, to be considered along with the like Section of the Committee on Education. If this is so, the Section cannot be amended and I make that point of order.

MR. BROWNE - But that is not so.

MR. KIRKLAND - The record will show it; and if the record shows differently I will abide by it.

MR. BROWNE - This is not the section as laid on the table. I would like to know how the chair can rule unless the chair will give attention to what is in the other section and in this.

THE PRESIDENT (Mr. Knox) - The Chair will hear from the gentleman from Talladega and will then hear from the gentleman from Dale if he desires further to address the Chair on the point of order.

MR. KIRKLAND - I only want to know what the record shows. If the record shows that I am right I shall insist on my point of order.

THE PRESIDENT - Does the gentleman desire the section that was laid on the table read.

MR. BROWNE - I object. I did not yield for any such purpose. The gentleman has no right to interrupt a gentleman by referring to the record of several days ago for the purpose of having it read. I object, and insist that the Chair should hear an explanation of the difference between this section and the section that was laid on the table.


1599

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT - The Chair is of the opinion that the gentleman would not have the right to amend a section upon the table but he would have a right to add to the article as reported an additional section. Now whether this is the same article that was laid on the table it is difficult to determine, but from the statement of the gentleman from Talladega it seems to the Chair it is not.

MR. LOMAX - I submit that the section now offered by the gentleman from Talladega is nothing but a substitute for Section 5 which was laid on the table and consequently is an amendment to that section and unless that section is taken from the table this proposition cannot be considered.

MR. BROWNE - I would like to be heard on that section.

THE PRESIDENT - The gentleman can make his statement.

MR. BROWNE - Section 5 was laid on the table.

MR. O'NEAL (Lauderdale) - No, sir; it was postponed.

MR. BROWNE - It was laid on the table, not postponed as the gentleman asserts, until some other committee reports. I will state again exactly how it occurred.

MR. KIRKLAND - I call for the reading of the record on my point of order.

THE PRESIDENT - The Chair will direct the Clerk to read the section that was laid on the table and will then hear from the delegate from Talladega.

MR. BROWNE - I desire to state that the gentlemen are entirely misinformed as to what was done with that section. The gentleman from Tallapoosa moved to lay the pending amendments and a proviso of that section upon the table-

MR. BOONE - The record is the best evidence and that has been called for.

MR. BROWNE - I am speaking to a parliamentary inquiry. The gentleman from Tallapoosa moved to lay the pending amendments and a proviso of the section upon the table. The point of order being made, the Chair held it was not in order to lay on the table a portion of a section that was under consideration and the gentleman from Tallapoosa then moved to lay the section and amendments on the table.

MR. KIRKLAND - I hope the Chair will pardon me, but I call for the reading of the record in regard to this matter. The gentleman says I am misinformed. The record will determine that fact.


1600

OFFICIAL PROCEEDINGS

THE PRESIDENT - The Chair wishes to hear the statement of the gentleman from Talladega in order to rule intelligently upon the point of order, and the Chair will direct a reading of the section which was laid on the table and after hearing both sides of the question will endeavor to rule as best he can.

MR. BROWNE - The gentleman from Tallapoosa moved to lay the amendments to this section and a proviso to this section upon the table. The Chair, upon a point of order being made, held that that motion could not be made to lay part of a section on the table. The gentleman's motion at that time was that it be taken up and considered at the time the report of the Educational Committee was considered. That was ruled out of order and the gentleman from Tallapoosa then moved that the pending amendments and the whole section be laid upon the table and he did not include in that motion that it should never be taken up again. That motion carried. Now the section that was laid upon the table was Section 5. I do not care whether you call this Section 5 or any other section, but as there is no Section 5 and as there is a blank between Sections 4 and 6, I offer this as Section 5. The section that was laid upon the table provided for a vote of a tax for educational purposes by the qualified electors who were property tax payers, and further provided it must be by a majority of the tax payers in number and representing a majority of the property. It provided further that the fund so created should be apportioned equitably by the court of County Commissioners and paid to all the schools in the county. This one provides that it may be voted for or against by all the qualified electors of the county - that before taking effect it shall be voted for by threefifths majority of the qualified electors. It provides that the tax, if levied, shall be by the Commissioners' Court apportioned between the schools for white and those for colored in the county. It is entirely and essentially different in that it provides that the Commissioners shall divide the tax into two funds, one for white schools and one for colored schools. There is no such provision in the other section which was laid on the table. It further provides (whereas in the other it was left to the Commissioners' Court to equitably divide it between the schools), that after this fund shall have been so apportioned between the two races the amount apportioned to the white schools shall be paid to each of such schools within the county in the proportion that the number of pupils in that school bears to the whole number of pupils in the white schools in the county, and that the amount apportioned to the colored schools shall be divided among the colored schools in like manner. A further difference is this: The section laid on the table provided that to pay any debt or liability now existing against any county incurred for the erection, construction or maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary


1601

CONSTITUTIONAL CONVENTION, 1901

public buildings or roads, shall not exceed one - fourth of one per cent. as may have been or may hereafter be authorized by law. While in this section the word "maintenance" is put in after the word "erection." The section laid on the table provides "but the rate of such special tax shall not increase the rate of taxation in any one year to more than $1.25 on every $100 worth of taxable property for all State and county purposes, excluding any special tax for the erection, construction and maintenance of necessary public buildings, bridges and roads." This one says "excluding special taxes for necessary public buildings, roads and bridges, and the payment of debts existing at the ratification of the Constitution of 1875." These are the essential differences between the two sections and the system is entirely different. I would like to state further that I do not know why gentlemen object, but the gentleman from Lauderdale (Mr. Ashcraft) at whose instance the other section was laid upon the table----

MR. LOWE (Jefferson) - I rise to a point of order. A point of order has been made and the gentleman is discussing other matters.

MR. BROWNE - I was just further explaining, but if gentlemen do not wish to be informed-----

MR. BULGER - How much may be levied under that section for school purposes?

MR. LOWE (Jefferson) - I rise to a point of order. The inquiry is not germane to the point of order submitted to the chair.

THE PRESIDENT - The gentleman from Tallapoosa is asking the gentleman from Talladega to explain the proposition that he offers now as an additional section, and it seems to the chair it would be permissible for him to do so, and for us all to understand what it is to see whether this section offered is the same as the one laid on the table. The point of order is not well taken.

MR. BROWNE - Under this amendment, a county could levy the difference between one dollar and fifteen cents and one dollar and a quarter, which is ten cents on the $100, notwithstanding that a county may be levying one - fourth or one - half per cent to pay debts created prior to 1875.

MR. BULGER - Under that provision, can any county levy more than one mill?

MR. BROWNE - Not unless the Legislature should levy a lower rate than 65 cents. If the Legislature, at any time in the future, levies less than 65 cents, the county, by a three - fifths vote of the qualified electors voting at an election thereon, can levy the difference between 65 cents and the rate levied by the Legislature, in addition to the one mill.


1602

OFFICIAL PROCEEDINGS

MR. KIRKLAND - I insist on my point of order. I want the record read.

The clerk read the journal of the thirty - fifth day as follows: "Unfinished business. The Convention proceeded to the consideration of the unfinished business, which was the consideration of the report of the Committee on Taxation. The question was upon the substitute offered by Mr. Merrill for the amendment offered by Mr. Cunningham to Section 5 of Article XI of the report by the Committee on Taxation. Mr. Bulger moved to table Section 5, and the pending amendments thereto, to be taken from the table, and be considered with the report of the Committee on Education. The motion prevailed, and Section 5 and pending amendments were laid upon the table."

MR. KIRKLAND - I do not care for the reading of Section 5. I think every member in this Convention knows that this section now offered is simply a substitute for Section 5.

MR. BROWNE - I call for a reading of Section 5 as laid on the table, and I ask the President to read the section now offered and to note the difference.

Section 5 of the report of the Committee on Taxation was read as follows:

Sec. 5. No county in this State shall be authorized to levy a larger rate of taxation in any one year, on the value of the taxable property therein, than 1 - 2 of 1 per centum. Provided, that to pay debts existing at the ratification of the Constitution of 1875, an additional rate of 1 - 4 of 1 per centum may be levied and collected, which shall be exclusively appropriated to the payment of such debts or the interest thereon; provided, further, that to pay any debt or liability now existing against any county, incurred for the erection, construction and maintenance of the necessary public buildings, or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges or roads, any county may levy and collect such special taxes not to exceed a rate of 1 - 4 of 1 per centum, as may be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same were so levied and collected; provided, further, that for the maintenance of public schools any county may levy and collect such special tax as may be authorized by law; provided, such special tax, the time it is to continue and the purposes thereof, shall have been first submitted to a vote of the property tax payers who are qualified electors in said county, and voted for by a majority thereof in numbers, and in value of taxable property, voting at such election; provided, that the rate of such special tax for maintenance of public schools shall not increase the rate of taxation in any one year to more than $1.25 on every $100 worth of taxable property, for all State and county


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purposes, excluding any special tax for the erection, construction and maintenance of necessary public buildings, bridges and roads; and, provided, further, that such special tax for schools shall be apportioned equitably and paid to the public schools of such county, by the Court of County Commissioners or Board of Revenue thereof.

The amendment offered by the delegate from Jefferson (Mr. Cunningham) was read as follows:

Amend Section 5 by striking out in the fifteenth line the phrase, "property tax payers who are" and in the sixteenth and seventeenth lines the following words "in numbers and value of taxable property."

The substitute offered by the delegate from Barbour (Mr. Merrill) was read as follows:

Substitute for the amendment to Section 5 of the Article 5 of the Article on Taxation, in line sixteen, after the word "by" insert the letter "a," and after the word majority, insert "of twothirds," and strike out of lines sixteen and seventeen the words "in number and in value of the taxable property."

THE PRESIDENT - Does the gentleman from Dale desire to say anything further?

MR. KIRKLAND - No, sir.

THE PRESIDENT - It seems to the chair that the Section now offered is materially different from that which was laid on the table and that the Committee may, if it desires, abandon that section and go ahead and add an additional section and that it would not be necessary for the Committee to wait until the Section is taken from the table before completing the Article. They may go ahead and add an additional section and if delegates desire to incorporate into this section the same materials embodied in amendments to the old section which was tabled they can offer them as amendments to this additional section.

MR. LOMAX - I rise to a parliamentary inquiry.

THE PRESIDENT - The gentleman will state the inquiry.

MR. LOMAX - Has this Committee or any Committee of this Convention, the right to take from the Convention an article or section which the Convention has laid upon the table for future consideration by proposing, previous to the time the Convention has shown a willingness to take that section from the table another section, which is merely a substitute for the section that has been tabled? I submit that would be the effect of allowing the committee to offer this section now.


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THE PRESIDENT - The Chair is of the opinion that the Convention may now, if it desires, take the section from the table and substitute it for the section proposed by the Committee, that it is in the pleasure of the Convention whether it will take this section from the table or let it lie there, but the Committee would not have to await the completion of its work and the completion of the Article, it may go on and propose an additional section which is materially different from the section on the table. The Chair will recognize the gentleman from Dale.

MR. KIRKLAND - I move that the substitute or amendment or whatever it is, be laid on the table.

THE PRESIDENT - The Chair recognized the gentleman to discuss the point of order. The gentleman from Talladega has the floor.

MR. KIRKLAND - I understood the Chair recognized me. The Chair had ruled on my point of order and against it, and I did not rise to discuss the point of order at all.

THE PRESIDENT - While the gentleman from Talladega has the floor the Chair could not recognize any other delegate except on a point of order or parliamentary inquiry. The Chair could not displace the gentleman from Talladega.

MR. KIRKLAND - Then I raise the point of order on the gentleman from Talladega that his time is out. He has occupied the floor for more than ten minutes.

MR. BROWNE - That is a daisy. I have not occupied the floor ten minutes, but the gentleman interrupting have. I do not want but my ten minutes, but the amendment has just been read and I have barely started.

THE PRESIDENT - The Chair is embarrassed in ruling on that, because the Chair has been so interested on the point of order of the gentleman from Dale that he has not kept the time of the gentleman from Talladega. The gentleman from Talladega will proceed.

MR. BROWNE - Before I say anything on that subject I want to commend the gentleman from Dale for his energy and activity in trying to defeat any measure that may be proposed to this Convention looking towards the education of the boys and girls, not only barefooted ones, but boys and girls with shoes on as well.

MR. KIRKLAND - Will the gentleman please speak louder. We are at least entitled to hear what he is saying.

MR. BROWNE - Come farther front, then.


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The Suffrage Committee has reported an Article on Suffrage that will, after three years, disfranchise thousands of white boys in the State of Alabama unless ample school facilities are provided for them. We have now in Alabama but three to four months public schools; under the provision of this Section we can add to the school fund of the State of Alabama $250,000.

MR. CORNWELL - Will the gentleman permit an interruption ?

MR. BROWNE - Certainly.

MR. CORNWELL - The gentleman seems so much interested in the education of our boys I would like to inquire why he don't say a majority of the qualified voters shall pass on this question instead of three - fifths?

MR. BROWNE - I have been working all my life to be a millionaire and I have made only a few hundred dollars, but I don't propose to throw that away because I cannot get the million. If the gentleman has the capacity to get this Convention to adopt an amendment providing for a bare majority, I will be well satisfied.

Under this section if adopted the State will have an additional $250,000 for the public schools, provided the counties see fit to levy the tax. It may be and probably is true that some counties of the State of Alabama will not even endeavor to levy this tax, but numerous counties will levy it and supplement the school fund. I do not know how statistics show up in other counties but in my county this tax being levied would result in giving about from 75 cents to 90 cents additional to every pupil., I believe the rate now, property, poll tax and all is about $1.60.

Something has been said and will be said with respect to levying this tax by school districts or townships. That is not practical in the State of Alabama. It would be very unpopular in counties like mine. I will not discuss the counties of other gentlemen. In the county of Talladega we have about seven townships in which are railroad centers, iron furnaces, cotton factories and large mercantile houses and the like. Those townships levying this tax and appropriating it all to their own use would have magnificent schools; all the corporation taxes in the county would be paid to them and the outlying townships would get no benefit. Therefore, throughout the State of Alabama the county unit is much preferable to the township unit.

MR. WHITE - The gentleman says the county unit is better than a township unit, how about the State unit?

MR. BROWNE - The State unit is bad enough, but it has come to stay. The State of Alabama appropriates $1,200,000. That comes out of the general tax. That is divided as everyone knows


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in proportion to the number of children of school age in each county, without regard to whether or not they attend the schools. This proposed section provides after it is apportioned equitably between the two races, that the part apportioned to the white race shall be paid to each school in the proportion that the number of pupils in that school bears to the total number in attendance in all the white schools. If any one desires to get the benefit of this fund he must send his children to the public schools, and he cannot draw the money out and spend it for groceries as has been done in many instances under the present State system.

MR. ROGERS (Sumter) - 1Vill the gentleman allow me to ask a question?

MR. BROWNE - Certainly.

MR. ROGERS (Sumter) - The law require, a certain number of children before there can be a school?

MR. BROWNE - Yes sir.

MR. ROGERS (Sumter) - There are some beats in the Black Belt that have not enough children of school age to make up that number. What would you do with that?

MR. BROWNE - There is a statute that allows them to draw their money out or attend a school in another precinct and get it that way. But that law is not constitutional and could be changed.

MR. ROGERS (Sumter) - And you propose to destroy that?

MR. BROWNE - If you live in a precinct where there are not enough children to have a school you may send them to any public school in that county and your child gets its pro rata share in the other school. That is one of the main advantages of this law over the State system. Under this it makes no difference where your child goes to school so that it is within the county and the child gets its share of this fund.

MR. ROGERS (Sumter) - But in some sections the school houses of another precinct would be so far away that the child could not walk and the parents are not able to buy a carriage for it. In such a case how would the child get the benefit?

MR. BROWNE - Do you mean where the child is not sent to school ?

MR. ROGERS -  I mean where the child would be so far from the school house in another beat that it could not walk there, and the parents are not able to pay its board to send them there. What do you propose there?


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MR. BROWNE - Do you mean what do I propose where the child won't go to the public school?

MR. ROGERS - I don't want you to put my question in any such light. The child is anxious to go - -

MR. BROWNE - But does not go in reality?

MR. ROGERS (Sumter) - He cannot go because there is not the requisite number in his beat to make up a public school.

MR. BROWNE - And on account of that, he does not go to any school?

MR. ROGERS - Yes.

MR. BROWNE - Then he gets nothing and ought not to.

MR. ROGERS - Why should he not when his father is contributing as much as any man in the county?

MR. KIRKLAND - I raise the point of order that the gentleman's time has expired.

THE PRESIDENT PRO TEM (Mr. Cunningham) - The present presiding officer does not know when the gentleman began. The gentleman has been speaking five minutes since the present presiding officer took the chair.

MR. BURNS - He is the chairman of a committee. His time is not limited to ten minutes.

THE PRESIDENT PRO TEM. - The chair is of the opinion that this is an amendment and the gentleman is not in the position of a chairman of a committee on that.

MR. FOSTER - Does this section contemplate that the fund shall be divided equally between white and black?

MR. BROWNE - It says it shall be apportioned equitably between them.

MR. FOSTER - Does the gentleman think it is legal to divide it unequally?

MR. BROWNE - Yes ; under the Federal decisions.

MR. FOSTER - Do you think that section is legal?

MR. BROWNE - Yes, sir; I know it is, if the judges of the Federal Court know what they are talking about.

MR. FOSTER - You think it is legal to divide it unequally between the races?

MR. BROWNE - Yes, sir; but it cannot be divided arbitrarily according to the amount paid by each race.


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MR. FOSTER - Does not this leave it to the Commissioners' Courts to divide it as they please?

MR. BROWNE - No, sir; to divide it equitably.

MR. FOSTER - What does "equitably" mean?

MR. BROWNE- Some Commissioners' Courts would construe it one way and some another.  The Circuit Court of the United States in Claybrooke vs. Owensboro (16 Fed. Rep.,302) held, "The equal protection of the law guaranteed by this amendment must and can only mean that the laws of the States must be equal in their benefit as well as equal in their burdens, and that less would not be ‘the equal protection of the laws.'  This does not mean absolute equality in distributing the benefits of taxation.  This is impracticable; but it does mean the distribution of the benefits upon some fair and equal classification or basis." In other words, they hold that it can be divided equitably, that it is not necessary to divide it according to the number of school children; but it is held in this decision and in other cases, that you cannot divide it according to the amount paid in each race.

Now it is proposed by this section or contemplated that the Boards of Commissioners will supplement the State public school fund with this special tax in such a way as to allow or provide for school terms of equal length for both white and black.  And that is certainly equitable.  There is no necessity for paying a teacher for a colored school the same amount you pay to white school teachers, because you can get them at much less salary. Under the present laws of Alabama, if the law is carried out, the colored pupil gets the same amount of money per capita as the white pupil, and that is not justice.

MR. ASHCRAFT - I desire to offer a substitute for the amendment offered by the gentleman from Talladega. It is only a substitute for the last provision.

THE PRESIDENT PRO TEM - In other words, it is an amendment.

The clerk - The gentleman will have to tell me the part to which it applies.

MR. ASHCRAFT - It takes the place of the last section.

The amendment was read as follows:

Amend Section 5 of Article IX, as proposed by the amendment by striking out the last provision in said section beginning in the twelfth line thereof, and inserting in lieu of said provision the following:

Sixth - It shall be the duty of the County Superintendent of Education in each county, by and with the advice and consent


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of the Court of County Commissioners, or body of like jurisdiction, to organize the white people of the county into white school districts, and the colored people of the county into colored school districts, according to their respective needs and advantages without reference to each other as to territorial boundaries.

Seventh - A trustee, or trustees, or Board of Education, as play be provided by law, shall be elected for white school districts from the white residents of such districts and for the colored school districts from the colored residents of such district ; provided, no incorporated town or city maintaining a system of public schools as provided by law, shall be separated into districts without the consent of the Mayor and Board of Aldermen of such town or city.

Eighth -- For the purpose of building, enlarging, improving or furnishing - school houses in any district, or for the purpose of supplementing the general school funds from Federal, State, county, municipal and other sources, the Court of County Commissioners, or body of like jurisdiction, shall, as hereinafter provided, levy a special assessment of not more than one - tenth of one per centum in any one year upon the property of white persons situated in one white district, or upon the property of colored persons situated in a colored district; provided, no such levy shall be made except upon the request of the qualified voters residing in the district, expressed at an election held for that purpose, at which election two - thirds of those voting must favor the special levy. At such election in a white school district only qualified white electors shall lie permitted to vote, and in colored school districts only qualified colored electors shall be permitted to vote. It shall be the duty of the Probate Judge to order such an election upon the petition of not less than one - fourth of the voters who will be entitled to vote at such election. The order for such an election shall state the purposes for which it is proposed to make the assessment, the rate of the proposed assessment, and the number of years during which such assessment is proposed to be made. Notice of such election shall be given and the election held in such manner as may be provided by law for such special elections. No proposition shall be made at any such elections to levy such special assessments during a period of more than four years.

9. When any property belonging to a corporation is situated in a white school district where a special assessment is to be made as herein provided, such assessment shall be levied upon such proportion of the value of such property as the number of white children of school age in the county bears to the whole number of children of school age in the county. When such property is situated in a colored school district where such assessment is to be made, it shall be levied upon such proportion of the value thereof as the number of colored children of school age in the


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county bears to the whole number of children of school age in the county.

10. The foregoing sections of this Article numbered 6, 7, 8 and 9 are intended and are hereby declared to constitute an indivisible plan for permitting local special assessments in aid of public schools maintained by the State.

THE PRESIDENT PRO TEM - Does the gentleman offer that as a substitute to the section

MR. ASHCRAFT - As a substitute for the last provision.

MR. COLEMAN (Greene) - The purpose of having these things laid on the table and printed is so that delegates may inform themselves as to what is to come up before them.  It is impossible for the delegates to the Convention to keep in mind long amendments and sections such as these two.  I would like to have this amendment and the substitute laid on the table and printed.

THE PRESIDENT PRO TEM - The gentleman from Lauderdale has the floor.

MR. ASHCRAFT - Mr. President, the importance of this measure is the reason why some of the friends of the public schools in this State desire the postponement of the consideration of this question until the report of the Committee on Education should come in.  When that report was made, the two phases of the question could be presented by a majority and a minority report, and in that way those provisions would be printed so the members of this Convention might be properly informed about what plan was proposed for local assessments.  It is a matter of the highest importance for this Convention to understand this proposition.  The great issue in this State, the purpose for which this Convention was called, was to settle upon some just and equitable basis the relation which should exist between the white and colored people in this State.  That is the one great question which lies at the heart of the people of Alabama today, and for which they are calling upon us to present a solution.  The proper relation which should exist between the two school systems, between the system for educating the colored, and the system for educating the white people, is a matter of as grave concern to the people in this State as the question of the suffrage.  I know, sir, that there is no subject which lies so near to the hearts of the people of North Alabama as this great question which is presented by my amendment.  It has been wrought out with care, it has been wrought out in the light of the decisions—

MR. LONG (Walker) - I rise to a point of order, Section 47 of the rules provides that all ordinances be read and referred to the different committees and that they be printed.  I myself might favor it, but I cannot tell what it is.  I make the point of


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order that it should be referred to a committee and printed, and also make the point of order on the substitute offered by the Chairman of the committee under Rule 47.

Rule 47. When any ordinance is introduced it shall be read at length and be referred by the President without a vote being taken, unless otherwise ordered by a two - thirds vote of the Convention, to the appropriate committee. No ordinance shall be reported back from any committee until after the lapse of one entire legislative day. When any committee shall have reported to this Convention any article or section of the proposed Constitution, said article or section shall again be read at length and three hundred copies thereof printed for the use of delegates; and such article or section shall lie on the table at least one day and until in regular order it shall be taken up for consideration by the Convention.

THE PRESIDENT PRO TEM. - Ruling upon the point of order made by the gentleman from Walker, the Chair is not at liberty to limit the length of substitutes offered as amendments to pending questions, and therefore overrules the point of order.

MR. LONG (Walker) - Then I make the point of order that there is no original section before the Convention. The original section is on the table and how can you offer a substitute or an amendment to something that is not in existence?

THE PRESIDENT PRO TEM. - The gentleman from Talladega offered his as an original section.

MR. LONG (Walker) - Then Rule 47 covers it.

THE PRESIDENT PRO TEM. - The gentleman from Lauderdale moves as an amendment to that the amendment that has been read in the hearing of the Convention, and therefore the point of order is not well taken.

MR. ROGERS (Sumter) - The ruling of the Chair in reference to the section offered by the gentleman from Talladega, and the ground he gave for allowing this to come up, was that it was entirely different from that laid on the table. I want to know whether it is a different or the same order? If it is a different one under Rule 47 it must be printed and laid upon the table, if the same one then a vote must be taken to take the original from the table and substitute this one under the rules by which we are operating.

THE PRESIDENT PRO TEM - The Chair rules that the point of order is not well taken, inasmuch as the section offered by the gentleman from Talladega was offered as an amendment to the Article on Taxation. Now the pending question is the amendment of the gentleman from Lauderdale. 


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MR. ROGERS - With the consent of Mr. Ashcraft, I move that the two amendments be laid upon the table for the purpose of having them printed.

THE PRESIDENT PRO TEM- The Chair would be delighted to put that motion, but the gentleman from Lauderdale has the floor.

MR. ROGERS - The gentleman yielded to me for that purpose.

THE PRESIDENT PRO TEM - Does the gentleman from Lauderdale yield?

MR. ASHCRAFT - I yield for that purpose.

THE PRESIDENT PRO TEM.  - The gentleman yields the floor to the gentleman from Sumter for the purpose of making a motion.

MR. ROGERS - I move that both sections be laid upon the table for the purpose of having them printed for the benefit of this Convention to pass on wisely, and upon that, Mr. President, I call for the previous question.

THE PRESIDENT PRO TEM - The gentleman from Lauderdale had the floor, his time had not expired, he yielded the floor, which he had a right to do, during his time to the gentleman from Sumter. The gentleman from Sumter moves that the pending amendments be laid upon the table and ordered printed and upon that he moves the previous question.

MR. LOMAX - I rise for the purpose of amending the resolution, that, it lie upon the table until the. report of the Committee on Education comes in.

MR. ROGERS - I withdraw the call for the previous question for the purpose of accepting the amendment of the gentleman from Montgomery.

MR. BROWNE - I rise to a point of order. A motion to lay on the table is not debatable.

THE PRESIDENT PRO TEM - Does the gentleman from Sumter withdraw the motion for the previous question?

MR. ROGERS - No, sir; let the matter go as it is. and the other question can be arranged later.

MR. O'NEAL - If the motion of the gentleman from Sumter prevails, the original section offered by the gentleman from Talladega and the substitute or amendment be printed, will it lay upon the table to await the action of the Convention?


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PRESIDENT PRO TEM - Any proposition before a parliamentary body laid upon the table can be taken up at any time. The motion of the gentleman from Sumter is, that the pending amendments be printed and laid upon the table.

MR. BROWNE - Indefinitely?

MR. ROGERS - Be printed and lie upon the table, it is in the pleasure of the Convention to take it up whenever they want to.

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

MR. HEFLIN (Chambers) - I understood the motion of the gentleman from Sumter to be that the substitute and amendments to be laid upon the table to be taken up at the time the Committee on Education's report is considered?

THE PRESIDENT PRO TEM - The chair did not so understand the motion of the gentleman from Sumter. Is the call for the ayes and nays sustained?

The call for the ayes and noes was not sustained, and the question recurred upon the adoption of the motion of the gentleman from Sumter which was carried.

MR. LOMAX - I move that that proposed new section offered by the Chairman of the Committee and the substitute or amendment thereto offered by the gentleman from Lauderdale lie upon the table until the coming in of the report of the Committee on Education, and that it be considered along with that report.

PRESIDENT PRO TEM - The gentleman is out of order. It is not before this Convention, you will have to move to take froth the table.

MR. BROWNE - All of this Article has been adopted except the one that has just been laid upon the table. There was another laid upon the table at the instance of the gentleman from Lauderdale. Mr. Weakley. It is agreed between the Chairman of the Committee on Municipal Corporations and myself that that section be now taken up and considered. I therefore move to, take section 7 from the table.

MR. WEAKLEY (Lauderdale) - The Chairman of the Committee on Taxation has stated to the Chair that an agreement has been made that that section shall be taken up. I rise to state that I did not understand that any such agreement had been made.

MR. BROWNE - Was it not understood that when we got through with the other sections we would take this up and adopt this substitute? As there is nothing else to do with this report except to adopt a section of some kind upon this taxation, and the Committee on Taxation is through, I move to take Section 7 from the table in order to dispose of it in some way.


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MR. HARRISON - I would inquire of the Chairmen of the Committees on Taxation and on Municipal Corporations if it would not save time for this matter to be taken from the table and referred to a special committee consisting of the Committee on Taxation and that on Municipal Corporations, and see if they cannot agree?

MR. BROWNE - I would like to state that there is no disagreement between them. It seems the Committee on Municipal Corporations have incorporated a few towns that desire to come in under the Birmingham amendment.

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

PRESIDENT PRO TEM. - The point of order is well taken, the chair was indulging the gentlemen so they could come to some agreement.

MR. JONES (Montgomery) - What is Section 7?

MR. BROWNE - The section with regard to municipal taxation.

MR. LOMAX - And also about educational taxation?

MR. LOWE - Does not Section 7 deal with schools?

MR. BROWNE - It is proposed to take it out.

PRESIDENT PRO TEM. - The question is, Shall Section 7 be taken from the table?

Request was made that the section be read.

Objection was made to the reading of the section.

PRESIDENT PRO TEM. - The chair will hold that any gentleman of this Convention has a right to ask for the reading, and the Secretary will read the Section.

Sec. 7. No city, town or other municipal corporation other than provided for in this Article, shall levy or collect a larger rate of taxation, in any one year, on the property thereof, than onehalf of one per centum of the value of such property, as assessed for State taxation during the preceding year; provided, that for the payment of debts existing at the time of the ratification of the Constitution of 1875 and the interest thereon, an additional rate of one per centum may be collected, to be applied exclusively to such indebtedness; provided, further, that for the maintenance of public schools, such city, town or other municipal corporation may levy and collect such special tax as may be authorized by law, provided such special tax shall not be levied and collected when it shall cause a greater rate of taxation in any one year than one dollar


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and seventy - five cents on every hundred dollars of taxable property, for all State, county and municipal purposes, except the erection, construction and maintenance by counties of necessary public buildings, bridges or roads, and provided such special tax for schools, the time it is to continue and the purposes thereof, shall have been first submitted to a vote of the property taxpayers who are qualified electors in said city, town or other municipal corporations, and voted for by majority thereof, in number, and in value of taxable property, voting at such election, and provided such tax for schools shall be apportioned equitably and paid to the public schools of said city, town or other municipal corporation by the municipal authorities thereof; and provided, this section shall not apply to the city of Mobile, which city may levy a tax not to exceed the rate of three - fourths of one per centum to pay the expenses of the city government, and may also levy a tax not to exceed the rate of three - fourths of one per centum to pay the indebtedness of said city existing at the time of the ratification of the Constitution of 1875 and the interest thereon; provided, further, that this section shall not apply to the city of Birmingham, which city may levy and collect a tax not exceeding onehalf of one per centum, in addition to the tax of one - half of one per centum hereinabove allowed to be levied and collected, such special tax to be applied exclusively to the payment of the interest on the bonds of the said city of Birmingham heretofore issued by said city in pursuance of law, and for a sinking fund to pay off said bonds at the maturity thereof.

A vote being taken, the Convention refused to take the Section from the table.

MR. CORNWELL - I have an amendment to that Section which I will ask to have read.

The Clerk read the amendment as follows: That all counties, cities, towns or other municipal corporations, shall create a sinking fund on the issue of any bonds for their redemption by raising annually a sum which will produce an amount equal to the principal and interest of the bonds at their maturity. Provided, that this section shall apply to the issues of bonds for the purpose of refunding the present bonded indebtedness of counties, cities, towns or other municipal corporations.

MR. CORNWELL - I move that that be printed and laid upon the table.

A vote being taken, the amendment was ordered printed and laid upon the table.

MR. MACDONALD - I have an additional section to offer by way of amendment. I do not wish to make any statement in regard to it.


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The Clerk read the amendment as follows:

Amend Article reported by the Committee on Taxation by adding the following as an additional Section No. 11.

No city, town or other municipality shall make any assessment for the cost of sidewalk or street paving, or for the cost of the construction of any sewers, against property abutting on such street or sidewalk so paved, or drained by such sewers in excess of the actual increased value of such property by reason of such sidewalk or street paving, or by the construction of such sewers. And the burden of proving such increased value of said property shall be on the city, town or other niunicipalitv in all proceedings brought to enforce the collection of such assessments.  And such assessments shall in no case exceed five per cent of the assessed value of said property.

MR. WEAKLEY - I move that the Section just read be laid upon the table to be considered along with the report of the Committee on Municipal Corporations bearing upon the same subject.

MR. MACDONALD - I agree to that.

MR. BROWNE - I submit the point of order that he cannot offer an amendment for municipal corporations on an article of the Committee on Taxation. The motion was that it be taken up by the Committee on Municipal Corporation.

MR. MACDONALD - Yes, by either one of the Committees, I don't suppose the Convention will have any objection to that— to be considered along with the report of the Committee on Municipal Corporations.

Mr. Knox took the Chair.

MR. BROWNE - I make the point of order that the gentleman cannot introduce an amendment while the consideration of an article on taxation is up, and move that it be printed and taken up with some other report.

MR. LONG (Walker) - I raise the point of order that that is an ordinance and should be referred to the proper committee.

THE PRESIDENT - The Chair understands the gentleman desires to amend by adding an additional Section, and the gentleman from Lauderdale proposes to be laid on the table and be printed.

MR. MACDONALD - And be printed.

THE PRESIDENT - What was the motion of the gentleman, to lie on the table?

MR. WEAKLEY - Yes.


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The vote being taken, the amendment was laid upon the table.

MR. COBB - I wish to offer a resolution to be put upon its passage, and for that reason, I move a suspension of the rules.

The Clerk read the following resolution:

Resolution 224, by Mr. Cobbs:

Resolved, That the reports of the Committee on Suffrage and Elections be taken up at 11 o'clock on Tuesday next for consideration to the exclusion of all other business.

MR. WADDELL - I rise to a point of order. The resolution sent forward by the gentleman requires unanimous consent for suspension of the rules to have it read.

THE PRESIDENT - The Chair has just stated that the motion of the gentleman from Macon was that the rules be suspended and that the resolution be placed upon its immediate passage.

MR. REESE - On the motion made to suspend the rules, I demand the ayes and noes.

The call for the ayes and nays was not sustained.

MR. OATES - The motion as I understand it is to suspend the rules with a view to putting the resolution upon its passage. I desire to be heard for a short time on that if it is debatable.

THE PRESIDENT - A motion to suspend the rules is not debatable.

MR. OATES - Then I desire to be heard after that is acted upon - provided it is carried.

The vote being taken, the motion to suspend the rules was defeated and the resolution was referred to the Committee on Rules.

MR. O'NEAL (Lauderdale) - I have a resolution that I desire to offer.

THE PRESIDENT - The gentleman from Lauderdale asks unanimous consent to introduce a resolution. Is there objection?

MR. O'NEAL - I will state to the Convention it is with reference to the ventilation of the hall.

MR. HOWZE - I object.

MR. BROWNE - The last section of the report of the Committee on Taxation has now been considered and laid upon the table-


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THE PRESIDENT - The gentleman from Talladega will suspend a moment, the Chair has not ascertained the will of the Convention whether the gentleman froth Lauderdale will be granted leave to introduce a resolution.

Objection was made to the introduction of the resolution.

MR. BROWNE - I now move, so many of the sections of the report of the Committee on Taxation having been adopted, all of them except the two sections laid upon the table— that the sections adopted be engrossed. It is necessary to have it engrossed, and we have an Engrossing Clerk here doing nothing, and I call for the engrossment of all the sections that have been adopted, so that when the report comes up on its final passage that the work will have been done.

MR. HOWZE - I dislike to do so, but I rise to a point of order. Rule 52 says after these articles have been passed that they shall be engrossed. I submit that the whole article is not passed and under this rule it cannot be engrossed until it is passed.

THE PRESIDENT - The point of order is well taken.

MR. MACDONALD - I rise to a question of privilege in regard to the amendment proposed by me to the article on taxation.

THE PRESIDENT - The next special order is the consideration of the report of the Committee on Preamble and Declaration of Rights. The gentleman from Montgomery has the floor.

MR. MACDONAL.D - I wish to state so that the Convention can hear me something in regard to the section which I suggested as an amendment to the report of the Committee on Taxation. There has been some little misunderstanding between myself and Mr. Weakley. Mr. Weakley's agreement with me in regard to that section was that it should be laid on the table and printed.

MR. KIRKLAND - I rise to a point of order. There is nothing before the House.

THE PRESIDENT - The point of order is well taken.

MR. MACDONAI,D - I move that the section offered by me as an amendment to the report of the Committee on Taxation be taken from the table so that I can make a motion with reference to its disposition, to table it and have it printed and be taken up along with the report of the Committee on Municipal Corporations, which was Mr. Weakley's agreement with me.

A vote being taken the Chair announced that the noes seemed to have it.


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MR. OATES - My colleague could reach the matter by moving to have it printed.

MR. MACDONALD - But I also desire to have it printed and taken from the table at the time the report of the Committee on Municipal Corporations is considered.

A division was called for on the motion to take from the table and the notion was carried by a vote of 53 ayes and 21 noes.

MR. MACDONALD- I move that this section be printed and lie on the table to be taken when the report of the Committee on Municipal Corporations comes before the Convention.

MR. KIRKLAND— I make the point of order that the question before the house according to the announcement of the Chair is the consideration of the report of the Committee on Preamble and Declaration of Rights.

THE PRESIDENT - The Chair thinks the point of order would have been well taken had the gentleman made it before the Convention took up the question of this amendment and took it from the table, but no point was made at that time on that score and the Convention now has the matter up before it for consideration, and the motion is that this amendment be printed and laid on the table, to be taken up and considered along with the report of the Committee on Municipal Corporations.

MR. OATES - The latter part of that is not in order. The gentleman can offer it as an amendment to the report of the Committee on Taxation but he cannot direct that it shall be taken up and considered with the report of the Committee on Municipal Corporations.

THE PRESIDENT - In the opinion of the Chair this amendment is to the article proposed by the Committee on Taxation and it does not seem that it is in order.

MR. CUNNINGHAM - I rise to a point of order. The amendment was offered as a new section of the report of the Committee on Taxation. As such the Convention has taken it from the table and it is now before the Convention and the point of order I make is that the motion of the gentleman is in order to have it printed and have it come up when the report of the Committee on Municipal Corporation is considered. It has been taken from the table and is therefore new business.

MR. JONES (Montgomery) - It is perfectly competent for the Convention to say when it will consider anything, whether it is part of one article or of another.

THE PRESIDENT - The Chair has ruled heretofore that the Convention may lay any proposition on the table to be taken up


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at pleasure, but it does not seem that it would be proper to state the specific time to take it up. The Convention takes it up when it sees proper.

MR. PETTUS - The motion of the gentleman was to postpone until the report of the Committee on Municipal Corporations was considered.

THE PRESIDENT - The motion was to lie on the table and be printed, and the gentleman added the additional proposition.

MR. MACDONALD - If it is necessary to put the motion in other phraseology I move that the amendment lie on the table and be postponed until the report of the Committee on Municipal Corporations is considered, and that the amendment be printed.

THE PRESIDENT - The gentleman moves that the further consideration of the amendment proposed by hint be postponed until the consideration of the report of the Committee on Municipal Corporations, and that the same be printed. It seems to the Chair that in its present form of amendment is not in order. It is an amendment to the report of the Committee on Taxation

MR. REESE - I call for the regular order which is the consideration of the report of the Committee on Preamble and Declaration of Rights.

THE PRESIDENT - I will put the question on the motion of the gentleman from Montgomery.

A vote being taken the motion of Mr. Macdonald was carried.

MR. HOWELL, - Mr. President, I move to reconsider the vote by which the Convention refused to order the report of the Committee on Taxation engrossed. I think if the Convention understood the question they would allow it to be engrossed. There has been some amendment to it, and the engrossment of the bill don't take it out of a condition where it can be amended and we have an officer that is on the pay roll whether she works or not, and we should have it engrossed. I move that we reconsider the vote by which the House refused to order that article to be engrossed, and then I will move that we order it to be engrossed.

MR. PETTUS - I make the point of order that the motion is out of order, because under Rule 52 it cannot be engrossed until completed.

THE PRESIDENT - In the opinion of the Chair the point of order is well taken. The special order for this time is the consideration of the report of the Committee on Preamble and Declaration of Rights.


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MR. LONG (Walker) - Before we get into that, I have a short resolution and I wish unanimous consent to have it read and referred.

To which no objection was made.

MR. LONG (Walker) - I move to suspend the rules, that I play introduce the resolution.

A vote being taken, the rules were suspended and the resolution read as follows:

Resolution No. 225, by Mr. Long (Walker):

Be it resolved by this Convention. That in view of the epidemic which has prevailed since the passage of the "no per diem" resolution in the event of absence, except in cases of sickness a camp of detention or quarantine station is hereby established, wherein sick members may be detained until their respective ailments may be discovered or their cases diagnosed.

Be it further resolved, That the distinguished delegate and physician who is the author of Number 184 Per Diem Resolution, be and is hereby placed in charge of said camp of detention, or quarantine station, without pay. (Laughter).

THE PRESIDENT - The resolution is out of order. There are two minority reports accompanying the report of the Committee can Preamble and Declaration of Rights, but they relate to the amendment of special sections.

MR. LOMAX - I suggest that those minority reports be taken up when those particular sections of the report of the Committee are reached.

MR. PRESIDENT - Does that meet with the approval of the gentlemen taking the reports?

MR. WILSON (Washington) - That meets with my approval. I am on one of the minority reports.

MR. BLACKWELL - It meets mine.

MR. BAREFIELD - That is acceptable to me.

MR. WILSON (Washington) - To meet the suggestion of tile gentleman from Montgomery, that is the regular order. In other words. it is the regular order to proceed as suggested by the gentleman from Montgomery.

The Preamble was thereupon read as follows:


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PREAMBLE.

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

MR. LOMAX - On behalf of the Committee on Preamble and Declaration of Rights, I move to strike out the words "in Convention assembled" in the first line. I will state our reason for doing so is that an examination of the majority of the Constitutions of the States in the Union show that those words are not used in the preamble of those Constitutions.

Upon a vote being taken the amendment was adopted.

MR. LOMAX - I now move the adoption of the Preamble.

MR. CUNNINGHAM - I move that the vote on the Preamble be taken by a rising vote.

And by a rising vote the Preamble was unanimously adopted.

Subdivision 1 of the Article was read as follows:

DECLARATION OF RIGHTS.

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

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

MR. LOMAX - I will state that the Committee has made no change in that Section of the Declaration of Rights. I move its adoption.

Upon a vote being taken the subdivision was adopted.

Subdivision 2 of the Article was read as follows:

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

MR. LOMAX - I move the adoption of that Section of the bill of rights.


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MR. SANFORD (Montgomery) - I move to amend that Section by striking out the words "persons who have legally declared their intention of becoming citizens."

THE PRESIDENT - The gentleman will have to reduce his amendment to writing.

MR. SANFORD - I will do it in a moment.

MR. BURNS - While we pause in the proceedings, I desire to ask this Convention to extend the privileges of the floor to the Hon. S. S. Scott, scholar, statesman and poet, and a member of the last Constitutional Convention of Alabama.

There being no objection, the privileges of the floor were extended Mr. Scott.

MR. COLEMAN (Greene) - It seems that Section 2 is rather in conflict with the provision of the Committee's report on Suffrage and Elections.

MR. LOMAX - The Committee apprehended there might be some conflict perhaps between this provision and the Suffrage Article, after it was adopted, but we thought the Committee on the Order, Consistency and Harmony of the Constitution could reconcile those questions without any trouble.

MR. COLEMAN - I hold to the view that the Committee on Harmony cannot change the sense of an enactment of the Convention. It can only harmonize

MR. LOMAX - Inconsistent provisions.

MR. COLEMAN (Greene) - I move to strike out Section 2.

MR. LOMAX - One moment. I would like to direct the attention of the gentleman from Greene to this proposition; I presume the part of the Section he refers to is the last paragraph----

MR. COLEMAN - It reads that "all persons resident in this State, born in the United States or naturalized, or who have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama." Now the Committee on Suffrage declare that it requires a two years' residence-----

MR. LOMAX - Does being a citizen of Alabama necessarily give him the right to vote? He might be a citizen and still not have the right to vote, and, consequently, there would be no conflict between the section and the suffrage amendment.

MR. JONES - I would like to inquire of the chairman of the committee if a woman is not a citizen?

MR. LOMAX - Yes.


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Mr. Sanford's amendment was here read as follows:

Amend Section 2 by striking out the words "those who have legally declared their intention to become citizens of the United States."

MR. SANFORD - I make that motion from the fact that whoever has declared his intention to become a citizen of the United States possesses all the rights of those that are born here, so that a man may owe allegiance to King Edward, or the Emperor of Germany, and hold the office of Chief Executive of this State, or Chief Justice of this State, or any other high and responsible office when he owes allegiance to some foreign power. When he becomes a citizen of the United States, my objection of course disappears, but until he is a citizen, he should not have the right to be the Governor of Alabama, the Chief Justice or Justice of our Supreme Court, or hold any other position in the State of Alabama, and, therefore, I move to strike out those words, where he has simply declared his intention to become a citizen of the United States. There is nothing in that section that will prevent his holding any office in the State of Alabama, unless that be stricken out.

MR. PILLANS - I entirely and heartily concur with the amendment offered, and hope the Convention will vote for it, and will call special attention to the fact, as Judge Dargan said, after the adoption of the Constitution of 1875, with that same clause in it, that the Alabama Constitution had an unconstitutional clause in it. By the powers conferred by the Federal Constitution upon the Federal Congress, it alone can create citizens out of foreign material, and we undertook to create citizens of Alabama, which Congress alone can do by the passage of uniform naturalization laws. It has done so. Its naturalization laws do not make citizens of those persons who have declared their intention to become citizens. However, in this clause, if we should adopt it, as we unwittingly did heretofore, we override the Constitution of the United States, or at least, attempt to do so, and that we ought not to do. No man should be made a citizen of Alabama who is an alien, and has not been naturalized under the uniform naturalization laws of the United States.

MR. O'NEAL (Lauderdale) - I think this section is in conflict with the provisions in reference to Suffrage and Elections.

THE PRESIDENT - The question before the Convention is the amendment proposed by the gentleman from Montgomery to Section 2.

MR. O'NEAL (Lauderdale) - I understand that, and I think the amendment of the gentleman from Montgomery should be adopted for that reason. The Committee on Suffrage gave very careful consideration to the question whether those who had de-


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clared their intention to become citizens of the United States should be classed as citizens of Alabama, and after careful consideration and discussion of that subject, we omitted it from the section of suffrage, which declares "that every male citizen of this State, who is a citizen of the United States."

Now, under the old provision on suffrage and elections, found in the present Constitution, it provided "every male citizen of the State or who had declared his intention." That is also found in the cold section in reference to suffrage, and there would be a manifest conflict between these two provisions, unless the amendment suggested by the gentleman from Montgomery is adopted, and I call the attention of the chairman of the committee to the conflict and hope that he will agree to the amendment.

MR. OATES - I desire to suggest that the amendment offered by my colleague (Colonel Sanford) is not exactly in the language of the section. He uses the word "those." The words that ought to be stricken out are "or who shall have legally declared their intention to become citizens of the United States."

THE PRESIDENT - That is manifestly the intention of the gentleman.

MR. OATES - That is, the intention but not the words.

MR. SANFORD- I will make it exactly in the words. I did not have the section before me.

MR. O’NEAL (Lauderdale) - Will the chairman let me call his attention to the old Constitution before he concludes his remarks? The old Constitution provides ; "Every citizen of the United States and every person of foreign birth who may have legally declared his intention to become a citizen of the United States.” Now we omitted that intentionally, and it seems to me there would be a conflict there.

MR. LOMAX - I submit that there is nothing in this proposed section of our bill of rights which has anything to do with the privilege of suffrage. The fact that we declare in our bill of rights that and person who shall have legally declared his intention to become a citizen of the United States, shall be a citizen of Alabama, does not and cannot confer upon that man the privilege of suffrage, and the fact that we have further declared in this section that they are citizens of Alabama, possessing equal civil and political rights, does not confer upon any person named in the section the privilege of suffrage. We make them citizens whether they have been in the State the time required for naturalization, when they have declared their intention. We confer upon them all civil and political rights, but we still retain the power and exercise the power to keep from them the privilege of suffrage. And


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there is no better drawn nor better recognized distinction. It is directly and distinctly, and in terms, recognized by our own court, that suffrage is not a right but a privilege. Now the declaring that a person shall have equal political and civil rights, does not declare that he shall exercise the privilege of suffrage.

MR. PETTUS - May I ask the gentleman a question?

MR. LOMAX - Certainly.

MR. PETTUS - For information, would holding office be a political right under that section?

MR. LOMAX - No, he could not hold office under the suffrage clause, unless he was a voter I take it.

MR. JONES - I would like to ask the gentleman, is not a woman a citizen of Alabama?

MR. LOMAX - Certainly she it.

MR. JONES (Montgomery) - And a minor.

MR. LOMAX - And a minor.

MR. JONES (Montgomery) - And none of them can vote?

MR. LOMAX - None of them can vote, but they have civil and political rights in the State. Now what would be the effect of adopting the amendment of my distinguished friend from Montgomery, Mr. Sanford? The result of that would be to say to any foreign - born person who desired to come to the State of Alabama, you must live in this State for five years before you can become a citizen thereof.

The result of that would be we would exclude from coming to the State of Alabama the most desirable class of foreign citizens that come into this country and we would simply have come in amongst us people who did not care whether they had secured the rights of citizenship in one or five years.

MR. WADDELL - Will the gentleman allow a question?

MR. LOMAX - Yes.

MR. WADDELL - What does political rights mean then?

MR. LOMAX - It don't mean suffrage, and that is the question here.

MR. WADDELL - What does it mean?

MR. LOMAX - Suffrage is a privilege and not a right.

MR. O'NEAL (Lauderdale) - Will the gentleman permit a question. Under this section "any person who has legally declared


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his intention to become a citizen of the United States" is declared a citizen of Alabama?

MR. LOMAX - Yes, sir.

MR. O'NEAL (Lauderdale) - Now, section 1, of the report of the Committee on Suffrage, provides that every male citizen of this State who is a citizen of the United States, shall be an elector.

Now, I ask this question; If section 1 of the ordinance submitted by the Committee on Suffrage is adopted, would not any man then who had declared his intention to become a citizen of the United States thereby being a citizen of Alabama?

MR. LOMAX - No, sir, he would not, because it is conferred upon the citizens of the United States and not upon the citizens of Alabama.

MR. O'NEAL (Lauderdale) - Oh, no, it says citizens of Alabama.

MR. PILLANS - Do I understand if a person, an alien, came to Savannah, Georgia, and resided there four years after declaring his intention, and then moved to Alabama, he could not, if these words were stricken out, at the end of five years in the United States, though not in the State, claim his citizenship?

MR. LOMAX - I hope the gentleman did not so understand me. My proposition was simply this: That by saying in our Constitution that a man could not acquire the rights of citizenship until he had been here five years, we would keep out of our State a most desirable class of emigrants; and get in those people who did not care whether the right of citizenship was conferred upon them or not, and therefore I do not think that the amendment of the gentleman from Montgomery ought to be adopted.

Now, I do not propose, and do not know that I am prepared at this time, to go into an elaborate discussion of what is meant by civil and political rights. I have not the authorities before me, but I am very sure that neither the word civil rights, or political rights have any reference to the privilege of suffrage. Consequently, the adoption of this amendment would not have any, effect upon the suffrage article.

MR. HOOD - I would like to ask the delegate from Montgomery if political rights would include the right to hold office?

MR. LOMAX - No, sir; not if the suffrage article requires a person to be a legal voter, it would not.

MR. HOOD - If it does not include any political rights, or the right to hold office, what does it mean?


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MR. LOMAX - I just stated that I am not in a position at this time to go into a definition of what political rights mean, but they do not mean or include the right to hold office, or the privilege of suffrage, if a right to hold office is dependent upon the persons being a legal voter within the State.

MR. BURNS - Will the gentleman allow a question?

MR. LOMAX - I will, with pleasure, if I can answer it.

MR. BURNS - Suppose a foreigner comes over here, and belongs to the Mafia or some such crowd, and comes to one of our cities, New Orleans we will say, and remain in statu quo until they perhaps elect Aldermen, or at the election of a Mayor, or some other officer in this State, and he should not become naturalized until he saw that he could get the position. You understand, suppose that was a fact; that the time he saw he was going to get a position, then he became a citizen of the United States, but at the same time he might stay here and belong to the Mafia in New Orleans, or somewhere else, and still be a subject of a foreign country. Now, do you suppose that he shall stand upon the same footing and have the same political rights as any other citizen of the United States?

MR. LOMAX - We propose to give him exactly the rights he has had for twenty - five years in Alabama and no more.

MR. BURNS - Then we will endorse that amendment.

MR. COLEMAN (Greene) - Delegates of the Convention, it seems to me this Section 2 of the Declaration of Rights is out of place in the Constitution of the State of Alabama. The Fourteenth Amendment to the Constitution of the United States protects all citizens in their privileges and immunities equally, and if these words have no meaning at all, the words "privileges and immunities" cover everything proposed to be covered or protected or made by the argument of the delegate from Montgomery, the Chairman of the committee. Now, when a question comes up that admits of so much debate, as to which there is such a contrariety of opinion has arisen upon the subject of this question, it seems to me that the Convention ought not to adopt it. In view of the fact that all citizens of the United States have equal rights, privileges and immunities in Alabama, as much as according to his own argument the words have no force, I move to lay the section on the table.

MR. LOMAX - And on that I demand the ayes and noes.

THE PRESIDENT - The pending question is on the amendment offered by the gentleman from Montgomery.

MR. COLEMAN (Greene) - I move to lay that on the table, because if my motion prevails it reaches the purpose intended by


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the gentleman from Montgomery, and I move to lay the whole section on the table.

THE PRESIDENT - It is moved that Section 2, with the pending amendment be laid upon the table.

MR. LOMAX - I ask for the ayes and noes on that proposition. It is the same provision as in the Constitution of seventy - five and it, two - thirds of the Constitutions of the States of the Union.

The call for the ayes and noes was not sustained.

MR. OATES- I am heartily in favor of the amendment for the reasons, in addition to the reasons already given that this is exceptional in the Constitution of Alabama.  Scarcely any Constitution of any State in the Union has such a provision. New York, which has a much greater number of foreigners in it than any other one, or two, or three States, has no such provision in its Constitution.  This seems to have been adopted and incorporated into the Constitution made by the Convention in 1875, without ever having been fully considered.  Another thing, at that time one reason for it, was that in their provisions in regard to the suffrage, those who had legally declared their intention to become citizens were allowed to vote and hence it was in harmony with that provision.

Now, sir, as we are making a Constitution, not for today, nor for tomorrow, but one perhaps for forty or fifty years, we cannot tell just exactly what will occur.  Why, sir in the service that I rendered upon Committee of Investigation in the Congress of the United States in regard to the “suffrage mills” you might call them, established in New York and Boston, for the purpose of manufacturing citizens out of foreigners who had just arrived, we looked very closely into a business, which was most extensive. Evasions of the laws of the United States, processes by which, in twenty-four hours after one’s arrival, if he had the money to pay for it, he would become a full-fledged citizen and have his papers duly stamped.  Those people up there in those cities have had a great deal of trouble with the foreign element.  We do not reject them.  We welcome them to our shores.  We want them to come and live among us. But we have a law of the United States, very liberal in its terms to allow them, when they arrive, to make their declaration of intention to become citizens of the United States, and within a reasonable time, five years, they can perfect their citizenship, and sir, before they do that, what is the nature of the declaration of intention?  That of itself does not throw off their obligations, nor completely relieve them from their obligations of loyalty to the government from which they come.  It is necessary that they be declared citizens of the United States, to take the oath when they are entirely freed from all obligations to any foreign prince or potentate, and become full-fledged citizens here.  Prior


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to that time there is no difficulty, as has been insinuated, because they are not declared to be citizens entitled to all the rights. Our laws, sir, protect all foreigners that come in here. They have in their rights in the ownership of property, as well as any other person, and all the rights that are extended to our citizens, and there is no just complaint on that ground. It simply postpones them according to the laws of the United States until they have thrown off their allegiance to the country from which they come and become citizens of the United State, and therefore I think it is wholly unnecessary, in view of what perhaps this Convention will do on the suffrage question, to retain this language in the Constitution.

MR. O’NEAL (Lauderdale)- Will the gentleman allow a question?

MR. OATES - Certainly.

MR. O'NEAL (Lauderdale) - Is it not a fact that this provision was not contained in any Constitution in Alabama, until after the civil war?

MR. OATES - No ; and it is not contained in one Constitution in twenty of the States of the Union.

MR. O'NEAL (Lauderdale) - Is it not a fact that it is not in the Constitution of 1819, and was not incorporated in any other Constitution

 MR. OATES - Never, in any, until 1875.

MR. O'NEAL (Lauderdale) - I will ask you a further question. If making all persons who declare their intention to become citizens of the State of Alabama, would not make them electors under the first section of the suffrage provision. as reported by the committee?

MR. OATES- Well, probably not.

MR. O'NEAL (Lauderdale) - Why not?

MR. OATES - But it might give rise to confusion, and there is no necessity of retaining it as it is.

MR. O'NEAL - If they are citizens of the State of Alabama, would they not be electors, if they had resided here two years?

MR. OATES - That is what it might do, because it confers upon them all rights------

MR. O'NEAL (Lauderdale) - It says if they are citizens of Alabama-----

MR. OATES - But I think the court, considering the whole instrument, together, he would not be held to be entitled to the


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rights of suffrage under the report of the committee, but as there is no use for this language, and it does not impair the rights of the people when they are not electors, it ought not to be retained, and I am in favor of the amendment.

MR. SOLLIE - I move the previous question on the amendment of the gentleman from Montgomery and the section.

MR. PETTUS - I will ask the gentleman to withdraw it.

MR. SANFORD - I hope the amendment suggested will be adopted. We know that all the questions------

THE PRESIDENT - The gentleman from Tallapoosa has moved the previous question upon the section and the amendment.

The main question was ordered.

MR. SANFORD - Now, Mr. President, of all the questions that have disturbed Christendom, that of citizenship has been the most universal-----

THE PRESIDENT - The chair will state to the gentleman from Montgomery that the previous question has been ordered.

MR. O'NEAL - I rise to a point of order. The gentleman introduced the amendment, and has the right to conclude the argument, even after the previous question is ordered.

MR. SANFORD - It has always been done------

THE PRESIDENT - The previous question has been ordered upon the proposed amendment and the section proposed by the committee, and the gentleman from Montgomery (Mr. Lomax) chairman of the committee, has the right to conclude, unless he yields to the gentleman.

MR. LOMAX - I do not care to say anything.

MR. SANFORD (Montgomery) - As I remarked, you remember, and this Convention remembers, that in 1850 or '51, Coster, an Austrian citizen, had declared his intention to become a citizen of the United States, or had become one. He was in the East. One of the Austrian vessels seized him as a citizen of Austria, and then it was that Lieutenant Ingram told them unless they released him that he would blow their ships out of the water. I mention that incident to show that the fact that a man may declare his intention does not make him a citizen. There was a long controversy between Chevalier Houselman and Mr. Webster, then Secretary of State, upon the subject. We remember also until since the war in Alabama, no man who was not a naturalized citizen could hold real estate in this commonwealth.


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MR. OATES - Allow me to call your attention to another fact, that this provision which gives full citizenship to those who have legally declared their intention, has given rise to controversies between this Government and foreign Governments about the relations they hold to it.

MR. SANFORD - Time and again, until many Germans are afraid to go to Germany today, where they have simply declared their intention, unless then be seized and placed in the army.

So I say they are not citizens of this country. They are citizens of their native places, and you know that as a general principle nothing reverts so soon to its original condition as citizenship, and, therefore, it has been the cause of much negotiation and some hostile feelings between the different nations. Why should a man who is not a citizen of Alabama, or, rather, of the United States, enjoy the rights and privileges which only citizens enjoy? Citizenship is a high privilege. It is a great distinction to be an American citizen. He becomes a sovereign power in this land when he is a citizen, and why we should seek to confer the great rights upon men who owe their allegiance to Turkey, to China, to England, to France, Belgium and all the foreign countries, and put them upon an equality with our own native born and naturalized citizens,  I am at a loss to know.

The fact that it never existed in this State until within the last twenty - five years is a good reason for recurring to the former basis. Therefore, I hope that the amendment will prevail.

MR. COLEMAN (Greene) - I hope that the gentleman will withdraw his motion for the previous question.

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

MR. HEFLIN (Chambers) - I make the point of order that the previous question has been ordered.

THE PRESIDENT - The previous question has been ordered. It can only be taken up on a motion to reconsider.

MR. O’NEAL (Lauderdale) - Can that be taken up now? A motion to reconsider?

THE PRESIDENT - It might, by a suspension of the rules.

MR. O'NEAL (Lauderdale) - I move that the rules be suspended, and that the Convention reconsider the vote by which the previous question was ordered on this Section.

Upon a vote being taken the rules were suspended.

THE PRESIDENT - The question is on the motion to reconsider the vote whereby the previous question was ordered on Section 2 of the Article, and the pending amendments.


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MR. LOMAX - A parliamentary inquiry. Can you reconsider a motion ordering the previous question?

MR. PETTUS - I will ask the gentleman from Greene if he will yield to me to offer a substitute for the amendment offered by the gentleman from Montgomery.

MR. COLEMAN - If I am to have the floor in the morning.

The amendment was read as follows:

Amend by striking out the words "and political" in line three of Section 2, Article I.

MR. COLEMAN - Whatever may be the final determination as to the meaning of those words, it is very clear some courts hold that "political privilege" does include the right of franchise. I have a decision of the Supreme Court of California in my hands, holding exactly that view. "As was well said by Judge Mills of the Court of Appeals of Kentucky, the mistake on the subject arises from not attending to a sensible distinction between political and civil rights. The latter constitute the citizen while the former are not necessary ingredients. A state may deny all her political rights to an individual and yet he may be a citizen.' " and it goes on and holds that political rights include the right of suffrage. And to the same effect you will find another decision in Harris' Reports, in the body of the decision. I do not want the Convention to act hastily in this matter, because the law is uncertain. It is not settled in this State that I know of—

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

MR. COLEMAN (Greene) - Yes.

MR. LOMAX - Has he ever examined the case of Washington against the State in the 75th Alabama?

MR. COLEMAN (Greene) - Yes.

MR. LOMAX - Does not that case hold that voting is not a right but a privilege?

MR. COLEMAN (Greene) - Voting is a privilege. There is no doubt about it. And there will be found a much abler decision by Judge Stone in the 73d Alabama, page 26, the State against Green, where all these questions are discussed. But as I stated before, when I was upon the floor, there is no necessity whatever for Section 2 in our Bill of Rights. If the Convention thinks proper, however, to retain any part of Section 2, then we should eliminate from it all objectionable features whatever. Both the one suggested by my friend, the delegate from Montgomery, General Sanford, and also by the amendment of the gentleman from Limestone.


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MR. COBB - We are about to adjourn. Will the gentleman yield to me to make a motion to reconsider the action on your motion, or will you do it?

MR. COLEMAN (Greene) - It has been reconsidered.

THE PRESIDENT - Will the gentleman from Greene suspend.

The hour of 6 having arrived, the Convention adjourned until tomorrow morning                                         ________________________