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__________________

FORTY ‑ FIRST DAY

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MONTGOMERY, ALA.,

Wednesday, July 10. 1901.

The Convention met pursuant to adjournment, was called to order by the President, and opened with prayer, by the Rev. Mr. A. F. Dix as follows:

Our Father and our Lord it becometh us to approach Thy presence with reverence for Thy majesty, and ,with awe for Thy holiness in Thy government. It becometh us also to approach Thee with confession, for our own consciences tell us of sin, but


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we thank Thee that we may approach Thee with confidence that Thou hast provided the means whereby Thou canst forgive sin and accept the presence of those who have transgressed Thy laws, if they rely upon the merits and advocacy of Him whom Thou hast sent forth. Look upon us this morning in our needs we pray Thee and confer upon us such graces as are requisite for the discharge of our duties, before God and the world. Do Thou bless this convention in all its membership. Do Thou confer upon Thy servant, the President of this body, the wisdom requisite that his rulings may be right, and upon all the members that zeal for good which can meet the divine approval, and may Thy wisdom be conferred upon them, and may they be enabled so to discern the future and its needs and the wants of the people for whom they are framing fundamental law and do Thou enable them to adjust treasures that the growth of our great State may be accomodated, that the development of its industries may be encouraged, that the people may grow in righteousness and in the qualifications of good citizenship, that our future laws may be such as shall be commended to human conscience and to divine judgment. We ask now our Father in behalf of all the interests of these men, help them we pray Thee to discharge the varied duties that rest upon them as citizens and as standard bearers in the respective communities, and may all the interests of the rising generation be subserved and may the interests of Thy kingdom, O Lord, our Father, be enhanced for Thy name's sake. Amen.

Upon the call of the roll, 122 delegates responded to their names.

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

Leave of absence was granted to Mr. Jenkins of Wilcox for today and tomorrow.

MR. WILLIAMS (Elmore) ‑ I move the reconsideration of the vote, Mr. President, by which sub ‑ division 14 of section 1 of the report of the Committee on Local Legislation failed of adoption on yesterday, and I yield the floor to the gentleman from Lauderdale, Mr. O'Neal.

MR. deGRAFFENREID ‑ I rise to a point of order.

THE  PRESIDENT ‑ The gentleman will state his point of order.

MR. deGRAFFENREID ‑ My understanding is that the gentleman from Elmore voted against the adoption of the resolution.

MR. WILLIAMS ‑ I voted on the winning side.


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MR. deGRAFFENREID ‑ My recollection was if he did not change his vote just before the vote was announced, that he voted against the adoption.

MR. PILLANS ‑ He said that he voted on the winning side.

THE PRESIDENT ‑ The gentleman's statement is sufficient.

MR. PILLANS ‑ He voted on the winning side, and if he did he cannot make a motion to reconsider.

MR. O'NEAL ‑ I simply ‑ desire to call the attention of the Convention to the effect of its vote on yesterday. Section 14 provides against any local legislation which grants any special or exclusive franchise whatever. By striking out that provision, without any amendment you say to the Legislature of Alabama that you can now grant a special franchise to any corporation in this State. You can grant a special franchise or exclusive franchise to a corporation to establish a street car system, electric light or water works. I am sure that was not the intention of the Convention. The idea seemed to prevail that the purpose of this subdivision was to prevent the City of Mobile from retaining the liquor license tax of the State, and the fear on the part of the advocates of the dispensary that it might prevent the establishment of dispensaries in cities and towns of this State. The Supreme Court has expressly decided in a recent decision that the right to create a dispensary is the right of a State to exercise police power in reference to the liquor traffic, and the right to confer upon a municipality or county the authority to establish a dispensary is merely the transfer of a part of the police power of the State to that particular county or locality. Now if the gentlemen are apprehensive that this provision will affect dispensaries, why cannot it be amended by providing that the Legislature shall not grant any special franchise to any corporation, and leave out city, town or county. Then you say to the people of Alabama in the future we do not intend that one of the great evils of local legislation consists in lobbies coming to the General Assembly, and by intrigue and logrolling secure for a few favored individuals or corporations special privileges and immunities and franchises which they could not obtain under the general law. Now I am sure an amendment of that kind can be made to meet all the objections‑

MR. SAMFORD (Pike) ‑ Will the gentleman permit an inquiry?

If this section is reconsidered will the committee consent to the amendment suggested by the chairman of the committee?

MR. O'NEAL ‑ They will.

MR. SAMFORD ‑ That is all right.


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MR. O'NEAL ‑ But in the attitude we are in now, you say private corporations can secure any special privileges the Legislature may be willing to grant.

MR. O'NEAL ‑ I have not finished my remarks. I retain the floor unless that is agreed to.

MR. ASHCRAFT ‑ On yesterday I offered an amendment which limited this power to individuals, by the corporations and associations in accordance with the former action of the Convention. There was nobody on this floor more stoutly opposed to that amendment than you were. Are you willing to accept the amendment this morning?

MR. O'NEAL ‑ I did oppose it, and I am still opposed to it, but I yield to the wishes of the Convention. As far as I am concerned I am opposed to a dispensary being established in any county until it is established by a vote of the people of the county or town.

MR. ASHCRAFT ‑ I am satisfied the Convention will consent to a reconsideration if that amendment will be adopted.

MR. BOONE ‑ Mr. President, under the present Constitution of Alabama, the Supreme Court of Alabama, in the case of the Birmingham Street Railroad in 79 Ala., expressly decided that the General Assembly ‑ opinion by Justice Somerville ‑ had not the power to grant to any corporation, individual or association an exclusive privilege or franchise, and the court based that decision upon‑

MR. O'NEAL ‑ Will the gentleman permit an interruption?

THE PRESIDENT ‑ Does the gentleman yield?

MR. BOONE ‑ Certainly.

MR. O'NEAL ‑ My recollection is it prohibited the granting of an "exclusive" franchise, but did not hold that the Legislature could not grant a "special" franchise.

MR. BOONE ‑ No, it held it could not grant an exclusive franchise.

MR. O'NEAL ‑ In the slaughter house cases the Supreme Court of Illinois decided that a State, unless there was a prohibition on the power of the Legislature, could grant municipalities as it did in Illinois, for slaughter houses.

MR. BOONE ‑ No question about that. The Supreme Court in the case of the Hamilton Gas Light & Coke Company, 146 U. S., held that the State could grant an exclusive privilege unless inhibited by the Constitution. My point is under the Bill of Rights, which we have adopted, there is an express provision which pro‑


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vides that no irrevocable or exclusive privilege or immunity should be granted by the General Assembly, and the latter part of Section 23 of the Bill of Rights provides that no special franchise or grant should be made which the Legislature did not have the power at any time to amend or revoke. Now, Mr. President, it seems to me that we are going too far to entirely exclude and prohibit the Legislature at any time in the development of this great State, from granting a privilege subject at all times to revocation, amendment or repeal by the Legislature?  We cannot tell what the development may be in the State within the next fifty years, and what should be done to foster and encourage that development. Now I say we cannot grant an exclusive privilege even under the old Constitution, and it does seem to me to be going too far to say you cannot grant any special privilege because it might be necessary to grant for a temporary time a special privilege to do a certain thing.

MR. O’NEAL ‑ I desire to ask the gentleman  a question. I desire to call your attention to the exact language of the preamble which we have adopted. It says this : "'That no ex post facto law, or any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the General Assembly : and every grant of a franchise, privilege or immunity, shall forever retrain subject to revocation, alteration or amendment." Now that says making any irrevocable or exclusive grants of special privileges.

MR. BOONE ‑ Yes.

MR. O'NEAL ‑ It only prohibits the Legislature making a special privilege that is irrevocable or exclusive?

MR. BOONE‑“Or” – it is disjunctively stated.

MR. O'NEAL – Granting special privileges that are irrevocable or exclusive, it does not prevent the Legislature from granting a special privilege that is not exclusive or irrevocable.

MR. BOONE ‑ That is what I am arguing.

MR. KIRKLAND ‑ I rise to  a point of order. The gentleman from Lauderdale rose to ask a question, and instead of asking the question he is making a speech.

MR. O'NEAL ‑ I am simply calling his attention to the preamble and asking a question.

MR. BOONE– I thought I was addressing myself to that very question, in favor of the retention by the General Assembly of the power to grant a special privilege provided it was not irrevocably granted, and provided further, it was not exclusive in its character.


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THE PRESIDENT ‑ Ruling on the point of order of the gentleman from Dale, the gentleman who is interrupted is the only person who can complain of the length of the interrogation.

MR. O’NEAL– I did not finish my interrogation.

MR. BOONE ‑ I hope the gentleman will make his sentences as brief as possible, as I have only a short time to speak, if he will express their in a sentence or two.

MR. O'NEAL ‑ We did not prohibit the General Assembly from granting the special privileges, we simply say you shall not grant a special privilege to one corporation in one locality which you do not grant to another.

MR. BOONE ‑ Exactly. I think I understand the question. I say that is what we ought to allow the Legislature to retain. I have no patience with the seeming sentiment among delegates in this Convention that the whole wisdom and conscience and common sense of the State now and in times to come is embraced here on this floor, and that we will never at any time hereafter have in this hall men who have the interest of the State at heart. I believe, Mr. President, that at all times we will have men in both branches of the General Assembly who are as patriotic, who will have just as much learning, and who will do what they think is for the best interests of all the people. We cannot tell, what the development of fifty years will be, and it may be wise to do a certain thing in a certain county in this State it may be wise to have a dispensary there or some other thing, and no man can tell in this day and generation what ten years of innovations in the rapid thought for the good of humanity will bring forth, and so I say that we do not want to put bands upon the General Assembly and say that at no time must they do anything to develop the State. It may be there would be a great railroad to come through here, or some great business enterprise that operated in one or two counties, and the General Assembly might say we will give you a certain privilege, guarding the interests of the State and the citizens, for a short time, and safeguarding it in every way so that it would be highly beneficial to the State, but under the report of the Committee anything of that kind will be shut down, and I hope the reconsideration will not be adopted.

MR. HEFLIN (Chambers) ‑ I call for the previous question on the motion to reconsider.

MR. ROGERS (Sumter) ‑ Please withdraw that a moment.

MR. HEFLIN ‑ I yield to the gentleman from Sumter on the understanding that he will move it afterwards.

MR. ROGERS ‑ I will renew the motion for the previous question. I just want to say to the Convention, after mature consideration, because we thought there was a nigger in the wood ‑ pile, we


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decided to strike sub-division 14 from the report of the Committee on Local Legislation. Everything is granted to us under Section 23 of the report of the Committee on Preamble and Declaration of Rights that is necessary to prevent the granting of exclusive rights, therefore let us not now reconsider this motion, let us stand by our action on yesterday, because there is no necessity to reconsider the action by which this section was knocked out.  And now I move the previous question upon this section.

A vote being taken the previous question was ordered and a further vote being taken the motion to reconsider was defeated by 59 noes to 47 ayes.

The next order of business was a call of the roll for the introdution of ordinances, resolutions, etc.

MR. ASHCRAFT– I desire to yield my call to the gentleman from Talladega, Mr. Graham.

Resolution No. 234 by Mr. Graham (Talladega.)

Resolved, That beginning with next Monday at 8:30, this Convention shall hold evening sessions each day from 8:30 to 10 o’clock.

Referred to Committee on Rules.

MR. GRAHAM– I am requested by the Committee on Education to ask leave to sit this morning during the morning session of the Convention, and I ask unanimous consent.

Leave was granted.

MR. SMITH (Mobile)– The Committee on Rules desires to report favorably on resolution No. 228, by Mr. White.

The Secretary read the resolution as follows:

Resolved, That the President of this Convention appoint a committee of five, whose duty it shall be to see that all ordinances adopted by this Convention are properly engrossed, said committee to be known as the Committee on Engrossment.

The report of the committee was adopted.

MR. SMITH (Mobile)  ‑ The Committee on Rules desire to report favorably resolution No. 229.

The Secretary read the resolution as follows:

Resolved, That when any article hay been adopted, 300 copies thereof shall be printed for the use of the members of this Convention.

MR. SMITH ‑ I move the adoption of that resolution. I desire to state that the chairman of the Committee on Harmony stated to the Rules Committee that it was not practicable for his


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committee to review properly these reports unless each member of the committee had a copy of the corrected ordinance as finally amended, and it is to enable the members of the committee to do their duty that the resolution vas offered.

MR. OATES ‑ The committee would not need that number.

MR. SMITH ‑ They are to be distributed among the delegates – those not needed by the committee.

MR. WHITE ‑ I would state that there are twenty ‑ five members of the Committee  on Harmony and Consistency. We cannot take one bill or ordinance or article and do anything with that. There are twenty ‑ five men on that committee, and each man will want to see the article as it is printed. Besides if we take the original the probabilities are that it would be lost. Besides that every member of this Convention ought to have his mind at work on the article after it is completed. When the article is completed it is not the one brought in by the committee at all, in many respects it is entirely changed, and every member of the Convention ought to have his printed copy before him so he could make any suggestions that he thought proper to make ; therefore, I thought it necessary to have these printed.

The report of the committee was adopted.

MR. SMITH ‑ I am instructed by the Committee on Rules to report resolution No. 213 without recommendation.

The clerk read resolution No. 213 by Mr. Fletcher, as follows:

Resolution No. 213, by Mr. Fletcher:

Whereas, This Convention was called chiefly, to make a constitution regulating suffrage and taxation.

And, whereas. more than one ‑ half of the time allotted for its work by the enabling act has been consumed in the passage of one article.

And, where, expedition is plainly essential to the carrying out of the purposes for which this Convention assembled, and to economize expenses to the State.

And, whereas, it is believed that the consideration and disposition of the Suffrage Article as soon as possible will greatly facilitate and hasten to completion the business now before the Convention ; therefor be it

Resolved, That after the adoption of the article now being discussed, the article on Suffrage shall be taken up for consideration, and continued until finally disposed of.


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Be it further resolved. That all articles heretofore made special orders shall be postponed and taken till in their regular order after the article on Suffrage shall have been adopted.

MR. PETTUS ‑ I move to lay the resolution on the table.

MR. COLEMAN (Greene) ‑ I hope the gentleman will withdraw that motion for the present.

The motion to table was withdrawn.

MR. COLEMAN– Mr. President and Delegates of the Convention, I was authorized this morning by the Committee on Suffrage and Elections to request that the report of that committee be taken up for consideration on next Tuesday.  I could urge many reasons why this course should be adopted, but unless there is some objection, some disposition to want to know the reasons, why I prefer to let them remain unsaid.  As stated in that resolution before us, and when the Committee on Suffrage and Elections submitted its report it was requested that it lie upon the table subject to the will of the Convention.  We believe that next Tuesday, by that time ample time will have been given to every delegate of this Convention, and everybody else, to have fully informed themselves of its provisions, and we are satisfied that ample time will be given during the week to determine what disposition shall be made of the report of the committee.  I therefore move, Mr. President, that the report of the committee on Suffrage and Elections, and the minority report, be set for hearing at 11 o’clock, and be the regular order of business on next Tuesday.  I move that as a substitute.

MR. PETTUS ‑ I move that the substitute be laid upon the table.

MR. OATES ‑ Please withhold that for a moment. I wish to get in a qualification, I am in favor of fixing Tuesday if the report of the Committee on Suffrage and Elections but ‑‑

THE PRESIDENT ‑ Does the gentleman withdraw the motion to table ?

MR. PETTUS ‑ Yes. If the gentleman wants to discuss it.

MR. OATES ‑ No discussion on it at all ‑ if this Convention be in the midst of the consideration of the report of the Committee on Legislative Department, that will not be chopped in two and laid aside before the other is taken up. I hope it can be done before that time, but I want it understood that the report of that Committee will not be laid aside.

MR. PETTUS ‑ I move to take the amendment, the substitute and the resolution.

MR. WADDELL ‑ I rise to a point of order.


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THE' PRESIDENT ‑ The gentleman will state the point of order.

MR. WADDELL ‑ All motions were out of order, because before they can make a motion, they will have to reconsider the action whereby the different reports of these committees were set for special orders.

MR. COLEMAN ‑ I think the gentleman from Russell is mistaken. This report was laid upon the table by unanimous consent. to be taken up at the will of the Convention, that is the order and rule under which it was laid upon the table.

THE. PRESIDENT ‑ It seems to the Chair that the point of order is not well taken for the reason that when the Convention has made any matter of business a special order, it is in the power of the Convention to change its settings and postpone further consideration, or set a different time without reconsidering the vote. The point of order for that reason will be overruled, and the question is on the motion to table.

MR. JACKSON (Lee) ‑ On that I call for the ayes and noes.

THE PRESIDENT ‑ The question is on the motion to table the resolution reported by the Committee on Rules without recommendation and the substitute offered by the gentleman from Greene, and the amendment offered by the gentleman from Montgomery, and the ayes and noes are called for and the question is, is the call sustained.

The call for the ayes and noes was not sustained.

A vote being taken the motion to table was adopted by a vote of 65 ayes to 45 noes.

MR. BEDDOW ‑ I rise to a question of personal privilege. I desire to correct the stenographic report of yesterday. I am reported as having said that owing to the force of the discussion of the convict question on yesterday I believe, Mr. Samford of Pike and myself, have concluded to offer an ordinance looking to the improvement of the convict system of the State of Alabama. What I did say was the following: "Owing to the course the discussion on the convict question took on yesterday, my belief is that Mr. White of Jefferson and myself, have decided to offer an ordinance looking to the improvement of the convict system in Alabama.

THE PRESIDENT ‑ The official stenographer is requested to make a note of the correction of the gentleman from Jefferson.

MR. SAMFORD ‑ I will ask to have it published in bold type.


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MR. COLEMAN ‑ I rise to a question of information. The report of the Committee on Suffrage and Election  has had no special order made with reference to it. It is necessary that we now say when it shall be taken up, or what order it shall follow, what course of business?

THE PRESIDENT– It would be in order for the gentleman from Greene to move that it be made a special order after the consideration of matters already made a special order.

MR. COLEMAN ‑ I do make that motion.

THE PRESIDENT ‑ It is moved by the gentleman from Greene that the consideration of the report of the committee on Suffrage and Election be made a special order to be taken up immediately on the conclusion of the special orders which are now set by the Convention.

MR. WATTS ‑ I move to amend by making it a special order that the reports of the Committees on Judiciary and Corporations and Education and the other special orders already made by the Convention.

MR. SANDERS (Limestone) ‑ I am opposed to making the report of the Suffrage Committee a special order in this Convention at all. I believe Mr. President, that on the conclusion of the consideration of that report it will be impossible to obtain a quorum of this Convention at any day thereafter. I dare say, Mr. President, that there is no member of this Convention who is more desirous of concluding its labors and getting home than I am, but I do not believe that we can discharge the duties for which we were sent here, properly, unless we conclude the labors of this Convention on all other matters before the Suffrage Report is taken up. I think, Mr. President, that the consideration of this report should be left to the wisdom of the Convention to be taken up or not as they see it later on, without any special order, and I therefore move to table the resolution and the amendment.

MR. DUKE ‑ I ask for a division of that question.

MR. OATES ‑ I rise to a point of order the gentleman calls for a division of a subject embraced in a motion to table. The motion to table is the original motion, and the substitute and the call for a division cannot be entertained ‑ I don't believe so.

THE PRESIDENT ‑ Under the rules any delegate may demand a division of a question where the sense of the matter permits it.

MR. HOWZE ‑ I rise to a point of order.

THE PRESIDENT ‑ The gentleman will state his point of order.


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MR. HOWZE ‑ The motion of the gentleman from Montgomery, as I understand it, embraces the report of the Committee on Education and on Judiciary. These reports have no standing in this Convention until they are reported to the Convention, and can this report of the Suffrage Committee be deferred until after reports of committees not in or submitted to the Convention.

THE PRESIDENT ‑ It is within the power of the Convention to resolve that this report will lie upon the table until those reports are considered.

MR. HOWZE ‑ Rule 47 requires when reports are made they shall lie upon the table until in regular order it shall be taken up. Now there is no report froth either of those committees before the Convention, and can they be considered now as being before this Convention and impede the progress of a report that is in the Convention?  That is the point that I make.

MR. COLEMAN ‑ I hope the gentleman will withdraw the motion to table for the present.

MR. SANDERS ‑ Will the gentleman renew it for me?

MR. COLEMAN ‑ I will give you the opportunity of doing it; I will yield to you that you may do it.

MR. WADDELL ‑ I rise to a point of order. The regular order has not been dispensed with and I call for the regular order.

THE PRESIDENT ‑ The point of order is too late; the question is on the motion to table. The chair is inclined to sustain the point of order made by the gentleman from Jefferson against the amendment of the gentleman from Montgomery.

MR. O’NEAL ‑ I did not understand what the gentleman from Jefferson said but I know under the rules of this Convention these reports are considered in the order in which reported, unless a special order is made. The report of the Committee on Suffrage and Elections will be considered in the order in which it was submitted except special orders. The gentleman from Montgomery is undertaking to suspend the rules of this Convention, and under the rules of this Convention the report of the Committee on Suffrage comes up in the order in which it was reported and we cannot change that order except by suspending the rules of the Convention.

MR. COLEMAN (Greene) ‑ That is what we understood to be the meaning of the rule, but it seems that is not so. I understood that the report of the Committee on Banking preceded several of these reports which have been made. And the point was made that these other special orders had been given precedence over it. If it be true that the report is to be taken up in the or‑


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der in which it is reported, why the Committee on Suffrage and Elections is sustained– If that is the ruling of the President.

THE PRESIDENT ‑ In the opinion of the chair it is in the power of the Convention to set these reports, and make them a special order for any particular time. Now the motion is that the report be made a special order after the special orders already set have been disposed of, and the motion of the gentleman from Limestone is to lay that upon the table.

A vote being taken the motion to table was adopted by 59 ayes and 49 noes.

MR. FLETCHER ‑ With reference to the report of the Committee on Banking; I thought the article would be considered in the regular order, but it seems that it has to be set down at a specific time and I would therefore ask that it be set down.

THE PRESIDENT ‑ The chair will state for the information of the gentleman that reports have to be set down and considered in regular order when reached. unless displaced by a special order which this Convention makes, but it is in the power of the Convention to set the consideration of these report, for any time it pleases.

MR. COLEMAN ‑ Does not that require a two ‑ thirds vote to suspend the rules?

THE PRESIDENT ‑ To make a special order?

MR. COLEMAN ‑ Yes, the rules already fix the order in which they shall be taken up.

THE PRESIDENT ‑ I would call the attention of the gentleman to Rule 30 : "Any matter may. by a vote of the majority of the delegates present, be made the special order for any hour, which shall take precedence at that hour of any other business, except a motion to reconsider."

THE PRESIDENT ‑ The Secretary will continue the call of the roll of delegates for introduction of resolutions. etc.

MR. BURNS ‑ I desire to introduce a resolution.

Resolution No. 235, by Mr. Burns:

Resolved, That the Committee on Fees, Printing, etc., report to this Convention what it cost per day to run the Convention, and recommend some reduction of expenses.

Referred to Committee on Schedule, Printing and Incidental Expenses.

Mr. Carmichael (Colbert) Yielded his call to Mr. Kirk.

Resolution No. 236, by Mr. Kirk:


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Relating to the powers of Municipal corporations to create debts.

Whereas, Section 10 of the Article on Taxation adopted by this Convention on Friday, the 5th day of July, 1901, providing a debt limit for Municipal corporations, makes an innovation of the laws of this State as heretofore existed, under which many of the towns and cities have created obligations which exceed the debt limit, and

Whereas. Such towns and cities under the operation of Section 10 are prevented from creating any additional debt, and are unable to protect themselves from extortion in the matter of securing water, light and sewerage.

Now, inasmuch as the cities of Sheffield and Tuscumbia have requested that they be allowed to lay off and adjust their obligations under the laws as they existed at the time their debts were created.

Therefore, be it resolved, That the cities of Sheffield and Tuscumbia be exempt from the operation of Section 10, of said article on Taxation.

Referred to Committee on Taxation.

MR. KIRK ‑ I send up a petition which I ask be read and referred to the committee.

'I`he petition was read as follows:

Office of City Clerk, Sheffield, Ala., July 8, 1901.

To the Hon.. James T. Kirk, Montgomery, Ala.:

Dear Sir ‑ At a special meeting of the City Council of Sheffield held this day for the purpose of taking some action with regard to the limitation to be placed on the debt ‑ creating power of municipalities, the following was unanimously adopted

The City Council of Sheffield views with great apprehension the action of the Constitutional Convention in limiting the amount of indebtedness that the municipality can make, and it asks its representatives in said Convention. Hon. James T. Kirk and Hon. A. H. Carmichael, to do their utmost to relieve it from the burden of those provisions.

The debt of the city at the present is about fifteen (15) per cent. of its assessed values, and the character of its growth will necessitate its making the debt larger, or it will be smothered in its infancy. With the limitations provided for in the proposed article, the debt of the city will be more likely to grow from the defaulted interest; the real danger will be that these provisions,


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though of some good effect elsewhere, will result in death to our municipal life.

In municipalities like this unlike those of slower growth, the ordinary rules do not and cannot be made to apply. The work ordinarily done gradually must here be done at once. Its public duties must be performed, or if not, the law will place on it an involuntary indebtedness, against which the provisions of the Constitution cannot protect it.

We ask that the debt ‑ making power of Sheffield he limited only by its borrowing capacity, believing that with the limitation provided for on the power of taxation there is no danger of its unduly mortgaging its future.

Yours very obediently,

J. R. Coleman.

Clerk of the City of Sheffield.

Referred to the Committee on Taxation.

The hour of 10:30 having arrived, the Convention under the rules suspended the call of the roll for the introduction of resolutions, etc.

THE PRESIDENT ‑ The special order is the consideration of the report of the Committee on Local Legislation. The question is on the amendment offered by the gentleman from Mobile to sub ‑ division 19 of Section 1.

MR. EYSTER ‑ I have a substitute to offer to subdivision 19 and the amendment thereto.

The clerk read the substitute as follows: "Resolved, That subdivision 19 of Section 1 be stricken from said section."

THE PRESIDENT ‑ The question will be on the substitute offered by the gentleman from Morgan.

MR. O'NEAL ‑ I believe I have the floor. 'Tis not my purpose to trespass on the time and patience of this Convention, and I regret the necessity of my appearing so often, but I do not think that a single delegate on this floor can deny the fact that the evils arising from the unlimited power of cities and counties in this State to borrow money by mortgage should be remedied. We are all bound to recognize the fact that this evil has become alarming in Alabama. The last two Legislatures, as I am informed, created bonded debts in this State for counties and municipalities exceeding $8,000,000. It is not the purpose of the Committee by this Section to prohibit counties or cities from creating a bonded debt, but to prevent the creation of that bonded debt by a local or special law. Now the gentleman from Jeffer‑


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son argues that the bond buyers will not purchase a bond which is not issued under a special law. If that be true, and the gentleman from Jefferson is always conservative, and there is some force in his remarks, this Section could be amended so as to obviate his objection, but to strike out this Section would be to say to the Legislature of Alabama, you can continue issuing bonds without any authority from the people of the locality or county that may be affected. Now if you make an amendment such as I have prepared on the subject, it would certainly meet the objection made by the gentleman from Jefferson.  Amend Section 1, Sub ‑ division 19, of the Article on Local Legislation by adding the word "county," before the word "township" and adding at the end of said sub-division the following: `Except in cases in which the issuance of said bonds or ether securities have been authorized by a vote of the duly qualified electors of such county, township, city or village at an election held for such purpose in a manner that may be prescribed by law ; provided, the General Assembly  may pass special laws to refund bonds issued before the date of the ratification of this Constitution." That would simply be saying to the Legislature that you must not pass a special law authorizing the issuance of a bond in any city or county in this state until it is authorized by an election of the people held in the manner prescribed by law, and we will leave it to the Legislature to prescribe the manner in which such election can be held, and the vote be shown affirmatively ‑ of course that is a matter of legal detail, as to how it can be shown. The gentleman from Morgan moves to strike out, and so does the gentleman from Henry. I assure the Convention that this provision does not interfere with dispensaries. There seems to be an idea prevailing in this Convention that to prevent the possibility of any provision in reference to local law affecting dispensaries, to strike down every safeguard which we have incorporated in this provision against the evils of local legislation, Everything else must be subordinated to the liquor traffic in this State and the evils of Local Legislation, lobbying, intrigue exists in other States must be ratified in this Convention for fear of interfering wth some dispensary or local liquor law in some county. This provision has nothing to do with a dispensary or liquor traffic, and I beg this Convention to pause long and well before they strike down this provision, because– gentleman look at this book of acts of the last Legislature ‑ over three ‑ fourths of this book consists of charters of corporations authorizing the issuance of bonds. Each of these acts, according to the Secretary of State, costs $50 to $150, so the people of Alabama are taxed with thousands of dollars for the issuance of these bonds, and in the list of Acts of the General Assembly the local laws are four times that of the others. Three ‑ fourths of them consisting of acts authorizing the issuance of bonds and charters of corporations. Now we don't propose to


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say that you shall not allow corporations, cities or counties to issue bonds, but we do say that you ought not to permit it to be done until the authority comes from the people of a county or the locality to be affected. If you do not put in this safeguard, it will result in bankruptcy to many cities and towns in this commonwealth. Whenever you say to the people of Alabama in every county, district, city, or municipality in this State, if you desire to create a debt, a bonded debt, let the people of your locality ratify and sanction it, and then the Legislature can pass a special law and meet the objection made by the gentleman from Jefferson, that bond buyers won't purchase bonds that are not issue by special act of the Legislature.  All we seek to do is to remedy this evil. It is all evil which the people of Alabama are demanding with one voice that we remedy. Now, we heed their appeal, an appeal coming from every portion of the State, which we pledged upon the stump we would grant them when this Convention was held ‑ we come here and strike down the only provision in this article on local law which gives you relief from this great and alarming and dangerous evil in this commonwealth.

MR. OATES ‑ Will the gentleman permit an interruption? I simply want to suggest to the delegate from Lauderdale that in his amendment he makes the same provision, almost identical, with the Constitution and law of the great State of Illinois, and it has been tried there with great satisfaction. It is a proper safeguard to throw around the people.

MR. O'NEAL ‑ You will find the same provision in nearly every Constitution that has been adopted in the past twenty ‑ five years.

MR. BOONE ‑ May I ask the gentleman a question? I favor your amendment, and I wish to ask if you have offered it ‑ I did not hear you offer it.

MR. O’NEAL– I  cannot offer it now, because there is an amendment and substitute, but if the Convention will vote down the amendment and substitute I will offer it now. One word more, we all recognize the fact that the greatest evil from local legislation arises from counties and cities coming before the Legislature in the guise of local laws to secure special privileges and advantages. If you strike down this provision you allow that to be done;  and any county in the State or any city or Board of Aldermen or Commissioners' Court may go to their representatives and ask them to go down to Montgomery and authorize the issuance of millions of dollars of bonds. And the people of your county would wake up some morning and find that they were saddled with a bonded debt. They protest against it. But what is the necessity of their protesting? You are too late, the law has passed. I desire to make a motion to lay the amendment and substitute on the table.


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MR. DENT – I move to table the amendment and substitute.

MR. PRESIDENT – The gentleman from Barbour (Mr. Dent) moves to table the substitute and amendment.

And upon a vote being taken it was carried.

MR. O’NEAL – I offer this amendment to Section 1, Subdivision 19.

The Clerk then read the amendment as follows:

Amend Section 1.  Subdivision 19, Article — Local Legislation, by adding the word “county” before the word “township” and adding at the end of said subdivision the following: “except in cases in which the issuance of said bonds or other securities has been authorized by a vote of the duly qualified electors of such county, township, city, town or village, at an election held for such purpose in the manner that may be prescribed by law. Provided, the General Assembly may pass special laws to refund bonds, issued before the date of the ratification of this Constitution.

MR. PRESIDENT – The question is on the adoption of the amendment proposed by the gentleman from Lauderdale.  Is the Convention ready for the question?

MR. SAMFORD – I would like to ask the gentleman to allow me to add one word to his amendment.  I call attention to the fact that at the last General Assembly and in General Assemblies before that time, in addition to making special laws for the issuance of bonds for towns, cities, counties, etc., that private corporations were having private bills– I don’t know that it would come in in that connection and I see that it would not make good sense in there; so I will not offer it.

MR. PRESIDENT – Is the Convention ready for the question?

And on a vote being taken the amendment offered by Mr. O’Neal was adopted.

MR. PRESIDENT – The question recurs on the subdivision as amended.

MR. DENT – I move its adoption.

And on a vote being taken the motion prevailed.

MR. deGRAFFENREID – I ask unanimous consent to be allowed to introduce a short resolution, and ask that it be referred to the Committee on Rules.

Consent being given, resolution No. 237, by Mr. deGraffenreid, as follows, was referred to the Committee on Rules:


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Resolution No. 237, by Mr. deGraffenreid:

Resolved, That after the present week, this Convention shall dispense with all clerks of committees except the clerk of the Committee on Rules and a clerk for the Committee on Order, Harmony and Consistency of the Whole Convention.

Resolved further, That the clerks of the Committee on Rules and of the Order, Harmony and Consistency of the Whole Constitution shall serve the chairman of the other committees when their services are required.

Referred to the Committee on Rules.

MR. SAMFORD ‑ I move a suspension of the rules four the purpose of putting that resolution on its passage.

THE PRESIDENT ‑ The resolution  has already been referred.

The Clerk then read Subdivision 20, as follows:

"Amending, confirming or extending the charter of any corporation or remitting the forefeiture thereof."

The Clerk then read Subdivision 21, as follows:

"Creating, extending or impairing any lien."

MR. SPRAGINS ‑ I move to amend Subdivision 20 by inserting the word "private" after the word "any."

Mr. deGraffenreid here took the chair.

MR. O'NEAL ‑ We accept that.

THE PRESIDENT PRO TEM. ‑ The question is upon the adoption of the amendment which has been accepted by the committee. The Clerk will read the subdivision as amended.

MR. O'NEAL ‑ On behalf of the committee I accepted that, but on reflection I find that we cannot do so, for the Mason that it proposes to amend the amendment "extending the charter of any corporation." That is what we want to prevent the legislature from passing all these private charters of cities and towns; and if we add this word "private," the evils of creating local charters would still exist. I say on reflection the committee cannot consent to the amendment. This section prohibits the Legislature from passing local laws "amending, confirming or extending the charter of any corporation." And one of the largest evils of local legislation consists in doing that thing. If we confine it to private corporations, they could continue to amend the charters of municipal corporations and fill up more space in the acts of the Legislature than anything else. That all can be accomplished by a general law; and therefore we cannot consent to it.


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MR. DENT ‑ I move to lay the amendment on the table.

THE PRESIDENT PRO TEM. ‑ There is no amendment before the Convention. The gentleman is reducing his amendment to writing. As soon as he does the Chair will recognize the gentleman from Barbour (Mr. Dent), for the purpose of making that motion.

MR. DENT– I don't think we ought to wait upon the gentleman to put his amendment in writing. I move the adoption of the subdivision as it stands.

MR. HEFLIN  ( Randolph) ‑ I move that the gentleman be allowed time in which to write his amendment before it is voted down.

The Clerk then read the amendment offered by Mr. Spragins, as follows:

"To amend Subdivision 20 by inserting the word "private" before the word corporation in the first line."

MR. SPRAGINS ‑ My idea was that the committee intended that that subdivision referred to private corporations and had by negligence left out the word "private." The first part of the subdivision seems to refer to any corporation, either private or public; and the second part of the sub ‑ division seems to refer only to private corporations with reference to the forfeiture of charter. My idea in asking that the word "private" be inserted before the word “corporation” was, in the event that some municipal corporation might desire to change the corporate limits of the city by extending them. And it is the purpose of my amendment to fix it so that the Legislature could authorize this to be done.

MR. DENT ‑ It seems to me that the object sought to be secured by the gentleman. who offered the amendment (Mr. Spragins) can be secured under a general law. That is one of the very things that we want to stop the Legislature from acting upon; and if you give them the power to act, why they could just change the whole thing. Besides, the provision prevents the Legislature from remitting the forfeiture of any charter. I think it is a very wise provision, and I renew my motion to table the amendment.

MR. O'NEAL ‑ Will the gentleman permit a suggestion ?

MR. DENT ‑ Certainly.

MR. O’NEAL ‑ My attention has been called to the fact that the Supreme Court has decided that the word "corporation" does not mean municipal. It means to imply private corporations. The intention was to read private corporations.

MR. FLETCHER ‑ The Committee on Banking have made a report and this report has not been adopted. Under the old Con‑


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stitution, there is an old clause which says that all bank charters shall expire after a limitation of twenty years, unless extended by the Legislature. How does this affect that?

MR. O'NEAL ‑ I think after the expiration of a charter of any bank, the Legislature would have to pass a general law providing for the extension of the charters of institutions of that character. There is a general law on that subject which provides for the extension of banks at the expiration of their charters.

THE PRESIDENT PRO TEM ‑ The question is upon the adoption of Sub ‑ division 20, as amended; and the clerk will read the sub ‑ division, as amended.

MR. O'NEAL ‑ We ask unanimous consent to add the words "private or municipal" corporations. The consent was granted.

THE PRESIDENT PRO TEM. ‑ The question is upon the amendment of Mr. Spragins.

MR. SANDERS ‑ The question is upon the substitute as offered by the gentleman from Lauderdale (Mr. O'Neal).

MR. O'NEAL ‑ What is his amendment?

THE PRESIDENT PRO TEM. ‑ My recollection is that it was not to extend to any private corporations. You want to amend by adding the word "municipal." Do you ask unanimous consent that that should be done?

MR. O'NEAL ‑ I move to lay the amendment of the gentleman—

(Cries of no! no!).

MR. O'NEAL ‑ Well, have his amendment read.

The clerk then read the amendment offered by Mr. Spragins as follows:

"To amend Sub ‑ division 20 by inserting the word "private" before the word ‘corporation,’ in the first fine."

MR. O'NEAL ‑ We accept that amendment. I call attention to the fact that the amendment as made the word "private" is already there.

MR. WATTS ‑ We accept the word "private" but we request to add "or municipal."

THE PRESIDENT PRO TEM. ‑ That has to be done by unanimous consent.

MR. WATTS ‑ It reads now "private or municipal."

MR. BROOKS ‑ I understand the act of the committee, on this proposition, as amended, is to prevent the Legislature from


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passing local legislation in regard to the amending, confirming or extending the charter of any private or municipal corporation. Now it is possible that this Convention may adopt ordinances giving the General Assembly power or making it incumbent upon the General Assembly, to incorporate by general laws, cities of different sizes or of different importance, as regards population, etc. ; but in doing that it may be necessary for the General Assembly, in passing these general laws, to except from the provisions of the general laws such particulars as may be necessary for them to have the regulation and control over the charters of corporations or municipalities. Questions may arise at subsequent periods which are not now dreamed of; and under the general law there may be no way to amendment of existing charters. My idea is that whatever general law the General Assembly may pass in regard to incorporating towns, cities and villages, there ought to be some room left to the General Assembly to make such changes as in its wisdom it may, see fit, when under the general law these changes can not be made by the people of these respective communities. Therefore. I am opposed to putting in here the word "municipal" in regard to municipal corporations.

MR. BOONE ‑ I move the previous question on the adoption of the section as amended.

MR. SPRAGINS ‑ Unanimous consent was never given the committee to insert the word municipal.

THE  PRESIDENT PRO TEM. ‑ The word "municipal" hasbeen inserted by unanimous consent and was so placed before the Convention; no one objected. The question is whether the previous question shall be put.

And upon a vote being taken the previous question was ordered. and upon a further vote, the sub ‑ division was adopted.

Sub ‑ division; 21, 22 and 23 were read by the clerk as follows:

Twenty ‑ first ‑ Creating, extending or impairing any lien.

Twenty ‑ second ‑ Chartering or licensing any ferry, road or bridge.

Twenty ‑ third ‑ Regulating the jurisdiction and fees of justices of the Peace or the fees of constables.

MR. LONG (Walker) ‑ I desire to offer an amendment to Subdivision 22.

The clerk then read the amendment offered as follows:

"To amend Sub ‑ division 23 by striking out the words "jurisdiction or" in the twenty ‑ eighth line."


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MR. WATTS ‑ There is an error there, and after jurisdiction should be "or."

THE PRESIDENT ‑ Does the gentleman ask unanimous consent to make the correction?

MR. WATTS ‑ Yes, sir.

THE PRESIDENT PRO TEM. ‑ Unless there is objection made, the correction will be made. The chair hears no objection and the clerk will make the correction.

MR. WATTS ‑ To strike out the word "and" and insert the word "or" after the word "jurisdiction."

MR. LONG (Walker) ‑ I offer that amendment because it is necessary for the Justices of the Peace, in some localities; in Alabama, to have more jurisdiction than in others.  In some of the rural districts in our State they have jurisdiction as to prohibition laws, while in other counties and cities it may not be necessary for him to have this jurisdiction. I call the attention of the Convention to that fact. I think it is an important amendment; because I think there are places in Alabama where the jurisdiction of the Justice of the Peace is just as important as one in New York and in the mining camps in Alabama, where they have a court every six months, Justices of the Peace should have more jurisdiction than in the city of Montgomery or Mobile, and each county should be allowed to regulate this.

MR. WATTS ‑ Never in the history of the State has a Justice of the Peace in one part of the State been given different jurisdiction from another part.

MR. LONG (Walker) ‑ The gentleman is mistaken.

MR. WATTS ‑ If so it ought not to be and this is to prevent it in the future.

MR. FITTS ‑ The gentleman is very much mistaken. In Pickens County the Justices of the Peace have very large jurisdiction.

MR. WATTS ‑ I thank the gentleman for calling my attention to it. That is a good reason why this sub ‑ division should be adopted; and I move to lay the gentleman's amendment on the table.

MR. NeSMITH ‑ I wish to offer a substitute to the amendment.

The Clerk read the substitute as offered by Mr. NeSmith as follows:


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“To amend Subdivision 23 of Section 1, so as to make the same read as follows: “23.  Regulating the jurisdiction of Justices of the Peace, except in precincts, in whole or in part, within towns of 2,500 inhabitants, or more, and regulating the fees of Justice of the Peace or the fees of constables.”

MR. SAMFORD – I rise to a point of inquiry.

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

MR. SAMFORD – I was engaged at something else a moment ago and I failed to catch the amendment that was offered to the Subdivision, and I would like for the Clerk to read the amendment again.

The Clerk then read the amendment offered by Mr. NeSmith to Subdivision 23 of Section 1.

MR. SAMFORD – Not that one. I heard that one.

The Clerk then read the amendment offered by Mr. Long (Walker) to Subdivision 23.

MR. NeSMITH – I am a member of the Judiciary Committee and that Committee has decided to report favorably the Section providing that any precinct lying in whole or in part, within a town of 2,500 inhabitants, or more, the General Assembly may establish an inferior Criminal Court to absorb the jurisdiction of the Justices of the Peace within that town or those towns or the precincts within those towns.  It seems to me that section 23, as reported by the Committee, would perhaps be in conflict with that provision; and the exception that I have offered to except from this provision precincts lying in whole or in part within a town of 2,500 inhabitants or more, would prevent that conflict, and I offer the amendment.

MR. WADDELL – If the plan was adopted, that you suggest, would this in the least conflict with the establishment of inferior courts?  This does not mention anything but Justices of the Peace.

MR. NeSMITH – Possibly in those towns in force in Alabama confers upon Inferior Criminal Courts additional jurisdiction; but I doubt whether it could be done under this Section.

MR. O’NEAL – The system that is now in force in Alabama to confer upon Justices of the Peace in different counties and different cities different jurisdiction.  You will find in almost every county in Northern Alabama that is the case.  I know Justices of the Peace in certain counties who have jurisdiction concurrent with the Circuit Court, and every one of us know that there are many acts on the subject of conferring jurisdiction on Justices of the Peace, the Justices of the Peace themselves don’t know what their jurisdiction is; and it takes a well trained lawyer to ascertain the


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different powers of the justices of the Peace in the different counties in Alabama. The result is that it is confusing.

MR. COLEMAN (Greene) ‑ Is there anything in this subdivision that will prevent the Legislature, if they see proper to do so, to alter the jurisdiction and fees which now prevail in particular counties? Suppose some county has conferred jurisdiction of misdemeanors upon justices of the Peace and increased the fees?

MR. O'NEAL ‑ The provisions are that any local law that now exists would be repealed or can be repealed by local law. We know that in a great many cities of this State the administration of the law by the Justices of the Peace has become to be a great evil. There are more frivolous prosecutions brought in these courts than any other tribunal in this State. They have become to be a source of oppression on the poor, helpless and ignorant negro, as well as the laboring man, who are constantly dragged into court by these officials whose fees depend upon a conviction. I say it is a consensus of opinion of the people of Alabama that it would be a wise step for this Convention to relegate the Justices of the Peace to days gone by when they only had the power to bind over offenders to the higher court and to divest them entirely of jurisdiction in civil cases. They deprive men of property and though it be a small amount of property, it would be a large amount to some poor man and if you are going to vest this jurisdiction in anybody, place it with men who are learned in the law.

MR. COBB ‑ Under this provision, would not the Legislature have the power to destroy any jurisdiction of Justices of the Peace in certain localities?

MR. O'NEAL ‑ Not at all. This don't destroy, but it says that you cannot give the Justices of the Peace in one county jurisdiction different from the jurisdiction of Justices of the Peace in other counties. It is a regulation of the jurisdiction and fees of the Justices of the Peace; in other words, it prevents this mass of confusion and this uncertainty which exists in the minds of the people by having local laws in every county giving justices of the Peace from one county jurisdiction different from other counties. We want the laws uniform. If you want to establish a court, place the jurisdiction in a man learned in the law and do not select some magistrate whose fees depend upon his conviction or his deciding in favor of a party having the most money or power.

MR. COBB ‑ Suppose that court was established, could you take away entirely the jurisdiction of the Justices of the Peace.

MR. O'NEAL ‑ Yes sir, you can take it away.

MR. COBB ‑ Under this regulation?

MR. O'NEAL ‑ Yes, sir, but you would have to do it all over the State.


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MR. COBB – That's the point.

The  President here resumed the Chair.

MR. O’NEAL – You could if you wanted to do away with Justices of the Peace in a county; you could do it under this provision.  We have here that no local law can be passed on any subject not provided for. If the gentleman from Macon will give me his attention one minute, I will explain that.  That won’t prohibit the Legislature from passing a local law which regulates the jurisdiction.  We don’t say that the Legislature cannot pass a local law, abolishing the fees of the Justices of the Peace of a certain county.  That can be done by a local law, but the local law will have to be published in the county newspaper as per Section 3. which reads as follows: “The General Assembly may repeal any special, private or local law upon notice being given and shown as provided in the last preceding Section.”

MR. COBB– But this is not a local law.

MR. O’NEAL – I understood your question was if the people of a county desired to take away the jurisdiction of the Justices of the Peace, they would have to do it.

MR. COBB – If the Chair will recognize me, I will explain myself without  taking up so much time.

MR. O’NEAL ‑ I have no disposition to cut you off.

MR. COBB ‑ There is a great sentiment, Mr. President, in this State, in sections of it, at least, to take away from the Justices of the Peace all jurisdiction. And in that direction the Committee on Judiciary have prepared and they propose to submit to the Convention allowing Justices of the Peace to be abolished in sections where their duties can be better performed by some other courts, particularly in the cities. This is done in view of the many evils to which the gentleman has referred, that is, the abuse of the power by the Justices of the Peace, in some cities in this State. Now, the proposition which I submitted or the question I propounded, was if this article remains as it is, whether the power would remain with the Legislature to take away from the justices of the Peace all jurisdictions in certain localities.

MR. WALKER ‑ Will the gentleman permit an interruption?

MR. COBB ‑ Certainly.

MR. WALKER ‑ The provision as will be suggested by the Judiciary Committee, will confer upon the Legislature, in some instances, specific power. It is a general provision and certainly would not abridge the power that was specifically conferred upon the Legislature by the provision that will be reported by the Judiciary Committee and for that reason it will not conflict.


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MR. COBB ‑ If this provision does not conflict with the idea of allowing the Legislature to withdraw from the Justices of the Peace, in certain localities, all jurisdiction, I would be perfectly content.

MR. WILLIAMS (Marengo) ‑ How would it suit you to amend by adding at the end of the subdivision "except said office of Justice of the Peace may be abolished in certain sections?"

MR. COBB ‑ That is the amendment offered by my friend on the right here.

MR. O'NEAL ‑ I am willing to accept that amendment.

MR. COBB ‑ My own opinion is, if you strike out the two words "jurisdiction" and "or," as proposed by the amendment of Mr. Long of Walker, that would relieve the whole difficulty and still leave it in the power of the Legislature to control the jurisdiction of the Justices of the Peace in those localities where it is wise to abolish their jurisdiction altogether.

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

THE PRESIDENT ‑ Both of them?

MR. WATTS ‑ Yes, sir.

MR. NeSMITH ‑ I ask for a division of the question.

THE PRESIDENT ‑ It is moved that the substitute offered by the gentleman from Lamar and the amendment offered by the gentleman from Walker be laid upon the table, and a division of the question is called for. The question will be first upon the motion to table the substitute.

And on a vote being taken, the motion prevailed.

THE PRESIDENT ‑ The question now is on the motion to table the amendment offered by the gentleman from Walker.

And on a vote being taken, the motion prevailed.

MR. WILLIAMS (Marengo) ‑ I wish to offer an amendment.

The clerk then read the amendment offered by Mr. Williams of Marengo as follows: To amend Sub ‑ division 23 by adding at the end of the sub ‑ division, "except said office of justice of the Peace may be abolished in certain sections."

MR. deGRAFFENREID ‑ I move to lay the amendment on the table.

And on a vote being taken, the motion prevailed.

MR. WATTS ‑ I move the adoption of the sub ‑ division and call for the previous question.


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MR. JONES (Bibb) ‑ I desire to amend Sub ‑ division 23 by striking out Sub ‑ division 23, Section 1.

MR. WADDELL – I move to lay that amendment on the table.

And on a vote being taken, the motion prevailed.

MR. WATTS ‑ 1 move the adoption of the sub ‑ division and call four the previous question.

And on a vote being taken. Sub ‑ division 23 was adopted as amended.

The clerk then read Sub ‑ divisions 24 and 25 as follows:

“Twenty ‑ fourth – Establishing separate school districts.”

“Twenty ‑ fifth ‑ Establishing separate stock districts.”

MR. WATTS ‑ At the end of Sub ‑ division 25, I suggest that it should be amended to read as follows: "To amend Sub ‑ division 25 so as to read as follows: "Establishing districts in which stock shall or shall not run at large."

MR. SAMFORD– I move the adoption of the sub ‑ division as it stands. It is a mere matter of verbiage, and I reckon everybody knows what a stock district is in Alabama. They do in my county.

The clerk then read the amendment offered by Mr. Watts, to amend Sub ‑ division 25. as follows: To amend Sub ‑ division 25 so as to read "establishing districts in which stock shall or shall not run at large."

MR. GRANT ‑ I move to lay the amendment on the table.

And on a vote being taken, the amendment was tabled.

MR. SAMFORD ‑ I move the adoption of the subdivision.

And a vote being taken, the subdivision was adopted.

MR. BLACKWELL ‑ I desire to offer an additional subdivision.

MR. WATTS ‑ I would suggest that an additional sub ‑ division is not in order until we get through with the sub ‑ division in the report of the committee and the supplemental report of the Committee on Legislation.

THE PRESIDENT ‑ It seems to the chair that the point is well taken.

The clerk then read Sub ‑ division 26 as follows:

Twenty ‑ sixth ‑ Creating, increasing or decreasing fees, percentage or allowances of public officers. No special, private or


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local law, except a law fixing the time of holding courts, shall be enacted in any case, which is provided for by a general law, or when the relief sought can be given by any court of this State, and the courts and not the General Assembly shall judge as to whether the matter of said law is provided for by a general law and as to whether the relief sought can be given by any court; nor shall the General Assembly indirectly enact any such special, private or local law by the partial repeal of a general law. The General Assembly shall pass general laws for the cases enumerated in this section.

MR. SANDERS ‑ The report from the Legislative Department is added, by agreement with the chairman, after the words "public officers," in Sub ‑ division 26, Section 1, as recommended by the Legislative Department, and should be taken up now. It reads as follows:

"Now, in pursuance to an understanding and agreement with the chairman of that committee, your Committee on Legislative Department instructs me to report and recommended for adoption the following additional restrictions upon the power of the Legislature to enact local, special or private laws to come in after the words "public officers" in Sub ‑ division 26 of Section 1, of the Article already reported by said committee, to wit."

THE PRESIDENT ‑ The next will be No. 27, as reported by the Committee on Legislative Department. It seems to the chair that this report should be offered as an amendment in some way.

MR. HARRISON ‑ I desire to make an inquiry of the chairman of the committee: Your Section 1 says: "The General Assembly shall not pass a special, private or local law in any of the following cases." I don't exactly understand this, whether it includes Sub ‑ division 26. Then you start off on a different line by saying "the General Assembly shall pass general laws for the cases enumerated in this Section." That does not seem to be proper and germane at all.

MR. O'NEAL ‑ I know all about that and I desire to state ‑‑

THE PRESIDENT ‑ The Chair will state that the Convention now has under consideration the report of the Committee on Legislation; and if different paragraphs are to be added, they should be added by amendment.

MR. O'NEAL ‑ I desire to state to the President, that we agreed to accept this amendment; and it was accepted by unanimous consent on the part of the Convention at the time this report was made. It was agreed that the report of the Committee on Legislative Department, would be considered as an amendment to our report– as a supplemental report.


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THE PRESIDENT ‑ Was the amendment adopted by the Convention?

MR. WADDELL ‑ Yes, sir; by unanimous consent.

MR. O'NEAL ‑ The amendment was adopted with the understanding that it should be treated as a part of the report. That is my recollection.

THE PRESIDENT ‑ The Chair inquires whether the Journal sustains the recollection of the gentleman from Lauderdale?

The Chair will state that the journal shows that the action of the Convention was, that the report should be considered in connection with the report of the Committee on Local Legislation. Hence, it would seem necessary that the Convention take some action in adopting this as an amendment or as an additional subdivision to the report.

MR. O'NEAL ‑ I move that it be considered as a supplemental report.

MR. OATES ‑ In order to avoid any difficulty in that way in considering Section 26 as it stands here in type, we could take up items of sub ‑ divisions reported by the Committee on Legislative Department, and the arrangement of the numbers will present no difficulty. We can settle that hereafter, we can consider subdivisions and such amendments as are desired and then take up the other.

MR. PRESIDENT ‑ It would be perfectly competent for the Committee on Local Legislation to propose to add this subdivision.

MR. O'NEAL ‑ In view of the suggestion from the Chair, I will make that motion, though we do not concur in the latter part of this report.

MR. PRESIDENT ‑ How far does that concurrence extend?

MR. WATTS ‑ To the subdivision.

MR. PRESIDENT ‑ Thirty ‑ five?

MR. WATTS ‑ Yes, sir.

MR. O'NEAL ‑ Section 35, down to where it says, "Your Committee do not concur in section 5 of said Article as reported by the Committee on Local Legislation and recommends as a substitute therefor Section 25 of Article 4 of the present Constitution."

MR. PRESIDENT ‑ The Committee on Local Legislation concurs in subdivisions 27, 28, 29, 30, 31, 32, 33, 34 and 35?


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MR. O'NEAL ‑ We are willing to adopt that as an amendment to the report of the Committee on Legislation and be considered subdivision by subdivision.

MR. HARRISON ‑ I desire to enquire of the Chairman of the Committee on Local Legislation if the copy of the printed report as furnished us is the report of the Committee on Legislation? Section 26, as it is reported, are we to consider that as the official report of the Committee?

MR. O'NEAL ‑ Certainly, sir; that's what we are on now.

MR. HARRISON ‑ I renew my suggestion to the Chairman of the Committee, if I understand subdivision 26. It is improperly there and is not germane.

MR. WALKER ‑ There are two reports now being considered by the Convention. The first is the report of the Committee on Legislation down to subdivision 26; and then the purpose is to take up the report of the Committee on Legislative Department and consider that report.

MR. HARRISON ‑ That's what I did not understand, subdivision 26 as printed here in the report of the Committee on Local Legislation.

MR. PRESIDENT ‑ The report of the Committee on Legislative Department taken up after the word "officers" in subdivision 26.

MR. HARRISON ‑ After the word officers: The point I desire information on, if it be reported as printed here, there are six or eight other lines that precede the conclusion of that whole subdivision.

THE PRESIDENT ‑ The gentleman from Limestone called the attention of the Chair to the understanding with the Chairman, and the Chair having stated this matter, they have provided that the report of the Committee on Legislative Department should be taken up at that point, after the word "officers."

MR. HARRISON ‑ I would like to ask if the other part of this subdivision 26, as printed, is being considered?

MR. O'NEAL ‑ It will be considered.

MR. PRESIDENT ‑ It will have to be re ‑ numbered.

MR. OATES ‑ There is no reason to misunderstand that. The remaining portion of the subdivision is to be considered. But, as I understand the statement of the Chairman on Local Legislation, he proposes to leave that as it is until subdivisions numbers 27, 28, 29, etc., reported by the Committee on Legislative Department, are


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considered; and then go back to subdivision 26 of that section and go on through with the report.

MR. PRESIDENT ‑ Wouldn't it be necessary to change the number of that section?

MR. OATES ‑ It may or it may not.

MR. PRESIDENT ‑ Part of subdivision 26 would stand as subdivision 28 and then subdivision 27 would succeed it?

MR. OATES ‑ Yes, sir.

THE PRESIDENT ‑ What would you do with the balance of subdivision 26? Will it not have to be renumbered to make it in order?

MR. OATES ‑ It may. Depends on the action of the Convention.

MR. O'NEAL ‑ We don't desire to put it in a separate section, because it is in the proper section now.

THE PRESIDENT ‑ It can succeed these other subdivisions?

MR. O'NEAL ‑ Yes, sir.

THE PRESIDENT ‑ The Committee on Local Legislation offers as an amendment to Section 1, Subdivisions 27, 28, 29, 30, 31, 32, 33, 34 and 35, as reported by the Committee on Legislative Department.

The Chair will state that these subdivisions will be open to amendment, as stated heretofore.

MR. WEATHERLY ‑ I desire to offer an amendment. There is an incongruity in it and it ought to be considered as a whole. I therefore move that these subdivisions, as reported by the Committee on Legislation, be taken up after Subdivision 25.

MR. WATTS ‑ The difficult that seems to be on our mind and on the mind of the gentleman from Lee, will be obviated by simply, when we get to it, inserting "Section 2" before the words "No special, private or local law shall be passed on any subject not enumerated, etc."

MR. HARRISON ‑ Exactly.

MR. WATTS ‑ We will do that when we get to it.

MR. HARRISON ‑ And go ahead and transform line 39.

MR. WEATHERLY ‑ I move that we begin the consideration of the subdivisions as reported by the Committee on Legislation. You have a lot of stuff in there that don't belong in there.


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MR. O'NEAL ‑ The subdivision ends after the word "officers."

MR. WEATHERLY ‑ It don't end that way in my report.

MR. O'NEAL ‑ It is printed badly.

MR. WEATHERLY ‑ I move that the consideration of this subdivision be postponed to be taken up after Subdivision 35.

THE PRESIDENT ‑ The gentleman from Jefferson moves to postpone the consideration of Subdivision 26 as it appears in the printed report.

MR. HARRISON ‑ I would suggest to the gentleman from Jefferson on that proposition that it would be better to adopt so much of the Subdivision 26 as is printed—

MR. SANDERS ‑ I call for the previous question.

THE PRESIDENT ‑ The motion of the gentleman from Jefferson is to postpone the consideration of Subdivision 26 until the subdivision as reported by the Committee on Legislative Department has been considered and passed upon.

And upon a vote being taken the motion was lost.

MR. HARRISON ‑ I do not remember, and I ask the Chair for information, if the latter part of that section has not been stricken out or what are we adopting as Section 26?

THE PRESIDENT ‑ The Convention seems to be wholly unable to determine what it wants to do with Section 26.

MR. HARRISON ‑ I move that so much of Section 26 as is in the copy before us be adopted as is embraced between the words "creating" and "officers" on the first line.

MR. O'NEAL ‑ That is the whole of Subdivision 26. It is simply due to an error in printing.

THE PRESIDENT ‑ Will the gentleman from Lee reduce his motion to writing. The Chairman of the committee is mistaken, it is not due to the printer, but it is due to the original copy, and there is no paragraph at all in the original copy.

MR. deGRAFFENREID ‑ T move that Section 26 be referred back to the committee.

To which were expressions of dissent.

MR. O'NEAL ‑ I move to lay that motion on the table.

The motion was carried.

MR. SAMFORD ‑ I move to lay 26 on the table.


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The motion was lost.

MR. HARRISON ‑ I offer this amendment.

The amendment was read. Amend subdivision 26 by striking out all of the subdivision after the word "officers."

MR. WATTS ‑ I really don't understand how it is that you cannot understand that Section is comprised alone of the words "creating, increasing or decreasing fees, percentage or allowance of public officers." That is the whole of Subdivision 26. We do not want the balance of Section 1 stricken out. We are willing to consider Subdivision 26 just as I read it, and afterwards consider the balance of Section 1.

MR. COBB ‑ I move to amend the motion of the gentleman from Lee.

The amendment is simply that Section 26 be considered as consisting only of that first sentence and the balance be numbered 27.

The amendment was declared out of order because not in writing.

MR. HARRISON ‑ In support of my amendment, I desire to say that the other can be considered as a separate section. My amendment is not perfect because I should have moved to strike out all down to the word "law" in the 38th line.

MR. COLEMAN (Greene) ‑ The committee has reported as Subdivision 26 these words: "creating, increasing or decreasing fees, percentages or allowances of public officers." The report of the Legislative Committee begins there and goes on. The Committee on Local Legislation has accepted that and after we pass upon the 26th subdivision we will go back and consider beginning at the words "no special, private or local law," which may be numbered as Subdivision 36.

MR. O'NEAL ‑ The last subdivision offered by the Legislative Department is 35, then beginning with "no special" that will he numbered 36 and the whole report of the committee will be uniform and there is no difficulty in the whole matter. I adopt the motion of the gentleman from Greene and on that I call the previous question. I ask unanimous consent to settle the controversy, that the words "creating, increasing or decreasing fees, percentage or allowances to public officers, be made subdivision 26.

THE PRESIDENT ‑ Does the gentleman ask unanimous consent to withdraw temporarily the balance of the subdivision as it is printed?

MR. O'NEAL ‑ Yes, sir.


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To which no objection was made and upon a vote being taken subdivision 26 was thereupon adopted.

Subdivision 27 was read as follows: "Exemption of property from taxation or from levy or sale."

MR. DAVIS (Etowah)– I offer an amendment which will be a separate subdivision.

THE PRESIDENT ‑ It is not in order at this time.

MR. PILLANS ‑ I ask to amend that subdivision by making it react exempting property, instead of exemption of property.

MR. O'NEAL ‑ We accept that.

THE PRESIDENT ‑ The Chair cannot entertain amendments that are not in writing, because it would be impossible to keep the journal straight.

The amendment was prepared and read as follows : "Amend subdivision 27 by striking out "exemption of" and inserting “exempting."

MR. WATTS ‑ I move its adoption.

Upon a vote being taken the amendment was adopted, and upon a further vote the subdivision was amended as adopted.

Subdivision 28 was read as follows: "Exempting any person from jury, road or other civil duty."

There being no amendments or objections offered, subdivision 29 was read as follows: "Laying out, opening, altering, or working roads or highways."

MR. DENT ‑ I send up an amendment.

The amendment was read as follows: "Amend subdivision 29 Article I, by adding at the end of the subdivision the followingwords : "Provided, that this subdivision shall not affect counties which already have special laws on the subject of public roads."

MR. OATES ‑ I am satisfied that amendment is wholly unnecessary. This only prohibits the legislature, after its ratification, from doing these things. It does not have the effect of repealing any existing law, and it don't follow that the legislature must do it, and therefore there is no necessity for the amendment.

MR. DENT ‑ If that construction is put upon it. I withdraw the amendment.

MR. HARRISON ‑ I would like to inquire of the Chairman of the Committee, what necessity exists in the opinion of the Committee, for including this subdivision in the law?


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MR. O'NEAL ‑ The Chairman of the Committee on Legislative Department inserted that, and he will answer the interrogatory.

MR. OATES ‑ In the opinion of two Committees of this house, it was thought well to put it there, simply to prevent local legislation, making special provisions in local laws, for the laying out, opening, altering or working roads or highways. It was to prevent the legislature froth passing laws operating differently in different localities, as there is no necessity for it.

MR. HARRISON ‑ I asked the gentleman a question, and I desire to say that I do not think the explanation shows a sufficient necessity for the incorporation of this provision. The question of improving the public roads is a live one in this State, and some counties have made great progress in this direction. I do not want to interfere with it, and hope to see the day when other counties will move forward in this direction. Situated as we are, with a diversity of climate, and diversity of soil, from Tennessee to the Gulf, I apprehend it will be very difficult to adopt any provision that would be applicable to all of the counties in this State. So far as my recollection goes, the past history of legislation upon this subject has shown that it has given very little trouble, and I can see very little necessity for this inhibition. Where counties desire to improve the road system, they would have the opportunity to have a different law, because a general law could not be framed to fit the different counties in the State, and I will be constrained to vote against the incorporation of this provision in the Article.

MR. WADDELL ‑ I would ask the gentleman if the power could not be conferred upon each of the courts of county commissioners, in the different counties in the State, to deal with road questions, as they saw proper, by a general law?

MR. HARRISON ‑ So it might, but I doubt very much the propriety of making a legislature out of the average commissioner's court.

MR. CARMICHAEL (Colbert) ‑ I desire to say to this Convention in reference to this provision, that it seems like an extreme proposition. It prohibits the pasisng of a law "laying out. opening, altering, or working roads or highways." I am one of those who do not believe that the evils of local legislation are as extreme as some of the members of the Convention have asserted. There are some matters that ought to be left open for local legislation. One subdivision has been adopted here that in my opinion is unwise, and that is on the question of locating county seats. I think this entire question is dangerous, and especially this subdivision. There are many counties in the State which have different systems of keeping up their public roads. In Colbert County we have, as this Convention knows, contracted a large indebted‑


1894

OFFICIAL PROCEEDINGS

ness for turnpikes. Our condition is such that we might need special legislation in order to keep up these roads, I suppose there are other counties in a like condition. For that reason it seems to me unwise for this Convention to let it remain and I hope that they will strike it out.

MR. OATES ‑ I have given briefly the reasons that influenced two committees to recommend this provision, and I have no disposition to consume any more time on it. I move the previous question. If the gentlemen do not want it they can vote against it.

MR. WEATHERLY ‑ I hope the gentleman will withdraw the motion a moment.

MR. OATES ‑ I will withdraw it.

MR. WEATHERLY ‑ This question, Mr. President, is of much more importance than the delegates seemed to have thought when they precipitately laid my motion on the table. I think this is one of the subjects that the legislature ought to have the control of by local legislation. I am very much in favor of most of these restrictions on local legislation, but I believe this particular restriction is unwise. This prohibits any local law for the laying out, opening, altering, or working of roads or public highways.

MR. WATTS ‑ If the gentleman will permit a question, can't a commissioner's court lay out, open and alter a road, and why then should the legislature undertake to pass a special law for that purpose?

MR. WEATHERLY ‑ Well, there might be a general law so framed as to authorize the courts of county commissioners to act in the matter.

MR. WATTS ‑ Section 5 provides for it if you will look at it.

MR. O'NEAL ‑ I desire to ask if striking out the word "working" would obviate the objection that seems to be in your mind, and let the Commissioners' Court, as they do now, lay out, open or alter roads.

MR. COLEMAN (Greene) ‑ You might strike out the words "altering or working."

MR. WEATHERLY ‑ I want to call the delegate's attention to the principle that once a highway is dedicated to the public, although it has been done often, I doubt whether the Court of County Commissioners has a right to close it. It is dedicated to the public. It is public property, and I think the Legislature ought to be absolutely free under the Constitution, to close up a highway when it becomes of no further value to the public. There are a variety of circumstances and contingencies which might arise which the Legislature alone ought to deal with. You cannot provide for


1895

CONSTITUTIONAL CONVENTION, 1901

them simply by general law, authorizing the Courts of County Commissioners, or the Boards of Revenue to do certain things, because human judgment is so fallible that we cannot think of all the contingencies that might arise in respect to that matter. For that reason, I think that this is an unwise restriction. Certainly, the Legislature has been prudent heretofore with local bills of this character.

MR. WADDELL ‑ I desire to call the attention of the delegate to Section 2443 of the present Code, "The Court of County Commissioners of the several counties is invested with a general superintendence of the public roads within their respective counties, and may establish and change and discontinue old roads, in the manner hereinafter provided."

MR. WEATHERLY ‑ I know it does, but I doubt if under that statute the Court of County Commissioners could close up a public road, if anybody objected to it. A municipality cannot do it. A town cannot do it. The public acquires a right to the road when it is opened. Every individual composing that public acquire a right to the use of that public road.

MR. WILLETT ‑ And have an easement in it.

MR. WEATHERLY ‑ And they have an easement in it.

MR. WADDELL ‑ Here is what the Supreme Court says as to that: "The power herein exercised is quasi legislative, and other courts will not revise, except in so far as it interferes with property rights."

MR. WEATHERLY ‑ I understand that is the effect of the statute, but if the gentleman remembers those decisions hold that so far as the municipality is concerned, or the town or city, they cannot close up a highway. A Board of Aldermen, or a Mayor and Aldermen, cannot close it up if any one objects.

MR. BOONE ‑ Is it not a fact that that express point has been decided by the Supreme Court, in the case of the City of Mobile, against the L. and N. R. R., in the 125th Alabama?

MR. WEATHERLY ‑ Certainly it was, and it has been decided in quite a number of other cases, and I think the same proposition applies to the county authorities.

MR. BOONE ‑ I move the previous question on the motion of the gentleman from Colbert.

MR. GRANT ‑ I hope the gentleman will withdraw that. I want to ask a question of the chairman of the committee.

The motion was withdrawn.


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OFFICIAL PROCEEDINGS

MR. GRANT ‑ I want to inquire if the effect of this subdivision here would be to prevent the General Assembly from passing a special road law for any county of the State

MR. O'NEAL ‑ It does.

MR. GRANT ‑ If that is the case, Mr. President, I am in favor of striking that sub ‑ division out, and for these reasons. The movement for good roads in this State has always met an opposition from the people of the county who have to endure the taxes to get the roads. I remember in our county, and we are one of the counties that, by a system of taxation, has the best roads in that section of the State, and the first bill looking to taxation for the improvement of the roads aroused furious indignation among the taxpayers in the county. A subsequent Legislature, in obedience to that sentiment repealed the law. The Legislature following reinstated it, and now Calhoun County has the best roads in Northeast Alabama by a system of taxation adopted especially as to that county, and there is now no tax that the people of the county pay with more cheerfulness and no people take greater pride in their road. As has been stated by the gentleman from Lee, different counties need different conditions and laws, and I do not believe that any general law can be passed that will suit all counties alike in this State. One tax for Calhoun would do the work, but the same tax for Cleburne, or any of the adjoining counties would be too much. I believe the Legislature ought to be able to deal with this question, where it embraces as large a territory as the counties of the State. It seems we are cutting off all local legislation entirely. I think the Legislature ought to be left free in some measure for the adoption of local legislation on so important a question as the public roads of the State. For that reason, I want to say that I will vote for the motion to lay the subdivision on the table.

MR. OATES ‑ I yielded to the gentleman from Calhoun. I have a few words to say in reply. I do not agree with the answer that he received, that this provision would prevent legislation such as he stated might be desirable for his county. This is to prevent local acts for the laying out, opening, altering, working roads or highways, but where such legislation was desired by the county, as indicated by the delegate from Calhoun, this does not inhibit that, and he will find that there is another provision here, a proposition that we have not come to yet, and which doubtless will be adopted, providing that where any thing is desired in the way of local legislation which has not been or cannot be properly provided for by a general law, that local legislation may be had to effectuate it. It would be nonsensical to tie up the Legislature so that it never could pass an act in any case. That is not what is intended. It is to stop unnecessary acts. For instance, a member may get up and desire to introduce a bill to exempt A, B and C in his county, from road duty, and, as a matter of courtesy, as the thing is now, he


1897

CONSTITUTIONAL CONVENTION, 1901

would be exempted. We do not want to have that kind of legislation. There has been much more of it than gentlemen claim upon this floor, and there would be a general law authorizing the County Commissioners to do all of these things. You will find that tinder a general law that they would be authorized to do these things, and, therefore, there would be no necessity for special enactment, but in cases where the county desires to make large improvements in its roads, and it cannot be effectuated under the general law, that is the best of reasons and is covered by a proposition which this Convention will soon be called upon to enact, that the legislative hands are to be untied and they may pass a local law to meet such exigencies.

MR. HARRISON ‑ Please point us to the provision to which you refer, leaving it to the discretion of the Legislature to say when they should do that.

MR. OATES ‑ It is in several sections here.

MR. HARRISON ‑ Of this report?

MR. OATES ‑ Yes, and in the Legislative Department, too.

MR. HARRISON ‑ Then under the decision of the Supreme Court, would not the Legislature have the full authority to act upon it?

MR. OATES ‑ They will not have their hands tied as I stated just now. The gentleman's proposition as I said a few minutes ago, ought to have satisfied the gentleman from Lee, and that is, for instance, where a Court of County Commissioners or a Board of Revenue have not the power under a general law to accomplish what is desired in the county, and the general law cannot be framed or has not been framed or enacted, the Legislature is perfectly free to enact a local measure to accomplish what is desired. There is no doubt about that. Now as there is no amendment pending. I move the adoption of this subdivision, it is as good as a motion to lay on the table or anything of that kind because if the gentlemen do not want it they can vote it down. I move the adoption of this subdivision.

MR. BEDDOW ‑ The gentleman from Calhoun moved to lay Section 26 on the table.

MR. OATES ‑ The gentleman did not do so, and I did not yield the floor to him for any such purpose.

MR. GRANT ‑ No, I said I would be in favor of such a motion.

MR. OATES ‑ I move its adoption. If it is not acceptable to the Convention let them vote it down and go on.


1898

OFFICIAL PROCEEDINGS

MR. DENT ‑ I send up an amendment.

The amendment was read as follows:

Move to amend Subdivision 29, by striking out Subdivision 29 of Article I., now under consideration.

MR. DENT ‑ Mr. President, I think enough has been shown in the discussion of this question to indicate that this is at least, of doubtful propriety. The distinguished gentleman from Montgomery who last addressed the Convention said that this was provided for, as I understood him, in Section 2 of this Article. That is under certain conditions that a county could get a local law. I do not so read that Section. The Section 2 which I will read a line or two from is as follows: "No special, private or local law, shall be passed on any subject not enumerated in Section 1." It not only prevents the passage of special laws upon all the subjects enumerated, but then it goes further and says that it shall not be done upon subjects not enumerated, except under certain conditions. If we pass this subdivision, it seems to the that it will be in conflict with any effort to have a special law of any kind.

MR. OATES ‑ Will you read this amendment. This is what I was going to offer.

MR. DENT ‑ I will read it. "There shall be appointed in each House of the Legislature a standing Committee on Local and Private Legislation, the House Committee to consist of nine Representatives and the Senate Committee of five Senators. No local or private bill shall be passed by either House, until it shall have been referred to such committee thereof, and shall have been reported back with the recommendation in writing that it be passed, stating the reasons therefor and why the ends to be accomplished cannot be reached by a general law, or by a proceeding in court, or if the recommendation of the Committee be that the bill do not pass, then it shall not pass the House to which it is so reported, unless it be voted for by a majority of all the members elected thereto."

MR. O'NEAL ‑ I desire to say on behalf of the Committee on Local Legislation that the Committee cannot accept that amendment, but will oppose it, because the effect of that amendment would completely destroy the Article.

MR. HARRISON ‑ I desire to ask permission of the delegate from Barbour to request in connection with the argument he was making when interrupted by the gentleman from Montgomery, that he read the first clause of the Article we are working on.

MR. DENT ‑ Yes, I think that is very plain. Besides we see there is going to be opposition to that. It is speculative to speak of what will be done in the future, and we cannot stand upon that.


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CONSTITUTIONAL CONVENTION, 1901

As has been said upon this floor, the effort to secure good roads in this State has been commenced, and I think that it is one of the most important things that can be started in Alabama. If we had good roads in every county of the State, I am satisfied that it would increase the value of the lands in every county. I am satisfied that it has done this in Calhoun, as stated by the delegate, and I am satisfied that it is doing it in Montgomery County. We are beginning the movement in Barbour, and I believe if we can succeed in establishing good roads in that county, that it will increase the value of our lands, but while I am in favor of striking down so much local legislation, I think this is going too far. I do not believe that this Convention should put so many unrealistic provisions in this Constitution. I renew the motion that the Section be stricken out.

MR. O'NEAL ‑ I desire to state to the Convcntion that this question was considered by the Committee on Local Legislation and there was so much opposition to it in the Committee that we declined to make any report on the subject. We accepted this supplemental report out of deference to the superior judgment and wisdom of the Committee on Legislative Department, but that Committee did not alter our views as to the propriety of that provision. In the county of Lauderdale we have a special law on the subject of roads, which is working admirably, though some amendment to it is desirable. This provision would prevent any amendment to that law. I think the discussion has consumed sufficient time, and I now move the previous question on the subdivision and the pending amendment.

Upon a vote being taken the main question was ordered and upon a further vote being taken the amendment offered by the gentleman from Barbour was adopted.

Subdivision 30 was read:

Providing for the management or the support of any common or private school, incorporating the same, or granting such school any privileges.

MR. MERRILL ‑ I have an amendment.

The amendment was read as follows:

Amend Subdivision 30 by adding at the end thereof, "not now provided for by law."

MR. MERRILL ‑ There are in the State of Alabama several cities which enjoy under the present state of the law what ought to be termed special privileges. Among those cities is the one from which I come. I will be said by some that the adoption of this Section will not impair the right now held and enjoyed by those cities, while it will be held by others that this does and will


1900

OFFICIAL PROCEEDINGS

impair the right that I speak of. Therefore, the question wi11 be one of construction and for the purpose of putting it beyond that and making assurance doubly sure, I ask that this amendment be adopted. If it be true that the adoption of the Section without being amended will interfere with the rights and privileges that I speak of, then it cannot be gainsaid that those rights can ever be changed by an amendment or affected in any way by a statute. Suppose as in the city of Eufaula, where the school which is located there is supported by money arising from licenses, that the city increases and grows; suppose it is desired that the licenses should be increased far above where they now stand. If that was sought to be done with this section in here as it now stands, we would have to stop right there. I do not suppose it is the desire of the Convention to go so far in the framing of this Constitution, as to tear down or interfere with or cripple the institutions in the State that are now prospering. Among those institutions, as I say, is the school in the city from which I hail, a public school that is supported almost exclusively from the revenue obtained from the traffic in whiskey. The city has built a beautiful school house and it is filled to overflowing, and now they are building an addition to that school house, and it is filled, not alone with children that live in Eufaula, but those who come from the surrounding country, because its doors are open and the tuition is free. It has become an institution in our city that the people regard and consider with the same reverence and respect that they do their churches, and it will be a grievous error if anything were done in this Convention that would impede the progress of that and other schools in this State. This would certainly be a backward step in the cause of education, and therefore I ask the Convention to adopt this amendment. Do not let our anxiety go so far as to local legislation that we will impair or obstruct the progress of these institutions that have been living and prospering on the money derived from license taxes. Not only in the city of Eufaula, but there are other cities in like condition, and with this placed in the Constitution, those institutions will be stricken down. Leave the matter where it belongs, in the hands of the General Assembly. If they see in their wisdom that we are enjoying privileges that ought to be taken away from us let them do so, but do not let a body of men which met for the purpose of making an organic law, put into it any clause, or any paragraph that looks like a striking of local institutions.

MR. SMITH (Mobile) ‑ I am aware of the fact that this provision applies only to the passage of such acts, and I am aware that the passage or adoption of this particular section would not at this time affect the public schools of the city of Mobile. Nevertheless it seems to me that there is a danger in this provision to that system, and I am opposed to the section as originally drafted, on account of that danger. The system that we have in our city‑


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CONSTITUTIONAL CONVENTION, 1901

world county, is the result of a growth, under a system of law, as I understand it, which has obtained ever since 1854. From that time down to the present, there have been innumerable legislatures which have made attacks upon that system, and while it is true up to this time the representatives of our county have always been able to satisfy the General Assembly that it was to the interest of the State to permit that system to be maintained in its integrity, yet it is also true that except for the continued watchfulness of the representatives from our city, it might have been undermined in material particulars at ally given time, upon a misunderstanding of the system and its operation. It may be that in the future Mobile will fail to be represented by watchful representatives as she has been in the past, and on an occasion of that sort, when the matter is not properly laid before the General Assembly that act may be in some material respects altered or amended. If such was the case, and that alteration or amendment were made it would be impossible ever to redeem her position and get back to the status where she now is and has been since 1854. For that reason it seems to me that this is an extremely dangerous provision to the school system of the city of Mobile, and I oppose it on that ground, and also because of the danger that would threaten every other school system which enjoys a special privilege in the State of Alabama.  They will not be stricken down by this provision if it is incorporated into the Constitution, but it will stand as a menace over their heads from the day of its adoption, until the Constitution is altered in that respect. If they are ever stricken a blow in this matter, they will never be able to recuperate, and for my part I desire to see the Constitution in such a condition that if they are stricken a blow by the Legislature, there will be an opportunity for them to be restored to their present status.

In justification  to the Mobile school system I want to say that it was the first public school system that was inaugurated in the State of Alabama. It was inaugurated long before 1854, by contributions from the people, maintained by the people at a heavy expense, expensive buildings were erected, and its system has been fostered and protected, and it has been and is today a school system that this or ally other State in the American Union might well be proud of. Now, not only is it a public school system for the county of Mobile, but it is conducted so far as the High Schools are concerned, as a Normal School, and its influence is not confined to either the city or county of Mobile, but its doors are open to the child of any citizen in the State of Alabama, to receive without charge or expense of any kind the benefits of education. In recent years we have had a large number of scholars, coming from other counties. They are freely admitted, without charge, and educated, and sent throughout the State of Alabama as teachers in the public schools. I am reliably informed that today there are more teachers in the common schools of Alabama


1902

OFFICIAL PROCEEDINGS

who receive their education at the High Schools in the city of Mobile, than there are from all of the other Normal Schools in the State combined.

MR. COLEMAN ‑ Does not the argument that you have made, as well as the remarks of the gentleman from Barbour apply with equal force to institutions which might hereafter desire to be incorporated for educational purposes?  Why limit it then to schools which now exist? Would it not be safer to strike out the provisions entirely?

MR. SMITH (Mobile) ‑ What the gentleman from Greene says is true, but so far as I am concerned, it has always been a rule of my life not to fight any more men than I have to meet, as I believe such a principle is a bad one. I believe in maintaining the school. I do not believe in putting any restriction upon the right of the State of Alabama to improve her system of education, whether that system is in Mobile or elsewhere, but the gentleman from Barbour has introduced this resolution and it was sufficiently broad to protect the schools in his town and sufficiently broad to protect the schools in my county. I beg this Convention not to strike down or to hamper the efficiency of our schools in Mobile. I do not rise to defend the section in any part or parcel thereof, and to conclude I move to lay the amendment and the subdivision upon the table.

MR. OATES ‑ May I ask the delegate from Mobile to withdraw that for a few minutes?

MR. SMITH (Mobile) ‑ I will withdraw the motion.

MR. OATES ‑ I want to give the Convention the reasons why the committee recommended the provision, and then if the Convention sees proper to strike it out, all right, I will have done my duty. The gentlemen are aware who are opposing it actively, that it is not so framed that this sub ‑ division would have any retroactive effect, and as to the schools of which they speak, they would not be affected at all.

I am not unfamiliar with the system which Mobile has, and has had for so long, that it is almost like the common law. I remember in 1870, and '71, when I had the honor of being a member of the Lower House of the Legislature, that I co ‑ operated with the members from Mobile, Judges Semmes and Harry Toulmin, when an assault was made upon Mobile's city schools, and aided them in sustaining and retaining it as it was. There is no disposition to break it down, but this thing grows and the acts of the Legislature are passed in favor of this locality and the other, granting them peculiar privileges, in many instances, without going into the particulars to enumerate them, to the detriment of other matters and of the school fund.


1903

CONSTITUTIONAL CONVENTION, 1901

MR. FOSTER ‑ What was meant by the word "common" there as applied to schools. Does it mean the public schools of the State?

MR. OATES ‑ Yes, that is the meaning.

MR. FOSTER ‑ Don't you think that the Legislature, which supports those schools entirely, ought to have control of them?

MR. OATES ‑ They ought not to grant any special privilege to one over another, but they ought to treat them all alike. At least, that was the view of the committee. It was to secure greater uniformity in education touching the matter of legislation. Not to suppress it, not to injure any particular school, but as this thing seemed to be continually growing, giving particular localities favoritism and advantages not enjoyed by people generally, and it ought to be stopped as far as future legislation is concerned. I have no idea that any member of the committee intended anything of detriment whatever  to the existing schools, but only that that practice should be stopped and not indulged in by any other Legislatures. That was my view of it, and I think I state the view of the committee correctly.

MR. BOONE ‑ Governor, I will ask you if, under this Subdivision 30, as argued by my colleague, Mr. Smith, if the Legislature should repeal the Act of 1854 with reference to the schools of Mobile County, could  the General Assembly thereafter, with that provision in the Constitution, renew or re ‑ enact the present system?

MR. OATES ‑ I think they could not pass any original law, if it was once repealed, though the enactment of this provision, nor its absence, would prevent the General Assembly from repealing the law. It does not affect that question at all.

MR. MACDONALD ‑ I will ask the chairman of the committee whether it ,vas not the purpose of his committee to direct this sub ‑ division merely against private schools as contradistinguished from public schools. When it speaks of common schools or private schools, it speaks of schools organized and started by private individuals. Is it not to prevent the incorporation or granting of special privileges to such private schools as contradistinguished from the public schools of the State?

MR. OATES ‑ That was one consideration.

MR. MACDONALD ‑ That was my understanding when I voted for it.

MR. OATES ‑ I will say that my friend was on the committee and participated in the discussion and understands it.


1904

OFFICIAL PROCEEDINGS

MR. LONG (Walker) ‑ I would like to know why you do not put normal colleges and universities in as common schools?

MR. OATES ‑ I cannot give you any reason. I do not know why they are not in there. They are generally established under charters, like other schools that have been mentioned, and this provision was not intended to have any retroactive effect at all. I do not care to say anything more, but I desire to yield the floor to the gentleman from Mobile, who withdrew his motion at my request.

MR. WHITE ‑ I desire to ask the gentleman if this is adopted will it not give :Mobile and Eufaula an exclusive right along that line of special privileges that no ether town or city can ever get. Those that have special privileges now, will they not continue to possess the special privileges until the Legislature shall repeal the law, under this provision, and at the same time will it not prevent any other town or city from securing a similar privilege?

MR. OATES ‑ That was the leading object of the committee, to put a stop to it where it is.

MR. WHITE ‑ I would like for it to go on a little longer, until it strikes my end of the country.

MR. OATES ‑ The delegate from Mobile yielded to me, withdrawing his motion to table, and I now yield the floor to him.

MR. SMITH (Mobile) ‑ If the gentleman from Jefferson will renew the motion, I will withdraw it.

MR. WHITE ‑ I will do so. I am in favor of tabling the proposition and will gladly make the motion. but I am in favor of it for a different reason than those who have favored it heretofore. I am in favor of it because I do not think that the schools that have special privileges at the expense of the State ought to be left permanently to enjoy those privileges when other cities and towns can never have the opportunity of enjoying them. In other words, if Mobile is to enjoy the entire amount of liquor licenses collected in that city and apply them to her local school, and if Eufaula is allowed the same privilege, or any other town or city is allowed that privilege, just as soon as we can do it, I want to get Birmingham in that class. I do not see any reason why we should not be put in that class, and I would like to see the city of Montgomery enjoy the same privileges. I believe in schools as much as any delegate upon this floor, but I believe in schools being maintained upon terms of equality and right, and for my life I cannot see why the richest city in Alabama, the city of Mobile having more wealth per capita than any other city in the State of Alabama, should retain for its local schools the exclusive use of the liquor licenses derived in that city, when every other city


1905

CONSTITUTIONAL CONVENTION, 1901

in the State, with a few exceptions, pour it into the general fund. They say that it ought to be left to the Legislature. I say, Mr. President, that if the Legislatures had the opportunity since 1854, and have not acted up to this time, it is time that the Constitution makers should take charge of it.

MR. OATES ‑ I will say, that instead of going backward, that the Legislature has been progressing in that direction, and extending; these privileges to one place after another.

MR. WHITE ‑ Yes, and it is perfectly right, if they are to enjoy it, then the others ought to ire allowed the same privileges. 'That would equalize it possibly, to some extent.

MR. KYLE– I would like to ask the gentleman if it is true that a great wrong has been done the people of the State by these special privileges, why should not this Convention abrogate those special privileges and put the people upon a plane of equality?

MR. WHITE ‑ That is what I advocate, and I say that I am in favor of striking down this provision, because it will continue to give these cities these advantages and these special privileges, and would never allow any other city to go in that class.

MR. KYLE ‑ Is it not best to wipe out these privileges and start new and give everybody a fair chance.

MR. WHITE ‑ Exactly, and when we get there I am going to be there with you, but I am talking about the question which is before the Convention. I believe in the equality of things, and I do not believe there should be special privileges for any city or any town or any man or any set of men.

MR. O’NEAL ‑ If the Convention had not stricken out the        provision incorporated in the Article on Local Legislation, prohibiting any, town, or city, from being granted any special privilege or franchise, would we not have reached Mobile?

MR. WHITE ‑ Well, I doubt that because this Constitution will only act upon future legislation.

MR. O'NEAL ‑ We would have prevented it in the future.

MR. WHITE ‑ That is the trouble, but if Mobile is going to enjoy it. I want Montgomery and Birmingham and Anniston and every other city, in Alabama to enjoy it.

MR. O'NEAL ‑ I agree entirely in your view and will support any amendment that will reach that result.

MR. WHITE ‑ That is the reason that I am opposed to this section. If it passes and becomes a part of the organic law, then we are left in a position where we can never enjoy the privileges which they enjoy.


1906

OFFICIAL PROCEEDINGS

MR. O'NEAL ‑ Why do not you amend this section as to reach the end you seek?

MR. WHITE ‑ I think the best plan is to lay the section on the table, and then when we get to the other proposition, to lay that out as well.

MR. PRESIDENT ‑ Does the gentleman make that motion?

MR. WHITE ‑ Yes, sir; I agreed to do it and it affords me a very great pleasure to do so.

MR. KYLE ‑ Will the gentleman withdraw and let me introduce an amendment providing that all special privileges which are now enjoyed are hereby annulled?

MR. WHITE ‑ I think that will come up better at a later time. I do not think that this is a proper place for that.

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

Subdivision 31 was read as follows: Granting any land owned by or under control of the State to any person or corporation.

Mr. Watts offered an amendment which was read as follows: By adding the following: "Provided, rights of way over public lands may be granted."

MR. SAMFORD (Pike) ‑ I rise to ask the gentleman a question. Isn't that already the law. Haven't we got a general law that permits a right of way over public lands?

MR. WATTS ‑ Here is an inhibition against granting any land owned by or under control of the State for any purpose.

MR. SAMFORD ‑ But haven't we a general law providing a right of way over the lands of the State?

MR. WATTS ‑ Yes, sir ; and consequently this section would not contravene the other. If you put it in as it is it will be inconsistent.

MR. LONG (Walker) ‑ Would not that prevent the State from dealing in its coal lands? The State has solve valuable coal land and would it not prevent the State from leasing those lands ?

MR. OATES ‑ Not at all. The State does not own the coal lands, but hereby controls them as trustee.

MR. O'NEAL ‑ Would it not be better to use the word donate. You grant land by deed.

MR. OATES ‑ I have no objection to that word.


1907

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ Does the gentleman ask unanimous consent to strike out the word “granting”  and insert the word “donating ?"

MR. OATES ‑ Yes, sir.

There being no objection the amendment was allowed.

MR. WATTS ‑ I desire to withdraw my amendment with the consent of the Convention.

There being no objection the amendment was withdrawn.

MR. BURNS ‑ I offer an amendment as follows: Amend subdivision 31 by adding the following: Except the biennial grant of State land, to Emma Sansom Jackson. as now provided by law.

MR. BURNS ‑ I don’t suppose there will be any objection to that amendment and that it will be necessary to make any remarks. If there be any opposition to the amendment, I will take great pleasure in referring the Convention to the distinguished ex ‑ attorney general who is authority on the subject of heroism.

MR. OATES– The amendment has no operation.  The grant of land by the State to Emma Sansom, the maiden name of that lady, has never been complied with, because the State has not got the land.  They cannot find the land to give to her.  I am very sorry to say and this has no retroactive effect, and would not affect that at all, and therefore I move to lay the amendment on the table.

MR. BURNS ‑ Will the gentleman withdraw one moment. in order that the gentleman from Tuscaloosa may say a few words upon this subject?

MR. OATES ‑ I withdraw the motion, Mr. President.

MR. HEFLIN (Chambers) ‑ I understand that the motion is withdrawn‑

MR. BURNS ‑ I hope that the gentleman from Tuscaloosa will explain‑

TH E PRESIDENT ‑ Does the gentleman from Chambers desire to debate this question?

MR. HEFLIN (Chambers) ‑ The people of our State know nothing of the intense suffering of the majority of the delegates in this Convention. Their suffering from heat, and suffering from the continued flow of impassioned speech. We are chained here by the side of the dashing torrents of unrestrained and tearstained eloquence, Mr. President, and under its mighty power, the delegates of this Convention are physically weakening and withering day by day. We ask humbly that the judgment of the


1908

OFFICIAL PROCEEDINGS

people of the State be suspended, and that sympathy be allowed to shed a tear. Unless the people were here, Mr. President, and could see as we see, feel as we feel, and suffer as we suffer, they cannot know our hardships and our struggles. but they cannot be here, Mr. President.

The dew drop that laughs on the lily's cheek, can never know the story of the sea; the violet that blooms by the babbling brook, knows nothing of the ebb and flow; the "joree" that bounds among the brier blossoms knows nothing of the eagle's mountain dream. There are times when we would gladly, exchange places with the dew drop, swop places with the violet, exchange places with the "joree" in the brier patch, anti from the city's busy hum, and from the chain of debate break loose, and go where the cat can climb the catnip tree, and the gooseberry clings to the goose; where the partridge drums his drum, and the wood chucks his wood; where the dog devours the dogwood bloom, in blissful solitude.

There are times when delegates are seated immediately in front of a speaker, when there is no possible way of escape from his seat, and he must sit, look up and listen throughout the length of the fence corner debate. On yesterday I saw a sad, sad sight. A delegate fastened down immediately in front of an impassioned, earnest speaker, there was no way of escape, he had to sit and listen to the speech and at the conclusion of it he expired. Slowly and sadly the delegate fell, he squirmed, he wept, and he sighed, and his strength being gone he broke the spell, folded his arms and died. Mr. President, it ,was not shortness of breath that took my friend away, but it was the talking of a man entirely to death by a delegate that hot day.

I therefore, Mr. President, move to lay the amendment on the table.

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

MR. BURNS ‑ I desire to call the Chair's attention to the fact that I voted aye for the purpose of moving a reconsideration.

MR. OATES ‑ I now move the adoption of the subdivision as amended.

Upon a vote being taken a division was called for and by a vote of 73 ayes to 9 noes the Section was adopted.

The clock striking 1, the Convention thereupon adjourned until 3:30 this afternoon.


1909

CONSTITUTIONAL CONVENTION, 1901

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 96 delegates present upon the call of the roll.

Leaves of absence were granted as follows: Indefinite leave for Mr. Locklin, on account of sickness; Mr. Weatherly of Jefferson, for this afternoon; Mr. Sollie of Dale, for today; Mr. Taylor, for today.

MR. LOWE (Jefferson)– I ask unanimous consent to introduce an ordinance.

Leave was granted and the Clerk read the ordinance as follows:

Ordinance No. 417  by Mr. Lowe (Jefferson).

An ordinance to amend Section 13 of an ordinance entitled “An ordinance to create and define the Executive Department.”

Be it ordained by the people of Alabama in Convention assembled: That " Section 13 of an ordinance heretofore adopted by this Convention and entitled an ordinance to create and define the Executive Department, be amended so as to read as follows:

Sec. 12. Every bill which shall have passed both Houses of the General Assembly shall be presented to the Governor. If he approves, he shall sign it; but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large upon the journal and proceed to reconsider it: if, after such reconsideration, a majority of the whole number elected to that House shall agree to pass the bill it shall be sent, with the objections, to the other House, by which it shall likewise be reconsidered : if approved by a majority of the whole number elected to that House, it shall become a law; but in such case, the votes of both Houses shall be determined by yeas and nays; and the names of the members voting for or against the bill shall be entered on the journals of each House respectively.  Any bill which shall have been vetoed by the Governor may be amended and again presented to the Governor for his approval; in which event the provisions of this section shall in all respects apply thereto. If any bill shall not be returned by the Governor, Sundays excepted, within six days after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the General Assembly by their adjournment or recess, prevent its return, in which case it shall not be a law : but bills presented to the Governor within five days before the adjournment of the General Assembly may be approved by the Governor at any time within ten days after the final adjournment, if approved and deposited with the Secretary of State within that time. Every vote, order or resolution to which concur‑


1910

OFFICIAL PROCEEDINGS

rence of both houses may be necessary, except questions of adjournment, and the bringing on of elections by the two Houses, and amending this; Constitution shall be presented to~ the Governor; and, before the same shall take effect, be approved by him; or being disapproved, shall be re ‑ passed by both Houses according to the rules and limitations prescribed in the case of a bill.

Referred to the Committee on Executive Department.

MR. HEFLIN (Randolph) ‑ I desire to make a report from the Committee on Schedule, Printing and Incidental Expenses.

The Clerk read the report as follows:

MR. PRESIDENT ‑ The Committee on Schedule, Printing and Incidental Expenses have instructed me to make the following partial report, viz. :

The Committee has audited the account; hereto attached and find that the State of Alabama is indebted to the Brown Printing Company, of Montgomery, Ala., in the sum $176.90 for printing.

We find that said State is indebted to J. W. Terry of Montgomery, Ala., for the use of a typewriter from May 24 to June 24. in the sum of $5.

We find that said State is indebted to Ed. C. Fowler Coy., of Montgomery, Ala., in the sum of $8.60.

We find that said State is indebted to J. W. Terry of Montgomery, Ala., in the sum of $16 for services rendered Rules Committee up to May 27, 1901.

We find that said State is indebted to W. W. Haygood of Montgomery, Ala., in the sum of $1.25.

We find that said State is indebted to Miss Eunice Richards for typewriting done for Committee on Preamble and Declaration of Rights in the sum of $7.50.

We find that said State is indebted to Marshall & Bruce Co.. of Nashville, Tenn., in the sum of $48.25.

We find that said State is indebted to Ed C. Fowler Co., of Montgomery, Ala., in the sum of $4.75.

We find that said State is indebted to Jos. E.  Longstreet in the sum of $8 for services rendered to the Committee on Suffrage and Elections, in making fifty ‑ four copies of the Report of said Committee.

We find that said State is indebted to (Miss) Georgia Connelly in the sum of $6 for stenographic work done for Committee on Suffrage and Elections.


1911

CONSTITUTIONAL CONVENTION, 1901

All of the above amounts are for printing done, for articles furnished State of Alabama for use of Constitutional Convention, and for services rendered to Committee of said Convention, and all of the above amounts are itemized as shown by bills hereto attached.  Total amount ($282.25) two hundred and eighty-two and 25-100 dollars, and we recommend the payment of the same, all of which is respectfully submitted.        John T. Heflin

Chairman Committee on Schedule, Printing and Incidental Expenses.

MR. HEFLIN – I move that the report take the usual course, lie on the table and be printed.

The motion was adopted.

MR. PROCTOR ‑ The Committee on the Journal asks unanimous consent to mike a favorable report on Ordinance No. 409.

Leave was granted, and the Clerk read the report as follows:

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

To provide for the filing and arranging of the papers and documents pertaining to the Constitutional Convention; also to provide for 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 and 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 ($500.00) and upon the production by the said Secretary of the receipt of the Secretary of State for such papers, Journal and documents 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 Treasury 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 out of any money in the State Treasury not otherwise appropriated,


1912   

OFFICIAL PROCEEDINGS

the sum of five hundred dollars ($500.00) for the compensation of the said Secretary for the said services herein required of him.

THE PRESIDENT ‑ The ordinance will lie on the table and be printed.

THE PRESIDE NT ‑ The special order will be the consideration of the report of the Committee on Legislative Department to be considered in relation with section on Local Legislation. The Convention had already reached Subdivision 3': "Remitting, fines,  penalties or forfeitures."

There being no objection or amendment, Section 32 was adopted.

The clerk here read Subdivision 33.

33. Providing for the conduct of elections, or designating places of voting, or changing the boundaries of wards, precincts or districts, except on the organization of new counties.

MR. THOMPSON (Bibb)—I offer an amendment to strikeout the words "providing for the conduct of elections, etc." Under that, the Legislature could not pass a local law to provide for the vote of a county, as to whether they should issue bonds, of a municipality as to whether they should have a stock law, dispensary, prohibition or local option or anything along that line, and I do not see how it would be possible for the General Assembly to provide for those cases under a general law, and therefore I hope that the amendment will be adopted and those words stricken out.

MR. OATES ‑ I have great respect for the opinion of my young friend, the delegate from Bibb, but I cannot see the force of the amendment to strike out "Providing for the conduct of elections or" because then if the amendment be carried, striking out providing for the conduct of elections locally and exceptions to the general rule. This of course prohibits the passage of any local law providing for the conduct of elections to designate the place of those voting or changing the place of voting, except upon the organization of new counties. If there be good reasons for the amendment of my friend, I would not object to it, but I have not seen one of them yet in his statement, I don't know why it is he wants to knock out providing for elections of a local character, it is not intended to interfere with general provisions for elections at all.

MR. HARRISON ‑ I would like to know from the Chairman of the committee, the necessity for this provision. Under the general law it provides that they should be all elected.

MR. OATES ‑‑ Of course, and the Constitution in another part will provide ‑ the old one had it no doubt ‑ that laws governing elections shall be general. This has no field of operation ex‑


1913

CONSTITUTIONAL CONVENTION, 1901

cept to prevent local legislation, to regulate elections in the locality different from the general law, and it provides not only for the conduct of elections, but changing the boundaries of precincts. etc., except the organization of new counties ‑ that part is not objected to nor proposed to be amended. I am not able to see the reason for the amendment, therefore I don't think it ought to be adopted.

MR. SAMFORD (Pike) – I desire to say to this Convention that I see this thing like the gentleman from Bibb.  It occurs to me that if this subdivision prevails in its present form without the amendment, that the Legislature would be prohibited from pro- viding for any election for local matters.

MR. WALKER (Madison) – Would the gentleman permit me to make a suggestion? Would there be any difficulty at all in providing for holding local elections, etc.?

MR. SAMFORD ‑ Well, it is so much easier. Mr. President, whenever the Legislature is providing for the holding of an election, for them to provide for the holding of an election at that time, than it would be to pass a general law that would be applicable to every phase of local matters, I do not see any necessity for this section.

MR. O'NEAL ‑ Will the gentleman permit an interruption? If you wish to pass a special law, could you not incorporate into it a provision as to elections?

MR, SAMFORD ‑ I doubt whether you could under this clause.

MR. O'NEAL ‑ Certainly, if you pass a law about whiskey you would have the right to provide for an election in it.

MR. SAMFORD ‑ I may be in error about it, but it occurs to me you could not do it with a direct prohibition in the fundamental law of the State. Suppose a county wanted to issue bonds. You have provided that it shall not be done without an election. and yet you go on here and say if the Legislature fails to pass a general law covering all of these local elections that then there would be no way of fixing by law for a count, to vote for the issuance of bonds, or a town, municipality or anything else.

MR. OATES ‑ You are mistaken in that, because no report has been made yet that does not contain a clause that if these things are not provided for by general laws that the Legislature has full power to pass local laws.

MR. O'NEAL ‑ That provision for bonds requires a general law on the subject of elections, provides a law before bonds are issued, and after the election authorizes the issuance of bonds. The Legislature can pass a special law authorizing it.


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OFFICIAL PROCEEDINGS

MR. SAMFORD ‑ For that or for any other local matter, and it is at least susceptible of these constructions, and, therefore, I do not see any necessity for putting a clause in the Constitution that is susceptible of two constructions where injury might result from it. I did not desire to cut off debate, and, therefore, did not move to lay the matter on the table for that reason, if anybody wishes to discuss it.

THE PRESIDENT ‑ The question is on the amendment offered by the gentleman from Bibb. Is the Convention ready for the question?

The previous question was ordered, a division called for and, by a vote of 40 noes to 32 ayes, the amendment was defeated.

MR. OATES ‑ I move the adoption of the sub ‑ division.

MR. PARKER (Cullman) ‑ I desire to offer an amendment.

The clerk read the amendment as follows:

Amend Sub ‑ division 33 by adding to the same the word, “and changing the lines of old counties."

MR. PARKER ‑ That is offered for the reason that in the report of the Committee on State and County Boundaries we have a provision for a special election upon boundary lines of old counties, and this is so that there will not be a conflict.

MR. OATES ‑ I have no objection to the amendment, excepting that I see it is provided for in another place. I leave no objection to it at all, and I move the adoption of the Sub ‑ division as amended.

A vote was taken, and the sub ‑ division as amended was adopted by 53 ayes and 12 noes on a division.

MR. CARMICHAEL (Colbert) ‑ I make the point of order that no quorum voted.

THE PRESIDENT ‑ The chair will count a quorum if necessary ‑ there is more than a quorum in the House.

MR. O'NEAL ‑ I rise to a point of order.

THE PRESIDENT ‑ The gentleman will state his point of order.

MR. O'NEAL ‑ Is there any rule requiring a quorum to vote?

THE PRESIDENT ‑ The chair thinks not, providing a quorum be present.

MR. O'NEAL ‑ Does the chair count a quorum?


1915

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ The chair will count the members present and not voting.

MR. COBB— I wish to make a motion to reconsider the vote by which the amendment of the gentleman from Cullman was passed. Let it go over until tomorrow. On the whole section as amended.

THE PRESIDENT ‑ Would you prefer it to go over until tomorrow or to suspend the rules and consider it now?

MR. COBB ‑ Let it go over until tomorrow.

The clerk read sub ‑ division 34 as follows:

Thirty ‑ fourth ‑ Restoring the right to vote to persons convicted of infamous crimes or involving moral turpitude.

MR. WATTS ‑ I have an amendment.

The clerk read the amendment as follows: Amend Subdivision 34 by inserting "crimes" between "or" and "involving."

MR. OATES ‑ That is an omission in the printing and the amendment is entirely proper.

A vote being taken, Sub ‑ division 34, as amended, was adopted.

The clerk read Sub ‑ division 35 as follows:

Thirty ‑ fifth ‑ Refunding money legally paid into the State Treasury.

MR. PILLANS ‑ I should be glad to hear from the gentleman who reported this. It strikes me that that is rather a dangerous section. For example, the Legislature that sat ‑ not the last one, but the one prior to that ‑ there was attempted to be passed a license law. It was not lawfully passed, but it went into the printed statute books and the money was collected wrongfully and paid by the Probate Judges into the State Treasury. The State of Alabama could not have restored to the citizens the money which have been wrongfully extracted from them had this clause been in operation at that time.

MR. WATTS ‑ Could not the Legislature have passed a general law that wherever taxes had been paid in the manner described that they could be returned by the different Probate Judges?

MR. PILLANS ‑ It may be that this is confined to local laws. I just asked for information.

MR. FITTS ‑ I think this section is too far ‑ reaching. There are times, it seems to me, when special bills could be enacted to pay money out of the treasury when money has gotten into the


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OFFICIAL PROCEEDINGS

treasury technically in an illegal way, and there is one pending now which ought to be expected in this stanza or paragraph. It is a well ‑ known fact that there is now in the Treasury of the State the sum of $56,000 which was paid in there by the Sloss ‑ Sheffield Company in purchase of certain University lands, and that the controversy between that company and the University has been settled, and that a part of the settlement is that that  money shall be by special act of the legislature paid back to the Sloss-Sheffield Company. The very fact that we are now face to face with one state of facts which will require a payment out of the State treasury by a special act, shows us that circumstances may arise of a similar nature in the future. Occasion may arise when money will be paid into the State treasury which ought to, and will leave to be in all fairness and justice paid back, and such being the case. I do not think this Section, sweeping as it is, should be put into the fundamental law. I would like to hear from Mr. Davis, a Trustee of the University, if any provision has been made to get that money out of the treasury except by special act?

MR. DAVIS ‑ I think not.

MR. FITTS ‑ And will it not require a special act of the legislature to get it out?

MR. DAVIS ‑ It has already been passed.

MR. PETTUS ‑ I will state to the gentleman that the act was passed by the last legislature.

MR. FITTS ‑ My information was that the case had been settled, but if it has been passed the mere fact that we were so recently face to face with a situation of that kind shows that there may be circumstances come about in which such things are important and necessary.

MR. OATES ‑ I think the delegates are very much under misapprehension about this provision if they will only think about it for a moment. "Refunding money legally paid into the State treasury." Now, in the case stated by the delegate from Tuscaloosa ‑ I do not know because I have never investigated it ‑ but my information was that that money was paid in there before the transaction was entirely consummated, and that it never was paid to the credit of the State in the ordinary way, but laid there for the completion of the transaction. But without regard to that, if gentlemen will think for a moment, taxes or any money legally paid into the treasury shall not be taken out. Why, sir, if money be collected under a lawful tax law and paid into the Treasury, it don't leave a semblance of a doubt that there is no obligation on the part of the State to pay back that money at all, and ought not to be, and in the case supposed by my learned friend, or stated by him, of money wrongfully collected by probate judges from


1917

CONSTITUTIONAL CONVENTION, 1901

people who paid it over to the probate judges acted in good faith no doubt in paying the money into the treasury, it was money illegally collected, and there is nothing in this provision to prevent the legislature from passing laws to refund or pay back money that is illegally collected. It is only when it is legally collected and paid into the State treasury that it shall not be refunded.

MR. COLEMAN (Greene) – Money collected under the law – isn’t it legally collected at the time until the law is declared unconstitutional– how is that?

MR. OATES – No, it is collected under a law, but that law ultimately fails, and that reaches back and shows it was illegally collected.  The gentleman cannot deny that proposition?

MR. COLEMAN ‑ The proposition is when that comes up in the probate court, they make the assessment, judgment is rendered, taxes are paid under the law as it is at the time, and there is a valid decision by the court.

MR. OATES ‑ Yes, very often decisions of that kind made which fail on appeal to the court of last resort, are held to be no law ‑ that is an illegal collection.

MR. COLEMAN ‑ I don't know about that.

MR. OATES ‑ While it was legal at the time and the officers were not trespassers, still it was not legally collected, if the law be subsequently declared to be no law, and this will not prevent the legislature in any case where money is illegally paid into the treasury, and that reaches back to where it was illegally collected. If such be the case, the legislature with this in force is perfectly capable of passing a law to refund it, but if legally collected ‑ suppose in the case just now stated by the delegate from Greene that the law is upheld ‑ is there any reason then, why it should be paid back?

MR. COLEMAN ‑ Permit me to ask a question again.

MR. OATES ‑ Certainly.

MR. COLEMAN ‑ To make the question plain: The circuit court has jurisdiction of the law, it declares the law to be constitutional and money is collected under that law. If there is no appeal, it is legally collected because it is under a judgment of a court that had jurisdiction. If it stops there, it is legally paid. If that law is declared unconstitutional subsequently, what are you going to do?

MR. OATES ‑ It does not change the proposition I asserted at all. Although it is so far legally enforced that the officers are not trespassers, would not be guilty of damage of responsibility in damages for a trespass, yet when the law is subsequently de‑


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clared to be unconstitutional, it is no law, and never was any law, and it naturally goes back that this money was illegally collected by the man coerced by a judgment which would not have stood before the court. The Legislature in such case, even where this is adopted, is perfectly competent to refund that money.

THE PRESIDENT ‑ The gentleman from Montgomery has consumed his time.

MR. OATES ‑ I was going to yield to the gentleman from Mobile.

MR. PILLANS ‑ I wish to ask a question of the gentleman.

THE PRESIDENT ‑ Proceed and ask the question.

MR. PILLANS ‑ Is there not a plain distinction between money illegally collected and money lawfully paid over. That was the distinction that I sought to draw. Where money was lawfully paid over to the Probate Judge it might be an illegal collection, but when paid to the, officers of the Treasury, was it not a legal payment?

MR. OATES ‑ I will answer that by saying I don't think any court on the facts would so hold.

MR. HARRISON ‑ I think the question of the delegate from Mobile very pertinent, and I think the argument of the gentleman from Montgomery who argued that if money was legally collected you would have to make a decided difference from the subdivision as drawn when he uses the words legally paid into the State Treasury. But my objection goes further than any technicality, even if it were amended. I don't believe that this subdivision should be engrafted into the Constitution.

I am heartily in favor of all reasonable curtailments of local legislation, but there is an article in our present Constitution, and one already adopted by this Convention forbidding the State of Alabama from ever being made a defendant in any suit. Cases frequently occur in the Legislature where a Chancery Court upon hearing would refund money although legally paid. I remember a case last session where representations were made by the officers of the State as to the sale of mineral lands, and these statements were false. The papers had all passed. The facts were presented to the Legislature, and there was no Chancery Court but would have refunded the money, and the Legislature of Alabama is the only representative of the State to pass on these cases. They say in one Section of the Constitution that Alabama shall not be sued.

MR. OATES ‑ Would not that be a legal collection?


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MR. HARRISON ‑‑‑ Certainly it would be legally collected. As well said by the gentleman from Greene in his inquiry, and also by the gentleman from Mobile, as long as a court of competent jurisdiction hold the tax claim valid, that it was legally collected, certainly when paid over to the Probate Judge or other officer, it was legally paid into the Treasury, and under the language of the subdivision itself, it could never be taken out by any local law, and consequently we do not wish to place in the Constitution an inhibition that will require the Legislature to pass on claims. How can they classify all claims illegally paid into the Treasury and pass a general law to cover such cases? I think it would be wrong and a hardship, and this Convention ought not to say to its citizens or anybody else dealing with the State of Alabama, independent of the legality of it, that if they have any equitable claim on the State of Alabama, holding as we do an inhibition in the Constitution that the State shall not be made defendant in any suit, we should at least have some tribunal to pass upon the equity of claims made for money paid into the Treasury.

MR. COLEMAN ‑ I take issue with the delegate from Montgomery in his exposition of the law. There is no doubt in the world it is a principle of the law that if a question arises between two parties, and it is tried before a court of competent jurisdiction and judgment rendered, that that is final unless it is appealed as between those parties, and if subsequently the same question arises between different parties and the question is appealed to the Supreme Court between the latter parties and the Supreme Court holds that the law is unconstitutional, the first litigant in the first instance has no recourse ‑ he has adjudicated.

MR. OATES ‑ May I interrupt you just there. I never said that he had any, but in the form of law wasn't it illegally collected?

MR. COLEMAN ‑ No, sir; legally done and so pronounced by a legal court. I go further. There are cases, an abundance of them, where rights have been adjudicated and so held by the Supreme Court of the United States, and the question would come up subsequently between other parties and a new phase of the case be presented to the Supreme Court, and the Supreme Court would reverse its decision and declare the law unconstitutional that had been declared constitutional. It was legally paid. Any money is legally paid that is paid under a court of competent jurisdiction unreversed, so it is dangerous to put this proposition here.

MR. VAUGHAN (Dallas) ‑ I move to lay Section 25 on the table.

Motion to table was carried.


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OFFICIAL PROCEEDINGS

MR. BLACKWELL ‑ I desire to offer an additional subdivision. Amend Section 1 of the report of the committee after line 14, Subdivision 35, "declaring who shall be liners between counties."

MR. OATES ‑ We have not reached that subdivision.

MR. FITTS ‑ I raise the point of order that the proposition he suggests is an independent subdivision and can only come up when these subdivisions have been considered.

MR. OATES ‑ We are to go back to Subdivision 26, as I understand.

MR. BLACKWELL ‑ This is an additional subdivision to this section.

THE PRESIDENT ‑ It seems to the Chair that it would be in order at this time.

The clerk read the amendment as follows: Amend Section 1 of report of Committee on Legislation after line 14, Subdivision 35, declaring who shall be liners between counties.

THE PRESIDENT ‑ That should be addressed to the report of the Committee on Local Legislation, that is the report under consideration.

MR. WILLIAMS (Marengo) ‑ There is a subdivision 36, subdivision 26 was subdivided into 26 and 36.

THE PRESIDENT ‑ No, it was withdrawn temporarily by the committee and not numbered at all. Subdivision 35 was stricken out.

MR. WATTS ‑ The Committee on "Harmonics" will straighten them out, all right.

THE PRESIDENT ‑ The question is on the adoption of the amendment to be added as Subdivision 36.

MR. JONES (Montgomery) ‑ I would like to inquire from my friend from Morgan how you are going by a general law to provide for liners?

MR. BLACKWELL ‑ This is a prohibition to stop local legislation if it cannot be done by a general law the Court of County Commissioners is a better place to have this done than the Legislature.

MR. HARRISON ‑ I call for the reading of the amendment.

The amendment was read again.

THE PRESIDENT ‑ The question is on the adoption of the amendment.


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CONSTITUTIONAL CONVENTION, 1901

A vote being taken, the amendment was adopted.

MR. DAVIS (Etowah) ‑ I desire to offer an amendment.

The Clerk  read the amendment as follows: Amend Section 1 by adding after Subdivision 36 "37. Regulating the catching or hunting of game."

MR. DAVIS ‑ I wish to say that I am in thorough accord and harmony with the effort to restrict local legislation. I have noticed  numerous statutes about game; every county in the State seems to have a different law about it. There is no reason why there cannot be framed a general law to make all the counties in the State alike. This general law may be applied to counties, thereby putting a check on local legislation.

MR. O'NEAL ‑ I call for a reading of the amendment.

The amendment  was again read.

MR. O'NEAL ‑ I desire to say that the Committee on Local Legislation considered that section very carefully and rejected it for this reason, that we recognized that it is different in different counties. Some counties have no game, and some have a great deal of game, and that to secure a general law  would be a matter of great difficulty. We thought it proper in counties  where they desired to protect game to allow  them to have local laws. There are some communities in a county desiring  game laws while probably the balance of the county are indifferent on the subject, we thought it proper if there was a community that desired to protect the game to allow  them to do it, other counties having  no game would oppose any law of that sort.

MR. COLEMAN ‑ The remarks of the chairman of the committee are very pertinent. In many of the counties there are communities, certain localities, where game abound, and it is preserved there. People who reside in the county or outside the county  would destroy the game there if permitted to interfere. You cannot get a general law that  would protect beats and parts of beats and certain boundaries  where the game is preserved, and I think it would be unwise to interfere, particularly  where people have incurred great expense in securing and providing for the maintenance and protection of game, I think the committee did wisely in leaving it out, thought I did not know that they had it under consideration.

MR. HARRISON ‑ Does not the tune for killing game vary in the different parts of the State?

MR. COLEMAN ‑ Of  necessity. You would be authorized to hunt certain game in certain days and months ‑ quail at one time, wild turkey at another time, and deer at another time, and in different localities of the State they come earlier and later. It


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OFFICIAL PROCEEDINGS

seems to me to be almost impossible to have a general law  which would apply to communities. If you have a State law, you will have to go to the expense probably of having a game ordinance. We have not reached that stage yet. I would be glad if the amendment were not adopted.

MR. ESPY ‑ To my mind, the amendment is one of  the best provisions contained in this section of the article. It is not sought here to prevent legislation for the protection or for the catching of game. that is not it at all. The proposition involved in the gentleman's  amendment simply says that it shall not be done by a local law. If this Convention votes down that amendment, it will put itself in a remarkable position. It has already gone on and said that they  would not pass any local laws establishing school districts in which children could go to school.

MR. COLEMAN ‑ Have you any game laws, in your county and community.

MR. ESPY ‑ No, sir.

MR. COLEMAN ‑ You know  nothing  about it, then.

MR. ESPY ‑ I know something about game laws, perhaps I know too much about it is the reason I insist  upon this amendment going in.

MR. O’NEAL-We  examined very carefully the provisions of every Constitution in the United States on that subject, and we did not find that provision in a single Constitution, because all the States recognized the fact that that was a matter for special legislation.

MR. ESPY- I hope the gentleman did not go through books and hunt for what other States have done, and failing to find it there, not put it into this Constitution. We certainly ought to have some originality ourselves, and we certainly ought to be able to find something or know  something except  what you get by the example of others. As I was going on to say, this Convention has decided that no district in which children go to school shall be established by any special law. They have said that no special law shall be enacted prohibiting or permitting  stock to run at large. Now, then, if they vote down this resolution, they will say that the birds and game of this country are of more importance and entitled to more protection under the laws of this State than the children and the stock. That is the inevitable position to which these gentlemen have been driven.

MR. DAVIS ‑ I want to suggest that the title of one the acts of the last Legislature was "to regulate the hunting of the opossum in Pickens County."


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CONSTITUTIONAL CONVENTION, 1901

MR. ESPY ‑ Mr. President, if this Convention were to get the game that was passed by the last Legislature, I think that, that would in itself be a complete answer. I think that game law is known as the Wallace Law, from Madison. I dare say that that law itself has cost the State of Alabama $200 or $300, that one law, and it has never been worth 5 cents to anybody and it never will be. Now, if people want to have game laws, provide by general laws by which the Commissioners' Court or the Board of Revenue of the various counties can enact bird laws, live stock laws, and establish school laws and things of that kind.

MR. BAREFIELD ‑ I would like to ask if it is not a fact that this thing of opossum hunting in the fall is not one of the greatest curses that the farmer has? That it results in burning up his fances, and everything else?

MR. ESPY-No that is taking too narrow a view of the matter. I am sorry for a man whose soul gets so small that he objects to a nigger catching an opossum on his plantation. That is entirely too narrow a view to take of the matter. That is all I desire to say.

MR. CUNNINGHAM- I am heartily in favor of this amendment, and in support of my position ,will give a little personal experience. When I returned home to my county in 1897, among the many sins which I had to answer for was a game law for Jefferson County. I denied that there was any such statute passed by the General Assembly, as I thought I was aware of all measures of that kind. A gentleman said it was in the acts. I said it is some local law providing for the protection of game in some other county, and that somebody had amended it in the House by adding Jefferson. He said no it was an original bill introduced for Jefferson. Looking into the facts I found that such was the case, that there was a hill to protect the game in Jefferson County, one provision of which was to prevent a boy from catching partridges on his father's own land in a trap. Seeing that I was in a trap myself I concluded to see how I  had  voted on the subject, and by reference to the Senate Journal, I found that I voted for the bill that passed just before this particular measure, and the one just afterwards. Some kind Senator, while I was in the smoking room for a few moments, probably called up House bill so and so, and I had no idea that it had become a law, over the Senator from Jefferson when he was riot present. I am in favor of this provision in the Constitution, because I believe that it would then be impossible for such a terrible accident as that to befall a Senator from Jefferson County.

MR. deGRAFFENREID ‑ I move to lay the amendment on the table.

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


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OFFICIAL PROCEEDINGS

MR. PETTUS- I  rise to a point of inquiry.  Where is the latter part of Subdivision 26,and when will it come up?

THE PRESIDENT- It is in suspension.

MR. O’NEAL- I move now that we take up the latter part of Section 1, which has not been disposed of.

THE PRESIDENT-Amend Section 1 by adding that part  after the words “no special,”etc.?

MR. O’NEAL-Yes sir.

MR. PETTUS- I desire to offer an amendment.

MR. O’NEAL-As I understood the motion this morning, it was to suspend the consideration of that matter temporarily.  It  was withdrawn by unanimous consent and I now ask unanimous consent to offer it for the consideration of the Convention.

There being no objection, it was read as follows:

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

MR. PETTUS-I offer an amendment.

The amendment was read as follows: “Amend Article on local legislation by striking out from the proposed ordnance the words “and the courts and not the General Assembly shall judge as to whether matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court, “ in line 33,34,35,36, and 37 of subdivision 26.”

MR. OATES- I desire to offer an amendment to his amendment. To strike it out, but my amendment shows what I proposed to insert, if this stricken out.

The amendment was read as follows: By striking out all that portion of said subdivision after the word” State” in line 35, down to and including the word “court” in line 37, and inserting in lieu thereof the following: “There shall be appointed in each House of the legislature a standing Committee on Local and Private Legislation, the House Committee to consist of nine Representa


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CONSTITUTIONAL CONVENTION, 1901

tives and the Senate Committee of five Senators. No local or private hill shall be passed lay either House, until it shall have been referred to such Committee thereof, and shall have been reported back with the recommendation in writing that it be passed, stating the reasons therefor and why the ends to be accomplished cannot be reached by a general law, or by a proceeding in court, or if the recommendation of the Committee be that the bill do not pass, then it shall not pass the House to which it is so reported, unless it be voted for lay a majority of all the members elected thereto.

MR. PETTUS ‑ I am inclined to think that I shall oppose the amendment proposed by the gentleman from Montgomery. and favor the amendment as I offered  it originally, but I do not know that I care to discuss his amendment at this time and I yield the floor to him, as the question will be on the adoption of his amendment.

MR. O'NEAL ‑ I think the adoption of the amendment offered by the gentleman from Limestone, would destroy the chief purpose of this article in preventing local legislation. I desire to call the attention of the Convention to the fact that in the Constitution of 1875, the following provision is to be found.

23. No special or local law shall be enacted for the benefit of individuals or corporations in cases which are or can be provided for by a general law, or where the relief sought can be given by any court of this State; nor shall the operation of any general law be suspended by the General Assembly for the benefit of any individual, corporation or association.

Now, the effect of the amendment of the gentleman from Limestone is simply to reincorporate that section of the old Constitution into the article reported by the Committee on Local Legislation.

Now, what is the objection to that old section in the old Constitution? It is simply because the courts of Alabama decide that whether a case can be provided for by a general law or not is a question of legislative discretion. Now if you leave it as the amendment of the gentleman from Limestone would make it, you say to the General Assembly that it is a matter entirely within their discretion as to whether they can provide for a local condition by a general law, and of course they would always, as they have done in the past, pass local laws, and there would be no remedy. It was to overcome that decision of the court that we introduced the provision that the courts and not the General Assebly should determine whether the local condition could be provided for by a general law.

MR. JONES (Montgomery) ‑ Would it not be considered that the Constitution had adopted that section in the light of the rul‑


1926               

OFFICIAL PROCEEDINGS

ing of the Supreme Court, that that was, a matter entirely for the legislature?

MR. O’NEAL-Why, of course, as my distinguished friend from Montgomery suggests, if you adopt this provision, it would be a recognition that this Convention adopted the decision of the Supreme Court in respect to that section, which says to the legislature of Alabama that although the Constitution provides that you shall not pass local laws on a subject it is a matter within your discretion, and if we leave it to their discretion it breaks down every barrier which we have enacted against the evils of local legislation. Therefore, I move to lay both of the amendments on the table . MR. PETTUS- I ask the gentleman from Lauderdale to yield the floor to me.

MR. O’NEAL-Certainly, if anyone desires to discuss it.

MR. O’NEAL- I desire to say a word before I  yield, however. The amendment offered by the gentleman from Montgomery might not be objectionable if it was put in a separate place, or as a separate section, but if it is incorporated as apart of this section, it will destroy the meaning. If the gentleman will offer that as a separate section, I have no doubt that no objection will be make, for it provides safeguards against local legislation, to provide that the legislature shall have special committees, clothed with quasi judicial power to decide these matters as to what are proper subjects for local legislation.

MR. HARRISON-Is not the present Article which has just been adopted different from our present Constitution? and isn’t it a positive inhibition upon the passage of local laws prescribed in thirty odd sections which are not contained in the other?

MR. O’NEAL- Certainly.

MR. HARRISON- Then there is no great necessity for such a provision as this?

MR. O’NEAL-Yes, there is , I will say in response to the gentleman there might be a local matter which we have not provided for, and while we say to the legislature that you must provide for all local matters bu general laws if it is possible, we do not propose to say it is a matter left to your discretion, but it is a matter for the courts to determine whether or not you could have carried out that injunction of the Constitution.  That same provision as to general laws is found in the Constitution of Mississippi.

MR. HARRISON-I see here thirty odd provisions in which they are positively prohibited from legislating by local laws.  Will they be dependent upon the provision you are now discussing?


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CONSTITUTIONAL CONVENTION, 1901

MR. O’NEAL-Not at all, but this is simply to provide for local laws. The legislature might otherwise say that they did not provide for it by a general law,, because it was a matter within their discretion as to whether it could be provided for by a general law and in the exercise of that discretion we decided that we could not do it and there is no appeal from that legislation discretion, according to the decisions of our court. In reference to that a decision has been handed me in reference to sustaining a special law in the case of ex parte State of Alabama in re Knox, the Supreme Court in considering this same provision of the old Constitution said:

"It is the suspension, the temporary stopping of existing laws for the benefit of individuals or corporations the Constitution forbids, not the power of the General Assembly, when enacting general laws, to determine whether there may or may not be persons or subjects, which ought to be excepted from their operation.”

Now, you find that we provide that the general laws shall not be suspended for the benefit of an individual and  the latter part of this provision is "nor shall the General Assembly indirectly enact any special, private or local law, by the partial repeal of a general law." The purpose of that was to prevent a general law from being introduced into the Legislature and then county after county being excepted from its operation, thereby creating a local law. I yield to the gentleman from Limestone with the understanding when the gentleman from Montgomery himself conclude their argument he will renew my motion to lay on the table, or yield to me for that purpose.

MR. PETTUS ‑ I will have no objection to his renewing the motion.

It seems to me that the committee in its zeal to stop local legislation has taken a step which will prove rather dangerous. We have in the declaration and Bill of Rights which we adopted the other day a section which declares that the judicial shall never exercise the legislative and executive powers, or either of them, to the end that it may be a government of laws and not of men. It seems to me that if we adopt this section as reported by the committee and authorize the courts to pass on the questions of whether or not a law could have been provided for by a general law, or whether or not the courts would have afforded the relief in that particular instance, that we clothe the courts with legislative powers and authorize them to repeal an act which has been passed with all of the forms of law by the General Assembly, a long time after that act has become a law.


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MR. O'NEAL ‑ Do not the courts exercise a quasi legislative power in declaring laws to be unconstitutional?  Do they not in effect repeal them when they declare such laws to be unconstitutional?

MR. PETTUS– I do not understand that they do, and even if that be true no Constitution before has set traps for the General Assembly to fall into for the purpose of giving courts the pleasure of repealing acts.  Now it seems to me if an act was passed by the General Assembly in good faith, then though the court in its greater wisdom might have found a method to provide for the relief sought, or decided that it could be done by a general law, under the act as passed, transactions may take place and rights and interest accrue and it might go on for years and years and at the end of seven or ten years if the question was brought before the courts and the court upon a state of facts different from those that confronted the General Assembly at the time they passed the act, either because it is spent more time in the investigation of the facts of the case, or else because some of the facts were not before the court that were before the General Assembly, the court should declare that the case could have been reached by general law, and therefore the act is void and unconstitutional. It would be a void ab initio and it seems to me that the rights that probably have accrued under the act would be invalidated and it would develop dangers to the material welfare and interest of the State.

MR. BANKS ‑ This section here does not say that the courts are to decide whether a general law may provide for the matter in question, but whether a general law has already provided for it.

MR. PETTUS– I understand it provides as to whether a general law has already been provided, and as to whether relief could be given by any court, but I submit that does not remedy the objection to the section is reported by the committee.  Now, the committee has specified some 36 kinds of local legislation by name, the subjects which most frequently arise to encumber our statute books, and has absolutely cut them off and prohibited them, and I submit that is far enough to go, and we ought to clothe the courts with the power to pass upon the acts of the Legislature in this manner.

MR. COLEMAN ‑ If the Legislature can determine whether or not any act is a local act or a general law, what is to prevent it from legislating directly upon the exceptions here, and to say that all would be valid?

MR. PETTUS – I take it that the oath of any member of the General Assembly would be sufficient to keep him from a direct anti flagrant violation of the Constitution, when it is specifically and directly prohibited by name. I think that the decision of the


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CONSTITUTIONAL CONVENTION, 1901

court that the Legislature is the judge in the first instance of whether or not this can be done is eminently correct. If the law is passed under this section as reported by the committee, it will stand as a law until it is carried before a court, and it is decided that some court could have given the relief, or that there was some general law upon the subject, and I submit it is a dangerous section, and should be stricken out.

MR. OATES ‑ Two questions are presented  by the proposition reported by the Committee on Local Legislation and the amendments. The proposition reported provides for the courts to judge and pass upon questions, by the use of the following language: "and that the courts and not the General Assembly shall be the judges of whether the subject of ane local law is provided for by any general law and  whether the relief sought can be granted by any court," will, in the opinion f the committee, very materially and in preventing local legislation.

Now there is no provision that the courts or that the Judge of any court should pass upon that and give his opinion before the Legislature acts. Then necessarily as it stands, when the Legislature acts and passes a law and it comes under the review of the court ‑ before the court, the court would have to pass upon that question or those questions. Now a certain law may have stood for ten years and rights may have been acquired under it; and transactions had involving questions of great importance, and at last it is brought before the court, which holds that the law should not have been passed because it could or was provided for by a general law. That is the great objection to it. Now sir, the amendment which I sent up there is substantially, with a few verbal changes only, the provisions in the Mississippi Constitution. In their new Constitution they preceded this provision by several inhibitions upon the Legislature passing local laws; and it seems to me it is a wise provision. It is substantially this: That there shall be a committee in each house, nine in the House of Representatives and five in the Senate, to which any bill which is introduced to be enacted into a local law shall be referred, and that committee shall pass upon it. They examine the statutes in existence and see whether any general law has been enacted, under which the relief sought by that bill can be obtained. If so, then it is the duty of the committee to report adversely in writing, stating the reasons why they won't recommend it. In other words, the committee is to examine into it and report whether it be practical or proper to pass such a law. If the committee in either house reports adversely, then it requires a majority of all of the members elected to that house to pass the measure over the report. If they report adversely, it requires an affirmative vote of the majority of all the members elected to the house to pass the bill. If they report favorably, it would be accepted, no doubt, and the bill would be passed.


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MR. WALKER ‑ Is it not the duty of the Legislature not to pass any local or special law, unless they find that subject can not be disposed of by a general law?

MR. OATES ‑ Such a provision is now in the Constitution.

MR. WALKER ‑ Isn't it a fact that that provision in the Constitution has been completely and notoriously ignored by the Legislature?

MR. OATES ‑ It has. It is a method which has very largely prevailed. But if the committee is directed by the Constitution, as that amendment attempts to do, to direct them, they certainly would not evade that duty or disregard it, as has been insinuated is the probable fact in regard to the present Constitution. Now certainly I have no objection to the change in the phraseology of the provision which I think will be read a little further on in the report of the Committee on Local Legislation, in substance that if notice be given by publication in the newspaper of the intent to prosecute the passage of a local measure, and it is passed, if the record affirmatively shows that such notice was given. I would like to have the attention of the chairman of the Committee on Local Legislation on that proposition. You have said substantially, but not in the exact language, that wherever a bill is passed, notice of the intention of the parties must be given and that the record shall affirmatively show it has been done. Then, of course, it will become a question for the courts if that be overridden, because if it was disregarded, the law would be unconstitutional. I would favor a provision of that kind to have a committee in each house to pass upon these local bills, and make their reports in writing, which would be a safe ‑ guard upon it. It dots nobody an injustice, and I think it is an entirely proper proposition to make ; and whether it be entirely proper in this place by striking out the language which they have reported, or not, if in the opinion it is not, then I think it ought to be put in as an independent clause. I certainly think that a provision for a committee in each house, as provided by the amendment which I have presented, ought to find its place in the Constitution in connection with this local legislation.

MR. O'NEAL ‑ What is the necessity of putting a provision in the Constitution to create a Committee on Local Legislation? Would not the Legislature have the power to do that without any Constitutional enactment on the subject?

MR. OATES ‑ They certainly would in the loose way in which such things are usually done, but if they could not ignore the duties pointed out by that instrument, especially under their oath at office.

Mr. Fitts of Tuscaloosa here took the chair.


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MR. JONES (Montgomery) ‑ This is one of the most important questions that has arisen in the debate on this section, for upon the action of this Convention on this matter may depend whether any of these requirements will be of any practical force. The gentleman from Greene made a very pertinent suggestion, and I want briefly to call the attention of the Convention to it. Now it is known to all lawyers in this body, and I think to a good many other delegates, that when a convention acts upon, or change, a section of the existing Constitution, which has been considered by the Supreme Court, that they do it with reference to the decision of that court. Now we have had a decision of the Supreme Court on a section almost identical with this, and which would be identical if the amendment offered by the gentleman from Limestone is adopted. That is the question before the house, then. If you leave it in there you know that it is nothing more than waste paper, bccause the Supreme Court has decided that no matter what you say in the Constitution, it is within the province of the Legislature if they so choose, to disregard it.

MR. OATES ‑ Will you‑

MR. JONES (Montgomery) ‑ I am not after your amendment.

MR. OATES ‑ I know, but I want to ask my colleague if he is not stating that proposition too broadly?

MR. JONES ‑ I think not.

MR. OATES ‑ Did not the Supreme Court decide in the case before it in regard to that local law. that they would presume that all was done that was necessary to be done?

MR. JONES ‑ No, sir; they decided that the Legislature was the exclusive judge, and that the courts could not revise its action. At least that is my recollection of the decision. I have no doubt about it, and I think if my friend will read the decision, he will find that the Supreme Court said that when the Legislature acted, the matter was conclusive upon the court.

MR. FERGUSON– The decision of the Supreme Court was to this effect, where the journal did not show to the contrary everything in favor of the regularity of a local law would be presumed.

MR. JONES– Of course, but I am talking about a different thing. The presumption of the advertisement, if the journal did not show to the contrary, etc., but this is where the Legislature passes a special law, and the question comes up whether it could have been provided for by a general law, and the Supreme Court said that the fact that the Legislature decided a special law was necessary was binding on the court, and the court could not revise it. I do not think there is any question about that.  The only way the gentleman could convince me on that is to send and get this


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decision, and one or two others, and show me that it did not announce that proposition. That has been  the accepted action of the Supreme Court of Alabama for the past twenty-five years.

MR. MACDONAL D ‑ I wish to ask the gentleman whether it is his view that although we have adopted these various subdivisions prohibiting the Legislature from dealing with matters concerned in them, that if the amendment suggested by  the gentleman from Limestone is adopted, that it will still leave all these matters subject to legislative discretion?

MR. JONES – My personal opinion is that it would not, but I said it would be in peril if we should turn the Supreme Court loose with this doctrine sticking to the old Constitution, that the Legislature was the exclusive judge, and why they could not provide for the condition by a general law, and therefore they would provide a local law, and we are in danger of getting in the same condition as the framers of the Constitution of 1875, when they issued that elaborate address to the people and told them that they felicitated them on the fact that the evils of local legislation were put an end thereto thereafter. Now something is said here about the courts exercising legislative power, but it is directly competent for the framers of a Constitution to put a check or balance by one department on another. It may be the court, or they may leave it, as the gentleman states, to the oath of the Legislature, or they may provide to let the Legislature  judge in the first instance, but as a matter of last resort leave it to the court which passes as the tribunal of last resort on your life, liberty and property. There is nothing improper in that, and it seems to me that we had better strike out the whole Section altogether and have none, than to put in here that the Legislature shall not do certain things when we know that the Constitution has been construed to mean that that is waste paper if the Legislature chooses to do it, and for that reason I am heartily in favor of that portion of the Committee's report, and against the adoption of the amendment offered by the gentleman from Limestone.

MR. WILSON (Clarke) ‑ I apologize to the delegates for rising to discuss this question, but a sense of the great importance of the question has compelled me to do it. It is recognized, as the gentleman has said, that the courts have repeatedly held, that the old clause in the present Constitution says that the Legislature may not pass any local law which can be provided for by a general law, still the courts leave it exclusively to the Legislative Department to determine whether it might have been provided for by a general law, and therefore permit the Legislature to pass the local law. To prohibit that state of affairs the Committee on Local Legislation has brought in a proposition here to let the courts and not the Legislature be the exclusive judge of whether the subject matter of local law could be reached by some general law in opera‑


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tion. The amendment proposed by the gentleman from Montgomery, it seems to me, will go a long ways towards checking the objections to the present clause, and does not contain the dangers which are in the arrangement proposed by the Committee on Local Legislation.  The only objection which gentlemen of the Committee on Local Legislation have urged to the amendment and in favor of the proposition reported by them is that if you strike out this part of this Section you destroy their Section. Now I say, Mr. President, I would rather destroy their Section than to destroy somebody’s property, who has invested in good faith under a local law passed by the General Assembly,  and which the court sometime after law declared could have been done under a general law, and therefore that it is all wrong.

MR. BANKS– I want to call to your attention and also to the attention of the gentleman from Limestone, the fact that this Section does not say that the courts are not to decide whether or not a general law could have been enacted but whether or not a general law has been enacted.

MR. WILSON (Clarke) – I understand that the Section says that if the courts find that the relief could have been had under some general law in effect, that the courts can declare the law unconstitutional.  I do not think that makes the matter any better, because we have general laws of some kind on almost every subject, and I think if we put this Section in the Constitution as reported here by the Committee on Local Legislation, why then you leave the door open for some innocent purchaser, or some person who has acted in good faith upon the action of the Legislature, to be deprived of his property.  I believe it is a dangerous proposition.  Now as to the method proposed by the gentlemen from Montgomery to meet the evil which exists in the present Constitution, I believe there is merit.  My friend on my left, the gentleman from Mobile, Mr. Pillans, has suggested to me that is the provision of the Constitution of Mississippi.  He is practicing attorney in the State of Mississippi and has called my attention to the fact that both the local and general laws of Mississippi are not larger than the general laws of the State of Alabama. Here are the acts of Mississippi from 1894 to 1900.  This proposition which is proposed by the gentleman from Montgomery is very similar to the Mississippi plan.  I believe if we have a Constitutional Committee, whose duty it is to examine a bill and ascertain if there is a general law covering the subject, which committee is required to give their reasons, I believe that would be a great check in this direction.  Besides that, we have the thirty-seven other checks which we have put in this Article.  There are thirty-seven subjects here that a local law cannot be passed on, about which a local law could have been passed under the old Constitution.  That is another check. I think they have a proposition in here that the Journal must af-


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firmatively show the notice if that is adopted, that is another check. It might be added to that this Committee on Legislation shall ascertain and report whether the notice was given. That would be another check, but I submit, Mr. President, it is not wise to leave the thing so that the Legislature after it has passed a law and people have acted on it and put their money in it for a court to come along and say that the thing is all wrong after a man has put his money in it.

MR. WALKER ‑ It does not seem to me that the amendment proposed by the gentleman from Montgomery would, any more plainly, put upon the Committee that it is their duty to pass upon the question of whether or not the subject could be provided by a general law than the present Constitution puts upon the General Assembly the duty of ascertaining that fact. I cannot anticipate that the action of such a committee would be any more satisfactory than has been the action of the Legislature in reference to that matter. And the action of the Legislature in reference to their duty has been simply a complete and total ignoring of the duty imposed upon them by the Constitution. They ascertained years ago that it was left in the power of the Legislature to say whether or not a matter shall be disposed of by a general law, and having ascertained the existence of the power, they have never questioned projects for local legislation beyond that.  The inhibition on local legislation has been flagrantly and completely ignored. It would be as completely in the power of the Committee that is proposed to be formed, to ignore this duty, as it is in the power of the Legislature, and the sufficiency of the reasons given by the Committee are not matters to be questioned by the General Assembly. All that this Committee would have to do in any case where a project of local legislation was presented to them, would be to sign a report presented by a member who wanted the local legislation passed and the sufficiency of those reasons would not have to be gone into. All in the world that the legislature would require is that the Committee would file its pro forma report required by the Constitution. If that is done, they have got the power and they do not have to ask any other questions. The precedent of the legislature of Alabama warrants me in forecasting the future in reference to a provision of this kind, that it would practically amount to nothing. That the provision against local legislation, would leave it where it was before. In other words, the legislature would have the power to determine whether a matter could be provided for by general law, and if they determine that they did not think that it could, they would have the power to pass a local or special law on the subject.

MR. SMITH (Mobile) ‑ Suppose the legislature were to pass a local law which was provided for by a general law, and the Supreme Court should subsequently so decide, what effect would it


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have? Would it not have the effect to uphold the right under the law because it was covered by the general law?

MR. WALKER ‑ If it is already covered by a general law, yes.

MR. SMITH (Mobile) ‑ What effect on it does the decision of the Supreme Court have? It just simply says that it was covered by a general law?

MR. WALKER ‑ If the Supreme Court passes upon the question whether or not the local law or special law is a valid place of legislation, if rights are claimed to have accrued under that local or special legislation, why if the local or special legislation should be held to be invalid, the right could not be sustained.

MR. SMITH (Mobile) ‑ If the court held that it was covered by a special law the right would be protected, would it not?

MR. WALKER ‑ Yes, sir.

MR. SMITH ‑ I f, on the contrary, it held that it was covered by a general law, it would not be covered by the special law, so the adjudication of the court will be a nullity in either case, so far as the rights are concerned.

MR. WALKER ‑ I really don't understand the purport of the question?

MR. SMITH ‑ If the Court decided that he had a right under a general law, and that it was covered by the general law, he would have the right under the general law.

MR. WALKER ‑ Yes, if the local law did not amount to anything.

MR. SMITH. ‑ And if they decided the other way, and held that he had the right under the special law, but that the special law was covered lay the general law, he would still have the right, would he not ?

MR. WALKER ‑ The decision of the court would show that this piece of legislation was wholly useless.

MR. O'NEAL ‑ This section provides that no special or private law shall be enacted in a case which is provided for by a general law. Now I was going to make the inquiry along the line suggested by the gentleman from Mobile. If you obtained your rights under a local law, and the Supreme Court should hold that that local law was unconstitutional, because the matter of that local law was already provided for by a general law, then a party could not be injured, because the rights were acquired under the local law, and he would still hold his rights under the general law which is in existence.

MR. WALKER ‑ That is true.


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MR. O'NEAL ‑ Is not that a complete answer to the proposition that this would affect property rights? How could it affect property, rights when, if the property rights were acquired under a local law, that local law was void on the ground that a general law existed at that time which covered the case, and the general law which existed would protect his property right, would it not?

MR. WALKER ‑ Of course if the subject was covered entirely by the general law, the special legislation would amount to nothing.

MR. WILSON (Clarke)  ‑ Well, then, suppose the Court would hold that the relief sought could have been obtained from a court, but the fellow event along and acted under a general law, what would be the result?

MR. WALKER ‑ He would not leave the relief, because he did not apply, to the Court. He ought to have followed the law and not proceeded on his rights under the void act of the legislature.

MR. WILSON (Clarke)  ‑ But his money is gone under that act.

MR. WALKER ‑ Certainly, and a man's money is always gone when he acts under a void act of the legislature.

MR. COLEMAN (Greene) ‑ Not necessarily, but may be.

MR. LONG (Walker) ‑ That is the result of invalidating any act of the legislature.

MR. LONG (Walker) ‑ Mr. President, I have set here for forty ‑ one days and can truthfully say that in that entire time I have heard a great many attacks upon the legislature. The legislature has done many unwise things in the last. The last legislature did many unwise things, but I am constrained to believe that about the worst thing it did was the calling of this Constitutional Convention.

Now, Mr. President, after stating in Section 1 of this article thirty odd things that the legislature cannot do, it goes on to say here that they shall not be the judges of their own acts, and shall invite the criticism of the courts of the country as to what they do. Then in the next section it says that no special, private or local law shall be passed on any subject not enumerated in Section 1 of this Article, except in reference to courts, etc. They are not satisfied with naming everything that they can think of, but they go further and say that they shall not do anything else, and then they want to put a special article in here that the courts shall construe this thing and the legislature shall have nothing to do with it. Now, gentlemen, the difference between a legislature and this body is that the legislature represents the people, and this


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body of  155 men claim that they are the people. But that is a mistake. They are not the people, the legislature is nearer the people than this assembly is, though we  are as big as we think we are. As far as I am concerned, it makes no difference, but I want to call the attention of this house to the danger that we are getting into. Why not abolish the legislature in its entirety. Why not put a provision in there that they shall never call another Constitutional Convention. Why should we not say that they shall not do anything in the future and abolish them forever from the face of the earth. That is exactly what you are, driving at in these articles. Two distinguished Chairmen of different Committees have consolidated to name the things that the legislature shall not do. The legislature has existed ever since the Declaration  of Independence was firmly established upon this continent. It is nearer the liberties of the people than any body you can get. There is hardly a man from the rural districts that runs for the legislature but what discusses the issues all over the county. I care not what you say. I tell you that we are going too far in this effort to prohibit local legislation. We are trying to fix a jacket here that will do for the whole State of Alabama, when our interests are entirely different in some parts of the State as the moon is from the stars. Why Mississippi is no more a comparison for this State than a cur dog is with an elephant. Mississippi's interests are all farming interets, so to speak. Alabama's interests consists of her iron, coal and her agricultural interests. These all need different laws for their different sections. We cannot frame a general law that will suit the whole State of Alabama. It looks as if you desire to fix it so that if James Smith desires to change his name to James Hancock you have got to provide by general law that every mail in the State of Alabama, after that, shall be named James Hancock.

Gentlemen, that is exactly what you are driving at. It is time this Convention was thinking of what it is doing. They should leave some liberty, to the people. You have provided now for thirty odd shackles on the legislature and you are cursing and demeaning the power that created you. I want to call your attention to that, and one of the commandments says that you shall not take the name of thy Creator in vain, and if it had not been for the legislature you would not have sat here in this distinguished body of gentlemen, statesmen that you are. I have been tempted time and again to rise to my feet as a matter of personal privilege to defend the legislature of the State of Alabama. The legislature is not such a body of fools as you would have one to believe that they were, and they are not a dishonorable, disreputable class of ruffians that meet down here overriding the wishes of the people. They are nearer the people than anybody on earth. You want to turn over as far as possible to a lot of "simlim" headed commissioners of a county, that cannot spell Constantinople to pass laws for a whole State, and for the different counties in the State. You


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say that my county has got to have a certain kind of a jacket, because Mobile wants a certain kind of a jacket. Gentlemen, you are going too far. I just want to call the attention of the Convention to this fact. As far as I am concerned I shall vote for the amendment offered by the gentleman from Limestone knocking that out, whether it can be considered before or after the act is passed. I suppose not being a lawyer it beats me both ways and they have got a right to consider it before and after both.

MR. WHITE ‑ Since hearing the gentleman from Clarke or the gentleman from Mobile, I believe it was, showing that the local laws had become cumbersome in the State of Mississippi, I want to say that in that State they never have been given to local legislation. I served in one Legislature there. I had the honor to serve in their Legislature in 1876 and we did not pass a single local act and we would not pass one for anybody. Up to that time the Republicans had passed a great many, nearly as many as have been passed in the State of Alabama. The people of Mississippi became disgusted and would not pass local legislation, but there is something more to that than a Constitution, because there is a general law in Mississippi by which a great many of these things can be accomplished, and that general law would have to be repealed before you could get the local legislation. That is why the local legislation in Mississippi appears to be as small as it is. I think if we leave this provision in here we might just as well strike out what we have done today. If we allow a committee of the Legislature to determine whether or not a general law has, or a general law will, provide for this local legislation, we have not moved forward a single step. We are exactly where the Constitution of 1875 left us, and if local legislation has become an evil then we might expect to bear that evil still. There is only one way to avoid it in my judgment and that is to adopt the report of the committee which shows this is a question for the court and not a question for the Legislature.

MR. PILLANS ‑ In as much as the gentleman from Jefferson, and a little earlier from Mississippi, followed the lead of the gentleman from Walker, I was rather surprised at his ex ‑ state, and I would like to make an explanation. It has been said that Mississippi did not pass local laws because it was an agricultural State and did not need them, as I understand, but I desire to put in evidence the difference between the local legislation of Mississippi in 1890, the year they adopted a Constitution with stringent clauses prohibiting local legislation, and 1898 after the adoption of that Constitution. There is a volume as big as an old ‑ fashioned volume of the acts of Alabama, along in the late 80's. There is their volume of acts, 900 pages. Almost all of that volume is made up of local and special acts. These are acts which are not general laws applying all over the State of Mississippi in their operation. In 1898,


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acting under a system and controlled by a system which is proposed by the amendment of the learned gentleman from Montgomery, that is the book of acts which was passed, a little smaller than our blue back spelling look containing the general acts of 1900. I do not care to make any further argument.

MR. WHITE– Was not that a called session of the Legislature of Mississippi ?

MR. PILLANS– I think not. This is about the size of their book, and this is a general session. Now that shows that they are able to reduce their legislation from that weighty tone to this one as the result of the precise plan which is proposed by my distinguished friend, which can be improved upon as alluded to by the gentleman from Clarke, by requiring that the committee, if it shall be adopted as a part of the system of Alabania, insist make a written report upon legislation. It will be improved upon if it requires that the committee in its report must find definitely whether or not the publication which may be required in certain cases has been niade and that the other matters pre ‑ requisite have been performed.

MR. PETTUS ‑ I move the previous question on the section and the pending amendments.

The main question was ordered. Upon a vote being taken upon the amendment offered by the gentleman from Montgomery, a division was called for and by a vote of 18 ayes and 60 noes the amendment was lost.

MR. WATTS ‑ I move to lay the amendment of the gentleman from Limestone on the table.

THE  PRESIDENT ‑ The previous question has been ordered upon that amendment as well. The Clerk will read the amendinert offered by the delegate from Limestone.

MR. LONG (Walker) ‑ I ask for a reading of the section as it would read with the amendment. The section was read.

MR. O'NEAL ‑ I rise to a question of privilege. I believe that the chairman of the committee has a right to conclude the debate on this question, and I yield to the gentleman from Montgomery, Mr. Watts.

MR. WATTS ‑ There seems to be some misapprehension as to what this law provides. It provides that no special, private or local law except a law fixing the time of holding court shall be enacted in any case, which is provided for by a general law, or when the relief sought can be given by any court of this State. Now mark you, the language is not which can be provided by a general law, but it is "which is provided by a general law." The Supreme Court of Alabama in construing this language as it ap‑


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peared in the Constitution of 1875 said that the Legislature was the judge of whether or not a matter before them was covered by a general law or whether or not the relief sought could be granted by any court. If we leave in the Constitution the language just as it was in the Constitution of 1875, we simply say to the people of Alabama that this Constitutional Convention adopts the opinion of the Supreme Court, and that hereafter, as heretofore, the Legislature shall be the exclusive judges of whether or not a matter introduced before them is provided for by a general law, or whether the relief sought can be granted by a court.

MR. LONG (Walker) ‑ Is it not a fact that we have already adopted about thirty odd clauses and named about thirty odd cases in which the Legislature cannot pass any local law, special or  private law?

MR. WATTS ‑ That is right.

MR. LONG (Walker) ‑ Is it not a fact that there is a wide and great difference between the present Constitution and the one which we propose to adopt?

MR. WATTS ‑ It is true that we have adopted thirty odd absolute prohibitions upon the Legislature.

MR. LONG (Walker) ‑ Is it not a reflection upon the Supreme Court for us to say that this Convention adopts a thing in the opinion of the Supreme Court?

MR. WATTS ‑ No, it simply shows the wisdom of this Convention when the Supreme Court, the highest tribunal in the State, points out a defect in the fundamental law and the people in Convention assembled have an opportunity to remedy it, it is their duty to remedy it, and if they do not do it they would be considered by the Supreme Court to have agreed to the old Constitution and the law as laid down by the Supreme Court.

MR. LONG (Walker) ‑ I don't think the gentleman understands the question.

MR. PITTS ‑ If you adopt this Section as you propose to, what is the use of adopting the thirty ‑ six exceptions already provided for?

MR. WATTS ‑ The reason of adopting the thirty odd prohibitions already adopted was to point out specifically to the Legislature the things that they could not do but this provision is to prohibit them from passing any law of the same nature in regard to other subjects which are not mentioned and which are provided for by the general law.

MR. GRANT ‑ You go on and state that the courts and not the General Assembly shall judge as to whether the matter and so


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on. Now a man who wants to have a local measure introduced, a bill of doubtful character, don't know exactly whether it is local or general. Now how will he get the determination of the court?

MR. WATTS – He don’t get the determination of the court, but it is the presumption that in every Legislature there are some lawyers and if the are lawyers they will know whether or not there is a statute in the book which covers a proposed measure, and if they are lawyers they will know whether the relief sought by the particular measure can be granted by any court, and not by the Legislature, and that is the reason it is put there, because the Supreme Court formerly held that the right was left to the Legislature to determine for themselves, and we propose for the court to exercise the constitutional function of determining what is the law.

MR. GRANT– How do you get the determination of the court before the legislation is introduced?

MR. WATTS– You cannot get it before.

MR. MALONE– Have not we already refused to adopt Section 26—

MR. WATTS– No sir;  it simply says that the Legislature shall not adopt any local legislation upon a matter which is provided for by a general law.

MR. WADDELL ‑ I make the point of order that the gentleman's time was expired.

THE PRESIDENT PRO TEM ‑ The Gentleman has four minutes of his ten.

MR. WATTS ‑ Now the Supreme Court said that vote could not put into this Constitution a provision as to those things which could not be provided for by general law, because that would go out into the world as speculation and nobody could ever determine what could be provided for by general law, and there might be a great deal of ingenuity in evading that. But you can put in there what is provided for by general law, because everybody knows that. The laws are published and you can read them and find whether or not a general law does provide for the matter, and every lawyer at least call determine whether or not the relief sought by the particular bill could be granted by any court.

The President resumed the chair.

MR. PROCTOR ‑ I desire to ask a question. To adopt the amendment offered by the gentleman from Limestone, would virtually make the whole section inoperative.


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MR. WATTS ‑ It would make it like it was before when the Supreme Court said that the Legislature was the judge and not the court.

MR. PETTUS ‑ Did the old Constitution have these thirtysix or seven specific kinds of laws enumerated that the Legislature could not pass?

MR. WATTS ‑ No, it did not. unfortunately.

MR. PETTUS ‑ Then I take it that it is different, and not as you answered the gentleman from Jackson.

MR. WATTS ‑ There is a difference, but this makes it a little more difficult for the Legislature to pass local legislation.

The question being on the adoption of the amendment of the gentleman from Limestone, upon a vote being taken the amendment was lost; the question recurring on the motion to adopt the section, a division being called for, by a vote of 64 ayes and 33 noes, the section was adopted.

MR. MALONE ‑ I wish to state that the object I had in voting aye was to move to reconsider tomorrow morning.

THE PRESIDENT ‑ Did the gentleman say he intended to move to reconsider?

MR. MALONE ‑ I move to reconsider tomorrow morning.

THE  PRESIDENT ‑ The vote whereby the section was adopted?

MR. MALONE ‑ Yes, sir; this sub ‑ division.

MR. O'NEAL ‑ You cannot move to reconsider it tomorrow. You can move to reconsider it now and it will  be heard under the rules tomorrow morning.

THE  PRESIDENT ‑ The gentleman can move to reconsider, and under the rules a motion to reconsider would so over until tomorrow morning.

MR. MALONE ‑ That is what I wanted.

MR. SANDERS ‑ I move that the rules be suspended and that the reconsideration be taken up now.

Upon a vote being taken, lay a vote of 45 ayes to 15 noes, the Convention refused to suspend the rules.

Section 2 of the Article reported by the committee was thereupon read as follows:

Sec. 2. No special, private or local law shall be passed on any subject not enumerated in Section 1 of this Article, except in


1943

CONSTITUTIONAL CONVENTION, 1901

reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law, and be published at least once a week, for four consecutive weeks, in some newspaper, or if there is no newspaper published in the county, by posting the said notice for four consecutive weeks at five different public places in the county or counties, prior to the introduction to the bill; and the evidence that said notice has been given shall be exhibited to each house of the General Assembly, and the fact of said notice spread upon the journal.  The courts shall pronounce void every local law which the journals do not affirmatively show was passed in accordance with the provision of this section.

MR. SAMFORD– I move the adoption of Section 2 and on that I move the previous question.

MR. CUNNINGHAM– Before the motion is put, I would like to ask the chairman of the committee if the substance of the proposed law means that the law itself in substance shall be published, or will the purpose of the proposed law be published. Would it not be better to strike out the substance and insert the purpose?

MR. O’NEAL– The Committee did not desire that a community should be mislead as to the purposes of the law, and sometimes the caption of a law is very misleading and it was to obviate advantage being taken of the public in the matter that it was written as it is.

Upon a vote being taken the main question was ordered and upon a further vote the section was adopted.

Section 3 was read as follows:

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

MR. SANDERS ‑ I have an amendment which is acceptable to the Committee, and I move the previous question upon the subdivision and the amendment.

The amendment was read as follows: Amend Section 3 by adding after the word "repeal" in the first line thereof, the following words : "or modify any special, private or local law.

MR. ASHCRAFT ‑ I would like to ask the Chairman of the Committee if it does not mean by the word "may," that the legislature shall not repeal it except upon such notice?

MR. O'NEAL ‑ Yes, sir. It requires the same notice to repeal a special law that it does to enact one.


1944   

OFFICIAL PROCEEDINGS

MR. ASHCRAFT ‑ Then it seems to me that it ought to read that the General Assembly shall not repeal a special law except upon notice.

MR. O’NEAL ‑ It seems the same thing, and the Committee on Harmonics can arrange the grammar.

Upon a vote being taken, the main question was ordered, and upon a further vote being taken the amendment and the section were adopted.

Section 4 was read as follows:

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

MR. SANDERS ‑ I have an amendment which is acceptible to the Committee.

The amendment was read as follows: Amend Section 4 by adding thereto the following words: "Provided, that nothing in this section or article, shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic.

MR. O'NEAL ‑ The Committee cannot agree to the amendment as it is written.

MR. REESE ‑ I desire to ask the Chairman of the Committee a question. Under that provision can you suspend the general jury law of the State or will every County in the State be required to live under the jury law of the State?

MR. WADDELL ‑ I move that this Convention remain in session until( the gentleman was interrupted by the clock striking six.)

A DELEGATE ‑ A point of order. The hour of six has arrived and this Convention stands adjourned.

And thereupon the Convention adjourned until tomorrow morning.