2543

CONSTITUTIONAL CONVENTION, 1901

FIFTIETH  DAY

MONTGOMERY, ALA., 

Saturday, July 20, 1901.

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

     O Lord, we thank Thee for the preservation of our lives. We thank Thee for Thy loving providence, which has been over and about us all the days of our life. We thank thee for this land of civilization and for its Christian men and women.  We thank Thee for all the influence, of Thy providence, which have been brought to bear upon us, and lead us away from our sins. We pray Thee to direct us this day, aid us in the work in which we are engaged, and may  the actions of our lives, the words of our mouths and meditation of our hearts be acceptable to Thy sight. O Lord, direct us in this work. May we realize the responsibility we are under unto Thee, and that we are under to the people we represent, and may the Great King of Kings, Lord of Lords, lead us and direct us in the way of all truth. Forgive our sins, blot out all our transgressions and may we live soberly and righteously and godly lives in this present world, and when at last we come to the end of life, may we have a conscience void of offense toward Thee, and toward all mankind. and finally when our lives and labors are all over, and we appear in the great beyond, may the Lord accept and save us, through Jesus Christ. Amen.

    Upon the call of the roll 94 delegates responded to their names.

     Leaves of absence were granted as follows To Mr. Miller (Wilcox) for today and Monday ; Mr. Winn for Monday; to Mr. Burnett for today; to Mr. Kirk for today; to Mr. Sanford (Pike) today on account of sickness; to Mr. Pitts of Dallas for today.

     The roll was called for introduction of ordinances, resolutions, etc.

     MR. BOONE ‑ I yield my turn to the delegate from Chambers.

     MR. ROBINSON ‑ I have a resolution I desire to offer for passage.

     The Clerk read the resolution as follows:

     Resolution No. 257, by Mr. Robinson:

     Resolution for final adjournment:


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OFFICIAL PROCEEDINGS

     Whereas, The Act of the General Assembly of Alabama calling this Convention together in fixing the compensation of the members thereof, contained the following proviso: "That the per diem compensation shall not be allowed or paid to any member of the Convention for a longer time than fifty days."

    And whereas, The Democratic party of Alabama, when it nominated its candidates for membership to this Convention, declared in its platform as follows, to ‑ wit: "The Democratic party of the State of Alabama, in Convention assembled. endorse the act to provide for the holding of a Constitutional Convention to revise and amend the Constitution of this State, approved December the 11th, 1900. and favor the carrying out of all the provisions of said act."

    And, whereas. The chairman of the Campaign Committee of said party in an address issued to the voters of this State urging the election of the candidates of said party, promised the people as follows. to ‑ wit : "The Campaign Committee of the Democratic party hereby reasserts the pledges made and in the name of every Democratic nominee, State, Congressional, Senatorial, and county, unqualifiedly assures the people that every plank of the platform and every provision of the act calling the Convention shall be kept and complied with. "And, whereas. the fifty days for which the members of this, Convention shall receive pay as provided in said act will expire today.

    And, whereas, The members of this Convention have declared by resolution that they are unwilling to remain longer in session without pay, and

    Whereas, the Democratic members of This Convention should not be required to violate the sacred pledges male by them to the people who elected them.

     Therefore, be it Resolved, That this Convention shall stand adjourned sine die at 6 o'clock p. m. today.

     The question being upon the adoption of the resolution a vote being taken, the resolution offered by the gentleman froth Chambers was lost.

    MR. BURNS ‑ I have a resolution to offer.

    The Clerk read the resolution as follows:

    Resolution No. 258, by Mr. Burns

    Resolved. That the expenses of this Convention exceeds the amount actually necessary.

    Referred to the Committee on Rules.

    MR. COLEMAN (Greene) ‑ I have an ordinance I desire to offer.


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CONSTITUTIONAL CONVENTION, 1901

     The clerk read the ordinance as follows:

     Ordinance No. 425 by Mr. Coleman (Greene.)

AN ORDINANCE,

Be it ordained that no railroad or other transportation company or corporation shall grant free lasses, or sell tickets or passes at a discount other than as sold to the public generally, to any member of the Legislature or to any person holding office under this State, and ally such member or officer receiving such pass or ticket for himself or procuring the same for another shall be guilty of a misdemanor and upon conviction, shall be fined in a suns not exceeding $1,000 and at the discretion of the court trying the case, in addition to such fine, may be imprisoned for a term not exceeding six months, and upon such conviction, shall be subject to impeachment and removal from office. The courts having jurisdiction shall give this law specially in charge to the grand juries, and when the evidence is sufficient to authorize an indictment, the grand jury must present a true bill. Any county into or through which, such member or officer is transported, by the use of such prohibited pass or ticket, shall have jurisdiction of the case, provided only one prosecution shall be had for the same offense, and, provided further that nothing herein contained shall prevent the Governor or other authorized person froth making special arrangements for transportation of State troops, within the State at less than the regular rates.

    Referrers to Committee on Corporations.

    The report of the Committee on journal was read, stating that they had examined the journal for the fort ‑ ninth day of the Convention and found the same to be correct.

      MR. JONES (Montgomery) ‑‑ I would like to inquire as to what the journal shows with reference to the amendment offered by the gentleman from Dallas being laid upon the table.

     MR. PROCTOR ‑ I move that the journal pertaining to that matter be read.

     MR. LONG (Walker) ‑ I make the point of order. That is out of order. The roll is being called for the introduction of resolutions. It would be out of order at this time.

    MR. OATES ‑ The point of order, it seems to me. would have been well taken before the report was received and read. It is bad practice to interrupt proceedings in that way.

     THE PRESIDENT ‑ It seems to the Chair that the regular order is called for, and the regular order will be the call of the roll of delegates, and after that the Convention may take up the re‑


2546                    

OFFICIAL  PROCEEDINGS

port of the Committee for consideration if it desires. The Secretary will proceed with the call of the roll.

     MR. DENT ‑ I send up a resolution, and I ask the attention of the Convention to it when read, as I propose to move the suspension of the rules to put the resolution upon its passage.

    The clerk read the resolution, (No. 259) as follows:

     Resolution No. 259 by Mr. Dent:

     Resolved, That the Committee on Corporations to which has been referred the ordinance introduced today by the delegate from Greene in reference to railroad passes, are hereby instructed to submit a report on said ordinance not later than Tuesday next, the 23rd inst.

     When the Secretary had completed the reading of the resolution. the gentleman from Barbour moved to suspend the rules to have the resolution put upon its immediate passage, and called for the ayes and noes.

       The call for the ayes and noes was sustained.

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

        MR. GREER (Calhoun) ‑ I would like to hear that resolution read.

       THE PRESIDENT ‑ Gentlemen will please give attention to the reading of resolutions. The gentleman from Barbour announced that he would propose to suspend the rules, which ought to invite the attention of delegates. The Secretary will read the resolution. The Chair will not feel bound to order a re ‑ reading where notice has been given of an intention to move to suspend the rules.

       The Secretary again read the resolution.

       THE PRESIDENT ‑ The ayes and noes have been called for upon a motion to suspend the rules. As many as favor the suspension of the rules for the purpose of placing the resolution just read upon its immediate passage, will say aye, and those opposed no, as your names are called.

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

AYES

Ashcraft,

Brooks,

deGraffenreid,

Banks,

Burns,

Duke,

Barefield,

Chapman,

Eley,

Beddow,

Cobb,

Ferguson,

Blackwell,

Coleman, of Greene,

Fitts,

Boone,

Dent,

Fletcher,

 


2547

CONSTITUTIONAL CONVENTION, 1901

Freeman,

McMillian. of Baldwin,

Pillans,

Glover,

McMillan (Wilcox),

Robinson,

Graham. of Talladega,

Malone,

Rogers (Sumter),

Handley,

Martin,

Sanders,

Heflin, of Chambers,

Maxwell,

Sanford,

Henderson.

Merrill,

Selheimer,

Hood,

Moody,

Smith. Mac. A.,

Jackson.

Murphree.

Sollie,

Jones. of Montgomery,

Norman,

Spears.

Jones, of Wilcox,

Norwood,

Spragins,

Kyle.

Oates,

Tayloe,

Leigh.

O’Neal (Lauderdale).

Walker,

Locklin,

Opp,

White,

Lomax.

Palmer,

Whiteside.

Lowe, of Jefferson,

Parker (Elmore),

Williams (Barbour).

Macdonald,

Pettus.

Winn,

TOTAL ‑ 66

NOES

Messrs. President,

Harrison,

Scarce.

Almon,

Hodges,

Sloan.

Browne,

Howell,

Smith (Mobile).

Bulger,

Kirkland,

Stewart,

Cardon.

Knight,

Stoddard,

Carmichael, of Colbert.

Long, of Butler,

Weakley,

Cofer,

Long, of Walker,

William (Marengo),

Craig,

Mulkey,

Williams (Elmore),

Cunningham,

NeSmith,

Wilson (Clarke),

Davis, of DeKalb,

Parker (Cullman),

Wilson (Washington).

Eyster,

Proctor

Greer. of Calhoun,

Rogers (Lowndes).

 TOTAL ‑ 34

ABSENT OR NOT VOTING

Altman,

Foster,

King,

Bartlett,

Gilmore,

Kirk,

Beavers.

Graham, of Montgomery,

Ledbetter,

Bethune.

Grant,

Lowe, of Lawrence,

Burnett.

Grayson,

Miller (Marengo),

Byars.

Greer, of Perry

Miller (Wilcox),

Carmichael, of Coffee,

Haley.

Morrisette,

Carnathon,

Heflin, of Randolph,.

O'Neill, of Jefferson.

Case,

Hinson,

O' Rear,

Coleman, of Walker,

Howze,

Pearce,

Cornwall.

Inge,

Phillips.

Davis. of Etowah,

Jenkins,

Pitts,

Espy,

Jones, of Bibb,

Porter,

Foshee,

Jones, of Hale.

Reese,


2548

OFFICIAL PROCEEDINGS

Renfro,

Smith, Morgan M.,

Waddell,

Reynolds (Chilton),

Sorrell,

Watts,

Reynolds, of Henry,

Thompson,

Weatherly,

Samford,

Vaughan,

Willet,

Sentell,

THE PRESIDENT ‑ On casting up the vote, it appears that there are 66 ayes and 34 noes, and the motion to suspend the rules is lost.

MR. JONES (Montgomery) ‑ Does it take two ‑ thirds of the entire house, or two ‑ thirds of those voting under the rules?

THE PRESIDENT ‑ It requires two ‑ thirds of those who voted.

MR. DENT ‑ I ask that the resolution be referred to the Committee on Rules.

MR. LONG (Walker) ‑ I rise to a point of order, the resolution should be referred by the Chair under the rules, and it would require a two ‑ third vote to suspend the rules.

THE PRESIDENT ‑ The Chair has not yet referred it.

MR. DENT ‑ I ask that it be referred to the Committee on Rules.

THE PRESIDENT ‑ The Chair will consider the request of the gentleman. It seems to the Chair that the resolution should go to the Committee on Corporations as it relates to a report from that committee, and is expressing the sense of the Convention. The Chair will refer the resolution to the Committee on Corporations.

MR. JONES (Montgomery) ‑ Has the Convention the right to direct how it shall be referred?

THE PRESIDENT ‑ Yes, if the gentleman makes a motion.

MR. JONES ‑ I move that it be referred to the Committee on Rules.

MR. DENT ‑ I second the motion.

MR. LONG (Walker) ‑ It will require a two ‑ thirds vote to overrule the chair in the matter of reference.

THE PRESIDENT ‑ It is competent for any delegate to move a different reference. Two ‑ thirds of the Convention can order a different reference.

The question will be on the motion to refer, contrary to the indication made by the Chair, this resolution to the Committee on Rules. The Chair thinks it ought to be referred to the Commit


2549

CONSTITUTIONAL CONVENTION, 1901

tee on Corporations. The question is, shall it be referred to the Committee on Corporations, as many as favor that will say aye and those opposed no. It seems to the Chair that the noes have it.

MR. BROOKS– The Chair said should it be referred to the Committee on Corporations– that was an inadvertence.

THE PRESIDENT ‑ The motion of the gentleman from Barbour is that this resolution be referred to the Committee on Rules. The Chair has rifled that in the opinion of the Chair it should be referred to the Committee on Corporations, and it shall be so referred unless the Convention overrules the reference made by the President.

A vote being taken on a division there were 45 ayes and 52 noes, and the motion of the gentleman from Barbour was lost.

THE PRESIDENT– The resolution will be referred to the Committee can Corporations.

The Secretary will continue the call of the roll.

MR. deGRAFFENREID ‑ I have an ordinance that I want to introduce, and I ask that it be referred to the Committee on Banks and Banking.

The Clerk read the ordinance as follows:

Ordinance No. 426, by Mr. deGraffenreid:

Amendment to the fourth section to the article heretofore adopted on Banks and Banking.

Strike out of Section 4 the words “shall, for such notes and deposits,” and insert in lieu thereof the following words : “the purchasers of exchange from the bank, and persons to whom the bank is indebted for the proceeds of notes, bills of exchange and other claims collected by it, shall for such notes, deposits, exchange and collections."

Referred to Committee on Banks and Banking.

MR. FREEMAN ‑ I have an ordinance I desire to introduce.

The Clerk read the ordinance as follows:

Ordinance No. 427, by Mr. N. H. Freeman:

Be it ordained by the people of Alabama in Convention assembled that no corporation attorney shall be eligible to office as member of the Legislature.

Referred to Committee on Corporations.

MR. GRAHAM (Talladega) ‑ I have a resolution that I desire to introduce, and if in the opinion of the Chair it will be neces‑


2550

OFFICIAL PROCEEDINGS

sary. I will ask a suspension of the rules that it be put upon its immediate passage.

The Clerk read the ordinance as follows:

Resolution No. 260, by Mr. Graham of Talladega:

Resolved, That this Convention remain in session today until 2 p. m., and then stand adjourned until 11 a. m. next Monday.

THE PRESIDENT ‑ It seems to the Chair that it is a privileged motion.

MR. GRAHAM ‑ I move the adoption of the resolution.

MR. WILLIAMS (Marengo) ‑ I move to amend by inserting 9 :30 in place of 11.

THE PRESIDENT ‑ The question will be upon the amendment offered by the gentleman from Marengo.

MR. SANDERS ‑ I propose to further amend by striking out 2 p. m., and that the Convention stand adjourned at the regular time.

MR. COBB ‑ I move to lay the amendment of the gentleman upon the table.

THE PRESIDENT ‑ The motion is out of order. As many as favor the amendment of the gentleman from Limestone to strike out 11 and insert 9:30 will say aye. The ayes seem to have it.

A division was called for.

THE PRESIDENT ‑ As many as favor the adoption of the amendment by striking out 11 and inserting 9:30 will please rise and remain standing until counted.

MR. O'NEAL ‑ I rise to a point of order ‑ the gentleman from Limestone did not make that motion.

THE PRESIDENT ‑ The Chair should have stated the gentleman from Marengo. Mr. Williams. The question is on the motion to strike out 11 and insert 9:30. The Chair will entertain the motion of the gentleman from Limestone as soon as this result is ascertained.

A vote being taken there were 37 ayes and 47 noes, and the amendment was lost.

MR. SANDERS ‑ I move to amend by striking out 2 p. m. today so that the Convention shall stand adjourned at its regular time. 1 p. m.


2551

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT– Stand adjourned?  The Convention at 1 p.m. stands adjourned until 3:30 p.m.  Do you wish to strike out 2 and insert 1 in the resolution?

MR. SANDERS– Yes, sir.

THE PRESIDENT– The question will be on the amendment of the gentleman  from Limestone, which is to strike out 2 p.m. and insert 1 p.m.

MR. STEWART– I move to lay the resolution and amendment on the table.

THE  PRESIDENT ‑ The motion is not in order. This is a motion to fix the time on adjournment.

A vote being taken there were 48 ayes and 33 noes, and the amendment was adopted on a division.

MR. O’NEAL ‑ I ask for a verification of the vote.

THE PRESIDENT ‑ Verification is demanded.

There were loud cries of "No."

MR. MURPHREE– I move to strike out 11 and insert 10.

THE PRESIDENT –  Verification is demanded of the vote just had. As many as favor the motion of the gentleman from Limestone will please rise and remain standing, all those who voted should rise, this is a verification of the vote, and the correctness of the Secretary's count is challenged.

MR. LOMAX ‑ I did not vote before; have I right to vote now?

THE PRESIDENT ‑ Not on the verification.

THE PRESIDENT ‑ Does the gentleman from Pike, Mr. Murphree. desire to vote on this verification? The Secretary has him voting on both sides of this proposition.

MR. MURPHREE ‑ I am opposed to the motion of the gentleman.

The vote on verification showed 51 ayes and 35 noes, and the amendment was declared adopted.

THE PRESIDENT ‑ The gentleman from Pike moves to strike out 11 and insert 10 o'clock.

MR. HEFLIN (Chambers) ‑ I move to lay that upon the table.

Upon a vote being taken there were 28 ayes and 49 noes, and the amendment was lost.


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OFFICIAL PROCEEDINGS

THE PRESIDENT ‑ The motion recurs upon the resolution as amended. The amendment of the gentleman from Pike is lost. The question recurs upon the resolution as amended by the gentleman from Limestone.

The resolution as amended was adopted.

MR. JONES (Montgomery) ‑ I have a resolution.

The Secretary read the resolution as follows:

Resolution No. 261, by Mr. Jones of Montgomery:

Resolved, That the Secretary of this Convention procure a copy of the opinion of the Attorney General as to the right of this Convention to appropriate pay for its members beyond the time fixed in the enabling act, and to have the same printed in the stenographic report.

MR. JONES ‑ I move the suspension of the rules. I think it is important–

THE PRESIDENT ‑ The question is not debatable.  The gentleman will state the motion.

MR. JONES ‑ I move to suspend the rules for a consideration of the resolution.

THE  PRESIDENT ‑ It is moved to suspend the rules to place the resolution upon its immediate passage.

A vote being taken there were 58 ayes and 21 noes, and the rules were suspended.

MR. JONES (Montgomery) ‑ Mr. President, my only object in doing that is that I think it is due to the Convention that the opinion of the Attorney General should be printed. Now, some of us were of different opinions, and it may be that the opinion of the Attorney General may convince members and the public, and I think at all events it ought to be a part of the record of this Convention.

A vote being taken the resolution was adopted.

Montgomery, Ala., July 18th, 1901

Hon. Thos. L. Sowell, Auditor.

At Office:

My Dear Sir ‑ I have considered the questions propounded by you for my official opinion in the following communication:

"Hon. Charles G. Brown, Attorney ‑ General, etc., Montgomery, Ala.:

"Dear Sir ‑ It is apparent that the Constitutional Convention, now in session, will not be able to complete its labors within fifty days. Section 9 of


2553

CONSTITUTIONAL CONVENTION, 1901

an Act entitled ‘An Act to provide for holding a Convention to revise and amend the Constitution of this State, approved Dec. 11th, 1900 provides that per diem compensation shall not be allowed or paid to any member of the Convention for a longer time than fifty days.’  In case the Convention does hold on in session for a longer time than fifty days, shall I be governed by the mandate of said Act?  Or in case the Convention should adopt an ordinance or pass a resolution appropriating money out of the Treasury to cover the extended time, or should order warrants to be drawn to cover the per diem for this extended tine, what will be the duty of the Auditor? In your opinion, has the Convention the power to appropriate money out of the Treasury to pay themselves for per diem beyond the limits prescribed in the above mentioned Act?

“Very respectfully,

“T. L. Sowell,

“Auditor.”

A categorical reply by single yea, or nay, answers to the several questions in the order propounded, would not be proper under the circumstances, as the importance of the inquiry presented and the fact that an official opinion from this office is for your guidance only which, if followed, would protect you in your official action thereon; yet if it does not meet with your approval, you can, and should, act according to the dictates, of your judgment and disregard the opinion of the Attorney ‑ General ‑ renders it highly proper that I should state the reasons for the opinion submitted for your consideration. A correct solution of this, to the, intricate problem demands a consideration of the legal and political concept of a Constitutional Convention, its office and powers, its relation to the whole people of the State and the proper boundaries between the office and powers of the Convention and those of the General Assembly of the State as the depository of the legislative power of the State government on matters or subjects, of general and ordinary legislation, except as limited by provisions of the fundamental law of the State.

I do not deem it necessary to even epitomize the history and development of the law of Constitutional Conventions, or to note the distinction between what are termed, by Mr. Jameson, Revolutionary Conventions and Constitutional Conventions, and shall content myself with only saying that I cannot concur with this learned, but partisan, writer in many of his definitions and conclusions on this subject.  As the very threshold of this investigation, we are confronted with the consideration of the question as to the legitimate office and relation of the General Assembly of Alabama towards a Constitutional convention, and whether, or no, it can lawfully define and limit the powers of a Constitutional Convention and restrict their exercise as to time, mode and method. It is contended by Mr. Jameson in his work on Constitutional Conventions that the legislative department of a State can thus define and limit the powers of a Constitutional Convention. I shall endeavor to show that many of his postulates are incorrect and the authorities relied upon by him are not applicable to the Constitution and form


2554

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of government of the State of Alabama. It its last analysis, he holds that the authority and commission of the delegates of a Constitutional Convention and the powers of a Convention are derived from the Act of the Legislature in what is commonly termed (but improperly so, as applied to the Constitution of this State), the "Enabling Act" to provide for the holding of a Constitutional Convention. The decisions relied upon by this author and Mr. Ordronaux were rendered upon Constitution, defferent from our Constitution on the matter of the revision and alteration and amendments of Constitutions; in some of which there were no provisions as to such revision, alteration and amendment, either by the proposal of amendments by the Legislature, or providing for a call of a Convention, and others contained simply provisions for amendments by proposals originating in the Legislature and still others with provision for proposals of amendments and with a provision empowering the Legislature to submit to the people the question of the expediency of holding a Convention and then empowering the Legislature, if a majority of the qualified electors voted in the affirmative, to call a Convention and for such purposes and in such manner and under such regulations as deemed best and expedient. In these States, except the State of Rhode Island, the power to call a Convention was referred to the general legislative powers of the Legislative department of the State and a submission of the question of the expediency of a Convention was left to the discretion and will of the same department, and the vote of the people was considered as advisory merely ‑ simply addressing itself as a moral or political inducement for the Legislature to grant the expressed desire of the people. In Rhode Island it was held by the court of last resort that as the Constitution specifically provided that amendments should be made by proposals originating in the Legislature, a convention could not be held to form a new Constitution, or revise, amend, or alter the existing Constitution. In Massachusetts it was doubted under the Constitution of 1820, which provided only for proposals of specific amendments by the Legislature, whether the Legislature could take any steps towards submitting to the people the expediency of holding a Convention for the adoption of specific amendments.

It is necessary to call attention to the provisions of the present Constitution of Alabama on this subject, contained in Article XVII.

“Section 1. The General Assembly may whenever two ‑ thirds of each House shall deem it necessary, propose amendments to this Constitution *** for the consideration of the people; and it shall be the duty of the several returning officers at the next general election, which shall be held for Representatives, to open a poll for the vote of the qualified electors of the State on the proposed amendments * * * ; and if it shall thereupon appear that a majority of all the qualified electors of the State who voted at said election, voted in favor of the proposed amendments, said amendments shall be valid to all intents and purposes as parts of this Constitution. * * * .”

Sec. 2. “No Convention shall hereafter be held for the purpose of altering or amending the Constitution of this State, unless the question of Convention or no Convention shall be first submitted to a vote of all the electors of the State, and approved by a majority of those voting at said election.”


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CONSTITUTIONAL CONVENTION, 1901

There was a provision substantially as Section 1 in the several preceding Constitutions of the State; but in the Constitution of 1819 there was no provision for a call of a Convention. The Constitutions of 1865 and 1868 contained a provision, differing slightly in immaterial particulars, substantially similar to Section 2 of the present Constitution of 1875; but the Constitution of 1861, adopted at what is commonly known as the Secession Convention, was totally dissimilar and antagonistic in its provisions defining the office and authority of the General Assembly with respect to a Convention, to those of the Constitutions of 1865, 1868 and 1875.  The provision in the Constitution of 1861 is as follows: “Provided further, that a Convention of the people of the State may be called by a vote of two-thirds of each branch of the General Assembly under such rules and regulations as the legislature may prescribe to amend the Constitution, or for any other purpose.”  Who can doubt in the light of history that the powers of the legislature under the Constitution of 1861 were most materially restricted and limited and even prohibited by the Constitution of 1865, 1868 and 1875 formed after the close of the “war between the States.”  Who can question the doctrine under the Constitutions of 1865, 1868 and 1875, that the delegates to a Constitutional Convention derive their authority and commission and powers from the sovereign people of the State and not from the legislature, or from any improperly so called “Enabling Act” of the legislature?  Can a department of the State government not vested with the authority to confer a power, but positively prohibited from exercising such power, and which authority is expressly and solely vested in the people, limit the power of the “highest legislative assembly recognized by law,” in a “representative Democratic form” of government directly called into existence by that body in whom the ultimate sovereignty resides?  Goodrich vs. Moore, 2 Minnesota, p. 61.  It would be an unnecessary consumption of time to comment on and critically examine the several decisions of the courts relied upon to sustain the contrary contention of Mr. Jameson and other like new “doctrinaries,” as a consideration of most of them will demonstrate that the question involved was not presented, or decided, and that no legitimate conclusion can be drawn therefrom antagonistic to the doctrine contented for in this opinion.  The opinion delivered by Chief Justice Agnew in the case of Wells vs. Baine, 75 Penn. pp. 39-58, is the leading and strongest presentation of this doctrine of legislative power, and upon which the greatest stress is laid by the advocates for this power of the legislature.  The facts of that case essential to the comprehension of the question before the Court were that the legislature of Pennsylvania on June 2, 1871, passed an act to submit to a popular vote the question of calling a Convention by the legislature to amend the Constitution without any special warrant in the existing Constitution of that State, and which contained no provision for amending the Constitution, save by the action of the legislature followed by a ratification of the people, and this action of the legislature in submitting the question of the calling of a Convention was referred to and based upon its general legislative powers; so that the question, as stated in the opinion of the Court on page 30, passed upon by the vote of the people, was only that of the expediency of a call to be subsequently made by the legislature; and if the

 


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question was answered in the affirmative, in the language of the Court, the people simply replied "you (the legislature) may call a Convention. This was all the vote expressed." In April, 1872, the legislature passed an act to provide for the calling of a Convention and among other things provided that the Convention submit the amendments agreed to by it to the qualified voters of the State for their adoption or rejection; and further enacted that such election should be conducted by the officers and in the manner general elections are held in the Commonwealth. The Convention passed an ordinance that the election should be held in the city of Philadelphia by certain persons therein called commissioners, other than those required by law to hold general elections, and giving to the commissioners somewhat fuller and different powers. Two bills in equity were filed against these commissioners of election ‑ one by Wells and other citizens and voters of Philadelphia, and the other by one of the inspectors of election under the general laws of the State governing general elections, averring the invalidity of the ordinance and praying an injunction against the commissioners restraining them from holding said election. The Chief Justice, in his opinion construing the purpose of the act of the legislature in submitting the question of calling a Convention to a vote of the people on pp. 50 and 51, uses the following language: "The present inquiry is not how much power may be conferred by law, but what power was conferred on this Convention. A law must be passed according to the forms of the Constitution. One of these is that no bill shall contain but one subject, which shall be clearly expressed in its title. The title of the act of June 2, 1871, is ‘An Act, To authorize a popular vote upon the question of calling a Convention to amend the Constitution of Pennsylvania.’ The text of the act is: ‘That the question of calling a Convention to amend the Constitution of the Commonwealth be submitted to a vote of the people at the general election to be held, etc. The one subject of both title and text is the question of calling a Convention. That question was authorized to be submitted to a popular vote. In that election each elector expressed his individual opinion on that question and that alone by voting ‘for a convention,’ or ‘against a Convention.’ This question was answered in the affirmation by a majority of votes, and the people answering the legislature said: ‘You may call a Convention.’  This was all the vote expressed. Each vote expressing the opinion of the elector on that question, the majority expressed no more. Thus an analysis of the act, both in title and in text demonstrates that the vote was not a delegation of power except to the legislature. The result of that vote was that the legislature might call a Convention. It was not in itself a call nor did it declare when and how or on what terms the call should be made. That, the very answer to the question necessarily left to the legislature which asked their judgment on the propriety of the call. It was not even a mandate, further than the moral force contained in an expressed desire of the people. It is very evident had the matter dropped there and the legislature had made no call, no Convention and no terms would ever have existed.”

The “italics” are those shown in the published opinion of the Court. Right here it is proper to be observed that a submission by the legislature


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of a call for a Convention, or the proposal of specific amendments by the legislature, to a vote of the people, is not an act of general, or ordinary, legislation, and the forms prescribed in the Constitution for the enactment of a statute by the Legislature need not be complied with, and the contrary doctrine has been nearly universally repudiated by the courts of highest repute, including that of the Supreme Court of Pennsylvania.

6 Am. and Enc. Ency. of Law, p. 906 and notes; Commonwealth vs. ex rel Elkin vs. Griest (Penn.) 50 L. R. A. page 574 and authorities therein cited; State ex rel Morris vs. Mason (La.) 9 so. Rep., p. 776.

It is, therefore, manifest that this construction of the Pennsylvania Act of 1871 by the Court was the major and minor premises ‑ the foundation stones on which rested the reasoning, conclusion and decision of the court that the Legislature, and not the people, was the source of the authority and commission of the Convention and that the definition, extent and limit and scope of it; powers and the manner, method and regulation of their exercise must be found alone in the subsequent act calling the Convention. This is further shown by similar expressions used by the same Chief Justice in the analagous case of Wood's appeal in same volume of Pennsylvania Reports p. 71. This is also clearly demonstrated by Mr. Jameson in approving the construction and reaching the conclusion expressed by him in the following quotation from his work “that in all cases when a Convention act is submitted to the people it is the mere question of expediency that is passed on by the people. An affirmative vote declares it to be expedient and a negative vote declares it to be inexpedient for the Legislature to call such Convention; a declaration which has neither the effect or form of law. The language of law is “flat,”  be it done, that such a vote of the people is “Videtur,” it seems good‑“ desideradum est,” it is to be desired ‑ a mere expression of a wish, not the uttering of a command.” And in a subsequent section he emphasizes this view and follows the language quoted from Wells vs. Baine supra, to the effect that such vote of the people has no binding force on the Legislature and that body has still the power and authority at its will and pleasure to call, or not to call a Convention, and if called the Legislature has the sole sovereign power in the act calling the Convention, or in a subsequent act passed before the assembling of the Convention, to define, fix and regulate the powers and purposes of the Convention and the mode, method and time of their exercise by the Convention. It therefore appears to me that it would be the height of illogical juristic reasoning to assert that such a construction could possibly be placed on the provision of our Constitution expressly prohibiting the General Assembly from calling a Convention and directly conferring on the people alone the authority to declare peremptorily by a majority vote that the ‘Convention shall be held.” That such a construction cannot be given to the provision of the Constitution of the State of Alabama is the keystone of the arch of this argument mainly supporting the correctness of this opinion and must be my excuse for invoking its further consideration by you. The power to propose amendments by the Legislature as prescribed by the Constitution, or the power to submit to the vote of the people for their sole and sovereign determination that


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a Convention shall be held, does not confer the power to break it either in the act proposing the amendment or in the act submitting the question of Convention to the people any more than to legislate on any subject contrary to its provisions.

State vs. Swift vs. Swift 69 Ind. p. 518 ‑ 19.

Now let us consider the part which under our present Constitution the General Assembly may act in amending the Constitution. It is evident that its part is restricted to the proposal of amendments in the form and manner prescribed by Section 1 of the Constitution. This provision must be strictly construed and if the form and order in which the proposal of amendments is disregarded by the Legislature it is approved doctrine that the proposed amendment will be invalid, null and void. A strict observance of every substantial requirement in this special grant by the Constitution is enjoyed.

Collier vs. Frierson 24 Ala., p. 100; Koehler vs. Hill 60 Iowa, p.: 543; Oakland Paving Co., vs. Hilton 69 Cal., p. 479.

It is useless to multiply citations to this effect as this is the accepted doctrine. Now if the General Assembly is restricted by this special grant of power to the specific mode, form and manner of proposing amendments, it necessarily follows that all other methods, form and manner, either directly or indirectly, are prohibited to the General Assembly as a matter of right and power in such body. In other words the power and authority to propose specific amendments, being restricted and limited in the special grant to the specified way, the General Assembly cannot directly, or indirectly say, as a matter of power and authority, what a Constitutional Convention, receiving its commission and authority and power from the vote of a majority of the sovereign people, shall or shall not place into the fundamental law of the State. The Constitution thus expressly prohibits the exercise of any such power and authority by the General Assembly. Its only function as to amendments, or revision, of the Constitution is limited to the initiative of proposals of specific amendments as prescribed in the Constitution, and the initiative of a proposal to be submitted to the people for a Convention to be field ‑ not to be called by the General Assembly ‑ to revise and amend, or alter, the whole Constitution. Therefore, every other function is expressly, or impliedly, prohibited by the Constitution. An implied prohibition is as effectual as an express one.

14 R. I. page 654; Taylor vs. Place, 4 R L. p. 324.

The Constitution thus limiting the power of the General Assembly to the proposal of specific amendments and which proposals must be passed in a particular way before submission to the people, if the General Assembly can dictate to the Constitutional Convention what amendments shall, or shall not be made, then it follows that the General Assembly would indirectly be clothed with the power to enact amendments, such a construction in its last analysis would empower the Legislature to do that which the Constitution by the limitation on its power forbids it to do. It is a question of power and authority solely ‑ where is it lodged by our Constitution? There


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are limitations by the express provision of our Constitution and form of State government on the General Assembly ‑ restrictions direct and positive and are imposed in the only grant of power to the General Assembly. It is a special grant of restricted and limited power to be exercised according to and within the form and methods prescribed by the Constitution.  A special grant of particular and limited power cannot by construction be extended beyond the restrictions and limitations of the grant, and the grantee of such power cannot by indirection go beyond these limitations and restrictions, or evade these prohibitions. The power of the General Assembly to initiate any proposal of amendments to the Constitution is to be strictly construed and must be confined to the mode and manner and form prescribed in the special grant in the Constitution. The Legislature is not authorized, but is directly prohibited from assuming any of the powers of a Constitutional Convention, and cannot propose for the adoption by the people a revision of the whole Constitution in the form of amendments.

Livermere vs. Wait, 25 L. R. A., p. 315.

The power to revise and amend generally the whole Constitution is vested in the Convention which derives its whole power from the people. If the General Assembly cannot, under the form of law, thus assume the powers of the Convention, much less can it command in advance what revision, or amendment, or alteration, shall or shall not be made in the Constitution by the Convention in which alone this sovereign power is vested. Would not such doctrine be in effect to vest in the General Assembly, may be indirectly and negatively, but nevertheless in substance, the power to control the people, to dictate to them and to the Convention, what amendments, alterations and revisions shall, or shall not, be considered and placed in the Constitution. Would it not arm the General Assembly with the power in advance by the act for submitting a mere proposal to the people that a Convention shall be held to revise and amend the whole Constitution, to perpetuate provisions obnoxious to the people? Could it have been the intention of the framers of the Constitution of 1875 to arm the General Assembly with the paramount power of restricting a Convention called by the people to those alterations and amendments only which the General Assembly deemed proper or desired, and thus hampering, binding and fettering in advance the only body which can place restrictions on its power? The very Act itself forbids such a construction. Section 1 plainly and unmistakably speaks its purpose and scope, namely: “That on Tuesday, the 23rd day of April, 1901, an election shall be held for the purpose of determining whether, or not a Convention shall be held to revise and amend the Constitution of this State, and the question of Convention, or no Convention, shall be submitted to the vote of the, qualified electors of this State, and if a majority of the voters, voting at said election, shall approve the holding of a Convention for the purposes stated, the Convention shall be held as hereinafter provided.”  And Section 7 is in the following language: “Said 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.”


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Can it be contended with any show of reason, or authority, that the power to revise and amend the Constitution was not to be lodged by the people, but lodged by the Legislature, in the Convention according to the express provisions of the Constitution and of this Act? It cannot be contended that by the clause "as hereinafter provided" that the General Assembly had the authority to dictate to a Convention with such broad powers vested by the Constitution in the people and their Convention, what provisions (as the General Assembly seemingly attempted to do), should, or should not, be placed in the Constitution by the commissioned representatives of the sovereign people in the exercise of their delegated and paramount powers to revise and amend the fundamental law of the State. The expression "as hereinafter provided" cannot exceed the power vested in the General Assembly under the limitations of the Constitution, namely: To prescribe the qualification and mode of selecting the delegates and fixing the time and place for the assembling of the Convention, and such other incidents within the limitation on its powers prescribed in the Constitution in its special grant and in harmony with the expressed purpose and power of the Convention and in aid of the sovereignty of the people. Any other commands, provisions and limitations, restrictions and penalties, direct or indirect, not thus in harmony or in aid of the purpose and powers of the Convention are void. This is different question from that of submitting back to the people for their approval, or disapproval, the revision and amendments of the Constitution ‑ the appointed work of their delegate ‑ for this is not in opposition to their inherent and sovereign rights, and is in harmony with a wise policy conservative of the privilege of the sovereign people to finally supervise the work of their representatives and delegates and approve, or disapprove, the same. In the other cases, the General Assembly proposed to limit the powers of the sovereign people and dictate in advance what a Convention called by the people and receiving its authority solely from them shall do and restrict the exercise of power over which it has no control. The one is in aid of, and in consonance with, the power; the other is antagonistic thereto and subversive thereof. The one may he valid, the other must be invalid ‑ that in aid of and in consonance and harmony with the sovereign power and its full and free exercise can stand the other must fall. If the General Assembly has the vested right to limit the time of the Convention to fifty years, it can restrict it to ten days, or one day; if it has the vested right to provide for per diem compensation for fifty days, it can provide for only one day, or for no compensation. It is admitted by the very able lawyers holding a contrary view, that if the General Assembly had made no provision for the payment of any compensation to the members and officers, clerks, or for stationery printing, and all other things proper and necessary to enable the Convention to perform freely and according to its own best judgment and discretion the duties imposed upon it, that the Convention would have the power and authority to fix the compensation of the members of the treasury of the State. This is, therefore, an admission of the inherent power of the Convention to do so; and then can it be contended that the full exercise of this power by the Convention is forbidden, controlled and abrogated by a clause in this Legislative Act provid‑


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ing compensation for part oily of the time?  Is it not the correct doctrine and construction that the section fixing the per diem compensation of the members, being in harmony and consonance with the purpose and power of the Convention and the sovereignty, of the people, should be held valid, and that the proviso thereto in the nature of a covert penalty, forbidding compensation for a longer time than fifty days, must be held invalid and void as being antagonistic to the power of the Convention and not in aid, but in antagonism to the sovereignty of the people. The people, and they alone, could, by their vote, peremptorily command that a Convention shall be held for the purpose of revising and amending the whole Constitution, and they alone elected and commissioned their delegates and vested them only with full power to do their work, and in the language of Section 7 of said Act, “To continue in session until they shall, by careful revision and amendment of the Present Constitution frame and adopt a revised Constitution for the State.”

This was the purpose of the Convention, and this was the power and authority vested by the sovereign people in the members of the Convention. Where a general power is conferred, or a duty enjoyed, every particular power proper and necessary for the full and free exercise of the one, or the careful performance of the other, is also conferred, and when a general power is possessed by a convention to perform a duty, it possesses, by implication every special power conducive to the proper performance of the duty enjoined, and the sole measure of the power is the extent and scope of the purpose to be accomplished – so it unmistakably follows that there was implied in this full, plenary and general authority, the particular power to pass any ordinance or resolution, proper and necessary to the full, free and "careful" exercise of the authority and to the faithful discharge of the duty. This power to do everything proper and necessary, fairly within the scope of the purpose of the Convention, so as to make the power effectual and to accomplish the purpose, is absolutely conferred by implication, and any restriction upon this implied power is as completely void as a restriction on the granted power, and any restriction and limitation antagonistic to the accomplishment of the duty imposed by the General Assembly must necessarily be invalid, void and of no effect. Every restriction and limitation and provision imposed by the General Assembly antagonistic to this right of the people to have their delegates freely and fully and carefully and deliberately perform their duty untrammeled and unhampered, and finish their work of "careful revision of the present Constitution, and of framing and adopting a revised Constitution for the State, must be held null and void as in excess of the power and authority of the General Assembly of Alabama. It therefore follows that the regulation so far as it provides for the per diem compensation of the members is valid, but the proviso thereto "that per diem compensation shall not be allowed or paid to any member of the Convention for a longer time than fifty days" must be held void and thus leaving in force the other provision for compensation for the whole time the Convention is in session.

It is, however, insisted that the Convention cannot provide for the payment out of the Treasury of this per diem compensation, because such pro‑


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vision would be in contravention of Section 33, Article IV (Legislative Department) of the Constitution of this State,  to wit : “That 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 it is contended that this means that it must be by statute enacted by the General Assembly of Alabama ‑ that a bill must be introduced in the General Assembly and passed in compliance with the requirement of the Constitution for the passage of an act of the General Assembly and must be approved by the Governor, and that as the Convention is but one body, and cannot comply with these requirements of the Constitution, it has no powers of legislation. I have been unable to find any direct adjudication by the courts on this question, but have found some dicta in opinions which, arguendo, tend to sustain this contention; and Mr. Jameson fails to cite any such direct adjudication of the courts to this effect.  He does, however, give the three opinions respectively of the Attorney ‑ Generals of Georgia, New York and Pennsylvania against the power of the Convention to appropriate money out of the treasury to payment of compensation to members of convention and clerks et al., and for printing, and for stenographic reports.

These States had provisos in their Constitutions similar to said Section 33 of Article IV of the Constitution of Alabama : but the Constitution of all these States in force at the time of the rendition of these opinions did not contain  the same provisions as to amendments of the Constitution by Conventions as those of this State: and their arguments were based on the assumption that such appropriation was vested solely in the Legislative Department, and that a statute must be passed according to the form prescribed by the Constitution and that the legislature had the authority under these Constitutions to restrict the exercise of the powers of the Convention. It is not a full and correct statement of the law to say that a Constitutional Convenion possesses no legislative power?  In the language of the decision of Goodrich vs. Moore, 2 Minnesota, p. 61, "A Constitutional Convention is the highest legislative assembly recognized by law, and has full control of its proceedings and may provide in any manner it sees fit for the perpetuation of the record of its proceedings.”  “A constitution which fixes and defines a right may exercise legislative power in providing the means for its enforcement.”

Schirley vs. First National Bank, 47 Ill. Ap., 124.

A Constitutional Convention exercises the highest legislative powers for it enacts, ordains and declares the fundamental law of the State; and the precedents conclusively show that such conventions have time and again exercised legislative powers in the enactment of ordinances, resolutions and schedules to provide for and against temporary contingencies and to meet the changed conditions necessitated by revisions. amendments and alterations in the existing Constitution, and of the necessity the Convention is the best judge and to its judgment and discretion it trust ex necessitate be left. From the very necessity of the case and the tincertaintv of the fact that existing laws can meet every contingency, or answer every condition and demand, a Constitutional Convention must have the power to enact laws required by


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the duty imposed on it and to enable it to discharge the trust reposed and to provide for the very changes made in the fundamental law. The Constitution of 1875 passed a law and placed same in the schedule, changing the provision of the act providing for the call of the Convention by repealing in part and amending Section 12 of said act as to certain proclamations required to be made by the Governor and the publication of the copy of said Constitution which, by his proclamation was to be submitted to the people for ratification. The Constitution does not say that in pursuance of a statute, or a law, but "in pursuance of law," and when the Convention ordains or declares that anything shall be done within its power then this is a law, and any act directed to be performed thereunder is in pursuance of law.

It is held, and it is admitted by the learned lawyers differing with me in this opinion, that when a Constitution declares the amount to be paid an officer, such declaration constitutes an appropriation made by law, and no subsequent act was necessary to its payment out of the treasury.

6 Am. & Eng. Ency. of Law (2d Ed.), p 914 and note 7; State vs. Weston, 4 Nebraska, p. 216; Thomas vs. Owen, 4 Maryland, p. 189.

This settles the fact and law that the Convention has the vested power to make appropriations and that appropriations made by it is in pursuance of law, and the form and place ‑ whether in the Constitution or in an ordinance, or in a resolution or declaration, must depend upon its characterwhether fundamental, or permanent, or temporary, and upon custom and precedent and the rules of procedure adopted by the Convention.

A resolution of this Convention requiring the Constitution to submitted to a vote of the people need not be placed in the Constitution, or the schedule thereof, and is a binding law, and it certainly is not required that this resolution should be submitted to the people for ratification. But it is insisted that such an ordinance must, under this resolution be submitted to the people for ratification before it can become a law and that such an appropriation would not be "in pursuance of law, until ratified by the people. The inherent power to enact a law, in the first instance is not dependent on a subsequent ratification.

There is one case holding that when the Constitution must be ratified by the people an ordinance to be valid must be submitted to the people and ratified by them.

89 Texas, p. 376.

This is contrary to precedent and custom and, I think, is unsustained by reason and authority. It is the custom to submit only the Constitution for ratification, and it is the generally accepted doctrine that a ratification of the Constitution is a ratification of all ordinances, and that this is required to validate only ordinances of a permanent and lasting character. This is not necessary to render valid as law, ordinances passed to meet exigencies, or that are simply temporarily required to enable the Convention to discharge its full duty, and the duration of which temporary law will terminate with the final adjournment of the Convention. Assured an ordi‑


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nance providing for the ________________     of the publication, printing, stationery, stepographic report and payment for the same, and of the per diem compensation of members of the Convention is a valid enactment of a temporary nature, necessary to the existence of the Convention and to the enabling of the Convention to discharge carefully and faithfully its duties. It cannot be insisted that such an ordinance must be subsequently ratified by the people either on special submission or by ratification of the Constitution, after its vitality has been exhausted– its life departed– a dead law ‑ having expired with the final adjournment of the Convention.

In this connection I desire to call your attention to the able opinion of the court in the case of Commonwealth ex rel Elkin vs. Griest 50 L. R. A. supra, where the doctrine is maintained that as the provisions of the Constitution for revisions and amendments of the Constitution are in an article separate and distinct from that of “Legislative Department” that the provisions of the article under the head of “Legislative Department” are not extended, or referable to the article under the head of “Amendments of the Constitution;” and that the revision and amendment of the Constitution is a separate and independent work by a differently constituted body with higher and greater functions and powers and not governed or bound or limited by provisions of the article on “Legislative Department.”

It is insisted that it is a dangerous precedent to lodge in the Convention the power to pay its own members and employes. In Luther vs. Borden 7 Howard (LT. S.) h. 44, Chief Justice Taney says: “All  power is liable to be abused when placed in unworthy hands.”  It may be pertinently asked in what worthier hands, or rather in hands less liable to abuse it, could this power have been placed than those of the chosen and selected delegates and representatives of the people recently elected by them and subsequently to the time of election of members of the General Assembly and charged by them with the high, great and responsible duty of revising and amending the Constitution of their State. The people have placed on every member of the Convention the "imprimatur" of their trust and confidence in his worthiness. It should not be even insinuated that these delegates will betray this trust, or abuse this power by fixing their compensation beyond a fair, reasonable and just amount and contrary to precedent and custom regulating the rate of such compensation.

For the reasons given: It is my opinion  that on the passage of a proper ordinance by the Convention fixing a reasonable per ‑ diem compensation of the members of the Convention for tile tinge in excess of the fifty ‑ days made payable out of the treasury, on proper certificates of the President and Secretary of the Convention to you as Auditor of the State, of the amounts owing and due the respective members as such per diem compensation, you can draw your warrant as Auditor on the treasury therefor, and payment should be made of the same out of the treasury as payments of the compensation to members of the General Assembly to be made.

Your attention is called to the following additional authorities in which the principles enunciated support this opinion:


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Sproule vs. Frederick 69 Miss., p. 898; Lomis vs. Jackson 6 W. Va., p. 708; State vs. Neal 42 Missouri, p. 123; Goodwin vs. Neal 45 Ga., p. 109; Maloney vs. Roberts, 32 Texas, p. 136; in re Senate File 25 Neb. p. 864; opinion of Judges of the Supreme Court of New York, Appendix "D," Jameson on Constitutional Conventions, p. 665.

The New York Judges say in this opinion that such attempted restriction on the power of the Convention may operate by way of advice or recommendation only, and not as law.

Permit me to say that I have come to this conclusion after careful examination, and with much hesitancy by reason of my first impression in favor of the correctness of the contrary view and the propound regard I have for the ability and learning of the eminent lawyers holding a different opinion.

Most respectfully,

Charles G. Brown,

Attorney General. Dictated.

MR. LONG (Walker) ‑ I have a resolution, and I shall ask a suspension of the rules, and I respectfully invite the attention of the delegates to the reading of the resolution.

THE PRESIDENT ‑ Delegates will please give attention to the reading of the resolution offered by Mr. Long (Walker.)

The Clerk read the resolution as follows:

Resolution No. 262 by Mr. Long (Walker.)

Whereas, from the action of this Constitutional Convention, it appears that any and all persons holding office of honor, trust or profit under the State of Alabama, are in the habit of accepting free passes from railroads, and are unduly influenced and corrupted thereby,

And whereas, the members of this Convention, are holding their office as such member under this State, and may, by reason thereof, be liable to be influenced or corrupted by accepting free passes for themselves, friends and families, therefore.

Be it resolved, That the secretary of this Convention be and he is hereby ordered immediately upon the passage of this resolution to call the roll of the delegates of this Convention, and as his name is called, each member of this Convention shall rise in his seat and answer the following questions, which shall then and there in open session of this Convention be propounded to him by the secretary, the answers to which shall be recorded by the Secretary in the journal of this Convention, the questions to be as follows:


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First ‑ Have you a pass or passes now in your possession, or under your control, or at your command. If so, then over what railroad company's road?   What is the consideration for which said passes was issued?

Second ‑ Since you were elected to this Constitutional Convention, have you accepted a pass for yourself, or friend, or family or any member thereof, and if so, then state for whom and what was the consideration thereof?  Why was such a pass issued? What railroad company ‑ issued such pass or passes?

Third ‑ Has the issuance or acceptance of said pass or passes, influenced you directly or indirectly in any vote you have cast as a member of this Convention, or was it corrupted any of your actions during this Convention, or if not, would it corrupt the action of others, or influence their votes?

Resolved further, That immediately after the reply to the above question, each delegate as he completes his answer shall hand to the Secretary any and all passes now in his possession, whether trip or annual.  Such of said passes as on their face are shown to be issued to employee only shall be returned to the holder and all others shall be retained by the Secretary and placed among the archives of this Convention, and the journal shall show from whom the same was obtained and the substance thereof.

Resolved further. That all delegates who have accepted passes for themselves, family or friends, not employes, shall surrender to the Secretary of this Convention, who shall pay it into the State Treasury, enough of their mileage and per diem as shall be sufficient to cover the passes issued based on 3 cents per mile.

Resolved further, That as the Secretary interrogates each member under this resolution, he shall swear such member to tell the truth, the whole truth and nothing but the truth in answer to such of said questions as member of this Convention may  propound to him touching the acceptance in the past by him, for himself, friends or family of a free pass.

MR. LONG ‑ I move that the doors be closed, and that the resolution be put upon its passage immediately, and I move a suspension of the rules, and call for an aye and nay vote.

The call for the ayes and noes was not sustained.

THE PRESIDENT ‑ As many as favor the motion to suspend the rules will say aye and those opposed no. The noes have it. and the resolution will be referred to —

A division was called for.

MR. LONG ‑ I want a division, I want to see how many members are in favor of it.


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MR. HEFLIN (Chambers)– I rise to a point of order. The President had announced the result.

MR. LONG– I ask that it go to the Committee on Rules, and that they be requested to report it back here in some shape.

THE PRESIDENT– The resolution will be referred to the Committee on Corporations.

MR. MERRILL– I have an ordinance I desire to introduce.

The Secretary read the ordinance as follows:

Ordinace 428 by Mr. Merrill:

Be it ordained by the people of the State of Alabama in convention assembled.

That no railroad or other transportation company nor officer nor employee thereof shall grant free passes car sell tickets or passes at a discount other than as sold to the public generally to any member of the Legislature or to any person holding office under this State, and any railroad or other transportation company or officer or employe thereof who violate, the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined $500 one ‑ half of which fine shall go to the informer, and the other half to the county in which the conviction is had.

Referred to Committee on Corporations.

MR. SLOAN ‑ I have a petition which I desire to present to the Convention.

THE PRESIDENT ‑ Petitions under our rules are not read before the Convention unless the Convention directs. It will be referred to the proper committee.

MR. SLOAN ‑ I ask that the body of the petition be read.

The Convention gave its assent to the reading of the petition and it was read by the Clerk as follows:

Petition No.----  by Mr. Sloan.

To the Honorable Constitutional Convention, Montgomery, Alabama.

Dear Sirs :– We respectfully represent that whereas the Railroad Commission appointed by the Governor and paid by the railroads has proven an entire failure and whereas the shipper and consumer should have some representation in the naming of rates and making of rules by what is otherwise alien and arbitrary powers. That whereas the express,  telephone, telegraph and railroad franchises are given by the State. We therefore request your honorable body that you will give us a commission, elected and paid by


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the people and place all franchise, which have power to tax, within their review.

L. R. Smith, farmer, John Membourn, W. J . Beam, J. R. Covington, teacher; J. A. Jackson, W. J. Jackson, farmer; J. E. Bolden, farmer; J. B. Burnem, farmer; James Burton, farmer ; J. M. Lowry, farmer; John Morgan, farmer ; C. V. Burton, farmer ; John C. Morton, farmer ; F. A. Binter, farmer ; D. R. Cochran. farmer ; G. W. Daden, attorney ; W. S. Miller, farmer ; J. R. King. farmer ; G. E. Crawford, farmer;  J. C. King, farmer; M. R. McElvina, farmer; R. F. Trowell,  farmer; T. C. Whited. farmer, James Carnes, farmer; W. L. McCorkle, merchant ; W. M. Self, Superintendent Education ;T. G. Whaley, teacher; B. V. Todd, farmer, G. D. Jones, farmer: I. R. Sparks, farmer; G. S. Weston, farmer; B. C. Clements, farmer; D. A. Robertson, farmer; J. W. Snider, farmer; James Kent, farmer; T. J. Murray, farmer; R. M. Townby, famer; G. T. Read, farmer; J. T. Whitley, farmer; J. M. Hitt, farmer; J. D. Hod, farmer, J. H. Donehoo, merchant; Johnson Gunter, farmer; J. I. Collett, farmer; W. J. Norman, farmer; L. F. Wadsworth, farmer; J. W. Crawford, farmer; W. F. Wilmont, farmer; F. M. Armstrong, farmer; John B. Armstrong, farmer; Joe H. Ashley, famer; Sam Sanders, ex-Sheriff; W. C. Howell, farmer; T. J. Weston, farmer; W. J. Young, farmer; Ed Graves, Sheriff; J. H. Vann, minister, E. B. Roberts, hotel keeper; F. J. Duke, farmer, M. M. Bucker, farmer; S. W. Bolton, J. R. Hatchcock.

J. A. Gelner, farmer; J. N. Bolton, attorney; A. A. Griffith, attorney; E. R. Daughdrill, attorney; K. W. Daughdrill, mechanic; Geo. P. Dickinson, teacher; P. B. Bynum, clerk; J. F. Kelton, clerk court; Emory C. Hall, attorney-at-law; J. C. Bynum, mill man; P. E. Murphree, farmer; W. R. Bynum, farmer; O. P. Walker, miner; H. C. Barwich, miner; J. P. Tidwell, mill man; D. B. Wood, farmer; M. C. Murphree, postmaster; B. B. Cornelius, farmer; Alfred Iverson, farmer; J. M. Tyler, farmer; A. B. Dickson, farmer; W. W. Bain, farmer; E. H. Smith, blacksmith; J. E. Bynum, retired merchant; C. M. Brown, farmer; W. E. Secroy, farmer; William Gurley, farmer; Louis Gurley, farmer; C. C. Newson, farmer; S. A. Johnson, farmer; M. M. Jones, photographer; H. J. Mases, farmer; W. A. Hood, farmer; W. T. Kemp, city clerk; W. A. Taylor, teacher of public school; M. M. Gilbreath, farmer; L. T. Chitwood, farmer; T. B. Russell, attorney; R. Nation, tax collector; W. D. Samuel, barber; M. M. Owens, farmer; Peter Clements, farmer; J. M. Saddler, farmer; S. G. Clement, farmer; W. M. Newson, farmer; L. Adcock, farmer; L. H. Brown, probate clerk; E. C. Alldredge, sheriff; Thos. B. Deerer, county treasurer; J. B. Morris, farmer; W. L. Hendricks, minister; W. B. Tidwell, carpenter.

To the same petition were added these names:


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J. A. Brice, merchant; J. S. DeLucke & Co., merchants; C. C. Hullett, farmer; W. M. Morton, farmer; J. H. Gillie, farmer; Jno. Adams, farmer; E. S. Jones, farmer; W. B. Self, farmer; M. A. Walker, farmer ; Olive Walker, farmer ; J . T. Crumbley, farmer; Jo. F. Wilson, county solicitor, Blount County; G. D. Shelton, merchant; S. L. Tidwell, farmer ; A. J. Pulman, farmer.

Referred to Corporations Committee.

The next order of business was the call of the roll for reports of committees.

MR. SMITH (Mobile) ‑ I desire on behalf of the Committee on Rules to return two resolutions, in order that they may be referred to the Committee on Engrossment.

The Clerk read the resolution as follows:

Resolution No. 195, by Mr. Carmichael of Colbert:

Resolved, by the Convention that the Engrossing and Enrolling Clerk of the Convention be and the same is hereby authorized to employ such assistants as may be necessary to properly discharge the duties of that office. This resolution shall take effect on and after the 24th day of June.

The Clerk read resolution 199, as follows:

Resolution No. 199, by Mr. Howell:

Resolved, That whatever clerical assistance may be necessary to be employed by the Enrolling and Engrossing Clerk of this Convention, it be paid for at the rate of fifteen cents per hundred words for such assistant clerical work.

MR. SMITH (Mobile)– The Committee on Rules beg leave to report the following resolution.

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, 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. JONES ‑ I ask that that rule be printed and lie over until Monday, I cannot understand it, it was read so rapidly.


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MR. O’NEAL– At the request of the Chairman of the Committee, I presented that resolution on yesterday.

THE PRESIDENT– It is the recollection of the Chair that it is the identical resolution.

MR. SMITH– I was informed that he had not. I ask to withdraw the resolution.

THE PRESIDENT– The gentleman asks unanimous consent to withdraw the resolution. Is there objection?  The Chair hears none.

MR. LOMAX– I have an ordinance I desire to introduce.

The Clerk read the ordinance as follows:

Ordinance No. 429 by Mr. Lomax:

An ordinance to repeal Section 5 of the Article on Legislative Department as reported to and adopted by this Convention.

Be it ordained by the people of the State of Alabama in Convention assembled, that Section 5 of the ordinance reported by the Committee on Legislative Department, fixing the sessions of the legislature quadrennially be, and the same is hereby repealed.

Referred to Committee on Legislative Department.

MR. WILSON (Clarke)– The Committee on Military report the following article:

The Clerk read the report of the Committee as follows:

1. ‑ All able bodied, white male inhabitants of the State, between the ages of 18 years and 45 years, who are citizens of the United States, or have declared their intention to become such citizen, shall be liable to military duty in the militia of the State; and the General Assembly may provide for the organization from among such citizens of a State Naval Militia.

2. ‑ The General Assembly, in providing for the organization, equipment, and discipline of the militia, shall conform as nearly as practicable to the regulations for the government of the armies of the United States.

3. ‑ Each company and regiment elect its own company and regimental officers; but if any company or regiment shall neglect to elect such officers within the time prescribed by law they shall be appointed by the Governor.

4. ‑ Volunteer organizations of infantry , cavalry, and artillery may be formed in such manner, and under such restrictions, and with such privileges, as may be provided by law.


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5. ‑ The militia and volunteer forces shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at musters, parades and elections, and in going to and returning from the same.

6. ‑ The Governor shall, except as otherwise provided herein, be commander ‑ in ‑ chief of the militia and volunteer forces of the State, except when in service of the United States, and shall, with the advice and consent of the Senate, appoint all general officers whose term of office shall be for four years. The Governor, the generals, and regimental and battalion commanders shall appoint their own staff, as may be provided by law.

7. ‑ The General Assembly shall provide for the safe keeping of the arms, ammunition, and accoutrements, military records, banners and relics of the State.

8. ‑ The officers and men of the militia and volunteer forces shall not be entitled to, or receive any pay, rations or emoluments when not in active service.

THE PRESIDENT ‑ The ordinance reported by the Committee will lie upon the table and printed under the rule.

MR. CARMICHAEL (Colbert) ‑ I move that so much of the Journal as relates to the action of the Convention on the amendment offered by the gentleman from Dallas be read.

The motion was adopted.

The Clerk read from the Journal as follows:

“Mr. Burns offered the following amendment to Section 38:

“Amend Section 38 by adding after the word ‘reward’ in the third line, the words ‘free pass.’”

MR. GREER of Calhoun moved to table the amendment offered by Mr. Burns.

The motion prevailed and the amendment of Mr. Burns was laid upon the table.

Mr. Pillans made the point of order that before the vote was put to the Convention he was upon his feet demanding that a yea and nay vote be taken.

THE PRESIDENT (Mr. Harrison in the Chair) ‑ Stated to the gentleman from Mobile, Mr. Pillans, that he did not hear his demand owing to the confusion in the hall, but that he would ask unanimous consent of the Convention to order the yeas and nays taken upon the motion to table the amendment.

Thereupon Mr. Cofer made the point of order that the matter and substance contained in the amendment was res adjudicata,


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having been heretofore acted upon by the Convention, and that said amendment was therefore out of order.

The point of order was sustained.

Mr. Jones of Montgomery, appealed from the decision of the Chair.

On motion the Convention decided to remain in session until the pending question, the appeal from the decision of the Chair, was disposed of.

Mr. Greer of Calhoun raised the point of order that before the Convention could decide to remain in session, beyond the hour of adjournment, under the miles, the miles would have to be suspended.

The President (Mr. Harrison) overruled the point of order.

The question recurred upon the appeal from the decision of the Chair.

The question being shall the Chair be sustained, the Chair was not sustained, by the following vote, yeas 30, nays 61.

MR. LONG (Walker) ‑ In the stenographic report of yesterday on the resolution introduced by myself, the stenographic report reads as follows:

THE  PRESIDENT ‑ The question before the Convention is the consideration of the report on journal.

“MR. LONG ‑ Before that is made, I want a correction in the journal, as well as the stenographic report, and make a motion with reference to it.

“THE  PRESIDENT ‑ Does it relate to the part of the journal now read.

“MR. LONG ‑ Not that particular part.

“THE PRESIDENT ‑ The gentleman will proceed.

“MR. LONG ‑ The stenographic report on the resolution offered by myself said: ‘Mr. Long (Walker) ‑ I ask that the resolution be referred to Mr. White.’ I did not make any such statement. I asked that it be referred to the Committee on Preamble and Declaration of Rights.

THE PRESIDENT ‑ The official stenographer will make the correction.

MR. CARMICHAEL (Colbert) ‑ I move that the report of the Committee on Journal be adopted.

MR. JONES (Montgomery) ‑ I move to strike out that part of the minutes that show that the motion to table was adopted ‑ that


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part of the journal which shows that the motion to table the amendment offered by the gentleman from Dallas was adopted.  I want to say in support of that motion that there was a great deal of noise and confusion at the time the gentleman moved to table the proposition.  I am satisfied that the chair, the temporary President, at that time, thought that the matter was a joke on the part of the gentleman from Dallas, and was paying no attention to it, and he stated that the motion was tabled.  In the lightning rapidity with which he was going on at that time, without knowing what the facts were. The facts are members of this Convention were on their feet, demanding an aye and no vote, and the chair, inconsideately, thinking it amounted to nothing, said it was laid upon the table, but afterwards, on demand of Mr. Pillans, and by consent of the House, the ayes and noes were called on that after the motion was said to have been laid on the table, and the chair ruled on the point of order raised by the gentleman from Cullman that it was not germane and was res adjudicata. The chair ruled on that, that it was out of order, not on the ground that it was tabled, but on the ground already stated. I am satisfied from recollection, and I am further satisfied from what I have been informed, that the clerk made the entry, because the chair announced, in his rapid way, thinking the whole matter was a joke, that it was laid upon the table.  A great many of us know that this house was overwhelmingly opposed to that, and we were surprised to find that the amendment had been laid upon the table. That is the reason I move to strike out that part which shows it was laid upon the table.

MR . CARMICHAEL (Colbert)‑ I was present yesterday afternoon  when this matter was up and I desire to state the recollection I and the other members of the Journal Committee have as to what transpired at that time. Section 38 of the Legislative Department was under discussion. The member from Dallas prepared an amendment by which he proposed to insert "free passes" in this section. The amendment was sent to the Secretary's desk, the amendment was read, and the President presiding put the motion as to whether the amendment should be adopted or not.  The gentleman from Calhoun, Mr. Greer, at that time moved to table the amendment of the gentleman from Dallas, and on that motion the House voted. The President presiding decided that the amendment was tabled. I think members who are here will remember that this is what happened. At that time the gentleman from Mobile, Mr. Pillans, was insisting that he was on the floor calling for an aye and no vote, but the fact is that the President pro tem. of the Convention had decided that the amendment was tabled at that time. When the gentleman from Mobile was insisting that he had occupied the floor calling the ayes and noes, the President, in an effort to conciliate the Convention, asked unanimous consent that an aye and no vote be taken, but unanimous consent was never


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given, and the President never decided that unanimous consent was given to the taking of an aye and no vote. Thereupon, as the Journal shows, the gentleman from Cullman, Mr. Cofer, raised the point of order that it was res adjudicata, and the President decided in favor of the point of order, and upon that the gentleman from Montgomery took his appeal. In support of that, if you will look at the stenographic report, you will see that the stenographic report supports the report of the clerk of this House. I read from the stenographic report ‑ it is on the fourth page, the last column on the fourth page: “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.’” Now, the fact is, that the chairman never did recognize nor see Mr. Pillans, but he declared the motion to table carried. Mr. Pillans then said, “I call for the ayes and noes. The chair declared the motion to table carried.”

MR. JONES (Montgomery)– May I ask the gentleman a question?

MR. CARMICHAEL ‑ Certainly.

MR. JONES ‑ As I understand, the journal does not show that the temporary chairman, with the consent of the House, took an aye and no vote.

MR. CARMICHAEL ‑ No, sir, and the President never did.

MR. JONES ‑ I want to call the gentleman's attention to it. At the head of the first column on the fifth page: “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 gentleman be allowed to make the point he was about to make. There being no objection, the leave was given.” Then Mr. Pillans goes on to state that he was satisfied the Chair has not heard him, and some colloquy took place, but Mr. Pillans kept insisting that he had demanded the ayes and noes. While that question was pending and the journal does not state it correctly, Mr. Cofer says “I rise to a point of order, that this is not germane and it has been defeated by this House of different occasions, and has been settled. Then the President pro tem said: “The Chair rules the point of order is well taken.” It seems to me, Mr. President, that the Journal does not exactly describe what took place, when the President is put in the attitude of ruling a thing out of order which according to the Journal was on the table, when in the subsequent proceedings the consent of the House showed it was treated as a matter before the House. That is my objection to the Journal as it stands; it ought to be fuller about the tabling, or taken out altogether.

MR. CARMICHAEL ‑ The motion of the gentleman from Montgomery that that be stricken out ‑ I say that it is not within


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the power of the President of this Convention to strike out anything. A vote was taken on this amendment, the motion to table this amendment, the President of the Convention, whether rightly or not, declared that that motion prevailed, and that that amendment was tabled. Now I submit, Mr. President, that after that it was not within the power of the President of this Convention in his good humor or in his desire to conciliate this Convention, to abrogate that action of the Convention, and I submit that the President of this Convention never did submit the question to the Convention as to whether there was unanimous consent that this vote be taken by ayes and noes. Now, the motion of the gentleman from Montgomery is to strike out the action of this Convention. This could not be done except upon a motion to reconsider, and the President of this Convention, even if he undertook to do so, could not abrogate the action of this Convention.

MR. DENT– I would like to ask a question.

MR. CARMICHAEL– Yes.

MR. DENT– What becomes of this part of the stenographic report that actually took place ‑ it being next over the to the last column, before you strike the blank page: “President pro temThat is the recollection of the present occupant of the Chair, and the Chair will state further that so far as the demand of the 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. CARMICHAEL ‑ I will say that that was interpolated by the stenographer and was not correct.

MR. PILLANS ‑ I think he is wrong there. May I ask at whose instance it was interpolated?

MR. CARMICHAEL ‑ It was not interpolated at the instance of any delegate, and I did not say that, but the stenographer put that down in his notes, not as a matter that occurred, but simply wrote that in his notes. There was some confusion and the President never did ask this Convention whether there was unanimous consent that the vote be taken by ayes and noes. I would have objected.

MR. ASHCRAFT ‑ May I interrupt the gentleman for the purpose of asking a question?

MR. CARMICHAEL ‑ Yes sir.

MR. ASHCRAFT ‑ Look next to the last column, you will see I rose to a point of order, and stated that when the President put


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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 from 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 adjudicata, having been passed upon at a previous hour. The Chair sustained the point of order made by the gentleman from Montgomery appealed from the decision of the Chair. The President pro tem said: "That is the Chair’s recollection of it."

MR. CARMICHAEL ‑ Yes, sir.

MR. ASHCRAFT ‑ Don't that confirm that part that the gentleman from Mobile calls your attention to?

MR. CARMICHAEL ‑ No, sir; what I submit is this, that the President of this Convention never did submit the question to this Convention as to whether there was unanimous consent. Now, after he had declared that the amendment was laid upon the table, the President then presiding said that he would like to remedy the wrong if any was done, in substance that he had not seen the gentleman from Mobile, and that he would like unanimous consent to be given, but he never did ask is there unanimous consent? Shall the vote be put by ayes and noes, is there objection? I submit that no man will insist that that motion was put in that manner. There are those here who would have objected to such a proposition. I wish to read further on, next to the last column in the last line. The Chair goes on to say: “The Chair did not hear him ‑ having reference to the gentleman from Mobile. 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 take the point he was about to make.”  “There being no objection ‑ these are the words of the stenographer, but the Chairman never stated that ‑ there was no adjudication on the part of the President of the Convention that there was no objection, and that unanimous consent was given.

MR. HARRISON ‑ Was there not at the time, half a dozen or more on the floor?

MR. CARMICHAEL ‑ There were a dozen on the floor.

MR. PILLANS ‑ I think perhaps you will recollect with me that the unanimous consent occurred in this wise. I was insisting upon the ayes and noes, and my insistence was not heard among the confusion, beyond a doubt by the acting Presidentstated there was an objection by the gentleman from Calhoun that I could not be heard from because I was not in my seat?

MR. CARMICHAEL ‑ Yes, sir.


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MR. PILLANS ‑ Then didn't the acting President say in the interest of fairness, with a desire to be fair ‑ I don't know about the stenographic report ‑ but substantially he would put the question to the Convention whether they would give unanimous consent for the gentleman from Mobile to insist upon the call from the seat that he was then occupying, and was not that the matter of unanimous consent spoken of here now and perhaps in the stenographic report.  Wasn't it then the unanimous consent was given! There was no objection and the acting President declared that there was unanimous consent that I should be heard from, or the gentleman from Mobile be heard from the seat I was then occupying?

MR. CARMICHAEL– That is true.

MR. PILLANS – Then didn't the acting President announce that he would put the questions upon the ayes and noes, and just then there was an interruption from the gentleman from Calhoun with his point of order. Is not that the fact?

MR .CARMICHAEL– The facts are stated in the journal as they occurred.  As to unanimous consent being given to make a point from where he was sitting is correct, but the point I make is this, that the amendment was tabled in fact by this House and so declared by the President, and that could not be abrogated except by reconsideration.  The further fact is, and I insist upon this, that the President of this Convention never did submit the question as to whether there should be a vote taken by ayes and noes for unanimous consent of this house, and this house never did give unanimous consent for the passage of that amendment by ayes and noes.  Now, I shall read from the stenographic report on the last page: “If the Chair had heard the gentleman (that is, the gentleman from Mobile) 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.” The stenographic report says: “There being no objection , the leave was given,” but there was no adjudication by the President of this Convention.

MR. PILLANS ‑ I respectfully say that I knew the Chair did not hear me’ ‑ that he knew that he did not hear him, but the instant the question was stated and he called for the ayes and noes, the President pro tem asked. “Upon what question”  Does that show that we had given permission, that the matter was adjudicated? He said he would have to put the question over again-that was a statement made by the President at that time. Further on, “Mr. Pillans ‑ And I immediately demanded the ayes and noes upon that question.” He does not deny that the amendment was tabled. Now, the President says: “In order that no injustice may be done, the Chair asks that the call for the ayes and noes be


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put.” Now hadn't it been adjudicated at that time? Why does he ask that? I will read further: “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.” Mr. Reese says, Mr. Pillans never had been on the floor insisted that he had never occupied the floor for any purpose, he said Mr. Burns from Dallas had occupied the floor all the time. Then the report goes on down: “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.”  Right there Mr. Cofer said: "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." Then the President pro tem. said: “The Chair rules the point of order is well taken.

MR. JONES ‑ Could the Chair have ruled a thing out of order that was on the table if he had not considered the proceedings as tantamount to unanimous consent?

MR. CARMICHAEL ‑ The Chairman of the Convention, amidst the confusion that existed at the time, was endeavoring to get the Convention to allow an aye and no vote to be taken as requested by the gentleman from Mobile, but the Convention had never agreed to that, as all this will show. The lost statement made by the Chair is this: “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. O'NEAL ‑ I rise to a point of order, the question before the Convention is the motion of the gentleman from Montgomery to amend the report of the Committee on the Journal. Under the rules of the house, the debate is limited to ten minutes, that is my recollection of the rules.

MR. PROCTOR ‑ If the Chair recognizes the point of order of the gentleman from Lauderdale, I ask recognition to give my time to the gentleman from Colbert.

THE PRESIDENT ‑ It seems to the Chair that the gentleman's time has expired.

MR. PROCTOR ‑ I move that his time be extended.

The gentleman from Colbert yielded the floor to the gentleman from Jackson.

MR. PROCTOR ‑ Some gentleman in the Convention desire things in the journal which are not acted upon by the house. Whenever a result is announced by the Chair, it is the duty of the journal to show that result, but anything that the Chair may say without any action by the house is not the action of this Convention, and consequently ought not to be in the Journal. When this


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matter came up when the gentleman from Dallas, offered the amendment, the gentleman from Calhoun moved to lay that amendment upon the table.  Thereupon the President pro tem put that question to this body, a vote was taken, and the result was announced by the Chair– not a decision from the Chair, but a decision of this Convention, consequently   that was a matter that necessarily went into the Journal.  Then whatever the Chair might  have said of his own accord, without giving the Convention an opportunity to act on it, is not a question that should go into the Journal.  I was present, and I was giving eye and er to what was taking place, with no purpose to make any motion, and with no purpose to take any action but to vote when an opportunity presented itself.  The gentleman from Mobile, all the time during the time the vote was being taken, when the motion was made, after the motion of the gentleman from Calhoun was made, was on his feet demanding the ayes and noes.  The Chair never recognized the gentleman from Mobile until after the result was announced. After the result was announced, some complaint being made to the Chair that the gentleman was on his feet before the vote was put to the house, the Chair turned to the gentleman and made some remarks as if he would like to give an opportunity to vote on this question by the ayes and noes and he said by a unanimous consent I would like to out this.   But I maintain, Mr. President, that that never was put to this body.  Four or five gentlemen arose, this gentleman here and that one over there rising to points of order amid great confusion.  I was there ready to vote if the opportunity offered, but it never was put, and whatever the Chairman announced without giving the Convention an opportunity to vote upon it, is a matter that should not go into the Journal, for the Journal is there to record only what transpires by the Convention and not by individual member not by the Chair himself.  I do not think that anybody will contradict that unanimous consent was never asked this Convention.  The Chair announced his willingness if unanimous consent were given to put it to an aye and no vote, but I maintain that he never did ask this Convention to give unanimous consent.

Mr. LOMAX—Did not temporary President say that he did not hear the gentleman from Mobile, if he had heard him he would have put the question for the ayes and noes, and say I trust and I hope that this Convention will give its unanimous consent to do so?  Didn’t the Chair say that?

MR. PROCTOR— The Chair made some remark like that.

MR. LOMAX— Was there objection by anybody to that request by the Chair?

MR. PROCTOR— That is the very point I am making.

 


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MR. LOMAX ‑ If there was no objection and the Chair had gone on and put that motion, would you say that he did not have the consent of the Convention to the doing of that thing?  That is what happened here yesterday.  He asked for consent and nobody objected, and that is the whole contention of they gentleman.

MR. PROCTOR ‑ That is where we differ. He never asked consent. He said I would like to put this question, and probably it could have been done by unanimous consent, but he never asked if the unanimous consent was given by the Convention.  He made some sort of statement as the gentleman from Montgomery states, but he never did give the opportunity to the Convention to say whether or not unanimous consent was given, and that is the very point I and making, because I was sitting there ready to vote whenever it did come up. I will read from the stenographic report: “Mr. Reese ‑ I rise to a point of order. The gentleman from Dallas, my colleague, offered this amendment, and he never surrendered the floor. He was upon the floor and the motion was made to table, and immediately the gentleman from  Mobile 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 now 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 in his colleague to refer the the amendment to the Committee on Corporations.”

MR. LOMAX ‑ Will you allow me?  You commenced to read just four lines too low down.

MR. PROCTOR ‑ I will read that: "Mr. Pillans ‑ And I immediately demanded the ayes and noes upon the 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.”

I maintain that that does not show that unanimous consent was asked or given.

MR. KYLE ‑ Did you, or any of you make any objection to the call ?

MR. PROCTOR ‑ No, sir, because it never was put to the House to give me an opportunity to do so, that is the reason I did not object. I was sitting here ready to object, and here are the remarks in the stenographic report: “The Chair has consented”– but the Convention did not give the consent, and I maintain that it would not be a part of the Journal.


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MR. COBB– Mr. President, sometimes it is a happy position to be in to know very little about the mysteries of parliamentary law.  Now, there were certain things that did occur yesterday, and which no man disputes.  One of those things was that after the time when it is stated that the motion to lay upon the table prevailed, this House took a vote that it would remain in session for another purpose, and a purpose inconsistent with the statement made in the Journal that that motion was laid upon the table. We took a vote upon the question as to whether we would remain in session here.  For what purpose? For the purpose of deciding whether the temporary President of this Convention had ruled rightfully or wrongfully in sustaining the point of order made by the gentleman from Cullman.  Now, when the appeal was made from the decision of the Chair, by the gentleman from Montgomery, and this Convention decided by solemn vote to remain in session until the question was decided, and when the Convention went on and entertained this appeal from the presiding officer of the Convention, when it was put to the Convention and voted upon by an aye and no vote, and nobody objected, is not that at least an indorsement of the action of the President in entertaining the motion made by the gentleman from Cullman? Now, then, if that action made in the face of the House, made with the consent of the House, made by a solemn vote of the House, and sustained as correct, if it conflicts, which is to prevail?

MR. HARRISON ‑ I would like to ask a question? I will ask you if the Chair was not prevented from ever really submitting that matter to the House by the confusion that existed?

MR. COBB– Yes, sir; that is true. The chair was prevented and before he put the motion to the House relative to the action proposed by the gentleman from Mobile, the gentleman from Cullman interposed and the point I make is the fact that he did not technically put that question to the House makes no difference. What has parliamentary law to do here among a Convention of gentlemen framing a Constitution, who intend to do right in framing it?  Now, there is no use of shirking this question. It is before this Convention, and the question is free passes or no free passes and if this Convention have a fair show, they will determine and strike down free passes forever.

MR. OATES ‑ I was in my seat and have in charge the section which was under discussion when the amendment was offered. I was necessarily a close observer of what transpired. During the confusion yesterday evening I tried three different times to get recognition to give what I saw and knew about it, which I thought would have some tendency to explain the situation. I will do so now, briefly. The amendment was offered by the delegate from Dallas, Mr. Burns, which has been stated, and it is not necessary to repeat it. At once there was a good deal of excitement, until


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a motion was made by the delegate from Cullman to table the amendment and the vote was taken upon tabling the amendment. The presiding officer announced that it seemed to the chair that the ayes have it.  That may not have been the precise language, but that is the substance of it.  He is too good a parliamentarian to antlounce at once a result without giving any opportunity.  He announced, however, that it seemed to the chair that the ayes had it, and just at that time the delegate from Mobile, who was occupying a seat over here where Delegate White now sits, was, and had been from the very moment  of the announcement, demanding the ayes and noes.  The attention of the chair was then directed to that part of the hall, several gentlemen being on their feet, and the gentleman from Mobile. Mr. Pillans, repeated his demand time and again, until he gained recognition, and then it was that the delegate from Calhoun made the point– that he could not make this demand because he was not in his seat.  After that question was canvassed for a short time, the chair agreed or submitted the question whether he could not do it, I am not sure about whether any vote was taken, but the chair entertained it; said that if he had heard the delegate from Mobile, he would have recognized his demand for the ayes and noes on that vote, but that he had not been able to hear him, his attention was directed to so many occupants of the floor seeking recognition in another part of the hall, and he said he had no intention to do an injustice to any delegate, and he was disposed to grant the demand of the delegate from Mobile, stating he was on the floor making a demand for ayes and noes, from the very moment when the vote was taken, and just at that time the occupant of the chair said he had no disposition to do anybody any wrong, and the delegate from Mobile said certainly he did not, and the chair stated about that time, “I will ask permission for unanimous consent that the demand of the delegate from Mobile for ayes and noes be put to the Convention, and just at that point, before it was done, the delegate from Cullman obtained recognition from the chair and interposed his point of order which the chair entertained, and decided and the appeal was taken from that decision. Those are the facts as I witnessed them and recollect there, and, without going into all the details, those are the essential facts of the case. Now, sir, it seems to me that while the vote had been taken and the chair had declared that it seemed to the chair the ayes had it, the final result had not been put; certainly his recognition of the delegate from Cullman, who interposed the point of order upon the identical question under consideration. The secretary had reported the truth that the motion had been to lay on the table had been carried, and the chair stated “it seems so to the chair,” but the final result had not been put. If it had been, the point of order came too late, and the chair would have so regarded it, but as he had not announced the final result, the time had not passed, the oppor‑


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tunity had not gone by, for demanding the ayes and noes; he was disposed to recognize the delegate from Mobile in that demand, and his recognition of the point made by the delegate from Cullman showed that it was still in fieri and had not been fully determined.

MR. WILSON– The Committee on Journal simply endeavored to make the journal state what actually happened.  If the delegates will leave out of their minds the question of what side they are on on this amendment proposed to this section , there would be very little trouble to settle the pending controversy. The proposition now is to strike from the journal the statement that the amendment was laid upon the table.  As I understand the proposition—

MR. JONES (Montgomery)– Will the gentleman allow me to make a proposition that may probably coincide with the different views expressed here?  After stating about the motion to table, the chair announced that the motion was tabled, but upon insistence of the gentleman from Mobile, Mr. Pillans, that he was on his feet demanding the ayes and noes before the chair put the question, the chair announced he had no disposition to infringe upon the rights of any member, and would put the vote by yeas and noes, but before that was done, Mr. Cofer made a point of order.  I think that covered the case.

MR. WILSON (Clarke)– Mr. President, I do not think the journal should be encumbered with all that kind of stuff.  As I said the journal shows the motion was made to table, that was put to the house, the house voted, and the chair announced the decision. The stenographic report shows the same thing.  I submit to the delegates that those two sources are the best sources from which we can get information on this subject.  Now, if the question was put to the Convention and the Convention voted upon it and the decision of the Convention was announced , why the gentlemen ought not to want to make the journal show that something else was done when that was done.

MR. CUNNINGHAM ‑ Will the gentleman permit a question?  Suppose the journal shows the manner in which it was tabled,  that is by a viva voce vote. No one will question it was tabled according to the decision of the chair by a viva voce vote.

MR. WILSON (Clarke) ‑ I will come to that proposition, and if you will wait until I get through and then want to ask anything I will answer you. Mr. President, I say the official stenographic report and journal agree on this proposition; the question was submitted and voted on and decision announced. Well, now, what do the gentlemen who want to strike out that provision say, they say the demand for the verification of the vote was made. Suppose it was. They say unanimous consent was given for certification of the vote. Suppose it was. No one will say it was verified and that


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the motion to table was not carried or was reversed. I submit you have no right to strike out the decision in the face of such a proposition as that. None of them will deny the proposition to table was carried. They say the demand for ayes and noes was made, there never was taken a vote on the question of ayes and noes; therefore, upon what do they predicate their desire to strike out the decision of the Convention and to attempt to make the journal show that something that was done was not done. I submit that when this question comes up again, when this section is reached again, if unanimous consent has been given for a vote, for the ayes and noes, a vote can be taken. If, on yesterday afternoon, after the decision had been announced a delegate had asked for verification by ave and noes and unanimous consent was given for the certification, and the verification was never had. I think the Chair would hold that as unfinished business; if on the other hand, the Chair should hold that unanimous consent was not given for the vote by ayes and noes, but that that motion stands to table, why, then, I anticipate the Chair would entertain a motion to take from the table. So far as I am concerned I will vote for the journal as it stands, because that is the best evidence of what was actually done. I have no objection to the amendment, will vote for the amendment and tried to say so yesterday on the decision from the appeal of the Chair, when I was going to vote to sustain the Chair, because I believe the Chair was ruling honestly as he thought the President of the Convention had established a precedent, but the gentleman cut me off and would not permit me, therefore, I take this occasion to do it. I say we ought not because we happen to be on one side or the other of this question to try to make the jurnal show what did take place, did not take place.

I move the previous question on this matter. On the amendment and on the adoption of the report of the Committee on the Journal.

THE PRESIDENT ‑ The question is on the motion of‑

MR. JONES (Montgomery) ‑ Mr. President, who has the conclusion on that? I made the motion.

THE PRESIDENT ‑ The Chair will rule upon that question so soon as it submits the motion.

MR. JONES (Montgomery) ‑ The reason I ask is‑

THE PRESIDENT ‑ The gentleman is not in order.

MR. JONES ‑ But I can state a parliamentary inquiry.

THE PRESIDENT ‑ The gentleman is not in order.

MR. JONES ‑ I take an appeal from the decision of the Chair, if you will permit me.


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THE PRESIDENT ‑ The gentleman will please be seated.

MR. JONES ‑ Now I am seated, and I now rise to take an appeal from the decision of the Chair.

THE  PRESIDENT ‑ The gentleman will please resume his seat.

MR. JONES ‑ I have taken my seat in obedience to the orders of the Convention and then I have risen to respectfully take an appeal from the decision of the Chair to the members of this Convention.

MR. WILLETT ‑ I rise to a point of order. The gentleman from Montgomery is out of order. The Chair has not stated the question that is before the Convention.

MR. JONES– My appeal is before the House. Does the Chair say that he will not put an appeal?

THE PRESIDENT–  Is the gentleman from Montgomery the Chairman of this Convention or the occupant of the Chair.

MR. JONES– The gentleman from Montgomery is the peer of the Chairman of this Convention and will insist upon his rights.

THE  PRESIDENT– The gentleman will please resume his seat.

MR. JONES– The gentleman from Montgomery declines to resume his seat until the Chair decides whether he will put an appeal which he took from the ruling of the Chair.

THE PRESIDENT– Is  the gentleman from Montgomery will resume his seat the Chair, under the rules, will have to request the Sergeant ‑ at ‑ Arms to require the gentleman to be seated.

MR. JONES ‑ I understand that, but now do not let us have any unneccssaryheat about this. I want to ask the Chairman of this Convention if a delegate on this floor has not the right to appeal from a decision of the Chair.

THE PRESIDENT ‑ Certainly, Certainly he has but the gentleman has no right to defy the Chair, and the Chair requests him to be seated in order that tile Chair may make a ruling. The gentleman has the right to defy the Chair and stand, in violation of the rules of this Convention, occupying the floor after the Chair requests him to be seated.

MR. JONES ‑ I respectfully ask if, after the Chair called me to order, I did not sit down and then respectfully rise in my place?

THE PRESIDENT ‑ But the gentleman is now out of order, as the Chair has ruled he is out of order, and the Chair will request him to be seated.


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MR. JONES—What becomes of my appeal?

THE PRESIDENT ‑ The Sergeant at Arms will require the gentleman to be seated.

MR. JONES ‑ I rise to a question of personal privilege. I have taken an appeal from the decision of the Chair, and I ask to have it put, and if the Sergeant at Arms or anybody else tries to make me take my seat when as a member of this Convention I have a right to take an appeal,  why he only does it over my dead body.

MR. SANDERS ‑ I move we adjourn.

MR. WILLIAMS (Marengo) ‑ Point of order.

MR. BULGER ‑ I as a delegate of this Convention demand that the Sergeant at Arms discharge his duty.

MR. JONES ‑ Suppose you try to do it.

THE PRESIDENT ‑ The Sergeant at Arms will remove the gentleman from the Convention.

MR. JONES ‑ I have a right to be heard, and I want to know if the Chair declined to put an appeal.

THE PRESIDENT ‑ The Chair does not decline to put an appeal, but the Sergeant at Arms will require the gentleman to be seated.

MR. JONES ‑ That is all I want. I want the Chair to put my appeal. Now, Mr. President—

THE PRESIDENT ‑ The gentleman will resume his seat.

MR. JONES ‑ I think if the Chair will hold its temper a little—

THE PRESIDENT ‑ It seems to the Chair that it is the gentleman from Montgomery. The gentleman from Montgomery will please be seated.

MR. JONES ‑ I was about to state—

THE PRESIDENT ‑ The Sergeant at Arms will remove the gentleman—

MR. JONES ‑ I rise to a question of privilege.

MR. FLETCHER ‑ I do not think that one delegate in this Convention–

THE PRESIDENT ‑ The Sergeant at Arms will exercise his duty or the Chair will appoint a Sergeant at Arms—


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MR.  FLETCHER (continuing)– should usurp the privilege of this Convention.

MR. JONES– I was about to state a question of privilege.

MR. FLETCHER– I have said nothing in regard to this matter, but I do not think that any one man has the right to usurp the privileges of this Convention and ought to retain the floor in this manner, and I think the member ought to be silenced.

MR. BURNS– I rise to a point of information.  What is the question before the house?

THE PRESIDENT– The gentleman will please resume his seat.  The Secretary will please state the question from which the gentleman from Montgomery appealed from the decision of the Chair.

The Secretary stated the question as follows:

Mr. Wilson of Clarke moves the previous question upon the adoption of the Journal and the pending amendment. Mr. Jones of Montgomery rises and asks that he be allowed to conclude the remarks being the mover of the amendment.

THE PRESIDENT ‑ The Chair stated he would rule upon the privilege of the gentleman after submitting the question on the motion for the previous question to the Convention. Thereupon the gentleman from Montgomery appealed from the ruling of the Chair. The question is, shall the Chair be sustained?

MR. JONES– I  do not think the Chair exactly states—

The gentleman was interrupted by vociferous calls for the question.

MR. JONES ‑ I withdraw the appeal rather than be the occasion of disorder in this Convention.

There were loud cries for the question.

THE  PRESIDENT ‑ The Sergeant at Arms will remove the gentleman unless he resumes his seat.

MR. JONES ‑ Haven't I the right to withdraw an appeal.

There were cries of "objection."

MR. JONES ‑ I withdraw my appeal.

THE PRESIDENT ‑ The gentleman cannot withdraw a question that has been submitted to the Convention. The question will be shall the decision of the Chair stand as the ruling of this Convention?

By a viva voce the decision of the Chair was unanimously sustained.


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THE PRESIDENT ‑ The question recurs upon the motion of the gentleman from Clarke for the previous question. The question is shall the main question now be put?

Upon a vote being taken the main question was ordered.

THE PRESIDENT ‑ The question is upon the amendment offered by the gentleman from Montgomery to the report of the Committee on Journal.

MR. BULGER – I would like to hear the reading of the amendment.

THE PRESIDENT ‑ It is not in writing.  The motion, however, is to strike from the Journal so much of the Journal as shows that the amendment of the gentleman from Dallas was laid upon the table. As many as favor the amendment will say aye.

Upon a vote being taken the amendment was lost.

The question recurring upon the adoption of the report of the Committee on Journal, upon a vote being taken the report was adopted.

Mr. Dent obtained recognition.

MR. JONES ‑ Will the gentleman yield?

MR. DENT ‑ I yield to the gentleman from Montgomery.

MR. JONES ‑ I desire, if the President will hear me, to state that, perhaps, from a misapprehension of what the attitude of the Chair was, I took action and probably said words,  which,  if I had not been under such misapprehension, I would not have done. I further desire to state to this Convention and the Chair that I endeavored to say this five or six minutes ago and the Chair would not permit it, and ruled that I was out of order. This was the purpose for which I rose the last time. I am the last man that would treat this House or its President, or any one with disrespect, and I am the last man, if I know that my rights are being violated to permit that it shall be done.

THE PRESIDENT ‑ When the gentleman rises and addresses the Chair and makes a motion, the Chair will always entertain the motion and submit it to the Convention, but after the gentleman makes a motion or makes a point of order, or moves any question, it is in order for him to resume his seat, and to permit the Chair to state the question to the Convention. After the Chair calls the attention of the gentleman to the fact that he is out of order and requests him to resume his seat it seems to the Chair, that the gentleman is altogether out of order when he insists on maintaining his position on the floor while the President is proceeding to submit the question to the Convention. Therefore, the


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Chair respectfully requested the gentleman from Montgomery to be seated, in order that the Chair might proceed to submit his question to the Convention, but the Chair cannot submit questions to the Convention when one or more or a half dozen gentlemen are on their feet clamoring for recognition, or interrupting the proceedings of the Convention.  This is a Convention of delegates of the sovereign people of Alabama, and it is becoming that we should act with some decorum and with dignity.  The gentleman from Barbour.

MR. DENT– When the Convention had Section 35 under consideration, of the Article on Legislative Department—

MR. WALKER- I will ask the gentleman from Barbour to excuse me for one moment while I enter a motion. I move, Mr. President–

MR. DENT ‑ I yield to the gentleman from Madison.

MR. WALKER– I move, Mr. President, that what has occurred in this House subsequent to the motion of the gentleman from Clarke for the previous question be expunged from the stenographic report.

MR. EYSTER – I move to table the motion.

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

MR. HEFLIN (Chambers) ‑ I make the point of order that you have to suspend the rules before a motion of this character can be put.

MR. SPRAGGINS– I make the point of order that the gentleman’s point of order comes too late.

THE PRESIDENT– The question which the Chair submitted to the Convention was a motion to table.  The question of the consideration of the resolution is not before the Convention at this time.

And by a vote of 40 ayes and 45 noes, the motion to table was lost.

MR. HEFLIN (Chambers) ‑ I make the point of order that its order to present the motion of the gentleman from Madison, the rules will have to be suspended and that will require a twothirds vote.

THE PRESIDENT ‑ It seems to the Chair that the point of order is well taken.

MR. GRAHAM  (Montgomery) ‑ I move that the rules be suspended, in order that the motion made by the gentleman from Madison may be adopted.


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Upon a vote being taken a division was called for and by vote of 49 ayes and 38 noes, the motion to suspend the rules was lost.

THE PRESIDENT ‑ The special order before the Convention this morning will be the consideration of the report of the Committee on Legislative Department. When the Convention adjourned it had under consideration Section 28.

MR. DENT ‑ When Section 35 was under consideration yesterday, the gentleman from Pike, who is unfortunately absent this morning, offered an amendment to the amendment offered by the gentleman from Montgomery. The amendment offered by the gentleman from Pike was to limit the special session to thirty days. That was adopted by the Convention, but being an amendment to the amendment offered by the gentleman from Montgomery and that amendment being lost the amendment offered by the gentleman from Pike was also lost. He gave notice at the time that he would move this morning for a reconsideration of the vote by which Section 35 was adopted, in its present shape, in order that he might amend by adding at the end of the section, “and special session shall be limited to thirty days.” At his request I make the motion now that the action of the Convention in adopting Section 35 may be reconsidered in order that this amendment may be adopted.

MR. O'NEAL ‑ I rise to a point of order. Under Rule 27, which reads as follows:

Rule 27 ‑ When a vote has passed, except on the previous question, or on motion to lay on the table, or to take from the table, it shall be in order for any delegate who voted with the majority to move for a reconsideration thereof on the same day, or within the morning session of the succeeding day, and such motion, if made on the same day‑

Now, the gentleman from Pike made this motion on yesterday and under the rules it should have been considered directly after the approval of the journal.

MR. OATES ‑ I am in charge of the measure and witnessed just what transpired, and the delegate from Pike offered that amendment‑

THE PRESIDENT ‑ The Chair will be compelled to be governed by the journal, if the journal deals with the subject.

The journal entry was read as follows:

“Mr. Samford moved to reconsider the vote by which Section 35 was adopted, which motion under the rules went over until tomorrow.

MR. OATES ‑ I was proceeding to say that the gentleman offered that amendment when an amendment was pending. His


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was adopted but the amendment to which it was attached was lost, and then Mr. Samford did give notice that he would move to reconsider the vote by which the section was adopted today. He could not insist on reconsideration at that time on account, he said, of sickness in his family, and he had to go away.

THE PRESIDENT ‑ It seems to the Chair as the journal shows that the gentleman from Pike entered his motion to reconsider the vote whereby Section 35 was adopted, that it is in order at this time.

MR. O'NEAL ‑ My point of order was that after the approval of the journal a motion was made by the gentleman from Madison and the other business has intervened since the approval of the journal.

THE PRESIDENT ‑ The opinion of the Chair is that the motion may be made at any time during the morning session.

MR. O’NEAL– No, it shall be considered immediately after the approval of the journal on the day succeeding that on which it is made, but if it is first moved on such succeeding day, it shall be forthwith considered. He had the option yesterday of making the motion then to be considered immediately after the approval of the Journal, or of making it this morning.

THE  PRESIDENT ‑ The Chair ruled on that question the other day to this effect, that if he entered his motion on yesterday, it was a special order this morning immediately after the reading of the Journal, and it was the duty of the Chair to submit the motion to the Convention ; but if, by the over ‑ sight of the Chair, other business was allowed to intervene, it ought not to cut off the gentleman's right to have his motion considered, and the Chair as soon as it was called to his attention, submitted the question to the Convention The motion now is to reconsider the vote whereby Section 35 was adopted.

MR. deGRAFFENREID ‑ I move to lay that motion upon the table.

MR. JENKINS ‑ I ask the gentleman to withdraw that for a moment.

MR deGRAFFENREID ‑ I do not like to be discourteous to any one. Will you renew it?

MR. JENKINS ‑ I will.  The gentleman from Pike offered an amendment which provided that the session of the Legislature, if called in extra session, should be limited to thirty days. By mistake on yesterday, he offered the amendment to another amendment, and while his amendment was adopted, the amendment he had amended was defeated, and the House did not carry out its wishes on yesterday, and this reconsideration will give the Con‑


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vention an opportunity to do in fact what it wanted to do on yesterday, and I want to state clearly to the Convention that it acted on this proposition affirmatively.

MR. deGRAFFENREID ‑ I just want to state that my attention having been called to this matter, I withdraw the motion to table, and do not require that you shall renew it.

THE PRESIDENT ‑ Unanimous consent is asked to withdraw the motion.

To this objection was made.

MR. CUNNINGHAM ‑ I rise to a point of order. The gentleman from Hale withdrew the motion to lay on the table and yielded the floor to the gentleman from Wilcox.

THE PRESIDENT ‑ The gentleman from Hale has no power to withdraw a motion which has been submitted to the Convention without the consent of the Convention.

MR. JENKINS ‑ I rise to a point of order. I have the floor.

THE PRESIDENT ‑ The Chair will state that it is in the power of the Convention to authorize the withdrawal of the motion if it is so desired.

MR. BROOKS ‑ I make a motion to withdraw

MR. JENKINS ‑ I make the point of order that the gentleman cannot make a motion while I have the floor.

THE PRESIDENT ‑ He is making a motion to withdraw the motion you are speaking against.

MR. JENKINS ‑ He may do so after I get through.

THE PRESIDENT ‑ The gentleman will proceed.

MR. CUNNINGHAM ‑ I rise to a question of inquiry. Under what rule does the gentleman from Wilcox discuss the question when a motion to table is pending?

THE PRESIDENT ‑ The Chair has not submitted the motion of the gentleman from Hale to the Convention. The gentleman from Wilcox is in order.

MR. JENKINS ‑ Now, this Convention on yesterday acted affirmatively, as I said, on the proposition of the gentleman from Pike, that is, when the Legislature meets in special session they shall be limited to thirty days. Now I think we acted right in passing that amendment. The Governor can call the Legislature here and by a two ‑ thirds vote they can take up any proposition that they desire, and it would be possible for them to remain in session for twelve months.


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MR. O’NEAL– I desire to call the gentleman’s attention to Section 5, which has already been adopted.  That Section provides that the Legislature shall not remain in session longer than sixty days at the first session after the adoption of the Constitution, or longer than fifty days at any subsequent session.  Does that not embrace any session after that and include special session?

MR. JENKINS– I think not. That applies to the regular stated session.  The first session after the adoption of the Constitution may remain in session sixty days, and every four years thereafter they may remain in session fifty days, but this Section says that at any time the Governor, when he sees fit, can call the Legislature in special session, and it fails to say how long they shall remain in session, and from my experience with legislative bodies, I believe that there ought to be a limit put upon them, for when they have the power to remain in session they will stay in session until they accomplish what they want to.  That is nothing but natural and right, and for the people to be confronted with the Constitution to be voted upon, and when our opponents will get on the stump, “Will you vote for this Constitution, when the Governor may call this Legislature in extra session and it may remain in session for twelve months.”  Such an argument would have great weight against the ratification of the Constitution.

THE PRESIDENT– The time of the gentleman has expired.

MR. OATES ‑ I merely rise for the purpose of saying that, as Chairman of the Committee. I favor a reconsideration, and am in favor of the amendment, and I believe that I have not heard any dissent from the members of the Committee. I believe the Section ought to be reconsidered and amended.

Upon a vote being taken, the motion to reconsider prevailed.

MR. DENT ‑ I offer an amendment.

The amendment was read as follows:

Amend Section 35 by adding at the end of the Section the         following words: "And special sessions shall be limited to thirty days."

MR. DENT ‑ I move the adoption of that amendment, and upon the amendment and Section I call the previous question.

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

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

THE PRESIDENT ‑ The question will be upon the adoption of Section 38 as amended.


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Sec. 38. A member of the Legislature who shall 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, reward, thing of value, or enjoyment, or personal advantage, or promise thereof, for his vote, or 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 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 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 lie provided by law.

A vote being taken, the section as amended was adopted.

The secretary read Section 39 as follows:

Sec. 39.  Any person who shall directly or indirectly offer, give or promise any money, or thing of value, testimonial, privilege or personal advantage, to any executive or judicial officer or member of the Legislature to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as shall lie provided by law.

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

MR. BROOKS– Mr. President, after the storm that we have just had in the Convention, hope the atmosphere is clarified sufficiently for us to give some attention to what I consider an important matter. This Section 39 is, I believe, the same section as found in the present Constitution. The men who put that in the Constitution are entitled to credit for good intentions,  and some degree of discernment, but good intentions are not always effective. Dr. Johnson once said that “hell is paved with good intentions,” or as the poet has said.

“So Dr. Johnson once did say,

That hell is paved that very way."

Now, the purpose of this section is to protect the members of the General Assembly, and the officers generally of the State from corrupting influences, but it does not go far enough, because practically speaking, it does not take into consideration, or bring within the purview of this section certain insidious influences that are at work all the time. Now, Mr. President, and gentlemen of the Convention, to show you what the State has done, and


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how far the State thinks that its officers ought to be protected from the demoralizing influences that may be brought to bear upon their servants, in the discharge of their duties, I want to call your attention to a section in the Act of 1897, on the subject of the Convict Inspectors, where it provides that no inspector, physician of convicts, State, county or municipal officer, or any officer or guard, who has charge, control or direction of convicts, must be in any manner whatsoever interested in the work or profit of the labor of any convict, nor shall receive any gift, gratuity or favor of a valuable character from any person interested in such labor. Now, the Legislature was in a mood at that time to protect the State against undue influences that might be brought to bear upon their servants in the discharge of their duties, and they very properly put that upon the statute book. Well, an inspector may have dealings with contractors, and he may receive a gift without there being the slightest desire on the one side or the other of giving or receiving in a corrupt manner, but in order to protect both parties from engaging in a corrupt contract, or corrupt action, this statute was adopted. Now, the same thing pertains to the government of railroads. A first ‑ class railroad, for instance, if it ever found a purchasing agent accepting a gift or gratuity, or a rebate of any kind from a merchant or manufacturer or producer from whom they bought their supplies, it would not be five minutes before he would be decapitated. Why?  Because it is a dangerous thing to allow the disbursing officers or agents employed in purchasing, to he under an undue influence that may in time cost the railroad a meat deal of money, and, therefore, I say every first ‑ class railroad would, as soon as they found that such a thing existed, they would apply the remedy in short order. Now, Mr. President, I hold in my hand document No. 259. It is the testimony of Mr. Milton H. Smith, the able President of the Louisville and Nashville Railroad. It was taken before the Committee on Interstate Commerce. Mr. Morrison was the chairman of that committee in 1897. Now, I shall read a very short extract, only a few lines, but I wish to state, first, the circumstances under which this testimony was taken. As is well known, Congress passed some years ago a law requiring the railroads to adopt certain safety appliances for the protection of their employes, and of passengers. It was a long time before many railroads complied with that, and Mr. Smith was summoned before this committee, and the inquiry was made of him why he had not complied with that law. In giving his reasons, Mr. Smith alleged, as other railroads had alleged, that that was a very expensive thing and required a great deal of money, and that latterly the railroad had not been making much money; its revenues had been somewhat reduced, and Mr. Morrison finally asked him how it was. He said a good deal of it was done in the way of rebates, etc., and then he comes to the question as issue. “As a matter of fact,” said Mr. Morrison,


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“you do have a large free list?”  “Yes, sir.”  “Made up of Senators and Representatives?”  “Yes, made up of Senators and Representatives.” “To what extent does the judiciary figure in that, if at all?”  I want to show you how pregnant his answer is, withdrawing insinuations.  In discussing this question I want to say that the railroads are not all to blame, neither are their officers always to blame, and I propose to discuss this thing dispassionately, without any prejudice, with a view of getting at the influences that I say are insidiously at work, whether intended corruptly or not.  Mr. Smith says: “I will have to refer you to our attorney, Judge Baxter of Nashville, one of the best lawyers the country has ever produced. I think Mr. Baxter has been of the opinion, and I fear most of our attorneys have been of the same opinion, that it is well not to appear before a Judge unless he has a pass if he wants one.  In other words, they proceed on the idea that if the judge can afford to take a pass, they can afford to give it to him.  I believe that does us harm.  I believe many a judge leans backward for fear he will be accused of favoritism, and for that reason he leans the other way, and so decidedly as to show it.”  Then he goes on again, and speaking of Judges, says: “If they want a pass, and ask for it, we give it.  We don’t press them on them . They may not ask directly for themselves, but they have some friend that does so, and that is the mode which is very frequently employed.  Some friend does so.”

Now, I want to call the attention of the President and the gentlemen of the convention to what I consider a just interpretation of this statement of Mr. Smith.  He says that a Judge with a pass in his pocket frequently leans on the other side against the railroad.  In other words he becomes a coward to his conscience. His conscience makes a coward of him, and he is so afraid that his integrity will be affected by the possession of the pass, or that he may be criticised, that he leans against the railroad and fails to do them justice.  Now, I ask what is that but a pollution of the very fountains of justice. Here is man who leans so far on the other side, under the influence of the pass in his pocket, that he cannot give the railroad justice. Is that not a fair conclusion or inference to draw from that statement of Mr. Smith? Take the other side of the case.  Mr. Baxter thinks and always felt very much more comfortable if he appeared before a court that had a pass.  He says Mr. Baxter and I fear most of our attorneys have been of the same opinion– it is not well to appear before a judge unless he has a pass, if he wants one.  The meaning is, he expects the Judge, by reason of the obligation which exists to the railroad by being the recipient of the pass will warn his judicial decision in favor of the railroad and against the other party.  Take whatever view you please, the result is corruption.  Therefore, Mr. President, I say this constitutional provision does not go far enough because it does not take into consideration practically the insidious influences


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that are going on all the time in that respect, and I ask you gentlemen of the Convention– I do not charge anybody; I do not charge any railroad official with having in his mind any corrupting scheme, nor do I charge any gentleman who occupies a position of honor or trust under this State of being influenced by any corrupt influence when he accepts a pass, but I ask you in candor and frankness if, in the last analysis, and if the fundamental character of that transaction, it is not tainted with the element of corruption. Therefore I ask, Mr. President, that my amendment or addition to that section be read.

The amendment was read as follows:

No railroad or other transportation company shall grant free passes, or shall at reduced rates not common to the public, sell tickets for transportation to any person holding any office of honor, trust or profit in this State, and the acceptance of such pass or ticket by a member of the Legislature or any officer shall work a forfeiture of his office, at the suit of the Attorney General.

Any railroad or other transportation company or officer or agent thereof who shall grant a free pass, or shall at reduced rates not common to the public, sell tickets for transportation to any such person shall be deemed guilty of a misdemeanor and is liable to punishment, except as herein provided.

No person or officer or agent of a corporation who gives any such free pass, free transportation or sells tickets for transportation at reduced rates hereby prohibited shall be privileged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving or selling of the same.  But this shall not prohibit the Legislature from authorizing the State to contract with any such railroad or other transportation company for the transportation at reduced rates of State officers while traveling in the discharge of their official duties.

Any solicitor who shall fail faithfully to prosecute a person charged with the violation in the county or circuit of any provision of this section which may come to his knowledge, shall be removed from office by the Governor, after due notice, and an opportunity of being heard in his defense.

MR. BROOKS– Now, Mr. President, the only provision we have in the Constitution under the article of Corporations has been a dead letter ever since the Constitution was adopted, and the object of that is to galvanize that provision into life.  If the Convention will notice, this amendment affects not only the acceptors of passes, but the railroads or transportation companies who give the pass.  It goes on and provides also that railroad officials shall be excused in testifying, and if they testify against themselves they


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shall not be subject to criminal or civil prosecution if they testify to the giving of passes, and that is the only way in which the evidence can be adduced, as to whether a man has received a pass or not, through the testimony of railroad officials, and those officials giving that testimony are exempted from the provision of the law under which they might be prosecuted, civilly or criminally. Another provision is that the State may be authorized under authority of the Legislature to contract at reduced rates with a railroad from time to time for the transportation of the officers of the State while those officers are engaged in the discharge of their official duties. That is all I care to say on the subject, I submit that amendment, and call for the previous question on the section and the amendment, and call for the ayes and noes.

MR. JACKSON ‑ I would like to suggest to the gentleman that he amend his amendment by striking out the words General Assembly and inserting in lieu thereof Legislature.

MR. BROOKS ‑ If I have a right to do so, I will do it.

Unanimous consent was given, and the amendment allowed.

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

The call was not sustained.

THE PRESIDENT ‑ The question is on the call for the previous question, on the section and the amendment. The question is, shall the main question be now put?

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

MR. WHITE ‑ I rise to a point of order.  The ayes and noes were ordered.

THE  PRESIDENT– The call was not sustained.

Upon the division by a vote of fifty noes and thirty ‑ two ayes, the motion for the previous question was lost.

MR. COLEMAN (Greene) ‑ If it is not out of order, I wish to say when a question of this importance is introduced before this Convention and discussed in a tone of voice that all of us cannot hear, and we do not know what we are voting; upon, to move the previous question under such circumstances, does great injustice to the members of this Convention who desire to know and understand the questions they are voting upon. An important question like this ought to be examined, and we ought to have an opportunity to read it. I sent up to the Secretary to try and get the amendment to ascertain what was in it, but under the circumstances he could not let me have it. I move, if it is in order, that this question be postponed, to be taken up and considered in connection with the ordinance that was introduced this morning; and referred to the committees.


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THE PRESIDENT ‑ Does the gentleman from Greene direct his motion to the amendment offered lay the gentleman from Mobile ?

MR. COLEMAN (Greene) ‑ Yes, sir.

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

MR. OATES ‑ I move the adoption of the section.

A vote was taken, and Section 39 was adopted.

Section 40 was read as follows:

Sec. 40. The offense of corrupt solicitation of members of the Legislature or of public officers of this State or of any municipal division  thereof and any occupation or practice of solicitation of such  members or officers to influence their official action, shall be defined by law,  and shall he punished by fine and imprisonment in the penitentiary, and the Legislature shall provide for the trial and punishment of the offenses enumerated in the two preceding sections, and shall require the judges to give the same specially in charge to the grand juries in all the counties of this State.

MR. OATES ‑ The amendments to the section as it stands in the present Constitution are plain, and I presume that every one who has read it understand it, and I move the adoption of the section.

A vote was taken and the section adopted.

MR. LONG (Walker) ‑ I ask permission to introduce a short resolution, to be referred to the proper committee.

Objection was made to the resolution.

MR. LONG (Walker) ‑ I move that the rules be suspended and that the resolution be read.

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

Resolution by Mr. Long (Walker):

Various threatening sulphuric fumes have arisen in this Convention to such an extent as to make conservative and thoughtful members apprehensive of their safety in the future, therefore be it

Resolved, That immediately after the passage of this resolution, the Sergeant ‑ at ‑ Arms be, and he is hereby, ordered to close the doors of this hall, and to search the person, desk and room of each delegate for railroad passes pistols, dirks, brass ‑ knucks and razors, and to deliver them forthwith to the secretary; all such


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articles so found to be sold by the secretary to the highest bidder the proceeds of the same to be laid into the State treasury, in the interest of harmony and good government.

MR. OATES ‑ Just now, when Section 40 was adopted, it escaped me that an amendment, which was adopted, in the first line of Section 38, struck out the words corruptly, which is repeated      in Section 40, and, in order that they may correspond, I move to reconsider the vote by which Section 40 was adopted with a view of striking out that word.  I move a suspension of the rules for the reconsideration.

The rules were suspended, and the motion to reconsider prevailed.

MR. OATES ‑ I move to amend by striking out the word “corrupt”  in the first line of Section 40, to correspond with Section 38.

MR. COLEMAN (Greene)– I think we should move with more care on this matter. Read that section: "The offense of corrupt solicitation." Read it without the word  "corrupt" and you have the offense of solicitation. What does that mean, to solicit or to ask, members of the legislature or public officers of this State or of any municipal division thereof, and any occupation or practice of solicitation of such members or officers to influence their official action.”  You cannot ask a member of a board of a town, or of the legislature, and you cannot solicit him in any way.  When you ask him to do anything it is for the purpose of influencing his action.  You cannot approach him with argument or reason, and it seems to me we are going too far in this matter.  Now everything that ought to be covered has been considered and we have gone as far as it is right and proper to go in the adoption of Section 38, but you could not under this amendment even advocate the measure before a Committee, or a member of the board, without subjecting yourself to prosecution.  I therefore move to lay the amendment upon the table.

MR. OATES ‑ I merely want to say with the permission of the Convention–     

THE  PRESIDENT– The motion is to lay on the table, and it is not debatable.  

MR. OATES ‑ I and aware it is not debatable but I want to say one word in explanation.

The gentleman asks unanimous consent to make an explanation.

The consent was given.


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MR. OATES ‑ My attention was called to it when Section 38 was under consideration, which reads: “Who shall corruptly solicit.”  Corruptly was stricken out, as to members of the legislature, and in Section 40, this is “the offense of corrupt solicitation of members of legislature, etc.”  I made the motion only because the word has been stricken out in Section 38. The two sections seemed to be in conflict and therefore I made the motion. I have not examined it as to its effect.

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

The question recurred upon the adoption of the section, and upon a vote being taken the section was adopted.

Section 41 was read as follows:

Sec. 41.  A member of the legislature who has a personal or private interest in any measure or bill, proposed or pending before the legislature, shall disclose the fact to the House of which he is a member, and shall not vote thereon.

MR. OATES– That is the present Constitution and I move its adoption.

MR. BURNS– I desire to offer this amendment at the request of my colleague, Mr. Reese.

The amendment was read as follows:

Amend Section 41 Article on the Legislative Department, by inserting after the word “legislature” in the second line the words “or who is an officer, agent or attorney of any corporation or association, or person having such interest” and by inserting after the word “committee” in the third line the words “or house.”

MR. OATES ‑ I see the operation of the amendment. This section is a declaration that any member of either House having any personal or private interest in any measure or bill proposed or pending before the legislature shall disclose the fact to the House of which he is a member and shall not vote thereon. This amendment is to exclude any member who is also the attorney of any corporation from voting. It seems to me as it now stands it is broad enough. If members are interested, personally or privately, he would have to disclose his interest under it, as it now stands. Therefore, I move to lay the amendment on the table.

Upon a vote being taken, a division was called for, by a vote of 38 ayes and 24 noes the motion to table prevailed.

MR. BURNS ‑ I regret to do so, but I give notice to the Chair there is not a quorum voting.

THE PRESIDENT ‑ The Chair will proceed to ascertain and count a quorum.


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The Chair declared that a quorum was present, and the question recurred upon the adoption of the Section.

MR. BROOKS ‑ I would suggest that the Clerk be instructed to read the section as it would be with the amendment.

THE  PRESIDENT ‑ The amendment has been lost. The question is on the section.

MR.  DENT ‑ The Secretary read it “house”  in the second line and the printed copy is “committee”  I would like to know which is correct.

THE SECRETARY – To the House of which he is a member.”

MR. CUNNINGHAM– This is a very serious question. I will briefly call to the attention of the Convention that in 1896, I had the honor to be a member of the Senate of this State and prepared and introduced a bill in the Senate which had for its purpose a revolution of the convict system of the State of Alabama. I do not know what delegates here may think of my sincerity or what my constituents at home or anybody else may think, but I was in earnest. No plan was ever more so, and yet had I known this section was in the Constitution I could not have voted upon my own measure. I, therefore, move to amend, Mr. President, after the words—

MR. DENT ‑ I think if the gentleman will examine, he will find this section in the old Constitution.

MR. CUNNINGHAM ‑ I say if I had known it was there I could not have voted upon my own measure. I, therefore, move to amend after the word “thereon unless permission is authorized by the house.” That is, that he may submit the question as to whether or not he has an interest to the house and let the house determine the matter.

THE PRESIDENT‑“Unless authorized by a vote of the house” is the amendment.

MR. ROGERS (Sumter) ‑ What would be the good of that provision? If you were on the winning side you would vote, and if you were on the losing side you would not be allowed to.

MR. CUNNINGHAM ‑ Add that at the end of the section “unless permission is authorized by the vote of the house.”  I will answer the question of the gentleman from Sumter if he will state it again.

MR. ROGERS (Sumter) ‑ I ask what would be the good of this amendment? If a man were with the majority of the house, they would give him permission to vote, and if he were with the


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minority, he would not be given permission to vote on the question, so what would be the good of the provision in the Constitution?

MR. CUNNINGHAM ‑ In answering the question, I will say that under this provision of the Constitution as it now stands the Representative, in the House or Senate might have an interest as I had on that occasion. It killed for me the goose that laid the golden egg, straight out without doubt, and, therefore, I had an interest in it, but I was more interested in the passage of the bill and in its becoming a law than I was in any personal interest that I may have had in the matter and therefore I would have been compelled under this provision to have announced that fact and not voted upon the question. Under this amendment I could have submitted the problem to the Senate and if they had said that my personal interest was not controlling me, then I could have voted.

MR. PILLANS ‑ Would not the desired object be reached by using some such expression as this: “No member who has a personal or private beneficial interest.”  As I understand the difficulty presunted in the case of the gentleman front Jefferson, he wanted to have a measure passed which injuriously affected his interests. and yet he feels that this section would have affected his voting on it. Can't you frame a clause, which will provide that where you are interested beneficially in a measure that you cannot vote? If so, I shall offer the amendment.

MR. CUNNINGHAM– I am not astute enough to catch whether that meets the object I have to the section or not. I would like to be in a position should I ever have the honor again to sit in either house of the General Assembly of the State, to be permitted to vote up a question that I honestly and conscientiously  believe to be right although if it should become a law it would be to my detriment. That is all I ask.

MR.  COBB ‑ Will the gentleman allow a question?

MR. CUNNINGHAM ‑ Yes.

MR. COBB ‑ Does the gentleman think he has a personal or private interest in such a measure when he proposes to vote for it, and it injures him, in the contemplation of this law, he has no personal or private interest.

MR. CUNNINGHAM ‑ I will say that, suppose some one else were to propose the measure and the question came up and you wanted to vote no, what would be your status?

MR. COBB ‑ I say if you want to vote for a measure that will inure to your interest, then you ought not to vote, but if you are voting for a measure which injures you personally and does not benefit you, you are not prohibited by the language of the law.


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MR. CUNNINGHAM – I cannot see it “Pending before the Legislature shall disclose that fact to the house of which he is a member and shall not vote thereon.”  There is no question about that proposition. He shall not vote either way, whether he is benefitted or whether he is injured. I hope the amendment will be adopted.

MR. OATES ‑ There is no necessity for the amendment offered by the delegate from Jefferson, and he will see when he considers this section a little more closely. “A member of the Legislature who has a personal or private interest in a private bill pending before the Legislature shall disclose the fact to they house of which he is a member and shall not vote thereon.”  In the first place, it is a question for the member, and for his conscience to decide whether it is a matter in which he has a private or personal interest, and if he is in doubt as to whether it be such or not it is his duty to disclose the fact to the house and secure action by that house as the section now stands and the house can vote on the question as to whether when he states the fact of his connection, whether it is a personal interest, or such interest as should properly bar him from voting or exclude him from voting. The section is right as it is, and I, therefore, move to lay the amendment on the table.

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

Leaves of absence were granted as follows:

Mr. Reynolds of Chilton, Mr. Weatherly, Mr. Reynolds of Henry, Mr. Smith of Autauga, Mr. Espy for today, Mr. Pillans, Mr. Fitts, Mr. Sentell, Mr. Graham of Talladega, Mr. Parker of Elmore, Mr. Williams of Elmore, Mr. Kirkland for Monday, Mr. Browne for Monday, Tuesday and Wednesday, Mr. Robinson for Monday, Tuesday and Wednesday, Mr. O'Rear for Saturday and Monday.

MR. DENT ‑ I rise to a question of privilege.

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

MR. DENT ‑ This morning when I introduced the resolution in reference to the ordinance introduced by the gentleman from Greene-----

THE PRESIDENT ‑ Will the gentleman suspend one moment.

MR. BURNS ‑ In deference to my colleague of Dallas, I give notice that I may make a motion to reconsider the vote by which the Convention refused to accept the amendment offered by me.

THE PRESIDENT ‑ The Chair will state, for the information of the gentleman from Dallas, that the question would be upon the adoption of the Section.


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MR. BURNS ‑ I voted aye for the adoption of the Section.

MR. DENT– I was going to state that this morning when I offered the resolution and asked its reference to the Committee on Rules, it was referred to the Committee on Corporations by the Chair. I desire to read Rule 28, because I think the Chair, possibly without due consideration, made an error in its ruling.

The rule says: “All resolutions before voted on shall be referred to and reported from the Committee on Rules, except— I don't think nay resolution comes within the exception, and I thought under the rules it ought to have gone to the Rules Committee.

THE  PRESIDENT ‑ The gentleman did not call the rule to the attention of the Chair at the time.

MR. DENT ‑ I could not find it at the time.

THE PRESIDENT ‑ If the gentleman had done so, the ruling of the Chair would have been different. The Chair is of the opinion that if the gentleman had called the attention of the Chair to the rule the ruling would have been otherwise. The reasoning that prevailed with the Chair was that it affected the report of a Committee, and it seemed to the Chair at that time it eras proper to go to the Committee as expressive of the sense of the House that an early report should be made.

MR. DENT– Well, all I desire is to get a report. It seems to me, by implication, a resolution requesting a committee to report should go to the same Committee.

MR. MALONE– That would apply to resolutions before the appointment of committees and the Chair has so held heretofore.

THE  PRESIDENT ‑ That has been the line of construction of this rule. The Chair remembers since the gentleman calls attention to the rule, it has been the practice to refer resolutions as well as ordinances to the respective committees having in charge the subject as to which they were submitted, but had in charge the subject as to which they were submitted, but had the gentleman called the attention of the Chair to this rule, it might have induced the Chair to rule differently.

Thereupon the Convention adjourned until Monday morning at 11 o'clock.      

 _______

CORRECTIONS

In forty ‑ seventh day's proceedings the remarks of Mr. deGraffenreid, explanatory of his amendment to Section 24 of the Article on Legislative Department should read as follows:


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MR. deGRAFFENREID ‑ I do not care to discuss that amendment. I call the attention of the Committee, however, to the fact that it strikes from the Section under consideration the provision that two ‑ thirds of the House may dispense with the reading of the bill at length when it is to be signed by the presiding officer of such House. Heretofore the law has required the presiding officer of each House to sign all bills in the presence of the House, but, as the law only required such signature after bill had been read by their titles merely, this Convention knows that frauds have been perpetrated upon the General Assembly. As we have already declared that the Journals of each House shall be presumed to be absolutely true, I think that everything that can be done by this Convention to prevent a fraud being perpetuated upon the General Assembly should be done.  For that reason I offer the amendment and move the previous question. __________

In Colonel Sanford's speech on Friday, the report makes him say or "suggesting alone." It should have been or "suggesting a loan."

And he is made to say, "For instance, Sir 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."

Colonel Sanford said in discussing the 29th Section of the report : "For instance, Sir Robert Peel's budget introduced the income tax in 1842, and the repeal of the corn laws in 1845 and the budget of Mr. Gladstone by which he reduced the duties on wine in 1860."