3425

CONSTITUTIONAL CONVENTION ,1901 

SIXTY SECOND DAY

________

MONTGOMERY, ALA.,

Saturday, Aug.3, 1901.

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


3426

OFFICIAL PROCEEDINGS

We come into presence this morning, our Father, with a deep sense of our unworthiness of Thee and our dependance upon Thee, and we feel this morning that we need Thee in everything that we do. We pray Thy guidance this day. Bless each and every one of us according to our needs. We, pray Thee that Thou wouldst strengthen us and help us that we may faithfully discharge every obligation that is upon us Bless those who are in authority over us. Bless the members of this Convention assembled, and may their works be well pleasing in Thy sight and acceptable to the people of their State. Guide us through this day, guide us into all truth. Forgive us of our sins and at last in heaven save us, we ask. for Christ’s sake. Amen.

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

THE PRESIDENT- The Chair will call attention of the delegates to the fact that we have a bare quorum this morning and it will be necessary for the delegates to remain in the Convention in order that we may proceed with the business before us.

MR. SANDERS‑ The substitute I offered yesterday for Section 19 offered by the committee read in part as follows:  "It ishereby declared that the suffrage plan contained in this article is not one and indivisible." The stenographic report has it "is one and indivisible." and that is just what I did not say. The word “not” is omitted, Therefore, I request that it be corrected.

THE PRESIDENT-The official stenographer will make note of the correction.

Leaves of absence were granted to the following delegates: To Mr. Parker (Cullman) for Monday; to Mr. Eley for Monday; to Mr. Pitts today; to Mr. Long (Walker) for today and Monday; Mr. Locklin, from July 28th to August 5; Mr. Morgan M.. Smith for today; Mr. Winn, Monday and Tuesday ; Mr. Bethune and Mr. Ledbetter for Monday and Tuesday ; Mr. Altman for today and Monday: Mr. Malone for Monday.

The report of the Committee on the Journal was read, stating  that the journal for the sixty-first day had been examined and found correct and the same was adopted.

MR.WHITE– I move that the regular order be dispensed with this morning and that we take up the special order on which the Convention was engaged yesterday afternoon.

THE PRESIDENT‑Including the call of the standing committees?

MR. WHITE- Yes sir. That I understood to be a part of the regular order.


3427 

CONSTITUTIONAL CONVENTION, 1901 

Upon a vote being taken, the motion was carried.

MR. SMITH (Mobile)‑ I want to ask unanimous consent to introduce a resolution to be referred. It is introduced by request.

The Secretary read the resolution as follows:

An ordinance to exempt maimed soldiers who served in the Confederate army or the State of Alabama in the war between the States.

Be it ordained by the people of Alabama in Convention assembled, That all soldiers who, while serving in the Confederate army or serving the State of Alabama as soldiers in the war between the States, lost a limb or an eye, and who have no property other than that which is exempt under the provisions of this Constitution from process for the collection of debt, shall be exempt from the payment of all taxes now due by them to the State or to any county or municipality, and shall be exempt from the payment of all taxes, State, county and municipal, that shall hereafter become due upon the property so exempt from debt, and also from the payment of any and all license tax of every kind and description.

Referred to Committee on Taxation.

MR. MULKEY‑ I have a short petition that I ask unanimous consent to have read and referred.

There being no objection, the Secretary react the petition as follows:

Geneva, Ala., Aug. 1, 1901.

To the Honorable Convention of Alabama:

We, the undersigned petition you to reduce Section two (2) of the suffrage article from one year to three months, we ask this in behalf of the many teachers and preachers who are constantly changing their location, and we deem them to be as good a class of voters as there is in the State.

J. B. Welsh, Frank M.. Justice, R. J. H. Simmons, J. R. Adair, Jr., F. J. Ward, C.D. Carmichael, W. M.  Tatum, J. S. Collins, J. A.  Jones, D.D. Lamont, J. A.  Cumby, James B. Cox, attorney; A. D. Mckinny, J. M.  Hutcheson, W. W.  Seay, T.M. Day, G. W. Liton, H. H. Foster, F. G. Milligan, J. R.  Clark, J. C.  Jones, R. H. Grey, M. B.  Pierce, J. H. Heard, D. W. Gilchrist, Ed Cowan,  J .M. Jeter, E. F. Elsberry, E. D. Johnson, Ed Reaper, W. H.  Holloway, A. R. Chapmen, J. G. Holloway, W. M. Thomas, W.R. Jones, J. R.  Kuth, J. J.  May, F. J.  Laird, J. M.. Merritt,  C.  E. Darby, J. Yohn, J. B. Welsh.

Referred to Committee on Suffrage and Elections.


3428

OFFICIAL PROCEEDINGS

MR. SAMFORD (Pike)‑‑ Before beginning with the special order, I move that when the Convention adjourns at 1 o'clock, it adjourn to meet on Monday at 11 o’clock.

MR.  PILLANS- If it is in order to debate a motion to fix the hour of adjournment, I would like to submit a few remarks. I am opposed to these short sessions on Saturday. We are here to do business, and I would rather stay to the end and do the work.

MR. OATES-I desire to stay in reply to that, while it is no convenience to me to adjourn early, and no inconvenience to hold late, and I believe in work, and I believe I have been here every day during the session except one, we are going to enter upon the consideration of the report of the Committee on the Judicial Department, and everyone sees how thin this Convention is and after dispensing with other business and the preliminaries in regard to that, the Convention ought to be full to consider such an important report as that and you will not have it this afternoon, if we have an afternoon session, and not before 11 o’clock Monday morning, when all the trains get in.  Therefore, I am in favor of adjourning at 1 and meeting at 11.

MR. DAVIS ( Etowah)- I move to amend by extending the session until 2 o’clock and then adjourning until the time specified.

THE PRESIDENT-It is moved that when the Convention adjourns today at 1 o’clock it adjourn until 11 o’clock on Monday. And the gentleman from Etowah moves to strike out 1 and insert 2.

Upon a vote being taken the motion was carried.

MR. MILLER (Marengo)- I move to lay the motion to adjourn on the table, and upon that I call for an aye and no vote.

The call was not sustained.

Upon a vote being taken a division was called for, and the motion to table was lost.

THE PRESIDENT-The question is on the adoption of the motion of the gentleman to adjourn when we adjourn today to meet at 11 o’clock on Monday.

Upon a vote being taken, there were 45 ayes and 26 noes and the motion was carried.

MR. BOONE- I rise to a point of order.

THE PRESIDENT-The point of order is too late.

MR. WADDELL- Do not the rules provide for less than a quorum may adjourn or fix the hour?

THE PRESIDENT- The special order this morning is the consideration of the report of the Committee on Suffrage and


3429

CONSTITUTIONAL CONVENTION,1901 

Elections. When the Convention adjourned yesterday afternoon, the substitute offered by the gentleman from Jefferson was pending. The secretary will read the substitute.

The Secretary read the substitute as follows:

Be it ordained by the people of Alabama, in Convention assembled:

Section 1. Every male citizen of the United States, and every male citizen of foreign birth who may have legally declared his intention to become a citizen of the United States before he offers to vote, who is not under 21 years of age, possessing the following qualifications, shall be an elector, and shall be entitled to vote at any election by the people except as hereiliafter provided.

First‑He ,shall have resided in the State at least two years, in the country one year and in the precinct or ward three months immediately preceding the election at which he offers to vote; provided, that any elector who within three months next preceding the date of election at which he offers to vote, has removed from one precinct or ward to another precinct or ward in the same county shall have the right to vote in the precinct or ward from which he has so removed, if he would have been entitled to vote in such precinct or ward, but for such removal; and provided also, that no soldier, sailor or marine in the military or naval service of the United States shall acquire a residence by being stationed in this State.

Second- He shall have made a contribution to the public schools of $3, by all electors under 45 years of age, and $1.50 by all electors over 45 years of age by paying that amount to the Tax Collector of the county during the month of January, February or March of each year subsequent to the last general election and preceding the year in which the election is held at which he shall offer to vote. The contribution herein provided for shall be called “the school contribution.” and the amount received therefrom, less the commission allowed by the law to the collector, shall be applied to the public schools of the State; provided, however, that the General Assembly may by law provided that the school contribution made by the residents of the several precincts may be used for the support and maintenance of the public schools in such precincts. It shall be the duty of the Tax Collector of the county to issue to each person who shall make the school contribution a receipt showing correctly the date of the payment, the name of the said person and the precinct and country of his residence, and immediately upon said payment being made, the Tax Collector shall enter the name of the person contributing in a well-bound book to be kept for the purpose, or allow such person to write his own name in said book, which shall be ruled and marked to show the date of payment of the school contribution, age, color and precinct


3430

OFFICIAL PROCEEDINGS

of residence of the person who make the same. And on or before the 15th day of April of each year the Tax Collector shall certify under oath and file in the office of the Judge of Probate of his county, an accurate list of all persons who during the next preceding month of January, February and March have made the school contribution, and the Judge of Probate shall within ten days from its filing cause said list to be recorded in a well‑bound book to be kept for the purpose and designated  Registration of Electors. The list as certified by the Tax Collector and as recorded in the probate office shall designate the name, age, color and precinct of residence of the: persons whose names appear thereon. The Judge of Probate shall give notice by posting at some convenient place at the court house and by publication in one or more newspapers of general circulation, if any be published in the country, once a week for three successive weeks, that the list has been filed in his office, and that said notice shall be given, or the first insertion thereof, be made within ten days from the date of said filing of the list by the Tax Collector and any citizen whose name does not appear on said list may before the 31st day of May of each year have the right to apply to the Judge of Probate to enter his name thereon, and upon due proof that the school contribution was made by such person within the time allowed therefor, it shall be the duty of the Judge of Probate to enter his name as an elector at the foot of said list as recorded with appropriate remarks indicating that said person’s name had been improperly omitted; and upon the refusal of the Judge of Probate to enter the name of any applicant as an elector the latter may appeal from the judgement or decision of the Judge of Probate to the Circuit Court of his country, and the judgment of the Circuit Court upon such matter shall be final.  The General Assembly shall provide by law a method for expunging from the Registration of Electors any name or names improperly placed on the list certified by the Tax Collector or recorder by the Judge of Probate or added to either of said lists by any person.  The Tax Collectors of the several counties shall remit to the State Auditor within the first fifteen days of April of each year the amount received by them respectively upon the school contribution, less their commission. It shall be unlawful for any Tax Collector to receive any school contribution for any year after the 31st day of March of that year, and any Tax Collector who wilfully or intentionally adds to or omits from the list herein required to be certified, and any Judge of Probate who wilfully or intentionally fails to accurately record the list certified, shall be guilty of a felony. No person whose name does not appear on the said certified list and registration of electors for the year next preceding that on which the election is held, shall be entitled to vote, except that in case of application by a citizen to have his name added and the judgement favorable thereto of the Judge of Probate or Circuit Court, such person may vote, as though his name were on said list; provided, that nothing herein shall be construed to exclude from


3431  

CONSTITUTIONAL CONVENTION, 1901 

voting any soldier or sailor who has fought or was actually enlisted on either side in the war between the States, or who has fought or was actually enlisted in any war to which the United States was a party, but all such soldiers and sailors otherwise qualified may vote without having made the school contribution.

Sec. 2. All elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be viva voce.

Sec. 3. The following persons shall be disqualified both from registration and from voting, namely:

All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; and those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property. obtaining property or money under false pretense, perjury, subornation of perjury, robbery, assault and battery, on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary or of any infamous crime or crimes involving moral turpitude ; also any person who shall be convicted as a vagrant or a tramp, or of selling or offering to sell his vote or the vote of another, or buying, or offering to buy, the vote of another in any election by the people, or in any primary election, or to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector.

Sec. 4. No person shall be qualified to vote or participate in any primary election, party convention, mass meeting or other method of party  action of any political party or faction, who shall not possess the qualifications prescribed in this Article for an elector or who shall be disqualified under the provisions of this Article from voting.

Sec. 5. No person not registered and qualified as an elector under the provisions of this Article shall vote at any State, county or municipal election, general, local or special, held subsequent to the general election in 1902; but the provisions of this Article shall not apply to any election held prior to the general election in 1902, and all electors who shall comply with the provisions hereof in the year 1902 shall be entitled to vote in said elections.

Sec. 6. Any elector whose right to vote shall be challenged for any legal cause before an election officer shall be required to swear or affirm that the matter of the challenge is untrue before his vote shall be received, and any one who wilfully swears, or affirms falsely thereto shall be guilty of perjury.

Sec. 7. In the trial of any contested election, and in proceedings to investigate any election, no person other than a defendant


3432

OFFICIAL PROCEEDINGS

shall be allowed to withhold testimony on the ground that he may incriminate himself, or subject himself to public infamy ; but such person shall not be prosecuted for any offense arising out of the transaction, concerning which he testifies, but may be prosecuted for perjury committed on such examination.

Sec.8 The General Assembly shall pass laws not inconsistent with this Constitution, to regulate and govern elections, and all such laws shall be uniform throughout the State, and shall provide by law for the manner of holding elections and of ascertaining the result of the same and shall provide general registration laws, not inconsistent with the provisions of this article, for the registration  of all qualified electors from and after the first day of January 1903. The General  Assembly shall also make provisions by law, not inconsistent with this Article, for the regulation of primary elections compulsory.

Sec. 9  It shall be the duty of the General Assembly to pass adequate laws giving protection against the evils arising from the use of intoxication liquors at all elections.

Sec. 10. Electors shall in all cases, except treason, felony or breach of the peace, be privileged from arrest during their attendance at elections, or while going to or returning therefrom.

Sec.11. Returns of elections for civil officers who are to be commissioned by the Governor, except Secretary of State, Auditor, Treasurer, Commissioner of Agriculture and Industries, Attorney General and Superintendent of Education, and for members of the General Assembly, shall be made to the Secretary of State.

Referred to Committee on Suffrage and Elections.

THE PRESIDENT- The question will be upon the adoption of the substitute offered by the gentleman from Jefferson to the report offered by the committee.

MR. LOWE-I believe that the Convention is now ready to vote upon this question. I believe that all that could be said to advantage upon one side or the other has been said. It is not my purpose or desire to detain the Convention longer. The proposition in the substitute as offered by me, eliminates the registration clause, the grandfather clause, the property qualification, and the educational qualification, and leaves merely the voluntary contribution to the public school system of Alabama, to be discharged within the first three months of each year, intervening between general elections. Mr. President, although it is a matter of disappointment to me, to be in opposition to the majority of the committee, I feel sustained in some measure by knowledge of the fact that many, if not most, of those who have had actual experience in past years in political affairs in Alabama are in accord with the proposition which I have submitted. I hope even now,


3433

CONSTITUTIONAL CONVENTION, 1901

even before the fever of debate is past, that the majority of the committee are right, because I believe that the report of the committee is going to be adopted. I hope that in time I may be able to see the wisdom embodied in the report of the majority of the committee. At this time, Mr. President, it seems to me it is worse than folly; but I shall not consume the time of this Convention longer, because my views upon these questions and each one of the objections, have been fully expressed  heretofore.

MR. BANKS‑I feel always at a disadvantage in trying to give expression to my views in a public way.  I have been deeply interested in this question before the Convention, as has been every good citizen in the State of Alabama. I have been looking forward to the convening of this Convention because I felt that its chief purpose was to settle this great and vital question to the people of the State. Mr. President and gentlemen, after the discussions of many days, both by the committee and by the members of this Convention, we have before its well nigh a complete plan, and I do regret from the very bottom of my heart that I cannot give my endorsement to it, not because, Mr. President and gentlemen of the Convention, I am unprepared by nature to accord  with the views of others, but because I honestly and sincerely feel that the plan wrought out by the Convention does not meet the ends and the, aims had in view in calling this Convention. Let us consider it a little. The great question before us was a reformation of our political methods.

The aim of this convention in the discussion of this question was to give us pure politics in the State of Alabama. I belong to the part of the State that is most deeply interested in this question, the widely known Black Belt of Alabama.. We have come before this Convention confessing, to the Convention and confessing to the world, that we need some method by which we might extricate ourselves from conditions which as honest men and good citizens of the State we have found unbearable..

The men of the Black Belt are not inferior in intelligence, in moral character and in nobleness of  purpose, to the men of any part of the State of Alabama. We have found ourselves in the midst of conditions that have been perplexing, that have been difficult, and that have seemed demand the employment of questionable methods in order to extricate ourselves therefrom. We have before us, its I said, the finished work of this committee.  What does it provide? The black belt has come before this Convention and we have asked with outstretched hands and with pleading voices for relief from these conditions that have necessitated fraud in elections. What does this finished plan provide in the way of relief?  Mr. President, it is a part of this plan, not the avowed purpose of the plan as written in the plan itself. But as expressed a thousand times on the floor of this Convention, to


3434

OFFICIAL PROCEEDINGS

do things that are questionable in their character. It has been said by almost every advocate of this plan that its purpose, the plan itself does not say so, but the advocates of it and the key which unlocks its mysteries, without which it would be utterly unintelligible, show that the purpose of the plan is to disfranchise the negroes of the Black Belt. Now, I am not here to advocate the enfranchisement of negro. I am here to advocate a plan by which we may have pure elections in the Black Belt, and by which we may deal with the conditions that exist there, and that touch us on many sides. What is the very first thing necessary to be done in order to carry out the plans that have been wrought here. The Black Belt understands the meaning of the plan, and that it is to perpetrate the most monumental frauds in all the history of the State.  Then what is the next step? This plan has no life in it until it is ratified by the people, and it cannot be ratified except by the aid of the Black Belt of Alabama. There is no other chance to breathe life into it, and it is the Black Belt of Alabama and the men of the Black Belt who are asking relief from political fraud that are to be sent home to perpetrate the most outrageous fraud in all the history of fraud. But after this is done, what comes next?  There is breathed into this ammaculate  Registration Board, that is to appear loathed in partizan grab a brief life in each county. It has to go forth like the swiftness of the destroying Angel to finish the work of fraud and corruption.

Mr. President and gentleman of the Convention, are we then to have relief?  Yes, we are told that then we may wash our hands, say our prayers, and behave ourselves, and have pure elections and good citizenship.  Let us see.  What does the permanent plan provide? The permanent plan provides such a low standard of citizenship that statistics show that a majority of negroes in the Black Belt may come in and register under the permanent plan.  Then what new conditions do we face? Why, sir, this valley of dry bones that was slain but a few days ago by this registration board, is an army of live men, who are ready to wreck vengeance on those who have wrought such a grave injustice towards them.

Then what other conditions do we face? The Black Belt of Alabama is in the midst of a disorganized and discontented laboring class of people, that we are in a large measure dependent upon for our material prosperity. But does this end our trouble?  Allowing that we can stand this part of it, allowing that we can manage this part of it, are our troubles at an end? By no means A majority of he voters in many of these black counties will be negroes, and negroes who are inspired with patriotism and with vengeance against those who were unjust and unfair to them.  They will be then more than ever in the hands of every adventurer and more than ever ready to believe at the mouth of every man that comes into their midst that the white people of the Black


 3435

CONSTITUTIONAL CONVENTION, 1901

Belt are their enemies and that Democracy means to the Negro

damnation of every man.

I want to tell you what I think it will be in this Hall twenty years from today, and I want to tell you what I think will be the result of the act of this committee twenty years from today. North Alabama will be Republican twenty years from today if I and not greatly mistaken about the trend of affairs in that direction. majority of the men on the floor of this Legislative Hall twenty years from today, with the plan you have wrought, will be Republicans, and the Black Belt will be at their mercy. and absolutely at the mercy of the Republican Legislature. Tell the very guns that you have erected here for the accomplishment and achievement of white supremacy in Alabama will be turned against the Black Belt of this State, and their the Black Belt will understand that they themselves have sown the seed that has sprung up and produced the thorns that are tearing the very flesh from their bones.

THE PRESIDENT PRO TEM. – The time of the gentleman from Jefferson has expired.

MR. BANKS– I am sorry it is out.

MR. SMITH (Mobile)– As stated by the gentleman from Jefferson, I think these questions have been fully discussed by the Convention and are well understood, and I therefore move to lay the substitute of the gentleman from Jefferson on the table.

Upon a vote being taken, the motion to lay the substitute on the table prevailed.

MR. BLACKWELL– I desire to offer an additional section to the article.

The section by Mr. Blackwell was read as follows:

New section to be added to the report of the Committee on Suffrage and Elections:

Sec. —. “Any board of registrars, or a majority of any board of registrars , who shall knowingly register any person who is not of good moral character and who does not understand the obligations of citizenship under a republican form of government, or who is otherwise legally disqualified from registering, shall, upon conviction, be fined not less than $250 for each member of the board of registrars participating in the registration of such person or persons, and shall forfeit their offices as registrars.”

PRESIDENT PRO TEM.– The question will be upon the adoption of the amendment offered by the gentleman from Morgan.


3436

OFFICIAL PROCEEDINGS

MR. BLACKWELL– I offer this additional section because I find no provision in the article prepared by the Committee on Suffrage and Elections that fixes a punishment upon the part of registrars. The registrars have an unusual amount of authority conferred on them by this article, and they are unusually exempt from any responsibility to anybody for the exercise of that authority. Under this article a hundred men, or as many more as are inclined, might appear at any time, who did not possess the requirements that are set forth, and the Registrar would be the sole judge and although he might know that they did not possess the qualifications, if he were corrupt, if he were a bad man, if partisan spirit was running high, he would have it in his power to register those men, though he knew that they were corrupt and vicious, and their ballot could be cast, and no provision is made for punishing the Registrars for the act. This might be repeated as often as the Registrars pleased. Some of the Committee have said to me that they have furnished a remedy. Notice the reading of the amendment that I have offered:  “Any Board of Registrars or a majority of any Board of Registrars, who shall knowingly register any person who is not of good character and who does not understand the obligations of citizenship under a Republican form of government, or who is otherwise legally disqualified from registering, shall upon conviction, be fined not less than $250 for each member of the Board of Registrars participating in the registration of such person or persons shall forfeit their offices as registrars.”

Now I do not see how the Committee or how any gentleman of this Convention can afford to say by their vote that if a man willfully and knowingly registers anybody whom the law says he shall not register, shall not be responsible somewhere and to somebody in a way that he will know and feel, for a violation of this law.  The only thing furnished by the Committee is this”

“Any elector who registers for another, or registers more than once, or any registrar who enters the name of any electors on the list of registered voters without said elector makes application in person, under oath, on the form made for that purpose, or who knowingly enters a name upon a registration list as a registered voter when no one of that name applied to be registered—

MR. SMITH (Mobile)– May I interrupt the gentleman?

MR. BLACKWELL– My time is limited and I prefer not to be interrupted, but I will yield.

MR. SMITH– I wanted to ask if under your plan, you would not punish a man for registering a voter under the soldier’s or descendant clause?  I think you have overlooked that.

MR. BLACKWELL– I think not. He is in no way registered illegally, if registered under the soldiers or descendant’s clause


3437

CONSTITUTIONAL  CONVENTION, 1901 

MR. SMITH‑But you say "if they register any one who is not of good character or who does not understand the duties and obligations of a Republican form of government." If a soldier does not understand, and the registrar registers him, he must be fined?

MR. BLACKWELL ‑ Under the good character clause, as set forth in the article here, it is provided that he must have that character to be registered.  Now the soldiers are exempted from that, and in the exemption of them, he would legally register those parties and they would not be illegally registered. I say they must be illegally registered, in order that he may be held liable for registering a party who has no exemption applied to him. You will find in the plan of the Committee that they do not provide any punishment for the registrars if they register men , who have no right to register. But this amendment provides that he is punishable for illegally registering parties. It semis to me that this unusual power ought to have restraints placed upon it. Can any gentleman say that, if a man wilfully and knowingly illegally registers a man, he should not be punished by law for the violation of the law? This is simply a provision that, if he does knowingly what is a violation of the law, and register, men illegally, or he participates it, he shall be fined $250 and forfeit his office.

MR. OATES– Will the gentleman allow me to ask him a question?

MR. BLACKWELL– Yes sir.

MR. OATES– It seems to me that the object of the amendment is to punish registrars for allowing illegal registration or making it fraudulently. Is that the purpose?

MR. BLACKWELL – Yes sir

MR. OATES- It may have too many words in it but I sympahize with the purpose.

MR. BLACKWELL‑Yes sir, that is the object of it, simply to punish men for violating the laws. Now is there anybody here who can afford to say by their vote, that, if a man knowingly violates the law you have laid down for his guidance, he ought not to be punished for a violation of the law?  Are we here for the purpose of providing for fair elections in Alabama? Then if we are, every safeguard should be thrown around the ballot that will help to bring about the results that we are sent here by our people to accomplish. and it seems to rile that there can be no question and no doubt about the matter.

But, Mr. President, I am willing, so anxious am I to accomplish the purpose set forth. in order to satisfy the suggestion that I do not see much in offered by the gentleman from Mobile, to


3438

OFFICIAL PROCEEDINGS

ask leave to strike out of my section that part of it which says "shall be of good character." and that which says "and does not understand the obligations of citizenship under a republican form

of government." and simply add "those who are legally disqualified," and I ask leave to do so.

PRESIDENT PRO TEM.– The gentleman from Morgan asks unanimous consent to make an amendment to the section proposed to himself.

MR. HOOD– I object.

PRESIDENT PRO TEM– Does the gentleman propose an amendment?

MR. BLACKWELL– I propose it as amendment.

PRESIDENT PRO TEM– The question is upon the amendment of the gentleman from Morgan to his own amendment. Will the gentleman write out the amendment?

MR. BLACKWELL– Yes, sir, I will.

MR. WILLIAMS (Marengo)– While he is writing that out, I would like to submit two resolutions and move that they be referred to the proper committees.

Ordinance No. 436 read as follows:

Be it ordained by the people of Alabama in Convention assembled, that the provisions of an act to provide for the removal of the county seat of Shelby county from Columbiana to Calera. approved March the 5th, 1901, be and same are hereby suspended until the question of permanently locating the county seat of Shelby county shall have been submitted to a vote of the qualified electors of said county under the provisions of an act to provide for the permanent location of the county seat of Shelby county, approved Feb. 9, 1899 , and an act amendatory thereto approved Feb. 20, 1899.

Provided, that should said election result in favor of the removal of the county seat of Shelby county to Calera, Alabama, the provisions of an act to provide for the removal of the county seat from Columbiana to Calera, approved March the 5th, 1901, shall remain in full force and effect; otherwise to be null and void.

Referred to Committee on State and County Boundaries.

Resolution No. 284 read as follows:

Resolution 284 by Mr. Williams of Marengo.

Resolved, That the following amendment be referred to the Committee on Judiciary to wit:


3439

CONSTITUTIONAL CONVENTION, 1901  

Amend Section 29 of the report of the Committee on Judiciary by striking out in the eighth line the words "and the inferior courts here in provided for" and by inserting after the word "ejectment" in the tenth line, the following: "and the inferior courts herein provided for shall have such jurisdiction as may be conferred on their by law."

Referred to the Judiciary Committee.

MR. SAMFORD (Pike)‑I ask unanimous consent to introduce a short ordinance to be referred.

Ordinance No. 437 read as follows:

Be it ordained that Section 2 of the article on Suffrage and Elections be amended by adding the word at the end of the section as follows: "Provided, that ministers of the Gospel who are legally engaged in preaching shall be eligible to vote by a residence in the county three months, provided he has been a citizen of the State for two years and is otherwise qualified.

Referred to Committee on Suffrage and Elections.

THE PRESIDENT PRO TEM‑The question is upon the amendment to the amendment offered by the gentleman from Morgan.

The Clerk will read the amendment.

The amendment was read as follows:

“Any Board of Registrars, or a majority of any Board of Registrars, who shall knowingly and corruptly register any person who is legally disqualified from registering shall upon conviction be fined not less than two hundred and fifty dollars for each member of the Board of Registrars participating in the registration of such person or persons, and shall forfeit their office as registrars.”

MR. BLACKWELL –  Now, Mr. President. the section as amended leaves out the only suggestion of objection that has been made to it by any one.  Now if we intend to have parties who are to conduct elections fairly, and who are to have the power of the law behind them, to require them to do it honestly, then I can see no reason why any man should vote against this resolution.  Out of the 200 registrars necessary to be appointed under the plan which is proposed and I have supported that plan, there will necessarily, we may expect, no matter how much care or caution is observed, that men will be selected who under differing conditions and under partisan excitement, may attempt to do wrong, and we want to say in connection with the authority we give them, if you do wrong, you are not the sort of men we want to discharge these duties, and you shall be removed ; we will put the stamp of our disapproval upon anything that is disclosed to be corrupt or wrong.


3440

OFFICIAL PROCEEDINGS

MR. SPEAR‑ Would you be willing to accept an amendment providing for the punishment of the majority of the registrars, in case they refuse to register a man who is entitled to register?

MR. BLACKWELL‑ No, sir, I would not, because you have a remedy.  He can go to the court and have that right adjusted in the court, if he is refused and denied. If a man is denied the right to register, he can go to the court and have that right settled and adjudicated.

MR. WALKER (Madison)– It seems to me that a provision of this kind in view of the character and term of office of the Registrars, provided under the article as passed, is wholly unnecessary and would attain no good object. These Boards of Registrars, under the article as it has been adopted, are to be appointed by the three Chief Executive officers of the State, who are directed to select suitable and competent men for the discharge of those duties in each county. We certainly have no reason to assume that the duty imposed upon the Executive officers of the State will be disregarded, but that there will be selected suitable and competent men in the various counties. By amendments, provisions have been introduced into this Article by which any person improperly and fraudulently put upon the list can be removed.  The provision now offered by this amendment, I submit, would be abortive in its operation. The Convention will remember that this board will complete its labors in seventy or seventy-five days.  If a charge of this kind was made, it would have to be tried in the courts and there is not a court in the State of Alabama in which a case of that kind would be reached for trial before the term of the board had expired. It would be practically a dead letter. Now, having made provisions in the amendments that have already been made for purging the list of any name fraudulently and improperly entered thereon, so that the electorate of the State of Alabama will be kept as we intended, that it should be established, I submit that there is no necessity for a provision of this kind. It is simply holding a threat over the Board of Registration, so that they in every case which may come before them, will act under the idea that they may be brought up and made the subject of partisan criminal prosecution in the courts of Alabama.

MR. SANFORD (Montgomery)– Is there any more threat to the Registrars in this provision that there is to the Governor and other officers of the State in impeachment proceedings? It is no more of a threat to the Registrar than it is to those officers.

MR. WALKER– Would it accomplish the purpose? Would it do any good to put it in there? The very same man would go along and complete the registration, and if a charge was made, it would have to be tried after the registration was completed. The men serve for patriotic purposes, only getting $2 a day. Is there any necessity under the circumstances of their appointment for


3441

CONSTITUTIONAL CONVENTION, 1901

putting a threat of this kind over them, when the proposition is so framed that it could not possibly have any beneficial operation to keep the electorate pure? As first written, there was a proposition made to punish these men who knowingly registered any person. Well, every person registered is "knowingly registered."  So, if it happened that any one who was registered– and everybody is registered knowingly‑should afterwards turn out not to have the qualifications prescribed,  these men would be subject to punishment.

MR. O'NEAL ‑ I desire to ask if these registrars are not quasi judicial officers?

MR. WALKER‑Certainly.

MR. O'NEAL‑And if it is not against the policy of our law to punish judicial officers for errors of judgment?

MR. WALKER‑Certainly.

MR.  BLACKWELL– I will ask if we don't provide to punish our judicial officers for knowingly and corruptly—

MR. WALKER‑Deciding a case.

MR. BLACKWELL– Knowingly and corruptly doing wrong.

MR. WALKER– No, not even of that kind. You can impeach them and remove them from office. But by this provision to remove them from office you upset the whole scheme of registration in Alabama for the purpose of having an impeachment trial, and before the trial could be concluded, the term of the Registrars would have expired. It certainly will accomplish no good purpose. all of the objects that have been made out in purging the lists of names of any persons fraudulently entered upon the lists having been provided for by amendments already made, I can see no good purpose that would be served, but is merely a threat to hang over these men, whose selection is guarded in every possible way, and I move that the amendment proposed be laid upon—

MR. CHAPMAN– Will you withhold that for a moment, please?

MR. WALKER– Will you renew it?

MR. CHAPMAN– Yes, sir. There is no question in my mind, and I dare say the same thing is in the minds of every other delegate on this floor that that amendment is an indirect thrust at the Black Belt of the State, under the supposition that has been heretofore intimated, that the registration would be fraudulent in the Black Belt.

MR. BLACKWELL– I most positively disclaim any such thrust as that alleged or charged by the gentleman from Sumter.


3442

OFFICIAL PROCEEDINGS

MR. CHAPMAN–We have heard it intimated upon this floor repeatedly that under the guise of fairness in this registration, the Black Belt will again come forward with its tremendous majorities in favor of the Democratic party, whether those majorities were given rightfully or wrongfully, or whether the vote was cast, I desire to say to this Convention and to the State of Alabama, that the Black Belt has come to this Convention bearing a gift, an unusual gift, and, Mr. President it bears the gift to this Convention of the power it has heretofore held and heretofore used, but it now turns it over to the State, without consideration, and without request for any compensation therefor, save such protection as the white people of the State may give the Black Belt.  Now, in the future, when the vote of the Black Belt comes forward to the State, it will come counted as cast. There will be no frauds and can be none. We do not desire any; we want to get rid of them, and no matter what the result may be in the election of officers, no matter how it may turn out, the people of the white counties of the State will be responsible therefor, for we are turning over to you the majorities which we have heretofore held, ranging anywhere from 25,000 to 50,000 votes. We turn over that majority and whatever the result, rests with them, and it may come within five or ten years, that the State will have the exquisite pleasure of addressing the distinguished delegate from St. Clair as His Excellency Governor Spear. Now, it may be, that in five or ten years what this Convention does will return him and his friends to the control of the State.

This fear about the black belt giving these majorities is all unfounded. We are done with it. You must take care of the Negroes and take care of us too, Hereafter, because we are going to have nothing more to do with that thing if it can be avoided, and we want to avoid it. Now as the distinguished gentleman from Madison says, I do not think this amendment offered by the gentleman from Morgan will serve any good purpose at all. It only applies to a mushroom registration. It is up in a day and dead in a day.  They will be out of the way long before there can be any prosecution, even if they should wilfully and knowingly make illegal registrations, but Mr. President, it will deter a great many good men from taking the responsibility of attempting to register men in the counties if you put such a penalty as that right before them, because they will not know when their discretion will be exercised wrongly. There is no distinction made there between the judicial and the ministerial acts of registration, and the man will put himself in a position to be prosecuted, and fined two hundred and fifty dollars if perchance he has under the construction of the law, not intentionally, but wrongfully registered an improper person.

 MR, SANFORD (Montgomery)– Suppose he does it corruptly?


3443

CONSTITUTIONAL  CONVENTION, 1901

MR. CHAPMAN‑That is a presumption that he is going to do it corruptly‑ and I do not think we should indulge such a presumption as that against these registrars. I renew the motion of

the delegate from Madison to lay the amendment on the table.

MR.. BLACKWELL‑And I call for the ayes and noes.

The call was not sustained and upon a vote being taken, the motion to table prevailed.

MR. BROWNE‑I have an amendment.

The amendment was read as follows:

"Amend Article on Suffrage by adding the following section thereto: Section – . The legislature is authorized to raise the limit of age to which the payment of poll tax is required under this article, from forty‑five years to not more than sixty years."

MR. BROWNE‑ The difference between that amendment and the one I proposed yesterday; which was voted down, is that the amendment voted down yesterday left it discretionary with future legislatures to fix the minimum as well as the maximum limit of age.  It was argued by the gentleman from Lauderdale.  Mr. O'Neal, that a Republican or Populite Legislature  might convene and might lower the limit to thirty years, in order that all the colored people, or most of them, might register. This amendment simply leaves it discretionary with the legislature to raise the limit from forty‑five to sixty years, if it should ever become necessary.  For one, I believe, in ten or fifteen years, it may become necessary, while I do not now believe it is necessary.  There are very few colored men in the State of Alabama, comparatively speaking, over the age of forty‑five years who can read and write the Constitution of Alabama, but in the future, if, as is predicted by some of the gentlemen upon this floor, the negroes are to become educated so rapidly it may become absolutely necessary, and I believe, Mr. President, firmly that whenever in the future, it shall be demonstrated that it is necessary to raise the poll tax limit from forty-five to sixty years—

MR. OATES‑Have you in your proposition the words: "If it is necessary?‑ or is that only implied?

MR. BROWNE– I do not say, "If necessary," but that is implied. The legislature can do it when they desire to do it, but of course they will not do it unless they deem it necessary.

MR. WHITE– I desire to say that the Committee will accept that.

MR. BROWNE‑Then I hope it will be adopted, and I move the previous question upon this amendment.


3444

OFFICIAL PROCEEDINGS

A reading of the amendment was called for and the amendment was read.

The main question was ordered.

PRESIDENT PRO TEM.‑The question is upon the amendment proposed by the gentleman from Talladega.

Upon a vote being taken, the amendment was adopted.

PRESIDENT PRO TEM.‑The question is upon the engrossment and third reading of the article.

MR. BEDDOW‑I have an amendment which I desire to offer.

The amendment was read as follows: "Section 20. The affidavit of an applicant for registration under paragraphs one and two of Section 4 of this Article, based on his personal knowledge or information and belief, shall be sufficient evidence to entitle the applicant to registration as a voter.

MR. BEDDOW‑Under the Suffrage Article as it now stands, we have given the right to the descendants of war veterans to vote without complying with certain requirements imposed upon other proposed voters. There has been during the discussion of this grandfather clause basketfuls of flowers thrown at this class of citizens known as the descendants of deceased veterans, but in my opinion, without this amendment these flowers will be something of an artificial nature, such as the ladies wear upon their hats, without perfume or fragrance. Under the rules of evidence the descendants of a soldier desiring to register, has the burden of proof on him to show that he is a descendant of a deceased soldier. In most instances, this cannot be done by knowledge, and any evidence tending to show his relationship to the deceased veteran would be mere hearsay. With this amendment, it allows him to qualify and take advantage of this clause, which was passed in his behalf, by testifying upon information and belief. I do not suppose that there is one in ten of the descendants of veterans who knows of his own knowledge that his father ever fought in any war. He was not there, he did not see it; his mother was at home and he did not see it, hence it is that the burden of proof is upon him to show that, and the rule of law that says a man cannot testify and give in evidence matters that are merely hearsay, will make "it hard upon him and he might not be able to qualify under that provision. This amendment, if adopted, will allow him to qualify upon information and belief.

MR. MULKEY– Under the law there is an exception as to that,

MR. BEDDOW– I do not understand it so. That is all I care to say. That is my object in offering the amendment.


3445 

CONSTITUTIONAL CONVENTION, 1901 

MR. HOOD‑ I do not think there is any uneasiness in the minds of the delegates to this Convention that there will be any trouble in the registration of the soldiers and their descendants under the scheme that has been adopted by this Convention. That being true, sir, I move to lay the amendment of the gentleman from Jefferson on the table.

MR. BEDDOW‑On that I call for the ayes and noes.

A reading of the amendment was called for and the amendment was read. The call for the ayes and noes was not sustained.

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

MR. KIRK‑I have an amendment to offer.

The amendment was read as follows:

"Amend Article on Suffrage and Elections by adding the following as Section 20:

Section 20. After the 1st day of January, 1903, the following persons having the qualifications prescribed in Section 2 of this Article, shall be qualified to register as electors. provided they shall not be disqualified to register under Section 6 of this Article. to wit: All male persons who were, on the 1st of January, 1867, or at any date prior thereto, entitled to vote under the Constitution and laws of any State of the United States, wherein he then resided, and the lawful male descendants of such persons on arriving at the age of 21 years and not disqualified under Sections 2 and 6 of this Article.

MR. KIRK‑Mr. President and Gentlemen of the Convention :  It is only from a sense of duty to the people that I represent that I ask you to consider the question presented in the resolution or amendment just read by the clerk. Now, gentlemen, I presume that no man will disagree with me on this proposition—

MR. SANDERS‑Quite a number of us would like to hear that amendment read again.

The amendment was read as requested.

MR. KIRK‑ Now, gentlemen. I presume that no one will disagree with me on the proposition that in order to maintain this republican form of government in its original purity, it is necessary to place the ballot in the hands of all good and pure citizen.  I plant myself squarely upon that proposition‑that, in a republican form of government, the ballot‑the right to select their rulers, should be accorded to every citizen who is a true and upright man.  The plan which I suggest by this amendment, you all recognize is not original with me, but is the Louisiana plan, pure and simple.


3446

OFFICIAL  PROCEEDINGS

It extends the ballot to a class of men, Mr. President. beyond that which is provided in the plan or the scheme that has been adopted by this Convention. It will embrace more people : it will give more men the right to vote than will have it without this amendment. They will be qualified electors. Mr. President, because this amendment  provides that they shall not be disqualified by Section 2 and Section 3 of this Article.  That is a higher test than we have ever before had in the State of Alabama. Our people have been taught that in order to maintain a republican form of government, manhood suffrage was right and proper. We have always had manhood suffrage in this State, but the condition that confronts us today demonstrates to us that it is necessary to curtail that to some extent. in order to get rid of the ignorant and vicious — the ignorant and the vicious, as we all understand the term, to apply to the colored race.

Mr. President, I say that this Convention is under obligation to the people of the State of Alabama to adopt this amendment or something similar thereto. When this Convention was called, it was shown that the people of the mountainous portion of the State was opposed to it, because they believed that a large number of them would be disfranchised. The Democratic party met in Convention and adopted a platform which pledge itself that no white man should be disfranchised. When I canvassed the mountainous part of my county, gentlemen, those white men that gathered around me to hear what I had to say upon the subject were extremely cautious. They asked me time and time again, how we were to disfranchise the negro and at the same time not disfranchise any white man. I told them, gentlemen, that Louisiana had done it. “Yes, but, “ they said, “will Alabama do it?” My only response to that was that we have here before us today, and I had it in my hand, the platform of the Democratic party which pledged every member of the Democratic party to that promise, and I said to them, “Can you believe that I or the Democratic party of Alabama would be willing to disfranchise the noble white men of this section of the State?”

MR. CUNNINGHAM– Will the gentleman from Colbert please point out in what particular the present suffrage plan, as it has been passed, will disfranchise a single white man in Alabama unless he is disqualified under Section 6.

MR. KIRK– He might fail to register for some cause, during the period that he was—

MR. CUNNINGHAM– Then whose fault would that be?

MR. KIRK– It may be that of Providence. You cannot tell who might be providentially hindered from registration. Then, again, there are boys growing up today throughout the hill counties of Alabama, who will not be able to register under the per-


3447

CONSTITUTIONAL CONVENTION,  1901

manent plan– scores of them– and for this Convention to say to the people of Alabama that only men who are 21 years of age at the adoption of this Constitution, will be practicing a deception upon those people.

MR. ROGERS (Sumter)‑I want to know if any one under 21 years of age is a man? We guaranteed not to take away the rights of any man.

MR. KIRK‑The question answers itself from a legal standpoint, but I do submit that was not the spirit of that promise. If it was, I did not understand it and my people did not understand it, and those whom I now plead for when they arrive at the age of 21 years, if they can stand the test that is embodied in Section 2 and Section 6 of this Article, surely they ought to be given the right to vote. Take the educational test in the permanent plan : now we all know that Alabama has undertaken the education of its children–

MR. ASHCRAFT– Will my friend permit me to ask a question ?

MR. KIRK‑Yes, sir.

MR. ASHCRAFT‑In answer to the gentleman from Jefferson you said, under the present plan, those who were not able to register under the temporary plan, would also not be able to register under the permanent plan. Now is it not a fact that the temporary plan for registration in Louisiana was brought to a close in as short a time as the present temporary plan is brought to a close.

MR. KIRK‑I think that is correct.

MR. ASHCRAFT– Wasn't that Louisiana man the very highest and best offer that we could make to our people?

MR. KIRK‑I think the first proposition stated by the gentleman is correct, but I submit, Mr. President, that that does not answer the proposition. I was going to say that we have both a property and educational qualification in the permanent plan, and under the system that Alabama has adopted for years, the education of the poor children of the State has been undertaken by the State. We tell these people that we are levying a tax upon them to educate their children, and they necessarily, those especially of moderate means, are sitting back and expecting and waiting for the State to educate their children. What are we doing for them?  We are appropriating the paltry sum of $1.30 a year for the educating of each one of these children, and while we are doing that, we are here adopting a Constitution which will prevent them from exercising the right of the franchise, which I say is wrong.


3448

OFFICIAL  PROCEEDINGS

MR. CUNNINGHAM‑I move that the time of the gentleman be extended ten minutes.

Upon a vote being taken the gentleman’s time was extended.

MR. KIRK‑Now, gentlemen,. I submit to you that with the meager amount we appropriate to the education of these boys, is it right that we should here by this Constitution deprive them of the right to exercise a voice in the election of their officers. A dollar and thirty-five cents per annum, the State has donated for the education of these children, and we all realize the fact that men in moderate circumstances wait for the State to educate their children, for the reason that they are unable to raise the money to educate them, and the State has undertaken that duty. Gentlemen, let us not deprive them of the right to vote so long as the State of Alabama is unable to furnish them with the necessary means of acquiring an education. Take the property qualification: Three hundred dollars seems to us in this Convention to be a very small amount, but you take the great mass of people that inhabit the mountainous part of our State, and it is a tremendous sum to them. It is a very difficult matter for a man with a large family to accumulate that amount of property, and if he had not the property nor the education, he is denied the right of the franchise. And where is the tendency of the times with the creation of the trusts and combines? Everything tends toward centralization, and I submit to you gentlemen, that the poor man of the next 25 years in the State of Alabama will have an awful hard time to either acquire education or to acquire three hundred dollars of property. Now, no harm can result to any one by the adoption of this amendment, so far as the question of the constitutionality—

MR. WALKER (Madison)– Isn’t it a fact that on the first day of January, 1867, the qualifications for voters in Alabama was that of being male white citizens?

MR. KIRK– Yes, sir.

MR. WALKER– Then would not the provision you now offer necessarily write into this Constitution the qualification of being white men?

MR. KIRK– The provision will answer that. This provision includes every man that could vote either in Alabama or any State in the United States.

MR. WALKER– Then it would apply to every one who had the qualification of being a white man in 1867.

MR. KIRK– No, sir, freed men were allowed to vote prior to 1867 in some of the States. If this limited the provision to the State of Alabama, I think the objection to the constitutionality


3449

CONSTITUTIONAL  CONVENTION, 1901 

of it would be correct, but it does not, and I think no one would deny the fact that some of the Northern States admitted freed men to vote at that time, or some date prior thereto, and if they did, this provision includes every man that could vote in any State in the Union. Then there is no discrimination against him because he is a colored man.  As I was going to say, the principle involved in this question, so far as the constitutionality of it is concerned, is the same that is involved in the grandfathers clause of the temporary plan, and if that is constitutional, I submit this will be. I do not care to make any further remarks on that proposition.

MR. WHITE– I do not wish to discuss this section that is offered. The matter was thoroughly considered in the committee. and we were unanimously of the opinion that it was  violative of the 15th article of the Federal Constitution, and I believe we were equally unanimous in believing that it was vicious and would perpetuate indefinitely the right to inherit the ballot.  Therefore, I move to lay the amendment upon the table.

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

The call was sustained.

Upon the call of the roll, the motion to lay the amendment on the table prevailed by a  vote of 80 ayes to 23 noes, as follows:

AYES.

Messrs. President,

Glover,

Ashcraft,

Graham, of Montgomery,

Maxwell,

Banks,

Graham, of Talladega,

Merrill,

Barefield,

Greer, of Perry,

Miller (Marengo),

Beddow,

Handley,

Miller (Wilcox),

Bethune,

Harrison,

Morrisette,

Blackwell,

Hinson,

Murphree,

Boone,

Hood,

NeSmith,

Brooks,

Howell,

Norman,

Browne,

Inge,

Oates,

Burns,

Jackson,

O’Neal (Lauderdale),

Cardon,

Jenkins,

O’Neill (Jefferson),

Carnathon,

Jones, of Bibb,

Opp,

Chapman,

Jones, of Hale,

Palmer,

Cobb,

Jones, of Montgomery,

Parker (Cullman),

Craig,

Jones, of Wilcox,

Parker (Elmore),

Cunningham,

Kyle,

Pearce,

Davis, of DeKalb,

Ledbetter,

Pillans,

Dent,

Leigh,

Robinson,

Duke,

Lomax,

Rogers (Lowndes),

Eley,

McMillan (Baldwin),

Rogers (Sumter),

Eyster,

McMillan (Wilcox),

Samford,

Fletcher,

Malone,

Sanford,

Selheimer,


3450

OFFICIAL PROCEEDINGS

Smith (Mobile),

Walker,

Williams (Marengo),

Stewart,

Weatherly,

Wilson (Clarke),

Tayloe,

White,

Winn,

Waddell,

Williams (Barbour),

TOTAL– 80

NOES

Almon,

Haley,

Porter,

Bartlett,

Heflin, of Chambers,

Sanders,

Beavers,

Hodges,

Smith, Mac. A.,

Byars,

Kirk,

Spears,

Carmichael, of Colbert,

Lowe (Lawrence),

Spragins,

Cofer,

Macdonald,

Thompson,

Davis, of Etowah,

Pettus,

Whiteside,

Freeman,

Phillips,

TOTAL– 23

ABSENT OR NOT VOTING

Altman,

Heflin, of Randolph,

Reese,

Bulger,

Henderson,

Renfro,

Burnett,

Howze,

Reynolds (Chilton),

Carmichael, of Coffee,

King,

Reynolds (Henry),

Case,

Kirkland,

Searcy,

Coleman, of Walker,

Knight,

Sentell,

Cornwall,

Locklin,

Smith, Morgan M.,

deGraffenreid,

Long (Butler),

Sollie,

Espy,

Long (Walker),

Sorrell,

Ferguson,

Lowe (Jefferson),

Studdard,

Fitts,

Martin,

Vaughan,

Foshee,

Moody,

Watts,

Foster,

Norwood,

Weakley,

Gilmore,

O’Rear,

Willet,

Grant,

Pitts,

Williams (Elmore),

Grayson,

Proctor,

Wilson (Washington),

PAIRS

AYES

NOES

Coleman, of Greene,

Mulkey,

Greer, of Calhoun,

Sloan,

Mr. White was recognized by the Chair.

THE PRESIDENT PRO TEM– Does the gentleman from Jefferson yield?

MR. WHITE– Yes, sir.

MR. JENKINS– I have an amendment.

The amendment was read as follows:


3451 

CONSTITUTIONAL CONVENTION, 1901 

"Amend the Article on Suffrage by adding the following thereto as an additional section to be known as Section 20 : ‘In addition to the permanent qualifications for suffrage, provided for in Section 3, every voter shall be of good character for truth and veracity as now interpreted by the courts; but such good character shall be presumed until challenged, and no person shall be challenged on less than three affidavits of three reliable and responsible citizens stating that they know the general character for truth and veracity of the person challenged, and that from that knowledge they would not believe such person on oath. Upon the challenge of any person under this section, it shall be the duty of the Registrars to sit as a jury and decide as to the good character of the person so challenged, and any person denied the right to register under this section, shall have the right to appeal to the Circuit or City Court or court of like jurisdiction in the county, and the person so appealing may wave a jury if he so elects in each case and the decision of the court shall be final as to the right of such person to register under the provisions of this section.' "

MR. JENKINS– I just want to submit a few remarks. I have studied this report brought in by the Committee, and I think it is good so far as it has gone, but it is my candid belief that you have not gone far enough. You have made it too easy to get upon the voting list, and unless you assure the section that I come from that white supremacy is going to be maintained fairly and honestly, under this Constitution. you will never persuade the leading men in that section to give up the security and peace that they now have, to bring in a crowd of voters that may overturn white rule in that section. Now, Mr. President, where does it stand?  After 1903 any man that can read and write can vote under this Constitution. If you, take the census, you will see that in my county there are 1,900 negroes that can read and write and 1,500 whites. Now, it is true some of them will be disfranchised by the poll tax‑those under 45 years old. But, if Mr. President, we are just presuming that. They may pay the poll tax if they find out they are going to vote and get the offices of the county by doing it. There will be some designing man shrewd enough to get up this money and pay the poll tax for them, but if you put on this additional qualification that they must have a good character for truth and veracity, you can challenge every last living one of them when it comes down to the pinch, because I do not know probably 100 white men in the county that would come up and testify on oath that they would believe a negro on oath. Now, Mr. President, there are not more than 100 white men that you would challenge an oath and you could not get three responsible white men to come up and say they would not believe them on oath, and for that reason you could not knock out any of them, I don’t believe, but you could knock out every negro in the county, except a few. If this is a fact, it is their own fault; it is the de-


3452

OFFICIAL PROCEEDINGS

pravity that they have brought upon themselves, and it is right that we should take advantage of it. Nearly every state in the Union has some such qualification. Connecticut, the nutmeg State, the leading State of New England, has a good character clause in its Constitution. Is it wrong for us to have it? You will say: “Oh, it will put to much power in the hands of the Registrars. They might come in and knock out all free silver men or gold men, or all Populists or Republicans. I say they cannot do any such things, because there is an appeal from the decision of that board, and before the board can act there must be three affidavits signed by three responsible people, stating that they challenge the person it is proposed to keep from voting, and then after that board passes upon it, there is an appeal to the Circuit Court or to the City Court, and then you will have as fair a trial upon the voter’s truth and veracity as you will upon his right or property or any other right. And there you have a provision that if a man doesn’t want a jury, he can waive it, and go before the Judge of the Circuit Court, and the Circuit Courts are presided over by able, pure-minded men, and they are not going to disfranchise any white Alabamian who deserves to vote; but if a negro comes up there, they will let the law go down on him, and, if he can’t stand the test, he will go out.

I say you have got to put on some other qualification. I voted for the extreme limit of the poll tax yesterday, because I did not think you had the thing fixed strong enough. I call the attention  of the Convention seriously to this thing. As it stands now, there is a restlessness among the people I have talked with– an uncertainty as to the workings of your Article, and I believe if a vote were to come off tomorrow, it would be voted down. Now, this is a fact that we must look in the face. We will have hard work to get this Constitution ratified, and if we can add here today any provision or section that will strengthen it with the people, and assure the people of my section that white supremacy will be maintained under the Constitution legally and honestly, sir, I believe that your Constitution will go in with an overwhelming vote. But with the Black Belt in doubt, and wavering and uncertain and undecided what to do, and the white counties up in arms against you, why, sir, I do not know where we are going. We should adopt something here today that will at least satisfy the Black Belt portion of the State, and that will satisfy the old soldier vote and the honest people and the people of virtue and intelligence and good character in the State; and, when you do that, your Constitution will be ratified.

MR. DENT– It seems to me that it is not necessary to put so much machinery in the Constitution. The plan has been studied, and, if worth anything, ought to stand like it is, and I , therefore move to table the amendment offered by the gentleman from Wilcox.


3453   

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken, the motion to table the amendment prevailed.

Mr. White was recognized by the Chair.

MR. WHITE‑The gentleman from Montgomery desires to offer an amendment, and I yield for that purpose.

MR. SANFORD (Montgomery)‑I offer an amendment.

The amendment was read as follows: (An additional section) :

“Any person who shall pay the poll tax for any elector, for the purpose of controlling or influencing his vote, upon conviction. shall be disfranchised, and shall hold no office in Alabama.”

MR. SANFORD (Montgomery)– That is offered in accordance with Section 6, submitted by the Committee. It is an additional prohibition of any form of bribery or corruption, because a man of large means could pay the poll tax of a large number of men, and thereby contribute very largely to his success in the primaries or in the Convention nominating candidates, and therefore, I offer it.

MR. ROGERS (Sumter)– Your amendment says “for the purpose of controlling his vote or influencing it?”

MR. SANFORD– Yes, sir.

MR. ROGERS– How are you going to tell it was for that purpose?

MR. SANFORD– It would be a matter of proof, in case he is put on trial. If you cannot prove it of course he cannot be convicted.

MR. O’NEAL (Lauderdale)– Why not take the Louisiana clause?

MR. CUNNINGHAM– I would like to ask the gentleman from Montgomery a question.

MR. WHITE– The Committee say they are willing to accept that if it is the wish of the Convention, and I ask the previous question.

MR. CUNNINGHAM– Before the question is put, I would like to say that I don’t think that amendment goes quite far enough. I would like to ask the Chairman of the Committee, that, if a citizen from another State, feeling an interest in national elections, in his own person, and not through a citizen residing here, pays the poll taxes, could you disfranchise him in the State in which he lives?

MR. WHITE– We could not do that.


3454

OFFICIAL  PROCEEDINGS

MR. CUNNINGHAM‑I want something to cover the fellow that is going to come here from another State and. pay the poll tax of those fellows.

MR. WHITE‑The legislature can take care of that. The legislature can provide against everything of that kind.

MR. CUNNINGHAM ‑ I just wanted to say that I am heartily in favor of the purpose of this amendment. It is right but I do not think we ought to apply the punishment to our own citizens alone. I believe if a national organization sends its emissaries down to this country, they ought to be punished by putting them in  the  penitentiary.

A reading of the amendment was called for.

THE PRESIDENT PRO TEM‑The Chair will not feel obliged to have this amend read any more, and will ask the delegates to pay attention to the reading.

The Secretary read the amendment as follows: Any person who shall pay the poll tax of any elector for the purpose of influencing his vote upon conviction shall be disfranchised and shall hold no office in Alabama.

MR. CUNNINGHAM– I desire to ask some of these lawyers here to prepare a substitute for that to punish the man who comes here from another State and pays out the money. With that in

it, it will be all right. I have not the time to prepare one.

MR. O'NEAL‑I have an amendment.

The Secretary read the amendment as follows: Any person who shall pay the poll tax of another, or advances the money for that purpose in order to influence his vote, shall be guilty of briberty and punished accordingly.”

MR. CUNNINGHAM– That is the stuff. (Laughter.)

MR. SAMFORD (Pike)– I rise to amend the motion of the gentleman from Jefferson by moving the previous question upon the article and the substitute.

A vote being taken, the previous question was ordered.

THE PRESIDENT PRO TEM.– The question is upon the amendment proposed by the gentleman from Lauderdale to the amendment proposed by the gentleman from Montgomery.

MR. SAMFORD (Montgomery)‑I accept the amendment.

THE PRESIDENT PRO TEM– The gentleman from Montgomery asks unanimous consent to accept the amendment of the gentleman from Lauderdale.


3455

CONSTITUTIONAL CONVENTION, 1901

The consent was given. A reading of the amendment was called for and the same was again read by the Secretary.

MR. SANFORD (Montgomery)‑That is in addition to the one I offered: that does not reach the point at all.

THE PRESIDENT PRO TEM.‑The gentleman obtained unanimous consent to accept the amendment.

MR. SANFORD (Montgomery)‑The purpose I had in offering the amendment was to make it a very serious loss to these men who may be candidates and who desire to obtain nominations----------

MR. GRAHAM (Talladega)‑  I rise to a point of order.

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

MR. GRAHAM‑ The gentleman is out of order, the previous question has been ordered.

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

MR. SANFORD (Montgomery)‑Have I not a right to conclude on my own proposition?

THE PRESIDENT PRO TEM.– The Chairman of the committee has the right to conclude.

MR. SANFORD (Montgomery)‑ So far as that is concerned, I am a committee of one, and I have a right to state why I did it.

There were cries of "leave."

MR. SANFORD‑I have but a few words to say.

MR. WHITE‑I yield the gentleman five minutes of my time.

MR. SANFORD (Montgomery)‑I am very much obliged to you. I simply wish to say that it is to meet that class of men who will seek to corrupt the electors by paving the tax, it is to disfranchise him and prevent his holding an office in Alabama, that is the reason I offered it, to punish him for paying the tax of men who pass through the country as tramps.

MR. O'NEAL‑If a man is convicted of bribery he is punished under Section 6.

MR. SANFORD (Montgomery) ‑ The gentleman may be right on that– that answers every purpose.

THE PRESIDENT PRO TEM. ‑ The question is on the third reading of they article as many as favor the engrossment and


3456

OFFICIAL PROCEEDINGS

third reading of the article say aye. The ayes have it and the article is ordered to engrossment and a third reading.

MR. SAMFORD (Pike)‑I would state that that would come when the Committee on Engrossment makes its report.

MR. WHITE‑When the article is engrossed the committee will ask further orders in the premises.

THE PRESIDENT PRO TEM. ‑The Secretary will read the article of the Committee on Judiciary.

MR. SMITH (Mobile)‑I move that the report be read and acted upon by sections.

THE PRESIDENT PRO TEM. ‑The gentleman from Mobile, chairman of the Committee on Judiciary, moves that the report of that committee be taken up and acted upon section by

section.

A vote being taken the motion was adopted.

The Secretary read Section 1 as follows:

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

MR. SMITH (Mobile)‑I move the adoption  of Section 1. I do not care to make any remarks on the question– the section has been read. I expect that there will be considerable discussion of the article in the Convention, and I simply move the adoption of Section 1 at this time.

PRESIDENT  PRO TEM‑The question is on the adoption of Section 1.

MR. KIRK – I have an amendment to Section 1.

The Clerk read the amendment as follows: “Amend Section 1 of the Article on Judiciary by striking out the words ‘twenty thousand' in line seven, and insert in place thereof the following words: ‘Thirty thousand’  and by striking, out the words ‘three millions five hundred thousand dollars' and insert in lieu thereof ‘seven million dollars.’


3457

CONSTITUTIONAL CONVENTION, 1901

THE  PRESIDENT PRO TEM. ‑ The question is on the amendment offered by the gentleman from Colbert.

MR. KIRK‑Mr. President and gentlemen of the Convention, the object of this amendment is to avoid the effort made by the Committee on Judiciary to create more courts in the State of Alabama than in my judgment should be created. Under the report of the Committee authorizing the legislature to create a court with chancery and circuit court jurisdiction in counties with twenty-five thousand population and an assessed value of property at three millions five hundred thousand dollars, will authorize the legislature to create nineteen or twenty courts of that character at the expense of the State. Twenty courts more than we now have, that are doing the business of the State. It is placing a burden on the State that in my judgment is unnecessary to do. We have thirteen circuit courts and five chancellors doing the business that is required. Under the report of the Committee there can be added to those thirteen circuit courts nineteen more. We will then have something like thirty or thirty‑five courts at the expense of the State and the work is now being done by thirteen circuit judges and five chancellors.

MR. PILLANS– Will the gentleman allow me to ask a question right there?

MR. KIRK‑Yes, sir.

MR. PILLANS‑‑Under the present Constitution of Alabama the legislature has the power to establish that court in sixty‑six counties of the State, has it not?

MR. KIRK‑At the expense of the State?  I think not.

MR. PILLANS ‑ Has  not it the same power in sixty‑six counties, under the present Constitution that it would have in this in some nineteen counties?

MR. KIRK‑I think not.  At  the expense of the State?

MR. PILLANS‑I did not say anything about the expense of the State. I asked the gentleman whether the power to put it in nineteen counties in that proposed amendment does not exist in sixty‑six counties under the present Constitution ?  The gentleman does  not care to answer my question directly.

MR. KIRK– The question of the gentleman from Mobile, perhaps, can be answered in this way. The legislature would have the right to create a court of that kind at the expense of the coun- ty, but not at the expense of the State. Now my position is, that if a county wants those courts as a matter of convenience, and not as a matter necessity, let them have them.

MR. DUKE – I wish to ask the gentleman a question.


3458

OFFICIAL PROCEEDINGS

PRESIDENT PRO TEM.‑Will the gentleman yield?

MR. KIRK‑Yes, sir.

MR. DUKE‑I will ask the gentleman if he states it as a matter of law that the legislature now could not create a county court in each county in the State and make the State pay for it?

MR. KIRK‑I do not state  that as a matter of law that they could not, because have not examined that proposition.

MR. PILLANS– One more question, and I will try not to interrupt further, it is bringing out fairly the discussion. Is there anything in this proposed first section which imposes the burden of the local court upon the State treasury, any more than the burden of the inferior court, which might be established by the legislature under the existing Constitution? Is there a line which declares that the burden of the local court shall be imposed on the State Treasury which does not also find a place in the existing Constitution?

MR. KIRK– I will say in answer to that question that this is simply a part of the scheme or plan I will call it– I do not mean any disrespect by saying scheme– that question was up the other day. I think embodying that in the first section is a part of the plan which appears later in Sections 2 and 9. When I was preparing my minority report on this question, I overlooked the fact that this clause was in Section 1, or I would have made a minority to this section reported by the Committee, and embraced that in the minority report, I think is it a part of a plan that seeks to have the legislature to create this number of courts which I think is  unnecessary.

President Knox resumed the Chair.

MR. BAREFIELD– Will the gentleman permit a question?

PRESIDENT– Will the gentleman yield to a question?

MR. KIRK– Certainly.

MR. BAREFIELD– I understand by your amendment you strike out the words ‘twenty thousand’ and insert ‘thirty thousand.”

MR. KIRK– Yes, sir.

MR. BAREFIELD– And insert “seven millions” for “three and a half millions.”  Isn’t the principle just the same?

MR. KIRK– Yes, sir. But further on I propose to show in my minority report that in certain counties, in all counties where they have thirty thousand population and seven millions of assessible property, that the legislature would be authorized to create a court of the kind asked by the Committee in their report.


3459

CONSTITUTIONAL CONVENTION, 1901

MR. BAREFIELD ‑ Under that you would be willing for

those counties with assessable property of seven million and thirty thousand population to take out of the State Treasury a given amount of money, and not for other counties to do it?

MR. KIRK‑That is my proposition.

MR. BAREFIELD‑Your proposition is in favor of the greater and against the lesser ?

MR. KIRK‑That is inv proposition exactly, wherever the assessable value of property and the number of population and the amount of business required it, then a court should be created. Now, you take the plan offered by the Committee. and under it the county of Lauderdale will be entitled to a separate court to transact the business of Lauderdale County. Today the business of Lauderdale, Colbert, Franklin and Marion Counties is done by one Circuit Judge, who works a little more than one‑half of his time.  What would be the sense of creating a separate court for the county of Lauderdale at the expense of twenty‑five hundred dollars a year to the State, when one Circuit Judge can attend to all the business of that county and three other counties at the same expense ?

MR. WALKER (Madison)‑The gentleman is entirely mistaken in saying that under this provision in Section 1, any county in the State will be entitled to a court.

MR. KIRK‑ Not under this, of course; but, gentlemen, I take it to be the part of the plan of the Committee to establish these courts. If as is contended by the gentleman who asked the ques‑ tion, the Legislature has the same authority under the present Constitution that it has under the provision reported by them in this section, then why do they want this clause embodied in the section? It could be stricken out and leave it just as it is in the present Constitution.

MR. DUKE– Does it not limit the Legislature?

MR. KIRK–  Yes.

MR. DUKE‑And there is no limit now?

MR. KIRK‑Provided it is not done at the expense of the State.

MR. COBB‑Where do you find it in the Constitution?

MR. KIRK‑I did not say it is in the Constitution, but I submit that it is a part of the plan, and by striking this out, we simply leave the first section in the new Constitution as it was in the old.

MR. WATTS‑This provision in Section 1 was put there for the purpose of changing the law as it now exists. Under the


3460

OFFICIAL PROCEEDINGS

Constitution of 1875, the Legislature would have the right to establish a special court in every county, and at every cross roads in this State. The purpose of putting this limitation there is that the people of the respective counties, or the State Treasury, if the Legislature should so determine, should not be burdened with special courts except in such counties of the State where the number of people and the amount of taxable property in the county justified the Legislature in giving a special court. The Committee had various and sundry propositions before it as to this limitation. One proposition was to make it twenty-five thousand of population and four million of taxable property; another proposition was to make it of twenty-five thousand population and three million taxable property; and another that it should be twenty thousand of population and four millions of property; there were various and sundry propositions, all looking to the limitation of the power of the Legislature in creating new courts. As you know, in the past it has been the practice of the Legislature if the representative from a county said he wanted a special court for his county, Senatorial courtesy or House courtesy, as the case would be, allowed the representative from that county to govern in the matter, and they have established various and sundry courts. Why, we have actually got a court in Alabama that has law, equity and criminal jurisdiction, where the judge does not get a salary of $850.

MR. KIRK– Is that paid by the State?

MR. WATTS– No; and I do not think in any of these counties are paid by the State, but by the respective counties. There is another provision in here that they shall be paid by the State or by the county. It is for the Legislature to say, and the Legislature will evidently do in the future as it has in the past, where ever it establishes one of these courts, it will provide how the judges shall be paid. This is a limitation, instead of allowing the Legislature to establish a court in each of the sixty-six counties, or, as I said before, to establish an independent court at every cross roads in the State, we simply say you shall not establish a Circuit Court except where there are twenty thousand persons in the county and where there are three million five hundred thousand dollars worth of taxable property.

MR. KIRK- What objection would you have to any county in the State having a court in that county regardless of its population or its assessed value of property, if the county was willing to pay the expense of the court?

MR. WATTS– Simply because there is no necessity, Mr. President, and gentlemen of the Convention, for having the Legislature fill the woods with officers holding judicial powers in this State. The Committee has considered this matter in all its phases.  Under this provision, there are already eight counties in this State,


3461 

CONSTITUTIONAL CONVENTION, 1901

as I understand, who have these special courts–  this gives twelve others the right to have them.

MR. PILLANS‑Not the right, but gives the Legislature the power to give it to them.

MR. WATTS‑Yes, the right to the Legislature to give it to them if any necessity should arise.  We thought the provision as framed by the Committee a salutory one, and move in the right direction, and we think it should be adopted, and I therefore, move to table the amendment of the gentleman from Colbert.

THE PRESIDENT PRO TEM‑The question is on the motion to table the amendment of the gentleman from Colbert.

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

MR. SAMFORD (Pike)‑I move the previous question upon the section as reported by the Committee.

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

The Secretary read Section 2 as follows:

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

MR. SMITH (Mobile)– I move the adoption of that Section.

THE PRESIDENT PRO TEM– The Secretary will read the minority report.

The Secretary read the minority report as follows:

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

I object to the adoption of Section 2 of said Report for the reason it empowers the General Assembly to create an intermediate Court of Appeal, which in my judgment is unwise.  The object of the majority of the Committee is to furnish relief to the Supreme Court.  The relief  needed can be furnished when necessary by increasing the number of Associate Justices. I object to

the creation of said Court for the further reason there will be ir‑


3462

OFFICIAL PROCEEDINGS

reconciliable conflict in the decisions of this and  the Supreme Court which would render the law uncertain on many questions to the great annoyance of the people. The expense of sustaining that Court will, in my judgment cost the State about $15,000 per annum. The addition of two associate justices to the Supreme Court will not cost more than half of that amount. I therefore offer as a substitute for Section 2 the following:

Section 2. Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations not repugnant to this Constitution as may from time to time be prescribed by law; Provided, the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warranto and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdiction.

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

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

MR. ASHCRAFT– The report of the committee and minority reports were read when made, and this morning the report of the Committee was not read at all. We proceed at once to the consideration of the amendment.

THE PRESIDENT PRO TEM– It seems to the Chair that the point of order is well taken, the Chair intended to request the Secretary to read the proposed amendment. The question will be on the adoption of the report of the gentleman from Colbert of the Minority Committee.

MR. KIRK– I do not care to make a speech on this question.  My reasons are stated in my report. I think the Minority Report should be adopted. I see no reason for that court of appeal. I have discharged my duty in bringing that proposition before the Convention. It is my conviction that that court should not be established, the Legislature not given the authority to establish it. If it is ever established I think the people of the State will regret it.

MR. PILLANS– Of course I shall not detain the Convention but a few minutes, because the gentleman who has moved this important amendment has not thought it proper to say much in support of it. I desire, however, to call the attention of this Convention to the fact that the clause as reported is substantially almost in words, the clause exists as Section No. 2 of the Judiciary Article in the present Constitution, and under the existing Constitution of Alabama, and under the Constitutions of Alabama which have existed since 1819, this dangerous power which the gentle-


3463

CONSTITUTIONAL CONVENTION, 1901

man finds in our report existed unquestioned. It is always within the power of the Legislature of Alabama to do this thing which he now objects to. Now there is no plan, there is no scheme in this report, the report simply seeks to trammel the Legislature as little as necessary to the good government and due organization of the State Judiciary, and in so doing it has brought forward into the plan proposed in Section 2 the powers which always existed in the Constitution of Alabama. Therefore, Mr. President, I move that the amendment offered in behalf of the Minority Committee be tabled.

Upon a vote being taken the motion to table prevailed.

MR. SAMFORD (Pike)‑I move the adoption of the Section as reported by the Committee and upon that I move the previous question.

MR. SANFORD (Montgomery)‑Can I ask a question. In the second Section don't it provide practically for two Supreme Courts ?

MR. SAMFORD (Pike)‑No sir.

MR. SANFORD (Montgomery)‑It says an Appellate Court, which shall be final besides the Supreme Court.

MR. SAMFORD (Pike)‑I call the gentleman's attention to the fact that it only gives the Legislature power to do so in case it may become necessary in the future it does not establish any

court at all.

MR. SANFORD (Montgomery)‑Did you ever know a Legislature that did not exercise a power and sometimes abuse it?

MR. SAMFORD (Pike)‑Yes sir.

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

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

The Secretary read Section 3 as follows:

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

MR. SMITH (Mobile)‑I move the adoption of that Section, there is no change from the old Constitution.

Upon a vote being taken the Section was adopted.

The Secretary read Section 4 as follows:


3464

OFFICIAL PROCEEDINGS

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

MR. SMITH (Mobile)‑‑‑I move the adoption of Section 4.

A vote being; taken the section was adopted.

The Secretary read Section 5 as follows:

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

MR. SMITH (Mobile)–  I move the adoption of Section 5.

MR. OATES– I desire to ask the chairman of the committee a question. That does not, I believe, give the Circuit Court equity jurisdiction, does it still leave it in the power of the Legislature?

MR. SMITH– This section does not touch that question, but subsequent sections do authorized an equity jurisdiction in the Circuit Court. The only change in this section is that by some curious oversight in our former Constitution no court was given jurisdiction in cases of assault and battery and ejectment where the amount was less than fifty dollars, it was outlawed under the old Constitution, and we simply brought that within the jurisdiction of the Circuit Court. No other change was made.

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

The Secretary read Section 6 as follows:

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

MR. SMITH (Mobile)– I move the adoption of Section 6.

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

The Secretary read Section 7 as follows:


3465   

CONSTITUTIONAL CONVENTION, 1901

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

MR. SMITH (Mobile)‑I move the adoption of that section.

MR. OATES‑I have not yet reduced it to writing, but I move to strike out that section, that is definite enough, I suppose, without putting it in writing, and I desire briefly to state my reasons for making that motion. Of course if it is stricken out, it does not affect the Chancellors who are now in office, and if I should be wrong in that opinion, then I would like to provide for that because I do not wish that such would be the case, but I presume in the preparation of the schedule that it would be there provided that the terns of no one legally in office now should be curtailed by the ratification of this Constitution. The reason, why I make this motion, I will briefly state. Next month. gentlemen, will be twenty‑six years since the last Constitutional Convention. I was convinced then that a separate chancery system was not necessary in Alabama, and I proposed in that Convention to strike it out as the Journal will show you upon examination. That Convention declined to do it, but since then many of the best informed lawyers in Alabama have arrived at the conclusion that the court is wholly unnecessary. As to its personnel we have Chancellors who are learned in the law, most excellent judges and gentlemen, one or two of whom are among my best personal friends, but I do not think that any man has a right o account of friendship to the action of his friends here, to preserve to him the office that he has, or to act upon the presumption that the job is his and he may be perpetuated. My idea is that we ought to do whatever is for the best for the people of Alabama at large. Now what is the necessity for these Chancery Courts? This separate chancery system has no jurisdiction except in three other States besides Alabama, so that forty odd States of the Union have no separate chancery system.  The courts of the United States have no separate chancery system, and only an equity docket which proves perfectly satisfactory. The States where there is no separate chancery system maintain most of them a chancery docket, and the Judge holding the law court is perfectly capable of deciding equity cases, and everywhere where it has been tested they have been found quite capable. In this country whomsoever is admitted to the bar and becomes a lawyer is learned in the law, in all branches of the law.  The separate chancery system was established by act of Parlia-


3466

OFFICIAL PROCEEDINGS

ment. It originated in Great Britain, where more than thirty years ago it was wiped out of existence by act of Parliament, and there is no such thing as separate chancery divisions there. Then why should we hold on to it? Is there any necessity for it? You can dispense with these five chancellors after the terms of the present incumbents expire, and with no necessity for their exercise in the future. Confer equity jurisdiction upon the law courts and you have accomplished everything necessary. Besides that, every one knows that now there is a chancery court held in every county in the State. Then of necessity there are sixty-six registrars, one in every county. These gentlemen live on costs and wish to get all they can by law. Every one knows that the Chancery is the most expensive court that litigants get into. For instance you go and file a bill and place a vendor’s lien upon a note of two or three hundred dollars, it is generally against a man who is insolvent and if the complainant gets out with two-thirds of his money, he is fortunate, the other one-third has gone in costs. Now if this Convention desires reform as is claimed and is held for the betterment of the government of Alabama here is a good place touching our judicial system to declare that a separate chancery system shall not be maintained because there is no necessity for it. Mr. President, presuming that the delegates all understand my position and the reasons for my motion, I do not wish to consume any more time.

MR. HEFLIN (Chambers)– I move to lay the motion of the gentleman from Montgomery on the table.

MR. OATES– Mr. President, I ask for a division.

Upon a vote being taken there were ayes 42 and noes 39 and the motion to table prevailed.

MR. GRAHAM (Montgomery)– I move the adoption of the section as reported by the Committee and call for the previous question.

MR. SANFORD (Montgomery)– Did a majority vote on that motion to table?

THE PRESIDENT– The Chairman is not keeping any mathematics this morning. A quorum voted, however.

The question is shall the main question be now put?

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

The Secretary read Section 8 as follows:

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


3467  

CONSTITUTIONAL CONVENTION, 1901

MR. SMITH (Mobile)‑I move the adoption of that section.

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

MR. BAREFIELD– I  give notice that on Monday I will move to reconsider the vote by which Section 2 of the Judiciary report was adopted.

The President read Section 9 as follows:

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

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

The Secretary read the minority report as follows:

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

First‑‑This section provides for the establishment of too many circuit courts and courts witli circuit and chancery jurisdiction.  Under the report of the Committee, the General Assembly is authorized to establish at the cost of the State, a court in nineteen counties with circuit and chancery court jurisdiction, which, with the thirteen circuit courts and five chancery courts as now established. I further object to Section 9 as reported by the Committee for the reason it authorizes the General Assembly to abolish the court of Chancery. The system of separate chancery courts has been too long a part of the judicial system of the State to be now abolished. I therefore offer as a substitute for Section 9 as reported by the Committee the following:


3468

OFFICIAL PROCEEDINGS

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

THE PRESIDENT– The question will be upon the adoption of the substitute offered by the gentleman from Colbert, who is a member of the minority committee.

MR. KIRK– Mr. President and Gentlemen of the Convention:  The question now that I am driving at in offering the amendment to Section 2 is before you. A number of the members of the Committee seem to think that I was unnecessarily alarmed by offering the amendment to Section 1. Now, my purpose it to avoid, if possible, the creation of so many courts at the expense of the State, and courts which are unnecessary. Now, we have thirteen Circuit Courts in the State. The substitute which I offer authorizes the Legislature to create a court of this character in all counties where there is a population of thirty thousand and property of the assesseed value of seven million dollars. My idea in putting it at that amount was that in counties of that size, counties of that population, perhaps would need a court of this kind. Now, if you have not taken the pains to investigate the length of time our Circuit Court judges work, upon inquiry you would find that there is not one who works more than two-thirds of his time, and most of them about half of their time, and yet they are doing all the work necessary to be done, trying all the cases. Why the necessity of authorizing the Legislature to create this great number of courts?  Take the First Circuit, the judge works– and under the provision that I have reported herein the substitute– it will authorize the creation of six new courts. Now, with those courts organized and those counties taken from the different circuits, the judges of the different Circuit Courts, the judge of the First Circuit, with these six courts created, which I have provided in the substitute, will


3469

CONSTITUTIONAL CONVENTION,  1901 

have to work twenty weeks during the year; in the Second Circuit, he will work twenty-six weeks; in the Third Circuit, thirty-six weeks; in the Fourth Circuit, twenty-four weeks; in the Fifth Circuit, twenty-two weeks; in the Sixth Circuit, thirty-six weeks; in the Seventh Circuit, twenty-two weeks; in the Eighth Circuit twenty-one weeks; in the Ninth Circuit, thirty-eight weeks; in the Tenth Circuit, twelve weeks; in the Eleventh Circuit, twenty-four weeks; in the Twelfth Circuit, twenty-one weeks; in the Thirteenth Cricuit, twelve weeks. That shows you, gentlemen of the Convention, that the creation of these courts is absolutely unnecessary.  Of course, I admit that it is a great convenience to the lawyers. I would not object to have one in my county so far as I am individually concerned, but it would increase the expense which is absolutely unnecessary, and for these reasons, I have offered this substitute.

MR. WALKER (Madison)– The gentleman supporting the substitute speaks of this section as reported by the Committee creating certain costs. It does not do that at all. Under the present Constitution, if a necessity arises in any particular county to have a local court, and it is absolutely necessary for the transaction of business to establish such courts, it is beyond the power of the Legislature to establish that court without also retaining in that same county both a Circuit Court and a Chancery Court, and the object of this provision, as written by the Committee, is that in the case of a county so situated that it is necessary for the transaction of the business there, to establish a local court. In that case, the additional burden and expense of having two other needless courts in that county may be dispensed with. Now, is not that in the interest of economy in this State?  It has been found in recent years that in certain counties it has been necessary to establish such courts in some of these counties; those courts are still in existence and are necessities in such counties. In some of those counties, where the necessity has disappeared, the court has disappeared but wherever these additional courts have been established, the State has had still to carry on the useless expense of having two other courts in that county, having both the Circuit and Chancery Court still in existence. Now, under the amendment offered by the gentleman from Colbert, there are several courts now in existence in this State that would be abolished and they are found necessary in Talladega, in Etowah and perhaps in other counties. Now, what does this provision do? It simply puts it in the power of the Legislature when a necessity of that kind has arisen, to establish a court in such a county and to get rid of the useless expense of continuing to maintain in that county two other courts, the necessity of which has disappeared. Now, is not that common sense? Is Alabama to remain in this position– that although Jefferson County may require one, two or three additional courts, that you must still continue in Jefferson County a Chancery


3470

OFFICIAL PROCEEDINGS

Court and in Jefferson County a Circuit Court, with two other counties in the district maintaining their courts for which there is no necessity? In Montgomery County, the same thing in Calhoun County the same thing, and in other counties the same thing.  In a county such as the one I come from, a large county having a considerable population and large taxable property, it is impossible under the present system for us to get a local court there without also retaining useless courts that are put there by the Constitution.

MR. KIRK– Would not under the substitute I have offered all Madison County, Calhoun and four other of the large counties to have this separate court and dispense with separate Chancery Courts?

MR. WALKER– Yes, and it would abolish several courts that have been in existence and in existence now and that are needed by the people. Are you going to sit here and abolish the court in Talladega County, are you going to sit here and abolish the court in Etowah County, would you sit here and fix it so that under the condition of affairs that existed in Morgan County a few years ago as the result of a boom there, it would be impossible to establish a court as was done, a special court, to get rid of business there?  That court that was established existed several years, and when the necessity for it passed the court passed out of existence. The same was true in the county from which the gentleman comes. The same thing was true in Lee County.

MR. KIRK – Will the gentleman point out wherein this Section abolishes those courts.

MR. WALKER– It would render it impossible to establish in Lauderdale or Colbert County a court that was required at that time.

MR. WHITE– I rise to a point of parliamentary inquiry.  These city courts are frequently created simply for the purpose of giving place to some one in that county and soon after the people have a chance to get rid of them, and they do so.

MR. WALKER– Yes, sir.

MR. WHITE– Well, now, if the State has withdrawn from those counties, the Circuit Court and the Chancery Court, and the State has been relieved of the expense of maintaining those courts, would it be very difficult to get the Legislature to abolish local courts in those counties?

MR. WALKER- Not at all, for the simple reason if the conditions so changed that the local courts are not necessary as has been the case in the county in which I live, and the two counties which I have mentioned, these additional courts were absolutely necessary at the time they were established, but when the condi-


3471

CONSTITUTIONAL CONVENTION, 1901

tions so changed that there was no longer any necessity to maintain them they were abolished.

MR. WHITE‑What I mean is whether it would have been abolished, if the expense had been thrown back on the State instead of the county.

MR. WALKER‑There is no necessity under this Article of throwing the expense upon the State in airy instance. Now I realize the position—

MR. WHITE‑One more question. Wouldn't that enable a political party that wants to make a showing on State taxation to reduce the State taxes and put it upon the county?

MR. WALKER– Not at all. I do not see it that way. This is just a question, gentlemen– we have a large county in Madison, in which the judicial business is frequently blocked because we are dependent upon the Circuit Court and upon the Chancery Court, still we are not in a position to come to the Legislature and ask for an additional court, so we are tied up that it is impossible to dispense with the Circuit Court and the Chancery Court in that county. If there is a necessity in that county of establishing a court there there ought to be the right in the Legislature to dispense in that county with the two courts whose place has been fully filled by the new courts and that is all this Section does. I move to lay the amendment of the gentleman from Colbert on the table.

MR. SANDERS‑Will the gentleman yield to me a moment?

MR. WALKER‑Yes sir: I ask the gentleman to renew the motion.

MR SANDERS– Mr. President, I desire in a very few remarks to support the report of the majority of the Committee. I think this provision for consolidating the law and equity courts in certain counties which can measure up to the population standard and to the property standard is one of the happiest provisions of a very excellent report. It is an elastic provision which will meet the growing demands of the business of this State. The members of this Convention hope that at least a quarter, perhaps a half of the century shall pass before another Constitutional Convention is held in this State and in that period of time the business of Alabama and the business of the courts will increase to such an extent as to demand some provision of this sort. It is purely optional, Mr. President. No county is forced to consolidate its courts and there are many counties which may come in within the provisions offered by the Committee which will not see fit to come in at once, but the growth of the business of the court will permit them to come in under these provisions later on if they see fit, and the gentlemen will bear in mind if such a court is established, it


3472

OFFICIAL PROCEEDINGS

is not permanent, it is not fixed for all time upon the people, but can be repealed by the Legislature as well as it can be enacted.  I believe this provision will meet the hearty approval of the lawyers of the State. I believe more than any other provision, perhaps, in this State it will bring the lawyer, of Alabama to the support of the Constitution which we adopt. I know, Mr. President, that the measure is very popular in my own county. This Convention is not here for the purpose of considering what an isolated county in North Alabama may desire, but those considerations are not altogether to be ignored, and I believe both before the people and before the bar of my county I can make a stronger plea for the adoption and ratification of this Constitution because of this provision than perhaps any provision we shall engraft within the instrument. We have had in times past a very crowded docket, costs have accumulated alarmingly. Cases could not be reached for trial.  I know of one instance where a $35 case appealed from the Justice of the Peace ran up to $1,000 in cost in the Circuit Court, simply because the crowd of witnesses came from time to time in order to get a trial. Mr. President, I got mixed up last year in a little bull calf case worth $10, the calf was, and the costs before it terminated, were $250. Litigants appreciate a system by which they can get speedy trials, it helps litigants and it helps the lawyers. Many friend from Colbert seems to fear that there will be a great number of new offices created at once under this provision.  As I said at the outset that every county that can avail itself of the provisions, will do so. If they should do so, Mr. President, I have made up some figures as to the number of counties which can come in. The Committee considered at one time, I have not the honor to be a member of that Committee, but in conversation with the Chairman and other members I understood the basis of 20,000 and $4,000,000 of property were considered at one time, that would have admitted fourteen counties, and the basis of 25,000 population and $4,000,000 would have admitted the same number of counties.  The basis of 20,000 and $3,000,000 would have admitted twenty-five counties, 25,000 population and $3,000,000 would have admitted twenty-three counties, and I think 20,000 and $3,500,000 of property, the basis reported by them, admitted about twenty counties.  So there can be no great influx of new officers in the State, if all should avail themselves of the provision at once.

MR. ASHCRAFT– If these counties who could avail themselves of this provision should do so, it would enable the Legislature to correspondingly reduce the judges and chancellors.

MR. SANDERS– I understand that to be the effect. I hope the majority report of the Committee will be adopted. I promised to renew the motion of the gentleman from Madison to lay upon the table the substitute offered by the gentleman from Colbert.  I do so.


3473

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken the motion was carried.

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

MR. OATES‑I hope the gentleman will withdraw the motion for the previous question.

MR. WILLIAMS (Barbour)‑I offer an amendment.

MR. WATTS‑If the gentleman wishes to offer an amendment of course I will withdraw.

THE PRESIDENT‑Does the gentleman yield to the gentleman from Montgomery.

MR. WATTS‑Yes, sir.

MR. WILLIAMS (Barbour)‑I offer this amendment: "Strike out the sentence beginning in line 10 with the words 'General Assembly'. "

MR. WATTS– I move to lay on the table the amendment offered by the gentleman from Barbour.

THE PRESIDENT ‑The gentleman from Barbour has the floor.

MR. WILLIAMS– I do not offer this amendment, Mr. President, for the purpose of making a speech. I have studiously left all matters of argument in this Convention to other gentlemen and shall continue to do so except where I think it may be necessary or may serve some good purpose for me to say something.  The Convention has already determined that it will not abolish the Chancery Court and I think has wisely so determined. Then the amendment that I have offered proposes to strike out a mixture – for I cannot call it properly by any other term– of the jurisdiction of two courts– into either a court of law or the law jurisdiction in a court of chancery. The sentence reads this way in Section 9: “The General Assembly may confer upon the Circuit Court or Chancery Court the jurisdiction of both of said courts.” Now, Mr. President, if we are to have the Chancery Courts preserved it will be better to preserve them in their separate and complete jurisdiction.  It is a novel idea to me and I think will be to the other lawyers in this body that you can mix both jurisdictions especially in a court of chancery. Anybody with any experience knows how thoroughly separate and exclusive and how necessarily so, is the jurisdiction of the court of chancery. Some times it may happen that a question of law gets into the Chancery Court, but it rarely happens that questions of equity can be decided in the courts of law. Well, what does this provision here do, “The General Assembly may confer upon the Circuit Court or the Chancery Court the jurisdiction of both courts. Would the gentleman that put that


3474

OFFICIAL PROCEEDINGS

provision in this section have the Chancellor to have a grand jury summoned and petit jury summoned.

MR. WALKER‑Will the gentleman allow an interruption?

MR. WILLIAMS‑‑Yes, sir.

MR. WALKER‑Suppose a county in which it was necessary to establish an additional court, there resided either a Circuit Judge or a Chancellor and it was not desired to legislate him out of office, what possible harm could there be in conferring upon the court in which he presided the jurisdiction of Chancery Court in a Circuit Court or the jurisdiction of the Circuit Judge if a Chancellor?

MR. WILLIAMS– The gentleman will remember I stated two or three times that a Chancery Court was not to be abolished, there would be a Chancery Court in any event in every county where it exists now.

MR. ASHCRAFT– Will the gentleman permit me to call his attention to the fact that the same section provides that if one of these courts is established the chancery division or from the circuit.

MR. WILLIAMS– I do not see that.

MR. ASHCRAFT– It is not provided here that there shall be held in any event a Chancery Court but it says a Chancery Court or court having like jurisdiction.

MR. WILLIAMS– Well, Mr. President, I have watched to some extent the history of the courts of law which are allowed equity jurisdiction and while some gentlemen seem to be in favor of that system, I have never thought that it worked well. You take a Circuit Judge with a heavy docket of criminal cases having for one or two weeks engaged actively in the hearing of the criminal cases, the trial of serious cases, and when that one or two weeks work is finished have the same man take up the other docket and upon separate business of altogether a different character, different in its importance, different in its range, different in the quality of the court and of the adjudications to be held and he will have to be a very remarkable man if he is a fit judge in both courts. But what I started particularly to say was with reference to these words, that the law and equity jurisdiction might be combined in a Chancery Court. Now, the instance which the question of the gentleman from Madison would hit at would be the establishment of a separate Chancery Court in a county for the convenience of the people of that county.

Mr. Walker dissented.

MR. WILLIAMS– Well, then I mistake him. I see he shakes his head. If you establish a separate court of law jurisdiction and gives it chancery jurisdiction, you do all the harm that I think


3475

CONSTITUTIONAL CONVENTION, 1901

would follow if you establish a separate Chancery Court because this says the General Assembly may give to either court the jurisdiction of both.

MR. WALKER‑Is it not a fact for many years in Alabama the cities in which the largest amount of judicial business has been done have had courts presided over by men exercising both law and equity jurisdiction and they have done  it to the eminent satisfaction of the people and the bar.

MR. WILLIAMS‑Yes, sir, that may be so and at the same time it was to get rid of the weight of business in those courts.

MR. PILLANS‑May I ask the gentleman a question?  Is it not a fact that the Federal judiciary is organized on the same plan, that is to say that one Judge holds all the various courts, whether they be at law, in equity, or in admiralty, without any embarrassment to the administration of justice.

MR WILLIAMS‑Yes, sir.

MR. PILLANS‑And is it not true in forty‑one States of the Union at least, the same system obtains of all functions being exercised by one Judge.

MR. WILLIAMS– Yes sir, and if my friend will permit me to say I will say that I believe that in about forty of those jurisdictions they have made mistakes.

MR. PILLANS– That is like the eleven obstinate jurors.

MR. WILLIAMS– I am only one. The others may be as obstinate as they please, but, Mr. President, what I am undertaking to do here is not without good reason and not entirely without force. I go back now to the fact that the General Assembly may give either to the Circuit Court or the Chancery Court equity jurisdiction. I have already said there would be a Chancery Court in any event because they cannot be abolished and in the south-eastern division a court is held in every county twice a year.  Now when the General Assembly sees fit to make the Chancellor take up the business of the Circuit Court and there is no limitation it means the jurisdiction of that court, its criminal as well as civil business, that you propose to write in the face of the Constitution here and you would have a Chancellor to order a grand jury or the Legislature would do it, a lot of indictments, have petit jurors assemble to hear the criminal business until done with it, and then go back somewhere and take up the equity docket. I say again he would be a remarkable man if he could hold both courts successfully and it is a lowering of the history, the character and to a large extent the dignity of the Chancery Courts of the State.

THE PRESIDENT– The time of the gentleman from Barbour has expired.


3476

OFFICIAL PROCEEDINGS

MR. HOOD (Etowah)– The committee in framing this article, this section, had in view especially the fact that many delegates of this Convention and a great many of the bar in the State of Alabama favor the abolishment of the Chancery Court. The Committee after having given the matter most thorough investigation were of the opinion it should not be done by this Convention.  The Committee also came to the conclusion after making a most thorough investigation of the judiciary in Alabama, that what was most needed in this State was speedy trials, a more frequent meeting of the courts in the several counties of the State.  The gentleman who has just preceded me urges the objection that courts with both jurisdictions conferred upon them will not give satisfaction; that a common law judge cannot administer the equity docket, and vice versa, the chancellor cannot administer the common law docket. Now in a number of cities in Alabama, the chancery jurisdiction has been conferred upon the law courts.  Heretofore, in the county of Jefferson, in the County of Etowah, in the County of Calhoun, and a number of other counties, the circuit and city courts have had equity jurisdiction for a number of years. They have given perfect satisfaction. Why an examination of the Supreme Courts of Alabama will demonstrate to the bar of the State that these judges who are presiding over these courts in several counties of the State that have both common law and equity jurisdiction give as eminent satisfaction as any judges in the State. I therefore move that the motion offered by the gentleman from Barbour be laid upon the table.

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

THE PRESIDENT– The question is on the adoption of the section as reported by the Committee.

MR. OATES– I have an amendment.

The Secretary read the amendment as follows: “Amend Section 9 by striking out all the words in line 8 and 9, down to and including the word ‘therein’ in the 9th line.

MR. OATES– The words I wish to strike out are these: “No circuit or chancery division shall contain less than three counties unless there be embraced therein,” etc., so that the sentence shall begin, “A County having a population,” etc. Mr. President, I am in accord with the spirit manifested by the Committee in many of its changes. I am one of those who believe we have not too many courts. Now sir, the object of the amendment is to remove this evil. I know, sir, at times when the legislature have sought to make a circuit or circuits containing less than three counties they have not been able to do it and such was the case with the last legislature. They wanted to make on account of the vast amount of business here a new circuit but it would not work because of the volume of the business that would be in three counties


3477

CONSTITUTIONAL CONVENTION, 1901

and what was the result? We have a double‑headed city court, a city court with two judges, both of them most excellent gentlemen, but it is a novelty to have city court with two judges and it is because they could not make it a circuit court. I am in favor of the system that will give the people proper facilities for having their judicial business performed. I am very much in accord with the remarks of the delegate from Limestone.  Our judicial system in Alabama belongs to the old cow‑county system and is way behind the age. It is an old fogy system, and the idea of a judge coming around and holding, court once every six months is superlatively ridiculous. Why, look at the Auditor's report.  Bills for feeding prisoners detained in jail awaiting trial, $98,000 last year ; and it was run over $l00,000. When a man is thrown into prison, the court ought to be able to try him very soon, and if he is not guilty, he should be allowed to go, and if he is guilty, he ought to be put on punishment. We are behind in this respect. I say clean out the jails and clear up the dockets. Courts are inaugurated for no other purpose than for the disposition of the business.  The whole object is to dispose of controversies between man and man and to enforce the criminal law for the protection of society, and the greater the facilities for accomplishing these objects, the better it is done. Now, sir, this thing of delay and delay, and continuances and eating up parties with costs is very bad indeed, and I hope before this Convention gets through with this department that a clause will be inserted declaring the courts of the State always open for business so as not to wait for regular terms: that when business accumulates for the Judge or Clerk to give notice to the parties interested and let the judge, whose business it is, go and sit and try cases and dispose of them at once. Why, I invite the attention of the gentlemen to the system in the new States out West. You look at Texas and there is where they beat us ten to one in the facilities for the disposition of business.  Go to California, a most admirable system, where every large county has one, two or three circuit judges. One half the salary paid by the county and the other half paid by the State, and the salaries are $4,000 a year. Where there are small counties they sometimes throw two and sometimes three together, and there the courts  are always open for business. You get two or three or four cases on hand and the judge goes and tries those cases and disposes of them. They have one grand jury a year to find bills and they have a criminal term of two or three, if necessary, and they do the business. That is the object of the court, to do business and get on with it. Why this eternal delay is deleterious to the interests of the people.  It is more expensive, it is against interest of the professional brethren, and it is wrong all along the line. We have a declaration in the bill of rights that court shall be open for business and justice shall be dispensed without denial or delay, and then follow it up with a system where you cannot get your case tried under six months, maybe twelve or eighteen months, and


3478

OFFICIAL PROCEEDINGS

many men who bring suits to recover money, do it most reluctantly, because it might be twelve or eighteen months and then the sheriff takes six months or longer to get money on the execution, and he would rather take fifty cents on the dollar for his debt than to go into court. We want to get out of the slow rut and give the people a judicial system that will not be so expensive in the end and will transact the business and will get on with it. Now, sir, you strike out these words here, what does it say? It does not tie the General Assembly. Why put this that no circuit court shall consist of less than three counties and no chancery division less than three. Can you not depend on your legislature, if the burden is thrown upon that body? I would like for this Convention to take greater responsibility in fixing up a judicial system, but if it is thought wise to remit most of it to the Legislature, let this go through, so the Legislature will not be hampered and can make a Circuit Court of less than three counties or a Chancery Division of less than three.

MR.  TAYLOE‑I would like to call the attention of the gentleman from Montgomery to the fact that he leaves a sentence in that incomplete.

MR. OATES– That was hurriedly written.

MR. TAYLOE– It strikes out all the words in the line down to and including “therein” so it leaves that sentence incomplete.

MR. ASHCRAFT– Have you observed that the purpose of this clause is simply to prevent the Legislature from putting two counties where both would have less than the requisite number of people into one circuit. Now, if one county has more than that number of people or that amount of property, then the circuit may be made up of two counties or it may have just one as in the case cited of Montgomery. If the gentleman had been able to exclude Montgomery from a circuit and Chancery Division, they would have created a Circuit Court that would have had complete jurisdiction and answered the purpose.

MR. OATES– Do you think the Legislature would create a separate court for a little county? They have done some imprudent things, but I don’t think they would do that.

MR. ASHCRAFT– They have made a Circuit Court for Clay County.

MR. COBB– I am at a loss to understand what the gentleman’s amendment is. Does he mean to strike out the whole of that first sentence?

MR. OATES– To strike out the restriction to three counties.

MR. COBB– And leave the balance.


3479

CONSTITUTIONAL  CONVENTION, 1901

MR. OATES– Yes, sir, I have no objection,

MR. COBB‑I think it is hardly necessary, Mr. President, to consume the time of the Convention upon this question. It has been the policy for years to restrict the Circuit or rather to prevent the Circuit Court from being smaller than necessary. It is in the old Constitution that we shall not have less than three counties in a circuit. This is the identical provision. The reason for it is that under ordinary conditions, a circuit should not be composed of less than three counties, but this Section goes on and I think the gentlemen have abandoned that, goes on to provide for the very purpose for which he contended and that is that where there are counties of a certain number of inhabitants, and having a certain amount of taxable property, that that county may be made into a circuit or chancery division, so that the argument of the gentleman from Montgomery is in direct accord with the purpose had by the Committee in framing this Article.

MR. OATES‑I stated I was in accord with them and on further examination of it I believe that the difficulty that I was trying to remove is provided for in the latter part of it and I will withdraw the amendment.

THE PRESIDENT‑The gentleman from Montgomery asks leave to withdraw his amendment. Is there objection?

THE PRESIDENT‑The Chair hears no objection, and the amendment is withdrawn.

MR. COBB‑I move the previous question upon the Section reported by the Committee.

MR. WADDELL– I give notice I shall move to reconsider the vote whereby Section 7 was adopted, and also to reconsider the vote whereby the amendment offered by Mr. Oates of Montgomery was rejected.

THE PRESIDENT‑The question is on the motion of the gentleman from Macon for the previous question. Shall the main question be now put?

The main question was ordered and the Section as reported was adopted.

MR. WADDELL‑Did the Chair recognize me to make a motion to reconsider?

THE PRESIDENT‑The Chair understood the gentleman from Russell merely gave notice he would  move to reconsider.

MR. WADDELL‑Will it be in order for me to reconsider then on Monday?


3480

OFFICIAL PROCEEDINGS

THE PRESIDENT‑It will at any time during the morning session.

MR. SAMFORD‑I move that we adjourn.

The motion was carried and the Convention adjourned until 11 o'clock Monday.

________________