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FORTY ‑ NINTH DAY

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MONTGOMERY, ALA.,

Friday, July 19, 1901.

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

Almighty God, it is a good thing to give thanks unto Thee, and to sing praises unto Thy name. O, most High, to show forth Thy loving kindness in the morning, and Thy faithfulness every night. We Praise Thee for the refreshing showers of rain.  We praise Thee that Thou has blessed us in basket and in store. We praise Thee for civil and religious liberty. We praise Thee for the gift of Thy Son, our Savior. We beseech Thee to help Thy servants to do the work which will bear witness to Thee; help them to work while it is day, for the night cometh when no man can work. We pray Thee to bless the homes we represent. We comrnend one another to Thy tender care. Thou knowest how frail we are. Thou art not only able to keep us from failing, but from falling; Thou art able to present us faultless at last. Pardon our sins.  Deliver us from evil. This we ask in the name of Christ, our Savior. Amen.

Upon the call of the roll 110 delegates responded to their names.

Mr. Merrill in the chair.

MR. deGRAFFENREID ‑ I rise to a question of personal privilege. The stenographic report incorrectly reports some remarks that I made on yesterday but I do not want to take up the


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time of the House in correcting these remarks now, and I will ask leave to be allowed to write out what I slid say, and hand it up to the secretary so that the correction may appear its tomorrow's report.

There being no objection leave was granted.

Leaves of absence were granted Mr. Waddell and Mr. Kirkland and Mr. Ledbetter for Saturday, Mr. Porter for Saturday, Monday and Tuesday next.

MR. WATTS ‑ I rise to a question of personal privilege. Several days ago in the discussion of a measure upon the floor of this House I asked the question of one of the speakers whether the Tax Collector of Dallas County had not deposited money of the State in the Commercial Bank of Selma, and having lost it, applied to the Legislature for relief, and the bill was vetoed. I am informed that the information upon which I asked that question was erroneous, and I feel perhaps an injustice might have been done the Tax Collector of Dallas in my question; and therefore I desire to disclaim such intention and to state that I am satisfied that the information upon which I asked it was erroneous.

The Committee on Journal reported that they had examined the journal for the forty-eighth day of the Convention and found the same to be correct.  And upon motion the report of the Committee on Journal was adopted.

MR. COLEMAN (Greene)– I believe this is the proper time to bring up a motion for the reconsideration of a section that was adopted late yesterday, and so I would like to proceed with it.

THE PRESIDENT PRO TEM– The gentleman will suspend until after the roll call. The proper time for that question to come up is immediately after the roll call.  The Chair is in error and the gentleman will proceed.

MR. COLEMAN (Greene)– If the delegates will look at the sixth column of the stenographic report they will see the section as it was adopted yesterday afternoon here about midway it reads as follows: "During any regular session of the Legislature the appropriations for each four years before the next meeting of the Legislature shall not exceed in amount the income from the revenues of the State for each of said years respectively, as estimated by the Governor and Auditor." I hesitated to vote because it was my opinion that the proper construction to be placed upon that section excluded the authority of the Legislature to appropriate any surplus that might be found in the treasury.  After a more careful examination my conclusion was correct. Read it for yourselves and you will see that the Legislatures has no authority to make any appropriations at all at any time other than those estimated by the Governor and Auditor. Now if the revenues should


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exceed that estimate year by year for the four years, when a new Legislature might be convened, and for all time, it has no authority to make any appropriation of any surplus that might accumulate. I gave notice that I would move for a reconsideration for the purpose of enabling the Legislature to appropriate any money that might be accumulated and in accordance with that motion have prepared an amendment to meet the views of certain gentlemen in regard to the Capitol. It reads in this way: “To amend Section 27 by adding to this section the following: ‘Any surplus that may be in the State Treasury provided if from any cause it becomes necessary to rebuild the Capitol of the State, the Legislature is authorized to make such appropriations as may be required."

I do not anticipate that any such emergency will arise, and according to my opinion there will be plenty of money in the treasury for such purpose; but to meet the remotest contingency that might happen, that amendment has been added to the one I propose to make. I therefore move that Section 27, as adopted, be reconsidered that I may offer this amendment.

MR. OATES ‑ I cannot share in the apprehensions of the delegate just addressed to the Convention. His apprehension seems to be in the first place that the Legislature cannot appropriate beyond the estimate made by the Governor and the Auditor, as for the future incomes, the estimates made by  those officers fixes a point beyond which the aggregate appropriations cannot go. Now his other apprehension is that if a surplus accumulates in the Treasury that under this provision there will be no power to appropriate it. Why, sir, the delegate only misconceives the limitations fixed by this section. It is to prevent the Legislature from appropriating in excess of the income; and if there be an accumulated surplus it will be because the income is greater than the appropriations.

MR. WALKER ‑ Will the gentleman permit an interruption?

MR. OATES ‑ Certainly.

MR. WALKER ‑ Suppose that surplus is received from revenues of a year preceding the current year, how call you appropriate it? 

 MR. OATES ‑ That don't make a bit of difference. There is nothing in this section that prevents such action upon the part of the Legislature. It is to keep them from going beyond the income of each year. There is nothing in it that prevents them from appropriating any amount of surplus that may have accumulated. The gentleman cannot point out a word in the section that has such an operation or effect as that.


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MR. WALKER ‑ The language is: "appropriations made shall not exceed in amount the income from the revenues for the current fiscal year."

MR. OATES ‑ The aggregate appropriations shall not exceed; but suppose the accumulated income does not exceed the amount of appropriations there is no surplus; but in the event the income does exceed the amount of the appropriations, is there anything in there to prevent the Legislature from appropriating it?

MR. WALKER ‑ I think so.

MR. OATES ‑ Nothing at all; it only prevents them from appropriating in excess of the income.

(Mr. Robinson here propounded a question to Mr. Oates which the stenographer was unable to hear.)

MR. WALKER ‑ Suppose that there was a fund in the treasury arising by a sinking fund arrangement on the issue of bonds, how could that fund be appropriated under this provision? It would be in excess of the revenues of the current year.

MR. OATES ‑ Isn't that assuming that it would be in excess. It is only to prevent the Legislature from appropriating more money than the income or the estimated income. Now if the income exceeds the amount of the regular appropriations, there is nothing in the world in it that prevents the Legislature from appropriating that excess, just so they do not go beyond the amount of the income.

MR. WALKER ‑ That would be going beyond the amount of the income.

MR. DENT ‑ I have been absent unfortunately and I would like to get some information. As I understand it this section limits the amount to be appropriated by the Legislature to the income from the revenues of the State. Do I understand in this section that we have adopted, anything beyond the revenues arising from taxation for that particular year could be appropriated by the Legislature? That is the question that is in my mind and I would be glad if the distinguished Chairman of the Committee would make that plain to me. I don't see how we could appropriate anything beyond the income from the revenues as estimated.

MR. OATES ‑ It seems to me that is clear. It is a limitation on the power of the Legislature not to make appropriations beyond the estimated income for each year; but if the income exceeds the amount of the ordinary appropriations and expenses ‑ suppose it does, you cannot have a surplus in the treasury unless it does exceed the amount of expenditures appropriated; but sir, the limitation does not attempt, nor is there any language in it which goes


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to the extent of preventing the Legislature from appropriating where there is a surplus accumulated by a greater income than the amount of expenditures.  The limitation is to keep the Legislature from making appropriations beyond and above the income.  You won’t have any surplus at all unless the income is more than the outgo; and if it is more there is no limitation upon it.  If it is more where is any language that prevents the Legislature from appropriating it and using it, just so they do not exceed the amount of the income. That is the limitation that this section puts upon it.

MR. HOOD– If they appropriated an amount that exceeded the estimated income, would the appropriation be void?

MR. OATES– Now  you have propounded to me a question for the court to decide. That would present a question of entirely a judicial character and I cannot say whether it would be void or not.

MR. HOOD– Wouldn’t it be discretionary with the Legislature— wouldn’t it be left to the discretion of the Legislature.

MR. OATES– That presents, as I say a judicial question. Now if the appropriations were to exceed, actually exceed the estimate of the income?

MR. HOOD ‑ Yes sir.

MR. OATES ‑ Then suppose the income exceeded  the estimate? Is there any limitation or restriction upon the Legislature in appropriating that? So they do not go beyond the income —

MR. HOOD ‑ It reads "the aggregate appropriations made shall not exceed in amount the income from the revenues of the State for the current fiscal year."

MR. OATES ‑ That is not the section now, a substitute was adopted.

MR. O’NEAL (Lauderdale) ‑ What was the substitute?

MR. OATES– To be estimated for each year.

( Mr. Knox here resumed the chair.)

MR. SAMFORD (Pike) ‑ I will ask the gentleman from Montgomery  if the Legislature is to be governed by the estimate made by these officers with reference to the revenues to be derived from taxation and other sources, if that would not place the appropriations by the Legislature absolutely in the hands of the party who makes the estimate?

MR. OATES ‑ Not at all. It seems that certain delegates. I don't mean the delegate from Pike. but there seems to be such a wide apprehension in the minds of a good many of the delegates.


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They seem to think that the governor and the other officer charged with the duty, are not to be trusted, are unworthy of being trusted.  We have had no such experience as that in this State– no such trouble as that.  The Legislatures, however, at times do get too wild in their appropriations and go beyond the probable income.  Every one knows, or ought to know, that the Governor– take for instance my friend, the delegate from Pike and put him in the Governor’s chair, would he estimate faithlessly, or would he not estimate according to the best information that would not go beyond the probable income?  Any gentleman in that high position will do that and no more.  It is not putting the power of appropriation altogether into the hands of the Governor and the Auditor.  It is putting a limitation upon the powers of the Legislature in this regard.  Of course, it is largely directory.  I presume, while the question presented by the delegate from Etowah is a judicial one, in a case of the kind that he mentions, whether the appropriations would be void or not, it might be held by the Court, and probably would be held, that this section was directory, and if an honest mistake was made the appropriation would probably be sustained. I think it would. I don’t see any necessity for such an apprehension of danger as the delegates see in this section.  It seems to me to be a clear case.  From what source can we apprehend any danger?  It is certainly no limitation upon the Legislature from appropriating a surplus.  It just holds that body down or those bodies down, so that they cannot make appropriations in the aggregate which would exceed the estimated income.  That is the only purpose of it.

MR. JONES (Montgomery) ‑ Does the gentleman know of any case in which the courts have ever held that a provision in the Constitution is directory, when it says the Legislature shall not do a specific thing?  Don’t they always declare any action in violation of such a provision void?

MR. OATES ‑ It depends upon the phraseology of it.

MR. JONES ‑ Isn't it mandatory when it says you shall not do a thing, when the Legislature shall not do a certain thing?

MR. OATES ‑ Yes, when you see that language.

MR. JONES ‑ That you shall not exceed in amount the income from the revenues of the State.

MR. OATES– That means a limitation ‑ suppose they were to exceed in appropriations the income, in the aggregate, $50, would the court hold that the bill would be void ‑ that the appropriation bill is void for that reason? Wouldn't they hold that it was directory?

MR. JONES ‑ That might come under the maxim of de minimis non curat lex ‑ the law does not concern itself with trifles.


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If there were any grave discrepancy, I think they would hold it void beyond any question.

MR. OATES ‑ This question need not arouse our apprehensions.

MR. JONES ‑ I don't want to interrupt the delegate with my questions, but I simply rise for information : It says that our Legislature shall not exceed in amount the income from the revenues of the State for each of said years respectively, that is four years. But suppose when you started out you had a surplus in the Treasury derived say from the year 190l, could the Legislature for the next four years appropriate the whole amount in the Treasury on the ground that the amount that they started with in 1901 was a part of the revenues of the four years next succeeding.

MR. OATES – The only construction, the only reasonable one, that can be placed upon it is a limitation or restriction that they shall not make their appropriations in the aggregate to exceed the amount ‑ the estimated amount of the income.  It has nothing to do with the surplus; and if there shall be more money than the income ‑ suppose the income would be greater, half as great again, 50 per cent. greater than the amount of the expenses or ordinary appropriations, why there is no reason why the Legislature could not dispose of  that. It only prevents them from appropriating in excess of that amount. There is no other restriction upon it alt all.

MR. PILLANS ‑ I think if the distinguished chairman will read the clause there as reported, or as adopted, he will find there is reason to fear, not only to fear, but to see that the only interpretation which could be given this clause is that it stands as we have adopted it, that not one dollar could he appropriated exceeding the estimate of the income for the succeeding four years. Now let us take figures. Let us suppose that the income annually of the State of Alabama ,vas $2,500,000, estimated by these said officers. Then for the four years $10,000,000 would represent the full amount that could be appropriated. Suppose it is declared in the terms of the section that $10,000,000 would represent the full amount that could be appropriated and let us suppose that the State's revenues during that four years were $150,000 or $100,000, we will say, more each year than had been anticipated.  At the end of the four years you would leave beyond any question $400,000 of surplus earned by thrift which had been the result of this clause, and the action of this clause, by which the State of Alabama would have a sinking fund, or whatever you might choose to call it, should have wealth or money salted down to the amount of $400,000.

MR. OATES ‑ Would that be interfering with the provision that it should not appropriate in excess of the income? If there


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were an excess in the income over the appropriations made, why couldn't they appropriate it?

MR. PILLANS ‑ I was coming to that. My distinguished friend, the Chairman of the Committee, contends that you could appropriate that but what I am addressing myself to is that the clause as written, prevents doing that, and I will ask your attention to it. Now I have stated a case where the officers have been moderate in their estimate, and have put an estimate of 2,500,000 as the probable amount of income to be subject to appropriation, and in four years that would be ten million dollars, and if they receive during the four years from taxation and the other sources of revenue four hundred thousand in excess of the ten million dollars, you have got that as I express it, salted down, just as every thrifty man has an income and a surplus. Every man that saves ten dollars a year, has got his income, and has the surplus which he has saved when he balances his books, be he a merchant or professional man. That becomes his surplus or a part of his wealth and is no longer income. There comes another session of the legislature which is to make appropriations for another four years, and the members of this board, who are to furnish the figures to the legislature declare that their estimate is that the amount which can be safely estimated as the revenue of the State for that four years is two million six hundred thousand dollars per annum, and that gives the right to the legislature to go the extent of $10,400,000 for that four years, and not one dime or penny beyond it. Because you cannot say that the $400,000 surplus from the last four years is within the terms of the estimate of income for another four years. Any one can see that you cannot claim that it is income, any more than you can claim a man who had a surplus last year is going try make a surplus next year in the prosecution of any particular business. Now you have got $400,000 to the good, and your officers come in and they are bound to act conscientiously and they cannot untruthfully certify to the legislature that the income will be what they expect to come in, in addition to what has already been saved. If they are truthful, honorable men, such as are usually elected to officer in Alabama they will not do that, but they will say that the taxes are so much, the licenses are so much, and other sources of revenue are so much, which makes us believe that the income for the next four years will be so many dollars. Now that does not touch the surplus at all. It does not relate to surplus does it" No more than any man would consider his surplus as a part of his income for the ensuing year. If it is stated to you fairly and honestly as these gentlemen will do, no man who makes an estimate of his income for next year is going to, for instance, to give it into the tax gatherer, the amount which would include his savings for the preceding year, or the preceding twenty years of the laborious life. Now if you can add the surplus accumulated for the four preceding years you could add the


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surplus for the preceding fifty years and claim that that is the estimated income which you will receive from your different sources of revenue for the next four years. I take it it will not do to put language into the Constitution such as this, if we desire to give the legislature the power to appropriate that surplus, and we intend to give that power, and for that reason I remarked to the distinguished gentleman from Jefferson on yesterday that while I voted as he did for the passage of the resolution I also voted for it to be reconsidered, in order to have it so drawn as to make it beyond doubt so that the State would not go on accumulating money out of the tax ‑ payers and keeping it in the treasury where it could not be used for any purpose whatever.

MR. O'NEAL ‑ Suppose that the income is less than the estimate made by the Governor, say by $400,000, what would be the condition of the State?

MR. PILLANS ‑ It would be beyond question just as before.

MR. O'NEAL ‑ The legislature cannot meet to correct the evil under the present law, and what would be the remedy?

MR. PILLANS ‑ As a matter of course that is the old case of a man making ten dollars and spending eleven. If there are excessive appropriations notwithstanding all the pains we take to prevent it, and these appropriations are in excess of the revenue, the State is simply in the position it has occupied before, of having to borrow money to carry on the government, and if the State should be getting too greatly in debt. I assume the Governor of the State would call the legislature in special session and take measures to provide against the deficit growing too large.

But that does not affect the question under consideration. The question under consideration is how are we going to give the legislature the power to spend the money that they raise, if they should raise it in excess of the amount that is appropriated upon the estimate of the Governor.

MR. PETTUS ‑ The object with which the gentleman from Greene moves a reconsideration of this question is somewhat in line with the idea I had when I proposed a substitute to the amendment offered by the gentleman from Wilcox on yesterday. I offered that substitute to authorize the legislature to dispose of the revenues that would accrue as estimated, before the next General Assembly met, and would not limit them absolutely as the present section does to the income and revenues for the year in which the appropriations were made. But I think even that would have been one of the most dangerous sections that could have been adopted by this Convention. The legislature is a public assembly, the lower House is the body in which all measures and bills for the raising of revenue should originate and it is a body which should have the untrammeled power to disburse the revenue of the State


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as they see fit and I think the undivided responsibility for their action should rest upon the legislature and should not be upon the Governor except in so far as he may abuse his power, or may fail to use his power to veto measures which, in his opinion, are bad. The Governor is the executive arm of the State government, and I do not think that he should have the right himself, or in conjunction with the Auditor, to place an absolute inhibition upon the power of the people in the popular branch of the government, the General Assembly. I do not think it is either right or wise, or expedient to so concentrate the power of the State government in the hands of any one man. It might be thought that at some time there should be a man in the Executive office of the State, whose interest it would be to under ‑ estimate the revenues of the State for the next four years, and I submit that if that be true, and the revenues are under ‑ estimated the succeeding legislature will not only be prohibited from appropriating what might accrue, but the General Assembly would be prohibited from appropriating for any purpose the surplus that would accrue for four years, except for the year in which it accrues. Then there is another danger which it seems to me should be taken into consideration. The presumption is that the organic law which we are now framing is to be the Constitution for the State of Alabama for the next twenty or thirty or forty years, and in the course of that time different political parties might arise in the State of Alabama, and it may be possible that in the future we shall be confronted with the condition of having a Governor of one political party and a General Assembly of another political party, and I submit that if such a condition should arise that the Governor of the State would have in his hand a dangerous power, that it would be within his power, under political conditions like that, to prevent the Legislature, and to prohibit the Legislature, from taking such action as in its wisdom it might deem best. Mr. President, I favor the reconsideration of this section for the purpose either of striking out the part which authorizes the Governor and Auditor to make the estimate, and leave it to the General Assembly as a purely legislative function to estimate the income, and to limit their appropriation to the estimates they themselves may make, or of laying this section altogether upon the table, and I move the previous question upon the motion to reconsider.

Upon a vote being taken, the main question was ordered.

MR. COLEMAN (Greene) ‑ The last delegate who addressed you has gone over the question that was so fully discussed on yesterday and settled by this Convention not to trammel the Legislature in the appropriation of revenue, but to restrict them within the limits of the revenue. That was indicated very clearly by the vote on yesterday, and I think that is a very sound provision. The trouble of my friend, the distinguished chairman of the com‑


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mittee, proceeds, I think, from the fact that he has got one idea in his mind, and there is another in the law. I have called the attention of delegates to the reading of the law, and I venture to assert there are not three lawyers in this Convention who will agree with him upon the legal construction of this section. He confounds income with estimated income. If anything can be clear it is that the Legislature cannot make appropriations exceeding the estimated income. That is the basis of the argument of the delegate from Mobile, which has not been answered legally, and cannot be answered. When you adopt this section as amended the Legislature will have authority not only to appropriate the revenues as they arise, respectively each year, but any surplus that may accumulate in the treasury, and the purpose of the section is to prevent the Legislature from making appropriations beyond the revenues of the State, and any money that may be accumulated in the treasury. That is all I have to say. The previous question has been ordered.

THE PRESIDENT ‑ The question is upon the motion to reconsider the vote whereby this Convention adopted Section 27.

Upon a vote being taken, the motion to reconsider was carried.

MR. COLEMAN (Greene) ‑ I offer an amendment.

The amendment was read as follows: “Amend Section 27 by adding to the section the following, ‘And any surplus that may be in the State treasury; provided, that if from any cause it becomes necessary to rebuild the Capitol of the State the Legislature is authorized to make such appropriation as is required.’”

MR. COBB ‑ I move to amend that by striking out the whole section and the amendment.

MR. COLEMAN ‑ Can that be done after the previous question has been ordered?

THE PRESIDENT ‑ The previous question was ordered on the reconsideration.

MR. SAMFORD (Pike) ‑ I move to lay the whole business on the table, the section and the amendment.

MR. WILLIAMS (Marengo) ‑ A point of order. That was voted down on yesterday on the motion of the gentleman from Barbour, Mr. Merrill.

MR. O'NEAL ‑ Yes, but it is reconsidered, Mr. President. We are not bound by what we did yesterday after a reconsideration.

MR. COLEMAN (Greene) ‑ The question before the House now is upon the amendment.

MR. COBB ‑ I have offered a substitute.


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Substitute was read: "To amend by striking out the section and the amendment."

MR. WALKER ‑ Is there anything before the House now, the question of reconsideration having been passed upon?  Is  the consideration of this question properly before the House at this time?

THE PRESIDENT ‑ It seems to the chair that after the Convention reconsiders the section that it then takes its place to he reconsidered when the report of the committee is  regularly reached, and the point of order will be sustained.

MR. OATES ‑ I do not see the objection to considering it now, inasmuch as it is reconsidered, I think we should take it up and consider it.

THE PRESIDENT ‑ It would require a suspension of the rules to do so.  The regular order is the call of the roll of delegates for the introduction of ordinances etc.

MR. HOWZE– I offer a petition, and ask unanimous consent that it be read.

Objection was made.

MR. HOWZE ‑ I move a suspension of the rules and that the petition be read.

Upon a vote being taken, a division was called for, and the motion to suspend the rules was carried.

The petition was thereupon read as follows:

Petition 23, by Mr. Howze:

To the Honorable the Constitutional Convention of Alabama:

In a Section of the proposed new Constitution of Alabama, adopted by you last week, fixing a debt limit upon cities, there is an exception as to cities over six thousand (6,000) population of "obligations incurred and bonds issued for street or sidewalk improvements where the cost of the same in whole or in part is to be assessed against the property abutting said improvements."

While the city of Birmingham is progressive and growing, it has a very large bonded debt at a high rate of interest, and unless there is a debt limit fixed in the Constitution for this city, there is no chance to advantageously fund the city's bonded debt.

To allow the city to further issue bonds to purchase water works, light plants, etc., is dangerous enough, but in the exercise of this power, the city will at least get some property ‑ for the indebtedness incurred, and there is some limit in this regard law supplying the needs of the city. 


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But the exception from the debt limit above set forth, is dangerous, ruinous; this exception virtually nullifies the debt limit fixed.

Suppose Birmingham goes on and issues two or three million dollars of improvement bonds, as it is likely to do if not restrained. and then those bonds should become a charge upon the general revenues of the city, by reason of the courts holding that the assessments against abutting property are invalid on account of the law authorizing the improvements being invalid or the failure of the city authorities to comply with the requirements of the law (such things have happened) what would be the financial condition of the city?

The bonds would be paid, if paid at all, out of the general revenues of the city, which are now strained to the utmost limit.

The financial condition of Birmingham is such that the real property-holders recognize the fact that all improvements hereafter made will have to be made at the expense of the property, it cannot be made at the expense of the general fund of the city.

In all improvement laws, an opportunity is given each property holder to pay cash for the cost of the improvement assessed against his property. This being true, if the improvements are to be made at the expense of the abutting property, is it fair or right for a property holder who has paid the assessment against his property, to be required to guarantee the payment of the assessment against other property where improvement bonds are issued by the city?

If the city issues improvement bonds, the city of course becomes primarily liable for the debt, and if it fails for any cause to collect the assessments, the debt becomes a charge upon the general revenues of the city, and necessarily a charge by way of taxation upon all the property in the city.

It may be said that the city can borrow money cheaper than an individual ‑ this is a delusion ‑ our experience in the past has been that where provisions for ten year improvement bonds were made, the property holder is required to pay in annual installments, or in the average term of five years ‑ you have but to examine the last Charter of the City of Birmingham to see that the property ‑ holder could borrow money to pay for the improvements and incumber his own property therefor, and not pay more than he would have to pay to the city.

If the cost of the improvements is to be paid for in whole or in part by the abutting property, each property ‑ holder should be required to pay cash, if the money has to be borrowed, let the property holder borrow it and encumber his property ‑ let the city have the power to order the improvements, let the contract, make and


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collect the assessments and sell the property if not paid. In this way, when the property holder pays hi, assessment he is done with it, his property is not liable directly or indirectly for the payment of the assessment against property which does not belong to him.

To allow the city to issue bunch for improvements, where the cost is to be assessed against the abutting property, makes the city guarantee the validity of the law under which the improvements are made and guarantee that the city officials have conformed to the requirements of the law.

In the past, experience shows that city authorities (not only in Birmingham but elsewhere) are prone to be profligate in the expenditure of money, when pay day is in the distant future, and the experience of property holders constrains them to say that there should be a restraining power upon the city authorities.

The property holders are more interested than any others in improving the city and in maintaining the credit of the city.

And we respectfully ask you to protect the property holders in Birmingham by striking out the exception above set forth, which authorizes the city to issue bonds for improvements where the post is to he assessed in whole or in part against the abutting property.

In making this request, we feel satisfied that we voice the sentiments of the great majority of the real property holders in Birmingham, any statement to the contrary notwithstanding.

Resolved, By the Birmingham Real Estate Association, in meeting assembled, That the above and foregoing address and petition be adopted and the same be forwarded by the Secretary to the members of the Constitutional Convention from Jefferson County, and that said delegates be requested to present the same to the Convention.      T. H. Molton,

July 9, 1901.                President.

HR. HOWZE ‑ I ask that it be referred to the Committee on Municipal Corporations. So referred.

MR. HOOD ‑ I yield my call to the gentleman from Greene.

MR. COLEMAN ‑ In line with the petition just presented I desire to offer the petition there purporting to represent a million and a half of property of the taxpayers of Birmingham. I do not care to have the names read, but would like for them to appear so that the delegates from that county may see who are interested in this matter, for they know more about them than I do. Read the caption, then the names can appear in the stenographic report.

Upon a vote being taken the motion to read the petition was carried, and the Secretary read the petition as follows:


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Petition 24 Mr. Coleman (Greene).

Hon. T. W. Coleman, Montgomery, Ala.:

The undersigned citizens and tax payers of the city of Birmingham, Ala., earnestly desire a tax limit on the power of taxation by municipalities and especially of this city, and desire the amendment proposed by Mr. Weakley with its exceptions rejected, and we respectfully pray that the Convention now in session place a limit on the powers of taxation and of assessment for investment on municipal authorities:

John G. Smith, H. P. Smith, J. H. Stillman, L. R. Edge, A. Speaker, D. R. Dunlap, L. Burger, T. C. McDonald, William Snyder, W. O. Snyder, S. West Jones, W. A., Smith, N. P. Leavins, F. E. Davison,  W. T. Robinson, A. W. Abbott, Otto Marx, Frederick G. Mack. W. S. Brown, J. A. Downley, George H. Blin, Jr., M. W. Miner, W. E. Holloway, Norman Webb, James Spence, Calvin Jones, R. H. Baugh, C. A. Mountjoy.

The same petition as above, but with the following statement: “These parties own property worth approximately one million dollars” was signed by the following names: T. H. Molton & Co., for Joseph R. Smith, Sr.; E. L. Watts, John C. Henley, B. F. Simmons, C. E. Crenshaw, E. J. Pierce, Kate D. Pierce, L. L. Molton, N. H. Anderson, M. J. Ansley, William Fort, Mary D. Fitzpatrick, R. B. Haney, J. H. La Prade, M. Lewars, M. J. Lunquest, Betty Montgomery, C. H. Molton, F. Nelson, Jr., J. A. Robertson, M. C. Roper, E. W. Storey, J. E. Torrey, C. B. Thompson, H. H. Vance, M. H. Ware, D. Walker, B. F. Roden, O’Bryne & Franklin, H. Franklin, T. T. Ashford, George Cobb, John F. White, S. W. White, J. H. Patterson, W. H. Wilder, Mrs. W. H. Wilder, Thomas D. Bradford, H. H. Mayberry, T. H. Spencer, H. S. Hall, S. E. Thompson, C. F. Enslen, Jefferson County Savings Bank by C. F. Ensley, President; J. Ellis Davis, Mrs. Lydia L. Davis by J. E. Davis, agent.

The same petition was signed by the following names, but without any statement attached thereto: W. R. Houghton, George Huddleston, William C. Ward, J. L. Yancey, J. D. Chichester, L. Schneinbrathen, P. M.; M. T. Porter. J. M. Gillespy, John W. Webb, Wilbur C. Offott, Mrs. Idella M. Middleton, S. B. Garrett, Louis Saks, J. F. Sulzby, Hermann Saks, J. P. Lynch, M. E. Watlington, F. M. Lynch, J. D. Callius, Sam H. Harris, J. M. Yahill, J. W. Hasz, Sam L. Earle, M. M. Boggan, J. C. Abernethy, H. C. Abbott, E. I. Burn, L. E. Bates, John P. Rosenthal. W. F. Hodges, J. N. Beason, \ ‑ V. D. Cooper, A. B. Vandergrift, R. R. Robinson, Jones Schwab, R. N. Wheeler. F B. Johnson, Sidney Hart, B. Meyerstein, Joseph Lovemdary, S. Rich. James A. Going, R. V. Mobley. R. A. McAdory.


2462

OFFICIAL PROCEEDINGS

The same petition was sign by the following names, but without any statement attached thereto:

I. H. Benners, Wesley M. Smith, H. V. Johnson, T. F. Cheek, James A. Allen, R. E. Middleton, J. E. Wilson, T. N. Anglin, M. M. Williams, Oliver Caldwell, G. W. Chambers, M. A. May, John B. Bonner, J. B. Francis, T. C. William S. Morrow, J . P. Stiles, John L,. Davis, H. M. Geever, H. W. Crook, city of Bessemer; M. H. Crittenden, C. C. Ellis, C. C. Ellis, Jr., Lewis Whaley, C. R. Sexton, Mrs. F. M. Gardner, Mrs. K. B. Beard, Mrs. Jane T. Lynch. J. C. Kyle, Mrs. L. A. Peace, H. E. Hewitt, M. H. Snedecor, A. F. White, E. J. Black, Warner, Smiley & Co., by Newton, Mrs. Annie Brooks, A. B. Lovelace, Joe Slaughter, J. M. Bradley, J. L. Worcester, L. J. Haley, Jr.

MR. PRESIDENT ‑ The petition will be referred to the Committee on Municipal Corporations.

The hour of 10:30 having arrived the call of the roll of delegates was discontinued. Upon a call of the standing committees the following business was transacted:

MR. O'NEAL ‑ The Committee on Local Legislation has been called and the Committee on Engrossment reported yesterday the engrossed article. I would ask that the article be read a third time for final passage. Is it in order at this time?

THE PRESIDENT ‑ It seems to the Chair that would come under unfinished business. Whether it did or not, without a suspension of the rules it could not be done.

MR. O'NEAL ‑ It is the report from the Committee on Engrossed Bills. Their report is in order. That would come up under the head of special committees.

MR. O'NEAL ‑ It is the report of a standing committee.  I call your attention to the report of the standing committees. Is not the Committee on Engrossed Bills a standing committee?

THE PRESIDENT ‑ It is a special committee, and when that committee is called it will merely be called for report. That would come under No. 9, unfinished business.

MR. deGRAFFENREID ‑ Mr. President, I want to state that the Committee on Order and Harmony have gotten down to business and that it will be perhaps in the interest of shortening the work of the Convention, if each article was read and put upon its passage.

THE PRESIDENT ‑ The regular order could be reached while you gentlemen are talking.

The head of unfinished business being called—


2463

CONSTITUTIONAL CONVENTION, 1901

MR. O'NEAL ‑ I ask that the report of the Committee on Engrossment be now taken up and that the articles engrossed by them he put upon final passage.

THE PRESIDENT ‑‑ It is moved that the article on local legislation reported by the Committee on Engrossment be read a third time and passed.

MR. BROWNE ‑ I move to amend that motion by taking up for passage the articles as reported by the committee, if the gentleman will accept, there were three articles reported at the same time.

THE PRESIDENT ‑ It is moved that the articles reported by the Committee on Engrossment be taken up and read a third time and passed.

Upon a vote being taken, the motion was carried.

The ordinance on local legislation was first in order.

MR. WILSON (Clarke) ‑ I desire to explain why I vote against this ordinance. I would wait until my name is called on the roll. but judging from the experience of those who have tried that before objection will be interposed and therefore as I have the right to explain I want to say that my reason for voting against the ordinance, is that one section of it permits the court to strike down a law which the Legislature has passed, which has been acted on. upon which rights have been based on a decision by the courts that the relief which the act gave might be secured from the courts and for that reason I vote against the ordinance, otherwise I am in favor of it.

MR. deGRAFFENREID ‑ Mr. President. I vote against the ordinance for the same reason.

MR. DENT ‑ I would like to inquire if the Convention has not power to strike that part out by some action? Could not they introduce an independent ordinance striking out after its adoption.

THE PRESIDENT ‑ An independent ordinance might be introduced, yes sir.

MR. DINT ‑ I agree with the gentlemen who have expressed that opinion. I propose to introduce a separate ordinance to strike out the objectionable clause.

MR. KIRK ‑ I vote against it for the reasons stated by the gentleman from Clarke.

MR. PETTUS ‑ I shall vote against it for the reason stated by the gentleman from Clarke. I would like to have that stricken out and for the additional reason this Convention has absolutely


2464

OFFICIAL PROCEEDINGS

cut off certain subjects from local legislation and has refused to provide any other forum to which the people might look for relief. For those reason, I vote against it.

MR. BURNS-I would like to ask the gentleman a question. I want to ask if he votes against this article this morning, if he will vote against ratification?

MR. O’NEAL- I rise to a point of order. Delegates have no right to explain their votes at this time.

THE PRESIDENT- It seems to the Chair it is competent now on the final passage of the bill to discuss the question of the acceptance or the injection of the entire article and gentlemen may state they purpose to vote against the entire article, and are explaining their attitude.

MR. O’NEAL-I think it is doing indirectly what the rules prohibit.

MR. LONG (Walker)- I will vote aganist it because I think it will result in endless litigation, if any law passed by the Legislature can be carried into court and the court is given the absolute right to inquire into it and hold that any law which the judge may think should be done by a general law. I think it will bring about endless litigation and I will vote against the article.

MR. O’NEAL- I would suggest to the gentleman that any amendment desired can be make when the article comes up for final passage from the Committee o Harmony and Consistency. Under our rules that can be done if the Convention desires to do it.

MR. COLEMAN-I would like to make a statement. It is hardly consistent to vote against the adoption of the entire article because there is a section in it can be remedied. I shall vote aye for the adoption of the article whatever position I may take upon the particular section.

The article was read as follows:

An ordinance concerning local legislation:

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

ARTICLE------.

Local Legislation.

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


2465

CONSTITUTIONAL CONVENTION, 1901

1st ‑ Granting a divorce.

2d ‑ Relieving any minor of the disabilities of non ‑ age.

3d ‑ Changing the name of any corporation, association or individual.

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

5th ‑ Incorporating a town, city or village.

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

7th ‑ Establishing rules of descent for distribution.

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

9th ‑ Exempting any individual, private corporation or association from the operation of any general law.

10th ‑ Providing for the sale of the property of airy individual or estate.

1lth ‑ Changing or locating a county seat.

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

13th ‑ Regulating the rate of interest.

14th ‑ Fixing the punishment of crime.

15th ‑ Regulating either the assessment or collection of taxes, except in connection with the readjustment, renewal or extension of existing municipal indebtedness, created prior to the adoption of the Constitution of 1875.

16th ‑ Giving effect to an invalid will, deed or other instrument.

17th ‑ Authorizing any county township, city. town or village to issue bonds or other security, except in cases in which the issuance of said bonds or other securities has been authorized by a vote of the duly qualified electors of such county, township, city, town, or village, at an election held for such purpose in the manner that may be prescribed by law; provided, the General Assembly may pass special laws to refund bonds issued before the date of the ratification of this Constitution.

18th. ‑ Amending, confirming or extending the charter of any private or municipal corporation, or remitting the forfeiture thereof.

19th ‑ Creating, extending or impairing any lien.

20th ‑ Chartering or licensing any ferry, road or bridge.


2466

OFFICIAL PROCEEDINGS

21st ‑ Increasing the jurisdiction and fees of justices of the peace or the fees of constable.

22d ‑ Establishing separate school districts.

23rd ‑ Establishing separate stock districts.

24th ‑ Creating, increasing or decreasing fees, percentage or allowance of public officers.                     

25th ‑ Exempting property from taxation or front levy or sale.

26th ‑ Exempting any person from jury, road or other civil duty.

27th ‑ Donating any land owned by or under control of the State to any person or corporation.

28th ‑ Remitting fines, penalties or forfeitures.

29th ‑ Providing for the conduct of elections or designating places of voting, or changing the boundaries of wards, precincts or districts, except on the organization of new counties. and changing the lines of old counties.

30th ‑ Restoring the right to vote to persons convicted of infamous crimes, or crimes involving moral turpitude.

31st ‑ Declaring, who shall be liners between counties.

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

The General Assembly shall pass general laws for the cases enumerated in this section; provided, that nothing in this section or article shall affect the right of the Legislature to enact local laws regulating or prohibiting the liquor traffic; provided, that the notice is given as required in Section 2 of this article.

Sec. 2. ‑ No special, private or local law shall be passed on any subject not enumerated in Section 1 of this article, except in reference to fixing the tithe of holding court, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the county or counties where the matter or thing to be affected may be situated, which notice shall state the substance of the proposed law, and be published at least once a week for four consecutive weeks in some newspaper, or if there is no newspaper


2467

CONSTITUTIONAL CONVENTION, 1901

published in the county, by posting the said notices for four consecutive weeks at five different public places in the county or counties, prior to the introduction of the bill; and the evidence that said notice has been given shall be exhibited to each House of the General Assembly, and the fact of said notice spread upon the Journal. The courts shall pronounce void every local law which the Journals do not affirmatively show was passed in accordance with the provisions of this section.

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

Sec. 4. ‑ The operation of no general law shall be suspended for the benefit of any individual, private corporation or association, nor shall any individual private corporation or association be exempted from the operation of any, general law, except as in this article otherwise provided.

Sec. 5. ‑ The General Assembly shall lass general laws under which local and private interests shall be provided for and protected.

Sec. 6. ‑ A general law within the meaning of this article is a law which applies to the whole State a local law is a law which applies to any political subdivision or subdivisions of the State less than the whole. A special or private law, within the meaning of this article is one which applies to an individual, association or corporation.

Sec. 7. ‑ No bill introduced as a general law into either House of the General Assembly shall be so amended in its, passage as to become a special, private or local law.

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

AYES.

Messrs. President,

Cardon,

Ferguson,

Altman,

Chapman,

Fletcher,

Banks,

Cobb,

Glover,

Barefield,

Cofer,

Graham, of Talladega,

Beddow,

Coleman, of Greene,

Grayson,

Bethune,

Cornwall,

Greer, of Calhoun,

Blackwell,

Craig,

Greer, of Perry,‑

Boone,

Cunningham,

Handley,

Brooks,

Davis, of DeKalb,

Harrison,

Browne,

Davis, of Etowah,

Heflin, of Chambers,

Bulger,

Duke,

Heflin, of Randolph,

Burnett,

Eley,

Hinson,

Burns,

Espy,

Hodges,


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OFFICIAL PROCEEDINGS

Hood,

Moody,

Selheimer,

Howell,

Murphree,

Sloan,

Howze,

NeSmith,

Smith (Mobile),

Inge,

Norman,

Smith, Mac. A.,

Jackson,

Oates,

Smith, Morgan M..,

Jones, of Bibb,

O’Neal (Lauderdale),

Sorrell,

Jones, of Montgomery,

O’Neill (Jefferson),

Spragins,

Jones, of Wilcox,

Opp,

Stewart,

Knight,

O’Rear,

Tayloe,

Kyle,

Palmer,

Vaughan,

Leigh,

Parker (Cullman),

Waddell,

Locklin,

Pearce,

Walker,

Lomax,

Pillans,

Watts,

Macdonald,

Reese,

Weakley,

McMillan(Baldwin),

Reynolds(Henry),

White,

McMillan (Wilcox),

Robinson,

Whiteside,

Malone,

Rogers (Lowndes),

Williams (Barbour),

Martin,

Sanders,

 Williams (Marengo),

Maxwell,

Sanford,

 Williams(Wash’gton),

Miller (Wilcox),

Searcy,

 Winn,

Total-99.

NOES.

Carmichael, of Colbert,

Henderson,

Pettus,

Dent,

Kirk,

Spears,

deGraffenreid,

Kirkland,

Studdard,

Foster,

Long (Walker),

Wilson (Clarke),

Gilmore,

Merrill,

Total-14. ABSENT OF NOT VOTING.

Almon,

Grant,

Phillips,

Ashcraft,

Haley,

Pitts,

Bartlett,

Jenkins,

Porter,

Beavers,

Jones, of Hale,

Proctor,

Byars,

King,

Renfro,

Carmichael, of Colbert,

Ledbetter,

Reynolds (Chilton),

Carnathon,

Long (Butler),

Rogers (Sumter),

Case,

Lowe(Jefferson),

Samford,

Coleman, of Walker,

Lowe(Lawrence),

Sentell,

Eyster,

Miller(Marengo),

Sollie,

Fitts,

Morrisette,

Thompson,

Foshee,

Mulkey,

Weatherly,

Freeman,

Norwood,

Willet,

Graham, of Montgomery,  

Parker (Elmore),

Williams ( Elmore),

Mr. Beddow here took the Chair , and by a vote of 99 ayes and 14 noes the Article was adopted.


2469

CONSTITUTIONAL CONVENTION, 1901

'THE PRESIDENT PRO TEM---- The Article will be ordered printed and referred to the Committee on Order, Consistency and Harmony of the Whole Constitution.

The President here resumed the Chair.

The engrossed Article of State and County Boundaries was read as follows:

An ordinance to create and define the State: and County Boundaries and to regulate the location of county sites and the formation of new counties.

Be it ordained by the people of Alabama in Convention assembled, That Article II, of the Constitution be stricken out and the following :article inserted in lieu thereof:

ARTICLE II.

State and County Boundaries, County Sites and New Counties.

Section 1.The boundaries of this State are established and declared to be as follows, that is to say : Beginning at the point where the 31st degree of North Latitude crosses the Perdido River : thence east, to the western boundary line of the Sate of Georgia ; thence along said line to the southern boundary line of the State of Tennessee, crossing west along the southern boundary line of the State of Tennessee, crossing the Tennessee River and on to the second intersection of said river by said line, thence up said river to the mouth of Big Bear Creek, thence by direct line to the  northwest corner of Washington County, in this State as originally formed ; thence southerly, along the line of the State of Mississippi to the Gulf of Mexico, thence eastwardly to and including all islands within sit leagues of the shore to the Perdido River, thence up the said river to the beginning.   Provided, that the limits and jurisdiction of this State shall extend to and include any other land and territory now acquired, or hereafter acquired by contract or agreement with other States, or otherwise, although such land and territory are not included within the boundaries hereinbefore designated.

Sec. 2. The boundaries of the several counties of this State as they now exist are hereby ratified and confirmed.

Sec. 3. The General Assembly may by a vote of two ‑ thirds of both Houses thereof arrange and designate boundaries for the several counties of this State, which boundaries shall not be altered, except by a like vote; but no new counties shall be hereafter formed of less extent than 600 square miles, and no existing county shall be reduced to less than 600 square miles; and no new county shall 1)e formed which does not contain a sufficient number of inhabitants to entitle it to one Representative under the ratio of representation existing at the time of its formation, and leave the county or counties from which it is taken without the required number


2470

OFFICIAL PROCEEDINGS

of inhabitants, entitling such county or counties to separate representation;  Provided, that out of the counties of Henry, Dale and Geneva a new county may be formed under  the provisions of this Article for forming new counties, so as to leave said counties of Henry, Dale and Geneva with not less than 500 square miles each.

Sec. 4. No county line shall he altered or changed, or in the creation of new counties, shall be established, so as to run within seven miles of the County Court House of an old county.

Sec. 5. No county site shall be removed except by a majority vote of the qualified electors of said county, voting in an election held for such purpose, and when an election has once been held for such purpose, no other election can be held for such purpose until the expiration of four years. Provided, that the county site of Shelby County, of this State, shall be and remain at Columbiana, unless removed by a vote of the people as provided for in an act entitled an Act to provide for the permanent location of the county site of Shelby County, Alabama, by a vote of the qualified electors of said county, approved the 9th day of February, 1899, and the Act amendatory thereto approved the 20th day of February, 1899, or by an election held under the provisions of this Article.

THE PRESIDENT ‑ The question is upon the adoption of the Article.

And upon a call of the roll the vote resulted as follows:

AYES.

Messrs. President,

Davis, of DeKalb,

Hodges,

Almon,

Davis, of Etowah,

Hood,

Altman,

Dent,

Howell,

Ashcraft,

deGraffenreid,

Howze,

Banks,

Duke,

Inge,

Barefield,

Eley,

Jackson,

Beddow,

Eyster,

Jenkins,

Bethune,

Espy,

Jones, of Bibb,

Blackwell,

Ferguson,

Jones, of Montgomery,

Boone,

Fletcher,

Jones, of Wilcox,

Brooks,

Graham , of Montgomery,

Kirk,

Browne,

Graham, of Talladega,

Kyle,

Bulger,

Grayson,

Knight,

Burnett,

Greer, of Calhoun,

Leigh,

Burns,

Haley,

Locklin,

Cardon,

Handley,

Lomax,

Chapman,

Harrison,

Long, of Butler,

Cobb,

Heflin, of Chambers,

Long, of Walker,

Coleman, of Greene,

Heflin, of Randolph,

Macdonald,

Craig,

Henderson,

McMillan, of Baldwin,

Cunningham,

Hinson,

McMillan (Wilcox),


2471

CONSTITUTIONAL CONVENTION, 1901

Malone,

Pearce,

Stewart,

Martin

Pillans,

Tayloe,

Maxwell,

Pitts,

Vaughan,

Merrill,

Proctor,

Waddell,

Miller (Wilcox),

Robinson,

Walker,

Moody,

Rogers (Lowndes),

Weakley,

NeSmith,

Sanders,

White,

Norman,

Searcy,

Whiteside,

O'Neal (Lauderdale),

Selheimer,

Williams (Barbour),

O’Neill, of Jefferson,

Sentell,

Williams (Elmore),

Opp,

Smith (Mobile),

Wilson (Clarke),

O'Rear,

Smith, Morgan M.,

Wilson (Wash'gton),

Palmer,

Sorrell,

Winn,

Parker (Cullman),

Spears,

Parker (Elmore),

Spragins,

Total ‑ 107.

NOES.

Cofer,

Mulkey,

Sanford,

Fitts,

Oates,

Sloan,

Foshee,

Porter,

Smith, Mac. A.,

Freeman,

Reynolds, of Henry,

Stoddard,

Total ‑ 12.

ABSENT OR NOT VOTING.

Bartlett,

Grant,

Phillips,

Beavers,

Greer, of Perry,

Reese,

Byars,

Jones, of Hale,

Renfro,

Carmichael, of Colbert,

King,

Reynolds (Chilton),

Carmichael, of Coffee,

Kirkland,

Rogers (Sumter),

Carnathon,

Ledbetter,

Samford,

Case,

Lowe, of Jefferson,

Sollie,

Coleman, of Walker,

Lowe, of Lawrence,

Thompson,

Cornwall,

Miller (Marengo),

Watts,

Foster,

Morrisette,

Weatherly,

Gilmore,

Murphree,

Willet,

Glover,

Norwood,

Williams (Marengo),

By a vote of 107 ayes and 12 noes the article was adopted.

THE PRESIDENT ‑ The article will be ordered printed and referred to the Committee on the Order, Consistency and Harmony of the Whole Constitution.

The article of Banks and Banking being called–

MR. HENDERSON ‑ I desire to explain my vote upon this article. I shall vote against the adoption of the report because I do not believe that Sections 8 and 9 should be embodied in the Constitution.


2472

OFFICIAL PROCEEDINGS

The article was read as follows:

ARTICLE XIV.

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

Sec. 2. No bank shall be established otherwise than under a general banking law, nor otherwise than upon a specie basis. Provided, that any bank may be established with authority to issue bills to circulate as money in equal amount to the face value of bonds of the United States or of this State, convertible into specie at their face value, which shall, before such bank is authorized to issue bills for circulation, be deposited with the State Treasurer or other depository prescribed by law in an amount equal to the aggregate of such proposed issue, with power in such Treasurer or depository to dispose of any or all of such bonds for a sufficient amount of specie to redeem the circulating notes of such bank at any time and without delay, should such bank suspend specie payment, or fail to redeem its notes on demand.

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

Sec. 4. Holders of bank notes and depositors who have not stipulated for interest, shall for such notes and deposits, be entitled in case of insolvency, to the preference of payment over all other creditors. Provided this section shall apply to all banks whether incorporated or not.

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

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

Sec. 7. Neither the State nor any political subdivision thereof shall be a stockholder in any bank, nor shall the credit of the State ever be given, or loaned, to any banking company, association or corporation.

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


2473

CONSTITUTIONAL CONVENTION, 1901

banking institutions and trust companies engaged in banking business in this State. And each of such banks and banking companies or institutions shall, through its President or such other officer as the General Assembly may designate under oath, make a report of its resources and liabilities at least twice a year.

Sec. 9. That the provisions of this article shall apply to all banks, trust companies and individuals doing a banking business except national banks, whether incorporated or not.

THE PRESIDENT-The question will be upon the adoption of the ordinance.

And upon a call of the roll the vote resulted as follows:

AYES.

Messrs. President,

Greer, of Perry,

Norman.

Almon,

Haley.

Oates,

Ashcraft,

Handley,

O'Neal (Lauderdale),

Banks,

Harrison,

O'Neill (Jefferson),

Barefield,

Heflin, of Chambers,

Opp,

Beddow,

Heflin, of Randolph,

Palmer,

Bethune,

Hinson,

Parker (Cullman),

Blackwell,

Hodges,

Parker (Elmore),

Boone,

Hood,

Pearce,

Brooks,

Howell,

Pettus,

Browne,

Howze,

Pillans,

Bulger,

Inge,

Pitts,

Burnett,

Jackson,

Porter,

Burns,

Jenkins,

Proctor,

Cardon,

Jones, of Bibb,

Reynolds (Henry),

Carmichael, of Colbert,

Jones, of Wilcox,

Robinson,

Cobb,

Kirk,

Rogers (Lowndes),

Cofer,

Kirkland,

Sanders,

Coleman, of Greene,

Kyle,

Sanford,

Cornwall,

Leigh,

Searcy.

Craig,

Locklin,

Selheimer,

Cunningham,

Lomax,

Sentell,

Davis, of  Etowah,

Lowe (Jefferson),

Smith, Mac. A.,

Dent,

Macdonald,

Smith, Morgan M.,

Duke

McMillan (Baldwin),

Spears,

Espy,

McMillan (Wilcox),

Sorrell,

Ferguson,

Malone,

Spragins,

Fitts,

Martin,

Stewart,

Fletcher,

Maxwell,

T Tayloe,

Glover,

Miller (Wilcox),

Studdard,

Graham, of Talladega,

Moody,

Waddell,

Grant,

M ulkey,

Vaughan,

Grayson,

Murphree,

Weakley,

Creer, of Calhoun,

NeSmith,

White,


2474

OFFICIAL PROCEEDINGS

Whiteside,

Williams (Barbour),

Wilson (Wash'gton),

Williams (Elmore),

Wilson (Clarke),

Winn,

 Total ‑ 108.      NOES.

deGraffenreid,

Freeman,

Reese,

Eley,

Henderson,

Foshee,

Long (Walker ),

Total ‑ 7.

ABSENT OR NOT VOTING.

Altman,

Jones, of Hale,

Reynolds (Chilton),

Bartlett,

Jones, of Montgomery,

Rogers (Sumter),

Beavers,

King,

Samford,

Byars,

Knight,

Sloan,

Carmichael, of Coffee,

Ledbetter,

Smith (Mobile),

Carnathon,

Long(Butler),

Sollie,

Case,

Lowe (Lawrence),

Thompson,

Chapman,

Merrill,

Walker,

Coleman, of Walker,

Miller (Marengo),

Watts,

Davis, of DeKalb,

Morrisette,

Weatherly,

Eyster,

Norwood,

Willet,

Foster,

O'Rear,

Williams (Marengo),

Gilmore,

Phillips,

Graham, of Montgomery,

Renfro,

And by a vote of 108 ayes and 7 noes the article was adopted.

MR. KIRKLAND ‑ I was not in the room at the tune the vote was taken on the Article on State and County Boundaries. I desire to vote for the adoption of the report of that Committee, and vote "aye."

THE PRESIDENT ‑ It seems to the Chair that it is too late for the gentleman to be recorded. The result has been announced and the Article referred to the Committee on Order, Consistency and Harmony.

MR. O'NEAL ‑ I am directed by the Committee on Rules to report a resolution.

The resolution was read as follows

Resolution No. 255, by Rules Committee:

Resolved, that the rules of the Convention limiting debate be suspended when the report of the Suffrage Committee is taken up for consideration, and that each delegate be allowed to speak once, and not longer than thirty minutes upon any proposition presented by the report of the Committee or any amendment thereto, except that the Chairman of the Committee or mover of the amendment,


2475

CONSTITUTIONAL CONVENTION, 1901

or such delegate as such Chairman or mover may yield his time to, may, after the previous question has been ordered, close the debate, and in so doing may speak for a like period of thirty minutes; provided, that the time here limited may be extended by a majority of the delegates voting without a suspension of the rules.

MR. KIRKLAND ‑ I make the point of order that the report is not in order at this time.

THE PRESIDENT ‑ The report of the Committee is a privileged report.

MR. O'NEAL ‑ I desire to state that the resolution is in accordance with the suggestions of the Committee on Suffrage.

Upon a vote being taken the resolution was adopted.

THE PRESIDENT ‑ Special order will be the consideration of the report of the Committee on Legislative Department. Inasmuch as Section 27 was reconsidered, it would seem to be in order to recur to that section. The question is upon Section 27 which was reconsidered upon the amendment offered by the gentleman from Greene, to the substitute offered by the gentleman from Macon to the Section as reported and the amendment, offered by the gentleman from Greene which was to strike out the amendment and Section.

MR. SANFORD ‑ I ask for information, are airy of these amendments in order? until the question of reconsideration has been determined ?

THE PRESIDENT ‑ The question of reconsideration has been determined and the Convention has voted to reconsider.

MR. SANFORD ‑ I was absent at the time.

MR. COBB ‑ It seems to me that this Convention is at times in danger of becoming dangerously impatient. V4 'e had an exhibition of this spirit on yesterday. At one time, we had under consideration a proposition as harmless as an infant and yet the gentlemen have spent hours of time here discussing it and we sat and listened to protests that made the hair of timid delegates like myself rise up. We can see the walls of this Capitol crumbling: we can see the great pillars that sustain our republican institutions falling and everything going to Sheol and I don't know where else, and all because it was proposed to impose upon the Governor of Alabama some labor that he ought to have been here to protest against; a proposition I confess that ought not to have been in the Constitution, but as utterly harmless as anything could be conceived to be. That was one spectacle, and then we had another and that was to see the delegates of this Convention turn immediately around and adopt and fasten into the Constitution a provision that would so hamper the legislative department of the State


2476

OFFICIAL PROCEEDINGS

of Alabama that we could not foresee the evils which would come from it. At one moment, we had a usurping Governor that was to be shackled; at another moment, we struck off the shackles and put them upon the legislative department of the government. Men fresh from the people. Fortunately for us, the right of reconsideration remains and now if these members will just simply posses their souls in patience a little bit, and recover a small amount of their common sense, they will be enabled to see the mischief that they did on yesterday. I think we have fallen into the error, Mr. President, of thinking of ourselves as partisans, as Democrats, as the people‑"we are the people," and all power and authority ‑ and all wisdom resides with us, and yet we are proposing here, and as has been repeatedly asserted, this is the main work before us ‑ to make a Constitution which will dangerously affect our supremacy. Pass the Constitution which you purpose to frame and adopt it, strike off the shackles which have been upon the people, and you will get something more than we have heretofore had in Alabama of free thought, of free speech, and free political action, and when we get that, who of you are so wise as to predict that the day is not distant when some other political party than the Democratic may have some control of the affairs of our State? I am not saying it is to be deprecated by any means, for if that time comes it will be an evidence that we have got another car other political parties in Alabama which are respectable besides the Democratic. Now, Mr. President, let me see if I can make good the assertion that I advanced a moment ago and which leads me to make the proposition that I do before the House to strike out the whole of this Section 27. If you strike out from that Section a duty that is imposed upon the Governor and the Auditor and the power which is given to these officials, then you will leave them to the Constitution something which is a work of superorgation merely. You put in something which the Legislature already possesses and therefore utterly unnecessary. Hence, Mr. President, the whole argument turns upon the proposition of excluding from this provision or leaving within it the power which is conferred here upon the Governor or upon the Auditor to make an estimate for the Legislature and that is the reason I am opposed to the amendment of my good friend from Greene. Otherwise, it would be all right except for the reason that I have given of putting something unnecessary in the Constitution, but as long as you leave there the power in the Governor and in the Auditor to make these estimates for the Legislature, you give to them a dangerous prerogative. Now, there. is no sort of question in my mind about the correctness of the interpretation of the gentleman from Greene of this provision. Leave it as it comes from the Committee, and you make it absolutely impossible for the Legislature of the State of Alabama to appropriate money that is already in the State Treasury for general purposes. The surplus that comes from year to year from general


2477

CONSTITUTIONAL CONVENTION, 1901

appropriations and which goes into the Treasury as a part of the State revenue, cannot be touched under this provision as it comes from the Committee for general purposes and there can be in my mind at last no doubt of that fact.   The gentleman from Greene in that regard is eminently correct, but I repeat the viciousness  lies in the fact that he does not go far enough and strike down this dangerous power that is to be given to the Governor and the Auditor.   I say it is dangerous and I emphasize it. I do not know ‑ how to be  understood, but I make use of that term that I expect the devil is to be to pay in our institutions whether we drop it or not.  I do not mean that you tear down the Capitol and the pillars of the republic and all that sort of thing. We are going          to live and flourish and be a people and a self ‑ governing people, notwithstanding  the grevious mistakes of this Constitutional Convention, but we are sensible people. Now look at it in a sensible and common ‑ sense way.   Suppose the time comes when you have in the Executive Chair a Republican Governor. Suppose the time comes when you have a Republican Auditor and a Democratic General Assembly. Then what is your condition. Under this provision as it is now framed, during any regular session of the Legislature the aggregate appropriations made shall not exceed in amount the incomes from the revenues of the State for the current fiscal year ‑ that is not all ‑ as estimated by the Governor and Auditor. This Republican Governor and his Republican Auditor are about to step down and out. A Democratic Governor and  a  Democratic Auditor are about to succeed him. You have a Democratic General Assembly, or vice versa, then what? This Governor and this Auditor will make it absolutely impossible if they are vicious enough to use their power improperly for the affairs of the State of Alabama to be conducted. 'They make the estimate and propose these estimates to the General Assembly. The General Assembly cannot change them although it knows as a matter of fact they are viciously, improperly and wrongfully made. Not a single dollar that we appropriated out of the State Treasury for general purposes except to the amount estimated for by these two hostile officers and therefore they absolutely tie the hands of the Legislature so this body that comes from the people and represents the interests of the people, the body that is nearer in touch with the people than any other, cannot make an appropriation for the ordinary general expenses of the State of Alabama. That is the condition that you are placed in. Now, Mr. President, I will not prolong the argument, but I want to say my proposition is to strike out the whole of it, partly for the reason I have given, but mainly for the fact that we can and ought to trust the General Assembly of the State of Alabama in managing the affairs of the State. Why, sir, the very foundation of our government is trust in the people, confidence in the people, the integrity and wisdom of the people, and you say that from time to time there will


2478

OFFICIAL PROCEEDINGS

be brought here members of the Legislature who are not to be trusted, who sell out who can be influenced by, this state of affairs and that, or by this influence and that, you make a direct attack upon the wisdom and the intelligence and the honesty of the people themselves. For these reasons. Mr. President, I believe the whole Section ought to be stricken out of this report.

MR. KIRKLAND ‑ I call for the previous question.

Mr. Harrison requested Mr. Kirkland to yield. The gentleman declined.

MR. COLEMAN (Greene) ‑ It is my substitute. I believe that I have the right to close the argument. It was reconsidered and I offered the amendment, and they cannot cut me off.

THE PRESIDENT ‑ The previous question is asked on the original Section and the amendment.

MR. COLEMAN ‑ That authorizes the to close the argument?

THE PRESIDENT ‑ That authorizes the Chairman of the Committee.

MR. OATES ‑ In this matter the Chairman of the Committee has been knocked out, he has nothing to say.

MR. HARRISON ‑ Do I understand the delegate to refuse to yield a moment?

MR. KIRKLAND ‑ I will yield if the gentleman from Lee will renew my motion. I will withdraw it.

MR. HARRISON ‑ I will. I am not in favor of either of the propositions pending. I think there is merit in the proposition as offered by the Committee, and I think that the majority of the delegates in this Convention have by a decided vote expressed their approval of the proposition, but I do agree in a great measure with the remarks of the delegate from Macon, and entirely in the remarks of the delegate from Greene, but in deference to the expressed wish of the delegates of this Convention, in favor of the proposition that the General Assembly of Alabama should be prohibited, or the Legislature as we now call it, from making appropriations that shall exceed in amount the income of the revenues of the State, I submit that this cannot be properly incorporated into the Constitution and the matter left to the discretion of the Legislature. This is mandatory language, and the Legislators having sworn to support the Constitution ‑ I think it will make them careful and guarded, and so far as he understands the situation that he would not make greater appropriations than are approved by the Constitution. I heartily endorse the proposition of the danger in there, relying upon the assessment or estimate made by the Governor and Auditor. In the first place, I think that it is


2479

CONSTITUTIONAL CONVENTION, 1901

a duty that should be left to be discharged lay the Legislature itself. In the next place, Mr. President, I know of no law and I believe the question asked  the distinguished chairman of this committee, I don't remember his answer, where is there any law constitutional or otherwise requiring the Governor or the Auditor to, make this estimate? Mr. President the gentleman said if there was a conflict between them that the Governor would rule.  I do not understand but that it is left to the joint opinion of these two officers, or  joint estimate. Suppose they differ, there is no provision made to require them to do it. Suppose they fail to agree? I object to its first, because I think it is invading the prerogative of the legislature, and, second, it is impracticable and cannot well be enforced, and yet I favor the general proposition and not only see no harm in it, but in view of the fact that past Legislatures have appropriated more than the income. I think it would be a reasonable provision that You should not exceed your income. It is a business position addressed to the Legislature. I had hoped, Mr. President, that if I could have gotten the floor in time, I had intended to offer an amendment by striking out the words "as estimated by the Governor and Auditor,” where they occur in this section. With that stricken out I believe it would be a good provision—we would adopt all the merit that is in the suggestion emanating from the committee and relieved of all the term so ably presented by the delegate from Macon and others, and representing this view and trusting that the Convention will vote down this proposition I move to make under my agreement with the delegate from Dale that I would call the previous question ‑---

MR. OATES ‑ I would like to ask the gentleman from Lee whether he takes any issue with this: Section 24 requires the Auditor to give information to the Governor, and Section 11 of the Constitution says the Governor shall from time to time, give the General Assembly a statement of the condition of the government and at the commencement of the session of the General Assembly, and at the close of his office----

MR. HARRISON ‑ In reading the Constitution you are taking up all of my time.

MR. BROWNE ‑ Can the Legislature enact a law requiring the Auditor and Governor to make an estimate?

MR. HARRISON ‑ They might or might not. You are requiring something here now, limiting the Legislature itself to an estimate and under your present Constitution, if you are going to make a constitutional provision of it you will have to put something else in to provide for it, which I think ought not to be done, and I hope won't be done. When interrupted by the gentleman from Montgomery I was proceeding to state my position, and ask the Convention that the previous question be called, let us vote it


2480

OFFICIAL PROCEEDINGS

down and let us vote on the pending amendment ‑ if the Convention agrees with me, it is only my opinion, I think there is merit in the amendment.

MR. COBB ‑ I would like to ask the gentleman a question.

MR. HARRISON ‑ I believe my time is out. I would love to answer the gentleman's question.

MR. COBB ‑ I move to extend the time of the gentleman, he has been interrupted, and that he be allowed five minutes.

THE PRESIDENT- The motion would not be in order.

MR. COBB ‑ I  move to suspend the rules.

Upon a vote being taken the Convention refused to suspend the rules.

MR. HARRISON ‑ I do not want but a moment only wanted to present the question to the Convention and appeal to the gentlemen who are so very much opposed to this measure, that some of us will vote to strike out what you think the harm is, but I will not, because I think there is some merit in the general proposition, and I think it is a good provision that the appropriation shall not exceed the income of the State.

MR. O'NEAL ‑ Allow me to ask a question.

MR. HARRISON- No sir my time is out. I hope the Convention understands my position, and I hope the gentlemen will vote to strike out, and I will if I get an opportunity. I will have to call the previous question.

THE PRESIDENT ‑ The question is on the section as reported and the pending amendment;. The question is shall the main question be now put?

Upon a vote being taken. the previous question was ordered by 64 ayes to 34 noes on a division.

THE PRESIDENT ‑ I recognize the gentleman from Montgomery.

MR. OATES ‑ I don't care about occupying the floor at all, and yield it to the delegate from Greene.

MR. O'NEAL, ‑ I suggest that the gentleman from Greene made the motion, and he had a right to close.

THE PRESIDENT ‑ The ruling of the chair has been uniform in this Convention where the previous question is ordered on the amendment and original section, the right to close cannot rest in two delegates, therefore the chair has uniformly referred it to the chairman of the committee.


2481

CONSTITUTIONAL CONVENTION, 1901

MR .O’NEAL ‑ I did not understand the motion. I thought it was on the amendment.

THE PRESIDENT ‑ The gentleman from Montgomery yields to the gentleman from Greene.

MR. COLEMAN (Greene) ‑ I will inquire whether a motion has been made to adopt the amendment.

THE PRESIDENT-Yes. The immediate question now is upon the substitute offered by the gentleman from Macon to strike out  the amendment offered by the original section as reported by the committee.

MR. COLEMAN – The amendment which I offered simply puts this section precisely where you placed it yesterday when you adopted the section. The defect in it was in not providing for a surplus if it might accumulate. It was almost impossible to solve properly by statement by hearing it read a, we hear these statutes read, and I was not surprised that the real significance of the section had been overlooked. My only purpose was to remedy the section and put it precisely as you thought it was when you adopted it yesterday and that is they effect of it at this time. My friend, Judge Cobb, has said as much on one side of this question as he understood the other. If you analyze this section and give it its full significance, it means nothing more nor less than he has contended  for and I say to the distinguished gentleman from Lee that the amendment he proposes will amount to nothing upon a legal construction of it. All he wants is there, when you understand. Now, what power is given there except for the Governor to furnish an estimate for the information of the Legislature and the provision in there that the appropriation shall not extend beyond the estimate given by him was fatally vicious in leaving out the fact that if the income exceeded that, that the Legislature had no authority beyond, but as amended it amounts merely to this, whatever income or revenue may be derived from the State is subject to the appropriation of the Legislature, the only limitation upon them is that they cannot put this State in debt beyond the revenues of the State.

MR. COBB-Will the gentleman allow fine to interrupt him?

MR. COLEMAN-Certainly..

MR COBB ‑ Does not your motion still limit the Legislature in its power of appropriation to the estimate made by the Governor and Auditor?

MR. COLEMAN ‑ That is precisely what it does not do.

MR. COBB ‑ Does not limit it?


2482

OFFICIAL PROCEEDINGS

MR. COLEMAN ‑ It limits the appropriations to the estimate made and whatever surplus may be in the Treasury.

MR. COBB ‑ One moment, if you please. Suppose there be no surplus, then would it limit it to the estimate of the Auditor and Governor?

MR. COLEMAN ‑ I, for one, sir, think it does precisely what the Convention intended it to do, and that is to keep the Legislature from putting the State in debt beyond the revenues, and that is what we adopted yesterday.

MR. COBB ‑ Beyond the estimated revenues, by the Auditor and Governor?

MR. COLEMAN ‑ If the revenue is not beyond the estimate, why, then, it ought not to make appropriations beyond the estimate. If the revenue is beyond the estimate, then the Legislature has control and can appropriate it. Every objection that they, have raised is fully covered by the amendment. Not only does the Convention carry out its original designs, but the State is secured and no harm can result.

MR. HARRISON ‑ Will the gentleman allow a question?

MR. COLEMAN ‑ Yes, sir.

MR. HARRISON ‑ Do I understand that you insist your amendment obviates our objection to the estimate being made by the Governor and Auditor?

MR. COLEMAN ‑ Mr. President and delegates of tile Convention, I am not sitting as a judge and neither do I presume to say that I embody all the wisdom of the law. That is my opinion and that is what it was put there for, and if anybody., can say that it is to the contrary, I would like to hear him say so. There are words there that they are afraid of, but the object is to authorize the legislature to appropriate whatever income or revenues there may be to the State.

MR. HARRISON ‑ And there would be no harm in the estimate?

MR. COLEMAN ‑ The estimate is an implied duty imposed upon them but the estimate does not limit the authority of the legislature to make appropriations up to the revenue, and the Governor and Auditor ought, for the information of the legislature, to present these estimates there, but when they do that there is the extent of their power and the legislature comes in and appropriates all of the revenues whether beyond the estimate or not. That is all I have to say.

THE PRESIDENT ‑ And the question is upon the adoption of the substitute offered by the gentleman from Macon.


 


2483

CONSTITUTIONAL CONVENTION, 1901

MR. BROWNE --I rise to a question of information, delegates do not know what they are voting on. Is it the amendment of the gentleman from Greene or the substitute for the gentleman from Macon?

MR. BOONE, ‑ I rise to a question of privilege, the gentleman assumes too much when he claims that the delegates do not know what they are voting on.

MR. BROWNE ‑ I say several gentlemen do not know, and I am one of them. Is the question upon the amendment of the gentleman from Macon?

THE PRESIDENT ‑ The Chair will state the question ‑ the Chair stated it very distinctly, but will state it again. The question is upon the adoption of the substitute proposed by the gentleman from Macon. As many as favor the adoption of that substitute will please rise, and remain standing until counted.

The vote resulted in there being 55 ayes and 60 noes and the substitute was lost.

MR. O’NEAL, ‑ I call for a verification of the vote. 1 ask for one other vote I think some sat down- it  was mixed up, a verification is what I want.

MR. WATTS-I call for an aye and no vote.

The call for an aye and no vote was sustained.

MR. WILLIAMS (Elmore) ‑ Please have the substitute and amendment both read.

THE PRESIDENT- The substitute is to strike out the section and the amendment of the gentleman from Greene.

MR. WILLIAMS (Elmore) ‑ What is the amendment of the gentleman from Greene.

THE PRESIDENT ‑ The Secretary will read the amendment.

The Secretary read the amendment as follows: "Amend Section 27 by adding to the section the following: ‘And any surplus that may be in the State Treasury provided that if from any cause it becomes necessary to rebuild the Capitol of the State, the legislature is authorized to make such appropriation as may be required.' “ Substitute by Mr. Cobb ‑ '"To strike out the Section and amendment.

The roll call resulted as follows:

AYES

Messrs. President,

Ashcraft,

Bethune,

Almon,

Banks,

Blackwell,

 


2484 

OFFICIAL PROCEEDINGS

Boone,

Jones, of Bibb,

Pillans,

Brooks,

Jones, of Montgomery,

Proctor,

Burns,

Kirkland,

Reese,

Carmichael, of Colbert,

Knight,

Robinson,

Cobb,

Leigh,

Rogers, of Lowndes.

Cunningham,

Lomax,

Samford,

Davis, of DeKalb,

Long, of Walker,

Selheimer,

Davis, of Etowah,

Lowe, of Jefferson,

Sentell,

Dent,

McMillan, of Wilcox,

Sloan,

Eyster,

Maxwell

Smith, of Mobile,

Ferguson,

Merrill

Sorrell,

Fitts,

Miller, of Wilcox,

Spears,

Foshee,

Moody,

Vaughan,

Graham, of Montgomery,

Mulkey,

Waddell,

Greer, of Calhoun,

NeSmith,

Watts,

Haley,

Norman,

Weakley,

Handley,

O'Neal, of Lauderdale,

White,

Harrison,

O'Neill (Jefferson),

Williams, of Marengo.

Heflin, of Chambers,

Opp,

Williams, of Elmore,

Heflin, of Randolph,

O'Rear,

Wilson, of Clarke,

Hodges,

Parker, of Cullman,

Wilson, of Washington

Hood,

Parker, of Elmore,

Howell,

Pettus,

 TOTAL ‑ 73

NOES

Altman,

Grayson,

Palmer

Barefield,

Greer, of Perry,

Pearce,

Beddow,

Henderson,

Pitts,

Browne,

Hinson,

Porter,

Bulger,

Howze,

Reynolds (Henry),

Burnett,

Inge,

Sanders,

Cardon,

Jackson,

Sanford,

Chapman,

Jenkins,

Searcy,

Cofer,

Jones, of Wilcox,

Smith, Mac A.,

Coleman, of Greene,

Kirk,

Smith, Morgan M.,

Cornwall,

Kyle,

Spragins,

deGraffenreid,

Locklin,

Stewart,

Duke,

Macdonald,

Studdard

Eley,

McMillan (Baldwin),

Tayloe,

Espy,

Malone,

Walker,

Fletcher,

Martin,

Whiteside,

Glover,

Murphree,

Williams, of Barbour,

Graham, of Talladega,

Oates,

Winn.

TOTAL ‑ 54

ABSENT OR NOT VOTING Bartlett,            Byars, Carnathon, Beavers,     Carmichael, of Coffee,  Case,


2485

CONSTITUTIONAL CONVENTION, 1901            

Coleman, of Walker,

Ledbetter

Rogers, of Sumter,

Craig

   Long, of Butler,

Reynolds, of Chilton,

Foster,

Lowe, of Lawrence,

Sollie,

Freeman,

Miller, of Marengo,

Thompson,

Gilmore,

Morrisette,

Weatherly,

Grant,

Norwood,

Willet,

Jones, of Hale

Phillips,

King,

Renfro

During roll call:

MR. BAREFIELD – I would like to vote but I do not know whether it is a motion to table the substitute offered by the gentleman from Greene.

THE PRESIDENT – The motion is not to table, it is to strike out the section.

MR. BAREFIELD – I vote no.                         

THE PRESIDENT-- Upon casting up the vote it appears that there are 73 ayes and 54 noes and the substitute is adopted.

       MR. KYLE-I desire to offer a substitute for Section 27.

       THE PRESIDENT—It is out of order.  The Secretary will read the next section.

        Section 29 was read as follows:

        Sec.  29.   All bills for raising revenue shall originate in the House of Representative; but the Governor, Auditor, Treasurer and Attorney General shall, before each regular session of the legislature, prepare a general revenue bill to be submitted to the legislature for its action, and the Secretary of State shall have printed for the use of the legislature a sufficient number of copied of the bill so prepared which the Governor shall transmit to the House of Representatives as soon as organized.  The Senate may propose amendments to revenue bills.  No appropriation or revenue bill shall be passed during the last five days of the session.

        MR. JACKSON – Am I in order to offer a substitute for Section 29?

        THE PRESIDENT – There are two pending substitutes.

        MR. BOONE – I desire to ask unanimous consent to withdraw the substitute I offered and offer this one in its place.

        MR. LOMAX – On yesterday when the substitute of the gentlemen from Mobile was offered I made a point of order on the substitute, and I do not want to lose---------

        THE PRESIDENT – The gentleman is correct, but the point of order would apply equally to the substitute.


2486               

OFFICIAL PROCEEDINGS

      MR. LOMAX – Very well, sir.

      THE PRESIDENT ‑ The Chair will now rule upon the point of order made by the gentleman from Montgomery. It seems to the Chair that the point of order is not well taken. A substitute is regarded by all the authorities that the Chair has examined as merely a form of amendment. Every amendment, says Mr. Cushing in his work on Law Practice of Legislative Assemblies, which can be proposed whether by leaving out or adding, or leaving and adding, is itself susceptible of amendment, but there can be no amendment to an amendment to an amendment. Thus, if a proposition consists of AB, and it is proposed to amend by inserting CD, which is an entire substitute, strikes out the whole and adds a different proposition entirely, it may be moved to amend the amendment by inserting EF, but it cannot be moved to amend this amendment as for example by inserting G. It seems to the Chair that the substitute offered by the gentleman from Mobile will be in order. The point of order is overruled.

      MR. LOMAX ‑ Will the chair permit a parliamentary inquiry? I would like to ask if in Cushing's Law and Practice there is any treatment separately of a substitute?

     THE PRESIDENT ‑ There is not but the substitute is regarded and so stated by Mr. Cushing that a substitute is a mere form of amendment.

     MR. LOMAX ‑ Did the Chair ever examine the rule of the House of Representatives in Congress with reference to substitutes ?

      THE PRESIDENT ‑ The Chair has not. The rules of the House of Congress would not govern this body.

      MR. LOMAX ‑ No, sir, certainly not, except as a precedent.

      THE PRESIDENT ‑ The question is upon the substitute offered by the gentleman from Mobile. The Secretary will read the substitute.

       The Secretary read the substitute as follows: "All bills for raising revenue shall originate in the House of Representatives. The Governor, Auditor and Attorney General shall before each regular session of the Legislature prepare a general revenue bill to be submitted to the Legislature for its information, and that the Secretary of State shall have printed for the use of the Legislature a sufficient number of copies of the bill so prepared which the Governor shall transmit to the House of Representatives as soon as organized to be used or dealt with as that House may elect.  The Senate may ‑ propose amendments to revenue bills. No appropriation or revenue bill shall be passed during the last five days of the session.


2487

CONSTITUTIONAL CONVENTION, 1901

     MR. OATES-Mr. President, the substitute, the whole operation of it is a repetition, except it substitutes for word “action” the word “information” which is unobjectionable-it was always intended by the word “action” and then on the seventh line, I would suggest to the gentleman from Mobile that it ought not to contain “appropriation or” those words should be omitted.  No revenue bill should be passed during the last five days of the session, but this should not apply to appropriation bills.

     MR. BOONE – I would say , Mr. President, that the delegate from Mobile followed in the last seven lines the exact wording of the report of the committee.

     MR. OATES – That is quite true, but I had not the opportunity of offering that amendment – that should not be in there, those two words, and I ask unanimous consent to strike them out, “appropriation or” two words in the seventh line – so that it will read that no revenue bill shall be passed during the last five days.

     There being no objection the amendment was ordered.

      MR. BOONE – I ask that the same words be stricken out of the substitute.

      The consent was given.

      THE PRESIDENT – The question is on the adoption of the substitute.

      MR. BLACKWELL – I hope that substitute will not be adopted, and I do hope very much that the substitute of the gentleman from Dallas will be adopted.  The substitute of the gentleman from Mobile does not cure, so far as I can see, the defects in the section at all.  It still leaves the power with the Governor and the Auditor to prepare this general revenue bill for the Legislature, no matter for what purpose it is prepared, and it takes out of the hands of the Legislature the right to prepare that bill.  The difference between the separate departments of government undoubtedly is that while the Legislature enacts the laws, the Executive executes and the judiciary construes the law.  The power of the Governor insofar as the Legislative Department is concerned is confined almost exclusively to the approval of bills.  As the Executive, he communicates to the two houses information concerning the condition of the State, and he may recommend measures to their consideration, but heretofore he has never been allowed to originate or introduce bills, and the power to appropriate money, or to provide for the expenses of the government has been lodged in those that directly represent the people. The power to originate all bills for the purpose of raising revenue has been confined exclusively to the legislative body heretofore, in both


2488

OFFICIAL PROCEEDINGS

houses, the Senate having the right to make amendment to such bills. This section proposes a radical change in this long settled policy, and it proposes that change without any satisfactory reason being offered for it. There is no showing of any incompetency upon the part of the Legislature, or of the superior qualities of the Governor and the Auditor to do this, in any arguments that have been made upon this floor. If this Section means nothing but to allow the Governor to simply make a recommendation, or furnish information as the gentlemen have said, then why change its phraseology, and why alarm the conservatives who desire to keep separate and distinct the co ‑ ordinate branches of the government.  If it is simply a recommendation, he has that power now.

Mr. President, we have made the Legislature a target since we convened here.  There is no question about that.  The Legislature has been made a target, we opened fire on it with musketry, and then with mountain howitzers, and now we are bringing up the siege guns.  Everything has been brought to bear against the Legislature, and we have been constantly encroaching on that branch of the government.  I suppose after we have hampered it, and destroyed its power to a very large extent, that the only reason we have got now for continuing to shoot at it is upon the same theory that the man continued to beat a vicious dog, after killing the dog, in order to show that there really was punishment after death.  That is the theory upon which we still seem to be shooting at the Legislature.  It is my opinion that the people are not clamoring for us to take this power out of the hands of 133 of the representatives that they choose, and put it in the hands of the three State officials who cannot know the various conditions of this State as well as the Representatives do.  Why should we think that the Governor and Secretary of State and the AttorneyGeneral know more about framing a bill for the people than 133 representatives selected directly by the people.  Those representatives have aside from their own knowledge access to the information of these officers, and they are entitled to advise with them, and to have the recommendation of the Governor without having that recommendation put in the form that it is here. The proposed change would rob them of the power that they have always had since the formation of our State.  This is a consolidation of powers which takes away one of the checks upon one of the powers of one of the branches of the Government.  Mr. Webster in talking about matters of this character said that every encroachment, great or small, is enough to awaken the attention of those who are entrusted with the preservation of constitutional government, and this is an encroachment on the legislative branch of the Government by another co-ordinate branch of the Government.  We do not have to wait until great public misfortune comes, or wait until our liberty is put in jeopardy before we see the dangers that confront us.  Our fathers saw them in a change in the British


2489

CONSTITUTIONAL CONVENTION, 1901

Parliament, and the assembled principles of mischief there and the germ of unjust power.  They detected it, and as Mr. Webster says, they dragged forth that germ of unjust power, that invasion of the rights of the people, and they kept it before their eyes, and directed their active efforts against it until it was destroyed.  Our Legislature will not want to be shorn of this power.  The people who send us here did not ask us to take away this power from the Legislature, and the Governor and the other State officers on whom we desire to place this additional power have not asked for it, and it has not been proposed in anything that we have said to the people to give them this additional power.  They have enough to do with their other duties that devolve upon them . They are not trying to rob any co-ordinate branch of the Government of power, and the people are not asking us to confer it upon them. It seems we may sometimes properly fear ourselves in what we are doing. We hold the trust that we have here for the benefit of the people.

MR. MACDONALD– Is it not a fact that one of the greatest evils that the people of Alabama have been troubled with for the past fifteen or twenty years is in artificial and hastily drawn revenue bills.

MR. BLACKWELL– There may be something in that.  There may have been some bills improperly drawn, but as a matter of fact the gentleman does not know that it was because they were hastily drawn. They have had plenty of time to draw these bills, and he does not know and cannot say that the Governor, the Auditor and the Attorney-General can draw a bill more perfectly than 133 Representatives.

MR. O'NEAL ‑ They may have drawn the last bill.

MR. MACDONALD– No they did not.  The record shows that.

MR. BLACKWELL ‑ As a matter of fact it is not shown that the Governor would make it any more perfect. The reasons for what we do in this matter of invading a co ‑ ordinate branch of the Government must not be doubtful. We must know that it is a benefit and that the people desire it and are willing to have it. It must not be that character of intention which like the twilight, lingering between night and day, takes on the lines of both. As a matter of fact, it must be clear and effulgent. The reason, the benefit, and all must be clearly shown.

After all the abuse we have heaped upon the Legislature. I desire to say that they put into operation this Constitution under which we have lived since 1875, and they have enacted the laws which have enabled us to drive out the enemies of white man's government in this country, and restored the Government to the white people of Alabama again, and I think we are going a little


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OFFICIAL PROCEEDINGS

too far in our efforts here to invade the province of the Legislature of the State of Alabama,  and I hope very much that the original Section as it appears in our present Constitution, and offered by the gentleman from Dallas as a substitute, will be adopted by this Convention.

MR. SMITH (Mobile) ‑ There was a resolution referred to the Judiciary Committee instructing it to consider and advise the Convention as to its power to order the continuance of pay to the members and officers of the Convention after the expiration of fifty days. The Committee finding that the Attorney ‑ General was advising the State officers on the subject, ascertained that they would be inclined to act upon the opinion of the Attorney-General, and in accordance with the views of the Attorney General the Committee has drafted an ordinance which I now present and ask that the rules be suspended and that the ordinance be adopted.

Ordinance No. 424, by Judiciary Committee.

Be it ordained by the people of Alabama in Convention assembled, That this Convention shall continue in session until it shall, by careful revision and amendment of the present Constitution, frame and adopt a revised Constitution for this State.

Be it further ordained, That during the time this Convention shall so continue in session, the officers thereof shall receive the same compensation, payable out of the Treasury of the State, as corresponding officers of the House of Representatives are by law allowed; and that the delegates shall receive for their services the same per diem and mileage from the Treasury of the State as is allowed the members of the General Assembly. The payment shall be made on the certificates of the President and Secretary of the Convention, to the Auditor of the State, as payment of compensation to members of the General Assembly is by law directed to be made.

Upon a vote being taken, the rules were suspended.

THE PRESIDENT ‑ The question will be upon the adoption of the ordinance.

MR. REESE ‑ I desire to ask whether it will be necessary to suspend the rules specifically, to prevent the re ‑ reading of this ordinance. I believe, under the laws we have adopted in this Convention, that it requires three readings. Will there have to be a specific motion to suspend that particular rule?

THE PRESIDENT ‑ It seems that a motion to suspend the rules would cover that point. The question the chair desires to submit is whether the Convention desires the ordinance to be passed by a yea and nay vote.

MR. deGRAFFENREID ‑ I call for an aye and no vote.


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CONSTITUTIONAL CONVENTION, 1901

MR. JONES (Montgomery) ‑ I ask that the ordinance go over until tomorrow.

MR. SMITH– As far as the committee is concerned, I know of no objection.

MR. JONES (Montgomery)– I hope that the ordinance will go over until tomorrow.  I have been of a diffident opinion, but it is possible I may be convinced when I hear the Attorney General’s opinion.  It is too important a question to be taken up now.

MR. O'NEAL– I desire to ask whether it would  not be necessary for us to dispense with the second reading and order this to a third reading.  We have had no second reading of this ordinance, and under the rules that is required.

MR. SMITH (Mobile) ‑ Our idea was that it should be drawn and submitted tot the Convention for its action. I want to state that the resolution is a reiteration of the language of the Enabling Act, except that the limitation is omitted and the provision for pay is expressly extended indefinitely. The Attorney General stated that he would prefer that it should be put in that language, and the committee adopted his suggestion. His views  upon the subject were that it would be sufficient whether provided for by ordinance or resolution,  but he suggested that it be put in the form of an ordinance.

MR. WHITE ‑ I ask for a reading of the ordinance.

MR. FITTS ‑ I demand the previous question on the adoption of the ordinance by an aye and no vote. Under the Constitution of 1975 it takes an aye and no vote.

THE PRESIDENT ‑ Will the gentleman from Tuscaloosa yield to the gentleman from Jefferson.

MR. FITTS ‑ No, sir.

THE PRESIDENT ‑ The question will be upon the motion of the gentleman from Tuscaloosa for the previous question, unless the gentleman yield for an amendment.

MR. WHITE ‑ I thought I had the floor.

MR. FITTS ‑ I declined to yield.

MR. HARRISON ‑ I submit that the delegate from Jefferson was on the floor and had secured the recognition of the chair before the gentleman from Tuscaloosa made the motion.

MR. WHITE ‑ I understood the chair recognized me.

THE PRESIDENT ‑ The chair did not intend to cut off the gentleman from Jefferson.


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OFFICIAL PROCEEDINGS

MR. PETTUS ‑ I rise to a point of order. The  motion for the previous question is not debatable.

THE PRESIDENT ‑ The attention of the chair was diverted for a moment, and the chair possibly failed to recognize the gentleman from Jefferson. This was unintentional, and there was another matter in the mind of the chair about which he was conferring with several delegates.

MR. WHITE– I had not heard the chair call the name of the gentleman from Tuscaloosa, and I make the point that when my name was called and I was recognized, that I had the floor.

MR. FITTS– I understood that the gentleman never was recognized.  I demanded the previous question upon the ordinance, and asked for a yea and nay vote in accordance with the Constitution of 1875.

THE PRESIDENT– The chair is in doubt for the reason there was another matter in the mind of the chair just at the time, and the chair was speaking to the gentleman from Talladega, and for that reason is not clear upon the subject. The chair will rule that the gentleman from Jefferson was entitled to the floor.

MR. FITTS ‑ I call for the reading of the journal, and make a point of order that I was recognized by the chair.

MR. WHITE ‑ I make the point of order that the chair has ruled upon the question.

MR. FITTS ‑ I call for the reading of the stenographic report.

MR. WHITE ‑ I make the point of order that the only way open to the gentleman is to appeal froth the decision of the chair.

THE PRESIDENT ‑ It seems to the chair that the gentleman from Jefferson was on the floor, and the chair cannot recollect whether he was recognized or not, but gentlemen in whom the chair has confidence, state that he was recognized, and it would not be proper in the opinion of the chair, for the gentleman to be deprived of the privilege of offering his amendment simply because the mind of the chair was detracted by another subject.

MR. FITTS ‑ I make the motion, then, that we remain in session until this pending motion is disposed of.

MR. WHITE ‑ I have the floor, as I understand it.

MR. FITTS ‑ I insist upon my motion and call for a suspension of the rules.

THE PRESIDENT ‑ The gentleman will send up his amendment, and the chair will submit the question of a suspension of the rules to the Convention.


2493

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken, the rules were suspended.

M R. FITTS– I move that we remain in session until the pending matter is disposed of.

Upon a vote being taken, the vote was carried.  The amendment offered by the gentleman from Jefferson (Mr. White) was read as follows: “Amend by striking out all of said ordinance after the words ‘by law allowed.’”

MR. WHITE– I am not quite sure that the amendment strikes out the exact words that I want stricken out or not, because I had to gather the substance of the ordinance by simply hearing it read rather hurriedly, the purpose of the amendment is to strike out that part which allows pay to the members of this Convention.  The purpose of the amendment is to allow the officers of the convention pay for their services, but not to allow the members of the Convention pay for their services. I do not know of anything that would commend itself so much to the people of Alabama as for the delegates of this Convention to show their patriotism upon this occasion. We all know that the members of this Convention, generally speaking, are sacrificing very much more than the per diem which they receive.  The man who came to this Convention for the purpose of being compensated by the per diem which is allowed by law could hardly be of that type that would be to the best interest of the State to send.  A very large majority of this Convention are losing every day much more than the per diem, and if we could convince the people of Alabama and convince them thoroughly of the fact that we are acting slowly from patriotic motives, it would go far indeed towards ratifying the work which we will submit to them, and I do hope that this amendment will be adopted.

MR. FITTS– I do not think the people of this State desire to be fed on gush or bosh in respect to this matter. (Applause) I do not suppose there is a delegate here , or there are very few indeed to whom the compensation of four dollars per day amounts to anything more than furnishing the means of paying his expenses in attending this Convention.  I do not believe that the gentleman from Jefferson speaks for the people of Alabama when he says that they have a desire that as representatives of the people these delegates should remain here without compensation. If he wants to play that role, Mr. President, he need not take his pay, but he can turn it over to an orphan asylum, or to any charity that he may desire, but I do not believe there is any yearning sentiment among the people of Alabama that they should pay the pages and the officers of this Convention and not pay the expenses of the delegates for devoting their best time and attention to framing this Constitution.  They are willing–

MR. WILLIAMS (Marengo)– May I interrupt the gentleman?

 


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OFFICIAL PROCEEDINGS

MR. FITTS ‑ No, sir.

MR. WILLIAMS (Marengo) ‑ Just for a minute.

MR. FITTS ‑ Not even for a minute. The people are perfectly willing that the laborer should be worthy of his hire here today as it was in olden times in the scriptural days, and I do not believe that the position of the delegate represents, the true desire of the people of this State. I believe that they desire to bear the expenses of their representative, and desire that this work be thoroughly but expeditiously done, and that we should remain here and receive the compensation fixed by law. I move to lay the amendment upon the table.

MR. WHITE ‑ I call for an aye and no vote.

The call was sustained, and the vote upon the call of the roll resulted as follows:

AYES

Messrs. President,

Glover,

Maxwell,

Almon,

Graham, of Montgomery,

Merrill,

Altman,

Grayson,

Miller (Wilcox),

Ashcraft,

Greer, of Calhoun,

Moody,

Banks,

Greer, of Perry,

Mulkey,

Barefield,

Handley,

Murphrey,

Bethune,

Harrison,

NeSmith,

Blackwell,

Heflin, of Chambers,

Norman,

Boone,

Heflin, of Randolph,

Oates,

Brooks,

Henderson,

O'Neal (Lauderdale),

Browne,

Hinson,

Opp,

Bulger,

Hodges,

O'Rear,

Cardon,

Hood,

Palmer,

Carmichael, of Colbert,

Howell,

Parker (Cullman),

Chapman,

Howze,

Parker (Elmore),

Coleman, of Greene,

Inge,

Pearce,

Cunningham,

Jackson,

Pettus.

Davis, of DeKalb,

Jenkins,

Pillans,

Davis, of Etowah,

Jones, of Bibb,

Pitts,

Dent,

Jones, of Wilcox,

Porter,

deGraffenreid,

Knight,

Proctor,

Duke,

Leigh,

Reese,

Eley,

Locklin,

Reynolds (Henry),

Eyster,

Lomax,

Rogers (Lowndes),

Espy,

Long (Butler),

Samford,

Ferguson,

Long (Walker),

Sanders,

Fitts,

Macdonald,

Sanford,

Fletcher,

McMillan (Baldwin),

Searcy,

Foshee,

McMillan (Wilcox),

Selheimer,

Freeman,

Malone,

Sentell,


2495

CONSTITUTIONAL CONVENTION, 1901

Smith (Mobile),

Tayloe,

Williams (Elmore),

Smith, Mac. A.,

Vaughan,

Williams (Barbour),

Smith, Morgan M.,

Waddell,

Williams (Marengo),

Spears,

Walker,

Wilson (Clarke),

Sorrell,

Watts,

Wilson (Washington),

Stewart,

Weakley,

Winn,

Stoddard,

Whiteside.

TOTAL ‑ 110

NOES

Beddow,

Jones, of Montgomery,

O'Neill (Jefferson).

Burns,

Kirk,

Robinson,

Cobb,

Kirkland,

Spragins,

Cofer,

Lowe (Jefferson),

White,

TOTAL ‑ 12

ABSENT OR NOT VOTING

Bartlett,

Gilmore,

Morrisette,

Beavers,

Graham, of Talladega,

Norwood,

Burnett,

Grant,

Phillips,

Byars,

Haley,

Renfro,

Carmichael, of Coffee,

Jones, of Hale,

Reynolds (Chilton),

Carnathon,

King,

Rogers (Sumter),

Case,

Kyle,

Sloan,

Coleman, of Walker,

Ledbetter,

Sollie,

Cornwall,

Lowe (Lawrence),

Thompson,

Craig,

Martin,

Weatherly,

Foster,

Miller (Marengo),

Willet.

By a vote of 119 ayes and 12 noes, the motion to table was carried.

During the call of the roll:

MR. SANFORD (Montgomery‑) ‑ As Alabama is not begging for charity from this Convention, I vote aye.

MR. WILLIAMS (Marengo) ‑ I move the adoption of the ordinance, and upon that I more the previous question.

MR. BROOKS ‑ Before that motion is put I desire to move that. When this Convention adjourns that it adjourn until 4 o'clock this afternoon.

Upon a vote being taken the vote was lost.

MR. HARRISON ‑ I rise for an inquiry. This matter was submitted to the Judiciary Committee as I understood it to investigate the matter as to the power of this Convention to adopt an ordinance to do what this ordinance proposes. I understood the Chairman of the Committee to state that having ascertained that


2496

OFFICIAL PROCEEDINGS

the Attorney General had given an opinion upon this matter, the Committee did not investigate it, and the Committee expressed no opinion upon it, nor is the report of the Committee accompanied by the opinion of the Attorney General. I desire to inquire of the Chairman of the Committee if they investigated the matter, and if so what is their conclusion, and if they have not, and rely upon the Attorney General's opinion, if they will allow the Convention to have a copy of that opinion.

MR. BURNS ‑ I move that we adjourn.

MR. FITTS ‑ The previous question has been ordered.

MR. BURNS ‑ A motion to adjourn is always in order.

THE PRESIDENT ‑ The main question has been ordered. The question is upon the adoption of the ordinance reported by the Committee.

During the call of the roll:

MR. BURNS ‑ In the absence of the opinion of the Attorney General I vote no. (Laughter.)

MR. JONES (Montgomery) ‑ I ask unanimous consent for one minute to explain my vote. (There were loud expressions of dissent and objections.) I vote no, because this Convention has no authority to appropriate money.

The vote upon the call of the roll resulted as follows:

AYES

Messrs. President,

deGraffenreid,

Howell,

Almon,

Duke,

Howze,

Altman,

Eley,

Inge,

Ashcraft,

Eyster,

Jackson,

Banks,

Espy,

Jones, of Bibb,

Barefield,

Ferguson,

Jones, of Wilcox,

Bethune,

Fitts,

Knight,

Blackwell,

Fletcher,

Leigh,

Boone,

Foshee,

Locklin,

Brooks,

Freeman,

Lomax,

Browne,

Glover,

Long, of Butler,

Bulger,

Graham, of Montgomery,

Long, of Walker,

Cardon,

Grayson,

Lowe, of Jefferson,

Carmichael, of Colbert,

Greer, of Calhoun,

Macdonald,

Chapman,

Handley,

McMillan, of Baldwin,

Coleman, of Greene,

Heflin, of Chambers,

McMillan (Wilcox),

Cornwall,

Heflin, of Randolph,

Malone,

Cunningham,

Henderson,

Maxwell,

Davis, of DeKalb,

Hinson,

Merrill,

Davis, of Etowah,

Hodges,

Miller (Wilcox),

Dent,

Hood,

Moody,


2497

CONSTITUTIONAL CONVENTION, 1901

Mulkey,

Reese,

Stoddard,

Murphree,

Reynolds, of Henry,

Tayloe,

Norman,

Rogers (Lowndes),

Vaughan,

(Dates,

Samford,

Waddell,

O'Neal (Lauderdale),

Sanders,

Walker,

Opp,

Sanford,

Watts,

O' Rear,

Searcy,

Weakley,

Parker (Cullman),

Selheimer,

Whiteside,

Parker (Elmore),

Sentell,

Williams (Barbour),

Pearce,

Smith (Mobile),

Williams (Marengo),

Pettus,

Smith, Mac. A.,

Williams (Elmore),

Pillans,

Smith, Morgan M.,

Wilson (Clarke),

Pitts,

Sorrell,

Wilson ( Washington),

Porter,

Spears,

Winn.

Proctor,

Stewart,

TOTAL 108

NOES

Beddow,

Jones, of Montgomery,

Sloan,

Burns,

Kirkland,

Spragins,

Cobb,

Kyle,

White,

Cofer,

Palmer,

Harrison,

Robinson,

TOTAL ‑ 13

ABSENT OR NOT VOTING

Bartlett,

Graham, of Talladega,

Norwood,

Beavers,

Grant,

O'Neill, of ,Jefferson,

Burnett,

Haley,

Phillips,

Byars,

Jenkins,

Renfro,

Carmichael, of Colbert,

Jones, of Hate,

Reynolds (Chilton),

Carnathon,

Kirk,

Rogers (Sumter),

Case,

Ledbetter,

Sollie,

Coleman, of Walker,

Lowe, of Lawrence,

Thompson,

Craig,

Martin,

Weatherly,

Foster,

Miller (Marengo),

W'illet.

Gilmore,

Morrisette,

PAIRS

NeSmith, aye; Kirk, no.

And by a vote of 108 ayes and 13 noes, the ordinance was adopted.

Leaves of absence were granted to Mr. Thompson of Bibb, for today and Saturday; Mr. Grayson for Saturday and Monday; Mr. Inge for Saturday and Monday; Mr. Reynolds of Chilton, for today; Mr. Howze for Saturday; Mr. Weatherly for today on account of sickness; Mr. Foster for today and tomorrow; Mr. Jones


2498

OFFICIAL PROCEEDINGS

of Bibb, for Saturday and Monday; Mr. Foshee for today and tomorrow evening.

Thereupon the Convention adjourned until 3:30 o'clock.

____________

AFTERNOON SESSION

The Convention was called to order by the President and the roll being called showed the presence of 109 delegates.

Leaves of absence were granted as follows : Mr. Haley for Saturday and Monday; to Mr. Cardun for this afternoon, on account of sickness; to Mr. Pearce until Thursday; to Mr. Davis of Etowah for tomorrow; to Mr. Heflin of Randolph for tomorrow.

MR. SAMFORD (Pike) ‑ I ask unanimous consent to be permitted to present a petition, to have it printed in the stenographic report.

THE PRESIDENT ‑ The gentleman asks unanimous consent to introduce a petition.

MR. KIRKLAND ‑ I object.

THE PRESIDENT ‑ Objection is made.

MR. SAMFORD ‑ I move a suspension of the rules that I be permitted to leave this short petition introduced. It has been universally accorded to every gentleman on this floor.

MR. KIRKLAND ‑ I withdraw the objection.

The clerk then read the petition as follows:

Petition by Mr. Samford (Pike):

Troy, Ala., July 15, 1901.

To Hons. J. C. Henderson, J. D. Murphree and W. H. Samford, members Constitutional Convention:

We, the undersigned. respectfully petition through you the Constitutional Convention, to embody in the organic law plenary powers to the R. I. Commission, they to be elected by the people and paid by the State.

Alex Henderson & Co, W. C. Windham, J. O Pinson, J. P. Wood, John Gamble, J. Randolph Brown, C. A. Simpson. F. Brantley & Sons, White & Edmondson, H. T. Babcock, T. J. Dillard, V. D. Jones. Rosenberg Bros., James Walters, Bob Flinn, Branner & Henderson, J. F. Paul. F. L. Enzor, T. S. Faulk, _J. D. Murphree, Jr., Redden Bros., Charles Carroll, Charles Henderson, J. F. Carroll, N. J. Ross, B. B. Wilkerson, Coleman &. White, Saul Parchten, Ben Rubenstein, Sellers, Miller &. Co., Rainie Bros., W. A. Sims,


2499

CONSTITUTIONAL CONVENTION, 1901

McLeod Darby, W. B. Johnson, B. M . Owens, J. M. Mullan, W. E. Hanchey, Charles C. Williams, I. Jackson. Sam A. Williams, J. R. Darby & Son, F. S. Wood. T. McBryde, J. S. Copeland, J. D. Williams.

Referred to Committee on Corporations.

MR. SANFORD (Montgomery) ‑ What is the business before the Convention?

THE PRESIDENT ‑ When the Convention adjourned, the gentleman from Tallapoosa had the floor. The special order for this afternoon is the consideration of the report of the Committee on Legislative Department. The Convention had under consideration Section 69 to which there was pending an amendment and substitute to the amendment and section. The Chair recognized the gentleman from Tallapoosa.

MR. BULGER ‑ When we suspended in the forenoon, I was undertaking to give my views briefly on this section of the report of the committee as amended. It has been the experience of almost every Legislature in Alabama since the war that the most important and yet the most complicated propositions with which they have to contend is the framing and passing of a revenue bill. It is important because it is one of the ways by which the State government procures revenue with which to defray the expenses of the administration of the affairs of State. It is complicated because it necessarily embraces a large variety of enterprises that go on in every part of the State. Now, one way by which the State procures its revenue is by an ad valorem tax. This Convention in its wisdom has reduced the rate of taxation from seventy ‑ five cents to sixty ‑ five cents thereby reducing the revenue from that source about a quarter of a million dollars, making it important that every other source through which revenues must be obtained shall be carefully guarded by this Convention and by the House of Representatives of the State. Now, I submit that the average Representative who comes to the Legislature is not prepared to go into and ascertain the necessary information to intelligently draw a bill like this. He comes from the everyday avocations, he is not familiar with the affairs of State, and the ordinary man will take from thirty to sixty clays to acquire this information and become familiar enough to draw a bill on this subject. Now, I understand the purpose of this section reported by the committee is to aid the Legislature in preparing this particular bill. Now, if a representative is to have information on any important subject like this, it is important that he have the best information obtainable. He is unable to get it from the people who send him here, he is hardly qualified to go into the Auditor's office, and into the Treasurer's office and get the information. Now,  this bill proposes to relieve


2500

OFFICIAL PROCEEDINGS

him of this labor and put upon his desk when he comes here this information so that he cannot be mistaken about what it is. Now, this section proposes to have that information to come from the Chief Executive of the State, the man of all men who should be informed about the necessities and financial condition of the State. It also provides that he shall be accompanied by the Auditor whose business it is to keep the account of the State and be familiar with its condition. The Attorney General is not put upon this force for any such purpose, he is not expected to know any more about the financial condition of the State and its affairs than the ordinary representative. His business is in a different department.           Now, when the revenue bill is prepared and passed it is important that it should be legal and constitutional, therefore, the committee acted wisely in putting the Attorney General on the Board. So you see that this combination of information to be laid upon the desk of every member of the House of Representatives early in the session makes him better prepared to vote upon a revenue bill when it is presented. Now, some gentlemen objected because they said it would put the Executive too nearly in touch with the House of Representatives. If this Constitution be adopted, that will not be the fact, because the out-going Governor, who has held his office for four years, the out-going Attorney-General and out-going Auditor must present this bill – this information.  The Legislature who follow after him is accompanied by a new Governor. The old Governor makes the report and gives the information. The new Govrenor has nothing to do with that bill, except he may recommend in his message, and to veto or approve it.  So you see the alarm of the gentlemen on the other side is unfounded.  The Governor who makes this report to the Legislature s no more to do with the House of Representatives, his term is at an end, and they are left alone with a new Governor.  Now, the amendment of the gentleman from Mobile is wise and conservative. He strikes out of the original section the word “action” and instead thereof puts the word “information” so the bill would read, “prepare a general revenue bill to be submitted to the Legislature for its information,” instead of for its “action” Therefore, the Governor, as gentleman have said, does not introduce a bill into the Legislature. The further amendment by the distinguished gentleman from Mobile is this, “which the Governor shall transmit to the House of Representatives as soon as organized.”  Here is the amendment, ‘to be used or dealt with as the House may elect.”  So you see it is only at most a recommendation; it is only at most information transmitted from a source about which there can be no doubt.  Now, it seems to me, gentlemen of the Convention, that there can be no objection to this.  It seems to me that it would aid the House of Representatives wonderfully to have this information spread upon their desks early in the session.


2501

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ The time of the gentleman has expired.

MR. SANFORD (Montgomery) ‑ I hope, Mr. President, that this 29th section will not pass.  It is a departure from the customs of Alabama; it is an innovation upon its time-honored policies, and it is more— it is a retrogression; it is going back to the very principles from which our forefathers revolted more than one hundred years ago.  They were greatly disturbed by the influence which the executive officers had over the Legislature, especially in the matter of taxes. Now, the question of taxation has been the cause of more revolutions than any one single cause in the history of the world, not only in England, but in Europe, and not only in Europe and England but in our own country. Your great Revolution of 1775 was fought on the question of taxation.  I said, Mr. Chairman, that this is a matter of retrogression– it is precisely the policy of a monarchy; it is precisely the policy of Great Britain as it exists today.  At the commencement of every Parliament the Chancellor of the Exchequer, under the influence of the administration, prepares what is called his budget. His budget consists of two distinct departments.  One is the statement of the financial condition of Great Britain, and the other is what he calls his scheme or method to meet that condition, and the scheme consists of repealing subjects of taxation, or of adding new items, or of suggesting alone.  Now, what is this but precisely the English budget, the monarchical plan of raising revenue and restrictions proposed by this section.  Monarchies have one system of policy; Republics another– and this system is a mingling, is a mixture, of monarchical government and republican government, and, like all unnatural mixtures, a governmental hybred will be produced that will have the evils of both and the virtues of neither.  I can see no reason why we should adopt the English system in Alabama– one being the system of a monarchy and the other that of a great republic.  What would our friend Sowell, my friend the Auditor, think if he was to play the part of Chancellor of the Exchequer, under the direction of the administration—for that is precisely the position that he would hold The Chancellor of the Exchequer of England is the Auditor. He states the financial condition, and then he proposes certain subjects of taxation and recommends them to the House of Parliament, where the bill originates, and to the House of Lords.  Now, this is precisely the same thing, and I don’t think that our people would like the monarchical policy of being taxed applied to them. For these reasons, and the incongruity and inconsistency between the policies of a republic and a monarchy, limited or otherwise– in a republic the voice of the people should be heard.  My friends forget that this whole idea of originating revenue bills, with the Commons, is really nothing more than a development.  Originally, as you know, in England there was no such thing as a Parliament


2502

OFFICIAL PROCEEDINGS

being elected for the purpose of making laws. The people were instructed to send up Burgesses and Knights from counties and boroughs for the purpose of doing what? Simply to report how much their communities could contribute to the Government under which they lived. Sometimes their aversion to going to Parliament was so great that they were fined. I remember, one instance of a Burgess being fined a yoke of oxen because he declined to go to Parliament after he had been designated for that purpose. I mention that simply to show that the origin of this whole idea of taxation originating in the House of Representatives in every State in the Union, in Congress itself, and in England, really comes from the exactions of the King to bring these men up to report what they could contribute. That is the origin of the whole system. This English system, as I say, has existed for hundreds of years and is called the budget. For instance, Robert Peel's budget, when he introduced an income tax in 1842, and on repealing the Corn Laws in 1846, or in reducing the wine duties in 1860, all these are budgets ‑ and this is nothing but reporting the budget as reported by England, and they will get together and tell you that the condition of finances in Alabama is so and so, and we recommend by this bill ‑ we call it "information" ‑ that these items shall be taxed at certain per cents in order to rare the requisite revenue to carry on the government. Inasmuch as I am opposed to monarchical forms of government, Mr. President, in all shapes and forms. I hope this particular Section will not be passed.

MR. KIRKLAND– I move the previous question on the original Section and amendment.

MR. BROOKS ‑ I hope the gentleman will withdraw that until the author of the amendment can be heard.

The delegate declined to withdraw.

MR. HEFLIN (Chambers) ‑ I make the point of order that the author of the amendment has a right to be heard.

MR. deGRAFFENREID ‑ It has been the uniform ruling of the Chair when previous question has been ordered on the Section and amendment, that the Chairman having the Article in charge should be heard.

MR. BOONE– The author is perfectly willing for the Chairman to rule.

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

Upon a vote being taken the main question was ordered.

THE PRESIDENT PRO TEM– I recognize the Chairman of the Committee.


2503

CONSTITUTIONAL CONVENTION, 1901

MR. OATES ‑ Mr. President, I have listened to the debate, especially the speeches in opposition to this Section on yesterday evening until, if I had not known what it was, I should have felt very much startled, and felt it was time to be looking for the mob or armed force to kill any man who undertook to be Governor, if this was put in operation, because it was alleged that it destroyed our liberties, it was absolutely assumed and argued that the Governor could make this estimate and send in this bill, and it was not within the power of any member of the Legislature to change it, and he could with his veto sitting back there compel the passage of the bill that he submitted. A most monstrous proposition when there was not a line or word that authorized any such assertions.

I was not so much astonished at the wild speech made by my friend, the delegate from Walker, as I was when my learned friend and colleague from Montgomery, an astute lawyer, Mr. Lomax, went off on the same line, and now, sir, another one of my colleagues who is a very learned gentleman, has seen another bugaboo in it, and that is that we have gone back to the English system. Not quite, sir, not quite! There the bills are sent in and the Cabinet officers have a seat in the House of Parliament, as I have had the honor of seeing and observing myself. He is the leader and explains everything, and the debates are had in that way, comes from the Government, and no other measure is tolerated to displace it at all. Now, sir, I don't think experience is worth very much to the delegates to this Convention, judging by their records, they all seem to think for themselves and go whichever way they are convinced is right without regard to any road that man has traveled heretofore, or any knowledge he has gained thereby. Now, I have had a little knowledge on this very question, which I will at the risk of being considered uninteresting and tedious, state to the Convention.

MR. O'NEAL ‑ May I ask the gentleman a question.

MR. OATES ‑ Certainly.

MR. O'NEAL ‑ I was going to ask you this question. You speak of Parliament. Isn't it a fact that the Chancellor of the Exchequer may be a member of Parliament and have the right to submit their Budgets to Parliament?

MR. OATES ‑ Certainly they have, and the Government has precedence over everything else.

MR. O'NEAL ‑ If it is such a good thing for the Government to prepare the revenue bill, why not prepare bills on all subject of general legislation?

MR. OATES ‑ That is not done.

MR. O'NEAL ‑ That is the principle on which you bill is based.


2504

OFFICIAL PROCEEDINGS

MR. OATES ‑ If you will not interrupt with any more questions I will get along and will meet that argument. I had the honor once of being a member of the Legislature in this House in 1870, when we were practically under carpet ‑ bag government. That was about the time that we emerged, and in the Senate, I remember distinctly, they were all of the other party except two Democrats. There were two Democratic Senators in there. I was made Chairman of the Ways and Means Committee. When we had to deal with the acts of 1868, and more of theirs that were obnoxious to our people, there was no limit then to the term of the Legislature, there was no limit to taxation, and the terms of the Legislature were annual. I held that position and labored here in 1870 ‑ 71, and 1871 ‑ 72, and I do know something about the difficulty of framing a revenue bill. Prior to that time, I had never had any such experience and I found myself utterly and entirely at a loss as to what I should do, there was no information practically from the Governor, who was Smith at that time, Lindsey succeeding him during the session. There was no information upon which we could proceed, and I remember how long and how tedious were the labors of that Committee, when they were trying to get up and finally succeeded in getting up an imperfect revenue bill. Since that time they have had much less difficulty. Times have improved, and legislation has been much less troublesome to deal with than it was then, and still you take even the last Legislature, and we have heard from one of the delegates on this floor, the great trouble they had in getting up the revenue bill, and got up a very defective one at last. Now what is this Section? What does it require? Some say, Oh, well, you are going to give the Governor dictatorial power, he and the Auditor will just run things as they please. Well, now you find in Section 24 of the Executive Department where the Treasurer, the Auditor and Attorney General shall perform such duties as are prescribed by law, and the Treasurer and Auditor shall, every year, at a time the General Assembly may fix, make a full and complete report to the Governor showing all receipts and disbursements of every character, of claims audited and paid by the State by items, and all taxes and revenue collected and paid into the Treasury from what sources, and they shall make reports on any matter pertaining to their office if required to do so by the Governor or the General Assembly. The Auditor who has the best opportunity, the best information on the subject of the amount of income and expenditures to make a report and every particular and detail reported to the governor of what the revenue will be, and what will be the necessities of the government, and what are the probable expenditures, so as to enable the Governor in his message to lay these facts before the Legislature. Then Section 11, the Executive Department, "The Governor shall from time to time give to the General Assembly information of the state of the government and recommend to their consideration such


2505

CONSTITUTIONAL CONVENTION, 1901

measures as he may deem expedient, and at the commencement of each session of the General Assembly and at the close of his term of office give information by written message of the term of his State, and he shall account to the General Assembly as may be prescribed by law for all monies received and paid out by him from and funds subject to his orders, with the vouchers therefor" and also this "arid he shall at the commencement of the regular session present to the General Assembly estimates of the amount of money required to be raised by taxation for all purposes. Now, sir, that involves complete information on his part with everything. Of course, if there should be income from other sources their that might be imposed. Now, is there any fear of any enlargement of this power?

MR. LONG (Walker) ‑ I see here in Section 29 the Governor is required to prepare a bill and transmit the same to the House of Representatives, a general revenue bill, and members of the House, you say, would have the right to amend it. I don't think a member would. If he should offer an amendment would he not be in the attitude of fighting the administration?

MR. OATES ‑ Not at all. The member might lay it on his desk. That has nothing to do with it.

MR. LONG ‑ The gentleman did not answer the question. Would he not be in the attitude of fighting the administration?

MR. OATES ‑ No, he would not be doing anything of the kind, not at all, and we have never had any Governor big enough fool to suppose such a thing, and I hope we never will have.

THE PRESIDENT PRO TEM. ‑ The gentleman's time has expired. The question recurs on the amendment of the gentleman from Mobile.

MR. OATES ‑ Mr. President, I think the Chair is mistaken.

MR. BULGER ‑ I rise to a point of order. Does not the Chairman of the committee have thirty minutes instead of ten minutes.

MR. OATES ‑ It is only on amendments that they are limited to ten minutes.

MR. BULGER ‑ I understand the rule to be under the amendment is only ten minutes, but the previous question being ordered the chairman has thirty minutes.

THE PRESIDENT PRO TEM. ‑ The recollection of the Chair is, and would like to be informed, that a recent rule was adopted limiting all debate.

MR. OATES ‑ Only to the amendment.


2506

OFFICIAL PROCEEDINGS

THE PRESIDENT PRO TEM.  ‑ The point of order is well taken and the chairman of the committee will proceed.

MR. OATES ‑ I will not consume more time than I deem absolutely necessary, and necessary only to put the delegates in full possession of the views of your committee, and I think the correct view of this proposition. Now, sir, the only object and purpose of it was this. Inasmuch as the Auditor is the main State officer to give the Governor such information in regard to the financial condition of the State as will enable him to make proper communication to the Legislature he is named, but it is upon the Governor, who has to communicate to the Legislature the condition of the finances, and it is right and it is the custom  in that communication for the Governor to make whatever he deems to be suitable recommendations to the Legislature for legislative measures. My friend from Walker is apprehensive that it would be construed into fighting the Governor. A member of the Legislature, if he sees proper, he will agree with the recommendations of the Governor, but he is not in hostility to the Governor in differing from him in his views. Now, inasmuch as it is incumbent upon the Governor to lay before the Legislature the necessary information about the State and condition of the finance, your committee thought it was advisable, and would be a proper economy of time.

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

MR. OATES ‑ I must decline to be interrupted. It is pretty bad to be broken up, to have one's line of argument broken into. I do not object to answering questions, and I will do so before I sit down. It was deemed entirely proper and really saving time for the Governor who has to look into these matters and inform himself so that he may make proper communications to the Legislature, and particularly inform himself of the financial conditions. Nobody could object to this, except it is an imposition of additional labor to him. It is simply imposing additional labor upon the Governor and the officers of his cabinet associated with him. As has been properly stated, and the delegate from Tallapoosa is the only man I have heard speak on this subject, who seems to have a perfectly correct conception of what it meant and what it provided for. The Attorney General is associated so he can investigate the legal questions. In framing the bill on different points always arising, constructions of revenue measures and the Auditor furnishing the information and aiding the Governor in getting at these facts, and when they send in the bill printed it is nothing in the world except a suggestion to the House of Representatives and when a committee is appointed having charge of matters of revenue they take this bill, and I submit to any man of common sense if it would not aid him in investigating to see what ought to be done, what should be recommended to the Legislature as revenue mea‑


2507

CONSTITUTIONAL CONVENTION, 1901

sures ? Not bound to take anything that is recommended, nothing at all in the bill if they don't see proper to do so and that was the way that the bill read. There are some criticism upon the word "action" by the Legislature. Why you would read the whole instrument to find out what the words mean in it. The substitute that has been offered and is now pending I have no objection to. I am very willing to accept it for it does not change the sense at all, it changes that word from "action or" to "information" and makes the section so plain that even a child, a school boy, can read it and not be mistaken about what it means. "All bills for raising revenue shall originate in the House of Representatives." That is          old.. "But the Governor, Auditor, Treasurer and Attorney General shall before each regular session of the legislature prepare a geneal revenue bill to be submitted to the legislature for its action and the Secretary of State shall have printed for the use of the legislature a sufficient number of copies of the bill so prepared which the Governor shall transmit to the House of Representatives as soon as organized, to be used or dealt with as the House may elect." Throw it upon the table if they want to, or out of the window, yet some gentlemen are fearfully afraid of it, they fear there is something wonderful in it, that in this thing the Governor will be a king with absolute power. Then the following : "The Senate may propose amendments to revenue bills." That is an old provision, has had place in the Constitution all the time. The following is new : "No revenue bill shall be passed within the last five days of the session." That is to give the Governor time to look over it and examine it carefully. The Governor may veto any item in it and that item can be considered by the General Assembly while the balance of it remains good. I do not wish to talk just to hear my own voice. I never was charmed enough with it. I think I have gone over it and said all that is necessary. I am ready to answer the question of the gentleman from Walker.

MR. LONG ‑ The gentleman has changed his argument so much that the question I wanted to ask would not do any good.

MR. OATES ‑ Ah, changed my argument so much ‑ I had not made one before. Mr. President, the substitute offered by the gentleman from Mobile is acceptible to me. I have no right to accept it for the Committee, but it is acceptable to me and I hope it will be adopted.

PRESIDENT PRO TEM ‑ The question recurs upon the amendment offered by the gentleman from Mobile to the amendment of the gentleman from Dallas to Section 29.

MR. VAUGHAN ‑ I move to lay the substitute offered by the gentleman from Mobile on the table, and I call for the ayes and noes on that.


2508

OFFICIAL PROCEEDINGS

MR. BOONE ‑ I ask that the substitute be read to the Convention. I raise the point of order that the previous question has already been ordered, and it is too late to make a motion to lay upon the table after the previous question on the section and amendments have been ordered.

THE PRESIDENT PRO TEM– The point of order is overruled. Ayes and noes are demanded. Upon a motion to lay upon the table the amendment to the amendment offered by the gentleman from Mobile.  Is the call sustained?

Upon a vote being taken, the call was sustained.

THE PRESIDENT PRO TEM– The ayes and noes are demanded, and the question recurs on the motion of the gentleman from Dallas to lay upon the table.

MR. WILLIAMS (Marengo)– The rule of the Chair has been heretofore on a call for the previous question that a motion to table has precedence but after the call has actually been ordered by the House it is too late.

MR. O'NEAL ‑ The rules do not say that.

MR. WILLIAMS– That has been the ruling of the Chair.

MR. OATES– I think the temporary Chairman has a right to rule for himself.

MR. O’NEAL– It makes no difference what the rules are.  The question is, what is right?

The President here read Rule 25.

Under this rule, the Chair feels constrained to rule that the motion to lay upon the table has precedence.

MR. DUKE ‑ I would like you to read Rule 26, which is as follows: “A motion to adjourn shall always be in order, even in the absence of a quorum, except when on the call for the previous question, the main question shall have been ordered, or when the Chair is stating a question or when the roll is being called, or has been called, the vote has not been announced, or when a vote is being verified or when a member has the floor and such motion shall be decided without debate.”  A motion to adjourn at this stage would not be in order, and yet it has precedence over a motion to lay on the table. A motion to adjourn now would not be in order, it having the preference over the motion to lay on the table. How would a motion to lay on the table have preference over a motion after the previous question has been called.

MR. O'NEAL ‑ I make the point of order that the Chair has ruled on the question and further debate is out of order.


2509

CONSTITUTIONAL CONVENTION, 1901

PRESIDENT PRO TEM ‑ The Chair would like to be right. I take a moment to consider this.

MR. DUKE ‑ I will call the attention of the President to Rule 17, which, in my opinion states the question. It says: "The previous question shall be in the following form: ‘Shall the main question be now put?’ If demanded by a vote of the majority of the delegates present, its effect shall be to cut off all debate and bring the Convention to a direct vote."

PRESIDENT PRO TEM ‑ The Chair sustains the point of order and the question is on the adoption of the amendment of the gentleman from Dallas to Section 29.

MR. BOONE ‑ I ask that the amendment be read.

MR. LOMAX ‑ I ask that the original amendment be also read.

The Clerk read the amendment of Mr. Vaughan as follows: "All bills for raising revenues shall originate in the House of Representatives, but the Senate may propose amendments as in other bills."

Substitute by Mr. Boone: "All bills for raising revenues shall originate in the House of Representatives, the Governor, Auditor, and Attorney ‑ General shall, before each regular session of the Legislature, prepare a general revenue bill, to be submitted to the Legislature for its information, and the Secretary of State shall have printed for the use of the Legislature a sufficient number of copies of the bill so prepared, which the Governor shall transmit to the House of Representatives as soon as organized, to be used or dealt with as the House may elect. The Senate may propose amendments as in other bills."

PRESIDENT PRO TEM ‑ The words "no appropriations" have been stricken out by consent. The question is upon the motion to lay upon the table.

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

The call for the ayes and noes was sustained.

THE PRESIDENT PRO TEM ‑ The question is upon the adoption of the amendment proposed by the gentleman from Mobile. As many as favor its adoption will say aye and those opposed no as their names are called.

MR. PILLANS ‑ I rise to a question of parliamentary inquiry. As the clerk read this, I understood him to say that by unanimous consent "no appropriations" were the words stricken out. It should be "appropriations or."


2510

OFFICIAL PROCEEDINGS

THE PRESIDENT PRO TEM ‑ For the information of the gentleman from Mobile, it is as indicated by him.

AYES.

Altman,

Greer, of Perry,

Norwood,

Ashcraft,

Haley,

Oates,

Beddow,

Handley,

O' Neal (Lauderdale),

Boone,

Harrison,

O'Neill (Jefferson),

Bulger,

Heflin, of Chambers,

Opp,

Burnett,

Hood,

O' Rear,

Burns,

Howell,

Palmer,

Chapman,

Howze,

Parker (Cullman),

Cofer,

Inge,

Parker (Elmore),

Cornwall,

Jenkins,

Pearce,

Craig,

Jones, of Bibb,

Pillans,

Davis, of Etowah,

Jones, of Hale,

Pitts,

Dent,

Jones, of Wilcox,

Reynolds (Henry),

deGraffenreid,

Kirkland,

Robinson,

Duke,

Knight,

Searcy,

Eley,

Kyle,

Sentell,

Eyster,

Long (Butler),

Smith, Mac. A..

Espy,

Macdonald,

Smith, Morgan M.,

Ferguson,

McMillan (Baldwin),

Spragins,

Fletcher,

Malone,

Tayloe,

Glover,

Maxwell,

Walker,

Graham, of Montgomery,

Miller (Wilcox),

Williams (Barbour),

Graham, of Talladega,

Murphree,

Williams (Marengo),

Grayson,

NeSmith,

Wilson(Clarke),

Greer, of Calhoun,

Norman,

 

Winn,

Total ‑ 75.

NOES.

Almon,

Leigh,

Sanford,

Banks,

Lomax,

Selheimer,

Barefield,

Long (Walker),

Sloan,

Blackwell,

Lowe (Jefferson),

Smith (Mobile),

Brooks,

McMillan (Wilcox),

 Spears,

Carmichael, of Colbert,

Martin,

Stewart,

Cobb,

Merrill,

Studdard,

Cunningham,

Moody,

Vaughan,

Davis, of DeKalb,

Pettus,

Weakley,

Heflin, of Randolph,

Porter,

White,

Henderson,

Proctor,

Whiteside,

Hodges,

Rogers (Lowndes),

Willet,

Jones, of Montgomery,

Samford,

Wilson (Wash'gton),

Kirk,

Sanders,

Total ‑ 41.


2511

CONSTITUTIONAL CONVENTION, 1901

ABSENT OR NOT VOTING.

Messrs. President,

Foshee,

Mulkey,

Bartlett,

Foster,

Phillips,

Beavers,

Freeman,

Reese,

Bethune,

Elmore,

Renfro,

Browne,

Grant,

Reynolds (Chilton),

Byars,

Hinson,

Rogers (Sumter),

Cardon,

Jackson,

Sollie,

Carmichael, of Coffee,

King,

Sorrell,

Carnathon,

Ledbetter,

Thompson,

Case,

Locklin,

Waddell,

Coleman, of Greene,

Lowe (Lawrence),

Watts,

Coleman, of Walker,

Miller (Marengo),

Weatherly,

Fitts,

Morrisette,

Williams (Elmore),

And by a vote of 7 2 aye, and 42 noes, the substitute was adopted.

MR. ()'NEAL ‑ I change my vote from no to aye for the purpose of moving a reconsideration tomorrow morning.

MR. WILLIAMS (Marengo) ‑ I now move to reconsider the vote just taken whereby that amendment was passed. For the purpose of moving a reconsideration, I move to suspend the rules in order that that motion may be put upon its passage.

MR. O'NEAL ‑ Upon that motion I call for an aye and no vote.

MR. WILLIAMS (Marengo) ‑ I move to suspend the rules for the purpose of acting upon this motion to reconsider the vote whereby this amendment was adopted.

MR. O'NEAL ‑ If you want to gag us and keep us from pressing the matter tomorrow, we will give you all the trouble we can.

The call for the ayes and noes was sustained.

A vote being taken and a division called for, and by a vote of ayes 59, noes 39, the Convention refused to suspend the rules.

MR. O'NEAL ‑ You cannot gag us all the time.

The question recurring upon the amendment as amended, a vote being taken, it was adopted, and upon a further vote, Section 29 as amended was adopted.

MR. LOMAX ‑ I rise to a point of order. A motion to reconsider the vote by which the substitute was adopted having been made to be considered tomorrow morning, it was not in order to vote either upon the substitute or the original section.

MR. deGRAFFENREID ‑ The point of order comes too late.


2512

OFFICIAL PROCEEDINGS

MR. WILSON (Clarke) ‑ I desire to direct the chair’s attention to the last section and Rule 27. A motion to reconsider is subsidiary or an incidental motion, and does not go over until tomorrow, but should be considered forthwith.  An amendment to the section is merely a subsidiary motion.

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

MR. O'NEAL ‑ That is not all incidental motion.

MR. LOMAX ‑ I submit I made a point of order before the point of order made by the gentleman from Clarke, that you cannot make a point of order on a point of order, and his point of order, even if it could be entertained is not germane to the proposition submitted by me, and therefore I and entitled to a ruling upon my point of order. This action should not have been taken, because of a motion to reconsider has been given.

MR. O'NEAL– I desire to call the attention of the chair to what constitutes an incidental question.  Incidental questions are such as arise out of other questions and consequently are to be considered before the questions which give rise to them. Of this nature, first, are questions of order; second, motion for reading of papers; third, leave to withdraw a motion ; fourth, suspension of a rule, and fifth, the amendment of an amendment.  Now, this was not an amendment of an amendment but a substitute. It was a substitute for the original section.

MR. OATES– The point of order is not correct anyway, without regard to the time at which the point of order was made, a point of order is where notice has been given on the adoption of an amendment, and it applies to everything in regard to that section.  That cannot be true.  It would put it in the power of any man at any stage, to give notice that any such amendment had been adopted and to move the previous question, move to reconsider, and it would unfortunately disturb business. That is not the correct rule at all with regard to the matter.  I have no objection to his having the motion to a reconsideration on tomorrow or at any time the session deems proper, but that is not the correct one to go on to perfect the section and the motion to reconsider reaches the whole thing whenever it is made, but a notice of a motion to reconsider now does not stop the consideration of this section at all.

MR. LOMAX– In view of the remarks of the chairman of the committee, I would like to be heard on my point of order. The rules are upon notice being given of a motion to reconsider, that that motion shall be considered in the morning hour of the next day; that is, the rule of this Convention now, then, the Convention refused to suspend the rules in order to entertain that motion just a moment ago, so under our rules it is impossible for a motion to


2513

CONSTITUTIONAL CONVENTION, 1901

reconsider to be considered until tomorrow morning. That motion to reconsider was made upon the adoption of the substitute of the gentleman from Mobile, for the substitute of the gentleman from Dallas, to the original section. Now, if the Convention goes on, notwithstanding the motion to reconsider has been given, and adopts a substitute, then adopts the substitute as substituted, and then adopts the original section, I submit that action necessarily cuts off the power of this Convention to consider on tomorrow morning a motion to reconsider, of which notice has been given. So that if that be true, the notice of a motion to reconsider is absolutely useless and has no effect.  So I do not think that a very proper course for the Convention to pursue when a notice of a motion to reconsider has been given and the House has refused to suspend its rules to consider that motion, to reconsider is to suspend action upon the section upon which that amendment is pending until the time at which that motion to reconsider can be heard. There can be no other fair or just or equitable rule in this body if the rules stand as they are written.  I submit that the other votes ought not to be taken until the question of reconsideration has been determined.

MR. JONES (Montgomery) ‑ I would like to ask the gentleman from Montgomery a question. Suppose this Section is adopted and we reconsider the amendment tomorrow. What would be accomplished by it?

MR. LOMAX– We have no right to consider it if it is adopted: if the Section is adopted, we have no right to consider any amendment to that Section nor the motion to reconsider the vote by which it was adopted. It is merely a perfunctory performance.

MR. REESE ‑ Suppose some man gave notice on every amendment that was lost here during the whole day. Would the Convention have to stop its work and could not adopt a single Section because a notice has been given that the same amendment would be reconsidered?

MR. LOMAX ‑ No, sir, it would not, because the Convention would then very properly suspend the rules and consider motions to reconsider and not have that sort of business to interfere with the Convention.

MR. MACDONALD ‑ I rise to a question of parliamentary inquiry.

THE PRESIDENT ‑ The Chair will entertain it, if it is in the nature of a suggestion.

MR. MACDONALD ‑ It is in the nature of a suggestion. I was under the impression this Section has been submitted and adopted by a vote before Mr. Lomax ever raised his point of order at all.


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OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The Chair is of the opinion that the point of order of the delegate froth Montgomery is to a certain extent well taken and had the attention of the Chair been called to it before the other questions were put, he would have sustained it, but the Chair is also of the opinion that this is a subsidiary or incidental question and that the motion to reconsider ought to have been put without the suspension of the rules under Rule 27 so as to prevent the Convention from being delayed. The Chair's attention was not called to it, or it would have sustained it then, and therefore in order to correct the error as far as practicable, the Chair will rescind the action and entertain a motion to reconsider now.

MR. WILLIAMS (Marengo) ‑ I move to reconsider.

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

MR. O'NEAL ‑ I rise to a point of parliamentary inquiry. I voted for the original Section as amended with the intention tomorrow morning of moving for a reconsideration. I give notice now I will move to reconsider the Section as amended.

THE PRESIDENT ‑ The question being raised, in order to correct it, there was no point made. As soon as the Chair's attention was called to it and the question to reconsider was made by the delegate from Marengo, the matter should have been considered then.

MR. WILLIAMS ‑ I now renew that motion.

MR. BULGER ‑ I move to lay that motion on the table.

MR. SANFORD (Pike) ‑ I rise to a point of order. It is no longer a subsidiary motion, but it has been adopted as a Section. It is no longer a subsidiary motion and cannot be considered as such and the only way it can be considered is as an original Section.

MR. O’NEAL ‑ And under the rules it cannot be considered until tomorrow morning, and I give notice again that I will move tomorrow morning to reconsider the Section as adopted.

MR. WILLIAMS ‑ Just one word on that. It strikes me the motion of the gentleman from Lauderdale is out of order. If the position of the delegate from Montgomery, Mr. Lomax, is correct then this motion to reconsider under the rules of the Chair, should come up at this time and may be properly laid on the table on the motion of the delegate from Tallapoosa.

THE PRESIDENT ‑ It would not cut off a motion, the Chair would say, to reconsider the whole Section. The Chair regards it as an incidental or subsidiary question which should have been considered then.


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CONSTITUTIONAL CONVENTION, 1901

MR. GREER (Calhoun) ‑ I suppose the House fell into an error by virtue of an error in the ruling of the Chair, therefore, the Chair has the right to correct the error and ought to do it.

MR. LOMAX– I desire to say that the gentleman from Marengo credits me with the point of order made by the gentleman from Pike, Mr. Samford. 1 desire to correct him.

MR. SAM FORD ( Pike) ‑ I suggest to the Chair that after an amendment has been adopted by the House and then adopted as an original Section, it is too late for the Chair to correct any error by doing a useless thing, and having a reconsideration of an amendment that is then incorporated its the Constitution.

THE PRESIDENT– The point of order is well taken and the Secretary will read the next Section.

Section 30 was read by the Secretary:

Sec. 30. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the Executive, Legislative and Judicial Departments of the State, interest on the debt and for the public schools. The salary of no officer or employe shall be increased in such bills, nor shall any, appropriation be made for any officer or employe unless his employment and the amount of his salary have already been provided for by law. All other appropriations be made by separate bills, and each embracing but one subject.

MR. LONG (Walker) ‑ I ask unanimous consent to offer a short resolution.

The Secretary started to read the resolution.

MR. JONES– I would like to know how that resolution got in. The rules have not been suspended.

PRESIDENT ‑ There was no objection.

MR. JONES ‑ I was objecting all of the time.

MR. O'NEAL ‑ I rise to a point of order. The objection comes too late.

PRESIDENT ‑ The Chair did not hear it, but several of the gentlemen said they did object, and the Chair will put the question again

MR. O'NEAL ‑ I move that the rules be suspended and that the gentleman from Walker be allowed to offer the resolution now.

A DELEGATE ‑ I move to suspend the rules that the delegate from Walker may have leave to offer his resolution. The question is on suspension of rules.


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OFFICIAL PROCEEDINGS

MR. HEFLIN (Chambers) ‑ I make the point of order that the Chair said unless objection is made the resolution may be sent up, and the Chair hears none, and the gentleman will send up the resolution.

THE PRESIDENT ‑ The Chair will state for the benefit of the delegate from Walker, he so announced that the point of order was well taken, but several delegates said they had made objections and in deference to the wishes of the Convention, the Chair would put it over. The question is on the motion to suspend the rules.

The motion was carried and the rules were suspended.

The Clerk then read the resolution offered by Mr. Long of Walker, as follows: "Whereas, a wave of patriotism has taken a rabid hold upon some of the members of this Convention to such an extent as to wound their consciences by being required to draw their per diem, and whereas, this Convention has no intention of infringing upon the right of any delegate. Therefore, be it resolved, by the people of Alabama in Convention assembled, That the Secretary be and he is hereby required to secure a blank book to be used only by the members who desire to pay, which fact shall be determined by the member signing his name therein said book, to be kept open for signatures of volunteer member, at all hours, and the Secretary shall witness each signature under the proper date, and no member shall be allowed any pay from the State thereafter.

Provided, that the hotels, restaurants, boarding houses and saloons of Montgomery be and they are hereby required to furnish free of charge, board, lodging, laundry, liquors and cigars to such members as voluntarily surrender their pay. Because the Good Book says: "The laborer is worthy of his hire and the ass shall not be muzzled." (Prolonged laughter.)

MR. LONG (Walker) ‑ I ask that the resolution be referred to Mr. White.

MR. COBB ‑ I desire to be heard on that resolution.

MR. HEFLIN (Chambers) ‑ I call for the regular order.

MR. REESE ‑ I move that the gentleman be granted leave to be heard.

Unanimous consent was given.

MR. COBB ‑ I do not allow any human being to question my Democracy. I believe I am just as good a Democrat as any man on the floor. Well, I am, with the exception of my friend from Chambers over there, possibly, and maybe my friend from Jefferson. Being a good Democrat, I am a friend of the people.

MR. KIRKLAND ‑ I rise to a point of parliamentary inquiry. What is before this House?


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CONSTITUTIONAL CONVENTION, 1901

MR. COBB ‑ I am.

MR. O’NEAL ‑ I move that the Clerk be requested to furnish a copy to the gentleman of what is before the House, in writing.

MR. KIRKLAND ‑ Maybe you had better do it.

MR. COBB ‑ Being a good Democrat, I am a good friend of the people ‑ as good perhaps, as anybody on the floor, except, it may be my friend from Jefferson over yonder and my distinguished friend from Walker.

MR. LONG (Walker) ‑ I ask unanimous consent to withdraw the resolution. (Laughter.)

Objection is made.

TH E PRESIDENT ‑ The delegate will remember that by unanimous consent the delegate from Macon has been accorded the floor. The Chair asks that the delegates keep in order.

MR. COBB– It is very well understood by the delegates upon this floor that my distinguished friend from Walker has a preemption right– a standing right– to speak to the people upon the floor of this convention, but recognizing that right, I say that I am a friend of the people, and I am a good Democrat. Now, the cardinal rule of the Democracy has always been, as I have understood, the prompt and cheerful obedience to the will of the majority.  Now the majority has acted; they have said to me that as a good Democrat and as a good friend of the people, I am in conscience bound to take this pay that they have voted upon me this morning, and in strict obedience to my life-long Democracy, I expect to take it.  But I want to say that I always bow to the will of the majority without any mental reservation or secret evasion whatever and without any grumbling about it and I do not think that my friend from Walker or anybody else has got a right after forcing me into this position to come here–

MR. LONG (Walker) ‑ There is nothing in my resolution requiring a man to accept pay or refuse his pay. It is voluntary.

MR. COBB ‑ Yes, but you voted it on me this morning and said I should have it and said that I should take it and you have no right to go back on that. I raise a point of order. You cannot give and take away in the same breath. It is out of order. It is unparliamentary ; it is not in accordance with the rules of this House, and therefore, I say that the gentleman cannot put me in the attitude of being undemocratic or not a friend of the people.

MR. LOMAX ‑ I move that the resolution of the gentleman from Walker be referred to a special committee composed of gentlemen from Walker and gentlemen from Macon.


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OFFICIAL PROCEEDINGS

MR. GREER (Calhoun) ‑ I rise to a point of order. The resolution has already been referred.

THE PRESIDENT ‑ The point is well taken.

The Secretary read Section 30 as follows:

Sec. 30. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the Executive, Legislative and Judicial Departments of the State, interest on the public debt, and for the public schools. The salary of no officer or employee shall be increased in such bill, nor shall any appropriation be made for any officer or employe unless his employment and the amount of his salary have already been provided for by law. All other appropriations shall be made by separate bill, and each embracing but one subject.

Sec. 31. No money shall be paid out of the Treasury except upon appropriation made by law, and on warrant drawn by the proper officer in pursuance thereof; and a regular statement and account of receipts and expenditures of all public moneys shall be published annually, in such manner as may be by law directed.

MR. OATES ‑ That is substantially the provision in the present Constitution. The only change is that no officers salary shall be increased on the appropriation bill. I move its adoption.

MR. LOWE (Jefferson) ‑ Section 30, second line, refer, to ordinary expenses. I hardly know what might be termed ordinary expenses. I think the tendency is to narrow or limit the legislature in that respect and for that reason, without further discussion on the question, I desire to send up an amendment.

The Secretary read the amendment to Section 30, to strike out the word "ordinary" where it appears in the second line of said Section.

MR. OATES ‑ That is an innovation upon the section as found in the existing Constitution and I therefore move to table the amendment.

Motion to table the amendment was carried.

MR. JENKINS ‑ In a general appropriation bill, we have included the Montevallo school, and I wish to know the Chairman's opinion if the appropriation made to the Montevallo school, or the University, is affected by that section.

MR. OATES ‑ This Section in that respect is not changed from the way it has been all the time.

MR. JENKINS ‑ I know we have been doing it all the time, but the point I make is, haven't we been doing it wrong, and ought we not to put it in there ?


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CONSTITUTIONAL CONVENTION, 1901

MR. OATES– I don’t know whether I have the floor or whether he has it.

MR. JENKINS– I yield.

MR. OATES– I think it in order that the amendment be read.

The Secretary read the amendment as follows: “To amend Section 30 by adding after the word “debt” in the third line the following “appropriation for the State University, Alabama Polytechnic Institute, and Industrial school for white girls at Montevallo.

MR. OATES– All of that is wholly unnecessary and I move to lay the amendment on the table.

MR. LOMAX– Will the Chairman of the Committee permit me a question.  Does the section as it stands, include those appropriations.

MR. OATES– The section, as it stands as it has been all the time.  There is no trouble about that.

The motion to table the amendment was carried.

Upon a further vote the section was adopted.

Secretary read Section No. 31 as follows:

“No money shall be paid out of the treasury except upon appropriation made by law, and on warrant drawn by the proper officer in pursuance thereof; and a regular statement and account of receipts and expenditures of all public moneys shall be published annually, in such manner as may be by law directed.”

The section as read was adopted.

Section 32: “No appropriation shall be made to any charitable or educational institution not under the absolute control of the State, other than Normal schools established by law for the professional training of teachers for the public schools of the State, except by a vote of two-thirds of all members elected to each house.”

MR. OATES– I move its adoption.

MR. SPRAGINS– I have an amendment.

The clerk read the amendment.  Striking out the words “other than Normal schools established by law for the professional training of teachers for the public schools of the State.”

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

MR. SPRAGINS ‑ I offered that amendment because I saw no good reasons why the Agricultural Schools of the State, the


2520

OFFICIAL PROCEEDINGS

Southern University at Greensboro, the Howard College should require a two ‑ thirds vote in order to receive an appropriation and the Normal School should get all appropriation by a majority vote. I saw no good reason for that and thought it an injustice.

MR. OATES– The section as reported by the committee is just as it is found in the Constitution of 1875, and I do not think those institutions have suffered by it.  Therefore I move to lay it on the table.

The motion to table was carried.

Upon a further vote the section was adopted.

Section No. 33 was read by the Secretary.  “No act of the Legislature shall authorize the investment of any trust fund by executors, administrators, guardians and other trustees in the bonds, or stock of any private corporation and any such acts now existing are avoided, saving investments heretofore made.”

MR. OATES– That is just as, it stands in the present Constitution and I move its adoption.

Section adopted as read.

Section No. 34 was read as follows: “The power to change the venue in civil and criminal causes is vested in the courts, to be exercised in such manner as shall be provided by law.”

MR. OATES ‑ That is just as it is found in the present Constitution. I do not see why it should remain in the Legislative Department. It applies rather to the Judicial Department.

MR. JONES ‑ Can't the Harmonics put it there ?

MR. OATES– I suppose they call if they see proper.  I move its adoption.

The section as read was adopted.

Section No. 33 was read by the secretary as follows : “When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling said session, except by a vote of two-thirds of each House.”

MR. JONES (Montgomery)– I have an amendment to Section 35 by striking out the words “except by a two-thirds vote of each House.”

MR. JONES ‑ The object of the amendment is to keep the Constitution as it now is and to keep the Legislature when called in special session from legislating on any subjects except those designated by the Governor in his proclamation. He is made judge of the evils on extraordinary occasions which require their presence,


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CONSTITUTIONAL CONVENTION, 1901

and very often a special session which ought to be ordered would not be called because the Governor and the people might be afraid the Legislature would go to tinkering with other things. I think when an extraordinary session is called it is a wise provision to confine the Legislature to specific work mentioned in the proclamation.  Any experience is with the Legislators when a power is not to be exercised except by a two ‑ thirds vote of each house they always get that two ‑ thirds vote. You remember at one time the Constitution of this State limited the session unless the Legislature by a two-thirds vote extended it, and  they did extend it, and  I think it is unwise  to change the present Constitution and therefore made the amendment.

MR. REESE– We are dealing with the Legislative Department at this time and the amendment offered by the gentleman from Montgomery seeks to transfer some of the rights that have heretofore pertained to that department to th e Executive Department.

MR. JONES– Is not the law now that when a Legislature convenes in special session its shall not act upon anything except the special matter for which it is called together?

MR. REESE– We have taken a great forward step in this matter of cutting down the time of the Legislature, it is unwise in the opinion of some of the delegates on this floor that the Legislature shall only meet once in four years, and dire predictions of calamities have been made which will result from that provision. Now, when the Governor calls the Legislature here on some occasion I do not think they ought to be here as lackies of the Governor to execute his will and legislate only on such matters as he may say, provided there are two-thirds of each house that think it to the best interests of the people of Alabama that other subjects than those suggested by the Governor shall be legislated upon.  I have more respect for the intelligence of the people of Alabama than to think they would send a Legislature here and two-thirds of them would agree to legislate upon matters upon which no legislation should be had.

MR. JONES ‑ The language does not say two ‑ thirds of the members of each house. It says two ‑ thirds of each house. That might mean two ‑ thirds of a quorum.

MR. REESE ‑ I think if the Legislature meets here they  will not do anything wrong. I believe we call trust them and, Mr. President, I move to lay upon the table the amendment of the gentleman from Montgomery.

THE PRESIDENT ‑ The question is upon the motion of the gentleman from Dallas to lay upon the table the amendment proposed by the gentleman from Montgomery.


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OFFICIAL PROCEEDINGS

The motion was withdrawn.

MR. OATES ‑ I am perfectly aware of the objection made by my colleague from Montgomery, and what he proposes to strike out is new and all that is new in this section. Now, sir, it is a small matter in words, but it is a matter of very great importance in its consequences. Now, the extension of the Legislature and confining it to one session in four years puts things in a somewhat different attitude from what they are now. The Governor may see proper to call the Legislature together and specify in the call as he is required in the Executive Department to do the matters and things to which he invites the attention of the Legislature, but, sir, with the new Constitution and with such seldom sessions of the Legislature it might be the case that he did not foresee some important matter, which, in the opinion of the Legislature, and in his own opinion, ought to be attended to.  If as the Constitution now is, he committed that oversight and failed to specify in his message to assemble the Legislature in extraordinary session, although he wanted the Legislature to deal with that particular question and fully concurred with them in it, that ought to be attended to yet he could not by  any message of his change it or confer upon them that power. If they could consider nothing more than the things named in his proclamation calling the extra session it would be necessary for them to adjourn and to call them again in order to attend to that. I am not wedded to the requirement of a twothirds vote as in this case, but it ought to be in the power of the Legislature, say, by two ‑ thirds of the members elected, or, I don't care, if it be three ‑ fourths of the members ; but it ought to be within their power, if there should be anything omitted or anything  that is absolutely necessary for them to give attention to when in extra session, additional to which the Governor has specified, they ought to be able to attend to it.

MR. ROBINSON ‑ I want to ask a question. When an extra session of the Legislature should be called, would they ever adjourn ?

MR. OATES– As a matter of course, they would.

Mr. President, it seems to me some delegates on this floor act not on the presumption of innocence but on the presumption that the representatives and Governor in certain contingencies are unprincipled and will not discharge their duties faithfully. This only proposes that by a two ‑ thirds vote they might extend their time. I do not object if the delegate wants to offer an amendment that it be three ‑ fourths, but I want it to be possible for the Legislature to attend to something else, if it be found necessary.

MR. ROBINSON ‑ Does not a two ‑ thirds vote give them an unlimited session. Would it be limited at all.


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CONSTITUTIONAL CONVENTION, 1901

MR. OATES– I said a while ago, I am not wedded to it. I of perfectly willing that it should be enlarged or that any other restrictions may be put in so that it may be possible, that is all, and this is the action of the committee. The question was before them and they considered it and adopted this amendment. I have stated all the reasons according to my mind that I have heard discussed.

MR. REESE ‑ Will you move to table this amendment when you get through?

MR. OATES– I yield the floor to you for that purpose.

MR. O'NEAL ‑ Nobody else has any rights here, one delegate yields to another, and I desire to offer an amendment.

THE PRESIDENT ‑ The delegate from Lauderdale has the floor.

MR. OATES ‑ I promised to yield to the delegate from Dallas.

MR. REESE ‑ I have no string to tie to any amendment, and the gentleman is at liberty to act as he sees fit.

The amendment of the gentleman from Lauderdale was read as follows:

Amend Section 35 by adding thereto the following: That a special session of the Legislature shall be called by the Governor every two years, but such special session shall not continue longer than forty days.

MR. MACDONALD ‑ I move to lay the amendment offered by the delegate from Lauderdale on the table.

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

There were expressions of dissent.

The call was not sustained.

MR. O'NEAL ‑ I thought I would have an opportunity to explain my amendment.

To which there were expressions of dissent.

THE PRESIDENT ‑ Will the gentleman yield to the gentlemna from Lauderdale.

MR. MACDONALD ‑ I do not withdraw the motion, because I think it is another attempt to have biennial sessions.

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

THE PRESIDENT ‑ The call has been submitted and not sustained.


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OFFICIAL PROCEEDINGS

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

MR. SAMFORD (Pike) ‑ I offer an amendment.

The amendment was read as follows:

"And special sessions shall be limited to thirty days."

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

Upon a vote being taken a division vas called for, and by a vote of 36 ayes and 46 noes the motion to table was lost.    

MR. JONES (Montgomery) ‑ I move the adoption of the amendment.

MR. O'NEAL– I move to amend by making it fifty days.  THE PRESIDENT ‑ It is not in order.

MR. VAUGHAN ‑ I move the previous question upon the Section and amendments.

The main question was ordered.

MR. DENT ‑ I would like to have the Section and amendments read.   Do I understand that the amendment of the delegate from Pike is addressed to the amendment offered by the gentleman from Montgomery?

MR. SAM FORD (Pike) ‑ It is addressed to the Section.

MR. O'NEAL ‑ I rise to a point of order that it is out of order because it is not an amendment to the amendment.

MR. SAMFORD (Pike) ‑ It is an amendment to the Section.

MR. O'NEAL ‑ He cannot offer an amendment to the Section. The gentleman from Montgomery offered an amendment to the Section and all the gentleman front Pike could do would be to offer an amendment to the amendment, and I raise the point of order that the amendment of the gentleman from Pike is out of order.

MR. SAMFORD (Pike) ‑ Then I ask that it be considered as a substitute.

MR. O'NEAL ‑ The previous question has been ordered, and you gag us, and must take some of the gag yourselves.

THE PRESIDENT ‑ The Chair holds that the point of order comes too late.

The question being upon the adoption of the amendment of the delegate from Pike, upon a vote the same was adopted.

THE PRESIDENT ‑ The question recurs upon the adoption of the amendment of the delegate from Montgomery.


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CONSTITUTIONAL CONVENTION, 1901

MR. REESE– I desire to ask if it is not a fact that this Convention laid upon the table the amendment that was offered by the gentleman from Montgomery.

THE PRESIDENT ‑ It did not.

MR. JONES (Montgomery) ‑ No sir, the gentleman made a motion and withdrew it in order to have the Chairman of the Committee hammer me.

The question recurred upon the adoption of the amendment offered by the gentleman from Montgomery, and upon a vote being taken a division was called for, and by a vote of 30 ayes and 56 noes the amendment was lost.

 MR. CUNNINGHAM ‑ I rise to a point of order. The defeat of the amendment offered by the gentleman from Montgomery carries with it the amendment that was offered by the gentleman from Pike, and which was adopted.

THE  PRESIDENT– The point of order is well taken, and the question recurs upon the adoption of the Section as reported by the Committee.

MR. O'NEAL ‑ Is an amendment in order?

THE PRESIDENT ‑ The previous, question has been ordered.

MR. REESE ‑ I desire to make a motion to reconsider the vote by  which the previous question was ordered.

MR. PETTUS ‑ A point of order. It would require a suspension of the miles before that motion would be in order.

MR. REESE ‑ I move for a suspension of the rules.

MR. O’NEAL– I call for an aye and no vote on that motion.

The call was not sustained.

Upon a vote being taken a division was called for and the motion to suspend the rules was lost.

MR. ASHCRAFT ‑ I desire to have the Section as amended read.

THE  PRESIDENT ‑ It is not amended.

MR. SAMFORD (Pike) ‑ As I understood it the amendment from Montgomery was carried.

THE  PRESIDENT ‑ The Chair will state for the information of the delegate from Pike that his amendment was adopted as an amendment, and the question recurring upon the adoption of the amendment, it was lost, and therefore the question recurs upon the adoption of the Section as reported by the Committee.


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OFFICIAL PROCEEDINGS

Upon a vote being taken the Section was adopted.

MR. SAMFORD (Pike) ‑ I give notice now, having voted for the adoption of this Section, that I will make a motion in the morning to reconsider for the purpose of adding the amendment that I propose to the Section.

Section 36 was read as follows:

Sec. 36. No State office shall be continued or created for the inspection or measuring of any merchandise, manufacture of any merchandise, manufacture or commodity; but any county or municipality may appoint such officers when authorized by law.

Mr. Harrison here took the chair.

MR. BROOKS ‑ We have been in session here a good deal today, and our session was extended half an hour before our recess for dinner, and we have done a great deal of work. It is not within twenty minutes of 6 o'clock, and I move that we adjourn.

There were loud expressions of dissent and a vote being taken, the Convention refused to adjourn.

THE PRESIDENT ‑ The question is upon the adoption of Section 36.

MR. OATES ‑ That section, as reported, is just as it exists in the present Constitution, and I move its adoption.

MR. SANFORD (Montgomery) ‑ If that section is passed, will it not hinder or stop altogether the inspection of commercial fertilizer by the Agricultural Department.

MR. OATES ‑ No, sir. The section reads the same as in the present Constitution, and has been the law for twenty ‑ five years.

MR. JONES (Montgomery) ‑ The Supreme Court has decided that it does not.

Upon a vote being taken, the section was adopted.

Section 37 was read as follows:

Sec. 37. No act of the Legislature changing the seat of government of the State shall become a law until the same shall have been submitted to the qualified electors of the State at a general election, and approved by a majority of such electors voting on the same; and such act shall specify the proposed new location.

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

Upon a vote being taken the section was adopted.

Section 38 was read as follows:


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CONSTITUTIONAL CONVENTION, 1901

     Sec. 38. A member of the Legislature who shall corruptly solicit, demand, or receive, or consent to receive, directly or indirectly, for himself or for another, from any company, corporation or person, any money, office, appointment, employment, or personal advantage or promise thereof, for his vote or official influence, or for withholding the same, or with an understanding, expressed or implied, that his vote or his official action shall in any way be influenced thereby; or who shall solicit or demand any such money or other advantage, matter or thing aforesaid, for another as the consideration of his vote or official influence, or for withholding the same; or shall give or withhold his vote or influence in consideration of the payment or promise of such money, advantage, matter or thing to another, shall be guilty of bribery within the meaning of this Constitution, and shall incur the disabilities provided thereby for such offense, and such additional punishment as is or shall be provided by law.

     MR. PETTUS ‑ I have an amendment.

     The amendment was read as follows: "Amend Section 38 by striking out the word `corruptly' where it appears in said section.

     MR. OATES ‑ That would leave it so that soliciting would be an offense,

    MR. PETTUS ‑ I desire to state in regard to that amendment that the present section of the Constitution is believed by some to be somewhat ineffectual in prohibiting the evil that it is aimed at. In this section, which I believe is the same as in the old Constitution, it says that a member of the Legislature who shall corruptly solicit, demand or receive or consent to receive any of these things. Of course the evasion is on the word "corruptly." It could not be proved that his intention was corrupt at the time he solicited or received it, and in that way the section has been evaded and has been a dead ‑ letter in the Constitution and on our statute books. Now, I think that if that section is good at all, and if we are going to put anything into the Constitution on that subject, we ought to put something that can be enforced, and which if we strike out the word "corruptly" and make this section apply where a man solicits or accepts anything of this character, that it will reach in a large measure the evil that it is aimed at. For that reason, I move the adoption of the amendment. I think this is one section where it cannot be argued in favor of it, that it is the same as it was in the old Constitution, because the section as written in the old Constitution has been an absolute and unmitigated failure.

    Upon a vote being taken, the amendment was adopted.

    MR. HEFLIN (Chambers) ‑ I was about to prepare an amendment in line eleven, where it reads "and shall incur the disabilities provided thereby for such offense." I don't see any good reason


2528                            

OFFICIAL PROCEEDINGS

or good sense for "thereby" being in there, and it is not in the old Constitution, but it should read, "shall incur the disabilities provided for such offense."

     MR. O'NEAL ‑ It is in the old Constitution.

     MR. OATES ‑ I have not compared it.

     The amendment offered by the gentleman from Chambers was read as follows: "Amend by striking out the word `thereby' in line eleven of said section."

     MR. OATES ‑ I have heard no reasons given why it should be stricken out. We find on examination that it is in the old Constitution.

     MR. JONES (Montgomery) ‑ Does not "thereby" in this section refer to the Constitution?

     MR. OATS ‑ It does.

     MR. JONES ‑ And the other part, as may be provided by law?

     MR. OATES ‑ Yes.

     MR. JONES ‑ And is it not, therefore, necessary ?

     MR. OATES ‑ I think it is. I had not examined it when I was up before. I move to lay the amendment on the table.

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

     MR. PETTUS ‑ I desire to offer an amendment.

     The amendment was read as follows: "Amend Section 38 by striking out the word `official' where it appears in line eight of Section 38, page 17, of the Article on Legislative Department."

     MR. PETTUS ‑ I would like to call the attention of delegates to the fact that this provides for his vote or official influence in line eight, but further down it is for withholding vote or influence, and not his official influence, as provided in line eight. I think it ought to be made harmonious by inserting official in line nine, or striking it out of line eight, and I think that it would be better to strike it out, because it is his official influence which is desired, and I do not think a man ought to be allowed to play pooh ‑ bah, and for that reason I think he ought not be permitted to sell his influence, personal or otherwise, while he is in office.

     MR. LONG (Walker) ‑ Do you think a member of the Legislature has got any influence?

      MR. PETTUS ‑ I doubt it.


          2529

CONSTITUTIONAL CONVENTION, 1901

     MR. BURNS ‑ I offer an amendment.

     The secretary started to read the amendment.

      MR. PETTUS ‑ I make the point of order that the amendment goes to the substitute offered by the gentleman from Dallas, and it is not in order at this time.

      THE PRESIDENT PRO TEM – The point of order is well taken.

      The question recurred upon the adoption of the amendment of the gentleman from Limestone.

     Upon a vote being taken, the amendment was adopted.

      The secretary thereupon read the amendment offered by Mr. Burns of Dallas as follows: "Amend Section 38 by adding after the word `reward' in the third line, the words `free pass."'

     MR. BURNS ‑ I move that my amendment lie referred to the Committee of Corporations. (Laughter).

    MR. GREER (Calhoun)- ‑ I move that the amendment be tabled.

    A vote was taken, and during the vote Mr. Pillans sought recognition.

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

    The chair declared the motion to table carried.

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

    MR. BULGER ‑ A point of order. The gentleman from Mobile is too late. The result was announced before the gentleman caught the eye of the chair.

    MR. PILLANS ‑ I had the floor.

    MR. GREEN (Calhoun) ‑ A further point of order. The gentleman from Mobile is not in his seat.

    MR. PILLANS ‑ That is a point of order if the gentleman makes it.

    MR. BROOKS ‑ Does the chair refuse to consider the point made by my colleague from Mobile, because he was not in his seat? I make the point of order, Mr. President, that the meaning of the rule is that a delegate who is in any regular seat is pro hac vice in his seat, and the object of the rule is to prevent disorder by the members speaking from the aisle or somewhere else. It does not mean that he cannot speak from a regular seat. That is his seat for the time being, otherwise the President could not come


2530                          

OFFICIAL PROCEEDINGS

down from the chair and take the seat of any delegate on the floor and address this Convention. Therefore, I make the point of order that my colleague is in his seat.

      MR. GREER (Calhoun) ‑ In reply to that, I will state that the President of this Convention has universally ruled that the point of order that a gentleman was not in his seat was always well taken.

     THE  PRESIDENT PRO TEM ‑ 'That is the recollection of the present occupant of the chair, and the chair will state further that so far as the demand of tile delegate from Mobile for the ayes and noes, the chair did not hear him. If the chair had heard the gentleman, he would have put the question over, and the chair will ask now to be permitted to do so and that the gentleman be allowed to make the point he was about to make.

     There being no objection, the leave was given.

     MR. PILLANS ‑ I respectfully say that I knew the chair did not hear me. I have such confidence in the chair personally, as well as the position he occupies, that I knew be did not hear me, but the instant the question was stated I called for the ayes and noes.

      THE PRESIDENT PRO TEM ‑ Upon what question?

      MR. PILLANS ‑ Upon the question before the house. ‑ the amendment offered by the gentleman from Dallas.

     THE PRESIDENT PRO TEM ‑ A motion was made and put by the chair to table the amendment of the gentleman from Dallas.

     MR. PILL ANS ‑ And I immediately demanded the ayes and noes upon that question.

     THE PRESIDENT PRO TEM-- ‑ In order that no injustice may be done, the chair asks that the call for the ayes and noes be put.

      MR. REESE ‑ I rise to a point of order. The gentleman from Dallas, my colleague, offered this amendment, and he never had surrendered the floor. He was upon the floor and a motion was made to table, and immediately the gentleman from Dallas commenced demanding the ayes and noes, and he has had the floor ever since.

     THE PRESIDENT PRO TEM ‑ The Chair has consented., and I believe the Convention will not consent, to put the call for the ayes and noes. The Chair does not agree with the last gentleman from Dallas, because there is a motion made by his colleague to refer the amendment to the Committee on Corporations.


2531

CONSTITUTIONAL CONVENTION, 1901

    MR. BURNS ‑ I take the position that I had the floor.

    THE PRESIDENT PRO TEM ‑ The delegate will pardon the Chair, but the delegate certainly took his seat, and the Chair recognized another gentleman. The Chair asks consent of this Convention that the Convention now act upon the call for the ayes and noes demanded by the delegate from Mobile.

    MR. COFER ‑ I rise to a point of order, that this is not germane and it has been defeated by this House on a different occasion, and has been settled.

     THE PRESIDENT PRO TEM ‑ The Chair rules the point of order well taken.

     MR. JONES (Montgomery) ‑ I appeal from the decision of the Chair.

      MR. BOOM: ‑ I call for the ayes and noes on the question whether the Chair shall be sustained in ruling that it is not germane.

     MR. GREER (Calhoun) ‑ I move that we now adjourn.

     MR. REESE ‑ I demand the ayes and noes on the motion to adjourn. I will withdraw the call.

    MR. BROOKS ‑ I insist on the ayes and noes being called.

    MR. JONES (Montgomery) ‑ What does the Chair do with my appeal?

    THE PRESIDENT PRO TEM ‑ There are so many appeals, of the delegate will pardon the Chair and allow him one moment. After the appeal of the delegate from Montgomery there was a motion to adjourn, and the ayes and noes were demanded, and the Chair is told by the Secretary that the demand was sustained.

    MR. O'NEAL ‑ The demand for the ayes and noes was withdrawn.

    MR. FITTS ‑ There never was any standing up on that proposition.

    MR. JONES (Montgomery) ‑ Then my appeal is still pending on ruling that this matter cannot be offered.

    MR. VAUGHAN ‑ The time is nearly out and I move that we remain in session until the question under consideration is disposed of.

    MR. HEFLIN (Randolph) ‑ The motion of the gentleman from Calhoun to adjourn is before the House.

    MR. PROCTOR ‑ I demand the ayes and noes.


2532                    

OFFICIAL PROCEEDINGS

     MR. deGRAFFENREID ‑ I rise to a point of order.  Pending an appeal froth the decision of the Chair no other motion is in order.

     MR. BURNS ‑ The motion to adjourn is always in order.

     MR. ASHCRAFT ‑ I have not the rule in my hand, but I am sure that it is a parliamentary rule that pending an appeal from the decision of the Chair no other motion is in order.

    MR. OATES ‑ I desire to say that certainly the delegate from Lauderdale is mistaken. I have known an appeal to be taken and discussed, and doubtless the present occupant of the Chair has been in the Congress of the United States where the), observe the highest rule of parliamentary law. It may be discussed for one or two days before it is decided, and we adjourned when it was a pending question, and it does not have to be disposed of as the main question before the Convention.

    MR. SAMFORD (Pike) ‑ I give notice of a reconsideration of Section 35, and I have received information that I have sickness in. my family and cannot be here tomorrow. I desire to make the motion to reconsider the vote whereby Section 35 was adopted and ask that it lie over until tomorrow.

     There being no objection the motion was entered.

     THE PRESIDENT PRO TEM ‑ Before putting the motion to adjourn the Chair desires to submit to the Convention the following requests for leaves of absence. Mr.--------

     MR. PILLANS ‑ Before that is done I want to understand if we have called for a vote by the ayes and noes, if the clock strikes 6 it goes over, and I shall insist that we have the vote on that question, and that the vote be proceeded with.

     MR. JONES (Montgomery) ‑ I move that we remain in session until that appeal has been settled.

     To which there were loud expressions of dissent.

     MR. GREER (Calhoun) ‑ I move we do now adjourn.

     THE PRESIDENT PRO TEM ‑ All who favor the motion of the delegate from Montgomery will say I.

     A division was called for.

     Mr. Greer (Calhoun) and Mr. Cofer sought recognition upon a point of order.

     The clock struck the hour of 6.

     THE PRESIDENT PRO TEM ‑ The point of order is overruled. The Convention is taking a vote.


2533

CONSTITUTIONAL CONVENTION, 1901

     MR. GREER (Calhoun) ‑ Before that vote is taken I want to raise the point of order that it should be a vote to suspend the rules.

     THE PRESIDENT PRO TEM ‑ The point of order is overruled. A motion to fix the time of adjournment is always in order.

      By a vote of 50 ayes and 36 noes the motion of the gentleman from Montgomery (Mr. Jones) was carried.

     MR. GREER (Calhoun) ‑ Do I understand that the rule that this Convention can remain in session without a suspension of the rules.

     MR. JONES ‑ It does not require a suspension of the rules.

     MR. HEFLIN (Chambers) ‑ I make the point of order that it requires a two ‑ thirds vote to suspend the rules, and the point of order of the gentleman from Calhoun is well taken.

     MR. O'NEAL ‑ I make the point of order that a motion to adjourn or fix the time of adjournment is a motion of the highest privilege, and can be put at any time.

     MR. JONES (Montgomery) ‑ I make the point of order that the Convention unanimously remain here when the report of the Judiciary Committee came up in regard to our pay.

     THE PRESIDENT PRO TEM. ‑ There was so much confusion the Chair has neat had an opportunity to examine the rules, but the Chair is of the opinion that a motion to fix the time of adjournment is one of the highest order.

     MR. BROOKS ‑ It is a question of extending the session, and not a question of adjourning. The Convention adjourns by reason of the hour being 6 o'clock.

     MR. JONES (Montgomery) ‑ I make the point of order that the Chair has already decided that this Convention shall remain in session until the appeal is disposed of.

    MR. LONG (Walker) ‑ I move that we adjourn.

    MR. REESE ‑ I make the point of order that the time has already been fixed and the motion is out of order.

     THE PRESIDENT PRO TEM ‑ The Chair will ask the indulgence of the house a moment that he may examine the papers. The Chair has been ruling rapidly.

     MR. JONES (Montgomery)  ‑ Don't the Chair sometimes hear members on a question of this sort?

    THE PRESIDENT PRO TEM ‑ With pleasure.

    MR. REESE ‑ I make the point of order that an appeal from the decision of the Chair is not debatable.


2534                       

OFFICIAL  PROCEEDINGS

     MR. JONES ‑ I understand that, but it is the custom of every civilized parliament in the world, if the Chair choses  to do so, to accord a member that privilege.

     MR. PETTUS ‑ I cite the Chair to Rule 2, which provides that an appeal shall be decided without debate, except that the delegate to whom he may yield, may speak to the appeal not exceeding five minutes.

    MR. JONES ‑ I think the Chair, perhaps in the confusion‑

    MR. BULGER ‑ I rise to a point of order. The delegate from Walker made a motion to adjourn, and I cite the Chair to Rule 26, that it is always in order, unless prevented by certain exceptions, of which this is not one.

     MR. PETTUS ‑ The point of order comes too late.

    THE PRESIDENT PRO TIE ‑ The Chair would be pleased to hear from the delegate from Limestone on that.

    MR. BULGER ‑ I invite the attention to Rule 26, which is very clear in defining the time of adjournment.

    MR. JONES ‑ I make a point of order that no new business has been transacted and he could not make a motion to adjourn.

    MR. BULGER ‑ I submit, Mr. President, that the motion to adjourn made by the gentleman from Walker was pending when the gentleman from Montgomery took the floor. Now, I believe that this Convention has the right to have that motion put to adjourn, under Rule 26 on page 10 of the rules governing this Convention.

    MR. PETTUS ‑ The Chair, I believe, announced that he wanted to hear from me upon the point of order, or was willing to hear from me. I would like to state that a motion to adjourn shall always be in order, except in certain cases, and one of the exceptions is when a roll is being called or when a vote is being verified, or when a member has the floor. The gentleman from Montgomery had the floor under Rule 2, and was discussing a point of order, and a motion could not be put while he had the floor tinder Rule 26, and I make the further point of order that the Convention had already, by its previous action filed the time at which the Convention should adjourn, and that that motion had precedence of the motion to adjourn, and that motion having been acted upon, the motion to adjourn was not in order, especially since the gentleman from Montgomery had the floor, especially under the latter part of Rule 26, which states that a motion to adjourn is not in order when a member has the floor.

    PRESIDENT PRO TEM ‑ The gentleman from Montgomery has the floor and the point of order is not well taken.


2535

CONSTITUTIONAL CONVENTION, 1901

    MR. JONES ‑ I  was about to say that in the hurry of the decision the Chair, perhaps, did not apprehend the precise point passed upon by the Chair. The Chair ruled that the inclusion of the word "pass" in this section with reference to the General Assembly was not germane to the section. If that is what the Chair put its ruling on, that something of that sort had already been decided. I submit to the Chair with all due defference that the argument hardly needs refutation to say that the sovereign people of Alabama, in Convention assembled, are powerless to insert in any clause to which the matter relates, a prohibition upon the members of the General Assembly. What does germane mean? It is cognate to, relates to, not foreign to, akin to, or a cousin to, the proposition. There is not a semblance of ground on which to maintain the argument that it is not germane.

    THE PRESIDENT PRO TEM. ‑ The Chair will say this, the question is not whether it is germane or not, but whether it was included in the former action of this Convention, if it has been it is res adjudicata.

    MR. JONES ‑ Then I say with all due respect. How in the name of God can a thing be res adjudicata by a motion to lay on the table which simply says we won't hear the matter now. That would leave been the effect if this original matter was Offered here, but that matter that is laid on the table is not offered here.  It is simply saying that they shall not receive, and before it was a long provision saying their removal from office and making them guilty of a misdemeanor, and I submit on reflection that I think the Chair will conclude that the sovereign  people of Alabama in Convention assembled are not bound by such extremes that they cannot consider such a matter. I do not wish to take up the time of the Chair further.

    THE PRESIDENT PRO TEM. ‑ The Chair desires to state that a question previous to this, proposed in the attempt to dispatch business rapidly, when the Chair ruled rapidly, and I am informed by the Secretary that this very amendment was laid upon the table.

    MR. JONES ‑ There were three amendments, one that he should not receive his mileage if he used a pass, and a second one that if a member of the General Assembly should use a pass he would be guilty of a misdemeanor and forfeit his office, that is all the amendments that have been before the house.

     THE PRESIDENT PRO TEM. ‑ The very question on which you raised the point of order, the Secretary informs the that before your point of order was raised, on motion, it was laid upon the table The Secretary will read the record. and the Chair asks the indulgence of the house to straighten the record.

      The record was read as follows: Amendment by Mr. Burns:


2536                   

OFFICIAL PROCEEDINGS

     Mr. Greer of Calhoun moved to table and motion prevailed.

     MR. PILLANS–

     MR. SAMFORD – That is not correct----

     MR. FITTS----Nothing like that happened.

      THE SECRETARY-The Chair did announce that the motion was tabled.

       MR. JONES (Montgomery)–I object to the secretary having a colloquy with the members of the house.           MR. LONG (Walker)–I move that this Convention do now adjourn.

      MR. JONES – That is not in order.  Let us stay here and vote on this thing that is all we want.

      MR. LONG (Walker)–I insist on my motion.          MR. PETTUS – I insist that the motion to fix the time to which the convention adjourns is of the highest privilege, and having fixed the time, a motion to adjourn subsequently cannot be maintained without a suspension of the rules.

      MR. SAMFORD (Pike)–I desire to change the statement I made with reference to the remark I made in respect to the record. I meant no reflection upon the Secretary, but the Secretary got it as it transpired, the Chair afterwards on the protest of the gentleman from Mobile, stated that he would put the vote on the ayes and noes as demanded.

     THE PRESIDENT PRO TEM – The Chair will state to the delegates that is what the Chair was trying to do when the delegate arose and insisted upon his appeal, and stopped the Chair from doing it.

      MR. LONG (Walker)—I rise to a question of personal privilege.  I made a motion to adjourn and ask a ruling on it.

     THE PRESIDENT PRO TEM – The Chair rules, the Convention having agreed to remain in session until this question is disposed of, that the motion is out of order.

     MR. LONG (Walker)—I appeal from the decision of the Chair.

     THE PRESIDENT PRO TEM—The gentleman is out of order.

      MR. BROOKS-I move that the appeal be put to the house.

      MR. O’NEAL – Let me call the attention of the Chair to a principle of parliamentary law which bears upon this question.


2537

CONSTITUTIONAL CONVENTION, 1901

     There were loud cries of no no.

      MR. REESE ‑ I rise to a question ‑‑

      MR. ASHCRAFT ‑ I arise to a point of order. When the President put the vote on the motion to table the amendment by the gentleman from Dallas, as soon as the question was announced the gentleman from Mobile began to demand the ayes and noes. but the Chairman, not hearing him, proceeded until, as the Clerk's records show, he had announced that the vote had carried, thereupon the gentleman froth Mobile was heard by the Chair and the Chair by unanimous consent proposed to repeat the question, and thereupon the gentleman from Calhoun made the point of order that the question was res adjudicate, having been passed upon at a previous hour. The Chair sustained the point of order made by the gentleman from Calhoun, and thereupon the gentleman from Montgomery appealed from the decision of the Chair.

     THE PRESIDENT PRO TEM.–That is the Chair's recollection of it, the Chair appeals to the Convention to let it fix the record. The gentlemen who are appealing shall have what they desire. I want to do what is fair, but I want to correct this record.

        MR. CARMICHAEL (Colbert) ‑ I arise to a point of order. The gentleman from Lauderdale stated the proposition correctly except in this respect: The Chairman of this Convention never did submit the question as to whether there was objection, or whether unanimous consent would be given to a yea and nay vote as demanded by the gentleman from Mobile, but the Chairman was endeavoring to facilitate the Convention and to get their to agree, but the Chairman never did succeed.

      MR. REESE ‑ I make the joint of order that this Convention has ordered an appeal, the appeal is pending, and that the gentleman is out of order at this time. There is nothing except to take a vote.

      THE PRESIDENT PRO TEM.- ‑ The Chair will be your servant and carry out your wishes and no advantage will be taken of any member, but I insist there is an error, in the record, and the Chair's recollection sustains the Secretary's minutes, and it will put the records in a bad shape to say that this motion was laid on the table.

     MR. JONES-- We can correct the journal tomorrow morning, when it is read. We are satisfied as to what the facts are.

     MR. BULGER ‑ I submit that the journal speaks the truth in this transaction, and that this Convention has no power now in this manner to correct the journal.


2538                      

OFFICIAL PROCEEDINGS

     MR. REESE--I make the point of order that the appeal is not debatable and the gentleman from Tallapoosa has spoken sixteen times on the proposition.

     MR. BROWNE ‑ I make the point of order that a gentleman cannot appeal front a decision of the Chair as to the state of the record when the record speaks for itself.

       MR. JONES ‑ It has not been approved by this house, and it does not speak the truth until then.

       MR. SAMFORD ‑ In view of the state of the record‑

       There were vociferous cries of vote, vote‑

       MR. SAMFORD ‑ In view of the state of the record, I move that the gentleman from Dallas be taken from the table.

       MR. PARKER (Cullman) ‑ I make the point of order that no motion can be made while an appeal is being taken.

       MR. SAMFORD (Pike) ‑ And upon my motion I demand the ayes and noes.

       MR. REESE ‑ I rise to a point of inquiry. Is the request at this time for a verification? There seems to he some doubt as to whether the gentleman's amendment was tabled or not, and in the confusion the vote was misunderstood. I contend that the Con‑            vention had a right after the commencement of the vote to demand a verification, and I call for a verification of the vote.

       MR. SAMFORD ‑ The Chair has ruled, as I understand it, that the Secretary is correct, and that being the fact the amendment of the gentleman from Dallas is upon the table, and I have made a motion that the amendment be taken from the table, and upon that I call for the ayes and noes.

       MR. BROWNE ‑ I make the point of order that this house stands adjourned. That is new business, a motion to take from the table, and was not incorporated in the motion to extend the session.

       THE PRESIDENT PRO TEM ‑ I appeal to the Convention that we are not acting with proper regard for each other. The Chair is desirous of doing what is right but there are so many delegates on the floor, and so many points of order, that it is impossible for the Chair to decide anything.

      MR. PETTUS ‑ I ask what the appeal was taken from?

      THE PRESIDENT PRO TEM ‑ It was taken from the ruling of the Chair in respect to the amendment offered by the gentleman from Dallas.


2539

CONSTITUTIONAL CONVENTION, 1901

     MR. O'NEAL ‑ I move that the Sergeant ‑ at ‑ Arms be requested to keep order in this house.

      MR. PILLANS ‑ Have we a right to have a yea and nay vote upon the appeal? We can fix the record afterwards.

      MR. BULGER ‑ I insist that the record is right now. It don't need any fixing, and won't have to be fixed. It is put down as this things occurs and the gentleman from Mobile cannot take a vote and afterwards fix the record. I say it is unparliamentary and cannot be done. The record in this case speaks the truth. just as it occurred.

      MR. REESE ‑ I charge that the gentleman from Tallapoosa has made that point of order half a dozen times and he is filibustering in this Convention.

      MR. HEFLIN (Chambers) ‑ I would like to ask the gentleman from Tallapoosa a question. Do you not think, sir, that when Patrick Henry said, "Give me liberty or give me death," he said a great thing?

     MR. BOONE ‑ I make the point of order that Patrick Henry is long since dead.

     THE PRESIDENT PRO TEM ‑ The chair will listen, whenever the Convention comes to order, and remains so.

     MR. SAMFORD (Pike) ‑ This Convention is entitled to have the vote put to it, and I respectfully demand, as a member of this Convention, that we have the vote upon the question of appeal, made by the gentleman from Montgomery. I do not desire to be disrespectful to the Convention, or to the chair, but an appeal has been taken from a decision of the chair and the Convention is entitled to a vote upon it, whatever it may be.

     THE PRESIDENT PRO TEM. ‑ And the Convention shall have the opportunity if they will stay here and vote.

     MR. BROWNE ‑ I desire a riling upon my point of order.

     MR. O’.NEAL ‑ The gentleman is out of order: there is nothing before this house but the appeal.

     MR. BROWNE ‑ I rise to a point of order. I know the gentlemen do not want to decide it, but I make the point of order that the chair should not entertain an appeal for the purpose of making the records speak what is not the truth.

      MR. O'NEAL ‑ Who is to judge whether it is true ‑ you or the house?

      MR. BROWNE ‑ The chair.


2540                        

OFFICIAL PROCEEDINGS

     MR. O'NEAL ‑ No, sir; this House proposes to judge whether it is true or not. This house proposes to do it, and no one can control this house.

     MR. BROWNE ‑ I desire a ruling upon a point of order.

     MR. LONG (Walker) ‑ I respectfully ask the ruling of the chair. Awhile ago I made a motion to adjourn. The chair ruled that I had no right to make the motion at that time. On that I took an appeal from the decision of the chair that should have a preceded over the appeal of the gentleman from Montgomery. The last appeal should be settled first, and I contend that a majority of this Convention have a right to adjourn.

     MR. JONES ‑ I respectfully insist that we are entitled to have this vote, and ask the chair respectfully if he is going to put the question.

     MR. BROWNE ‑ Will the chair rule on my point of order against this appeal, because it is an attempt to make the records speak what is not the truth?

     THE PRESIDENT PRO TEM. ‑ The chair will ask the delegate from Montgomery and others favoring his position, if they will consent that the action the chair was about to take upon the demand of the delegate from Mobile would enable us to correct the journal about that matter being laid upon the table?

      MR. JONES ‑ This house will settle what its records contain, and I respectfully insist upon my appeal.

      THE PRESIDENT PRO TEM --‑ Then the delegate shall have it, and the question is, shall the chair be sustained?

       MR. JONES ‑ I demand the ayes and noes.

       The call for the ayes and noes was sustained.

        MR. WILSON (Clarke) ‑ I have come into the hall since the ruling of the chair was made, and I would like to know what the chair ruled, and from which there is an appeal, so that I may intelligently vote upon the appeal from the ruling of the chair.

      MR. JONES ‑ If the gentleman will allow me. I will state it.

      Objection was made.

      MR. FERGUSON ‑ I arise to a question of inquiry. What is it that we are voting on?

     THE PRESIDENT PRO TEM. ‑ The chair will state for the information of the delegates that the Convention had tinder consideration Section 38 to the Article on Legislative Department. An amendment was offered by the delegate from Dallas (Mr. Burns)


2541

CONSTITUTIONAL CONVENTION, 1901

to amend said section by adding after the word "reward" in the third line the words "free passes."

      The point of order was raised by the delegate from Calhoun that the question of free passes was res adjudicata, having heretofore been settled by this Convention and the chair sustained the point of order, and from that ruling the delegate from Montgomery appealed, and the question is shall the decision of the Chair be sustained ?

      MR. WILSON (Clark) ‑ I arise to state my position on the question.

       MR. REESE-An appeal is not debatable, and the gentleman has no right to debate the question.

THE PRESIDENT PRO THM. ‑ The point of order is well taken. Proceed with the call.

MR. BURNS (Dallas) ‑ I arise to a question of privilege. I have never yet yielded the floor.

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

AYES

Almon

Heflin, of Chambers

Rogers, of Lowndes

Barefield,

Heflin, of Randolph

Searcy,

Browne,

Henderson,

Sentell,

Bulger,

Knight,

Sloan,

Carmichael, of Colbert

Long, of Butler

Smith, of Mobile,

Cofer,

NeSmith,

Smith, Mac A.,

Davis, of DeKalb,

Parker, of Cullman

Sorrell,

Davis, of Etowah

Porter,

Williams, of Marengo

Eyster,

Proctor,

Wilson, of Clarke

Greer, of Calhoun

Reynolds (Henry)

Wilson, of Washington,

            TOTAL-30

             NOES

Ashcraft,

Ferguson,

Lomax,

Banks,

Fitts,

Lowe, of Jefferson,

Beddow,

Fletcher,

Macdonald,

Blackwell,

Glover,

McMillan, of Wilcox,

Boone,

Handley,

Martin,

Brooks,

Hood,

Maxwell,

Burns,

Howell,

Merrill,

Cobb,

Jenkins,

Miller, of Wilcox,

Coleman, of Greene,

Jones, of Hale,

Moody,

Cunningham,

Jones, of Wilcox,

Murphree,

Dent,

Jones, of Montgomery,

Norman,

Duke,

Kyle,

Norwood,

Eley,

Leigh,

Oates

 


2542

OFFICIAL PROCEEDINGS

O'Neal, of Lauderdale,

Robinson,

Tayloe,

Opp,

Rogers, of Sumter,

Vaughan,

Palmer,

Samford,

Walker,

Parker, of Elmore

Sanders,

Weakley,

Pettus,

Sanford,

Whiteside,

Pillans,

Selheimer,

Winn,

Pitts.

Spragins,

Reese

Stewart,

TOTAL‑--61

ABSENT OR NOT VOTING.

Messrs. President,

Graham, of Talladega

Morrisette

Altman,

Grant,

Mulkey,

Bartlett,

Grayson,

O'Neill (Jefferson).

Beavers,

Greer, of Perry,

O'Rear,

Bethune,

Haley,

Pearce,

Burnett,

Harrison,

Phillips,

Byars,

Hinson,

Renfro,

Cardon,

Hodges,

Reynolds, of Chilton,

Carmichael, of Coffee,

Howze,

Smith, Morgan M.,

Carnathon,

Inge,

Sollie,

Case,

Jackson,

Shears,

Chapman,

Jones, of Bibb,

Studdard,

Coleman, of Walker

King,

Thompson,

Cornwall,

Kirk.

Waddell,

Craig,

Kirkland,

Watts.

deGraffenreid,

Ledbetter,

Weatherly,

Espy,

Locklin,

White,

Foshee,

Long, of Walker,

Willet,

Foster,

Lowe, of Lawrence,

Williams, of Barbour,

Freeman,

McMillian (Baldwin),

Williams, of Elmore,

Gilmore,

Malone,

Graham, of Montgomery,

Miller, of Marengo,

And by a vote of 30 ayes and 60 noes the decision of the Chair was not sustained.

MR. HEFLIN (Chambers) ‑ I make the point of order that the House stands adjourned.

Leaves of absence were granted Mr. Vaughan of Dallas, Mr. Reese, Mr. King and Mr. Smith of Autauga, for tomorrow (Saturday) and thereupon at 6:30 o'clock the Convention adjourned.