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__________________

FORTY ‑ FIFTH DAY

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MONTGOMERY. ALA.,

Monday, ,July 15, 1901.

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

Almighty God, we would begin this day in Thy strength. Thou dost love us. Thou didst so love the world as to give Thine only begotten Son. Thou didst give the Lord Jesus Christ, as a propitiation for our sins, and not for our sin; only, but for the sins of the whole world. We pray Thy richest blessings to rest upon this Assembly. Bless them in every department of their work. We commend one another to Thy tender love. We would remember


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our loved ones at home, the sick, the dispirited and the disquieted. To the weary wouldst Thou give rest. Bless us in all of our deliberations this day, and ultimately save us through the merits of our Lord and Savior Jesus Christ, Amen.

Upon the call of the roll, eighty ‑ seven delegates responded to their names.

Leaves of absence were granted to the following: Mr. McMillan (Wilcox) for today and tomorrow; Mr. Hood for today; Mr. Ferguson for today; Mr. Pillans for today; Mr. Carmichael (Colbert) for today; Mr. Eyster for today; Mr. Haley for today; Mr. Jenkins and Mr. Lowe (Lawrence) indefinite leave on account of sickness.

The report of the Committee on Journal for the forty ‑ fourth day of the Convention had been examined and found to be correct, and the same was adopted.

THE PRESIDENT ‑ The special order for this hour will be the consideration of the motion for reconsideration.

MR. HOWELL ‑ I announced on Saturday I would move a reconsideration this morning of the vote by which the substitute of the gentleman from Hale (Mr. deGraffenreid) was adopted, retaining the provisions of the present Constitution as to the area of square miles in the counties. I did not do that to resort to any dilatory tactics to consume time, but owing to the small House we had on Saturday I thought it would be proper that this matter should be settled this morning, if we could get the reconsideration was to offer an amendment to sustain the majority report of the committee for five hundred square mile.

THE PRESIDENT ‑ The motion is to reconsider what section?

MR. PARKER (Cullman) ‑ The substitute for section three.

THE PRESIDENT ‑ What is the substitute the gentleman desires reconsidered?

MR. HOWELL ‑ It is the substitute offered by Mr. deGraffenreid, and adopted, to section three.

THE PRESIDENT ‑ Does the gentleman desire to discuss it further?

MR. HOWELL ‑ I suppose it will not provoke any discussion. This question has been discussed at length, and while a very respectable minority of the. House would prefer a reduction to four hundred square miles, that is settled; but we believe possibly that a majority would favor the majority report of the committee that recommended the reduction to five hundred square miles, and the minority square miles will be satisfied with the vote on that ques‑


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tion this morning. I have no disposition to discuss it. In my judgment this question has been discussed fully and everybody's mind it made up on the question I suppose. So far as I am concerned. I am satisfied with the present discussion and will not discuss it further.

MR. MOODY ‑ I move to table the motion to reconsider.

MR. PARKER (Elmore) ‑ On that I call for the ayes and noes.

The call not being sustained, a vote was taken, and a division called for, which resulted in a vote of fifty ayes and thirty noes and the motion to take was carried.

MR. deGRAFFENREID ‑ I rise to a question of personal privilege.

THE PRESIDENT ‑ The gentleman will state the question of privilege.

MR. deGRAFFENREID ‑ The substitute which was adopted by the House for section three, has been referred to as a substitute which was offered by me. It is a matter of solve importance and I desire to say that the substitute was simply the minority report of Mr. Milo Moody and Mr. C. H. Miller, to the majority report. I did not want to be credited with the matter, because those gentlemen are entitled to it. I made the motion at the request of Mr. Miller, and conducted the fight for that amendment at his request.

THE PRESIDENT ‑ The present order will be the call of the roll of delegates for the introduction of resolutions, ordinances, etc.

MR. SANFORD ‑ There is a motion to reconsider after the one just before the House, the motion I made to reconsider Section 4. I merely desire to call the attention of the House to the matter.

THE PRESIDENT ‑ The question will be upon a motion to reconsider the vote whereby this Convention adopted Section 4.

MR. SANFORD (Montgomery) ‑ It was laid on the table.

THE PRESIDENT ‑ The Chair will state to the distinguished gentleman from Montgomery, that in the opinion of the Chair, a motion to reconsider is not in order, where a section has been laid on the table. The proper motion, if the gentlemen will permit the Chair to suggest, would be a motion to take from the table.

MR. SANFORD ‑ I make that motion. I move Mr. President and gentleman of the Convention that section four, and its substitute, which was tabled on last Saturday, be taken from the table for further consideration and passage. It am aware that the Con‑


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vention seems to be in favor of retaining the area of 600 square miles–

MR. REESE ‑ I make the point of order that the motion is not debatable.

MR. SANFORD (Montgomery) ‑ I cannot hear what the gentleman says.

THE PRESIDENT ‑ The point of order made by the gentleman from Dallas is that a motion to take from the table, like a motion to lay upon the table, is not debatable.

MR. SANFORD (Montgomery) ‑ Then by my ignorance of parliamentary tactics, I have been fairly trapped. I move to reconsider the action of the Convention on Section 4 on Saturday this morning, and I am told that is not the order, but it should be to take from the table, and when I make a motion in accordance with the suggestion of the President I am told that it is not debatable. I do not think that is just. Pardon me for differing from so learned a gentleman, but it seems to me it works an injustice.

THE PRESIDENT ‑ The gentleman can renew the motion to reconsider if he prefers.

MR. SANFORD ‑ I renew the motion to reconsider.

THE PRESIDENT ‑ The chair will rule the motion out of order as it is not in order to move to reconsider something which the Convention has laid upon the table.

MR. SANFORD ‑ Then if I move to take it from the table that is not debatable?

THE PRESIDENT ‑ That is true.

MR. REESE ‑ I rise to the point of order that the report of the committee is not at this time before the House.

MR. SOLLIE ‑ I rise to a question of personal privilege. In the stenographic report of last Saturday's proceedings I am credited with stating that I live now in Geneva county. I do not know whether that is my mistake or the mistake of the stenographer, but whichever it may be, it is one and I would be glad to have it corrected, because I live in Dale county. I used to live in Geneva county, but do not live there now.

THE PRESIDENT ‑ The stenographers will take note of the correction of the gentleman from Dale. The secretary will call the roll of delegates for the introduction of ordinances, resolutions, etc.

Mr. Brooks of Mobile offered the following resolution, No. 245:


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Resolved, That it is the sense of this Convention that all discussions relating to the amendment and revision of the Constitution should be free from caucus dictation operating upon the judgment and conscience of the delegates; that the proper forum of such discussions is the Convention, and that the proper method of giving effect to the wishes and interests of the people through the Convention is by the free and unrestricted action of their individual representatives in Convention assembled.

MR. BROOKS ‑ I move a suspension of the rules, Mr. President, so that the resolution may be put upon its passage.

Upon a vote being taken, a division was called for.

MR. BROOKS ‑ If I am in order I would like to have the resolution read again as some gentlemen did not hear it.

MR. HEFLIN (Chambers) ‑ I object, Mr. President. The vote has been put and I rise to the point of order that it would be out of order to reconsider the resolution at this time, a division having been called for.

THE PRESIDENT ‑ It seems to the chair that it would be in order to have the secretary read the resolution.

The resolution was again read.

MR. REESE ‑ I move to lay the resolution upon the‑

THE PRESIDENT ‑ The question is upon the suspension of the rules.

MR. REESE ‑ I make a point of order.

THE PRESIDENT ‑ The question is upon the suspension of the rules‑

MR. REESE ‑ That resolution is not germane to any matter before this Convention, and the gentleman ought not to be offering it here.

THE PRESIDENT ‑ In the opinion of the chair the point of order is not well taken.

By a vote of 31 ayes to 37 noes the Convention refused to suspend the rules, and the resolution was referred to the Committee on Rules.

Ordinance No. 420, by Mr. Burns:

An Ordinance‑

The General Assembly or Legislature shall enact laws for the purpose of effectually enforcing the lien of agricultural, mechanical and railroad employees upon the products of their manual labor.


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Referred to the Committee on Legislative Department.

Upon the call of the standing committees:

MR. HEFLIN (Randolph) ‑ I am directed by the Committee on Schedule, Printing and Incidental Expenses to report back to the Convention resolution 219 without recommendation.

The resolution was read as follows:

Resolution No. 219, by Mr. Beddow of Jefferson:

Whereas, various resolution, have been adopted throughout the State requesting that this Convention patronize union labor by having its printing done by members of the Typographical union, and that the union label be printed thereon, and

Whereas the union of labor should be encouraged by the people of Alabama in Convention assembled.

Therefore be it

Resolved, That the Committee on Schedule, Printing and Incidental Expenses be and they are hereby instructed to patronize the printing establishments having in their employment union labor and have the union label printed thereon.

MR. HEFLIN (Randolph) ‑ I just want to say to the Convention that a number of gentlemen appeared before the committee in favor of this resolution and explained its object and purpose. I will also say to the Convention that the Committee has already contracted with the Brown Printing Company, Montgomery, to do all the printing of this Convention, with the exception of the Journal, and we explained that to the committee who came before us. They have numerous petitions here in favor of the resolution, and also some petitions against the resolution. We stated to the gentlemen we had already contracted, and they then said to us that they did not expect us to break the contract, but they wanted the label placed on all printed matter done by this Convention. Now I desire to give my time to the gentleman from Jefferson, Mr. Beddow.

MR. SAMFORD (Pike) ‑ I rise to a point of information.

THE PRESIDENT ‑ The gentleman will state the point of information.

MR. SAMFORD ‑ Is it in order to consider this report now? That is merely the report of a committee, and the rules of the Convention are that reports of committees shall lie over and be printed. and be taken up in their regular order.

THE PRESIDENT ‑ That applies to ordinances, but not to resolutions, where a committee reports, resolutions.


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MR. SAMFORD ‑ I understand that to be the rule when it is reported by the Committees on Rules, this is a standing committee of a different nature entirely.

THE PRESIDENT ‑ It seems to the chair that the resolution goes upon the calendar and be taken up when that order of business is reached.

MR. SAMFORD ‑ Then I make the point of order that the consideration of this report is now out of order.

MR. BEDDOW ‑ I rise to a point of parliamentary inquiry.

THE PRESIDENT ‑ The gentleman will state his point of parliamentary inquiry.

MR. BEDDOW– Has it not been the uniform practice of this Convention since the first day to take up reports of committees when handed it, and considered then?

THE PRESIDENT ‑ The uniform rule is that reports of committees lie upon the table and be printed.

MR. BEDDOW ‑ But how about resolutions?

THE PRESIDENT ‑ With reference to the Committee on Rules it has been the uniform practice to take up the report of that committee because it is a privileged committee, and has the right of way under the rules. There is one order of business, No. 7, which is reports of Standing Committees, and Order of Business No. 11 is consideration of ordinances and resolutions, which have been reported from committees. The resolution and report of this committee, therefore, will not be in order until that order of business is reached.

MR. BEDDOW ‑ What order of business is that?

THE PRESIDENT ‑ Order of business No. 11, on page 9 of the rules.

THE PRESIDENT ‑ The next order of business will be the special order, which is the consideration of the report of the Committee on State and County Boundaries. The secretary will read Section 6.

The secretary read the section as follows:

Sec. 6. ‑ No county site shall be removed except by a twothirds vote of the qualified electors of said county, voting in an election held for said purpose, and when an election has once been held for such purpose no other election can be held for such purpose until the expiration of four years; provided that the county site of Shelby county of this State shall be and remain at Columbiana, unless removed by a vote of the people as provided for in


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an act entitled "An act to provide for the permanent location of the county site of Shelby county, Alabama, by a vote of the qualified electors of said county," approved the 9th day of February, 1899. and the act amendatory thereto, approved the 20th day of February, 1899, or by an election held under the provisions of this article.

The Secretary then read the minority report as follows :

MINORITY REPORT

The undersigned members of the Committee on State and County Boundaries does nut concur in the report of the Committee as to Sections 2, 3 and 4, and lie offers as substitute therefor the following :

Sec. 3. ‑ The boundaries of the several counties of this State as heretofore established by law, are hereby ratified and confirmed. The General Assembly ‑ may by a vote of two ‑ thirds of both houses thereof arrange and designate boundaries for the several counties of this State, which boundaries shall not be altered, except by a like vote; but no new counties shall be hereafter formed of less extent than 600 square miles and no existing county shall be reduced to less than 600 square miles; and no new county shall be formed which does not contain a sufficient number of inhabitants to entitle it to one representative under the ratio of representation existing at the time of its formation, and leave the county or counties from which it is taken with the required number of inhabitants: entitling such county or counties to separate representation.

Respectfully submitted,

Milo Moody,

C. H. Miller.

MR. SANFORD (Montgomery) ‑ I rise to a point of information.

THE PRESIDENT--I`he gentleman will state his point of information.

MR. SANFORD ‑ If that is adopted, does that become a part of the Constitution of Alabama, or is it only an ordinance setting aside the acts of the Legislature?

THE PRESIDENT ‑ It becomes a part of the Constitution it seems.

MR. HEFLIN (Chambers) ‑ A parliamentary inquiry: I understand the substitute will be the first thing considered.

THE PRESIDENT ‑ The question will be upon the amendment, the substitute offered by the minority of the Committee for the majority report, the gentleman from Cullman is recognized.


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MR. PARKER (Cullman) ‑ Mr. President, and gentlemen of the Convention: Your Committee on this Section has sought to throw an additional safeguard around the old county seats of the counties of Alabama.  We say here it will take an election and two-thirds vote of the qualified voters of the county to remove the county seat.  It was a unanimous report as to the main part of this Section.  The Committee believe that the old county seats are, so to speak, vested rights of property, and we did not think the floating vote of a county should be able to move the county seat, and thus impose the burden of taxation upon th tax payers of the county.  As to the proviso in this Section to which there is a minority report, when this question of the removal of the county seat of Shelby County was first brought before the Committee, personally I was opposed for the Committee, or this Convention, to have anything to do with it, but after very careful investigation of this question, during some ten days and with testimony taken before the Committee, which occupies about 135 pages of close typewritten matter, it was so forced upon the majority of the Committee that there were wrong methods used to change the county seat of Shelby County, that we though it was our duty to see that the county seat of Shelby County should remain at Columbiana until changed by a vote of the people.  We considered first whether this Convention had the right to go into local legislation.  The distinguished attorney representing the Calera side admitted before our Committee that he thought if it was placed in the Constitution we had that right.  But it is not a question before this Convention now because by the action of this Convention ten days ago excepting certain places from the Article on Taxation and by the action on last Saturday in allowing my good friend from Henry to have a new county composed of parts of Henry, Dale and Geneva, this Convention has settled that it would go into matters of local legislation, and so far as that is concerned, this is a matter res adjudicata so far as this Convention is concerned. The committee found on that investigation that there was but one member of the House who knew of the existence of this bill, as I say that was the only testimony before the Committee by any witness. It is true that there were filed with the Committee some letters from members of the House, but in making this report we did not consider those ex parte matters as evidence. There was no officer of the House who had any independent recollection of the passage of this bill.  One witness said on direct testimony that he recollected something about it, but upon cross examination he admitted that he had no independent recollection whatever, and that all he knew was by virtue of his handwriting on the back of the bill.  There is no question but what that bill was kept off the Calendar of the House.  Both sides admit that.  There was no question that it was kept out of all the newspapers. Both sides admit that.  There is no question but that the people of Shelby County were in total


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ignorance of that bill. Under those circumstances, as a question of expediency, we thought then, and we think now that it is always expedient both in the private walks of life and in a Constitutional Convention, to do away with a wrong and to do that which is right. The people of Shelby County by the election of the present delegates to this Convention upon that issue have repudiated the act, or the attempted act, of the last Legislature, and I think as a matter of right to the people of Shelby county that not only the original part of this section but the proviso should be adopted by this Convention.

MR. SENTELL ‑ As a member of the Committee on State and County Boundaries, and as one of the two members who saw fit to sign a minority report in this case, or this, section. I feel it my duty to make some remarks upon this subject, and to explain to this Convention some of the reasons and motives which prompted the minority in making this report. Mr. President, we concede to the majority the highest and purest motives in undertaking to put this section into the Constitution, and we are satisfied that they are doing what they believe is the proper thing to do under the circumstances, and we trust that no less will be accredited to the minority. Mr. President, we concede that this Convention has the power to put this in the Constitution. For the present this Convention has all power so far as law is concerned, we have the power to create and annihilate the laws of this State as suit our will. We have the power if we so desire to wipe out of existence many counties of this State and create new ones in their stead, we have the power to impose great burdens upon the people of this State, and we have the power to relieve these burdens as we see proper. Yes, there is no doubt but what we have the power, but, Mr. President and gentlemen of the Convention, there is a power that is greater than this Convention, that power which brought this Convention into existence and the power which can in one day wipe out all that this Convention can do in months. That power is the people, and I say the people of this State did not send the members of this Convention here to do just such as we will do when we put this article into the Constitution. Mr. President and gentlemen, this is a local matter. There is no question but what it is a local controversy in Shelby county. That fact is proven by the many men who are here from Shelby county advocating both sides of this cause. I doubt not but what every member upon this floor has been approached by one or more citizens of Shelby county advocating one or the other side of this controversy. Each side was charges to make against the other, crimination and recrimination against the other side in this thing. Now, Mr. President, we say that this is not a proper matter to go into the Constitution. It is no part of the business of this Constitution to settle local controversies, and whenever we


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undertake to do it, we detract that much from the force, the duty and completion of the Constitution. Now we were sent here to make a Constitution, and, as I said, not to settle local controversies, but the opposite side claim that because as they say fraud was practiced in passing this bill through the house, why then we are justified in taking up this matter and settling it in the Constitution. Mr. President, I hold that the question of fraud does not give us the authority and the right. If fraud was practiced in the passage of that bill the courts of this country are the proper forum before which to make the fight, and the courts of this country are the proper authorities to set aside and declare invalid the act, and they also have the right to go before the future Legislatures of this State, and if the Legislature desires it can at any time repeal that act. But, Mr. President, was there fraud committed? The minority of this committee are compelled to say that in their judgment fraud has not been proven. It is a fact that the proof of fraud consists mainly in negative testimony. They infer fraud because nobody could be found who had any distinct and independent recollection of proof of fraud, because as one of the members of the Legislature and as having been an eye witness, and a partaker in the last work of this past Legislature I wish to say and those who are present will bear me out in that, that I have often seen not more than two dozen members upon this floor at night sessions, and they were passing local bills at the rate of one every two or three minutes and nobody giving any attention except the nlan who happened to call up the bill and the man who was doing the reading.

MR. THOMPSON (Bibb) ‑ May I ask a question?

THE PRESIDENT ‑ Will the gentleman consent to be interrupted for the purpose of being interrogated?

MR. SENTELL ‑ Yes, sir.

MR. THOMPSON ‑ I desire to ask if you did not vote in the committee room for the resolution adopted by the committee reciting that it was the sense of that committee that the people of Shelby county should have relief. Did you not vote for that resolution upon its passage?

MR. SENTELL ‑ I wish to state that what took place in the committee room is not a proper matter to be discussed on this floor, but in answer to the gentleman I will say that he did not state properly the resolution that was before the committee. Mr. President, as I said before, I have seen not more than two dozen members upon this floor taking part in the passage of local bills, when they were going through at the rate of one bill every two or three minutes, and even those members who were present reading newspapers, discussing other matter, and giving no attention to the voting. The clerk would call the roll with one swift long


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call, and you could not distinguish one name from another, and nobody answered aye, yea, yes or no, not a man voted, and yet the journal shows a quorum voted in favor or against these bills. All, Mr. President, tell me that a man could remember that a bill passed under those circumstances would be proof that it was fraudulently gotten through I heard a member on this floor say during one of the last days of the Legislature that he could pass a bill through the House putting the Probate Judge of his county in the penitentiary and nobody would know it until it went to the Governor's office for his signature. What was a deplorable state of affairs, I will concede, but it is a fact, nevertheless. Now, Mr. President, as I said before, fraud is not proven, in my judgment, in this case. Now I have no interest in this affair; I know but few people in Shelby County, and those that I do know are my friends. I have no reason for retaining the court house at Columbiana, or having it removed to Calera. I and opposed to this Convention taking up this local matter and consuming $1,000 a day of the people's money in trying to settle this question, when it ought never to have come into this Convention. There is another fact, or reason, why the minority saw fit to sign their report. The majority of this committee based their reason for putting it into the Constitution, it will be taken as positive proof that the Convention placed that fraud upon those individuals took part in the passage of that bill.

THE PRESIDENT– The time of the gentleman has expired.

MR. KNIGHT– As a member of the late much abused Legislature, I desire to make a statement in this case.  I think the journal, sir, will bear me out in saying that I answered nearly every roll call in that Legislature.  I was watchful, and I will state here in my place, sir, that I never heard mention of the removal of the county seat of Shelby County in that Legislature; never heard of such a thing.  There were two bills for removal of county seats introduced into that Legislature, and such bills are always attractive; there are always two sides to them, and I never heard this Shelby County removal before.  I did hear of the removal of the county seat of Russell from Seale to Girard, and of the removal of the county seat of Baldwin County attracted a great deal of attention, but I never heard of such a thing as the removal of the court house from Columbiana to Calera.  There never was such a bill offered in that Legislature that I ever heard of.  I am here to state in my place that I do not believe that such a bill ever passed.

MR. THOMPSON (Bibb)– In the first place I shall ask the Convention to pardon me for again appearing before you; and were it not for the fact that I was a member of this Committee that spent from ten days to two weeks in considering this question, I would not now be before you.  But by some means my


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mind has run through a different channel and lay a different course than that of the distinguished gentleman from Crenshaw. The conversion of the distinguished gentleman to the opinion he now defends, has been as sudden as that of Saul of Tarsus. It came about in a night.  After hearing the evidence in this case, gentlemen, it was my thought and it was so expressed, that my wish was that every one of the 155 members of this Convention could hear that evidence as we heard it. I submit, gentlemen, had you heard it, that you would not have hesitated one moment, any man who was unprejudiced and unbiased in this matter, could not keep from being forced to the conclusion that wrong was done the people of Shelby County. And, gentlemen of the Convention, in the first place as to the evidence adduced before us, it was not dependent upon the statement of any witness upon the stand, the physical evidence was before us. The actual bill itself, as it purported to have been passed through the General Assembly, was presented and parts of another bill ‑ the back of another bill and the body of another bill were presented ; and it showed conclusively to our minds, gentlemen, that when that bill was introduced, it was one measure. When it got to the Journal Clerk's office it was another measure. When it was being read from the Clerk's desk, it was a bill to reduce the corporate area of the town of Calera. When it got to the Journal Clerk's office it was a bill to remove the county site of Shelby County. When it went to the Committee on County, and County Boundaries, it was a bill to reduce the corporate area of the town of Calera. That evidence was brought before its in the shape of the Acting Chairman of that Committee, who swore to us positively, as a disinterested man, so far as we knew, that he examined the bill, that he read the first page of it, practically the body of the first page, and was positive that it was a bill to reduce the corporate area of the town of Calera. That Chairman was Mr. W. E. Stripling of Elmore County. When this bill was introduced, if ever it was, the author failed to comply with the rule of the General Assembly, which required that the title of all bills be endorsed on the lack. That was not done in this case. Your Committee failed to find which that rule was disregarded in any other instance, and it was conclusively proven that it was a physical impossibility for that cover to have been on the court house bill when it was in the hands of that Committee, for in making the holes through the body of they bill in attaching the cover to it when attached to the court house bill, several letters in the names of the members of the Committee were entirely punched out. Gentlemen, that was a badge of fraud that had to be explained. I submit to you that it was never explained. There was a statement made that the cover was once on the Calera Incorporation bill, but that was before it was ever introduced in the House. If that was a fact, how came those names punched out? How was it possible for that change to have been?


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Then again, the Calera Incorporation bill, the body of it I mean, and the back of the court house bill fit in every particular. And then the hole, where they were pinned together fit precisely the crease in the paper ‑ fit exactly, and didn't fit anything of the kind in the court house bill. Now, as to the question of fraud. I don't believe any fairminded man can doubt it. Now the only question, it seems to me, here that has moved the minds of the members or delegates is the question of expediency. As to that, my only reply would be to quote the words of a distinguished member of our Supreme Court in the case of Morris vs. The Elyton Land Company, where they say that principle should never be sacrificed at the altar of expediency.  As to the form we offer this relief as a part of the Constitution, I would say that we have followed precedents as adopted in all other Constitutions as to that, and I shall refer the Convention to the Constitution of the State of Arkansas as found in Vol. 1 of American Constitutions. page 136, not in the schedule of separate ordinances, but in Section 4 in the body of the Constitution, as follows: “In the formation of new counties no line thereof shall run within ten miles of the county seat of the county proposed to be divided, except the county seat of Lafayette County."

“Sec. 5.  Sebastian County may have two districts and two county seats, at which County, Probate and Circuit Courts shall be held as may be provided by law, each district paying its own expenses.”

In the Constitution of the State of Illinois, found in the same work, page 542, and in the 2d Volume, same work, pages 448, 449 and 450, in the Constitution of the State of Tennessee are numerous exceptions of this kind.  In every instance a local measure like this, it was always embraced in a Section of the Constitution. Now then I wish the members of this Convention could see that Shelby County Court House Bill.  To use a slang phrase, gentlemen, it was a “dandy.”  It places a fine of $1,000 upon each member of the Commissioner’s Court, or Judge of Probate, if they failed to comply with the terms of it, or if they failed to levy a tax to pay the bonds issued.  It saddled absolutely a debt of $30,000 upon the people of Shelby County, placed there by a board not selected by the people of Shelby County, but absolutely named in this measure, who could spend this money without accounting to any person on earth, and didn’t have to render an account to anybody.  They could absolutely spend every cent of it for attorney’s fees, and never be held accountable anywhere on earth. Besides the $30,000, they were authorized to draw warrants upon the County Treasurer for such additional sum that they might see fit, and I submit that it was shown that that matter was secretly done and that the people of that county would never have consented to any such measure; and I ask, gentlemen of the Con-


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vention, are you willing to place the stamp of your approval upon such a measure as this? After it is placed upon us it is not a question of expediency. It is not a question as to what the effect may be in Shelby County or elsewhere. The question is what is the right in that matter, and having found the right then will we, by refusal to act, stamp approval by the members of this Convention of such a fraud as that has has been shown to be, thus enabling those Commissioners, as named in that bill, to settle a debt and tax upon the people of Shelby County, without their consent? They are left without a remedy. While I do not claim to know all the law, nor any, very considerable part of it, but I think I know that with the records of the House in the shape they are in, showing everything regular on its face, the people are left without a remedy anywhere on earth, unless given by this Convention.

MR. FITTS ‑ Mr. President, if I am correctly informed, this is the forty ‑ fifth working day of this Convention.  In five days all of the time that was in contemplation when this body was called, when the people delegated it to come here will have been consumed. I think it may be fairly said that the work of this Convention is not half done and the time is nearly gone.  What a disproportion that brings up to the minds of the delegates: Out of fifteen Articles this Convention has to write, only four have been written. The paramount issue, the one this Convention was called to pass upon, the one the people had most in mind when we were sent here, will not have been touched at the hands of this Convention when the entire fifty days shall leave elapsed. Here today on the 45th day of this Convention after regulating local legislation, after an attempt to build a Chinese wall against local legislation, here we are engaged in the plainest project of local legislation that could be conceived by the mind of man. Why this Constitutional Convention is asked to stop and write down and make a part of this Constitution for our children and our children's children a proposition as to where the Court House shall be in Shelby County. Now do you think that people of Alabama at large are lying awake at night thinking of where the Court House of Shelby County is or ought to be? Do they care anything about it? Do you think they are caring anything about what Mr. So ‑ and ‑ so did in the Legislature?  They are not giving a rap about that. The people of this State want us, I believe, to stay here as long as it is necessary to write a fundamental Constitution, and to prepare things that are necessary to go into the Constitution. Now as long as we are here engaged in that task, I don't believe they want us to turn aside—

MR. ROGERS (Sumter) ‑ I would like to ask the gentleman a question. You state that the people of Alabama are not lying awake at night ‑ troubling about—

MR. FITTS – Unless the hot weather keeps them awake.


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MR. ROGERS (Sumter)  ‑ Troubling about the affairs in Shelby County. Don't you think if the people in Alabama were shown that such a proceeding as this went on in the Legislature that they would lie awake at night?

MR. FITTS ‑ I was just coining to that. I heard the expression fraud used and the expression that the people were overreached. It seems to me that these are fitter terms for courts of justice and that the Constitutional Convention has nothing to do with fraud. That is what the courts were inaugurated and brought about for to determine whether frauds were committed.  Will the Constitutional Convention adjourn itself into a court, if so what sort of a court will it be? A Justice Court, or what other sort of a court? What has this Convention to do with fraud? Gentlemen, how is this Convention to determine this, question? By a committee? If we are to brand sixty ‑ nine men who voted for this bill as fraud or fraudulent, then I say the Convention as a whole (if we are going into this matter), that this Convention ought to stop and hear the evidence and see whether we individually believe those gentlemen to have been guilty of fraud.

MR. REESE ‑ The gentleman says that 69 men voted for that bill. Is he able to say that he knows that anybody voted for it except the representative from Shelby county?

MR. FITTS ‑ I don't know whether anybody voted for it or not. Don't the Journal show that 69 voted for it?

MR. REESE ‑ Yes, sir.

MR. FITTS ‑ Then the Journal shows the record and is controlling. I was not there and if the Journal shows that 69 voted for it, it looks like they voted for it. I don't know anything about these charges of fraud or improper conduct. I don't think this is the tribunal to determine that. These good people of Shelby county are divided on this matter. The proposition that is made is the same as suggested in the inquiry from the distinguished gentleman from Montgomery when he arose at the beginning of this matter a few minutes ago and said: "Can it be true that this thing is to be written down into the Constitution of this State or is it to be considered a part of the schedule to it?" I don't think that this matter has any place in the Constitution of the State, nor acted upon by the people of the whole State—

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

MR. FITTS ‑ Yes, sir.

MR. O'NEAL ‑ If the Convention see fit to concur in the report of the majority, in your judgment could that act be a separate ordinance?


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MR. FITTS ‑ I think it ought to be a separate ordinance and only to be voted for in Shelby county and there ratified or not. Why ask the people of this entire State to pass upon this section in the Constitution in the fundamental law of their liberties of the whole State? It will be patch work that wilt bring derision upon the instrument itself.

MR. BROWNE ‑ Would you say the Henry county matter would bring derision upon the Convention to let the whole State vote upon that?

MR. FITTS ‑ I was not here on Saturday and am not responsible for what they did on Saturday. If I had been here I would have risen in my seat and protested against local legislation in this Constitution. We ought to stay here and make a Constitution and take as much time for deliberation upon it as is necessary : but we ought not to make local laws for Henry county, Shelby county or any other county; no matter how good the people are : and there are no better people than there are in Shelby county, those that live at Calera and Columbiana both, but this is an old sore and an old controversy. There have been charges and counter charges between them for years. They have held elections and had the same old controversy for years. You can't make people think alike by writing it in the Constitution when that county has its natural division of sentiment. People will divide upon it. The question whether the beautiful city of Calera or the more beautiful city of Columbiana should have the court house will be a sore question when you are dead and when I am dead, if the county stays geographically like it is. The frogs at Calera are hollering for the court house and the whip 'o wills at Columbiana are hollering to keep it there, the people are divided upon the proposition and you can't bring them together. What does Calera deed to complete its beauty but a court house? If you had a court house standing out there at that railroad crossing, beautifying that lovely landscape standing among the lime kilns, wouldn't it be a joy to every man who has to ride by there on the cars throughout the whole State? Columbiana also needs the court house and the people there look upon its location there with the same devotion and the same love and some desire to keep it. You can't settle this controversy for these good people in this way. You can't make peace where peace will not abide. They are divided upon this subject and they are going to stay divided and it will not help the Constitution by attempting to put this piece of local legislation in the Constitution of the State. Whenever you bring new provisions into the Constitution of the State, whenever you put new language into the Constitution of the State, you incur the weight of criticism and the weight of such objections that the new provisions bring. Whenever you leave the language of the Constitution as it was you have only to incur the fact that the people were not expecting a change upon a point where no change had


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been agitated and you have no additional weight to carry, but if you put this local legislation in this Constitution to be voted upon all over this State, it will be a matter that those parties who advocate the ratification of this Constitution must be constantly explaining to the people of Alabama and constantly explaining themselves for having put it in there.

MR. OATES ‑ I have never made any investigation of this controversy one way or the other, but since examining the report and the legal questions involved, I have an opinion about it which I will briefly express. Now I am unalterably opposed to this matter being brought in as a rider upon the Constitution, and I gather from what I have heard said, what seems to me an erroneous opinion by some in regard to the power of this Convention and work to be done. As this is now presented, if passed it certainly does go before the whole people of the State to ratify our action in abrogating an act of the Legislature, changing the location of the Court house at Shelby County. The people of other counties have got nothing to do with it, no interest in it, and they don't want to vote on the one side or the other. That of itself shows the impropriety of placing it here. Then awhile ago when my friend, the delegate from Tuscaloosa, was on the floor, some gentleman suggested an inquiry that if we pass a separate ordinance repealing or abrogating that law, would it have to be ratified by any people except those of Shelby County ? That is a very erroneous impression. Why, sir, this Convention is the legislative, judicial and executive department. It is the whole thing of the government of the State of Alabama. It is the entire people here through their delegates. When I address the gentlemen on this floor as delegates, I address them by what they are called in the enabling act, and I think higher than what is generally used in legislative bodies. They are delegates and arc elected by the whole people of the State to make a Constitution ‑ not only to make a Constitution, but they have the power to pass ordinances, laws or anything else which they see proper. If they want to reach this matter by way of a repeal of a law which has been passed, a separate ordinance is the thing, and if this Convention passes it, then they meet the question as to whether it goes to the Governor. It has been done in some cases, but I don't know that that is usual. It is a law and will have to stand and the people of the State have nothing to do with it. In considering the testimony, I admit that the testimony shows the clearest kind of a case, all the way through, in favor of that law.

It is very doubtful, to say the least of it, from the hasty examination I have made, but a court has great difficulty, in fact a court according to adjudications, has no power to set aside a solemn enactment of the Legislature upon evidence. It requires something more. They examine the records to see if the records sustain it as a legal enactment, but even if such were the case


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that this act could not be annulled by litigation they have pending because of the presumption in  favor of the records, if any difficulty of that kind that is presented, there is no trouble in that event, in my opinion, for the friends of the Columbiana controversy here to get a separate ordinance which would repeal that enactment of the General Assembly, or the Legislature, which, it seems to me, will be the proper way to go at it. Now, sir, such all idea seems to be that anything done by this Convention has got to be ratified by a vote of the people. Not so. This Convention has passed a resolution very properly and unanimously to submit the Constitution which it frames, back to the people of the voters, of the State of Alabama for ratification. That is entirely proper, and that is correct. Why, sir, let me say this Convention is not going to adjourn in the time which appropriations were limited by the General Assembly. You will have to go beyond that. What are you going to do about your compensation and expenses for it? You have got to resort to the flowers of legislation which is vested in this Convention.

MR. JONES (Montgomery) ‑‑ Is my friend of the opinion that this Convention has any power to appropriate money beyond the time that the Legislature has fixed that these delegates shall receive pay?

MR. OATES ‑ Yes, sir; if I have an opinion about any legal question, I know it has that power an entire power in that regard. (Applause). It has power to do what is proper to do. I am not afraid myself that it is going to exercise anything improper in this matter, and I don't care about consuming the time, sir ‑ I don't know the controversy between these parties. I know one thing that the controversy about the location of a court house in a county is always one of bitterness between counties. I don't know who is at fault or who is right about it. I don't undertake to settle that; but, sir, this proviso hitched on here to the Constitution of the State is entirely improper and should be stricken therefrom. If the gentlemen were to try it in a different shape by bringing up an ordinance to repeal the act, then it presents a very different question. But in its present shape, I cannot, for one, conscientiously vote for it. I don't care to say anything more.

MR. O'NEAL ‑ I asked the question of the gentleman– I propounded a question to the gentleman from Tuscaloosa which seems to have been misunderstood.  ‑ I agree with you as to the impropriety of incorporating; this as a rider on the Constitution. I asked this question: Could we pass a separate ordinance for the ratification of the people of Shelby County, or any other county? Wouldn't it be a law if we adopted it?

MR. OATES ‑ You can make it a law, or you can submit it to a vote of the people.


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OFFICIAL PROCEEDINGS

MR. O'NEAL ‑ Wouldn't it be simply a matter of grace upon our part as to whether we submitted it?

MR. OATES ‑ I have said the Convention had the power to make it an absolute law if they wanted to.

MR. BROWNE ‑ I desire to say in the opening of my remarks that the gentleman from Shelby (Mr. Beavers) introduced an ordinance similar to the one recommended by the gentleman from Montgomery and that the attorney for Calera, Mr. Martin, appeared before the Committee and spake against the ordinance and took the position that this Constitutional Convention had no right to pass a separate ordinance upon this question. I differed with the gentleman, but, as there seemed to be some doubt in the minds of some upon that subject, the Committee took the Calera view of the question and put it in the Constitution.

Now, Mr. President, every lawyer upon this floor who has ever studied constitutional law knows full well that an ordinance is as much a part of the Constitution as any other part of it. It makes no difference whether you call it a resolution or an ordinance, or a section or an article. If it is enacted by this Convention it is a part of the Constitution. The Calera people put the friends of Columbiana in this attitude: They appeared before the Committee and with a Pennsylvania case undertook to slow that this Convention had no right to pass the ordinance. Mr. Martin was asked if he denied the right to give relief to Columbiana from that fraudulent measure, if the relief was incorporated in the body of the Constitution. He admitted that we had the right to do that. But it makes no difference whether this relief is given by an ordinance or in the body of the Constitution. Members well know if it is passed in its present shape the Committee on Harmony can take this and all other matters out of the body of the Constitution and incorporate it in the schedule as separate ordinances, and that is the way it is done in the constitutions of most of the States.

Now, in answer to the gentleman from Tuscaloosa (Mr. Fitts) as to whether this is an innovation in a Constitutional Convention, I have yet to find a Constitutional Convention that has not enacted some local measure. Even the Constitutional Convention of 1875, although called by all act of the legislature expressly saying it should not pass separate ordinances, did not pass separate ordinances, and, to get around that, provision, they incorporated them in the Constitution.

Mr. President, here is the celebrated Shelly Court House bill, and I say, with all due respect that no man who differs with the majority, no intelligent man, can look at the bill with the earmarks of fraud on it and read the testimony of Mr. Dean himself and not come to the conclusion that this thing was passed in a most damnably fraudulent manner. He came out in the news‑


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CONSTITUTIONAL CONVENTION, 1901

papers and said in answer to a suggestion from Mr. Striplin, that the cover must have been changed, that this cover was on it when the members of the Committee signed it. His attention was then called to the fact that the tape and the brads were cut through the names of the Committee signing it and he got sick and it took a week for him to get well enough to come back and explain it, and the way he explained it was that this cover was once the cover to the Calera Land bill, and he took it off and pasted it on this before it was introduced. Talk about testimony, Mr. Striplin came here and without having; seen the Land Limit bill of Calera, when he took that bill up he said this was not the bill that was in that blank cover when I reported it. I am not certain but my recollection is it was a little bill about Calera land limits.

I asked the Secretary of State to go down to his office and get me the land limit bill and when he brought that Calera land limit bill, there were the tell ‑ tale evidences of fraud. The pin holes in that Calera Land Limit Bill are identical with the pin holes in the cover that is on this bill removing the county seat. The seven members whose names are signed on the book say they never signed such a bill. One of them says "I recollect, the bill I signed was a land limit bill." Mr. Dean admits that he and Albert Wilson went and got Mr. Martin to draw this bill and he says he immediately got the bill back to go and show it to Mr. Oliver and he kept it until he himself handed it to the Committee and got a favorable report. Then he says he went and got it again. "What for?" "To show it to Mr. Oliver." He says as a reason why it never got in print that he went and got the bill as soon as it was introduced and kept it until it was passed. Mr. Brown of the Brown Printing Company, swore that Albert Wilson came with Mr. Dean down to his establishment at the last of the session and Mr. Dean put this bill on the Calendar and came afterwards and took it off the Calendar, so that it never appeared can the Calendar.

MR. LONG (Walker) ‑ May I interrupt the gentleman with a question?

MR. BROWNE ‑ Yes.

MR. LONG (Walker) ‑ Is it not a fact that this same man Brown afterwards took that back and said it was Senator Oliver, instead of Mr. Dean?

MR. BROWNE ‑ Yes, Mr. Brown said he was not certain it was Mr. Dean but that it was a stout man. But lie did know Albert Wilson the man who owns the Calera Land Improvement Company, and Albert Wilson was sitting right there, and never took the stand to deny what was said. They did afterwards go to Mr. Brown and Mr. Brown wrote this letter:

"Montgomery, Ala., June 14, 1901.


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"Mr. Dean ‑ Having seen Mr. Oliver and after talking with him in regard to Shelby Court House bill, think it must have been himself (Mr. Oliver) instead of you coming to the office in regard to Calendar."

That makes no difference. He doesn't take a word back of what he says which shows the fraud. I don't care where you saddle that damnable fraud. Mr. Dean admitted in his testimony that he had told Mr. Oliver to pass this bill and that he did not propose to let the people of Shelby County know anything about it.

MR. LONG (Walker) ‑ May I ask the gentleman a question?

MR. BROWNE ‑ I beg pardon, but I only have two or three minutes and I decline to be interrupted.

Mr. Dean undertook to explain as to the cover. Here is a very carefully drawn cover and he said he did not want the bill to go without a good cover. But how is this cover on another bill which was offered by Mr. Dean? Why it is so thin you can read it from one side as well as from the other. It is drawn up by Mr. Dean in his own handwriting and the title is on the back. It is all right to introduce this bill without any cover, but this county seat bill he had to put another cover on. Here is the absolute badge of fraud. There is the land limit bill and the pin holes and the folds of the paper of that bill are identical with this cover now on the county seat bill, and Mr. Dean admits that that bill was once in this cover. When this bill was brought from the Secretary of State's office, no one thought it was more than one bill, but seeing some writing through it I pulled this part down and there is the land bill underneath. Two of these bills, identically the same, were introduced and Mr. Dean admitted when this Court House bill was introduced he went and got it. All that the Clerk has in the way of a memorandum is the number, they call it a jimmy, 1587. Then Mr. Dean kept it until he says he got a favorable report on it. All he had to do was to say I want to keep this bill 1587, you keep the title of it, and the Clerk would do it, and then he had the wrapper taken off of this bill and put the Court House bill in it so as to make the Journal show that the bill had passed.

Mr. Martin has filed a brief in which he states that the two clerks said that they had a distinct recollection of it. I have just exactly what they did say. When the bill was held up before them and when they say the memorandum on the back they said, "I recollect that that bill was passed on that day. But on cross examination Mr. E. F. Jones says: ‘Q. When do you remember to have first seen the bill?’ ‘A. I know only from seeing my journal which I made up on the day it was said to have passed.’ ‘Q. Have you any independent recollection?’ ‘A. No. sir; I could not swear positively that I say it, except that I know from the journal, and I know I compared the second reading from the bill.’


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CONSTITUTIONAL CONVENTION, 1901

And Mr. Martin in his brief tells you that he swore that he did.  Mr. J. C. Adams, the Clerk, on cross examination, said : “Q. I will now ask you if you, as Clerk of the last House, if you have any recollection of having read that Court House bill?” “A. No sir, I do not.”

Again on page 75: “Q. You have no independent knowledge of that bill.” “A. No sir.”

Now I move to lay the minority report upon the table.

MR. HEFLIN (Chambers) ‑ I would like to ask the gentleman a question.

THE PRESIDENT ‑ Does the gentleman yield for a question?

MR. BROWNE ‑ I do not withdraw my motion to table.

MR. GILMORE ‑ I would like to ask a question.

THE PRESIDENT ‑ Will the gentleman allow the gentleman to ask him a question?

MR. BROWNE ‑ I will if the House permits it by unaninious consent, but I will not withdraw the motion to table.

MR. GILMORE ‑ Did not Mr. Jones say that he would swear that that was his signature on the bill and that nothing could be passed fraudulently without the concurrence of a Clerk?

MR. BROWNE ‑ I do not know about that latter part. He said that was his endorsement on the back of the bill but on cross examination he said he had not recollection of it other than having; made the entry.

MR. GILMORE ‑ He said it was his signature?

MR. BROWNE ‑ Yes, sir.

MR. GILMORE ‑ And didn't he say that no bill could be passed fraudulently without the concurrence of a Clerk?

MR. BROWNE-I don't think he did.

MR. GILMORE ‑ I heard his testimony.

MR. BROWNE ‑ And we have his testimony, and every member of the Committee knows that Ed Jones stated he only recollected the bill by the signature.

MR. GILMORE ‑ I want to ask the gentleman if lie is not the attorney for the Columbiana people?

MR. BROWNE ‑ I am the kind of attorney for the Columbiana people that before God in Heaven I will always be against the perpetration of a damnable fraud of any kind. I am the at‑


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torney for the Columbiana people, but I am an attorney without a fee.

MR. GILMORE ‑ We have heard that before.

MR. BROWNE ‑ You asked the question and I answered it.

MR. GILMORE ‑ I don't know whether you are an attorney without a fee or not.

MR. HEFLIN (Chambers) ‑ I would like to ask the gentleman if this matter is not now in the Supreme Court for settlement?

MR. BROWNE ‑ I will say that this matter is not in the Supreme Court because I do not know a lawyer in the State of Alabama who is fool enough to get the Supreme Court of Alabama to go behind the Journal of the General Assembly. It is there upon the face of the bill itself, and the Journal imports absolute variety and you cannot go behind it.

MR. WILSON (Washington) ‑ I rise to a question of personal privilege.

MR. HEFLIN (Chambers) ‑ I am informed it is in the courts of Alabama for settlement in three different ways.

MR. deGRAFFENREID ‑ I call for the regular order. There is a motion to lay the minority report upon the table.

MR. WILSON (Washington) ‑ I rise to a question of personal privilege. On account of our relationship with the gentleman so frequently referred to, Mr. Albert Wilson of Montgomery, my brother, Mr. Wilson of Clarke and myself have had nothing to do with this matter. We have discussed it with no one. I do not know how the delegates feel. But the gentleman has seen fit to drag into his discussion my brother, Albert Wilson of Montgomery. And I would like to be accorded the privilege of answering for him the question why he did not go on the stand and refute the charges that he was a party to removing that bill from the calendar.

MR. BROWNE ‑ I make the point of order that the gentleman is not rising to a question of privilege.

MR. WILSON ‑ What reflects on my brother reflects on me. I have tried to demean myself decently in this matter and have kept out of it until I have been dragged into it.

MR. BROWNE ‑ I only state a matter that came before the committee, I have only given the testimony of the Brown Printing Company people.

MR. WILSON (Washington) ‑ I admit that and that is the reason I have had nothing to do with it.


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THE PRESIDENT ‑ In the opinion of the Chair the question to which the delegate from Washington is addressing himself is not a question of personal privilege. The question is on the motion to table.

MR. BROWNE ‑ On that I call for the ayes and noes. as follows:

The call for the aver was sustained and the roll call resulted

AYES.

Ashcraft,

Howell,

Pettus,

Barefield,

Howze,

Phillips,

Bartlett,

Inge,

Pitts,

Beavers,

Jones, of Bibb,

Porter,

Bethune,

Jones, of Hale,

Reese,

Blackwell,

Jones, of Montgomery.

Reynolds (Chilton),

Boone,

Kirk.

Robinson,

Brooks,

Knight,

Rogers (Sumter).

Browne,

Leigh,

Samford,

Bulger,

McMillan, of Baldwin,

Sanford,

Burns,

Malone,

Smith (Mobile),

Carnathon,

Martin,

Smith, Morgan M.,

Case,

Maxwell,

Spears,

Chapman,

Miller (Marengo),

Spragins,

Davis, of Etowah,

Miller (Wilcox).

Stewart,

Dent,

Murphree,

Stoddard,

deGraffenreid,

Norman,

Tayloe,

Foshee,

Norwood,

Thompson,

Grant,

O'Neal (Lauderdale),

Waddell,

Grayson,

Opp,

Weakley,

Greer, of Calhoun,

O'Rear,

Weatherly,

Handley,

Palmer,

Whiteside,

Heflin, of Randolph,

Parker (Cullman),

Williams (Barbour).

Henderson,

Parker (Elmore),

Winn.

Hodges,

Pearce,

 Ayes ‑ 74.

NOES.

Banks,

Glover,

Merrill,

Beddow.

Graham, of Montgomery,

Oates,

Byars,

Greer, of Perry,

Proctor,

Cofer,

Harrison,

Smith, Mac. A.,

Coleman, of Greene,

Heflin, of Chambers,

Sollie,

Davis, of DeKalb,

Locklin,

Walker,

Duke,

Lomax,

Watts,

Eley,

Long of Butler,

Williams (Marengo).

Fitts,

Long, of Walker,

Williams (Elmore),

Fletcher,

Lowe, of Jefferson,

Wilson (Wash'gton).

 Nays ‑ 30.


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ABSENT OR NOT VOTING.

Messrs. President,

Gilmore,

Mulkey,

Almon,

Graham, of Talladega,

NeSmith.

Altman,

Haley,

O'Neill, of Jefferson,

Burnett,

Hinson,

Pillans,

Carrion,

Hood,

Renfro,

Carmichael, of Colbert,

Jackson,

Reynolds, of Henry,

Carmichael, of Coffee,

Jenkins,

Rogers (Lowndes),

Cobb,

Jones, of Wilcox,

Sanders,

Coleman, of Walker,

King,

Searcy,

Cornwall,

Kirkland,

Selheimer.

Craig,

Kyle,

Sentell,

Cunningham,

Ledbetter,

Sloan,

Eyster,

Lowe, of Lawrence,

Sorrell,

Espy,

Macdonald,

Vaughan,

Ferguson,

McMillan (Wilcox),

White,

Foster,

Moody,

Willet,

Freeman,

Morrisette,

 

Wilson (Clarke).

So the motion to table prevailed.

During the roll call.

THE PRESIDENT ‑ The present occupant of the chair desires to state that he was offered retainers on both sides of this case and he does not feel warranted in voting on the question.

MR. CARDON ‑ I am paired with Mr. Sorrell. He would vote aye and I would vote no.

MR. GILMORE ‑ I am paired with Mr. McMillan of Wilcox, he would vote aye and I would vote no.

MR. MOODY ‑ I am paired with Mr. Almon. He would vote no and I would vote aye.

MR. SENTELL ‑ I am paired with Mr. Graham of Talladega. He would vote aye and I would vote no.

MR. WHITE ‑ Before I was elected a delegate to this Convention I was approached by the friends of one side of this controversy who offered me a fee. I was never employed, but on that account I feel a delicacy in the matter and would like to be excused from voting.

THE PRESIDENT ‑ Unless there is objection the gentleman will be excused.

MR. WHITESIDE ‑ I have an amendment I desire to offer.

The amendment was read as follows: "Amend Section 6, Artitle II, of the report of the Committee on State and County Boun‑


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daries by striking out the word ‘two ‑ thirds’ in the first line of said section."

THE PRESIDENT ‑ The question will be upon the amendment of the gentleman from Calhoun and the gentleman from Calhoun is recognized.

MR. WHITESIDE ‑ According to my conception this twothirds rule is in contravention of common right and subversive of Democratic principles. I think it ought to be stricken out and I move the previous question on the amendment and the article----

MR. HOWELL ‑ I hope the gentleman will withdraw that motion. Others of us have amendments we would like to submit.

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

THE PRESIDENT ‑ The gentleman from Calhoun moves the previous question on the amendment as offered by himself and the sections reported by the committee, and the gentleman from Lauderdale moves to lay the amendment of the gentleman from Calhoun upon the table and the question is on the motion to table.

MR. GREER (Calhoun) ‑ I call for the ayes and noes.

The call was not sustained.

MR. PEARCE ‑ I would like to hear the reading of the amendment.

THE PRESIDENT ‑ The amendment is to strike out the twothirds vote and leave it to be removed by a vote of the people.

MR. CHAPMAN ‑ Has it two ‑ thirds majority?

THE PRESIDENT ‑ It has not.

MR. SANFORD (Montgomery) ‑ I move to insert the word "majority."

MR. REESE ‑ I make the point of order----

THE PRESIDENT ‑ The gentleman from Calhoun moved the previous question and the gentleman from Lauderdale moved to table the amendment of the delegate from Calhoun and the question is on the motion to table.

A vote being taken the motion prevailed, the vote on division being 49 ayes and 38 noes.

MR. PEARCE ‑ I desire to offer an amendment.

THE PRESIDENT ‑ The question now is on the motion of the gentleman from Calhoun for the previous question.

MR. WHITESIDE ‑ I ask unanimous consent to withdraw my motion for the previous question.


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Objection was made to the gentleman withdrawing his motion, but by a vote of the Convention on division, by 65 ayes and 22 noes the gentleman was allowed to withdraw his motion for the previous question.

The amendment of the delegate from, Marion was read as follows: "Amend Section 6 by striking out the word two-thirds in the first line and inserting in lieu thereof the word ‘majority.’”

MR. PEARCE– Mr. President and gentlemen of the Convention—

THE PRESIDENT– If the gentleman desires to finish his remarks this morning he must compress them into a small compass. It is only one minute and a half until adjourning time.

MR. PIERCE ‑ I do not offer this amendment to reflect unkindly on the committee in any way as I am very fond of them politically, personally, and every other way. As I understood the chairman of the committee the other day he stated that they had fully safeguarded the troubles that have grown out of this court house question. If this kind of all amendment had been properly observed it would have complete safe ‑ guarded the troubles that have grown out of this court house question. I offer the amendment because it is in accord with Democratic principles and I hope it will be adopted. I do not want to consume the valuable time of this Convention in discussing a matter that discusses itself.

THE PRESIDENT ‑ The hour for adjournment has arrived and the Convention will stand adjourned until 3:30 and the delegate from Marion (Mr. Pearce) will have the floor.

__________

AFTERNOON SESSION

The Convention met pursuant to adjournment. there being 91 delegates  present upon the call of the roll.

Leave of absence was granted to Mr. Searcy of Tuscaloosa for today.

THE PRESIDENT ‑ When the Convention adjourned, it had under consideration Section 6 of the report of the Committee on State and County Boundaries, the gentleman from Marion, Mr. Pierce, had the floor.

MR. PIERCE ‑ Mr. President and gentlemen of the Convention, if there is any principle in the Democratic party, that I appreciate more than any other it is the principle of the majority ruling. It safeguards the will of the common people, as I look at it – and I don't use the word "common" as it is used in connection with the word "unclean" in the Bible. I mean the body of our people of


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good common sense, and the men who make the money to pay the taxes to build court houses. In my judgment, if you were to adopt this two ‑ thirds rule in reference to moving local court houses, so far as moving court houses is concerned the question would be about at an end.

Now, it was argued here the other day in debating the question as to quorum that one vote could elect a President, or one vote could elect the Electoral College which elected the President. Now, would any gentleman deny the people the right, by a majority vote to locate a court house when it was argued by gentlemen on this floor‑

MR. deGRAFFENREID– May I ask the gentleman a question?

THE PRESIDENT ‑ Will the gentleman yield for a question?

MR. PIERCE ‑ Yes, sir.

MR. deGRAFFENREID ‑ Wasn't that argument made when there was an attempt to change the jury law. to say that threefourths of a jury could bring in a verdict?

MR. PIERCE ‑ Yes, sir.

MR. deGRAFFENREID ‑ Didn't you vote for that?

MR. PIERCE ‑ On Saturday I did, but in a moment I repented of it and I have been repenting of it ever since, and I have asked the good Lord to forgive me for it, but I have doubts of whether he will ever forgive a man of my size and sense for doing such a thing. Now, gentlemen, it is well enough to safeguard these evils. We have had a fair demonstration of that in this Convention, but as I stated in the forenoon, if the principles of the great Democratic party that the majority have had no trouble in Shelby County. It was a want of that principle that caused them that trouble and not by having that principle, and with all due respect to this Committee, a man should never overreach the great principles of the Democratic party to ward off any particular damage or any particular trouble that might come up, as I have no doubt but what those principles properly crystalized into law would safeguard everything through. It is a conceded fact that the great duty of government is to protect the people in their rights, and prevent them from damaging one another. As I before stated, I have no doubt if you were to adopt this two ‑ thirds rule that the people would never be able to move court houses hereafter, and while I don't think that this Committee intentionally over ‑ reached the great principles of the Democratic party, I think it was certainly a little mistake they made, as the principles of the Democratic party, the majority ruling, will certainly meet all the safeguards that anybody would want. Now, gentlemen, I don't want


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to consume the time of this Convention. I wish to close and move the previous question with my amendment.

THE PRESIDENT ‑ The gentleman from Marion moves the previous question upon his amendment offered by him this morning. The question is, shall the main question be now put?

MR. WADDELL ‑ I ask the gentleman to withdraw that for a moment. I will renew it.

MR. PIERCE- ‑ If you will allow me to reinstate my motion, I will withdraw it.

MR. WADDELL ‑ I will renew the motion when I conclude my remarks.

MR. PIERCE ‑ Very well.

MR. WADDELL ‑ But our governmental system is not founded on majority rule. On the contrary. our whole fabric was woven upon a different theory altogether. Our forefathers saw      the evil of this rule and placed a check and true balance wheel upon its operation.  The President of the United States is not elected by a majority vote, and the Senate of the United States was created for the sole purpose of putting a check upon the House of Representatives and the veto power was given to the President in order that this check might be enforced both against the Senate and the House.  Then why should we attempt to enforce this rule here when the interests of our smaller subdivisions are so vital? Our State Government has recognized the principle, and has given this power to the Governor and to the Senate.  Our counties and county seats are vitally affected by this moving.  We vote a burden upon the tax payers of the county by a mere majority of one, and the probability is that nine-tenths of all of the tax payers in a county would be opposed to the removal.  We create an enormous debt upon them without allowing them a voice in the matter, whereas, if we placed it upon a two-thirds basis they would have a chance to protect themselves.  There are vested rights, Mr. President, in a county seat, the old county seats of the State, which should not be ruthlessly violated by a bare majority vote.  Is it right that those that have to bear the burden—

MR. HOWELL ‑ Will the gentleman permit me to ask him a question?

THE PRESIDENT ‑ Will the gentleman yield ?

MR. WADDELL ‑ No, not at present.

THE PRESIDENT ‑ The gentleman declines to yield.

MR. WADDELL ‑ Is it right that those that have to bear the expense and burden of the removal should have no voice in the matter? It is upon this theory that checks have been placed upon


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our National and State governments. It would be oppression if it were otherwise. In fixing a two ‑ thirds rate we give tax payers a chance and a voice in the election. We relieve to a great extent that feeling of anxiety which has been constantly manifesting itself in the Legislature of our State in the shape of local bills to permanently locate county seats, and put the people of the several counties at rest upon the question, without preventing where it is absolutely necessary a removal of the county seat. Wherever it is absolutely necessary to have a removal, there will always be twothirds of the people in favor of it. This matter of keeping the court houses of our State on wheels, so to speak, is the cause of more local strife than all the other questions with which our people have to deal. These evils were apparent to this committee, and in their wisdom they have solved the question, and in my opinion, Mr. President, they have wrought a great good to the whole people if this report be adopted. Let us rally to their support in their attempt to give to the people a government more in accordance with our institutions. Mr. President, I call for the previous question.

MR. GREER (Calhoun) ‑ I would like to ask the gentleman a question.

THE PRESIDENT ‑ Will the gentleman permit a question?

MR. WADDELL ‑ Yes sir.

MR. GREER ‑ I would like to ask the gentleman if his theory that it should take two ‑ thirds to locate a county seat does not give to the men who live at the county seat just twice as much power is those who are less fortunately situated?

MR. WADDELL ‑ It does not.

MR. PIERCE ‑ May I ask the gentleman a question?

THE PRESIDENT ‑ Does the gentleman yield to the gentleman from Marion?

MR. WADDELL ‑ Yes, sir.

MR. PIERCE ‑ I did not want to interrupt you, but in your speech you said our forefathers advocated the doctrine of a twothirds vote. I just want to know for information how long has it been since that crowd died.

MR. WADDELL ‑ The National Convention, I think recognized that.

MR. PIERCE ‑ The Government has not done it since I have been living.

MR. O'NEAL (Lauderdale) ‑ Will You withdraw your motion until I can offer an amendment?


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OFFICIAL PROCEEDINGS

MR. WADDELL ‑ I will with the consent of the gentleman from Marion.

MR. O'NEAL ‑ Will the gentleman from Marion consent to withdraw?

MR. PIERCE ‑ No sir, we cannot do that.

MR. WADDELL ‑ I call for the previous question.

MR. PIERCE ‑ Withdraw nothing.

THE PRESIDENT ‑ The previous question is demanded.

MR. HEFLIN (Chambers) ‑ Will the gentleman please withdraw that for the purpose of allowing an amendment?

MR. PIERCE ‑ No sir.

MR. O'NEAL ‑ I raise the point of order that the motion is not seconded.

THE PRESIDENT ‑ The question is, shall the main question be now put?

MR. PIERCE ‑ I call for an aye and nay vote.

THE PRESIDENT ‑ The question is, shall the main question be put?

MR. PIERCE ‑ I withdraw the request for an aye and no vote now, I want an aye and nay vote on the amendment.

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

MR. PIERCE ‑ On that I call for an aye and nay vote.

The call for the ayes and noes were sustained.

MR. HOWELL ‑ Wouldn't it be well to announce that amendment so the House would understand.

THE PRESIDENT ‑ The amendment is to strike out twothirds vote and inserting a majority vote.

Upon the call of the roll, the vote resulted as follows:

AYES.

Ashcraft,

Dent,

Howze,

Banks,

deGraffenreid,

Inge,

Blackwell,

Eley,

Knight,

Brooks,

Fletcher,

Leigh,

Bulger,

Foshee,

Miller (Marengo),

Cardon,

Grayson,

Miller (Wilcox),

Carnathon,

Haley,

Moody,

Davis, of DeKalb,

Harrison,

Murphree,

Davis, of Etowah,

Hinson,

Norman,


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CONSTITUTIONAL CONVENTION, 1901 

Norwood,

Parker (Elmore),

Waddell,

Oates,

Phillips,

Walker,

O'Neal (Lauderdale),

Sentell,

Weakley,

Opp,

Spragins,

White,

Palmer,

Stewart,

Williams (Barbour),

Parker (Cullman),

Thompson,

Williams (Elmore),

 Total– 45.

NOES.

Messrs. President,

Handley,

Pettus,

Barefield,

Heflin, of Chamber,

Pitts,

Bartlett,

Heflin, of Randolph,

Porter,

Beavers,

Henderson,

Proctor.

Beddow,

Hodges,

Reese,

Bethune,

Howell,

Reynolds (Chilton),

Boone,

Jones, of Bibb,

Robinson,

Browne,

Jones, of Hale,

Rogers (Sumter),

Burns,

Jones, of Montgomery,

Samford,

Byars,

Kirk,

Samford,

Case,

Ledbetter,

Smith (Mobile),

Chapman,

Locklin,

Smith, Mac. A.,

Cofer,

Long (Walker),

Smith, Morgan M.,

Coleman, of Greene,

Lowe (Jefferson),

Spears,

Duke,

Macdonald,

Studdard,

Foster,

Malone,

Tayloe,

Glover,

Martin,

Watts,

Graham, of Montgomery,

Merrill,

Whiteside,

Grant,

O'Rear,

Wilson (Wash'gton).

Greer, of Perry,

Pearce,

 Total ‑ 59.

ABSENT OR NOT VOTING.

Almon,

Greer, of Calhoun,

O'Neill (Jefferson),

Altman,

Hood,

Pillans,

Burnett,

Jackson,

Renfro,

Carmichael, of Colbert,

Jenkins,

Reynolds (Henry),

Carmichael, of Coffee,

Jones, of Wilcox,

Rogers (Lowndes),

Cobb,

King,

Sanders,

Coleman, of Walker,

Kirkland,

Searcy,

Cornwall,

Kyle,

Selheimer,

Craig,

Lomax,

Sloan,

Cunningham,

Long (Butler),

Sollie,

Eyster,

Lowe (Lawrence),

Sorrell,

Espy,

McMillan (Baldwin),

Vaughan,

Ferguson,

McMillan (Wilcox),

Weatherly,

Fitts,

Maxwell,

Willet,

Freeman,

Morrisette,

Williams (Marengo),

Gilmore,

Mulkey,

Wilson (Clarke),

Graham, of Talladega.

NeSmith,

Winn.


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OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ It appears upon casting up the vote, there are forty-five ayes and fifty ‑ five noes, and the motion to table is lost. The question recurs upon the motion of the gentleman from Russell, the previous question upon the amendment.

MR. OATES ‑ The motion is upon the original section as reported.

THE PRESIDENT ‑ On Section 6 and the pending amendment.

MR. OATES ‑ Will the gentleman from Russell withdraw the amendment?

MR. WADDELL ‑ If the gentleman from Marion withdraws it, I am willing.

By a vote of 52 ayes to 36 noes, the previous question was ordered.

THE PRESIDENT ‑ The question will be first upon the amendment offered by the gentleman from Marion, which is to strike out two ‑ thirds for the removal of the court house and insert a majority.

A vote being taken, the amendment was adopted, and on a further vote being taken, the section as amended was adopted.

MR. PARKER (Cullman) ‑ I move that the Article as adopted be engrossed and ordered to a third reading.

THE PRESIDENT ‑ The next order of business will be the consideration of the report of the Committee on Banks and Banking.

MR. FLETCHER ‑ I move that this article be considered section by section.

A vote being taken, the motion was carried.

THE PRESIDENT ‑ The Secretary will read the first section.

The section was read as follows:

Section 1. The General Assembly shall not have the power to establish or incorporate any bank or banking company or money institution, for the purpose of issuing bills of credit, or bills payable to order or bearer, except under the conditions prescribed in this Constitution.

On motion of Mr. Fletcher, the section was adopted.

Section 2 was read as follows:

Sec. 2. No bank shall be established otherwise than under a general banking law, nor otherwise than upon a specie basis.


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CONSTITUTIONAL CONVENTION, 1901

MR. OATES ‑ I have an amendment which I had intended to offer at the conclusion of the report, but it may just as well be offered here.

The amendment was read as follows: Amend Section 2 of Article IV by adding to said section the following: Provided, that any bank may be established with authority to issue bills to circulate as money in equal amount to the face value of bonds of the United States or of this State, county or city, convertible into specie at their face value, which shall before such bank is authorized to issue its bills for circulation be deposited with the State Treasurer or other depository prescribed by law, in an amount equal to the aggregate of such proposed issues, with power in said treasurer or depository to dispose of any or all of such bonds or a sufficient amount of specie to redeem the circulating notes of such bank at any time and without delay, should such bank suspend specie payment or fail to redeem its notes on demand.

MR. OATES ‑ That amendment can do no harm, and, under existing circumstances, would do no good. But we cannot say just what is to come, and I think it is well to have this provision in this Article. You all know that the State of Alabama in two of our State Conventions, declared in platform in favor of the repeal by Congress of the 10 per cent tax imposed upon the issues of State banks. When the last one was enacted, it was followed up by the national platform with a plank declaring in favor of its abolition. The question was up in Congress, elaborately discussed and commented upon and failed by the few votes of accomplishing a repeal.

MR. SAMFORD (Pike) ‑ Just a question for information. If we do not adopt the amendment you suggest, and put it in the Constitution, and the time should ever arise when we might have State banks, would not the Legislature of the State have authority to establish them without any Constitutional provision?

MR. OATES ‑ I don't think it would, because we are now considering a Constitutional restriction of authority upon the establishment of banks, and the Legislature would not have the power to establish banks contrary to its provisions, and, therefore, I offer this as an additional section.

I was proceeding to say that this 10 per cent tax originated in this way. When the unfortunate Civil War came on we had through all the States of the Union a similar system of banking, which was a deposit of one dollar for every three of the bank's circulation, and when specie payments were demanded, the bank were unable to respond and that culminated in loss. After the war, in 1866, the banking system which had been started for the purpose of maintaining the credit of the Federal Government was continued. In the struggle which the Federal Government was undergoing with the Confederacy, its credit had fallen to 50 cents on the


2182

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dollar, and Secretary Chase and all others well knew that when the credit of the Government of the United States went down to the low point which it bade fair to, the success of the Confederacy was an assured fact. So, in order to sustain it, Mr. Potter of New York wrote a letter to Secretary Chase, suggesting the national banking system. It was my fortune to see that original letter, which has been preserved. Mr. Chase sent for him and they advised together and framed the first National Bank Act. It was submitted to Congress, and, with a few changes, became a law. The object and purpose of it was to create a market for the bonds of the Government. It did create that market by authorizing the holders of those bonds to use them for banking. And to issue 90 per cent of their face value in circulating notes. They were purchaseable then at 50 cents on the dollar, but as soon as this vast market was made for them, they appreciated until they reached par and went above par. That resuscitated and sustained the credit of the Federal Government, and way; more potential in giving to it success in putting down the Confederacy than were the Federal guns at Gettysburg. It was the one stroke of all in the war that prostrated the Confederacy.

MR. WALKER ‑ Is it the purpose of your amendment to allow the establishment of State banks not upon specie payments?

MR. OATES ‑ I will explain that. At the close of the war these National Bank, had in circulation about $75,000,000. They expected to get much more. The system was intended for commercial purposes. It never had the necessary elasticity. It was simply intended to create a market for the bonds of the Federal Government, but they conceived the idea that they might extend its circulation to a vast amount, and this purpose was declared at the time the Federal policy was declared with John Sherman as Secretary of the Treasury, to retire nearly all the greenbacks, which was over $500,000,000. When that policy began, it was understood that there would be a necessity for a greater volume of paper money, and then the National Banks, desiring to supply that demand, brought influence to bear on Congress which imposed on the State Banks a 10 per cent tax, which they knew the State banks could not survive. It was tantamount to saying that no State bank should issue these note, although it had been decided more than fifty years before in the Kentucky case that the States had a right to have banks of issue and it went on to discuss that at greater length than I have time to refer to. That was the object and purpose of that 10 per cent. tax and it completely squelched the State banks, as much so as if the Congress of the United States had had the power and had passed an act declaring that no State should have any such banks. It taxed the State banks out of existence. Now the question of the repeal or modification of that tax is not settled. It is the only reminder of the acts of the Federal Govern‑


2183

CONSTITUTIONAL CONVENTION, 1901

anent in robbing the States of the rights they had under the Constitution which still remains in full force and I trust the day is not far distant when men will be in the Congress who will see the injustice of it and repeal or modify that odious tax.

Now should that be done before this Constitution ceases to be the organic law of Alabama, we may want to avail ourselves of it. This amendment is not obligatory but it provides that banks may be created as banks of issue with a deposit of solvent bonds convertible into specie at their face value, whether of the United States, the State of Alabama, or any county or city, an equal amount dollar for dollar with the issue of such bank or banks, with the power in the depository on the failure any tithe of any bank to redeem its bills in specie to sell and convert those bonds into a sufficient amount to redeem them. Other parts of this ordinance requires that every bank shall redeem its bills in specie on demand. I want that to be in operation, but at the same time it is perfectly practicable to incorporate this and let it remain so as to be of use should the time come, as I hold it may when you can broaden your basis of circulation with perfect security and make bonds which are convertible into specie the source and basis of banking and will add to your circulation on as safe a basis as the national banking system. I think it would be of such elasticity as to furnish the State with what money is needed. It will expand and contract according to the demand and will add to our internal wealth.

MR. ROBINSON ‑ Is there any provision in the Constitution which prevents the Legislature from doing this?

MR. OATES ‑ When you adopt this other provision you can do it?

MR. ROBINSON ‑ What Section do you refer to?

MR. OATES ‑ The Section which declares that no bank shall be established except on a specie basis. I want to make it on a bond basis convertible into specie.

MR. WALKER ‑ Does the gentleman construe the provision as contained in this Section as anything more than a requirement that any bank shall meet its notes on demand in specie.

MR. OATES ‑ No bank can be established except on a specie basis.

MR. WALKER ‑ But is not the extent of that requirement that it shall meet its notes in specie on demand?

MR. OATES ‑ But I am inclined to think you had better have more room for the establishment of such a system if you can get it. It does not do any harm but leaves it to the Legislature to put it in force.


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OFFICIAL PROCEEDINGS

MR. FLETCHER ‑ We had hoped that this would be one Article which would escape the pruning knife that has been so freely used in this Convention. The distinguished gentleman from Montgomery for many years in Congress endeavored to have this tax on State banks repealed, but it was not done. As long as that tax remains we are hampering the Constitution and accomplishing no purpose. We think the Legislature is perfectly competent and if at any time this law imposing the tax is repealed the Legislature can take the necessary action relative to State banks. I can see no purpose or object or anything this amendment accomplishes and I therefore more to lay it on the table.

A vote being taken, by 38 ayes to 50 noes, the House refused to table the amendment.

MR. OATES ‑ I now move the previous question on my amendment to this Section.

A reading of the amendment was called for and it was read as follows:

Amend Section 2 of Article XIV. by adding the following: Provided, that any bank may be established with authority to issue bills to circulate as money in equal amount to the face value of bonds of the United States or of this county or city‑

MR. COLEMAN (Greene) ‑ A circulation based on city and county bonds?

The reading was continued as follows:

Convertible into specie at their face value, which shall, before such bank is authorized to issue its bills for circulation, be deposited with the State Treasurer or other depository prescribed by law, in an amount equal to the aggregate of such proposed issues with power in the said treasurer or depository to dispose of any or all of such bonds for a sufficient amount of specie to redeem the circulating notes of such bank at any time and without delay, should such bank suspend or fail to redeem its notes on demand.

MR. O'NEAL ‑ Do you intend that the bonds of a city shall be used regardless of their value?

MR. OATES ‑ No, sir; and that is not the language.

MR. O'NEAL ‑ It says "city bonds." You can get city bonds in this State not worth ten cents.

MR. OATES ‑ There is no such proposition there.

MR. SAMFORD (Pike) ‑ I rise to a point of order.


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CONSTITUTIONAL CONVENTION, 1901

MR. OATES ‑ If the gentlemen will just let me alone a minute and contain themselves, I will straighten that out, I ask unanimous consent to strike out the words "county and city."

A vote being taken the previous question was ordered.

MR. deGRAFFENREID ‑ I would like to know if that amendment says "United States bonds and bonds of this State or of a State?

THE CLERK ‑ Of this State.

MR. O'NEAL– At their par value?

THE CLERK ‑ At their face value.

A vote being taken the amendment was adopted and a further vote being taken the section as amended was adopted.

The Clerk then read Section 3 as follows:

Sec. 3. All bills or notes issued as money, shall be at all times redeemable in gold or silver and no law shall be passed sanctioning, directly or indirectly, the suspension of any bank or banking company of specie payment.

A vote being taken the section was adopted.

The Clerk then read Section 4 as follows:

Sec. 4. Holders of bank notes and depositors who have not stipulated for interest, shall for such notes and deposits, be entitled in case of insolvency, to the preference of payment over all ether creditors.

MR. WATTS ‑ I have an amendment.

The amendment was read as follows: Amend Section 4 of the report of the Committee on Banks and Banking by adding at the end thereof the following: "Provided, this section applies to incorporated banks only."

MR. WATTS ‑ My reason for offering that is this. This section in the old Constitution has, can several occasions within the last year or two, been the subject of much discussion amongst the lawyers throughout the State as to whether it applied to incorporated banks or all banks. This amendment is simply to remove that question in the future.

MR. HARRISON ‑ I desire to ask the delegate from Montgomery what good reason there is for excluding private banks. not incorporated under the provisions of this Article?

MR. WATTS ‑ Because the whole section applies to incorporated banks and not to private banks.


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OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The Chairman of the Committee indicates that the Committee is willing to accept the amendment and the question will be on the adoption of the amendment offered by the gentleman from Montgomery.

MR. HARRISON ‑ I trust that amendment will not be adopted. If it needs amendment, according to my views it should be amended so as to include all banks and bankers whether incorporated or not. As stated by the delegate from Montgomery, I am aware that there has been a difference of opinion among lawyers as to the proper construction, and in view of that I would like to offer an amendment saving that all bankers whether incorporated or not are subject to the provisions in this Constitution.

MR. WILLIAMS (Marengo)‑ I have such an amendment already prepared.

MR. HARRISON ‑ Then I will yield for you to offer it.

The amendment referred to was sent up to  the Clerk.

MR. HARRISON ‑ I think this protection should be given to the depositors of all banks, whether incorporated or not.  When anybody sets up a bank and receives deposits, why should they be exempt from the law. They go under the name of a bank and many innocent people go there to deposit and the effect of this amendment offered by the gentleman front Montgomery would be to take away any protection from the depositor in one of these private banks, a bank not incorporated. It seems to me of all banks on earth they should be made responsible and made to come under this provision of the law.

MR. WATTS ‑ Don't this whole article apply to incorporated banks. Down in another section here it says the State shall not be a stockholder in any bank. Can any construction be put on that save that it is all incorporated bank?

MR. HARRISON ‑ If it is susceptible of that construction. I want to amend it so as to make it apply to all banks. I can see no reason why incorporated banks should be held up to this accountability and private banks not.

MR. WATTS ‑ But does not the whole article apply to incorporated banks?

MR. HARRISON ‑ Not necessarily.

MR. WATTS ‑ Does not the amendment I offer make clear what the purpose of the article is?

MR. HARRISON ‑ But you do just what I don't want done.


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CONSTITUTIONAL CONVENTION, 1901

The amendment of the delegate from Marengo (Mr. Williams) was read as follows: Provided this section shall apply to all banks whether incorporated or not.

MR. HARRISON– That is what I want.

A vote being taken the amendment of the delegate from Marengo, which was offered as a substitute for the amendment the delegate front Montgomery (Mr. Watts) was adopted. A further vote being taken the said amendment was adopted as all amendment to the section, and a still further vote being taken the section was adopted.

Section 5 was then read as follows:

Sec. 5. Every bank or banking company shall be required to cease all banking operations within twenty years from the time of its organization, (unless the General Assembly shall extend the time), and promptly thereafter close its business; but shall have corporate capacity to sue and shall be liable to suits until its affairs and liabilities are fully closed.

On motion the said section was adopted.

Section 6 was then read as follows:

Sec. 6. No banks shall receive directly or indirectly a greater rate of interest than shall be allowed by law to individuals for lending money.

On motion the section was adopted.

Section 7 was then read as follows:

Sec. 7.  The State shall not be a stockholder in any bank, nor the credit of the State ever be given, or loaned, to any banking company, association or corporation.

MR. WATTS ‑ I have an amendment.

The amendment was read as follows : Amend Section 7 of the report of the Committee on Banks and Baking as follows: Strike out the words "the State shall not" and in lieu thereof insert “neither the State nor any political subdivision thereof shall, and insert the word "shall" between the word "nor" and the words "the credit" in line 1.

A vote being taken the amendment was adopted and a further vote being taken the section as amended was adopted.

Section 8 was then read as follows:

Sec. 8. The General Assembly shall by appropriate laws, provide for the examination by some public officer, of all banks and


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banking institutions and trust companies engaged in banking business in this State.

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

The amendment was read as follows: Amend Section 8 of Article XIV by adding at the end of the section the following words: "And each of such banking companies or institutions shall through its president or such other officer as the General Assembly may designate under oath make a report of its resources and liabilities twice a year."

MR. DAVIS (Etowah) ‑ I do not desire to comment at length on that amendment. It seems to me its wisdom is apparent. Where people are depositing their money in a bank they have a right to know the standing of that bank, its resources, and liabilities, and I can see no reason why a State bank should not be under the same rule in that respect as a national bank. I feel that the amendment would add strength to the banking institutions of the State.

MR. ASHCRAFT– I desire to offer a substitute for the pending section and amendment.

The substitute was read as follows: Amend Article XIV as reported by the committee by striking out Section 8 thereof.

MR. ASHCRAFT ‑ The Constitution does not prohibit the Legislature from enacting such regulations for State banks and private banks as it may deem proper from time to time. I think it is proper to leave this power in the hands of the Legislature. So far the Legislature has. not deemed it "wise although the question has been several times agitated in the Legislature, to require State banks to submit to an examination. There is not, relatively speaking a great number of State banks and the expense incident to their examination in any manner that would provide additional security for their depositors and stockholders would be very great. An examination that would not be of that thorough character to give proper information about the bank would be no examination at all, as has been demonstrated several times. During the panic the percentage of failures of national banks was greater than the percentage of failures among the private banks. Now as the legislatures not prohibited at all in this regard, if the public at any time should demand a provision for the examination of State banks, such a provision would be enacted. I don't think we should put it in our organic law because if it should prove unsatisfactory to our people there would be no way to get out of it.

MR. SANFORD (Montgomery) ‑‑ They could amend the Constitution.

MR. ASHCRAFT ‑ But that is very difficult, as we have learned. I therefore trust the amendment will prevail.


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MR. MALONE ‑ I wish to oppose the amendment of the delegate from Lauderdale. If there is anything in this State that we should do it is to open a way for State banking institutions for the people of Alabama. We are getting away from the conditions that prevailed years back and a great many of our people are accumulating money and it will be only a short time before we will have a lot of savings banks. I submit that the average depositor is completely at the mercy of a bank. He cannot go to the bank and say you must show me your books. He doesn't know a thing in the world about them. So far as the legislature is concerned we all know that only a  few years ago when a bill similar to this was up and came near passing the private banks of the State headed by  a prominent institution in Montgomery, and assisted by myself, for which I got caught afterwards, defeated the measure. There is no use talking about members of the Legisture, for when three or four banks from a representative's district come down on him he can hardly help voting with them.

MR. ROGERS (Sumter) ‑ Is it your opinion that the examination of the National banks we now have are a benefit or injury to the public?

MR. MALONE ‑ It is a decided benefit, and I speak from experience.

MR. ROGERS (Sumter) ‑ Would not all examination of any bank, to be beneficial, have to take up the account of each individual depositor as well as debtor, and is this ever done?

MR. MALONE ‑ Sometimes.

MR. ROGERS ‑ And, therefore, the report of the examiners deceives the public more often than it gives them information in an examination of a bank thoroughly you will have to take up the account of every individual depositor and creditor of the bank to see how he stands, discount his notes and everything.

MR. MALONE ‑ These reports made by the examiners do not go to the public, unless it is shown by the examination that the bank is insolvent. These five annual statements are made up and sworn to by the officers of the bank and  printed. The examination that the examiner makes never becomes public and it is one of the best safeguards, possible.

MR. HENDERSON ‑ In your opinion does the average man know anything about the solvency or insolvency of a bank or are they looking to its published statement?

MR. MALONE ‑ When made by an officer, yes sir.

MR. HENDERSON ‑ How can an average man tell from a statement whether a bank is solvent?


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MR. MALONE ‑ The bank examiner can report that himself.

MR. HENDERSON ‑ That would have to be based upon the idea that the examiner is familiar with the local conditions and with the value of the conditions?

MR. MALONE ‑ I certainly would presume there were competent officers at the head of it. Just the other day there was a bank in the city of Buffalo, the president of which had been president of the Bankers' Association of the United States, who stood high and whose opinion was regarded as authority. Yet the bank examiner examined his bank and closed it up, and, as a matter of fact, by closing that hank saved much money to the creditors.

MR. HENDERSON ‑ Is it not your opinion that the adopttion of this section will have a tendency to drive depositors from State and private banks to National banks for the reason that State and private banks would be examined by State officers, and the National banks by National bank examiners?

MR. MALONE ‑ If the gentleman gets too close I will have to call taw on him. I think unquestionably it will be a benefit to have these examinations. I do not believe it will help the men not examined. Unquestionably it will bring more deposits to those that are examined, and I submit that it is worth $20 for any man to have an expert go through your business.

MR. COLEMAN (Greene) ‑ You stated just now that you and some others at the last term of the Legislature, or the term just before that, succeeded in defeating a law similar to this?

MR. MALONE ‑ In the Legislature.

MR. COLEMAN (Greene) ‑ At that time you were running a private bank? And now you are running a National bank?

MR. MALONE ‑ Yes, sir; and those are my views exactly. One of my stockholders came to me and said: "You are making a mistake, you are putting your competitor across the street where he will get as much business as you will. What do you mean?" It is not necessary for me to call names. He said for that very reason you had better let it alone. My reply was that I came here to give the people of Alabama the benefit of my experience in any line and not to attend to my own business. I can take care of that. I have been in both of these line. I have only been in the National for a year and a half, and what I am trying is to get the little banks where men who put away their little savings will always be able to get then. You all know that the first little start you get is the hardest.

MR. HARRISON ‑ Does the article reported by your committee contemplate an examination of the National banks by State inspectors?


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MR. MALONE ‑ Certainly not.

MR. HARRISON ‑ Would not the words bear that construction ?

MR. MALONE-  But the United States would not permit that.

MR. HARRISON ‑ Then you had better guard it.

MR. MALONE ‑ The United States law would not permit it.

The delegate from Henry (Mr. Malone) moved the previous question, but withdrew it for Mr. Henderson.

MR. HENDERSON ‑ I desire to say a few words on the pending section. This is a matter, it seems to me, entirely for legislative enactment and has not place in the Constitution.

If I properly understand the purpose of a Constitution, it is for restricting and limiting the bounds within which the legislative machinery may work, or rather to say what the legislature shall not do, than to say what it shall do. All rights which the people do not reserve in their Constitution are delegated to the General Assembly to legislate upon. By the adoption of this Section you say to. the legislature, you shall do something which the Constitution does not forbid you from doing. In my opinion the adoption of this Section means the creation of new and additional officers without benefit to the people. People put their money in banks not because the banks are examined. but because either of confidence in the management of those in charge or from personal or political influence. Examinations as we all know, do not prevent bank failures. Possibly most of you know there were more national bank failures in the panic of 1893 than there were failures of State and private banks.

If the purpose of this Section is to protect the people against bank failures and I suppose this to be its purpose then it should be constructed as to provide a board of examiners to issue license only to such persons to engage in the banking business who, in the opinion of the board have all the requisite fitness to successfully conduct such business.

MR. MALONE ‑ Is not that a matter purely one for legislative enactment?

MR. HENDERSON ‑ This section, yes, and that is what I am speaking for. I say the legislature has a right to provide for the examination of State banks without the Constitution saying they shall or may do it.

MR. MALONE ‑ We want to make it mandatory.


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MR. HENDERSON ‑‑ You want to legislate. How many men in this Convention can tell the solvency or insolvency of a bank by looking at a published statement. You can see the amount of cash on hand, amount of deposits and loans but of the character of loans you cannot judge and a State Bank Examiner would know little more. The people do not like to have their private affairs pried into by State officers. The adoption of this section would cause the shifting of deposits from State and private banks to National banks over which State officers would have no control and thereby be the means of discrimination against State and private banks and in favor of National banks. There are a few things which the people want at the hands of this Convention and as I understand them they are these: 1, Limiting the right of suffrage; 2, less frequent elections; 3, limiting the Legislature in the passage of local bills; 4, relief from unjust discrimination in freight rates; 5, a division of the school tax fund in proportion as it is sail by the two races. They may have wanted some others but I am sure they wanted no new offices and I do not think they wanted any material changes in the present Constitution aside from those I have mentioned. Aside from the pledge imposed by the party platform I was pledged to my people on two other propositions and they were: first, support no measure in this Convention whereby the salary of State officers would be increased or fixed in the Constitution. The other was to support no measure whereby the number of State officers would be increased. On account of this pledge, Mr. President, I voted against the measure before this Convention in the early session to increase the salary of Governor.

Mr. President, the spirit of governmental paternalism is growing stronger. The tendency is to try to accomplish too much by legislation. Men expect and depend too much on government to aid them in their business. No people ever was nor ever can be legislated into prosperity. These are some of the reasons why I think this section of the report on banking should not be adopted.

MR. COLEMAN ‑ Mr. President and delegates of the Convention : The discussion of this question shows how closely people look after their own interests. Every officer of a national bank in this Convention who has spoken thus far favors the adoption of Section 8. Those who are interested in, State banks are opposed to it.

I have persistently voted during the sittings of this Convention against every enactment which properly belongs to the Legislature, and for that reason, continuing to do so, shall vote for the substitute offered by the gentleman from Lauderdale. Put while that is so, it is due to the Convention to say that the examination proposed in this Section is really putting a clog or a burden on the State banks and putting them at a disadvantage as compared with


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a National bank. Really a bank is judged by its officers and directory more than anything else. The people put their money in these banks according to their confidence in the business capacity, solvency and integrity of those who manage banks.

MR. MALONE ‑ May I ask the gentleman if he is a private banker?

MR. COLEMAN ‑ I am going to tell it all. I do not have to be asked. I am speaking about what I know. The big failure the other day occurred immediately after a report by a National Bank Examiner and not before. It is utterly impossible for any ordinary examiner not acquainted with local conditions and securities to examine a bank and report with any certainty upon its condition.

MR. WALKER ‑ Is it not a fact that the big failure in Buffalo occurred in a few days after a report by a National Examiner certifying the condition of affairs of the bank and that they were all right?

MR. COLEMAN ‑ That is just what I stated a few moments ago, and there are more failures of national banks than of State banks proportionately.

MR. MALONE ‑ Is it not a fact that that very failure was caused by the report of the Examiner?

MR. COLEMAN ‑ On the contrary the Examiner reported it all right. But so far as you are concerned, that has been demonstrated. You opposed this when you were interested in the State bank and as soon as you get in a National bank you advocate it. That is enough on that proposition.

MR. MALONE ‑ Let me ask you---

MR. COLEMAN ‑ I cannot yield any more. I do not want my time consumed.

What we object to is increasing fees and charges on your State institutions. If they voluntarily want it the Legislature can at any time without this provision adopt just such a law as is provided for here. It is purely a legislative matter and ought not to be in the organic law. It is a question of fees and charges.

The gentleman asked me if I was interested in a State bank, and I say yes, but I am telling you what I know and I am speaking to you candidly about it. It is the confidence the people have in the integrity and solvency of your directors that gets the deposits in the bank. There is an opinion in the country that because a National bank has bonds deposited it is more secure than a State bank, but that does not rest upon any solid foundation.


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Now I want to say to the delegates here, if you, increase the fees and charges against banks by examination, you are bound to have officers to do this examining. You create new offices. If it should become necessary, let it be done, but I contend that now there is no necessity for it and I do think the delegates to this Convention ought to keep in mind the great principle that we are framing an organic law and we are not here legislating purely.

MR. MALONE ‑ I move to lay the substitute on the table.

A vote being taken on a division, by 61 ayes to 23 noes the substitute was laid on the table.

MR. O'NEAL ‑ I now move the previous question on the Section and the amendment.

A vote being taken, the main question was ordered.

MR. HEFLIN (Chambers) ‑ I move to table the amendment and the original Section.

THE PRESIDENT ‑ It is too late after the previous question has been ordered. The question is on the adoption of the amendment of the delegate from Etowah.

MR. HEFLIN (Chambers) ‑ I hope the Convention will indulge us just a moment. A good number of delegates voted a moment ago thinking they were striking out this Section.

THE PRESIDENT ‑ Those same delegates will be able to express their will on the adoption of the amendment.

MR. deGRAFFENREID ‑ On the adoption of the amendment I call for the ayes and noes.

The call was not sustained, and a vote being taken the amendment was adopted.

MR. HARRISON ‑ If this matter is adopted it ought to be correct, and it ought not to be left in language that would apply to national banks. The language is very broad.

MR. O'NEAL ‑ The great argument of the National bank is that they are required to be examined.

MR. HARRISON ‑ By National bank examiners, but they are here required to be inspected by State officers. I favor the report but this matter ought to be corrected.

MR. BOONE ‑ I rise to a point of order. The previous question has been ordered and it is not debatable.

A vote being taken the Section as amended was adopted.

MR. ROGERS ‑ I vote aye for the purpose of moving a reconsideration of this Section tomorrow morning.


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MR. SAMFORD (Pike) ‑ I was rising to give notice for that same purpose.

MR. REYNOLDS (Chilton) ‑ I have an additional Section to offer.

The amendment was read as follows:

Amend the report of the Committee on Banks and Banking by additional Section, to be known as Section 9 as follows: Sec. 9. If necessary for the payment of any creditor or depositor of an incorporated bank, each holder of stock therein shall be held liable for double the amount of stock held by such stockholder in said bank.

MR. REYNOLDS (Chilton) ‑ I was a member of the Committee on Banking and, I reserved the right when the Committee reported to offer this amendment at the proper time. It was not the views of the entire Committee, but some of the Committee agreed with me on this question.

When men associate themselves together and organize a bank and hold it out to the world as a place to receive deposits and to take care of the people's money, I see no reason why the law should not at least make them partly responsible for failures when the people's money is squandered. A corporation can be organized with $25,000 of capital and pay the President $5,000 and the Secretary $4,000 and in a few years they have nothing left but a tin box. An advertisement of a bank carries with it that it is a place of safety to deposit money, and banks of an insolvent or unsafe character generally get the money of poor people and widows. Nobody who investigates puts their money there.

It is an everyday occurrence that Presidents of banks are skipping out. and when people put themselves up as having a bank, a place of deposit, the law cannot be too strong in taking care of the money that is deposited with them. People put their money in a hank without hope of reward, they draw no interest and they place it there simply for safety, that it may be taken care of, and the money that is generally lost is money belonging to people who can the least afford the loss. Business people for two years before the failure of a bank have been keeping clear of that bank, and it is only the money of poor people and widows that is left there to be lost, and I can see no reason why the law of our State should not at least make stockholders of a bank partly responsible for the money deposited in their bank.

MR. KNIGHT ‑ I move to lay the amendment of the gentleman on the table.

A vote being taken by 49 ayes and 30 noes on a division the amendment was tabled.


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MR. WILLIAMS (Marengo) ‑ I have an amendment to the Article.

The amendment was read as follows: "Amend Article on Banks and Banking, by adding Section — . That the provisions of this Article shall apply to all banks, trust companies and individuals doing a banking business, whether incorporated or not.

MR. FLETCHER ‑ I move to lay the amendment upon the table.

Upon a vote being taken, a division was called for, whereupon a reading was demanded.

MR. WILLIAMS (Marengo) ‑ It has been suggested that I insert in there "except National banks." If I can get unanimous leave to insert "except National Banks," I would like to insert it.

MR. PARKER (Cullman) ‑ A point of order. The vote has been put, and a division called for.

Upon a vote being taken, the motion to table was lost.

MR. O'NEAL (Lauderdale) ‑ I desire to offer an additional section.

THE PRESIDENT ‑ The question is now on the section offered by the gentleman from Marengo. The House has declined to table the section.

MR. WILLIAMS (Marengo) ‑ I ask unanimous leave to insert the words "except National Banks."

The leave was given, and the amendment made.

THE PRESIDENT ‑ The question is upon the adoption of the section offered by the gentleman from Marengo.

MR. WINN ‑ It seems to me that the action of the Convention in reference to banking in this State and State banks, is somewhat hasty and inconsiderate. Let's take it practically and see what is the result. You talk of doubling the responsibilities of the stockholders of State banks. Let us see what the operation of such a provision is. Here is a State bank, organized probably a year ago, and the stock was subscribed and issued under the laws of the State, and now you put in the Constitution a provision that the responsibilities of those stockholders shall be double the amount that they have subscribed.—

MR. WILLIAMS (Marengo) ‑ A point of order. The gentleman is not speaking to the amendment at all.

THE PRESIDENT ‑ The point of order is well taken.


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MR. deGRAFFENREID ‑ I rise for the purpose of opposing the amendment offered by the gentleman from Marengo. His amendment makes section 8 applicable to all banks doing business under the State law in Alabama, whether such banks are corporations or are conducted by individuals. The result of that amendment, if adopted, will be to drive all individuals out of the banking business. So far as I am concerned, I am entirely disinterested in the matter. I am somewhat interested in a State bank, which is a corporation, but I represent no one who is doing a banking business on his individual account. However, we all know that people do not like to have their private affairs too thoroughly investigated by public officers. We know for instance, that the back tax commission law has not been a popular measure in Alabama, because the people resented the idea that their affairs were to be gone too thoroughly into by the officers of the State. If you pass this law, you drive every individual in Alabama out of the banking business. There are a good many people in this State who own property other than that which they have invested in the banking business. They have other business interests besides the banking business in which they may be engaged. I have in my mind a citizen of well recognized financial ability, who resides in the town in which I live. He has a bank and does a banking business. Part of his assets are invested in that bank, but a large part of his assets are not invested in the bank. He may owe debts other than the debts that are due by him on account of the bank. In order to get an intelligent report as to his condition, you would not only have to ascertain how much he owed as a banker, but how much he owed as an individual to other people, and you would have to find out not only how much money he had invested in the banking business, but what he had invested in other enterprises, in order to make a report upon his financial standing and responsibility.

It does seem to me that whenever you get to that pass in this State. whenever you get to the point that a man, in order to engage in a private enterprise, which is a lawful business, must report his affairs to the State twice each year and get into the public prints, you absolutely drive him out of business, because the banking business is not more lucrative than a great many other characters of business in this State.

MR. O'NEAL ‑ If it is a private business, does he not receive the moneys of the public, just like a National bank, and ought not the public to be entitled to some protection, if he has a private bank, or an incorporated bank, or a National Bank?

MR. deGRAFFENREID ‑ The reasons for the establishment of examiners for national banks is not applicable to an individual who engages in the banking business. In the first place, as we


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know the national banking law authorizes the bank which is conducted under that law to issue bills which circulate as money. It goes further anal requires that the stockholders in the bank shall be liable in double the amount of their stock, all because the government of the United States itself is more or less involved in the financial integrity and proper conduct of the bank. But when you come to the individual, when you come to the man that lives in a community, the deposit is made with him on account it may be of personal friendship, on account of personal association or on account of the manner in which he is regarded by his neighbors. He is not made a depository as is the national bank for the public funds, because every national bank that exists in the United States is liable to be made a depository of public funds. For that reason its officers are quasi public officers, and as the institution is in fact a public institution, it becomes the government which called it into existence, and gave it authority to act, to see that the bank is properly conducted, as far as it can do so. With an individual engaging in a lawful business, it has never been heard of anywhere I do not believe, that any public officer should pry into his private affairs more than into the private affairs of any other individual in the Commonwealth. I will state that we have in a great many small communities in this State individuals who conduct a small business, that is in reality a banking business, who do good in the community where they live, but if you adopt this law, you will drive them out of that business and for that reason I am opposed to it, and I move to lay the amendment offered by the gentleman from Marengo upon the table.

MR. WILLIAMS (Marengo) ‑ I will ask the gentleman to withdraw that motion.

MR. deGRAFFENREID ‑ I will if the gentleman will let me renew it.

MR. ASHCRAFT ‑ I rise to the point of order that the same motion has been submitted to this house and voted down.

MR. deGRAFFENREID ‑ Then I withdraw it. I did not know that.

THE PRESIDENT ‑ The point of order is well taken.

MR. WILLIAMS (Marengo) ‑ In answer to the position that the gentleman from Hale takes that national banks ought to be examined, and that State banks ought not to be examined, and that this section should not be incorporated into the Constitution, I will say with him that on the proposition before the house I voted to strike this particular Section 8 from the Constitution, but the Convention saw fit to keep it in there. The Convention seeing fit to retain that section, in my opinion a safeguard should be thrown around all of the banks, all of the trust companies and all banking


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institutions, whether private, incorporated or individual bankers, and my idea is to make this section apply to all banks and banking institutions. As a matter of fact this is legislative; no one denies that and no one can doubt it, but as it is there let us make it go far enough to cover the whole thing.

Now as to the matter of prying into private affairs, I desire to say that we find these private matters investigated in the national banks. They have large depositors, and if perchance some squeamish fellow has gone over to a private bank, or a State bank, and there deposited his funds because he does not want to have his private affairs looked into; it strikes me that man has builded his house on a sandy foundation. It is just for such fellows as that, along with the balance, that it strikes me this section should be adopted, so as to say to that man whether that bank is safe, or is not safe. Suppose the bank is decided not to be safe by the public examiner, the particular individual who doesn't want his affairs inquired into is told of it, and don't you believe he will take his money out? It is like an old fellow in Texas, who had sixty thousand dollars in bank and in 1894 during the panic banks began to go under everywhere, and he took the sixty thousand dollars out and carried it home; the next day he carried it back to the bank. He wanted it in the bank, for although it was not the safest place in the world yet he wanted it there rather than at home where it was absolutely unsafe.

Now my friend apparently argues that the Tax Assessor and the Tax Collector will come around and assess more taxes and collect more taxes, because the public examiner would point out in his report the amount an individual had deposited in that bank. Is that true of the national banks today? I know one of them that is supposed to have two hundred and fifty to three hundred thousand dollars, and I think it pays on forty ‑ five or fifty thousand dollars. I do not think the matter of taxes applies any more to these institutions after an examination than it did before.

Now the national banking laws make the individual stockholders liable for an amount equal to the amount of stock that they have in the bank. This Convention voted that proposition down just now. That is a safeguard that the national banking law has placed around the depositors in that national banks. This Convention, however, has voted down a similar proposition to throw that safeguard around the State banks. National banks not only have that safeguard but they have a further safeguard of an examination by a public examiner. This Convention, having said you shall not have the first safeguard for banking institutions, then let us have all the safeguards we can get, and let that safeguard be a public examiner of all banks, trust companies and banking institutions or bankers in the State.


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It is very clear that the private banking apparently and the State bankers are the ones who are kicking here today. We do not find the national banks kicking. As has been said by my friend from Greene, they have found the good in this thing, and we big depositors, to the amount of five or ten dollars it may be do not mind having bank examiners know we have got that five or ten dollars in there, but we want it to be safe, or just as near safe as the State of Alabama can make it.

MR. COLEMAN (Greene) ‑ I rise once more in behalf of the public interest. There are a great many communities where you could not do a National banking business profitably at all, particularly in agricultural districts. Under the National banking act any State bank can be converted into a National bank without any trouble. The law is ample, but because of the remoteness from commercial centers, and because of the necessity of supplying funds to the farmer, the bank, by virtue of the State laws, can take security upon his crop, upon his mules, or upon his lands. The bank can furnish him money to run his crop, and you cannot do that under the National banking system, without evading the law, and the State banker would do an honest, straightforward business under the State banking law.

This is the first Convention I have read of, and I read a good deal on the subject, where the people of a State did not interfere to protect their own institutions. Here the purpose seems to be to strike down, as far as possible, your State banks, and elevate your National banks. The very purpose of the amendment offered by the distinguished delegate from Montgomery is looking forward to a time when State banks can do a business upon other line. You could not carry on that kind of a business under the National banking system. You could not issue State bonds. Nothing but National bonds would do, and it seems to me it is time to call a halt. You now have your State examiner provided for. You have now a duty imposed upon State banks, twice a year to furnish a sworn statement, and now you propose to hamper these country banks still further. I say, Mr. President, and delegates of this Convention, not only is this legislation, but if you desire to keep in a satisfactory condition, and perpetuate your State institutions, it is time to withdraw burdens from them.

MR. HENDERSON (Pike) ‑ I do not think there is any necessity of making an exception as to National banks, as proposed in the amendment, because the State has no authority over National banks in any way‑.

Should this State adopt the system, requiring examiners for the banks, those examiners could not examine a National bank, notwithstanding it were not excepted from this provision.


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Now there seems to be an erroneous idea upon the part of some of the members of this Convention as to the purpose of the examination of National banks. They are examined to show whether or not the officers of the bank have complied with the National banking law, which law prohibits the National banks from lending money to any one person–

MR. MALONE ‑ Do you say that the prime motive is not to find out whether the bank is insolvent or not?

MR. HENDERSON– I mean exactly what I said, that is to ascertain whether there is a violation of the National banking law by the officers of the National bank.

That law provides that a National bank shall not lend more than one ‑ tenth of its capital stock to any one firm, corporation or individual. The examination. in one sense is for the purpose of seeing whether that law is violated. Another provision of the National banking law is that a certain percentage of the deposits shall be kept on hand in cash. The National bank examiner goes to the lank and the very first thing that he does is to tell the cashier to hand over the keys to his chest or money safe, and the next thing he says is: "Hand me your keys to your bills receivable." The examiner never informs the cashier in advance that he has come, and this is for the purpose of keeping the cashier from replenishing his cash from other sources, after he finds that the examiner is in town, and in handing over his keys to the bills receivable it is to prevent him from substituting or swapping  notes, its order to cover up solve error or some mistake or fraud, he is trying to perpetrate upon the government.

Now we have no State banking law in this State except the general provision that persons can associate themselves together and organize a bank under the banking law. The State does not provide that a State bank shall only lend a certain percentage of its money or capital, to any one firm, corporation or individual. The bank can absolutely lend all of its money, capital and deposits, to one firm, corporation or individual, and it is not in violation of any State law. Then, what is the purpose of the examination?

Speaking of the amendment, why should the State seek to investigate the affairs of a private bank any more than it should seek to investigate the affairs of any other private business? The private bank is not operating under a State law, but is operating as any other individual conducts his private business, and people but their money into private hanks, State banks and National banks because of the confidence they have, and not because the banks are examined.

As an instance I will read to this Convention some comments of the American Banker on the recent failure of the Seventh Na‑


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OFFICIAL PROCEEDINGS

tional Bank of New York. This is read for the purpose of carrying out my argument, showing that it is not a matter of examination which causes people to put their money in banks, but simply a matter of confidence in the management, confidence in the managers, or because of personal or political influence.

"In the absence of an official statement from the temporary receiver, it is impossible to do more than suggest the possible causes of the suspension of the Seventh National Bank. It will be recalled that in May, 1899, the control of this institution passed from the hands of a body of men who had managed it with the utmost conservatism, into the charge of men of quite a different type ‑ the pushing, ambitious, enthusiastic type. Among them there were several gentlemen whose political associations gave promise of public business. Under the new management the deposits of the bank rose rapidly. An energetic canvass for interior bank accounts steadily increased the resources of the institution from that quarter. The president under the new regime was William H. Kimball, the National bank examiner of New York, a man of whom it cannot be said that he lacked either knowledge or ability. The Board of Directors was made up of gentlemen of firstrate standing, as their names show. * * * with the forces thus at work in the interest of the Seventh National Bank the deposits rose in two years from $1,600,000 to $6,500,000."

Now, Mr. President, the condition of the Seventh National Bank was discovered not by the examination of an officer, but it was because of the inability of the bank to meet its obligations to the New York Clearing House on a certain day. In other words they delayed settlement, which was not their usual custom. They delayed meeting a large draft against them by the Clearing House on a certain day.

MR. MALONE ‑ Isn't it the fact that the bank failed because they loaned one concern, in violation of law, $1,600,000?

MR. HENDERSON ‑ I will answer that in time. Now because this bank was late in meeting its obligation for something over $1,000,000 through the New York Clearing House upon a particular day, not because they did not meet it, for they did meet it, but because they delayed in meeting it, contrary to their usual custom, the State bank examiner was sent to make an investigation, and when he made his examination he found that this particular bank, the Seventh National Bank of New York had loaned one firm in the city of New York $1,600,000 when its capital was only $300,000. Under the banking law it should not have loaned this firm but $30,000, and in fact it did lend them $1,600,000. I say this to show you that it was not primarily because of the examination of the officer that it was discovered the bank had violated the law, but because he was sent there to examine this bank, the bank having failed to meet its obligations, as was its usual custom.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ The time of the gentleman has expired.

MR. O'NEAL (Lauderdale) ‑ I do not think the purpose of this amendment is to strike down the interests of the private banks, but rather to increase their efficiency and usefulness. Now the gentleman says in his argument that the system of examination of the National Government for National banks has proven utterly inefficient. It is strange to me that if the system which now prevails has been as inefficient as the gentleman claims, that Congress still retains it.

The experience of every man who has any familiarity with National banks shows that it is a safeguard against fraud and corruption and insolvency. That is all we seek. What is a private bank? This amendment just says that a private bank must be put in the same category as the incorporated bank. The private banker asks the public to deposit money with him;  they invite the widow, the orphan, the helpless and ignorant, to come and deposit their money with him, and we simply ask that the same safeguards, and same protection should be accorded to the depositors in a private bank, that are guaranteed to the depositors in an incorporated bank. The experience of every community shows the necessity of this action. In my own town, a bank that did the business of the whole valley, that had been insolvent for over twelve months, received deposits up to the very hour it closed its doors. If this examination had been made and the fact that it was utterly insolvent had been known thousands of poor, helpless people would have been saved from ruin and penury, and yet, as the gentleman from Greene says, that banker had the confidence of the entire community. He was a man of standing and had the confidence of the business public. They deposited their money there, on account of the implicit confidence in his high character and integrity, and knowledge of the business, and yet that bank failed and then deposited their money there up to the very last moment. Private banks were organized in our communities up there without a dollar of capital, and who became the victims of these institutions? Not the shrewd business man, but the ignorant and the unwary, the poor working man, and it is our duty to throw safeguards around that class of people in this State. That is our purpose. The shrewd business man may ascertain the condition of the banker, when the bank doors are swung open inviting the public to make deposits, but the poor and the ignorant go and make their deposits when in fact the bank may at the very time be absolutely insolvent, simply spreading a net to catch the unwary. I say that not a single argument can be made here in favor of exempting private banks from this examination. The same argument which applies to an incorporated bank would apply to a private bank.


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OFFICIAL PROCEEDINGS

MR. COLEMAN (Greene) ‑ Don't you know that with a private association not incorporated, the parties are liable for every dollars' worth of property they have?

MR. O'NEAL ‑ Yes, of course I know they are liable, but they may be insolvent, and if the fact of their insolvency were known, the public would not make deposits, and the public would not be robbed as is sometimes the case. I have known instance after instance where the public was simply robbed, because the condition of the bank was unknown. If these reports are made and the public are informed of their condition, then we take it out of their power to perpetrate a fraud of that character. So the principal purpose of these examinations by the national government, is not to see that the officers have complied with the laws on the subject of banking, but it is to acquaint the public with the fact of whether or not the institution is solvent or insolvent. Let the private banker make known his resources and then the public can determine whether he is solvent or insolvent, and then if they do not want to deposit they need not do so, and if they make a deposit they do it with their eyes open.

MR. COLEMAN (Greene) ‑ Did you ever hear of a National Bank Examiner making any report on a bank?

MR. O'NEAL ‑ He does not make a report, but he makes the examination, and he ascertains its condition, he knows if it is insolvent or violates the law, and makes it known to the Comptroller of the Currency, and if the banking institution its violating the law, or if it is insolvent, it is closed, and so if a private institution is insolvent, it ought to be closed, and closed by the State of Alabama.

MR. deGRAFFENREID ‑ Don't you know that a National Bank Examiner does not pass upon the value of the securities of the bank, the notes and other evidences of debt that they hold?

.MR. O'NEAL ‑ Why, I think that the National Bank examining system can be improved, and ought to be improved, and I am satisfied that the legislature of Alabama will improve it. I do not think all the virtue and wisdom is in the United States Government. I think the legislature of Alabama, can take advantage of the defects, if any exist, in the system now prevailing with reference to national banks, and they can inaugurate a system more perfect in Alabama than that which now prevails under the national government.

Before my time expires, I move the previous question on this amendment.

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


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CONSTITUTIONAL CONVENTION, 1901

MR. FLETCHER ‑ I move that the article be engrossed and ordered to a third reading.

Upon a vote being taken the motion was carried.

MR. DAVIS (Etowah) ‑ I move that we adjourn.

THE PRESIDENT ‑ The next order of business will be the consideration of the report of the Committee on Legislative Department.

MR. OATES ‑ As the time is so short before adjournment, leaving but a few minutes, I hope the motion made by the gentlernan to adjourn will prevail, because we do not think anything will be gained by entering upon the consideration of the report this evening.

Upon a vote being taken, the Convention adjourned.

CORRECTION

The proceedings of the forty ‑ fourth day in seventh column on first page, the remarks of Mr. Malone should read as follows:

Mr. Reynolds is not here, he is at heart with us. It is fair to state that a great many in the upper end of his county, which is nine miles from the extreme upper end, and sixty from the lower end, are not all in favor of it. I made a canvass up there against the strongest man in Henry County and I got something like 40 per cent of his vote in his own beat, but not a majority.

On first column of second page in the remarks of the same gentleman the verbs should be changed from present to past tense to make the sentence read as follows:

As a further illustration of this idea there were five banks in the county doing a fair business and they were paying tax only on $5,000 on an average. One bank with $50,000 capital was paying taxes on $9,000 of property. The reason of this was that the sections are so far from the county seat that no one looks after it.

See in remarks of Mr. Sollie on a question of personal privilege in first column of today's report.