2287

CONSTITUTIONAL CONVENTION, 1901

FORTY ‑ SEVENTH DAY

__________

MONTGOMERY, ALA.,

Wednesday, July 17, 1901.

The convention met pursuant to adjournment, was called to order by the President, and opened with prayer by the Rev. Mr. C.  B. McDaniel, as follows:

Almighty God, we have come in the name of Christ to give Thee praise for Thy tender care through the shades of the night. We bless Thee for the light of a new day.  And as the sun scatters the darkness of the night, we pray that the Sun of Righteousness may arise with healing upon His wings and dispel all darkness and sin from our hearts.  We beseech Thee, to set a watch over our lips that we speak no evil, our hearts that we think no guile our hands that we do no evil deed, and our feet that we walk not in forbidden paths.  We beseech Thee, to grant unto these, Thy servants, Thy heavenly blessing.  The Lord bless the President of this Convention.  We pray for our loved ones at home. We pray for the sick, the sad, the dying. We commend one another to Thy gentle protection.  We commend unto Thee all men in authority and influential positions.  We ask these blessings in the name and through the merits of our Lord and Saviour, Jesus Christ, Amen.

Upon the call of the roll 118 delegates responded to their names.

Leaves of absence were granted as follows: Mr. Carnathon, indefinite on account of sickness: Mr. Kyle for today; Mr. Graham (Montgomery) for today ; Mr. Sanders (Limestone) Monday last and Tuesday morning; Mr. Bethune for Thursday, Friday and Saturday.

MR. CHAPMAN– I desire to have corrected the stenographic report of the yea and no vote on the motion of Mr. Rogers, (Sumter) the reconsideration of the vote which had been taken. The stenographic report has me as absent or not voting. I was present and voted and the journal shows that I was present and voted. The stenographic report is incorrect. Mr. Rogers was occupying my seat and I occupying his seat, but I distinctly voted aye on that motion.

THE PRESIDENT ‑ The journal is correct.

MR. CHAPMAN ‑ Yes the journal is correct, but I want the stenographic report to be correct.


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The Committee on Journal reported that they had examined the journal for the forty ‑ sixth day and found the same to be correct. On motion the report of the Committee was adopted.

MR. JONES (Montgomery) ‑ Is a motion now in order to reconsider the section on which the Convention acted just before we adjourned on yesterday. I think it is Section 5.

THE PRESIDENT ‑ It would be in order at this time.

MR. JONES ‑ I move to reconsider the vote by which Section 5 was passed.

THE PRESIDENT ‑ The gentleman from Montgomery moves to reconsider the action of this Convention whereby Section 5 was adopted. I recognize the gentleman from Montgomery.

MR. JONES ‑ Mr. President, I recognize that in a deliberative body like this there is a limit beyond which a minority should not press discussion, but that time comes only when there has been fair and reasonable opportunity for discussion. That opportunity has not been afforded us and some of the members on this floor desire to present the question again to the judgment of this Convention.

What is the proposition embodied in this 5th Section?  For the first time in the history of Alabama, in the eighty ‑ one years of its existence, it is asserted that the people of Alabama ought not to be trusted through their representatives to legislate oftener than once in four years. Stripped of all extraneous matter, the issue is that the people of Alabama cannot be trusted to legislate through their representatives, except once in every four years. I am not a blind adherent to precedent; I am not a blind worshipper of what other people do even under like circumstances as ours; but when we are asked to put this remarkable innovation in the Constitution, it is well to ask ourselves what does the rest of mankind do under like circumstances? I make bold to assert here this morning that there is not a civilized government, certainly not one whose people speak the English language, which refuses to allow its Legislature to meet except once in four years. Away back in the history of our institutions, during the time of Charles II, unbounded indignation flooded the English nation because the king undertook to keep Parliament out of session for several years. They passed an act that the Parliament should never be prolonged longer than three years at a time. That is the law of England today. Nobody thinks of changing it. In all the American States, every one of them ‑ Mississippi not excluded ‑ they have either annual or biennial sessions of the Legislature. Ought  we not to pause, therefore, when we are asked for the first time in the eighty ‑ one years of our history, to favor a position opposed to the practice of the whole civilized world. What argument can we give to the people


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of Alabama in support of this section, when we go out to them and say it is our deliberate judgment, after shearing the Legislative power in local matters, in its power to tax, and after fixing many subjects upon which they shall not legislate, I say what reason can we give the people after doing that, in support of our position, that the people are unfit to legislate more than once in four years.

Mr. President, we have a great and growing State, with diversified industries and pursuits. No man is wise enough to foretell what two years may bring forth. Yet we are putting in the Constitution which may last for half a century, that the General Assembly of Alabama, which in its last analysis is the closest representative of the people, shall not be in session but once in four years to look after their fiscal affairs or to legislate upon any other matters which may affect the honor, prosperity and welfare of the State. We have been here sixty days and it may be four months before we can lay down the principles which are embodied in a Constitution. Take the next session of the Legislature. It is true it is said they may sit there sixty days, but sixty days could be intelligently and profitably spent, and probably will be exhausted. if there is wise legislation in determining how you will protect local legislation in the matters which the Constitution says shall not be dealt with by special law, but which must be protected by general law. The subject was so complex that this Convention refused to go into detail, and said we commit that to the Legislature. What about matters of taxation? What about economic reforms? What about the penal system? What about labor laws? What about the regulation of the different businesses in this State?

A great deal has been said about the last Legislature. Perhaps it is deserving a great deal of the criticism which was passed upon it, but there were many good men in it, the majority of them were good men. I don't believe in the personnel there ever was a better Legislature. That there were some good men in it is evidenced by the fact that  we have their here in this body. Now, if a good Legislature like that makes such mistakes as it did, do the friends of this measure want the people of Alabama in like cases in the future to be tied and bound for four years before they can meet and repeal their mistakes? It is said, Mr. President, that the Governor may call the Legislature together. Two things generally restrain the Governor in a matter of that sort ; one is that the people are generally opposed to special sessions, and another one is that generally a Governor, where there is much contrariety of opinion on a public question, who calls the Legislature together to settle it, generally settles his own fate adversely to him. That is the history of special legislative sessions in the States at least, and the Governors will not call them if possible to avoid it. I beg our friends on the other side to remember the other day when some of us had what they considered the temerity to vote for a three-fourths


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verdict by a jury, they filled this hall with protestation; against the change in what was called the "blood bought rights." They spoke of Runnymede. They spoke of the habits of our people. They said for God's sake don't strike down that ancient and divine institution. Some of them went so far even as to intimate that gentlemen who thought as I did, and voted as I did, had a covert attack on corporations. That was an unjustifiable intimation. I don't think it affected the minds of anybody. If such insinuation, arose in that case, I ask the gentleman who urged that argument, if the inquiry will not thrust itself forward in whose interest is it that the people of Alabama are to be forbidden to legislate oftener than once in four years?

Mr. President, I regard this as one of the most serious questions that has come before this Convention. You are going out to tell the people that they are not fit to be trusted with the legislative power as their ancestors have exercised it for eighty years in this State. Only the most powerful reasons will answer. You cling to the ancient landmarks in other things, why do you trample them down in this? A few words in conclusion. It pleased some of my friends yesterday in deflate to hold me up as having based my arguments upon this great proposition upon an auxiliary or incidental statement that one of the uses of frequent elections was that it trained our young men in the duties of citizenship. There was not a member on the floor of this Convention who did not realize that that was simply one of the incidents that I mentioned as a reason why we should have frequent elections. I circulate somewhat among our people. I see all sorts and conditions of men. I have not found any general, all ‑ pervading sentiment that you must get rid of legislation for four years. Sometimes a gentleman comes along, and says this will interfere with my business, "some fool will be tinkering with the usuary laws, some fool will be tinkering with a mining law, some fool will be tinkering with other business matters. I don't want the Legislature of Alabama to assemble again for years." Mr. President, that does not come from the people as such. Men get indignant and disgusted sometimes, and particularly at the Legislature, and sometimes a man says "I wish they would never meet again in one hundred years." That is not the deliberate sentiment of the people of Alabama. They want to have a voice in their own affairs oftener than once in four years. We have become a world power. Questions arise which agitate the country, and in which Alabama ought to have a voice, and that voice ought to be the voice of the people of Alabama; yet if this law passes and an inscrutable Providence were to deprive us of the two glorious old men who now represent the people in the United States Senate, the people could not make their voices heard, it may be for years, as to their successors. That is referred to the Governor who may not put a man in there whom the people wish, or whose views on public questions might be dif‑


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CONSTITUTIONAL CONVENTION, 1901

ferent to those held by a majority of the people. Let us be consistent then. If we are going to follow the "ancient land mark." if you are going to take the Constitution as it was except with a few changes, don't let us go out to the people of Alabama, with a declaration on the part of their representatives, that in our opinion, however much you limit the subjects of legislative power, that it is unwise and improper for the people to come into their own, but once in four years. If we cannot trust the Legislature to meet every two years, there is no institution in Alabama that we can look to for the preservation of our liberties and the elevation of our people.  Republican government is a failure if our people are so incompetent and their Legislatures so worthless that we must say:  "I will not let you legislate but once in four years, because you are not fit to be trusted with power oftener."

MR. O'NEAL (Lauderdale) ‑ I don't feel, Mr. President, after the vote on yesterday, that anything I call say will change the opinion of this Convention, and it is only from an earnest sense of duty and from all earnest conviction that the minority were not accorded the rights which they were entitled to in this Convention that I rise to speak upon this provision. The distinguished gentleman from Sumter stated on yesterday that he knew the wishes of the people of Alabama, and that with one voice they were demanding this revolutionary change in our fundamental law. He stated that he had come in contact with them, and knew whereof he spoke. Mr. President, we of the minority are also representatives in this Convention, and we are vain enough to believe that we know the sentiments of the people we represent. I say to this Convention that there is no popular demand for this revolutionary procedure upon the part of the people of Alabama. It never was made the subject of discussion on the stump when the question of the calling of this Constitutional Convention was in issue. It ever has been made the topic of comment in the public press, and hereafter this Convention has assembled it suddenly dawns upon the minds of some of the members that the entire people of Alabama are clamoring for this change. What reasons are urged for it? Why, they say, the great State of Mississippi, the pioneer State only has a session every four years. Why the gentleman had not read the Constitution of Mississippi, or he could not have made such a statement. What does the Constitution of Mississippi say?   It says the Legislature shall meet at the seat of government in regular session on the first Tuesday after the first Monday in January of the year 1892, and every four years thereafter, and in special session on the first Tuesday after the first Monday in January, 1894, and every four years thereafter, unless sooner convened by the Governor. The special sessions shall not continue longer than thirty days unless the Governor, deeming the public interests require it, shall call a sitting by proclamation in writing, and so on, and that at such special sessions the members


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shall not receive more than ten cents, etc. What does that mean? It met in 1892 in general session, it met in 1894, it met in 1896, in met in 1898, and every two years thereafter. It means that every alternate year there is no limit upon the session of the Legislature; it can hold for a month, six months, or twelve months, every alternate year, but in every alternate year the session is limited to thirty days unless the Governor should deem it necessary to continue the session. Here is the Constitution of Louisiana, which requires biennial sessions, yet the people of Alabama are asked to embark in this new and untried experiment without a single experiment, without a single precedent in any State of this Union. What is the argument in favor of it? Why the distinguished gentleman from Sumter says it is expensive. Why, gentlemen of the Convention, that argument has no place in a body of this character, a body which has been characterized as the most distinguished that has assembled in this hall for 25 years.  Are we to measure the liberties of the people by paltry dollars and cents? Have we become so sordid and mercenary that we are willing to strike down the safeguards of liberty because it is expensive? If such an argument can be used with force, why not strike down your jury system, and allow the judge to decide all the cases and save the expense? Why not burn down your court houses and turn over the administration of criminal law to Judge Lynch, because it is inexpensive? Ah, Mr. President, such an argument is the argument of the counting house, and the banking house, and has no place in a Constitutional Convention. Are we to estimate the liberties of the people by dollars and cents? What did the great empire of England do? A single English citizen had been imprisoned by the King of Abyssinia. His release was demanded and refused, and that great power spent millions of dollars, organized an army and kept in commission her navy to save one citizen of England! Did she stop at the paltry and mercenary arguments that are heard here in debate? It costs money to have a Legislature and a Governor. Why not abolish the Legislature and judiciary, and have a Governor ‑ General in Alabama ‑ it will be less expensive. Why not have a Governor ‑ General clothed with executive and judiciary powers and save money and break down the liberties of the people. Ah, Mr. President that argument can be made to strike down one of the great co ‑ ordinate branches of government that has existed since the formation of republican institution. Ah, but they say that the Legislature creates unrest and discord among the people and disturbs business. I have heard that stated before, but Mr. President is it not true that those who are disturbed and who are uneasy are sometimes officials who have been guilty of abuses which they feared might be corrected; isn't it sometimes the case that those who are uneasy and restless are wealthy corporations and individuals who have secured rights and privileges which they were not entitled to under the law? In whose interest then is this


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CONSTITUTIONAL CONVENTION, 1901

proposed change?  Is it in the interest of honest government, I ask the question? Have a meeting of the Legislature only once in four years and you open wide the flood gates of fraud and corruption. Our Legislature is a check upon dishonest officials, it is a check upon dishonest government. Why Mr. President, in this State we have practically only one great political party. We have not an active, aggressive, vigilant opposition party to keep us the majority in check, and the result is that the only remedy which the people have it a just and honest Legislature, fresh from the body of the people to correct abuses and evils that may exist in the administration of government. Your tax laws may require reform, are they to remain upon the books four years and not a man can touch them? Your appropriations may require change, may be declared unconstitutional, like the revenue law was, and you are without remedy and powerless. You say the Governor can call an extra session. How many extra sessions have been called in this State? Suppose you had had this four year term, this Convention would not be assembled here today, because over two years ago the Legislature was called in session and repealed the act calling this Convention and disregarded the will of the people. Two years afterwards the people rebuked them and sent a Legislature here that represented their wishes and called a Constitutional Convention, and yet if this had been the law upon the statute books, the people of Alabaina would today be enduring all the evils of a corrupt and debauched suffrage without remedy for four years. Mr. President, suppose the people should demand relief from unjust, arbitrary and discriminating rates by the great railroad corporations of Alabama? You must wait four years for relief. That might be a pleasing – a soothing thought to these corporations, but I put it to you gentlemen when you go before the people of Alabama and tell them that you have prevented them from reforming abuse and evils in their laws, will they thank you with tears of joy and words of praise as stated by my distinguished friend from Sumter.

MR. GREER (Calhoun)  ‑ Don't you think since we have taken from the Legislature local legislation, that four years will be sufficient time in which to meet?

MR. O'NEAL ‑ I am glad the gentleman made that suggestion. We have corrected the evils of local legislation Mr. President, and what would be the result. The result is we have elevated the tone and character of the legislature, we have enabled them to direct their attention and thoughts to the great matters of State, we open wide discussion and debate upon every great proposition that may be presented, every question of general importance will be subjected to the search light of a fair and full and open discussion, and the result will be that we will have no hasty and improvident legislation in this State. Why the Parliament of Great Britain


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meets continuously for seven years– holds for seven years, and legislates for an empire that girdles the world, and yet although the session is unlimited it passes only a few hundred general laws, not as many as the Legislature of Alabama enacts. The Legislature of Kentucky is unlimited, as to the length of its session;  the Legislature of Mississippi is also unlimited, and almost every State in the Union where the evils of local laws have been removed and improvident legislation prevented has no limit upon the time of its sessions.

MR. BROOKS ‑ I want to call the gentleman's attention to this fact, isn't it true that in more than half the States of this Union the constitutions contain provisions exactly as we passed not long ago on the subject of local legislation, and that these States all have biennial sessions and biennial elections?

MR. O'NEAL ‑ Every one of them. I say there is not a State in the American Union that has tried this unwise experiment that we are asked to embark upon at the dictates of the majority of this Convention. Now what does the great English Commentator say upon the subject speaking about biennial sessions, Mr. Butler says "For a people claiming pre ‑ eminence in the sphere of popular government, it seems hardly creditable that in their seeming despair of cure for the chronic evils of legislation, they should be able to mitigate them only by making them intermittent." The Americans seem to reason thus: "Since a Legislature is very far gone from righteousness, and if its own nature inclined to do evil, the less chance it has of doing evil, the better. If it meets, it will pass bad laws. Let us therefore prevent it from meeting. They are no doubt right as practical men. They are consistent, as sons of the Puritans, in their application of the doctrine of original sin. But this is a rather pitiful result for self governing Democracy to have arrived at." Is it not a pitiful result for us, claiming to have the greatest and freest government on which the sun ever shone, to rise up here and say that we propose to strike down one of the great coordinate departments of government because it is evil and it will pass bad laws if it assembles? Why not do as this Commentator says. "Is there not a simpler remedy? Why all these efforts to deal with the various symptoms of the malady, instead of striking at the root of the malady itself? Why not reform the Legislatures, by inducing good men to enter them and keeping a more constant vigilant public opinion fixed upon them?" He says, under such a plan "Constitutional organs of government become constantly more discredited."

That is the effect of this proposed legislation, it discredits and brings into contempt the great constitutional organs of government, it creates the idea that the people of Alabama have despaired of good government and of an honest Legislature. Because the last Legislature was reckless and extravagant should we in a spasm


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of virtue voice the sentiments of the distinguished gentleman from Sumter, and declare by our organic law that the Legislature shall not meet oftener than once in ten years. Why, gentlemen, when you adopted the article on local law, you remedied the evil and removed the dangers of inconsiderate and hasty legislation on general subjects. If you are afraid of hasty legislation, why not adopt the provision which is found in the Constitutions of twenty or thirty other States, which says no bill appropriating public money shall pass except by a two ‑ thirds vote, or by another law which says a bill of any character shall pass except by a majority of the members elect in the Legislature. Then if you fear evil legislation, if you fear bad laws, put that check upon the Legislature, don’t ask us to strike down this great bulwark of the people, the only organ by which their views can be expressed. Evils grow up in our convict system.  Why, the other day I read an account which showed that in Alabama we are as barbarous as the Russians themselves in our treatment of these poor and helpless prisoners, yet the legislature cannot assemble to correct these evils, the Governor is powerless, we must wait four years, and the only argument that has been offered is that it is expensive. It is expensive to have a Supreme Court. I know an old country Justice of the Peace who said it was a great mistake to have a Supreme Court, that the Legislature of Alabama ought to abolish the Supreme Court and Circuit Court and let the Justice Court in each beat administer the Law without appeal and save all the money of the courts and juries to the people, and the argument which has been made here is on no higher plane.

I have no doubt, Mr. President, that the distinguished gentleman from Sumter who seems to be leading this movement, is actuated by the highest and most patriotic motive. I have the greatest confidence in his ability, in his conservatism and in his devotion to the interests of our people; but I think he has got a fad in his head. He is asking us to do what no other civilized country, as the distinguished gentleman from Montgomery tells you, has done. The only argument which I have heard in favor of it was the simple one of dollars and cents. A percentum argument. Are we never going to rise above it, bonds, dollars and cents? As I heard the distinguished gentleman from Montgomery say the other day it seems to be all you could hear here in this convention. I believe in economy and I believe in saving money to the people, but I do not believe in that economy which would drag us to strike down and destroy one of the great coordinate branches of our government; and I tell you in my opinion, gentlemen of the Convention, when you go before the people of Alabama with this provision in your fundamental laws you will create a storm of opposition which will not down at your bidding. It may be pleasing to the vested interests, it may be pleasing to organized capital, and it may prevent the people from reaching and checking


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the rapacity and greed of corporations, but I tell you it will not be received with favor, with tears of joy and rejoicing by the horny handed masses of this great commonwealth.

THE PRESIDENT ‑ The gentleman from Sumter.

MR. SANFORD (Montgomery) ‑ I am very glad I have an opportunity ‑ ‑

THE PRESIDENT ‑ The gentleman is out of order.

MR. SANFORD ‑ I want to ask a question, and I do it from self ‑ respect. When I suggested to you that I wished to be recognized–

THE PRESIDENT ‑ The gentleman is out of order and will please be seated.

MR. SAMFORD ‑ You asked me if it was to speak on the four years system and I said no.

THE PRESIDENT ‑ The gentleman is out of order. The Chair will ask the gentleman to discontinue interrupting the Convention.

MR. ROGERS (Sumter) ‑ Mr. Chairman and gentlemen of this Convention. Insinuations made by the gentleman from Lauderdale that this movement was made in the interest of organized capital probably emanates from a mind that would be governed by such motives as those—

MR. OATES ‑ Will the gentleman permit an interruption?

MR. ROGERS (Sumter)  ‑ Certainly, sir, with the greatest of pleasure.

MR. OATES ‑ I want to state there seems to be a misunderstanding; there were controversies in the committee, and it is not improper to relate, over this identical question and it was decided at one time one way the delegate from Jefferson, Mr. Lowe, leading in favor of biennial sessions. Mr. Rogers on the contrary at a subsequent meeting took the floor when the question was discussed and it was then decided as it has been reported here. There was no question as to any foreign matter brought in there at all except as to what would be the wisest and most expedient.

THE PRESIDENT ‑ For what purpose does the gentleman rise ?

MR. OATES ‑ I merely interrupted him because I saw there there was a misunderstanding about what was really involved in this.

MR. ROGERS (Sumter) ‑ The gentleman makes the point that our committee at a full meeting ‑ with one or two members


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absent ‑ reported this article favorably. That is the point the Chairman makes.

Fortunately for me as the mover of this policy, I represent a county that is purely agricultural. There is but one line of railroad that goes through our county and therefore when men charge upon this floor that it is in the interest of organized capital, they charge something of which they are grossly ignorant. It is also fortunate, Mr. President and gentlemen of this Convention. that I am opposed by two men, one of whom is a leading attorney for a great railroad in the State of Alabama. It is seldom that I ever appear in the defense of the barefoot boy or the horny ‑ handed son of toil.  I think a man is not better for being a farmer, he is no better for being a merchant, but I hold that a man is entitled to consideration, not because of the vocation in which he makes his living, but because he is a man. I hold that a man can be as upright, just as honorable and just as true to his constituents as the representative of a railroad as he could as the follower of a mule. I hold that it is the man that gives dignity to the vocation and not the vocation that gives dignity to the man. I am here as I said upon yesterday representing the wishes of all classes of people in the State of Alabama, I do sincerely believe, except it be the patron of the embryo legislators and the professional politicians. Gentlemen who will get up on this floor and advocate that the Legislature of the State of Alabama is a great place to train the young men to take part in the government of this State are not the proper sort to influence Legislatures about the policy of the government of the State of Alabama and a man who looks upon the Legislature of the State of Alabama as being merely a training school in which the young gladiators can come out and paw the air and saw the ears of the people in their utterances as to the principles of government, knows too little about it to be asking the people to follow him in a movement of this kind. This gentleman speaks about consistency. He was one of the men who advocated the threefourths jury rule. That was a departure, sir, from all the precedents laid down in movements along that line and he gets up this morning and opposes this because it is an innovation. You can use that argument against any reform movement. The Jews used that argument against Christ and His doctrine, that it was a change and it was an innovation and the divine words of the Man of Gallilee when He expounded law to the fishermen on the shores of Gallilee, if this policy had been adopted would have been dead ashes upon the lips of the people. Now, Mr. President, we may go further back than this and say when Eve suggested to Adam after their downfall that you make clothing out of fig leaves he would say, "No, madam, this is an innovation," and we would be today naked savages hunting snakes for our dinner. That is no argument against a reform movement. I am speaking here in the


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interest of the horny ‑ handed sons of toil. They are the men who are not able to be here as representatives upon the floor of the Legislature to put through pet measures. There never has been a lobby here represented by the farmers of the State of Alabama and knowing this the horny ‑ handed sons of toil of the State of Alabama ask us not to give the Legislature too much power to interfere with their business.

MR. WHITE ‑ Will the gentleman permit an interruption?

MR. ROGERS (Sumter) ‑ With the greatest of pleasure.

MR. WHITE ‑ If that is correct we ought never to have another Legislature.

MR. ROGERS (Sumter) ‑ The suggestion made comes from a mind that is unable to grasp the first rudiments of legislation. Suppose I were to say to a doctor, "I don't want you to give my child a whole bottle of quinine." Would he be fool enough to think that I objected to his giving my child the right sort of a dose ?

Mr. President and gentlemen of this Convention, I believe the minds of the delegates upon this floor are made up. I believe that no man would allow himself to come here representing any constituent in the State of Alabama whose mind could be changed one way or the other by the winds of doctrines which may be put upon this floor by one advocate upon one side or the other. I believe the great bulk of the members on this floor have minds sufficient to grasp and analyze and pass upon any question intelligently without being urged on by anybody on this floor.

In the interest of the expedition of business, we come here one day and pass a section and the next day we come back here and reconsider it. This sort of thing ought to stop. We ought to go ahead with the business. We ought to go ahead and try and expedite the business here. The people of the State of Alabama are restless at our delay and therefore I say to you that when a vote is had as largely as was had on yesterday in favor or against a measure, we ought to frown down upon a proposition to reconsider because it takes up the time of this Convention.

One further argument, gentlemen of the Convention, and I am done. The gentleman here upon my right, the distinguished ex ‑ Governor of the State of Alabama who is such a pleader here for consistency, comes and introduces an ordinance in here departing from all the systems which have been in the State of Alabama which permits an officer elected by the people of the county to be suspended by the Governor pending an impeachment, yet he comes in and says we cannot trust the Governor to do what is fair and right in calling the Legislature. Where is that sort of consistency? This same gentleman comes and says here, biennial


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sessions of the Legislature ought to be permitted so that the people can be heard from, has come here and advocated upon this floor the election of the Governor for four years. In the name of God, if the people of Alabama ought to be heard on any proposition, they ought to be heard on that proposition as to who is going to represent them in their executive chair. We elect our Supreme Court Judges for four years, and we propose to elect them for eight years, which I think would be a good thing because men who sit upon these exalted positions should be removed from popular prejudice. They should be lifted above all considerations, and be able to pass upon these things like it was said of Job of old, when he sat in the market place; "righteousness clothed him and justice was his robe and mantle." We are for trusting the people of the State of Alabama ; and the gentlemen who advocate this other doctrine seem to think that the people of the State of Alabama have not got minds enough to know what they want for a period of four years. That is the argument. They say that the people of the State of Alabama are like the inhabitants of these little South American Republics down here, that they absolutely want to undo the things every two years that they have done two years before. I don't believe that way about the people of the State of Alabama. I know the people of the State of Alabama know their minds; and I know the people of the State of Alabama want this thing done in the interest of the stability of the law. It is barely fourteen months before we shall reconvene in the General Assembly, and yet the laws of the last General Assembly have not been printed and given to the public. In the name of God, how is a man like me who has never had the misfortune to be educated as a lawyer, going to find out the laws of the State of Alabama? I move to table the motion to reconsider made by the gentleman from Montgomery.

MR. SANFORD (Montgomery) ‑ It is to suspend the power of the State of Alabama for four years.

THE PRESIDENT ‑ The motion is to lay on the table.

MR. HEFLIN (Chambers) ‑ I call for the ayes and noes.

The call was sustained by a requisite number rising, and the roll call resulted as follows.

AYES.

Messrs. President,

Coleman, of Greene,

Glover,

Barefield,

Craig,

Graham, of Talladega,

Bethune,

Davis, of DeKalb,

Greer, of Calhoun,

Blackwell,

Eley,

Hodges,

Boone,

Espy,

Pillans,

Browne,

Ferguson,

Howze,

Burnett,

Fitts,

Inge,

Case,

Fletcher,

Jones, of Hale,

Chapman,

Gilmore,

Jones, of Wilcox,


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Kirk,

Oates,

Smith, Morgan M.,

Kirkland,

O'Rear,

Sorrell,

Locklin,

Pearce,

Spragins,

Macdonald,

Pettus,

Stewart,

McMillan, of Baldwin,

Pitts,

Stoddard.

McMillan (Wilcox),

Porter,

Tayloe,

Malone,

Renfro,

Vaughan

Maxwell,

Reynolds (Chilton),

Waddell,

Miller (Marengo),

Rogers (Sumter),

Walker,

Miller (Wilcox),

Sanders,

Weatherly,

Murphree,

Searcy,

Whiteside,

NeSmith,

Sentell,

Williams (Marengo),

Norman,

Sloan,

Norwood,

Smith, Mac. A.,

 Total ‑ 67. NOES.

Banks,

Heflin, of Chambers,

Parker (Elmore),

Bartlett,

Heflin, of Randolph,

Proctor,

Beddow,

Hinson,

Robinson,

Brooks,

Hood,

Rogers (Lowndes) ,

Bulger,

Howell,

Sanford,

Burns,

Jackson,

Selheimer,

Byars,

Jones, of Bibb,

Smith ( Mobile ) ,

Cardon,

Jones, of Montgomery,

Sollie,

Carmichael, of Colbert,

Knight,

Spears,

Cobb,

Leigh,

Thompson,

Davis. of Etowah,

Lomax,

Watts,

Duke,

Long, of Walker,

Weakley,

Foshee,

Lowe, of Jefferson,

Willet,

Foster,

Martin,

Williams (Barbour) ,

Freeman,

Moody,

Wilson (Clarke),

Grayson,

O'Neal (Lauderdale),

Wilson (Wash'gton),

Haley,

O'Neill, of Jefferson,

Winn,

Handley,

Opp,

Harrison,

Palmer,

 Total ‑ 55.

ABSENT OR NOT VOTING.

Almon,

deGraffenreid,

Lowe, of Lawrence,

Altman,

Eyster,

Merrill,

Ashcraft,

Graham, of Montgomery,

Morrisette,

Beavers,

Grant,

Mulkey,

Carmichael, of Coffee,

Greer, of Perry,

Parker (Cullman),

Carnathon,

Henderson,

Phillips,

Cofer,

Jenkins,

Reese,

Coleman, of Walker,

King,

Reynolds, of Henry,

Cornwall,

Kyle,

Samford,

Cunningham,

Ledbetter,

White,

Dent,

Long, of Butler,

Williams (Elmore).


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CONSTITUTIONAL CONVENTION, 1901

So the motion to table the motion to reconsider was lost.

During the roll call:–

MR. OATES ‑ I am paired with the delegate from Butler, Mr. Long; and if he were present he would vote no and I would vote aye.

MR. SAMFORD ‑ I am paired with some gentleman on that proposition, but I have forgotten who it is, and I therefore ask to be allowed not to vote at all.

 MR. SANFORD (Montgomery) ‑ As I am against the suspension of  the legislative power of the people for four years, I shall vote no.

After the roll call:—

MR. WHITE– I want to announce that I was paired with my colleague from Jefferson, Mr. Cornwell, who would have voted aye and I no. I overlooked it at the time the roll was called.

MR. OATES ‑ I am informed that I was mistaken in regard to the way the delegate from Butler would vote if he were present ; that he would vote the same way that I have voted, aye.

THE PRESIDENT ‑ The Secretary will call the roll of delegates.

MR. SANFORD (Montgomery) ‑ As under the rules I was not permitted to argue this question– to be allowed to put in the stenographic report what I would have said if I had been given an opportunity—

MR. ROGERS (Sumter)– I move that permission be given him to print his remarks in the stenographic report.

Upon a vote being taken permission was granted.

MR. BEDDOW– I rise to a question of personal privilege. In The Montgomery Advertiser this morning it is reported that I appealed from a decision of the President of this Convention. Among other thnigs, it says President Knox ruled that the point of order was not well taken, and Mr. Beddow appealed from the decision of the chair. I desire to say that at no time during the session of this Convention have I appealed from the ruling of the President. That so far as I am concerned, the relations between myself and the President have been most pleasant, so much so that I have always been willing to sustain the President in his ruling. When the Committee on Schedule, Printing and Incidental Expenses made a report on a resolution that I had introduced and the passage of which I had at heart, because it came from those who elected and sent me to this Convention and was sustained by 25,000 voters of the State of Alabama and that resolution was placed


2302

OFFICIAL PROCEEDINGS

upon the calendar but my motion that the resolution be taken up and put upon its passage was ignored. I acquiesced in that ruling of the President, but on yesterday. While the gentleman from Chambers (Judge Robinson) was in the Chair, a committee made a report. In order to sustain the President I raised the point of order that that should take the same course that my resolution had taken and in overruling the point of order the ruling of the President was reversed. My intention in making the point of order was to sustain the ruling of the President of this Convention and I desire to ask that the Montgomery Advertiser to do me the courtesy of saying I did not appeal from the President of the Convention.

THE PRESIDENT ‑ The stenographer will note the gentleman's statement.

Mr. Blackwell yielded his turn to Mr. Williams of Marengo.

Resolution No. 249, by Mr. Williams of Marengo.

Be it resolved, that, on motions to reconsider, twenty minutes and no more, shall be allowed to each side for speech ‑ making, and thereupon a vote shall be taken.

Referred to Committee on Rules.

The Clerk then read the following resolution:

Resolution No. 250, by Mr. Burns:

Resolved, That no delegate shall, at the close of his remarks or speech make a motion to lay on the table, or call for the previous question.

Referred to Committee on Rules.

The Clerk will call the roll of standing Committees.

The roll of the Committees was called and when the Committee on Schedule, Printing and Incidental Expenses was reached Mr. Heflin of Randolph , called up the report of that Committee which had heretofore been placed on the calendar.

The report was read as follows:

Report of the Committee on Schedule, Printing and Incidental Expenses.

Mr. President:

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

The Committee has audited the accounts hereto attached and find that the State of Alabama is indebted to the Brown Printing Co., of Montgomery, Alabama, in the sure of $176.90.


2303

CONSTITUTIONAL CONVENTION, 1901

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

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

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

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

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

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

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

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

We find that said State is indebted to Miss Georgia Connelly in the sum of $8 for stenographic work done for Committee on Suffrage and Elections.

All of the above amounts are for printing done, for articles furnished State of Alabama for use of Constitutional Convention, and for services rendered to Committees of said Convention and all of the above amounts are itemized as shown by bills hereto attached. Total amount, $282.25, and we recommend the payment of the same. All of which is respectfully submitted.

Jno. T. Heflin, Chairman.

Committee on Schedule, Printing and Incidental Expenses.

MR. HI ‑ FLIN (Randolph) ‑ I now move that the report of the Committee on Schedule, Printing and Incidental Expenses be adopted and that the President of this Convention be authorized to draw his warrant on the State Treasurer in favor of the parties named in said report for the amount due them.

Upon a vote being taken the report was adopted.

MR. SMITH (Mobile) ‑ I desire to ask unanimous consent to make the report of the Judiciary Committee.


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OFFICIAL PROCEEDINGS

The consent was given and the report of the Judiciary Committee and the various minority reports were read as follows:

REPORT OF THE COMMITTEE, ON JUDICIARY

The Committee oil judiciary has carefully considered and discussed all of the provisions of Article VI, of the Constitution of 1875 relating to the judicial Department of the State, together with the several ordinances relating to that department, and instructs me to report to the Convention and recommend the adoption of the subjoined Article.

No radical departure has been made from the judicial system of the State as established by the Constitution of 1875, but the Article has been so written as to give more elasticity to the judicial system of the State, so as to enable the Legislature to extend or modify the system, from time to time, as may be necessary to, meet the needs of the State as its wealth and population increase, and to make a more economic and systematic arrangement of the system.

The Article reported does not change the jurisdiction of the, Supreme Court nor create any other court of final resort, but makes it possible for the Legisature to create an Inferior Appellate Court, to relieve the Supreme Court of any excess of labor that may ‑ be placed upon it. should the increasing litigation of the State hereafter require it.

The common law and chancery jurisdictions as separate and distinct systems are retained, and no change whatever is made in the practice under these separate and distinct systems; but the Legislature is authorized to confer both jurisdictions upon the Circuit or Chancery Courts or upon such inferior courts as the Legislature inay from time to time create, so as to enable the Legislature, if it shall become necessary for the convenience of business, to provide for the holding of courts more frequently in the various counties of the State, with but little, if any, additional expense to the State.

With the same view, the limitations upon the number of the circuit and chancery divisions into which the State is divided have been removed, and, in lieu thereof, it has been provided that no circuit or chancery division shall contain less than three counties, unless there be embraced therein a count ‑ having a population exceeding 20,000 and taxable property exceeding $3,500,000 in value, and that such counties need not to be included in any circuit or chancery division unless the value of its taxable property or its population shall be reduced below such limits. In the opinion of the Committee it is probable that many of such counties will be able to maintain inferior courts with a common law and equity jurisdiction, and the purpose of the Committee is to enable the


2305

CONSTITUTIONAL CONVENTION, 1901

Legislature to give to such counties separate courts to attend to their business, when the litigation of such comities swill justify it, and make such inferior courts take the place of both the Circuit and Chancery Courts in the counties in which they shall be established.

The system of Probate Courts and their jurisdiction is left wholly unchanged; but it is provided that whenever any court having equity powers has taken jurisdiction of the settlement of any estate, such court shall have the power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians and trustees, and including action upon the resignation of either of them.

The Article reported makes no change in the office or jurisdiction of Justices of the Peace, but provides that the Legislature may create Inferior courts, with the jurisdiction of a Justice of the Peace, for any precinct or precincts lying within or partly within any incorporated town or city having a population of more than 2,500 inhabitants, to supersede and take the place of all Justices of the Peace in such precincts, whenever such course may be deemed by the General Assembly to be wise, and further provides that the Governor except where otherwise provided by the General Assembly, shall have power to appoint one Notary Public with the jurisdiction of a Justice of the Peace in each precinct in which the election of Justices of the Peace shall be authorized.

The Article as rewritten makes no change in the terms of office of Chancellors, Circuit Judges and Judges of Probate, but provides that, in case of a vacancy in the office, the Governor shall fill such vacancy by appointment, and that such appointee shall hold office until the next general election held at least six months after the vacancy occurs, and until a successor is elected and qualified, and, further, that whenever any new circuit or chancery division is created, the Judges or Chancellor thereof shall be elected at the next election for representatives to the General Assembly, for a term to expire at the next general election for Judges and Chancellors, provided that if such new circuit or chancery division is created more than six months before the next election of Representatives to the General Assembly, the Governor shall appoint some one as Judge or Chancellor, as the case may he, to hold office until such election.

The Article as reported allows the General Assembly to provide the method of election or appointment of the judges of such inferior courts as may be created.

The Article reported provides for the election of Chief Justices and Associate Justices of the Supreme Court at the time and place fixed by law for the election of members of the House of


2306            

OFFICIAL PROCEEDINGS

Representatives of the Congress of the United States until the General Assembly shall, by law, change the time for holding such election; it provides that the term of the Chief Justice who shall be elected in 1904 shall be six years, and that two of the Associate justices to be elected in 1904 shall hold office until 1906, and that the remaining two Associate justices elected in 1904 shall hold office until 1908, and that the Associate justices elected in 1904 shall draw or cast lots among themselves to determine which of them shall hold office for the terms ending, respectively, in 1906 and 1908, and that the successors of the Chief Justice and Associate Justices elected in 1904, and all Chief Justices and Associate Justices thereafter elected, shall hold office for a term of six years, and that in the event of an increase or reduction in the number of Associate Justices of the Supreme Court, the General Assembly shall provide, as nearly as may be, for the election each second year of one ‑ third of the number of such Justices.

Solicitors are made elective by the people of the several territorial subdivisions of the State in which they are to serve.

In all other material respects the provisions of the Constitution of 1875 remain unchanged.

A majority of the Committee have voted in favor of each Section of the Article as reported, but several members of the Committee did not give their assent to certain of such sections, nor do they hold themselves bound to support, in the Convention, each of the sections that have been reported by the Committee ; several of them have prepared minority reports applying to one or more of the sections reported by the Committee, which are herewith presented to the Convention.

Gregory L. Smith,

Chairman of Judiciary Committee.

__________

JUDICIAL DEPARTMENT

Section 1. The judicial powers of the State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, Circuit Courts, Chancery Courts, Courts of Probate, such courts of law and equity inferior to the Supreme Court, and to consist of not more than five members, as the General Assembly from time to time may establish, and such persons as may be by law invested with powers of a judicial nature; but no court of general jurisdiction, at law or in equity, or both, shall hereafter be established in and for any one county having a population of less than twenty thousand or property assessed for taxation at a less valuation than three millions five hundred thousand dollars.


2307

CONSTITUTIONAL CONVENTION, 1901

Sec. 2. Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be co ‑ extensive with the State, under such restrictions and regulations, not repugnant to this Constitution, as may from time to time be prescribed by law, except where jurisdiction over appeals is vested in some inferior court, and made final therein; provided, that the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.

Sec. 3. The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to another place.

Sec. 4. Except as otherwise authorized in this Article, the State shall be divided into convenient circuit. For each Circuit there shall be chosen a Judge, who shall, for one year next preceding his election and during his continuance in office, reside in the circuit for which he is elected.

Sec. 5. The Circuit Court shall have original jurisdiction in all matters civil and criminal within the State not otherwise excepted in this Constitution; but in civil cases, other than suits for libel, slander, assault and batter and ejectment, it shall have jurisdiction only where the matter or sum iii controversy exceeds fifty dollars.

Sec. 6. A Circuit Court, or a court having the jurisdiction of the Circuit Court, shall be held in each county in the State at least twice in every, years, and the Judges of the several courts mentioned in this section may hold court for each other when they deem it expedient, and shall do so when directed by law. The Judges of the several courts mentioned in this section shall have power to issue writs of injunction, returnable in the Courts of Chancery, or courts having the jurisdiction of Courts of Chancery.

Sec. 7. The General Assembly shall have power to establish a court or courts of Chancery, with original and appellate jurisdiction, except as otherwise authorized in this Article. The State shall be divided by the General Assembly into convenient chancery divisions; each division shall be divided into districts, and for each division there shall be a Chancellor, who shall have resided for one year next preceding his election or appointment, and, at the time of his election or appointment and during his continuance in office, in the division for which he shall be elected or appointed.

Sec. 8. A Chancery Court, or a court having the jurisdiction of the Chancery Court, shall be held in each district, at a place to be fixed by law, at least twice in each year, and the Chancellors may hold court for each other when they deem it necessary.


2308

OFFICIAL PROCEEDINGS

Sec. 9. Any county having a population exceeding twenty thousand, according to the next preceding Federal census, and also taxable property exceeding three million five hundred thousand dollars in value, according to the next preceding assessment of property for State and county taxation, need not be included in any circuit or chancery division; but. if the value of its taxable property shall be reduced below that limit or if its population shall be reduced below that number, the General Assembly shall include such county in a circuit and chancery division or either, embracing more than one county.

No circuit or chancery division shall contain less than three counties, unless there be embraced therein a county having a population exceeding twenty thousand and taxable property exceeding three million five hundred thousand dollars. The General Assembly may confer upon the Circuit Court or the Chancery Court the jurisdiction of both of said courts. In counties having two or more courts of record, the General Assembly may provide for the consolidation of all or any of such courts of record, except the Probate Courts, with or without separate divisions, and an appropriate number of judges for the transaction of the business of such consolidated court.

Sec. 10. The General Assembly shall have power to establish in each county within the State a Court of Probate, with general jurisdiction to grant letters testamentary and of administration, and of orphans' business; provided, that whenever any court having equity powers has taken jurisdiction of the settlement of any estate it shall have power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians and trustees. and including action upon the resignation of either of them.

Sec. 1. The Justices of the Supreme Court, Chancellors, and the Judges of the Circuit Courts, and other courts of record, except Probate Courts, shall, at stated times receive for their services a compensation which shall not be diminished during their official term; they shall receive no fees or perquisites, nor hold any office (except judicial offices) of profit or trust under this State or the United States, or any other power, during the term for which they have been elected.

Sec. 12. The Supreme Court shall consist of one Chief Justice and such number of Associate justices as may be prescribed by law.

Sec. 13. The Chief Justice and Associate Justices of the Supreme Court, Judges of the Circuit Courts, Probate Courts and Chancellors, shall be elected by the qualified electors of the State, circuits, counties and chancery divisions for which such courts may


2309

CONSTITUTIONAL CONVENTION, 1901

be established, at such times as may be prescribed by law, except as herein otherwise provided.

Sec. 14. The Judges of such inferior courts of law and equity as may be by law established, shall be elected or appointed in such mode as the General Assembly may prescribe.

Sec. 15. Chancellors and judges of all courts of record, shall have been citizens of the United States and of this State for five years next preceding their election or appointment, and shall be not less than twenty ‑ five years of age, and, except Judges of Probate Courts, shall be learned in the law.

Sec. 16. Except as otherwise provided in this article, the Chief Justice and Associate Justices of the Supreme Court, Circuit Judges, Chancellors and Judges of Probate, shall hold office for the term of six years and until their successors are elected or appointed and qualified; and the right of such Judges and Chancellors to hold their offices for the full term hereby prescribed shall not be affected by any change hereafter made by law in any circuit, division, or county, in the mode or time of election.

Sec. 17. The Chief Justice and Associate Justices of the Supreme Court shall be chosen at an election held at the time and places fixed by law for the election of members of the House of Representatives of the Congress of the United States, until the General Assembly shall, by law, change the time of holding such election. The term of office of the Chief Justice who shall be elected in the year 1904 shall be as provided in the last preceding section. The successors of two of the Associate Justices elected in 1904, shall be elected in the year 1906, and the successors of the other two Associate Justices elected in 1904, shall be elected in the year 1908. The Associate Justices of said court elected in the year. 1904 shall draw or cast lots among themselves to determine which of them shall hold office for the terms ending, respectively, in the years 1906 and 1908, and until their respective successors are elected or appointed and qualified. The result of such determination shall be certified to the Governor, by such Associate Justices, or a majority of them prior to the first day of January, 1905, and such certificates shall be entered upon the minutes of the court. In the event of the failure of said Associate Justices to make and certify such determination, the Governor shall designate the terms for which they shall respectively hold office, as above provided, and shall issue his proclamation accordingly. In the event of an increase or reduction by law of the number of Associate Justices of the Supreme Court, the General Assembly shall. as nearly as may be, provide for the election. each second year, of one ‑ third of the members of said court.

Sec. 18. All judicial officers within their respective jurisdiction shall, by virtue of their offices, be conservators of the peace.


2310

OFFICIAL PROCEEDINGS

Sec. 19. Vacancies in the office of any of the judges who hold office by election, or chancellors of this state shall be filled by appointment by the Governor; such appointee shall hold his office until the next general election held at least six months after the vacancy occurs, and until his successor is elected and qualified ; the successor chosen at such election shall hold office for the unexpired term and until his successor is elected and qualified.

Sec. 20. Whenever any, new circuit or chancery division, is created, the judge or chancellor therefor shall be elected at the next election for representatives to the General Assembly for a terms to expire at the next general election for judges and chancellors; provided that, if said new circuit or chancery division is created more than six months before the next election of representatives to the General Assembly, the Governor shall appoint some one as judge or chancellor, as the case may be, to hold  the office until such election.

Sec. 21. If in any case, civil or criminal, pending its any circuit court, chancery court, or either of them in this State, the presiding judge or chancellor shall, for any legal cause, be incompetent to try, hear or render judgment in such case, the parties, or their attorneys of record, if it be a civil case or the solicitor or prosecuting officer, and the defendant or defendants, if it be a criminal case, may agree upon some disinterested person, practicing in the court and learned in the law, to act as special judge or chancellor to sit as a court, and to hear, decide and render judgement in the same manner and to the same effect as a chancellor as a judge of the circuit court, or if a court having  the jurisdiction of a circuit and chancery court, or either, sitting as a court might do in such case. If the case be a civil one and the parties or their attorneys of record do not agree; or if it be a criminal one and the prosecuting officer and the defendant or defendants do not agree upon a special judge or chancellor, or if either party in a civil cause is not represented in court, the register in chancery or the clerk of such circuit or other court, in which said cause is pending, shall appoint a special judge or chancellor, who shall preside, try, and render judgment as in this section provided. The General Assembly may prescribe other methods for supplying special judges in such cases.

Sec. 22. The General Assembly shall have power to provide for the holding of chancery and circuit courts, and for the holding of courts having the jurisdiction of circuit and chancery courts, or either of them, when the chancellors or judges thereof fail to attend regular terms.

Sec. 23. No judge of any court of record its this State, shall practice law in any of the courts of this State, or of the United States.


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CONSTITUTIONAL CONVENTION, 1901

Sec. 24. Registers in chancery shall be appointed by the chancellors of the respective divisions, and shall have been at least twelve months before their appointment, and shall be at the time Of their appointment and during their continuance in office, resident citizens of the district for which they are appointed. They shall hold office for the term for which the chancellor making such appointment was elected or appointed. Such registers shall receive as compensation for their services only such fees and commissions as may be specifically prescribed by law, which fees shall be uniform throughout the State.

Sec. 25. The clerk of the Supreme Court shall be appointed by the Judges thereof, and shall hold office for the term of six years, and the clerks of such inferior courts as may be established by law shall be elected in such manner as the General Assembly may provide.

Sec. 26. Clerks of the circuit court shall he elected by the qualified electors in each county for the terns of six years, and may, when appointed by the chancellor, also fill the office of register in chancery. Vacancies in such office of clerk shall be filled by the Governor for the unexpired term.

Sec. 27. The clerk of the Supreme Court and registers in chancery may be removed from office by the justices of the Supreme Court, and by the chancellors, respectively, for cause, to be entered at length upon the minutes of the court.

Sec. 28. A solicitor for each judicial circuit, or other territorial subdivision prescribed by the General Assembly, shall be elected by the qualified electors of such circuit or other territorial subdivision, who shall be learned in the law, and who shall, at the time of his election, and during his continuance in office, reside in the circuit or other territorial subdivision, for which he is elected, and whose term of office shall be for four years; provided, that this Article shall not operate to abridge the term of any solicitor now in office; and, provided, further, that the solicitors elected in the year 1904 shall hold office for six years and until their successors are elected and qualified.

Sec. 29. In each precinct not lying within, or partly within, any city or incorporated town of more than twenty ‑ five hundred inhabitants, there shall be elected, by the qualified electors of such precinct not exceeding two justices of the peace and one constable. Where one or more precincts lie within, or partly within, a city or incorporated town having more than twenty ‑ five hundred inhabitants, the General Assembly may provide by lair for the election of not more than two justices of the peace and one constable, for each of such precincts, or an inferior court for such precinct or precincts, in lieu of all justices of the peace therein. Justices of the peace, and the inferior courts herein provided for, shall


2312

OFFICIAL PROCEEDINGS

have jurisdiction in all civil cases where the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment. The General Assembly may provide by law what fees may be charged by Justices of the Peace and Constables, which fees shall be uniform throughout the State. The right of appeal from any judgement of a Justice of the Peace, or from any inferior court authorized by this section, without the prepayment of costs, and also in the term of office of such Justices, and of the Judges of such inferior courts, and of notaries public, shall be provided for by law. The Governor may appoint notaries public without the powers of a Justice of the Peace, and may, except where otherwise provided by an act of the General Assembly, appoint not more than one notary public with all of the powers and jurisdiction of a Justice of the Peace for each precinct in which the election of Justices of the Peace shall be authorized.

Sec. 30. The Attorney General shall be elected by the qualified electors of the State at the same time places of election of members of the General Assembly, whose term of office shall be for four years and until his successor is elected and qualified. After his election, he shall reside at the seat of government, shall be the, law officer of the State, and shall perform such duties as may be required of him by law.

Sec. 31. The style of all process shall be "The State of Alabama" and all prosecutions shall be carried on in the name and by the authority of the same, and shall conclude “Against the Peace and Dignity of the State.”

MINORITY REPORTS

Mr. President:

The undersigned members of the Committee on Judiciary do not concur in the majority report so far as it refers to Sections 25 and 27 of the article reported, and they recommend the adoption of the following sections in lieu of said  Sections 25 and 27, respectively;

Sec. 25. The Clerk of the Supreme Court shall be elected by the qualified electors of the State for a term of six years. Any vacancy in the office of such Clerk shall be filled by appointment by the justices of the Supreme Court for the unexpired term. Said Clerk shall not, after the expiration of the term of the Clerk now in office, receive to his use any fees, costs perquisites of office or compensation other than a salary to be prescribed by law, which shall not be diminished during his official term.


2313

CONSTITUTIONAL CONVENTION, 1901

Sec. 2. Registers in Chancery may be removed from office by the Chancellors, respectively, for cause, to be entered at length upon the minutes of the court.

R. W. Walker, O. R. Hood, J. M. Jones, W. H. Tayloe, John A. Davis, William C. Fitts, John T. Ashcraft, Norville R Leigh, Jr.. R W. Coleman, J. T. Kirk.

MINORITY REPORT JUDICIARY COMMITTEE

The undersigned member of the committee differs from the majority as to Section 29 of said report and would suggest the following change in the last paragraph of the section:

"Strike out the word ‘except' and strike out the word `otherwise' in the last paragraph of Section 29.

J. McLean Jones.

Mr. President.

The undersigned member of the Committee on Judiciary does not concur in the report of the majority of the committee in recommending the adoption of Sections 2 and 9 of said report.

I object to the adoption of Section 2 of said report for the reason it empowers the General Assembly to create an intermediate Court of Appeal, which in my judgment is unwise. The object of the majority of the committee is to furnish relief to the Supreme Court. The relief needed can be furnished when necessary by increasing the number of Associate Justices. I object to the creation of said court for the further reason there will be irreconcilable conflict in the decisions of this and the Supreme Court which would render the law uncertain on many questions to the great annoyance of the people. The expense of sustaining the court will, in my judgment, cost the State about $15.000 per annum. The addition of two Associate Justices to the Supreme Court will not cost more than half of that amount. I therefore offer as a substitute for Section 2 the following:

Sec. 2. Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be co ‑ extensive with the State, under such restric‑


2314

OFFICIAL PROCEEDINGS

tions and regulations not repugnant to this Constitution as, may from time to time be prescribed by law, provided, the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warranto and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdiction.

I object to the adoption of Section 9 as reported by the committee:

First, this section provides for the establishment of too many Circuit Courts and courts with circuit and chancery jurisdiction. Under the report of the committee, the General Assembly is authorized to establish at the cost of the State, a court in nineteen counties with Circuit and Chancery Courts jurisdiction, which with the 13 Circuit Courts and five Chancery Courts as now exist will make 37 courts to do the work that is now being done by 13 Circuit Judges and 5 Chancellors. I further object to Section 9 as reported by the committee for the reasons it authorizes the General Assembly to abolish the Court of Chancery. The system of separate Chancery Courts has been too long a part of the judicial system of this State to be abolished. I therefore offer as a substitute for Section 9 as reported by the Committee the following:

Sec. 9. Any county having a population exceeding 30,000 according to the next preceding Federal census and also taxable property exceeding $7,000,000 in value according to the next preceeding assessment for property for State and county taxation need not be included in any circuit or chancery division, but if the value of the taxable property shall be reduced below that limit, or its population shall be reduced below that number in either of which events the General Assembly shall include such county in a circuit or chancery division or either, embracing more than one county.  No circuit or chancery division shall contain less than three counties, unless there be embraced therein a county having a population exceeding 30,000, and taxable  property exceeding $7000,000. The counties of this State not having a population of $30,000 and taxable property of $7,000,000 or more shall be divided into convenient circuits by the General Assembly at its, session after the adoption of this Constitution, and when so divided the number of circuits shall not be increased except by a vote of two-thirds of the General Assembly.            

J. T. Kirk._________

Mr. President:

We, the undersigned members of the Judiciary Committee, believing that biennial elections should be dispensed with, and that only one election in every four years should be held for the selec‑


2315

CONSTITUTIONAL CONVENTION, 1901

tion of State and county officers, do not concur in the report of the Committee as to Sections 16, 17 and 26.

Therefore, we move as a substitute for Section 16 the following .

Sec. 16. Except as otherwise provided in this Article, the Chief Justice and Associate Justices of the Supreme Court shall hold office for the term of eight years, and until their successors are elected and qualified. Circuit Judges, Chancellors and Judges of Probate shall hold office for a term of four years, except as otherwise provided in this Article, and until their successors are elected or appointed and qualified ; Provided, that this Section shall not operate to abridge the term of any Justice of the Supreme Court, Judge, Chancellor or Judge of Probate now in office; and provided, further, that the Justices of the Supreme Court, Judges, Chancellors and Judges of Probate elected in 1904, shall hold office for the term of six years, and until their successors are elected and qualified.

We move as a substitute for Section 17 the following:

Sec. 17. The Chief Justice and Associate Justice of the Supreme Court shall he chosen at an election held for the election of members of the Legislature in the year 1910. The term of the office of the Chief Justice who shall be elected in 1910 shall be as prescribed in the preceding Section. As nearly as possible, onehalf of the Associate Justices elected in 1910 shall hold office for the term of four years and until their successors are elected and qualified; and the remainder for the term of eight years, and until their successors are elected and qualified. The Associate Justices elected in 1910 shall determine by lot among themselves which of them shall hold office for the term ending 1914 and 1918, respectively, the result when so determined to be certified to the Governor by such Associate Justices or a majority of them, and also to be entered upon the minutes of the Court. In the event of the failure of such Associate Justices to make and certify such determination, the Governor shall designate the term for which they shall hold office respectively, as above provided, and shall issue his proclamation accordingly.

We move to amend as a substitute for Section 26 the folowing:

Sec. 26. A Clerk of the Circuit Court shall he elected by the qualified electors in each county for the terns of four years, and may, when appointed by Chancellor, also hold the office of Register in Chancery. Vacancies in such office of Clerk shall be filled by appointment by the Governor. But nothing in this Section shall operate to abridge the term of any clerk now in office; and


2316

OFFICIAL PROCEEDINGS

clerks elected in the year 1904 shall hold office for the term of six years, and until their successors are elected and qualified.

C. C. NeSmith, Wm. C. Fit J. B. Duke. _________

Mr. President :

The undersigned, a minority of the Judiciary Committee, do not concur in the report of the Committee as to the manner of          electing Solicitors by a vote of the people. For reasons that will be made manifest in argument on the floor of the Convention, we, the minority of said Committee, submit the following ordinance in lieu of the report of the Committee:

Be it ordained, etc.:

"Sec. 28. A Solicitor for each Judicial Circuit or other territorial subdivision prescribed by the Legislature shall be elected by joint ballot of the Legislature, who shall, at the time of his election, and during his continuance in office, reside in the circuit or other territorial subdivision, for which he is elected, and whose term of office shall be for four years; and who shall be paid a salary to be fixed by law, and which shall not be increased or diminished during the term for which he is elected: Provided, that nothing in this Article shall operate to abridge the term or emoluments of' any Solicitor now in office.

Respectfully submitted,

Robert J. Lowe, J. B. Duke, Jno. T. Heflin, Wm. H. Samford, Edward A. Graham, J. T. Kirk, Chas. W. Ferguson.

MINORITY REPORT

As to Sections 16 and 17 of  the Report of the Committee on Ju        diciary:

Mr. President:

The undersigned, a minority of the Committee on Judiciary, respectfully differ with the majority of the Committee as to Sections 16 and 17 of the report of said committee.


2317

CONSTITUTIONAL CONVENTION, 1901

The policy of this Convention seems to be that elections in this State shall occur every four year. This is indicated by the adoption of the report of the Committee on Executive Department, fixing the term of all State officers at four years, and also by the report of the Committee on Legislation. If the terms of the Judges of the several courts shall be fixed at six years, this will necessitate occasionally an election for Judges when no other offices are to be elected. The substitute proposed by the undersigned will obviate this and bring the election of Judges at the time when other officers will be elected. Our substitutes propose that all the Judges of Probate, Judges of Circuit Courts, Chancellors and Justices of the Supreme Court, shall be elected in the year 1904 for a term of six year, and that thereafter the terms of judges of the Probate Court shall be four years, and the terms of justices of the Supreme Court, Judges of the Circuit Courts and Chancellors shall be eight years. Our proposition also is that not more than one ‑ half of the Justices of the Supreme Court shall be elected at one time. We think this last proposition will tend to increase the efficiency of said court. If our substitutes are adopted, there will be no necessity for an election for Judges and Chancellors at any other time than that fixed for the election of other officers. The term of Judges of the Probate Courts is reduced after 1910 to four years, and the terms of the other Judges and Chancellors increased to eight years after 1910. We do not deem it to the interest of the State that the term of Judges of the Circuit Court and Chancellors shall be reduced to four years, and as it seems impracticable to let said terms remain at six years, we deem it the better policy to fix the terms of those Judges and Chancellors at eight years. We believe that a better Judge. can be found for an eight ‑ year than a four ‑ year term.

We, therefore, beg leave to submit herewith a substitute for each of said Sections 16 and 17. The substitute for Section 16 is as follows:

Section 16. In the year 1904 Judges of the Probate Courts, Judges of the Circuit Courts and Chancellor, shall be elected by the qualified electors of the respective counties, circuits and chancery divisions for a term of six years and until their, successors are elected and qualified In the year 1910, and every four years thereafter, Judges of the Probate Courts shall be elected by the qualified electors of the respective counties for a term of four years, and until their successors are elected and qualified. In the year 1910 and every eight years thereafter, Judges of the Circuit Courts and Chancellors shall be elected by the qualified electors for the respective circuits and chancery divisions for a term of eight years, and until their successors are elected and qualified. The right of such Judges and Chancellors to hold their offices for the full term hereby prescribed, shall not be affected by any change


2318

OFFICIAL PROCEEDINGS

hereafter made by law in any circuit, division or county in the mode or time of election.

The substitute for Section 17 is as follows:

Section 17. In the year 1904, the Chief Justice and Associate Justices of the Supreme Court shall be elected by the qualified electors of the State for a term of six years and until their successors are elected and qualified. In the year 1910, and every eight years thereafter, the Chief Justice shall be elected by the qualified electors of the State for a terns of eight years, and until his successor is elected and qualified. Two of the Associate Justices elected in 1910 shall hold their offices for the term of four years, and two for the term of eight years, and until their successors are elected and qualified, and in the year 1914, and every four years thereafter, two of such Associate Justices shall be elected by the qualified electors of the State for a term of eight years, and until their successors are elected and qualified. The Associate Justices of said court elected in the year 1910, shall draw or cast lots among themselves to determine which of them shall hold office for the terms ending, respectively, in the years 1914 and 1918, and until their successors are elected and qualified, the result of said determination to be certified to the Governor by such Associate  Justices or a majority of them prior to the first day of January, 1911, and also to be entered upon the minutes of the court. In the event of the failure of said Associate Justices to make and certify such determination, the Governor shall designate which of said Associate justices shall go out of office in 1914 and 1918, respectively, and issue his proclamation accordingly. In the event of the increase or reduction by law of the number of Associate Justices of the Supreme Court, the General Assembly shall, as nearly as may be, provide for the election every four years of one ‑ half of the whole number of Justices, including the Chief Justice of said Court, for a term of eight years.

Respectfully submitted,

Thos. H. Watts, Norville R. Leigh, Jr.. Edward A. Graham. J. McLean Jones, Wm. H. Samford. H. Pillans,

MR. SMITH ‑ I move that the reports of the majority and of the minority as well, together with the Articles, be printed and that the Article be made a special order of business after the special orders already designated.             

A vote being taken the motion was carried.


2319

CONSTITUTIONAL CONVENTION, 1901

MR. BLACKWELL ‑ I want to make a personal statement in justice to General Jones of Wilcox. On Saturday last when the report of the Committee on State and County Boundaries was up and while we were considering the proposition to reduce the constitutional area of counties from 600 square miles to 500 square miles, I overlooked the fact that I was paired with Gen. R. C. Jones. If he had been here he would have voted against any reduction. I desire to make this statement so that General Jones may be made to appear properly.

THE PRESIDENT PRO TEM ‑ The next order of business will be the consideration of the Report on the Legislative Department.

Section 6 was read as follow:

Sec. 6. The pay of members of the Legislature shall be $4 per day, and 10 cents per mile in going to and returning from the seat of government, to be computed by the nearest usual route traveled.

MR. OATES ‑ I rise to ask unanimous consent to insert a word that seems to have been omitted. It is the word "the" between "pay of" and "members." It should read "The pay of the members," etc.

By consent the word was inserted.

MR. MURPHREE ‑ I have an amendment.

The amendment was read as follows:

Amend Section 6 by striking out the word "ten" and inserting the word "five," and add at the end of the Section: "The members using free railroad passes shall not be entitled to any mileage from the State."

MR. MURPHREE-I have no objections if the members desire to vote separately on these two propositions. The first is to strike out "ten" and insert "five" for the mileage of members of the Legislature. It seems clear to nice that the members of that body should not be allowed to charge 10 cents per mile, when they only have to pay 3 cents. That is more than three times what it costs and I cannot see the justice of it.  Of course, where they have passes in their pockets they ought not to require the State to pay them 10 cents per mile.

It does not seem to me that it is necessary to snake any speech in advocacy of either of these two amendments, it seems to the they speak for themselves.

So far as I and concerned I would like to have a record of the vote upon these two propositions but if others do not want it I shall not insist on it.


2320

OFFICIAL PROCEEDINGS

MR. OATES ‑ I rise for the purpose of stating the views the Committee had in regard to this matter. It is reported in the exact words in which it appears in the present Constitution. The question was discussed in the Committee and in the opinion of some $4 per diem was not enough. In the opinion of other, the mileage of 10 cents was too much. So we thought upon an average it was about right, and we let it remain as it is and that is the only reason I know of that it should remain as it is.

The statement of the delegate from Pike is quite true that 10 cents is three times as much as it costs the members to travel. The only reason that was permitted to remain was because of the fact that I have suggested.

A friend asks the question suppose they would lay over on the way? That is never taken into consideration in allowing the mileage.

As to the latter part of the proposition. if a member has a pass and it does not cost him anything to come to the Legislature, of course, he should not collect mileage from the State. But I have no right to presume that such is or would be the case, that any member would travel upon a pass and then collect mileage.

MR. BROOKS ‑ I move for a division of the question so that the question of taking a vote on the first part of the amendment can lie passed on separately from the last part.

MR .deGRAFFENREID ‑ I am opposed  to members of the General Assembly using passes, but I am going to move to lay the amendment on the table and then a division can be called for.

MR. REESE ‑ I would ask the gentleman to withdraw that so that I can offer a substitute for this amendment.

MR. deGRAFFENREID ‑ I will withdraw it if the House permits me.

The motion to table was permitted to be withdrawn and the amendment substitute of the delegate from Dallas was read as follows:

Amend by striking out the word "ten" and insert the word "five."

MR. REESE ‑ That amendment only relates to the first part of the amendment of the delegate from Pike. When we dispose of this matter the other matter can then he brought directly before the Convention as to whether a legislator can receive pay for mileage when he has not paid his fare.

MR. deGRAFFENREID ‑ I move to lay the amendment to the amendment on the table, and the whole business.


2321

CONSTITUTIONAL CONVENTION, 1901

MR. BROOKS ‑ I call for a division of the question.

MR. SPEARS ‑ Upon that division of the question I call for the ayes and noes.

MR. OATES—The division calls for a separation of the proposition striking out ten and substituting five, and the other is as to the pass proposition.

THE  PRESIDENT PRO TEM ‑ The Chair is of the opinion that the present parliamentary status of the question is not divisable. And the question is on the motion of the delegate from Hale to table.

There was no objection and the motion to table was withdrawn.

MR .O’NEAL-Now, I move to lay the substitute of the gentleman from Dallas on the table.

A vote being taken the motion to table was carried.

MR. NESMITH ‑ I now move to lay the amendment of the delegate from Pike on the table.

MR. OATES ‑ If the delegate withdraws that I will move for a division.

MR. NESMITH ‑ Under the rules that cannot be divided.

THE  PRESIDENT  PRO  TEM ‑ The Chair is of the opinion that the question involved in the amendment offered by the gentleman from Pike is divisible.

MR. BROOKS ‑ I  made the motion first for a division of the question, but I wish to say that the Convention in laying upon the table the substitute of the gentleman from Dallas relieves the Houses from the necessity of having any division of the question as that strikes the first proposition out.

MR. PETTUS ‑ I rise to a point of order. A motion to table is not debatable.

MR. OATES ‑ I do not understand that there is any motion to table now pending.

THE PRESIDENT PRO TEM ‑ Then the question now is upon the adoption of the amendment of the delegate from Pike.

MR. deGRAFFENREID ‑ And on that I call for the previous question.

MR. WADDELL ‑ I offer an amendment.

MR. REESE ‑ I  rise to a point of order; there is a motion to table and no amendment can be offered at this time, and I call


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OFFICIAL PROCEEDINGS

for the ayes and noes. I desire to have the house put on record as to whether they are going to pay legislators mileage when they have passes.

THE PRESIDENT PRO TEM ‑ The motion to table was withdrawn.

MR. NESMITH ‑ I made the motion to table and never withdrew it.

THE PRESIDENT PRO TEM ‑ The chair understood the gentleman had withdrawn his motion to table.

MR. NESMITH ‑ I had not.

MR. WADDELL ‑ I believe I have the floor. I offered an amendment and never yielded the floor.

MR. SAMFORD (Pike) ‑ I rise to a point of order that the gentleman was not entitled to the floor. that a motion to table, was pending.

THE PRESIDENT PRO TEM ‑ The point is well taken and the motion is to table the amendment of the delegate from Pike.

MR. deGRAFFENREID ‑ I call for a division of the question.

THE PRESIDENT PRO TEM ‑ In the opinion of the chair, the amendment offered by the gentleman from Pike is divisible, and the question is, shall the question be divided?

MR. REESE ‑ If it is capable of division, that is a matter of right and does not have to be submitted to the house. On the last proposition embraced in the amendment. I demand the ayes and noes.

THE PRESIDENT PRO TEM- It is the opinion of the chair that the question is capable of division, and the first part will first be put to the Convention, and the call of the gentleman from Dallas is a little premature at this time. The first part of the amendment is to strike out ten and insert five, and the question is on that part of the amendment.

MR. PILLANS ‑ I understood the question to be on the motion to table.

MR. BROWNE ‑ On that the gentleman from Montgomery demands the yeas and nays.

MR. OATS ‑ No, sir; I didn't do any such a thing.

THE PRESIDENT PRO TEM ‑ The question is on the motion to table the first part of the amendment.


2323

CONSTITUTIONAL CONVENTION, 1901

A vote being taken the first part of the amendment was tabled.

MR. REESE ‑ On the motion to table the latter part of the amendment, I demand the ayes anti noes.

The latter part of the amendment was read as  follows: "Add at the end of the sections the words, ‘The members using free railroad passes shall not be entitled to any mileage from the State.' "

MR. WHITE: ‑ I have a substitute for that.

THE PRESIDENT PRO TEM- The gentleman is out of order at this time. The pending motion is to lay on the table the part of the amendment just read, and on that the ayes and noes have been demanded. Is the call sustained?

The call was sustained.

MR. GREER ‑ Would that apply to newspaper men whose passes are paid for by advertisement?

Mk. O'NEAL ‑ I would like to have the whole section read, including the amendment.

This was done, and the roll call then had, resulted as follows:

AYES

Banks,

Gilmore,

Reynolds (Henry),

Barefield,

Greer, of Calhoun,

Rogers, of Sumter,

Browne,

Greer, of Perry,

Searcy,

Bulger,

Harrison,

Sentell,

Byars,

Heflin, of Chambers,

Sloan,

Cardon,

Heflin, of Randolph,

Sorrell,

Carmichael, of Colbert,

Howell,

Stewart,

Case,

Inge,

Studdard,

Chapman,

Kirkland,

Vaughan,

Coleman, of Greene,

Maxwell,

Waddell,

Craig,

N eSmith,

Weatherly,

Davis, of DeKalb,

Oates,

Willet,

Davis, of Etowah,

O'Rear,

Williams, of Marengo

Duke,

Pearce,

Wilson, of Washington,

Foshee,

Pitts,

Foster,

Proctor,

 TOTAL ‑ 46

NOES

Beddow,

Burns,

Espy,

Bethune,

Cobb,

Fletcher,

Blackwell,

Cofer,

Freeman,

Brooks,

deGraffenreid,

Glover,

Burnett,

Eley,

Graham, of Talladega,

 



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OFFICIAL PROCEEDINGS

Grayson,

McMillan, of Wilcox,,

Rogers, of Lowndes,

Haley,

Malone,

Samford,

Handley,

Martin,

Sanders,

Hinson,

Merrill,

Sanford,

Hood,

Miller, of Marengo,

Smith, of Mobile,

Howze,

Miller, of Wilcox,

Smith, Mac A.,

Jackson,

Moody,

Smith, Morgan M.,

Jones, of Bibb,

Murphree,

Sollie,

Jones, of Hale,

Norman,

Spears,

Jones, of Montgomery,

Norwood,

Spragins,

Jones, of Wilcox,

()'Neal, of Lauderdale,

Tayloe,

Kirk,

O'Neill (Jefferson),

Thompson,

Knight,

Opp,

Walker,

Leigh,

Palmer,

Watts,

Locklin

Parker of Elmore,

Weakley,

Lomax,

Pettus,

White,

Long, of Walker,

Pillans,

Whiteside,

Lowe, of Jefferson,

Reese,

Williams of Barbour,

MacDonald,

Reynolds, of Chilton,

Wilson of Clarke,

McMillian (Baldwin),

Robinson,

Winn

 TOTAL ‑ 75

ABSENT OR NOT VOTING

Messrs, President,

Dent,

Long, of Butler,

Almon,

Eyster,

Lowe, of Lawrence,

Altman,

Ferguson,

Morrisette,

Ashcraft,

Fitts,

Mulkey,

Bartlett,

Graham, of Montgomery,

Parker, of Cullman,

Beavers,

Grant,

Phillips,

Boone,

Henderson,

Porter,

Carmichael, of Coffee,

Hodges,

Renfro,

Carnathon,

Jenkins,

Selheimer,

Coleman, of Walker,

King,

Williams, of Elmore,

Cornwall,

Kyle,

Cunningham,

Ledbetter,

By a vote of 46 ayes and 75 noes, the motion  to table was lost.

MR. WHITE ‑ I have an amendment.

The amendment was read as follows: "Amend Section 6, as amended by‑"

MR. WADDELL ‑ I rise to a point of order. Section 6 has not been amended.

THE PRESIDENT PRO TEM ‑ In the opinion of the Chair the point of order made by the gentleman from Russell is well taken. The section has not been amended.

MR. WHITE ‑ I offer it then as a substitute.


2325

CONSTITUTIONAL CONVENTION, 1901

MR. OATES-For the section or the amendments?

MR. WHITE -As a substitute for the pending amendment.

The substitute was read as follows: “Substitute for amendment to Section 6, by striking out all of said section after the word ‘provided’ and insert the following: That the members of the legislature shall not accept free transportation from any common carrier, during his term of office. Any member receiving, or using any such free transportation, shall be guilty of a misdemeanor and shall forfeit his office.

THE PRESIDENT PRO TEM- The question is upon the adoption of the substitute offered by the gentleman from Jefferson to the amendment offered by the gentleman from Pike.

MR WHITE- The amendment offered by the gentleman from Pike as I understand it, does not meet the difficulty. It is good as far as it goes, but it does not go far enough and I would like to have the amendment offered by the gentleman from Pike read in connection with my remarks.

The amendment of the gentleman from Pike was read as follows: “The member using free railroad passes shall not be entitled to any mileage from the State.”

MR. WHITE- Merely prohibiting a member in that way, will not accomplish anything. Transportation is very much more valuable than the mileage. The effect of that would be simply to deprive the member from accepting mileage from the State, and yet he may have annual passes in his pocket that will be worth hundreds of dollars to him. Now my amendment contemplates that he shall draw his mileage from the State as he ought to do. The State ought to pay its members mileage and they ought to be paid enough to cover that mileage.   I am not opposed to ten cents a mile, because I do not believe in stinting a member of the legislature along that line, but I am opposed to a member of the legislature drawing his mileage from the State and accepting from the great lines of transportation free passes during his membership. You talk about the evils that have been inflicted upon this country and I tell you sir, in my humble judgment there is nothing so ruinous to the interests of the people of the State as the use of free transportation by members of the legislature. What right have I, sir, or any other member of the legislature, to accept from a great corporation free transportation for myself during the time that I am a public servant?  They tell us that it is not a bribe, and I think they are right.  It is not intended, or it is not accepted at least, in that sense, but does not our common experience and our common observation along those lines lead us to conclude that it does in fact, have an undue influence over members whether it is intended or not?  It is not a question of intention, but it


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OFFICIAL PROCEEDINGS

is a question of what the effect of it is, and I say the effect of it is this, that you cannot, while members of the legislature carrying free transportation in your pockets, obtain for the people the redress that they are entitled to from such members. Is it right to provide a remedy for this thing? The great State of New York says it is right and places it in her Constitution. Other great States of the Union have declared it was right. The Constitution of Alabama today says it is right that free transportation should not be granted, and yet, in the, face and in the teeth of that Constitution which them have sworn to observe, we know that it is granted and accepted.

MR. SMITH (Mobile) ‑ You have spoken a good many times of the members accepting transportation. I desire to ask if the gentleman ever heard of transportation being tendered to a member without first being asked for?

MR. WHITE ‑ Yes, sir, I have. I have had it tendered to me, and I had the great pleasure of saying that I would not accept it.

MR. SMITH ‑ I didn't know it. I have been connected with railroads for about twenty ‑ four years, and I have never heard of it.

MR. WHITE ‑ And it was about twenty ‑ four years ago when the offer was made to me.

MR. Smith (Mobile) ‑ Oh, yes.

MR. WHITE ‑ But that is sticking in the bark.  Whether it is offered first and accepted, or whether it is requested, is not the question. The question is the getting of it. That is the material question. They receive it and it is immaterial to us whether it is tendered or whether it is solicited by the member. That is a matter that does not concern us. What we want to do is to say that you shall not accept it. You shall not use it, and when we have done that, then there will be no offer of free transportation on the one hand or solicitation of it on the other.

MR. REYNOLDS (Chilton)  ‑ The only thing it would do would be a forfeiture of office?

MR. WHITE ‑ No, sir; I say it is a misdemeanor. My amendment not only makes it a forfeiture of his office, but it makes him guilty of a misdemeanor that he may be punished, and if any member desires to make it stronger than that, I have no objection, but I believe. Mr. President, that this provision in our Constitution and in life, something that is self ‑ executing, something that will make the member guilty of a misdemeanor, and bring upon him the forfeiture of his office and the consequent disgrace, will be a substantial benefit to the people of Alabama. We are told now that the legislature only meets once in four years. Then the peo‑


2327

CONSTITUTIONAL CONVENTION, 1901

ple can only once in four years ask their representatives for relief from any grinding monopoly, or any extortion that may be perpetrated upon them by the great lines of transportation, and certainly if they can be heard only once in four years to speak through their representatives, these representatives ought to be free to act, for the benefit and in the interest of the people and not in the interest of the corporations which are bestowing favors upon them. I believe it is right to the corporations and I think the suggestion of the gentleman from Mobile has a great deal of force in it. I have no doubt that lines of transportation are solicited by the members of the legislature for these accommodations, and for these passes, and they cannot afford, Mr. President, to deny them, and I think the suggestion of the gentleman from Mobile carries with it a great deal of force. I have no doubt that the railroads themselves the lines of transportation, would be delighted if the members of the legislature could not solicit them, and I am sure the gentleman from Mobile feels exactly that way.

MR. COLEMAN (Greene)– Mr. President and delegates of the Convention, upon the vote to lay the amendment offered by the delegate front Pike upon the table, I with others voted aye. Many others voted no. Now that amendment by implication authorizes the issuance of free pases to representatives. That was the reason why we voted to lay it upon the table, and not because we were in favor of free passes at all. Now the substitute offered by the gentleman from Jefferson it seems to me is inopportune at this time. Adopt the section as reported by the Committee and when we reach the article on railroads or common carriers, then you play amend by making it a misdemeanor, or other offense, not only for representatives, but for every person who occupies an official position in the State of Alabama to accept a pass. Is there any more reason that a representative should be guilty of a misdemeanor, or should forfeit his office, then a judge or any other official? The proper way is, at the proper time, to provide such an amendment to the Constitution as will forever prevent the transportation of officials upon free passes.  If you accept this amendment you are bound to provide by another amendment hereafter for the other officers of the State. Let it all come up in the proper place.

MR. ROGERS (Sumter) ‑ For information could not these officers be added in right now, in this substitute

MR. COLEMAN (Greene) ‑ It does not come up properly now. I will be found supporting the proposition of the gentleman at the proper time, but it seems to me that by his amendment he necessitates further legislation to make it applicable to other officers.

The President here resumed the chair.


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OFFICIAL PROCEEDINGS

MR. WHITE ‑ Will the gentleman allow a word. This is certainly a great evil in your judgment?

MR. COLEMAN (Greene) ‑ Well, I said that I would support your amendment.

MR. WHITE ‑ Why not then correct this evil? We may not be able to correct the other, and then if we do correct the other, why not then let the Committee on Harmony and Consistency arrange the whole thing.

MR. COLEMAN (Greene) ‑ I do not think the Committee on Harmony and Arrangement have any such powers as have been arrogated by the members of the Committee, or are supposed to belong to them. The Committee cannot change any ordinance, or edict of this Convention. It can only correct those things which are not in harmony or which may not be properly expressed, as to dates, etc.

MR. CHAPMAN ‑ I would like to ask the gentleman a question. If the passing of this amendment as it is now would not be legalizing the issuance of free passes to members of the legislature, by recognizing that they could secure free passes.

MR. COLEMAN (Greene) ‑ That is the effect of the amendment of the gentleman from Pike.

MR. CHAPMAN ‑ That is what I speak of.

MR. COLEMAN (Greene) ‑ And that is the reason why we voted to lay it upon the table, because we did not want to be put in the attitude of justifying the system of riding on free passes. The substitute offered by the gentleman from Jefferson if adopted of course would relieve it of that objection, but it seems to me that the proper time is when we reach as it was in the old Constitution, the duties of carriers, and then make the Constitution selfexecuting, and applicable to all of the officers of the State, not only to the members of the legislature but to the judges on the bench as well.

MR. SMITH (Mobile) ‑ I do not rise in defense of the pass system, but I rise upon the question of the practicability of the gentleman's idea. This is not the first effort that has been made in any State of the Union to limit the use of passes, and I expect that the result of it will be found to be what the result has been in some of our sister States. The amendment which the gentleman offers would of course affect the eligibility of persons holding and using railroad passes. There are a number of people in the State connected with newspapers who have passes from Railroads upon grounds wholly disassociated from any legislative matter. There are a large number of attorneys throughout the State who represent railroads in various portions of Alabama as local attor‑


2329

CONSTITUTIONAL CONVENTION, 1901

neys, who receive passes as a part of their compensation. This substitute would exclude those classes.

MR. WHITE‑ ‑ If the gentleman will allow a question, is not that pass of the attorney a pass for which he has to work, or perform service, and it is not free at all, is it?

MR. SMITH– Well, I do not know.  You may not consider it free, but I do not know whether the Supreme Court of the State would follow your judgment in the matter.  I am inclined to think that it would not.

MR. BANKS– Could not the attorney for a railroad company, if he was elected to a position in the legislature, or any other office in the State, pay his own way as an officer or legislator?

MR. SMITH (Mobile)– Undoubtedly he could, upon the assumption that for the great privilege of serving the State he would make that sacrifice.  So far as I am concerned, I am now filling the first office I have ever held, and if I remain in my right mind, and there is no very great overwhelming pressure brought upon me, I have filled the last office I will ever fill in the State of Alabama or elsewhere.

I hold in my hand my pass book as district attorney of the Louisville and Nashville Railroad, and the passes in this book are numbered consecutively from the day of its date down to the day that I went into politics.  Two days before I went into politics I ceased issuing railroad passes and there has not been an entry in that book since two days before I went into politics down to the present time.  So I have no great desire to use that privilege in a political way.

I hold the position of district attorney for the Louisville and Nashville Railroad Company in the State of Mississippi, from which I believe my friend from Jefferson originally hailed.  Those people have worked a great reform.  They not only put it into their Constitution, that no officeholder or legislator of any kind or description shall use or ride on a pass, but they have passed penal statutes for it, and I will say to you, gentlemen, when I first went into the office of district attorney for Mississippi, the worry of my life was the vain effort to obey the laws of the State of Mississippi.  I found that if I insisted upon obeying the law I was going to be almost ostracised in that State, if they did not actually tear up the railroad track.  I know of no State in the Union, where officers of the State absolutely demand and require a pass as they do in that great State, where they are prohibited both in the Constitution and in the statute.  The clerks of the courts, the judges, and the sheriffs, the Federal Judges and Federal marshals and the Federal clerk always require passes on every railroad that enters the state, and it is directly under just such a constitutional


2330

OFFICIAL PROCEEDINGS

provision as you propose now, and so far as the influence of the railroad is concerned it is greatly magnified when they demand and accept those favors which are unlawful. As long as it is lawful, the officer can be independent of the railroad, but when they demand it, (and as I said to the gentlemen I have never heard of a pass being issued except under pressure direct or indirect. They are very much more sensitive to influences than when it is given to them without that pressure and demand, and without its being unlawful. If I believed it would accomplish the purpose, if I believed that it would stop the issuance of passes, that it would destroy this improper influence, I would be in favor of it, but even if you enforce it to the letter, it would not do any good. If a man who goes to the Legislature and wants a pass he is going to have it. He may pay his transportation to Montgomery, and he may pay his transportation back to see his friends and family. He may not use the transportation then, but gentlemen of the Convention, when the General Assembly adjourns if he has been a good friend to the railroad, and the law is turned loose on him, he is going to ask that railroad to show its gratitude by giving him a pass, after he has ceased to be an officer of the State of Alabama, and in gratitude it will be given. So I do not believe that the amendment will accomplish the purpose intended, and that is to destroy the influence of railroads with members of the Legislature. If you can devise any plan which would prevent the use of passes to secure improper influence with legislators, I would gladly join you in it, but I do not care to join in a mere matter of grandiloquence, a mere pretense of purity, which will not reach the evil for which it is designed.

MR. PILLANS ‑ I desire to ask my distinguished friend whether a member of the Legislature ceases to be a State officer and a member of the Legislature on the day of the adjournment of a session of the General Assembly.

MR. SMITH (Mobile) ‑ I think not, but I do not think one or two years can cancel our obligations to those who have befriended us.

MR. PILLANS ‑ Next, whether his experience as a railroad man is that railroads are very prompt to issue a pass to a man after he ceases to be public officer?

MR. SMITH (Mobile) ‑ Through my office, yes. No pass has ever been issued unless it was for past favors and no pass for such favor has ever been refused.

MR. WATTS ‑ I am heartily in favor of this amendment. I want to go further even than the amendment of the gentleman from Jefferson, and if I could get his consent, and the consent of this Convention, I would like to offer a substitute, which he has in his


2331

CONSTITUTIONAL CONVENTION, 1901

hand, and which covers the whole question, so that we may test it once and for all, and have it applied to every one.

MR. WHITE ‑ I will ask unanimous consent of the House to offer this as a substitute for my amendment.

THE PRESIDENT– The gentleman asks unanimous consent to withdraw the substitute offered by him and in lieu thereof to offer the substitute suggested by the gentleman from Montgomery. Is there objection?

There being no objection, the substitute was read as follows:

“Any person who, while holding office in this State, or in any city or county thereof, including members of the General Assembly, solicits or accepts for himself or another, or uses, any free transportation, or transportation at a less rate than is open to the public generally, issued or granted by any corporation, or any officer thereof, shall be guilty of a misdemeanor and upon conviction of such offense forfeit his office.”

MR. LONG (Walker) ‑ I will ask the gentleman from Montgomery if he will not accept an amendment, providing that no person in this State shall ever use a railroad pass?

MR. WATTS ‑ No, because I do not think that the public interests are likely to be affected in that way.

MR. LONG (Walker) ‑ If a public man, not all official, were to accept a pass, would it not influence that man hereafter if he became an official?

MR. WATTS ‑ But the object of this is that it shall not influence the man while he is in office.

MR. JONES (Montgomery) ‑ I will ask the gentleman if he cannot accept this amendment, as I am in hearty sympathy with his amendment: "Provided,  that this Section will not apply to any person who at the time of his election was an officer, employe, or attorney of such common carrier?"

MR. WATTS ‑ I have no objection to that.

Mr. FOSTER ‑ I object to it.

MR. JONES (Montgomery) ‑ If that substitute is the only thing before the House I offer this as an amendment.

THE PRESIDENT ‑ The gentleman from Montgomery (Mr. Watts) has the floor, and offers a substitute to the amendment, which reaches the limit of parliamentary procedure.

MR. WATTS ‑ We had in the Constitution of 1875, and it has been the law of this State ever since, a provision that free tickets or passes should not be given to, or accepted by public officers, but


2332

OFFICIAL PROCEEDINGS

it has had no effect whatever. What I want to see done, if it is possible, is to break up this system of giving and accepting passes, not as to individuals, but as to public officers.

Whenever a man is elected to an office in Alabama, his services are due to the people of the State, and it is a doctrine laid down in Holy Writ that a man cannot serve two masters. Robert Burns, Scotland's famous poet, touched the question when he said:

"But, ah, mankind is unco weak,

And little to be trusted,

When self the wavering balance shakes

‘Tis rarely right adjusted."

The man who comes into the legislative halls with a pass in his pocket, or a man who sits upon the bench with a pass in his pocket is bound, in the nature of things, to lean to the corporation which has furnished him that accommodation. It is not right that a man should pass upon a question between the State of Alabama and one of its citizens, whether it be a corporation or not, and should be unduly influenced in the vote which he may give, by the fact that he has been put under obligation to a corporation or to an individual. A member should no more accept free transportation from a corporation than he should receive any other bribe which may be offered to him. We have provisions in this Constitution against the offering of any influence to affect the vote or action of any member of the Legislature or any officer, but we want to go further than that. That seems to have had no effect. I have been traveling upon railroad trains in this State, and I have seen judges and chancellors pull railroad passes out of their pockets and hand them to the conductors. I have seen members of this Convention do it. I do not pretend to be any more virtuous than anybody else. I have used passes many and many a time, but I never have used one when an officer, and this proposition of mine goes to a man's accepting these favors when he is an officer. When he ceases to be an officer, if the corporation feels like making him a donation of a pass, or any other gratuity, that is with them. The object of this substitute is to prevent that gratuity from being given in the first instance to influence his conduct. You may say it is not given for that purpose. Then what is the purpose for which it is given? Do you find corporations handing around their passes to the ordinary common citizens? Do you not find them handing the passes to men who are in official position, or who have the right to speak or to act in reference to matters which concern them? Why are they given, if they are not given for the purpose of influencing the judgment or action of parties to whom they are presented? They may give as many as they please to people after they have filled their terms of office, and after they have become


2333

CONSTITUTIONAL CONVENTION, 1901

private citizen, and you will then find, gentlemen of the Convention, that the number which will be issued will be materially less. I will guarantee the assertion that there are not less than a thousand passes, yea, five thousand passes issued in this State in the course of one year, if we could get the truth of it. Ought that to be? Ought a judge, who sits upon the bench, and who is to decide between my rights and those of the corporation to be influenced in his decision by the fact that he has in his pocket the right to travel wherever he pleases upon the lines of that corporation? Should a member of the Legislature who comes here to vote on matters respecting the interests of the State of Alabama, have a pass in his pocket, so as to influence his vote in favor of the corporation where their interests may conflict? I am not against corporations. They are for the good of the State, but I am against any influence, no matter whence it may come, either of the Legislature or the Bench.

MR. LONG (Walker)– I did not intend to say anything upon this question, but it seems they are carrying it to such an extent as to apply to every person in the State of Alabama.  I suggested that amendment, but the gentleman from Montgomery would not accept it.  We are told it will apply to officers, and those who perform official acts.  Why if a railroad gives a man an annual pass now, a citizen of this State, it might have an influence on him ten years from now, and, therefore, he should be forever debarred from holding office in the State of Alabama.  The only exception, in my judgment, that should be made, is that of members of this Constitutional Convention, who should be excepted from the provisions of the act.  I believe that an amendment like this should be adopted and if the Convention will vote down the other I shall offer it: “Amend Section 6 by adding the following: ‘Hereafter every person who shall submit to the ignomy of being elected to the Legislature in this State, shall immediately after election be sentenced by the Supreme Court, and hung by the neck until dead; provided, that this shall not apply to the members of the Constitutional Convention.’”

Now, I was as much opposed to railroad passed as anybody. I do not think I have ever had my share of them. I have never had these big annuals like most of the big guns travel all over the State with. I wish I did have theirs. But we have got to the point of other people, and we have got to have passes occasionally or we will have to walk. I think if a man should run a hack in Montgomery, he should have a right to give me a ride in that hack if he wants to. I think he should also have a right to charge me for it, and if I am such a little puppy as to be influenced by the pass, I should not be entitled to a seat in the Legislature, as low down thing as it is. If you are going to make it apply to officials, let us make it apply to everything in the State of Alabama, including railroad attorneys. Presidents of railroads, and everybody else.


2334

OFFICIAL PROCEEDINGS

Apply it to everybody. Why do you except any? In my opinion, the richer a man the more able he is to pay for his ticket, the more passes he gets. We should also provide an amendment that nobody should have a private car to ride through this State. I know a distinguished citizen of the State of Alabama who never rides on a free pass, but he usually asks for a private car when he wishes to go anywhere. I do not see any amendment in here to, prevent private cars. I think members of the Legislature should only be allowed in the smoker with the niggers. I don't think they should be even allowed to go in the Pullman. I think they should be strictly barred from going into the dining car, because it costs a dollar a meal to go there, and a member of the Legislature is not supposed to have a dollar, and if he gets so poor that he cannot support himself, he is subject to a bribe, and, therefore, you should limit his expenses down here, so that the corporations won't buy him up with money considerations. I hope the amendment will not pass, gentlemen. I did vote for, and am perfectly willing to have the amendment offered by the gentleman from Pike adopted, to forfeit a man's office if he rides on a railroad pass. I think that is going far enough. If not, apply it to everybody, and hang the officials giving the passes; hang the man for getting or asking for them. The only exception that I want is that members of this Constitutional Convention shall not be amenable to this act.

MR. OATES ‑ I am fully aware of the object of the delegate from Pike, and the delegates from Jefferson and Montgomery in the amendments they have offered, are striving for the same thing, and I am not at all disposed to criticize it. I know their motives are good, and they are doing it to correct what is considered an evil. If it exists, it is indeed an evil, but it seems to me that the substitute and the amendment now pending are not in the proper place. They are not germane to this section, as it only provides for the mileage and per diem of the members of the Legislature.

We all know there is another part of the Constitution, and another section, which will come before this Convention, where these amendments will be much more appropriate, but I will not move to table, but will for the previous question on the section and the pending amendments.

MR. JONES (Montgomery) ‑ Will the gentleman allow me five minutes?

MR. WHITE ‑ Somebody has the right to close the debate. I offered the amendment and I believe I have the right to close and I yield to the gentleman from Montgomery.

THE PRESIDENT ‑ The question is on the motion of the gentleman from Montgomery (Mr. Oates) for the previous question on the pending amendments and the section reported by the committee.


   2335

CONSTITUTIONAL CONVENTION, 1901

    Upon a vote being taken the main question was ordered.

     MR. OATS ‑ Now, Mr. President, the delegate from Jefferson claiming the right to conclude after the previous question was ordered on his amendment yields to my colleague from Montgomery.

     THE PRESIDENT ‑ The right to conclude is with the gentleman from Montgomery as the chairman of the committee.

    MR. OATS ‑ Well I yield to the gentleman from Montgomery.

    MR. JONES (Montgomery) ‑ I am in hearty sympathy with the purpose of this substitute. I do not speak here for any railroad. or in any other capacity except as a plain representative of the people. The trouble about putting this question off is that we may     not get to it hereafter. If we put it in now, and we come to a more appropriate place, and pass something that applies to everybody, why, then we can take it out here. There will be no trouble about that.

     My experience has been, and I have had a great deal of experience, that the railroads as a rule are more sinned against than sinning. I do not think that the men who take these passes, take them as bribes, but a bad habit has grown up. Members say others receive them and they should, too, and the railroads are afraid to refuse. I have known a judge with a pass in his pocket, who was so afraid that some one would think he vas influenced, that he would rule against me, when in his normal condition he would have probably ruled otherwise. On the other hand I have argued cases before Judges that I believed before my God were deciding against me in favor of a corporation because they had received its favors.

    Now if this Constitutional Convention cannot put a self executing provision in the Constitution that will stop this evil we had better adjourn at once. We can stop it.  It has been stopped in the State of New York. It has been stopped in Kentucky, and it has been stopped in Louisiana, and it has been stopped everywhere they have made a real bona fide effort to do it.

I desire to get in an amendment regarding cases which I do not believe comes within the evil, where the man was an officer or employee at the time of his election, but it seems members don't want that, and I am willing to take the substitute just as it is. The evil is a great scandal as it is. It will be a, great step in aid of official purity, and will elevate our people, if we take decided steps now to punish a breach of the Constitution which has been a reproach to our good name for twenty ‑ five years past.


2336                   OFFICIAL PROCEEDINGS

     THE PRESIDENT ‑ The question is on the adoption of the substitute of the gentleman from Montgomery, which was accepted by the gentleman from Jefferson, by unanimous consent of the Convention.

     MR. WHITE ‑ I call for the ayes and noes.

     The call was sustained, and a reading of the substitute. amendment and section called for. The same was read.

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

     MR. BURNS ‑ I rise to a point of privilege.

      The clock struck one.

      MR. SAMFORD ‑ The original section reads with reference to the pay of members of the Legislature, and then the gentleman from Pike, Mr. Murphree, offers an amendment to that, and the gentleman from Jefferson offers a substitute to that.

     MR. WADDELL ‑ I rise to a point of order. This Convention is now adjourned.

     MR. WHITE ‑ I more that the Convention remain in session until the vote is taken.

    THE PRESIDENT ‑ The gentleman from Pike has the floor; the delegates will please be in order.

     MR. SAMFORD (Pike) ‑ I would like to know if the substitute of the gentleman from Jefferson in case of its adoption does away with the amendment offered by the gentleman from Pike. ?

     THE PRESIDENT ‑ If adopted as a substitute it would take the place of that amendment.

     MR. WHITE ‑ I move that this Convention remain in session until after the vote is taken.

     MR. JONES (Montgomery) ‑ I make the point of order that we cannot adjourn when a vote is about to be taken. The previous question has been ordered. The Chair decided against me that way yesterday.

     THE PRESIDENT ‑ The Chair will rule upon the point of order. A motion to adjourn is not in order while a vote is being taken, but if the hour of adjournment arrives, as it has today. pending the discussion of the question, the Convention will stand adjourned, and it does stand adjourned under the rules until 3 :30 o'clock this afternoon.

      The Convention thereupon adjourned.


2337

CONSTITUTIONAL CONVENTION, 1901

AFTERNOON SESSION

     The Convention was called to order by the President and the roll being called showed the presence of 114 delegates.

      Indefinite leave of absence was granted  Mr. Gilmore can account of sickness.  Leave of absence was granted Mr. Ashcraft for Wednesday and Thursday.

     MR. HINSON- MR. President, I desire to make a motion to suspend the rules for the purpose of moving to reconsider the vote whereby the previous question was ordered upon the substitute and the amendment to Section 6 for the purpose of offering an amendment which reads as follows:

     "To amend Section 6, Article----, by striking out the word 'four' where it occur in the first line and inserting the word `six.' "

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

        THE PRESIDENT ‑ The question is not debatable. It strikes out $4.00 a day and inserts $6.00.

         MR. HINSON ‑ I move to strike out four and insert six.

        THE PRESIDENT ‑ The question will be first on the motion to suspend the rules.

         And a vote being taken on a division, resulted in 43 ayes and 48 noes, and the motion to suspend the rule was lost.

          THE PRESIDENT ‑ The question will recur on the substitute offered lay the gentleman from Jefferson to the amendment offered by the gentleman from Pike to the section as reported by the Committee on Legislative Department. and the yeas and nays have been demanded.

         And the call was sustained.

         The substitute was read again.

          Result of the roll call was as follows :

      AYES.

Banks.

Glover,

Locklin,

Beddow,

Graham, of Talladega,

Lowe (Jefferson),

Boone,

Handley,

McMillan (Baldwin),

Brooks,

Hood,

Malone,

Cobb,

Jackson,

Merrill,

deGraffenreid,

Jones, of Bibb,

Miller (Marengo),

Duke,

Jones, of Hale,

Miller (Wilcox),

Espy,

Jones, of Montgomery

Moody,

Fitts,

Kirk.

Murphree,

Fletcher.

Leigh.

Norwood,


2338

OFFICIAL PROCEEDINGS

Oates,

Sanders,

Spragins,

O'Neal (Lauderdale),

Sanford,

Stewart,

Parker (Elmore),

Selheimer,

Vaughan,

Pettus.

Smith, Mac. A

Walker,

Pillans,

Smith, Morgan M.,

Watts,

Pitts,

Sollie,

White,

Robinson,

Spears,

Winn.

 Total ‑ 51.

NOES.

Messrs. President,

Grayson,

O’Rear,

Barefield,

Greer, of Calhoun,

Palmer,

Bartlett,

Greer, of Perry,

Parker (Cullman) ,

Blackwell,

Haley,

Pearce,

Browne,

Harrison,

Porter,

Bulger,

Heflin, of Chambers,

Proctor,

Burnett,

Heflin, of Randolph,

Reese,

Burns,

Hinson,

Reynolds (Henry),

Byars,

Hodges,

Searcy,

Cardon,

Howell,

Sentell,

Carmichael, of Colbert,

Howze,

Sloan,

Case,

Inge,

Smith ( Mobile),

Chapman,

Jones, of Wilcox,

Sorrell,

Cofer,

Kirkland,

Studdard

Coleman, of Greene,

Knight,

Thompson,

Cornwall,

Long (Walker),

Waddell,

Craig,

Macdonald,

Weakley,

Davis, of DeKalb,

McMillan (Wilcox ),

Weatherly.

Davis, of Etowah,

Martin,

Whiteside,

Eley,

Maxwell,

Willet,

Eyster,

NeSmith,

Williams (Barbour) ,

Foshee,

Norman,

Williams (Elmore),

Foster,

O'Neill (Jefferson),

Wilson (Clarke),

Gilmore,

Opp,

Wilson (Wash'gton).

 Total ‑ 72.

ABSENT OR NOT VOTING.

Almon,

Freeman,

Morrisette,

Altman,

Graham, of Montgomery,

Mulkey,

Ashcraft,

Grant,

Phillips,

Beavers,

Henderson,

Renfro,

Bethune,

Jenkins,

Reynolds (Chilton),

Carmichael, of Coffee,

King,

Rogers (Lowndes),

Carnathon,

Kyle,

Rogers ( Sumter),

Coleman, of Walker,

Ledbetter,

Sanford,

Cunningham,

Lomax,

Tayloe,

Dent,

Long (Butler),

Williams (Marengo).

Ferguson,

Lowe (Lawrence),


2339

CONSTITUTIONAL CONVENTION, 1901

During the roll call:–

MR. BURNS ‑ I rise to a point of information.

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

MR. BURNS– I want to know whether, under the substitute or that amendment, if I could buy a thousand-mile ticket for ten cents, would that be an offense?

THE PRESIDENT– The chair is not an expert on that department of railroad management.

MR. HEFLIN (Chambers)– I was not in when the amendment was read.  I understand it includes all city officers and the military of the State. It is too far-reaching, and I therefore vote no.

MR. LOMAX– On this question I am paired with the gentleman from Lawrence, Mr. Almon. If he were present, I am informed, he would vote no and I would vote aye.

MR. ROGERS (Sumter) ‑ I am paired with Mr. Williams from Marengo. If he were present, he would vote no and I would vote aye.

MR. WHITE– I move to reconsider the vote whereby the previous question was called on this measure with a view of offering this amendment.

THE PRESIDENT ‑ The motion to reconsider is not in order after the previous question has been ordered.

MR. WHITE ‑ I desire to call the attention of the chair to the fact that a motion to reconsider is always in order, except under the rules where the main question has been passed upon, and then it is postponed until the next day, but where a subsidiary question is disposed of, a motion to reconsider is in order at anytime.

THE PRESIDENT ‑ I will refer to the rules. “When a vote has passed, except on the previous question, or on motion to lay on the table, or to take from the table, it shall be in order for any delegate who voted with the majority to move a reconsideration thereof on the same day, or within the morning session of the succeeding day, and such motion, if made on the same day, shall be considered immediately after the approval of the journal on the day succeeding that on which it is made; but if first moved on such succeeding day, it shall be forthwith considered; and when a motion for reconsideration is decided that decision shall not be twice reconsidered. A motion to reconsider a vote upon any incidental or subsidiary question, shall not remove the main subject


2340

OFFICIAL PROCEEDINGS

under consideration from the house, but shall be considered at the time when it is made."

The rule the gentleman refers to relates to the time for the consideration of the motion to reconsider, but the question goes back of that, that a motion is not in order to reconsider a vote whereby the previous question had been ordered, because in the first instance when a vote has passed, except on the previous question, a motion may be made to reconsider. No vote to reconsider can be made under the miles where the previous question has been ordered.

MR. WHITE ‑ I move a suspension of the rules in order that that motion may be made. I desire to introduce an amendment which simply covers members of the Legislature.

MR. LONG (Walker) ‑ I rise to a point of order. The gentleman didn't vote with the majority. He got up to change his vote, but didn't do it.

MR. WHITE ‑ That was not the question. We were voting on the amendment. I did vote with the minority on that amendment, but I voted with the majority when the previous question was ordered.

THE PRESIDENT ‑ It seems to the Chair that the gentleman is in order to make the motion.

MR. WHITE ‑ Now I call for the ayes and noes on that.

THE PRESIDENT ‑ It is moved to suspend the rules for the purpose of reconsidering the action whereby the previous question was ordered. The ayes and noes are called for, is the call sustained ?

MR. HINSON ‑ I rise to a question of information. Is the motion to reconsider the vote whereby the previous question was ordered upon both the amendment and the section?

MR. deGRAFFENREID ‑ Yes, sir.

MR. O'NEAL ‑ It opens the whole section for amendment.

The call for the ayes and noes was sustained and the result of the roll call was as follows:

AYES.

Banks,

Cobb,

Fletcher,

Bartlett,

Coleman, of Greene,

Foster,

Beddow,

deGraffenreid,

Glover,

Boone,

Duke,

Graham, of Talladega,

Brooks,

Eley,

Grayson,

Burns,

Espy,

Handley,

Chapman,

Fitts.

Hinson,

             


2341

CONSTITUTIONAL CONVENTION, 1901

Hodges,

Miller (Wilcox),

Sanford,

Hood,

Moody,

Searcy,

Howze,

Murphree,

Selheimer,

Jackson,

Norman,

Smith. Mac. A.,

Jones, of Bibb,

Norwood,

Smith, Morgan M.,

Jones, of Hale,

Oates,

Sollie,

Jones, of Montgomery,

O'Neal (Lauderdale),

Spears,

Kirk,

Opp,

Spragins,

Leigh,

Parker (Elmore).

Vaughan,

Locklin,

Pettus,

Walker,

Lomax,

Pillans,

Watts,

Malone,

Pitts,

White,

Martin,

Robinson,

Whiteside,

Merrill,

Samford,

Winn.

Miller (Marengo),

Sanders,

Total ‑ 65.

NOES.

Messrs. President,

Haley,

Proctor,

Barefield,

Harrison,

Reese,

Blackwell,

Heflin, of Chambers,

Reynolds (Henry),

Browne,

Heflin, of Randolph,

Rogers (Lowndes),

Bulger,

Howell,

Sentell,

Burnett,

Inge,

Sloan,

Byars,

Jones, of Wilcox,

Smith (Mobile),

Cardon,

Knight,

Sorrell,

Carmichael, of Colbert,

Long (Walker),

Stewart,

Case,

Macdonald,

Studdard,

Cofer

McMillan (Baldwin),

Thompson,

Cornwall,

McMillan (Wilcox),

Waddell,

Craig,

Maxwell,

Weakley,

Davis, of DeKalb,

NeSmith,

Weatherly,

Davis, of Etowah,

O'Neill (Jefferson),

Willet,

Eyster,

O'Rear,

Williams (Barbour).

Foshee,

Palmer,

Williams (Elmore),

Gilmore,

Parker (Cullman).

Wilson (Clarke),

Greer, of Calhoun,

Pearce,

Wilson (Wash'gton),

Greer, of Perry,

Porter,

 Total ‑ 59.

ABSENT OR NOT VOTING.

Almon,

Coleman, of Walker,

Henderson,

Altman,

Cunningham,

Jenkins,

Ashcraft,

Dent,

King,

Beavers,

Ferguson,

Kirkland,

Bethune,

Freeman,

Kyle,

Carmichael, of Coffee,

Graham, of Montgomery,

Ledbetter,

Carnathon,

Grant,

Long (Butler),


2342

OFFICIAL PROCEEDINGS

Lowe (Lawrence),

Phillips,

Tayloe,

Lowe (Jefferson),

Renfro,

Williams (Marengo),

Morrisette,

Reynolds (Chilton),

Mulkey,

Rogers ( Sumter),

(During roll call.)

MR. ROGERS (Sumter) ‑ I am paired with the gentleman from Marengo, Mr. Williams.

MR. PETTUS ‑ I rise to a question of inquiry. This is a motion to suspend the rules. I make the point of order that the motion to suspend the rules under Rule 27 on page 11 is not necessary to suspend the rules to move to reconsider the previous question because the previous question is a subsidiary question and under Rule 27 a motion to reconsider a vote upon any incidental or subsidiary question shall not remove the main subject under consideration at the time when it is made. I will read to the Chair from "Robert's Rules of Order" on page 34 which gives a list of the subsidiary questions:

"Lay on the table.

"The previous question.

"Postpone to a certain day."

I make the point of order that it is not necessary to suspend the rule. Under the rules of the Convention, a question comes up at once for reconsideration. I don't think the amendment would be a subsidiary or incidental question. The list, as found in Robert's Rules of order are to lay on the table, the previous question. postpone to a certain day, amend or postpone indefinitely.

THE PRESIDENT ‑ The gentleman makes the same point of order or rose to a question of inquiry ‑ raises the same point raised by the gentleman from Jefferson. The rule there relates to the time when a motion to reconsider shall be considered by the house. The gentleman is correct about that. If it relates to the main question the motion to reconsider shall he considered on the following day. If it relates to a subsidiary question is shall be forthwith considered. The rule distinctly provides that no motion to reconsider is in order where the previous question has been ordered under our rules. If the gentleman will refer to the rules, he will see that a motion to reconsider where the previous question has been ordered is expressly, excepted from the motion to reconsider and without a suspension of the rules that motion is not in order. Rule 27 provides when a vote has passed, a motion may be made to reconsider except on the previous question or on motion to lay on the table.

MR. BROOKS ‑ If the President will look at that again, he will see that it means a reconsideration of a vote refusing the


2343

CONSTITUTIONAL CONVENTION, 1901

previous question but not after the previous question has been called for. When a vote has passed, except on the previous question, you can move to reconsider the vote by which the previous question was called.

THE PRESIDENT ‑ The previous question in this case has been ordered; and the rule expressly provides that a motion to reconsider a vote by which the previous question was ordered is not in order without a suspension of the rules, and the Chair overrule the point of order.

And upon a vote being taken resulting in 65 aver and 69 noes, the motion to suspend the rules was lost.

THE PRESIDENT ‑ The question recurs on the amendment offered by the gentleman from Pike.

MR. O'NEAL – Is a motion to lay the entire section on the table in order?

THE PRESIDENT ‑ No, sir.

Why not?

THE PRESIDENT ‑ Because the previous question has been ordered.

And upon a vote being taken resulting in 46 noes and 58 noes, the amendment was lost.

MR. O'NEAL ‑ I call for the ayes and noes.

The call was not sustained.

MR. deGRAFFENREID ‑ I rise to a point of inquiry. When we adjourned today for dinner, we were about to have a roll call for taking a vote I think. That is my recollection, and I don't know but what we are now entitled to an aye and no vote by virtue of a former action of the House.

THE PRESIDENT ‑ The Chair overrules the point.

And upon a vote being taken, the section as reported by the committee was adopted.

Section 7 was then read as follows:

Sec. 7. The legislature shall consist of not more than thirtythree Senators, and not more than one hundred members of the House of Representatives; to be apportioned among the several districts as prescribed in this Constitution; provided, that upon the creation of any new county, it shall be entitled to one Representative in addition to the number above named.

MR. OATES ‑ I discover on reading that section that there is a mistake, there has been an omission which was not intended. It


2344

OFFICIAL PROCEEDINGS

reads "To be apportioned among the several districts as prescribed in this Constitution. It should read “To be apportioned among the several districts and counties as prescribed in this Constitution.”

There was no objection and the words "and counties" were inserted in the place indicated.

MR. WATTS– I  offer an amendment.

Amend Section 7 of the ordinance reported by the Committee on Legislative Department by striking out the words 33 in the first line of the seventh section and inserting in lieu thereof "35" and strike out the words "one hundred" in the second line and insert in lien thereof "one hundred and five.”

MR. PITTS ‑ The purpose of this amendment is to make this section correspond with the ordinance reported by the majority of the Committee on Representation. That Committee has fixed the number of representatives at 105 and the number of Senators at 35 and this amendment is simply for the purpose of making the two correspond. I desire to submit some reasons which prompted the majority of the Committee on Representation to fix the number of representatives at 105 and the number of senators at 35. The Committee first agreed to fix the representation upon population and then it first agreed to fix the number of representatives at 100 and senators at 33 as provided in this section. I desire to say, Mr. President, that the Committee labored as faithfully and as honestly as men could labor. Of course there was, no trouble to apportion the representatives among the counties because that was a mere matter of arithmetic but the Committee discovered a grave injustice would be done a great number of the counties if the representation was left at 100 and the senators at 33.

I will give you some statistics to show you the injustice of it. In the first place two counties would lose a representative, Lauderdale and Russell not on account of decrease of population, but simply because some other county had increased more rapidly in population. But that did not influence the Committee. But they discovered that if the representatives were left at 100, eight counties, namely, Lauderdale, Russell, Elmore, Etowah, Butler, Greene, Pickends and Walker, with a population of 206,609 would be entitled to eight representatives alone and the counties of Bullock, Clarke, Hale, Lee, Morgan, Perry, Pike and Tallapoosa with only 242,021 inhabitants would be entitled to sixteen representatives, in other words with only a difference of about 35,000 inhabitants they would be entitled to twice the number of representatives that the first eight named counties have. They also discovered if the number of representatives remained at 100 that the counties of Butler, Etowah, Elmore, Greene, Lauderdale, Russell, Pickens and Walker, although they had much more property than these other counties would yet be entitled to only half of the representatives the other eight coun-


2345

CONSTITUTIONAL CONVENTION, 1901

ties had. They discover that these eight counties would only have eight representatives with a population of 206,000 and Jefferson would have 8 with only 142,000. They discovered further, if the representation is fixed at 100 that Clarke County, with 27,790 inhabitants, would be entitled to two, while Etowah with 27,390 a difference of about 429, would only be entitled to one. They further discovered if the representation is kept at 100 that Russell County, with a population of 27,083 would be entitled to one representative and Lauderdale with 27,361 would be entitled to one representative and the county above it with only n difference of less than five hundred would be entitled to two.

They further discovered if the representation is fixed at 100 and the Senators remained at 33 as by the minority report, that Etowah, with a population greater than either Lauderdale or Russell would be entitled to one representative and these counties would be entitled to two. They also discovered that if the minority report is adopted that fixes the representation as it has been that the senatorial district of Barbour with a population less than that of Henry would remain as it is, and Henry, Geneva and Dale, with over twice the population, would compose one Senatorial District.

Now, Mr. President, with all these facts in view, without going into detail the committee decided they would ask the Convention to fix the representatives at 105 and that in doing that, no great injustice would be done to any county, but one, namely, Greene, and the representative from Greene, in his magnanimity said "that is all right. We will raise no objection about it." I want to say further that these five representatives will go to the white counties. Something has been said about the black belt getting a majority. I want to say that everyone will go to white counties. Jefferson will get one, Butler will get one, Elmore will get one, Etowah one and Walker one. There are no objections raised by the representatives of the black belt counties. They had no objections, but thought an injustice would be done if it was not fixed at 105.

Now as to what we find if the Senatorial districts remain at 33. We find it utterly impossible to give satisfaction. Some large counties are so situated that you cannot join any small county with them, because there is none there, and vote could not take one of the adjoining counties, because it would make the population too big, but by fixing the Senators at 35 we believe entire satisfaction will be given. Only one will be neglected, but the representatives from the district are more than willing to have it that way. So we think it is right and proper and eminently just that the representatives shall be fixed at 105 and the Senators at 35.


2346

OFFICIAL PROCEEDINGS

Something will be said about this body of 105 being unwieldly. With a body of 155 in this Convention, I submit that the quorum and order has been pre ‑ eminently preserved, and I believe it can be preserved with 105.

As to the increased pay, there are only five representatives and two Senators, and with quadrennial sessions, we don't believe the plan recommended by us and which is set forth in this amendment, will give entire satisfaction.

MR. GRAYSON ‑ The minority of the Committee on Representation was of the opinion that it was the duty of this Constitutional Convention to fix the basis of representation and it was a legislative duty devolving on the next Legislature to fix the apportionment, and that minority were of the impression that the time honored rule of 100 Representatives and thirty ‑ three Senators should be adhered to. We see no good reason for any change. This number of Representatives and Senators has obtained for half a century. More than that would be unwieldly, and once open the door for an increase of Senators and Representatives and at every census  there will be a demand for an increase, until we shall have a House absolutely unwieldly and a Senate nearly so.

As to the remarks of the gentleman from Dallas to the effect that it has become necessary to increase the Representatives in order to equalize some counties that had not as much representation and had a greater population than other counties, they have gone on and made a mistake as to two other counties. Take a basis of representation of 100 or 105; the difference is small, relatively. and upon a basis of 100 representatives with a population of 1,828,600 there would be an average of 18,286 to each representative. Taking that as a basis, we find that the county of Walker has one representative with a fraction of 6,876 over. Butler has one with a fraction of 7,475 over. Elmore has one with a fraction of 7,813 over.

MR. LONG (Walker) ‑ I rise to a point of order. The gentleman is not confining his remarks to the subject before the house. It is not a question of where the representatives should go. We are fixing the number. The gentleman is making an argument against the county of Elmore and it is not proper at this time.

THE PRESIDENT ‑ The chair is of the opinion that the gentleman is within the reasonable limits of discussion.

MR. GRAYSON ‑ I see the gentleman is a little sore.

MR. LONG (Walker) ‑ Will the gentleman yield for a question ?

MR. GRAYSON ‑ Not until I get through. The county of Etowah has a fraction of 9,075 over one. Madison has a fraction


2347

CONSTITUTIONAL CONVENTION, 1901

of 7,388.  Mobile a fraction of 7,882.  Now, as I went on to explain before, there were two counties that had two representatives with a smaller population than two other counties with a little greater population, and, in order to equalize that and see that no injustice should be done, they propose to increase the number of representatives so that no injustice would be done those counties and, in curing one injustice, they propose by the report of that committee, to do another act of injustice by giving two counties with smaller fractions over an extra representative over counties that have a greater fraction.  The county of Mobile has 7,882 fraction over and Walker County has 6,876 and Elmore 7,812, and the County of Madison has 7,338, fraction over and above the regular ratio, being nearly 1,000 more than the County of Walker.

The minority of the Committee was of the impression from the outset that it would be wiser on the part of the Convention, to awake up no more snakes than we have already waked up and no more than we can kill. When we go before the people of Alabama making changes, especially in the senatorial districts, taking counties from one district and adding to another there will be dissatisfaction tat will militate greatly against the adoption of this Constitution, the great desideratum of which is the reform of the suffrage question, and I claim it is wrong on the part of this Convention to inject anything into the Constitution that is needless to injust anything that can be deferred to the legislature so that when the vote is taken on the adoption of the Constitution we will have nothing but the main question for which we were sent here for, for the people to vote upon.

MR. LONG (Walker) ‑ Did you not state to the Committee on Representation that you would vote for the increase if they gave Madison County another representative?

MR. GRAYSON ‑ And I will vote for it yet. I expect when the report of that Committee comes up to move to add Madison and Mobile.

MR. PITTS – Don’t Mobile and Madison have a Senator each and is not Walker put in a senatorial district with two other counties and so as to the matter of senators have not those two counties three times as many senators as the county of Walker?

MR. GRAYSON ‑ Senators and representatives are two different things, and they are altogether upon different bases. If that is your theory here is Talladega County with 36,000 while Jefferson has 130,000 and they each have one Senator.

MR. BAREFIELD– How many inhabitants has Madison County?

MR. GRAYSON–   43,700.


2348

OFFICIAL PROCEEDINGS

MR. BAREFIELD ‑ How many representatives?

MR. GRAYSON ‑ Two.

MR. BAREFIELD ‑ How many Senators:

MR. GRAYSON ‑ One. I have just said the basis of Senator and representatives is altogether different. If you go on that basis the County of Jefferson would be entitled to twenty representatives, Mobile would be entitled to two or three or more, Montgomery would be entitled to one more, but I maintain that the basis for senators is fixed on a different plan and it has been a custom heretofore that no county should have more than one senator. It is fixed upon a separate and distinct basis and you have no right to add fractions.

MR. GRAHAM (Talladega) ‑ I desire to correct the gentleman. He stated that Talladega had only 32,000 inhabitants. The number is 36,000, just a little short of Madison.

MR. GRAYSON– I may have gotten the counties a little mixed, but the counties of Talladega, Wilcox and Calhoun which they propose to give separate senators are away down in the thirties and Madison has nearly 44,000.  I am not arguing about Madison County, but arguing chiefly upon the ground that it is the duty of the Convention to vote down all these amendments and fix it at 100 representatives and 33 senators and refer the apportionment to the next legislature.

MR. LONG (Walker)– I appreciate the position of the distinguished Chairman of the Committee on Representation. Although I am not a member of that Committee. I was a member during the last House of Representatives on the Committee on Apportionment, and we labored for several days trying to adjust this matter of representation based upon 100 in the House and 33 in the Senate and we were unable to make an apportionment with anything like equity.

If there is anything in the world I like, it is consistency. The gentleman froth Madison, who has just addressed you, voted for the increase and was ready to do it again, but won't do it simply because Madison County won't get one and the poor little County of Walker will.

MR. GRAYSON ‑ Will the gentleman allow me to interrupt him?

THE PRESIDENT ‑ Does the gentleman yield?

MR. LONG (Walker) ‑ No, sir; I shall have to pay back his discourtesy. Now Madison County has 43,000 and Walker Count has between twenty ‑ five and twenty ‑ six thousand. The county of Madison pays taxes on seven million dollars of property and my


2349

CONSTITUTIONAL CONVENTION, 1901

county pays on over $6,000,000. Madison County has three representatives and my county one, and they are scheming to keep us from getting one more and for them to have four. They should have 100,000 inhabitants and pay taxes on $24,000,000 to have four times our representation.

It is true, we don't base representation on wealth, but the great State of Alabama is nothing more than a stock company and the shareholders in the company are the sixty ‑ six counties and those shareholders should be entitled to the gifts of the State as much as possible in proportion to the amount of taxes they pay towards the support of the corporation, the State of Alabama.

Why, Mr. President, it is all out of order at this time, according to my notion, but when the report of the Committee on Representation comes before this house, if I can't convince any fairminded man, any man who has any honesty of purpose, that my county is entitled to another representative I don't want it.

The matter has been carefully examined and with only 100 representatives and 33 senators it cannot possibly be arranged without doing injustice to some of the counties.

Now the Count, of Walker is a white county. It has a white population of four times the white population of the County of Bullock, seven times the white population of Greene, five times the white population of Hale, four and a half times the white population of Lowndes and one and a quarter the white population of the great County of Montgomery, four times the white population of either Perry, Russell or Sumter, also four times the white population of the great County of Wilcox. We are not asking that this should be done but we are asking justice for all the counties in Alabama and that cannot be given unless this increase of five representatives and two senators is given. Unless we allow this it cannot be changed until another Constitution. You have fixed the sessions of the legislature at four years and the expense of these additional seven members will be trifling.

Now I move the previous question on the amendment and the section as reported.

MR. OATES ‑ Is it not passing strange that these members of the Committee on Representation get up and take this section away from the Committee on the Legislative Department.

MR. LONG (Walker) ‑ You have a right to close the debate.

MR. OATES ‑ But there are other members of the Legislative Department who have a right to be heard on this matter.

MR. HINSON ‑ I want to ask the gentleman from Walker to withdraw that motion for the previous question. I think the


2350

OFFICIAL PROCEEDINGS

gentleman will agree that the report of the Committee on Representation is entitled to some consideration on this floor---

THE PRESIDENT ‑ The gentleman is not in order. Debate is out of order after a motion for the previous question.

MR. HINSON ‑ I am not debating it. I am satisfied the gentleman will agree with me that this Convention ought not to absolutely ignore the report of the Committee on Representation by adopting this section.

THE PRESIDENT ‑ The gentleman will be in order.

MR. HINSON ‑ Will the gentleman withdraw that motion for the previous question?

THE PRESIDENT ‑ The gentleman will take his seat.

MR. LONG (Walker) ‑ I do not want to cut off any amendments and I am willing for the Convention to debate it for three years and I withdraw the provision.

MR. GRAYSON ‑ I rise to a question of personal privilege. The gentleman from Walker declines to answer a question and I want to correct a statement that he made. He made the statement that I had voted for the majority report of the Committee on Representation. Where the gentleman got that information I don't know. I never cast such a vote.

MR. LONG ‑ I understood the gentleman voted for the increase. If I have been misinformed, I regret it.

MR. JONES (Montgomery)‑(To Mr. Oates, who had been recognized.) Will the gentleman from Montgomery allow me to send up an amendment.

MR. OATES ‑ Yes.

The amendment was read as follows : Amend Section 7 by adding at the end thereof the following words: No member of the Legislature shall ask, receive, accept or use for himself or for the benefit of another any free pass on any ticket sold at a discount other than as sold to the public generally.  Any member of the Legislature violating the provisions of this section is guilty of a misdemeanor and on conviction shall be fined $250 and forfeit his office.

THE PRESIDENT ‑ The amendment is not in order.

MR. JONES ‑ Why.

THE PRESIDENT ‑ There is an amendment pending.

MR. JONES ‑ There can be two amendments.

THE PRESIDENT ‑ No.


2351

CONSTITUTIONAL CONVENTION, 1901

MR. JONES ‑ Then I offer it as an amendment to the amendment.

MR. OATES ‑ I will ask my colleague to withhold it, It is not germane.

MR. JONES ‑ I will withdraw it as I got the floor by the courtesy of the gentleman.

MR. OATES ‑ As soon as this section was read the delegate from Dallas jumped up, got his amendment in with reference to the number of Senators and Representatives. Now it is strictly within the jurisdiction of the Committee on Legislative Department to report the number of Senators and Representatives and it is the province and duty of the Committee on Representation when that question is settled to apportion the number which the Convention fixes upon for counties and districts, but the Committee on Representation jumps in here with a controversy between themselves about the number.

Speaking for the Committee on Legislative Department, this matter was fixed by the committee and they were of the opinion that ‑ we should retain the number we have now, 33 Senators and 100 Representatives. There is no minority report on that.

Whatever may have been the figuring of the Committee on Representation in reference to the apportionment, they have not been in harmony with each other and knowing that I have gone through the apportionment to see what could be done and to see whether the present number would do any wrong to the State.

The apportionment accepts the universal rule that every county shall have a representative and the apportionment in respect to any additional representatives and Senators is purely arbitrary. As a rule we take the population as a basis and approximate as near as we can so as to do the least injustice to any part of the State.

In going over these matters I have found that it is perfectly practicable to redistrict the State into 33 Senatorial districts without doing any gross injustice to any part of the State. I will say personally I have no interest in it at all except to do my duty. I notice in their apportionment they begin with the northern part of the State. I begin in the south, making Mobile with 62,740 as the First Senatorial District.

2. Washington, Baldwin, Escambia, Covington ________    50,994

3. Clarke, Monroe_______________________________      51,456

4. Butler, Conecuh, Crenshaw ______________________    62,963     

5. Coffee, Pike __________________________________    50,144     

6. Henry Geneva _________________________________   55,243     

7. Barbour, Dale _________________________________   56,341     

8. Bullock, Macon ________________________________  55,070


2352

OFFICIAL PROCEEDINGS

9. Lee, Russell_________________________________________    58,909

10. Montgomery_______________________________________     72,047

11. Lowndes, Autauga___________________________________    53,566

12. Dallas_____________________________________________   54,657

13. Marengo. Choctaw___________________________________   56,451

14. Wilcox____________________________________________   35,651

15. Pickens, Sumter_____________________________________    57,112

16. Hale, Greene________________________________________  55,293

17.Perry, Bibb_________________________________________    50,281

18. Tuscaloosa, Fayette__________________________________    50,260

19. Lamar, Marion. Franklin______________________________     47,089

20. Colbert, Lauderdale__________________________________    47,900

21. Limestone, Lawrence, Winston_________________________     52,065

22. Madison___________________________________________   43,702

23. Morgan, Marshall____________________________________   52,109

24. Jackson, DeKalb____________________________________    54,066

25. St. Clair, Blount____________________________________      42,544

26, Jefferson_________________________________________   140,420

27. Cullman, Walker____________________________________     43,011

28. Calhoun, Cleburne___________________________________    48,080

29. Cherokee, Etowah___________________________________    48,457

30. Talladega, Clay_____________________________________     52,872

31. Shelby, Chilton, Coosa_______________________________     55,950

32. Elmore, Tallapoosa__________________________________     55,771

33. Randolph, Chambers_________________________________    44,933

Now, as to the representatives. It is easy enough to apportion 100 representatives and is it not important to retain the same number you have now when no injustice will he done to any part of the State. It does not matter particularly if a county has but one representative. I ant sure the county of Walker with the delegate who represents it on this floor will never suffer. A county with one representative may be better represented than one with two. It is only a question of numbers, and we take as a basis because we cannot get a better one, the population. I find in looking over the counties, that the proposition of this Committee on Representation gives some counties an additional representative that have less population than others which are left with one representative. It is an easy matter for any one to see those who will look at it. I do not think it adds anything to the excellency of the law, nor do I think it detracts at all from the rights of the people whether a county has two or one representative. All of the representatives should be looking after the interests of the whole people. As between the two, I think it would be wiser to reduce the number


2353

CONSTITUTIONAL CONVENTION, 1901

of representatives rather than increase them.  I think it would result in good to the State to do it, but the committee for which I have the honor to speak, thought it was hotter to retain the present number and so reported.

MR. MALONE– I move the previous question on the amendment.

A vote being taken, the previous question was ordered, and a further vote being taken, the amendment was adopted.

The amendment offered by Mr. Jones, and which was declared out of order by the President, was again offered and again read.

MR. JONES (Montgomery) ‑ On that I call for the previous question, and I ask for an aye and no vote.

MR. HEFLIN (Chambers) ‑ I think that is not germane to the section, and I snake the further poiiit of order that this amendment is on the same line as the anlendment offered by the gentleman from Jefferson.

THE PRESIDENT ‑ The amendment offered by the gentleman from Montgomery seems to be similar to the amendment offered by the gentleman from Jefferson, although the chair is not prepared to say it is the identical amendment. and it seems to the chair it would be in order. It is for the convention to say whether they will fasten it on this section..

MR. BULGER– It seems to me that the amendment offered by the delegate from Jefferson includes this amendment, and if it does, this has heed once voted on and is out of order.

MR. JONES ‑ This is not the identical proposition, but if it were, the gentlemen would not be right in their contention. They confuse in their minds the effect of laying an amendment on the table and of indefinitely postponing, is res adjudicata and prevents you from bringing up that matter again, but when a matter is laid on the table you can bring up the matter at any time. I insist this is germane.

THE PRESIDENT ‑ Is your amendment different from the amendment of the delegate from Jefferson?

MR. JONES ‑ Yes; his amendment embraced two or three hundred other officers, and this amendment only includes the members of the General Assembly.

MR. BULGER ‑ I will ask if members of the Legislature were not included in the other amendment.

MR. JONES ‑ I expect they were, and every other officer in the State.


2354

OFFICIAL PROCEEDINGS

MR. BULGER ‑ If they were, I suggest this is the same subject.

MR. REESE ‑ I make the point of order that the chair has ruled that the amendment is in order.

THE. PRESIDENT ‑ It seems to the chair that if a proposition is presented and rejected by the Convention which is a broad proposition, it would be in order to present the proposition in a narrower form.

MR. WALKER ‑ I call for the ayes and noes on this proposition.

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

MR. O'NEAL ‑ On that I call for the ayes and noes.

The call was sustained and the original section as amended and the amendment of the delegate from Montgomery were read.

MR. JACKSON ‑ Has the President decided this amendment is germane to the section?

THE PRESIDENT ‑ The chair is in doubt on that point, but has given the benefit of the doubt in favor of the amendment. The question is on the motion to table the amendment offered by the gentleman from Montgomery.

The result of the roll call was as follows:

AYES.

Messrs. President,

Greer, of Calhoun,

O’Rear,

Barefield,

Greer, of Perry,

Parker (Cullman),

Bartlett,

Haley,

Pearce,

Blackwell,

Harrison,

Pitts,

Browne,

Heflin, of Chambers,

Porter,

Bulger,

Heflin, of Randolph,

Proctor,

Burnett,

Hinson,

Reynolds, of Henry,

Byars,

Hodges,

Rogers (Lowndes),

Cardon,

Inge,

Searcy,

Carmichael, of Colbert,

Jackson,

Sentell,

Carnathon,

Jones, of Wilcox,

Sloan,

Cofer,

Kirkland,

Smith of (Mobile) ,

Coleman, of Greene,

Knight,

Sorrell,

Cornwall,

Long, of Walker,

Stewart,

Craig,

Macdonald,

Stoddard,

Davis, of DeKalb,

McMillan (Wilcox),

Thompson,

Davis, of Etowah,

Miller (Marengo),

Waddell,

Eyster,

NeSmith,

Weakley,

Ferguson,

O'Neill, of Jefferson,

Weatherly,

Foshee,

Opp,

Whiteside,


2355

CONSTITUTIONAL CONVENTION, 1901

Willet,

Williams (Elmore),

Wilson (Wash'gton),

Williams (Barbour),

Wilson (Clarke),

Total ‑ 65.

NOES.

Banks,

Jones, of Hale,

Pettus,

Beddow,

Jones, of Montgomery,

Pillans,

Boone,

Kirk,

Reese,

Brooks,

Leigh,

Robinson,

Burns,

Locklin,

Sanford,

Cobb,

Lomax,

Sanders,

deGraffenreid,

McMillan, of Baldwin,

Sanford,

Duke,

Malone,

Selheimer,

Eley,

Martin,

Smith, Mac. A.,

Espy,

Maxwell,

Stnith, Morgan M.,

Fitts,

Merrill,

Sollie,

Fletcher,

Miller (Wilcox),

Spears.

Freeman,

Moody,

Spragins,

Glover,

Murphree,

Vaughan,

Graham, of Talladega,

Norman,

Walker,

Grayson,

Norwood,

Watts,

Handley,

Oates,

White,

Hood,

O'Neal (Lauderdale),

Winn.

Howze,

Palmer,

Jones, of Bibb,

Parker (Elmore),

Total ‑ 58.

ABSENT OR NOT VOTING.

Almon,

Foster,

Lowe, of Jefferson,

Altman,

Gilmore,

Lowe, of Lawrence,

Ashcraft.

Graham, of Montgomery,

Morrissette.

Beavers,

Grant,

M ulkey,

Bethune,

Henderson,

Phillips,

Carmichael. of Coffee,

Howell,

Renfro,

Case,

King,

Reynolds (Chilton),

Cunningham,

Kyle,

Tayloe.

Coleman, of Walker,

Ledbetter,

Dent,

Long, of Butler,

PAIRED.

AYE.

NOE.

Rogers (Sumter) with

Williams (Marengo)

Jenkins with

Chapman.

During the roll call Mr. Heflin of Chambers endeavored to explain his vote, but the house drowned his explanation with objections.


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OFFICIAL PROCEEDINGS

By a vote of 65 ayes and 58 noes the amendment was laid upon the table.

THE PRESIDENT ‑ The question recurs upon the section as amended.

MR. OATES ‑ I demand the previous question upon the section as amended.

MR. BURNS ‑ I have an amendment.

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

MR. OATES ‑ I must respectfully decline to yield for any further amendments.

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

Section 8 was read as follows:

Sec. 8. The Senate at the beginning of each regular session, and at such other times as may be necessary, shall elect one of its members President thereof, to preside over the deliberations in the absence of the Lieutenant ‑ Governor, and the House of Representatives at the beginning of each regular session and at such other time as may be necessary, shall elect one of its members as Speaker; and the President of the Senate and the Speaker of the House of Representatives shall hold their offices respectively until their successors are elected and qualified. In case of temporary disability of either of said presiding officers, the House to which he belongs many elect one of its members to preside over that House and to perform all the duties of such officer under disability during the continuance of the same; and such temporary officer, while performing duty as such shall receive only the same compensation to which the permanent officer is entitled by law. Each House shall choose its own officers and shall judge of the election returns and qualifications of its members.

MR. OATES ‑ The amendments proposed by the Committee to this section as it stands, were to meet the supposed trouble resulting from the death of the Speaker or the disability for any cause of the Speaker or the presiding officer of the Senate. Nothing else. It simply confers the powers distinctively upon each House so that no question may be made thereafter upon the legality of its proceedings in passing laws. I move the previous question upon the adoption of the section.

MR. WILSON (Washington) here took the chair.

MR. REESE ‑ I rise to ask the privilege of offering an amendment.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM ‑ The gentleman from Dallas is out of order. The question is shall the main question be now put.

Upon a vote being taken a division being called for, by a vote of 62 ayes and 8 noes. the main question was ordered. Upon a further vote being taken the section was adopted.

Section 9 was read as follows:

Sec. 9.  A majority of each House shall constitute a quorum to do business; but a smaller number may adjourn from day to day and may compel the attendance of absent members, in such manner and under such penalties as each House may provide.

MR. OATES ‑ There is no change. That is the same as the present Constitution and move its adoption.

Upon a vote being taken the section was adopted.

Section 10 was read as follows:

Sec. 10. Each House shall have power to determine the rule of its proceedings, and to punish its members or other persons for contempt or disorderly behavior in its presence.; to enforce obedience to its process: to protect its members against violence, or offers of bribe or corrupt solicitation : and with the concurrence of two ‑ thirds of either House to expel a member, but not a second time for the same offense; and shall have all the powers necessary for the legislature of a free State.

MR. OATES ‑ The only change that has been made in this section is in substituting the word "offense" in the fifth line in place of the word "cause."

Upon a vote being taken the section was adopted.

Section 11 was read as follows:

Sec. 11. A member of either House expelled for corruption shall not thereafter be eligible to either House, and punishment for contempt or disorderly behavior shall not bar an indictment for the same offense.

MR. OATES ‑ That is the same as in the present Constitution, and I move its adoption.

Upon a vote being taken the Section was adopted.

Section 12 was read as follows:

Sec. 12: Each House shall keep a Journal of its proceedings, and cause the same to be published immediately after its adjournment, excepting such parts as, in its judgment, may require secrecy ; and the yeas and nays of the members of either House on any


2358

OFFICIAL PROCEEDINGS

question shall, at the desire of one ‑ tenth of the members present, be entered on the Journal. Any member of either House shall have liberty to dissent from or protest against any Act or Resolution which he may think injurious to the public, or an individual, and have the reasons for his dissent entered on the Journal.

MR. SANFORD (Montgomery) ‑ I offer an amendment to that Section.

The amendment was read as follows:

Amend Section 12 by adding the words, "but the journals of the Senate and House of Representatives shall not be held by the courts to import absolute verity, but their truthfulness may be inquired into like any other statement in a court of justice."

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

MR. SANFORD ‑ Mr. President, I have the floor.

THE PRESIDENT PRO TEM ‑ The gentleman from Montgomery has the floor.

MR. SANFORD (Montgomery) ‑ Mr. President, I offer that amendment because, according to the statement made by a distinguished member of this Convention, many laws were passed during the last seven months that did not comply with the requirements of the Constitution. The laws were not read at length as the present Constitution requires. The roll of the member of each House was not called, according to the demands of the present Constitution, and the journals recited that bills were read three times, and that the rolls were properly called, and every prerequisite of a valid law was complied with, and yet it was a fact well known to many members of the Legislature that it stated an absolute untruth. I saw it myself upon one occasion where a bill was introduced containing upwards of twenty ‑ five thousand words. The Constitution required that on the day or night of its passage it should be read at length. The whole bill was completed, with twenty odd amendments, in less than half an hour, when the very reading of the bill, if read at the rate of 100 words to the minute, would have required four hours, and when I complained to the Journal Clerk or to the Clerk of the House that it was not read, he replied that I could not go behind the Journal. I am aware of the decisions of the Supreme Court in this State, and in other States with regard to this point, but as was said with great power and earnestness by the gentleman from Crenshaw in arguing a case a few days ago, it impressed me then, that for the purpose of avoiding such a rushing through of legislation, such an amendment as I have offered should be passed by this Convention.

The truth is that while is was said that the Convention should be held to eliminate the negro from politics, and to purify


2359

CONSTITUTIONAL CONVENTION, 1901

the suffrage, I voted to hold this Convention also in order that the Legislature might be compelled by some process to obey the Constitution of this State. Under the present system, the manner of enacting laws is infinitely worse than the negro suffrage, for it affects every man in the State of Alabama. It is vastly important that there should be some change in this technical rule that the courts cannot go behind the Journal. Our courts have gone further than other courts and have held that while there may be positive requirements in the Constitution that certain things must be done by the Legislature, it is presumed that they were done unless the Journal sets forth they were not done, always presuming upon the infallibility of the Legislature, its good faith, and its fidelity when the history of Alabama and the history of all legislation shows that it is a very violent presumption. I hope that this amendment will be adopted by the Convention. It is absolutely necessary, first, that the bills should be read, and that I think is already provided for by the Committee on the Legislative Department. It was a fact well known as you all heard the gentleman from Crenshaw say a few days ago, that laws were passed in the House when there were not more than a dozen members present, and, yet the Journal will show that the bill was read three times, and the roll was called, and I suspect that certain names were put down. Men have denied that they voted upon certain bills, and yet they were put down and mentioned as having voted for them. These are facts known by all men who attended upon the Legislature.  Another man said to me, I heard fifty ‑ six bills pass, not one of which was read, and no roll was properly called. Another gentleman, when I complained of it to Senators, and said to him, in the other House they are passing bills without even reading them, and sir, they are doing the same thing here in the Senate, and yet the Journals of each House will show that the bills were properly read and that the rolls were properly called, and that every prerequisite was complied with that the Constitution demanded should be observed in the enactment of laws, and that is the character of some of the legislation that happened in the last ten months, and it is to protest and prevent a repetition of such instances that I have introduced this amendment.

The President resumed the chair.

MR. OATES ‑ The complaint made by the gentleman from Montgomery and his amendment directed to it, so far as these defects can be remedied, they are remedied in this article further on, and I now renew the motion made by the delegate from Sumter a moment ago to table—

Mr. Knight sought recognition.

MR. OATES ‑ For the purpose of allowing the gentleman from Hale to make a statement I withdraw the motion.


2360

OFFICIAL PROCEEDINGS

MR. KNIGHT– I feel called upon, as a member of the last Legislature, to contradict the statement made by the gentleman from Montgomery. I was a member of and a regular attendant upon the last House, and never saw in the whole session of the Legislature a bill passed when it was not thought there was a quorum present. If there was riot a quorum present it had not been discovered.

MR. SANFORD (Montgomery) ‑ I said that Mr. Sentell made the statement. The gentleman from Crenshaw made the statement that bills were passed here when there were not more than a dozen members upon the floor.

MR. KNIGHT ‑ Well, sir, I dispute it most emphatically.

MR. SANFORD ‑ He said that in a speech here last Monday.

MR. KNIGHT ‑ I most emphatically dispute it, and say that it was not the case.

MR. SANFORD (Montgomery) ‑ If it a question between you, sir, and the gentleman from Crenshaw.

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

MR. FREEMAN ‑ I offer an amendment.

The amendment was read as follows: Amend Section 12 by striking out in the second line of said section, after the word "adjournment," down to and including the word "secrecy" in the third line.

MR. GREER (Calhoun) ‑ I move to lay the amendment on the table.

Upon a vote being taken the motion to table prevailed, and upon a further vote the section was adopted.

Section 13 was read as follows:

Sec. 13. Members of the Legislature shall in all cases except treason, felony, violation of their oath of office, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same, and for any speech or debate in either House they shall not be questioned in any other place.

MR. OATES ‑ That is the same as in the present Constitution.

Upon a vote being taken the section was adopted.

Section 14 was read as follows:


2361

CONSTITUTIONAL CONVENTION, 1901

Sec. 14. The doors of each House shall be opened except on such occasions as, in the opinion of the house, may require secrecy, but no person shall be admitted to the floor of either House while the same is in session except members of the Legislature, the officers and employes of the two Houses, the Governor and his secretaries, representatives of the press, and such other persons to whom either House by unanimous vote may extend the privilege of its floor.

MR. HEFLIN (Randolph) ‑ I desire to offer an amendment.

The amendment was read as follows:

Amend Section 14 by striking out the word "unanimous" in the fifth line and insert in lieu thereof the words "and majority."

MR. HEFLIN (Randolph) ‑ If this Section is adopted as reported by the Committee, one member of the House of Representatives might thwart the will of 104 members, and one member of the Senate might thwart the will of thirty ‑ four, and I insist, Mr. President, it is undemocratic, and believing in the doctrine that a majority should rule, on all question, I hope that this amendment will be adopted.

MR. OATES ‑ The delegate’s doctrine is wholly inapplicable and his amendment wholly unnecessary, and I think it can be seen. The emendation of this Section from the way it stood before, is simply to clothe each House of the Legislature with the power easily to protect itself from the encroachment of outsiders. Now, sir, under the rules enforced heretofore. men have had a delicacy of feeling about excluding persons who intrude, and I say it regretfully, but I have seen men in among the Representatives and Senators taking seats among them and buttonholing them to get them to vote for some job or a scheme which they play feel an interest in. This is for the protection of the members of each House, and the amendment looks to a mere majority vote to turn in anybody and everybody. Why, sir, in the future I presume we will not all continue to be practically of one political party. Take the case where parties are pretty equally divided, one party of course will predominate over the other, and that party could vote unanimously together every time and admit to the privileges of the floor all that they saw proper, who would be their own party associate, and exclude everybody else. Unless it be by a unanimous vote, to extend to any one the honor and privileges of the floor, they should not have it. It is quite an honor to any one and it is extended usually only to distinguished personages, men who have made a record after long and patient service. Otherwise bodies of this kind do not hurry to extend the privileges to every one but if a motion be made to admit to the privileges of the floor any person who is worthy of it. it would be the rarest of occurrences that one


2362

OFFICIAL PROCEEDINGS

might look for that any member of either House will get up and object to it.

MR. HEFLIN (Randolph) ‑ I would like to ask the gentleman if one member of either House on account of political prejudice or for any other reason, could not deny the President of the United States or one of our own Senators, or any other distinguished gentleman, the privileges of the floor?

MR. OATES ‑ I do not think that any one would have the cheek to do that.

MR. HEFLIN (Randolph) ‑ But answer the question. Could they do it?

MR. OATES ‑ Oh, they could, but I do not wish to make any, exceptions. The Committee did not see proper to do it. We knew we had it from unmistakable authority that each House had been invaded and it was the habit to admit every one and any one who saw fit to come in, and mix among the members. Why, sir, a member should be exempt from that kind of solicitation. We have in the present Constitution one or two sections against corrupt solicitation, and many times there is too much solicitation, too much anxiety upon the part of those who come into the legislative halls, and if we only knew it there is corruption connected with it. It is not easily proven, however. Each body ought to be able to protect itself from these intrusions. In fact talk about its being a Democratic principal, no man has a right upon the floor of either House, when that House is in session, unless he be invited there. Exceptions have been made in favor of the representatives of the press, the Governor and his secretaries, and the officers and members of each House, and that is going far enough. Why, sir, you go to the Congress of the United States. There outsiders are not tolerated to come in on the floor. There is a gallery for them. They can go look down, just as they may here, and witness the proceedings. It is too altogether democratic if it may be called such. The practice of people rushing as heretofore, into the lobby, is wrong, and men who have served in this hall and in the other house know that the most frequent cause of disturbance is from outsiders in the lobby, carrying on a conversation that interferes with proper deliberation. My friend, the delegate from Randolph, is mistaken. He is carrying his democracy a little too far in this connection. I know his democracy usually is first ‑ class and no one has more respect for the opinions of the delegate than I have, but in this case

MR. HEFLIN (Randolph) ‑ I would like to ask the gentleman if my Democracy is not always first class?

MR. OATES ‑ I have always found it such. I now move to lay the amendment on the table.


2363

CONSTITUTIONAL CONVENTION, 1901

MR. HEFLIN (Randolph) ‑ On that I call for the ayes and noes.

The call was not sustained.

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

Upon a vote being taken, a division was called for, and by a vote of sixty ayes and thirty ‑ two noes, the motion to table prevailed.

MR. PETTUS ‑ I desire to offer an amendment.

MR. OATES ‑ I move the previous question on the section.

MR. PETTUS ‑ I ask the gentleman to yield for an amendment.

MR. OATES ‑ My friend was a member of the committee and had ample opportunity to amend.

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

Section 15 was read as follows:

Sec. 15. Neither House shall, without consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting.

MR. OATES ‑ That is the same as in the present Constitution.

Upon a vote being taken, the section was adopted.

Section 16 was read as follows:

Sec. 16. No Senator or Representative shall during the term for which he shall during the term for which he shall have been elected, be appointed to any office of profit under this State, which shall have been created, or the emoluments of which have been increased during such term except such offices as may be filled by election by the people.

MR. O'NEAL ‑ I have an amendment I desire to offer.

The amendment was read as follows:

"Amend Section 16 by striking out all of said section which follows the word State in the second line."

MR. O'NEAL ‑ The amendment would leave the section to read as follows: "No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any office of profit under this State."


2364

OFFICIAL PROCEEDINGS

It simply prohibits a member of the Legislature from being appointed to any office, whether it is created by the Legislature or not, while he is a member.

THE PRESIDENT ‑ The same question was presented on the report of the Committee on Executive Department.

MR. OATES ‑ It was, Mr. President. I will say that the only changes made in this, and the only difference at all from the way it stands in the present Constitution, is so as to make the language more easily understood, not requiring any effort to fully comprehend it. As it reads here, it is quite plain. If a gentleman is a member of the House or Senate, and some Circuit Judge should die, the Governor could, if the authority were vested in him, appoint that member of the Legislature for the unexpired term. That is an office not created by the Legislature during the term of such member, or the emoluments of which have been increased during his term. The member has had no connection with it, no more than any other citizen of the State.

THE PRESIDENT ‑ The chair will invite the attention of the delegate from Montgomery to the amendment offered by the gentleman from Lauderdale and inquire if it is not the same proposition that was passed upon and decided by this Convention when the report of the Committee on Executive Department was under consideration.

MR. OATES ‑ I think it is substantially the same and I think it is subject to a point of order, for the reason that it was considered and voted down.

MR. O'NEAL (Lauderdale) ‑ I have not the book with me, but it is laid down in Roberts' Parliamentary Law that the same amendment can be offered to different sections. It is clearly laid down in that work.

THE PRESIDENT ‑ And the Convention could be required to vote upon the same proposition on every Section of the Constitution ?

MR. O'NEAL (Lauderdale) ‑ It could on the authority of that book.

THE PRESIDENT ‑ In the opinion of the Chair, after the Convention deliberately considers a proposition and votes upon it, that question ought to be considered as concluded unless there is a motion for its reconsideration. The Chair, however, will say to the gentleman—

MR. deGRAFFENREID ‑ I want to be heard one moment upon that point of order.

THE PRESIDENT ‑ Certainly. The Chair will be glad to hear the gentleman.


2365

CONSTITUTIONAL CONVENTION, 1901

MR. deGRAFFENREID ‑ It seems to me that the position taken by the gentleman from Lauderdale is the correct one. For instance, only a few moments ago the Convention tabled the amendment which was offered to a Section with reference to the issuance of free passes by railroads. The Chair stated to the Convention upon an inquiry, that he was in doubt as to whether that amendment was germane to the Section. Now I happen to know that there are members of this Convention who voted to lay that resolution upon the table because they thought it was not germane to the particular Section then under consideration.

THE PRESIDENT ‑ That is not the point now before the Convention.

MR. deGRAFFENREID– But I want to see if I can not bring the Chair to the consideration of the question that is before the Convention. It is possible that the Convention has voted down the same amendment, offered to some other Section of some other Article, but some members may have been actuated in so voting without expressing themselves upon the idea, that the amendment as offered by that Section was not germane to the subject, when in fact they favored the proposition itself. So it seems, if that be true, the same amendment might be offered to different sections, and for that reason it seems to me that the point made by the gentleman from Lauderdale is unanswerable.

MR. HEFLIN (Chambers) ‑ I move to lay amendment on the table.

THE PRESIDENT– In the opinion of the Chair where the same proposition is offered, it is not in order, otherwise this same amendment could be offered to every Section as we proceed. The Chair did rule a while  ago that the amendment was proper, and overruled the point of order, but the Chair, upon reflection, is of the opinion that he ruled erroneously at that time, for the reason, as suggested by the gentleman who made the point of order, that the identical proposition was included in the proposition offered by the gentleman from Jefferson, and the proper way for the gentleman from Montgomery to have presented that question was on a motion to strike out, and he lost his right when he omitted to make his motion to strike out so as to present his question on the resolution offered by the gentleman from Jefferson. But the Chair did rule, it now thinks, improperly, that the Convention was entitled to vote upon that amendment. The Convention did vote upon it, but here is the identical proposition which was presented on the report the other day. No point is made against it that it is not germane. That is not the point at all. The question is shall the Convention be forced to vote upon it a second time without a reconsideration. In the opinion of the Chair the amendment is not in order.


2366

OFFICIAL PROCEEDINGS

The clock struck 6.

MR. HEFLIN (Chambers) ‑ A point of order.  Under the rules, this Convention stands adjourned.

Leaves of absence were granted to Mr. Sanders for Monday and Tuesday, Mr. Bethune for Thursday, Friday and Saturday, and Mr. Bartlett for Thursday, Friday and Saturday.

And thereupon the Convention adjourned.