3480      

OFFICIAL PROCEEDINGS

SIXTY THIRD DAY

MONTGOMERY, ALA.,

Monday, Aug. 5, 1901.

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

Oh, Lord, we recognize our unworthiness to come into Thy presence, and we feel a deep sense of our dependence upon Thee and of our obligations to Thee. We thank Thee for the preservation of life, and health and strength. Now, we invoke Thy blessings upon us this day. Give us the enlightening influence of Thy holy Spirit to guide us in the way of all truth. May we be conscious of the obligations that are upon us. Bless the delegates here assembled. Bless their homes. Bless their families, and bless all of our people. We ask Thy blessings upon the people everywhere, and may all recognize Thy divine authority and Thy divine sovereignty, and may they be obedient to Thy commandments, and work out their salvation with fear and trembling. Forgive our sins; lead and direct us in the way of all truth.  And when life’s labors are all over, may we have so labored that our Master may say to us Well done, good and faithful servants; and bring us to the home of the good above, through Christ, our Redeemer. Amen.

Upon a call of the roll, seventy-eight delegates responded to their names.

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

MR. LEIGH (Escambia)– I have a short petition which I would like to have read.

The Secretary read the petition as follows:

We, the undersigned citizens of Alabama, do hereby offer our protest against the railroad pass evil, and do hereby declare our desire that it be made an unlawful act for either State, county or municipal officials to accept railroad passes from any railroad company, or for any such company to give such passes.


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CONSTITUTIONAL CONVENTION, 1901        

We further petition the Constitutional Convention now in session in Montgomery to incorporate in the proposed Constitution some effective, self‑operative provision to that end.

Brewton, Ala., July 23, 1901

E. M. Lovelace, lumber manufacturer; M. A. Rabb, attorney; W. T. Neal, lumberman; F. S. Horton, bookkeeper; A. T. Douglas, merchant; E. M. Neal; O. F. Sentell, cashier bank, Brewton; C. M. Luttrell, president Hardware Co.; J. W. Adkinson, vice-president Bank Brewton; W. C. Jones; E. F. Parker, Mayor; P. H. M. Tippin, M. D.; P. B. Sowell, liveryman; L. M. McLendon, M. D.; W. E. Foshee, merchant; T. W. Curry, druggist; A. C.  Smith, merchant; J. H. Harold, merchant; J. H. Harold, merchant; R. E. Park, merchant; S. F. Moore, naval stores; S. B.  Parker, bookkeeper; Robbin & McGow Co., department store; J. E. Finlay; W. Y Lovelace, lumberman; J. M. Perdyett, merchant; C. Sowell, lumberman; W. J. Coleman, lumberman; Smith & Son, merchants; Mark Miller, B. C. G. Minister; J. W. Blacksher, lumberman; A. M. McGowin, Jr., banking; W. D. Sowell, editor Pine Belt News.

Referred to Committee on Corporations.

MR. GRAHAM (Montgomery) ‑ I have a short resolution and I ask unanimous consent to have the same read.

Unanimous consent being given, the Secretary read the resolution as follows.

Whereas, This Convention has heard of the great affliction which has befallen ex‑Governor Thomas G. Jones, a member of this Convention, in the tragic death of his daughter, which occurred at an early hour this morning, and

Whereas, it is proper that we should place on record some evidence of the sorrow which we feel at the calamity that has overtaken our colleague, therefore,

Be it resolved by the Constitutional Convention of Alabama. that we individually and collectively profoundly sympathize with Hon. Thomas G. Jones, and the members of his family of the great affliction which they have sustained in  the untimely and dreadful death of his daughter.

Resolved further. That the Secretary of this Convention be and he is hereby instructed to send a duly certified copy of these resolutions to Governor Jones.

MR. GRAHAM‑I move that the rules be suspended in order that the resolution may be adopted.

Upon a vote being taken, the rules were suspended.


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OFFICIAL PROCEEDINGS

MR. HOWELL‑I move that the resolution be adopted by a rising vote.

By a rising vote, the resolution was unanimously adopted.

Leaves of absence were granted to the following delegates:

To Mr. Jones (Wilcox) for today; Mr. Jones (Montgomery) indefinitely; to Mr.  Harrison (Lee) today; to Mr. Jackson (Lee) for today; to Mr. Sloan for today; to Mr. M. M. Smith for today; to Mr. Lomax for today; to Mr. Reynolds (Chilton) indefinitely; to Mr. Sanders (Limestone) for today; to Mr. Pitts for today; to Mr. Reese of Dallas for today.

THE PRESIDENT– The Secretary will call the roll of delegates for the introduction of ordinances.

MR. WATTS‑‑I hove that the rules be suspended, and that the call of the roll of delegates and of standing committees be dispensed with.

MR. TAYLOE– I object to that simply because I have hot trouble this Convention with ordinances and I want to introduce one this morning.

THE PRESIDENT– The gentleman can do it by unanimous consent.

MR. TAYLOE– I am afraid that would not be given.

THE PRESIDENT– Suppose the gentleman tries his hand.

MR. TAYLOE– I ask unanimous consent to introduce an ordinance.

The consent was given.

Ordinance No. 438, by Mr. Tayloe of Perry, read as follows:

An ordinance to amend an ordinance lately passed by the people of Alabama in Convention assembled, entitled “An ordinance to create and define the State and county boundaries and to regualte the location of county sites and the formation of new counties.”

Be it ordained by the people of Alabama in Convention assembled, that section three of an ordinance lately passed by the people of Alabama in Convention assembled, entitled “An ordinance to create and define the State and county boundaries, counties” be and the same is hereby amended by adding at the close thereof the following words, to-wit:

Provided, further, That out of the counties of Hale, Perry Dallas, Wilcox and Marengo a new county may be formed under


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CONSTITUTIONAL CONVENTION, 1901     

the provisions of this article for forming new counties, so as to leave said counties of Hale, Perry, Dallas, Wilcox and Marengo, with not less than six hundred square miles each, which said new county shall contain not less than four hundred square miles.

MR. SAMFORD (Pike)‑There is a resolution which has been favorably reported by the Legislative Committee that has reference to and will have to be considered along with the Legislative Report before the Committee on Order, Consistency and Harmony. I therefore move that resolution No. 194 be made the special order after the special order which now obtains.

Upon a vote being taken a division was called for, and the motion was carried by a vote of 22 ayes and 21 noes.

MR. WHITESIDE‑I ask unanimous consent to introduce an ordinance.

Ordinance No. 439 was read as follows:

Ordinance No. 439, by Mr. Whiteside:

An ordinance to amend section 3 of Article XI. of the Constitution

Be it ordained by the people of Alabama in Convention assembled, that section 3 of Article XI of the Constitution heretofore adopted by this Convention be and the same is hereby amended by adding thereto the following : And provided further, that out of the counties of Calhoun, Cleburne and Cherokee a new county may be formed under the provisions of this article to have an area of not less than 400 square mile, and to leave each of said counties of Calhoun, Cleburne and Cherokee with not less than 450 square miles.

Referred to Committee on State and County Boundaries.

THE PRESIDENT‑It is moved that the regular call of the roll of delegates for the introduction of ordinances,  resolutions, etc., and the regular call of the standing committee be dispensed with.

Upon a vote being taken the motion was carried.

THE PRESIDENT‑The special order this morning will be the consideration of the report of the Committee can the Judiciary Department. The Convention had under consideration when it adjourned section 10 of this report. The secretary will read the section.

Section 10 was read as follows:

Sec. 10. The General Assembly shall have power to establish in each county within the State a Court of Probate, with general jurisdiction to grant letters testamentary and of administra-


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OFFICIAL PROCEEDINGS

tion and of orphan's business ; provided that whenever any court having equity powers has taken jurisdiction of the settlement of any estate, it shall have power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians and trustees, and including action upon the resignation of either of them.

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

Upon a vote being taken the section was adopted.

Section 11 was read as follows:

Sec. 11. The Justices of the Supreme Court, Chancellors and the Judges of the Circuit Courts, and other courts of record, except Probate Courts, shall, at stated times, receive for their services a compensation which shall not be diminished during their official term; they shall receive no fees or perquisites, nor hold any office (except judicial offices) of profit or trust under this State or the United States, or any other power during the term for which they have been elected.

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

MR. OATES– I have an amendment which I presume will be accept by the committee. It is to amend bu adding at the end of the section the word "appointed" so as to read "elected or appointed."

The amendment was read as follows: “Amend Section 11 by adding thereto the words ‘or appointed.’”

MR. SMITH– The committee asks unanimous consent to accept that amendment.

The consent was given.

MR. MACDONALD (Montgomery)‑I was about to prepare and will prepare an amendment to this section and desire a few minutes for that purpose.

MR. OATES– I have another amendment which I desire to offer.

The amendment was read as follows:

"Amend Section 11 by adding thereto as follows : ‘And shall not during their continuance in office, taken an active part in partisan politics.’”

MR. OATES‑I have but two or three words to say in favor of this amendment. I remember when I first came to the bar, and for a good many years after the war, I never heard of any judge taking an active part in politics. It was considered a nonpartisan office: but in more recent years, I have heard, and known


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CONSTITUTIONAL CONVENTION, 1901

personally, of judges in some cases going into campaigns, and taking an active part in politics. I think it is an impropriety. I think it is wrong.  They ought to abstain from it, and that is all there is in this amendment, that during the time judges are in office, none of them shall take an active part in partisan politics. I hope it will be adopted.

MR. WALKER (Madison)‑The purpose of the amendment offered by the gentleman from Montgomery certainly will meet general approval but as presented, it does not seem to me it would practically create any control over the conduct of those officers.  There is no standard fixed. It would practically amount to nothing. It is a matter of public sentiment. It is a matter of the prevalence of ideas of propriety on the subject, and it does not seem to me that a provision of this kind would practically operate to control the conduct of judicial officers.

MR. OATES‑I want to ask the delegate from Madison if it would not, if incorporated in the Constitution, be a violation of the oath of any judge who has sworn to support the Constitution, to take part in partisan politics?  Would it be at all necessary to fix a penalty? It seems to me that if it merely shows the impropriety or disapproval of the public in it, that any judge would have enough regard for himself and his character to comply with it.

MR. WALKER– The answer to that would be simply this: That it would always be a question in the first place that the officer would answer for himself as to what was an active participation in politics. Judges who were disposed to keep aloof from politics and to have nothing to do with them, would do so, but judges who were actively interested in politics, would still exercise their influence as far as they could, without a violation of this constitutional prohibition. I do not think it fixes any practical standard by which the conduct of judges would be tested, and it would practically have no beneficial operation. It would be a question of the view of propriety of each particular member of the bench, and not deeming the proposed amendment to be one that would have any practical beneficial operation, I move to lay it on the table.

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

MR. MACDONALD– I offer an amendment.

The amendment was read as follows:

“Amendment to Section 11 of article reported by the Judiciary Committee by Mr. Macdonald of Montgomery.

“Amend by striking out all of said section after the word ‘perquisites’ where it appears in the fourth line of said section.”


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OFFICIAL  PROCEEDINGS

MR. MACDONALD‑It appears to me that the last two lines of this section are entirely unnecessary. We have a Judiciary now that are paid poorly enough any how. Their salaries are ridiculously small, and yet this section, if adopted, would absolutely prevent any judge who might resign, from getting any office in the gift of the State except as it says a judicial office. Now why is that? What good purpose would it subserve ? It is not to be contemplated that a judge would  use his office for the purpose of securing another, or that he would exercise any influence upon any appointing power by reason of the exercise of his judicial functions which would give him such an office, so why should we select members of the judiciary for such an exclusion as this?  I am informed that the history of this State will show that a very eminent judge at one time of the Supreme Court of Alabama became so convinced that his salary was insufficient to support his family, that he resigned for the purpose of accepting the more lucrative position of clerk of the court of which he was judge, and I understood nobody ever blamed him for that action. Here we have a poorly paid‑and absurdly poorly paid– judiciary, as I believe, perhaps. the most poorly paid judiciary of any State of the Union, and yet we are to exclude them from accepting any office other than a judicial one. I do not see any good purpose to be subserved by it, and it does not occur to me that there can be any valid reason why the provision in the last two lines of this section, should be incorporated in the Constitution.

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

Upon a vote being taken the motion to lay the amendment on the table prevailed. Upon a further vote being taken the section was adopted.

MR. SENTELL– I move that the privileges of the floor be extended to the Hon. J. F. Jones, a member of the General Assembly.

A vote being taken, the motion was adopted.

The Secretary read Section 12 as follows:

Section 12. The Supreme Court shall consist of one chief justice and such number of associate justices as may be prescribed by law.

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

Upon a vote being taken the section was adopted.

The secretary read Section 13 as follows:

Sec. 13. The Chief Justice and Associate justices of the Supreme Court, Judges of the Circuit Courts, Probate Courts, and


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CONSTITUTIONAL CONVENTION, 1901        

Chancellors shall be elected by the qualified electors of the State, circuits, counties and chancery divisions for which such courts may be established, at such times as may be prescribed by law, except as herein otherwise provided.

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

MR. OATES‑I have an amendment.

The secretary read the amendment as follows:

In lines 2 and 3 strike out the words "elected by the qualified electors of the State" and insert in lieu thereof the following, to wit:  "Appointed by the Governor by and with the advice and consent of the Senate for the State, except the Judges of Probate."

MR. OATES– Judging by the past, I presume this Convention will not adopt that amendment but yet, sir, I have the courage to offer it because it is my honest conviction. I have had some little experience in life and in the affairs of this State, and whether to much purpose or not, this experience has reached a conviction in my own mind. In the Convention of 1875 I was in favor of the very thing that I move here, from a conviction that I them had, and the vote was a remarkably close one whether the judges should be thus selected or elected by popular vote, and the latter prevailed as shown by the present Constitution. Now, sir, there are reasons for this. The idea seems to be now to elect everything by popular vote. If there be anything, that contributes more than any other to the well being of the State, it is an intelligent and independent judiciary. Have you such a judiciary when the judges are elected by popular vote? I say that you have not, in many cases. The man who is elected a judge is but a man, and human nature has its place in him as well as in any other, and it is the most natural thing in the world when the man is usually a candidate to succeed himself or for some other office, he wants to get votes, and he is going to cater as much as he can to such a sentiment as will bring them. In the case between a man who is worth 100 votes in an election, and another who scarcely controls his own, the judge may be very honest, but the human nature in him and his own interest: makes him naturally look for a reason that seems sound in favor of the big fellow, he wants his influence, he wants to be popular with him. It does not contribute to holding the scales of justice in equipoise. I will give to this Convention a little illustration without calling names. The first year I had the honor to be Governor of the State, a petition was presented to me to pardon a man from one of the counties; north of this who had been indicted and tried for murder and found guilty of manslaughter in the second degree. A time was imposed upon him and sentenced to 30 days in jail. I learned from other parties that the judge gave the Sheriff the wink and said: "Consider him in prison." Now, the defendant was a man of much influence in that


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OFFICIAL PROCEEDINGS

county. A petition was gotten up and sent to the Governor for him to be pardoned. The judge who tried him wrote a letter to the Governor along with the petition, and set forth the evidence in the case, and said: "Now, Governor, you are a lawyer and you know on that evidence he ought to have been acquitted, the jury should not have fouled him guilty." I replied: "Dear judge, yes, and I presume if you were  not a lawyer you would not be judge of the Circuit Court. Taking the evidence as presented, he should not have been sentenced, but why did you not, as a judge, set aside the verdict and give him a new trial?”  The reason was, that the dead man had a few friends in the circuit that had votes that he might lose if he took the responsibility. He would dodge it and throw it off on the Governor. That is but one instance, and there are many cases of dodging. This is no reflection upon the capacity of the people to elect good men, not at all. but the judicial system is regarded as the very best in those countries where the judges are appointed and not elected by popular vote.  You take the judicial system of the United States. The President nominates every judge in that system, and then the nomination goes before the Senate, and the Senate does not always confirm. Even when Gen. Grant the most popular President, the most popular man on account of his success in the war, that we had seen in this country in fifty years, when he sent in the name of one of the members of his Cabinet to be Chief Justice of the Supreme Court, the Senate not deemed him a fit man for the place, rejected him. That has often occurred. Once, when our Democratic President sent in the name of a New York man whom he regarded as splendid material for Associate Justice, he was rejected and it has often occurred. When under the Constitution already framed in regard to the Executive Department, is confined to one term, and cannot be his own successor, he would be ambitious to appoint the very best lawyers and men who would make the best judges, and is it unsafe to leave it to him, the man of your choice to nominate a judge and let it go before the Senate?  Are you unwilling to trust your senators to act; they will investigate his character and see whether he is worthy to fill the place or not. I think it is perfectly safe, and I think besides that it is the only way, the only method that has ever been invented in this country to have an independent judiciary, and hence I offer this  amendment.

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

On a vote being taken on a division there were 53 ayes, 12 noes, and the motion to table prevailed.

MR. OATES‑I make the point of order that a quorum has not voted.


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CONSTITUTIONAL  CONVENTION, 1901   

MR. REESE‑I understand that a point of no quorum can not be made unless developed by a call of the roll all members are not required to vote upon this sort of a motion.

THE PRESIDENT‑It seems to the Chair that it would be in order to make it on division of the vote. The Chair will ask for a verification of the vote unless the gentleman asks for a call

of the roll.

MR. OATES‑I would like to have a roll call to see how the members vote. I would like to go on record myself.

The call for the ayes and noes was sustained.

The vote resulted as follows:

AYES

Ashcraft,

Graham, of Montgomery,

Norman,

Barefield,

Graham, of Talladega,

Opp,

Beavers,

Grayson,

Pearce,

Beddow,

Haley,

Pettus,

Blackwell,

Handley,

Phillips,

Boone,

Heflin, of Chambers,

Porter,

Brooks,

Heflin, of Randolph,

Reese,

Browne,

Henderson,

Reynolds (Henry),

Bulger,

Hodges,

Samford,

Burns,

Hood,

Sentell,

Byars,

Howell,

Smith (Mobile),

Cardon,

Inge,

Smith, Mac. A.,

Carmichael, of Colbert,

Jenkins,

Sorrell,

Carnathon,

Jones, of Bibb,

Spragins,

Chapman,

Jones, of Hale,

Stewart,

Cobb,

Kirk,

Studdard,

Coleman, of Walker,

Ledbetter,

Tayloe,

Craig,

Long (Butler),

Vaughan,

Davis, of DeKalb,

Macdonald,

Waddell,

Davis, of Etowah,

McMillan (Wilcox),

Walker,

Duke,

Maxwell,

Watts,

Epy,

Merrill,

Weakley,

Ferguson,

Miller (Marengo),

White,

Fletcher,

Miller (Wilcox),

Whiteside,

Glover,

NeSmith,

Wilson (Clarke),

TOTAL--75

NOES

Messrs. President,

Kyle,

Rogers (Sumter),

Dent,

McMillan (Baldwin),

Sanford,

deGraffenreid,

Murphree,

Selheimer,

Foshee,

Oates,

Gilmore,

Palmer,

TOTAL—13


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OFFICIAL PROCEEDINGS

ABSENT OR NOT VOTING

Almon,

Jackson,

Pillans,

Altman,

Jones, of Montgomery,

Pitts,

Banks,

Jones of Wilcox,

Pitts,

Bartlett,

King,

Proctor,

Bethune,

Kirkland,

Renfro,

Burnett,

Knight,

Reynolds (Chilton)

Carmichael, of Coffee,

Leigh,

Robinson,

Case,

Locklin,

Rogers (Lowndes),

Cofer,

Lomax,

Sanders,

Coleman, of Greene,

Long (Walker),

Searcy,

Cornwall,

Lowe (Jefferson),

Sloan,

Cunningham,

Lowe (Lawrence),

Smith, Morgan M.,

Eley,

Malone,

Sollie,

Eyster,

Martin,

Spears,

Fitts,

Moody,

Thompson,

Foster,

Morrisette,

Weatherly,

Freeman,

Mulkey,

Willet,

Grant,

Norwood,

Williams (Barbour),

Greer, of Calhoun,

O’Neal (Lauderdale),

Williams (Marengo),

Greer, of Perry,

O’Neill (Jefferson),

Williams (Elmore),

Harrison,

O’Rear,

Wilson (Washington),

Hinson,

Parker (Cullman),

Winn,

Howze,

Parker (Elmore),

 

So the motion to table prevailed.

MR. deGRAFFENREID–I have an amendment to offer.

The Secretary read the amendment as follows: “Chief Justices and Associate Justices of the Supreme Court, Judges of the Circuit Courts, and Chancellors shall be elected by the members of the General Assembly on joint ballot, and Judges of Probate shall be elected by the qualified electors of the county for which such courts may be established at such times as may be prescribed by law.”

MR. deGRAFFENREID–I sympathize with the amendment as offered by the gentleman from Montgomery, Governor Oates, and I voted for it, because I thought if that were adopted, the law would probably furnish us with more impartial judges than our present methods, but at the time I voted for it, I thought that instead of the Governor having the appointed power, it would be safer and better for the people of Alabama that they should be elected by the General Assembly on joint ballot.  We all know, Mr. President, that it is to the interest of the State that its judiciary should be removed as far as possible from politics.  There was, I believe, offered by the gentleman from Montgomery, a while ago an amendment to another section which provided that judges should not take an active part in partisan politics, and a


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gentleman on the committee took the floor and said that they sympathized with the purpose, but that it was not self‑executing and that the difficulty would be that each judge would determine for himself his course of action in the premises. The report of the Committee on Suffrage has been adopted substantially by this Convention. We all recognize that in the future if this Constitution is ratified by the people, there will be more independence of thought, and more intelligence of action by the people of Alabama in politics. It seems to me, Mr. President, that it would be better for the State if its judges were removed from the hustings and were removed from active participation in politics by placing their election in the hands of the General Assembly.  It was for this reason, Mr. President, that I favored prohibiting judges from carrying railroad passes in their pockets, not, Mr. President, that any judge would be corrupted by the use of a pass, but that its tendency was evil, and it seems to me that a judge who sits upon the trial of a case where one of the parties is a political friend, where one of the parties is a man who has been active in securing his nomination, would at least find embarrassment if the other party to the cause was a man who had actively fought his nomination and tried to defeat his election at the polls. It is true that if you elect him by the General Assembly, he might be called upon to try the case of some man who was a member of that body, but the chances of that are few in comparison with the number of cases that he would have to try in his Circuit Court of men who were not members of the General Assembly. For that reason, Mr. President. I think that amendment ought to be adopted.

MR. BOONE–I move to lay that amendment on the table.

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

The call for ayes and noes was not sustained.

THE PRESIDENT-The question is on the motion to table the amendment offered by the gentleman from Hale to the section as reported by the committee.

The reading of the amendment was called for, and the amendment was again read by the Secretary.

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

MR. WADDELL-I gave notice on Saturday afternoon that I would move to reconsider the vote whereby Section 7 was adopted, and also to reconsider the vote whereby the amendment offered by the gentleman from Montgomery was lost.  I make that motion now.

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


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THE PRESIDENT–The gentleman will state his point of order.

MR. BOONE–The morning hour has expired before the motion to reconsider was put before the House.

THE PRESIDENT–The Chair is of the opinion that under the rules the motion to reconsider may be brought at any time before the Convention adjourns during the morning session.  The point of order is overruled.

MR. WADDELL–I will state that I voted for the adoption of the section, and against the adoption of the amendment, and I am still of the same opinion that I was at that time.  I shall vote the same way, but the distinguished gentleman from Montgomery requested me to make the point, and I did so, and I now yield the floor to him.

MR. OATES–I have but little more to say than I said before upon this proposition.  It will be remembered, however, that the vote on division was very nearly equal.  There was a majority only of three votes in favor of tabling.  In the event it is reconsidered-my motion before was to strike out that section, and my motion would be to reconsider, and to strike out an insert the following: “At the expiration of the term of office of the five chancellors now in office, there shall no longer be a separate chancery court in this State, and thereupon it shall be the duty of the Legislature to provide by law for the judges of the Circuit Court to have and exercise equity jurisdiction in all cases as fully and completely as the said chancellors are now empowered to do; provided, that the same general forms for pleading in equity cases as are now provided by law shall prevail, and an equity docket for causes be kept in said circuit courts, and be transferred to law courts, as provided by law.”

Now, gentlemen of the Convention, The chancery courts would continue.  Of course the chancellors would continue until the expiration of the term for which they are elected, two years or more.  Now, is there any reason for continuing this separate chancery system?  There are but four States in the Union that now retain the chancery system.  I understand that one of the purposes of this Convention is reform in all departments of our State government, and it seems to me that here is a necessity for one.  The chancery system was established by act of Parliament, and maintained for many centuries, and there is no such thing as a separate chancery court now in Great Britain.

MR. WALKER–Is it not a fact that in Great Britain where that has been done that they have courts, judges sitting all the time, as equity judges alone, and that in the courts in this county, where the separation of the courts has been made in the States, then in all the larger places, judges who are confined exclusively


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CONSTITUTIONAL CONVENTION         

to the disposition of chancery cause, say even in Great Britain, and States of this country where they have undertaken to abolish these courts, they are as a matter of fact still in existence, as separate equity courts.

MR. OATES‑Mr. President, I have seen that myself, I have been in the law courts in London, and have observed their workings. There are a number of Judges who have law jurisdiction and have equity jurisdiction, and that is by assignment just like it is in some of the States of this Union. The judges where there was more than one in one locality, they may be assigned to perform certain duties, but it is not a permanency at all. Here there is no necessity for maintaining the separate equity jurisdiction.  The Judiciary Committee have provided here, practically the abolition, except in name of the Chancery system. Retained it in name only. Why not abolish it and have equity jurisdiction conferred upon the lower court? Now here in the city of Montgomery, I have observed‑‑‑‑because I practice sometimes in that court—the City Court where the equity jurisdiction has been conferred upon that court for some years past, that Judge Sayre does a great deal of that kind of work and does it remarkably well, and does it frequently, when he is not engaged in the trial of law cases. Such is the fact in other courts, and why is the necessity for the retention of this system? I cannot see it. It seems to me that it is an unnecessary expense.  Every one knows that the chancery is the most expensive court, and why retain it?  Why, sir, on a visit some years ago to California I had occasion to visit some of the courts there and observe closely their judicial system, which is said to be a model one, and I believe it. They have no separate chancery system at all, and there the courts are all organized for the purpose of doing business and doing it expeditiously and it is so done. While it is statutory, a rule prevails in those courts where a suit is brought on a note, if after ten days' notice or service of a summons, and the plea is not filed, the clerk of the court enters up judgment and issues an execution and the Sheriff makes the money. That illustrates the system of progress they make.  Now in our chancery system, this motion I make is not on account of any hostility that I have to anybody connected with it.  The chancellors as a rule are able men, and in fact the ablest chancellors in the State‑-the Hon. W.L. Parks‑‑‑is one of the best personal friends I ever had. I am not disposed to do anything to maintain any man’s job. I am doing whatever I believe to be the best policy for the State, and I want to contribute, if I can, to the Judiciary Committee in this work of theirs to improve the judiciary system and for these reasons I make this motion to abolish the Chancery Court.  There is no need for them in the world, and there is no separate chancery system maintained in the courts of the United States nor in forty odd States in the Union. Why retain it in Alabama? I think it is really a source of economy.


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OFFICIAL PROCEEDINGS

We need more courts, but they should be courts that are capable of exercising jurisdiction as well as equity, and I want to call attention to the fact that subsequent to the last Constitutional Convention, when this question was discussed, that in my opinion, the greatest Chief Justice perhaps that Alabama has ever had or equally certain to any, the late Chief Justice Stone, wrote an article and read it before the Bar Association, in which he took very high and very strong ground in favor of the abolition of separate chancery system, and went much farther than I go, practically the abolition of the distinction between law and equity.  All I propose in the amendment, I want to offer to retain the distinction and adopt it because it is a matter of convenience and a great many of the lawyers prefer it, but, sir, when it comes down to naked rules of reason, I think that Judge Stone was right in claiming that the distinction between equity and law courts was not well founded.  It is a distinction laid down by Blackstone, and is not well founded in reason.  You want the court to dispense justice between man and man and to enforce criminal laws for the protection of society, and that is the end of it, and to indulge in technicalities, and throwing cased out of equity courts, because it is supposed that a remedy exists at law or throwing cases out of a lower court because the remedy is of equity, all that is technical and expensive, and has no place in common sense, if you will allow the expression.  Now I asked my friend from Russell to make this motion, because I did not do it in time, and having voted with the minority, could not, and the vote was so close I wanted to give another opportunity to the delegates in this Convention, to see if they would not abolish this unnecessary part of our judicial system, and , sir, I do not wish to unnecessarily consume the time of the Convention at all, believing that the question is fairly presented to the Convention.  Now I ask for the motion to be put for reconsideration.

MR. GRAHAM (Talladega)–I voted for the amendment suggested on last Saturday, and I desire to submit a few remarks on this question.  I did not make many pledges before coming to this Convention, but among them was one in favor of the abolition of Chancery Courts in this State, and consolidating their work with Circuit Courts, and among my people, it was exceedingly popular not because of any lack of confidence in these courts as they exist, but because the people believed them to be unnecessary.  I live in a chancery division, and in a circuit division, where in five counties the work of the chancellor has been practically done away with.  In fact the business is done more expeditiously in the city or county courts, established in that division.  In my county, I state from recollection and I think it is correct, there is only one case on the chancery docket of that division and that case commenced in the year 1872.  There is also evidence of the fact that the Chancery Court had better be turned into the City Court


3495

CONSTITUTION CONVENTION, 1901       

or some other court in that county. In the Seventh Judicial Circuit, the work of the Circuit Judge has practically been taken away from him in four counties, out of six. These things show the people that either the Circuit Court or the Chancery Court is unnecessary, if we are going to maintain and sustain these inferior courts. I am not disposed to quarrel with the Convention, or with the Judiciary Committee in making it possible for many more courts to be established in this State, but I suggest that the people will be able to see whether these courts are necessary. Along the line of reform, along the line of expediency, and policy, and along the line of subjecting the people to as little expense as is possible, in the administration of the courts of this country, I call this Convention to halt and to put the chancery jurisdiction along with the circuit jurisdiction, or the jurisdiction of the inferior court, and thus relieve the people of this burden. I speak seriously when I say that the prospect in this State is not the best for economy, in our court system,  because we are opening wide the doors and all members of my profession are not any too busy in looking after their private practice, and I fear that a great many will become too busy in looking after the creation of positions to which they may aspire.  Gentlemen let us be conservative in this matter.  I believe this is the step in the right direction. I believe the people would approve it. I know that they are willing for us to have courts sufficient to carry on the business of the State expeditiously and I want them to have them, but I fear that we are opening the opportunity for the creation of too many courts. There are some in existence in this State today, in counties where the tax values are less than two million dollars, and I have heard it said that jurors could not get their certificates cashed when they served for such courts, and still those counties are put to the expense of supporting a circuit judge. Gentlemen of the Convention, let us make a reform just at this point. It is a quiet hour, and a moment for serious reflection, and I trust this Convention will consider this matter seriously and if after such consideration, you deem it wise and expedient, I hope you will reconsider the vote by which this was taken and let us work a just reform in this State in the judicial system.

MR. deGRAFFENREID–May I ask a question?  We had this system that you advocate in this State at one time, did we not?

MR. GRAHAM (Talladega)‑I do not remember.

MR. deGRAFFENREID-Is it not a fact that one term the Circuit Judge had Chancery jurisdiction, now I wanted to ask you if it was not a fact that the chancery cases were always put at the heel of the docket, and as a rule not reached?

MR. GRAHAM- (Talladega)‑I will state I was not in practice at that time. I understand it was way before the war. I will call on Mr. deGraffenreid to answer his question.


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OFFICIAL PROCEEDINGS

MR. deGRAFFENREID-I have heard Judge Stone say in a speech before the Bar Association on this subject, that when they did have that system, chancery cases were put at the heel of the docket, because the jurors were there and the judge was anxious to try cases that juries should try, so as to dispense with their services, and expense of keeping them there, and chancery cases as a rule were not reached until Friday or Saturday, and everybody was tired, and as a result, chancery cases were continued from term to term and year to year, and in order to get rid of that trouble the law was changed and mad as it exists today.

MR. GRAHAM–I would like to ask if even that would make a chancery case more tedious and slow than now.

MR. deGRAFFENREID-We do get rid of cases now.

THE PRESIDENT-The time of the gentlemen of Talladega has expired.

MR. deGRAFFENREID-The gentleman yielded to me.

MR. GRAHAM (Montgomery)–Mr. President, it is apparent to every one in this Convention that it is the purpose of the amendment offered by my colleague from Montgomery to eventually if not peremptorily abolish chancery courts in this State.  Revolutions, sometimes work out good, but revolutions of the character of this, in my humble opinion, will result in hardships and harm to litigants in this State.  As has been imitated by the gentleman from Hale, the result of placing both equity and law jurisdiciton in circuit courts, or in other courts of like jurisdiction of different names, will result on account on the expense attending upon having the jurors and witnesses, place the chancery docket at the tail end of the court, and the result will be that those cases will never be tried, except possibly at a special term when the conscience of the judge will prick him to do something he ought to do.  With the circuit courts we have in the State of Alabama, at present, possibly there may be an increase–it will be absolutely impossible for the circuit court to perform its required duty in trying jury cases and equity cases which may be brought in that court.  Reference has been made to other States in this Union which have abolished, chancery jurisdiction.  Only recently I have had an opportunity of discussing this matter with some of the most learned lawyers in the State of New York, and one of them an old man who practiced in the time when they had able chancellors on their bench, raised his hand and said “For God’s sake, don’t ever abolish your chancery jurisdiction.  Those of us who knew what it was, are praying that the time will come when we will have it re-established in the Empire State of this country.”  He says: “We have herein a part of a court, a judge who in the trial engaged in nothing but equity cases for the last twelve or


3497                                          

CONSTITUTIONAL CONVENTION, 1901

fifteen years, and he will be engaged in that business possibly fifteen or twenty years longer before the court can try all of the cases.

MR. REESE‑Does not Section 9 of this Act already provide that the Legislature may give the chancery jurisdiction to the Circuit Court?

MR. GRAHAM ‑ I propose to refer to that before I get through. Such being the condition, Mr. President, those who have been accustomed to having the system, and such being their experience and observation, I think we should go slow in changing the system which has been woven into the very existence of the State of Alabama. The question asked by the gentleman from Dallas is answered by reading the further report of the Committee.  The Committee reports and recommends that these courts may have equity or law jurisdiction conferred upon them in the discretion of the Legislature, and in those countries where special courts are established, they are wiped out, but if the system is carried out as suggested in the amendment of the gentleman from Montgomery, we will have little courts set up in every little county in the State of Alabama, with equity and law jurisdiction. We all want a court that we will have respect for. We might as well have a court in which we might be sure that we could have cases tried.  The people will have more confidence in a Chancery Court than they will have in a little two-by-four  court set up in various counties in the State for the purpose of disposing of business which may be brought before it. This is no time for radical action in the administration of Justice. This is no time to make radical changes as to revolutionize the whole system. The people will not stand revolutions of this character.

MR. OATES–What authority have you for stating there will be a vast number of counties with little courts established?

MR. GRAHAM–Because there have bee in the past, and, judging the future by the past, they will be created and will be created for the purpose of disposing of the very business which the gentleman wishes to get out of the Chancery Court.

MR. OATES–What past do you refer to?

MR. GRAHAM–I refer to the past in the State of Alabama.

MR. OATES–To what occurred sixty years ago?

MR. GRAHAM–No, sir; to what has occurred within recent years.

MR. OATES–There is nothing of that kind.

MR. GRAHAM (Montgomery)–There is a court, I am informed by reputable gentlemen, both outside of this Convention


3498                  

OFFICIAL PROCEEDINGS

and in this Convention, where there is a judge with a salary, I believe, of about $800 a year in Clay County, which  has, as I ain informed, only $800,000 of assessable property.

            THE PRESIDENT–The time of the gentleman is up.

MR. GRAHAM–Mr. President, I had not closed my remarks, but I will make a motion.

MR. SAMFORD (Pike)– Mr. President—

THE PRESIDENT‑-For what does the gentleman rise?

MR. SAMFORD (Pike:)‑‑To obtain recognition. I desire to yield my time to the gentleman from Montgomery, upon gaining recognition.

MR. GRAHAM--I do not care for any more time. I move that the motion to reconsider be laid on the table.

MR. GRAHAM (Talladega)–I call for the ayes and the noes.

The call was sustained.

THE PRESIDENT‑‑The question is upon the motion to table the motion to reconsider the vote whereby Section 7 was adopted.

MR. OATES‑Permit me to say that this will be tantamount to a vote for or against the continuance of Chancery Courts.

THE PRESIDENT‑The Chair presumes the delegates have followed the interesting discussion, and that they understand the issue.

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

AYES

Ashcraft

Espy,

Macdonald,

Barefield,

Ferguson,

Maxwell,

Blackwell,

Fletcher,

Merrill,

Boone,

Glover,

Miller (Marengo),

Brooks,

Graham, of Montgomery,

Miller (Wilcox),

Bulger,

Handley,

Norman,

Burns,

Heflin, of Chambers,

Opp,

Cardon,

Heflin, of Randolph,

Pettus,

Carmichal, of Colbert,

Henderson,

Reese,

Carnathon,

Inge,

Reynolds (Henry),

Cobb,

Jenkins,

Samford,

Davis, of DeKalb,

Jones, of Hale,

Selheimer,

deGraffenreid,

Kirk,

Sentell,

Duke,

Leigh,

Smith (Mobile),


3499                                  

CONSTITUTIONAL CONVENTION, 1901        

Sorrell,

Walker,

White,

Stewart,

Watts,

Wilson (Clarke),

Vaughan,

Weakley,

Waddell,

Weatherly,

TOTAL‑51

NOES

Messrs. President,

Graham, of Talladega,

Palmer,

Banks,

Grayson,

Pearce,

Bartlett,

Haley,

Phillips,

Beavers,

Hood,

Porter,

Beddow,

Hodges,

Rogers (Sumter).

Browne,

Howell,

Sanford,

Byars,

Jones, of Bibb,

Smith, Mac. A.,

Chapman,

Kyle,

Spears,

Coleman, of Walker,

McMillan (Baldwin),

Spragins,

Davis, of Etowah,

McMillan (Wilcox),

Studdard,

Dent,

Murphree,

Whiteside,

Foshee,

NeSmith

Gilmore,

Oates,

TOTAL‑38

ABSENT OR NOT VOTING

Almon,

Jackson.

Parker (Cullman),

Altman,

Jones, of Montgomery,

Parker (Elmore),

Bethune,

Jones, of Wilcox,

Pillans.

Burnett,

King,

Pitts.

Carmichael, of Coffee,

Kirkland,

Proctor,

Case,

Knight,

Renfro,

Cofer,

Ledbetter,

Reynolds (Chilton),

Coleman, of Greene,

Locklin,

Robinson.

Cornwall,

Lomax,

Rogers (Lowndes),

Craig,

Long (Butler),

Sanders,

Cunningham,

Long (Walker),

Searcy,

Eley,

Lowe (Jefferson),

Sloan,

Eyster,

Lowe (Lawrence),

Smith, Morgan M.

Fitts,

Malone,

Sollie,

Foster,

Martin,

Tayloe,

Freeman,

Moody,

Thompson,

Grant,

Morrisette,

Willet,

Greer, of Calhoun,

l

Mulkey,

Williams (Barbour),

Greer, of Perry,

Norwood,

Williams (Marengo),

Harrison,

O'Neal (Lauderdale),

Williams (Elmore),

Hinson,

O'Neill (Jefferson),

Wilson (Washington),

Howze,

O'Rear,

Winn,

So the motion to table prevailed.

Section 14 was read as follows:


3500                              

OFFICIAL PROCEEDINGS

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

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

MR. SPRAGINS–I have an amendment.

Amendment to Section 14 by Mr. Spragins:

“Amend Section 14 by striking out all of the word ‘elected,’ in the second line and by adding in lieu thereof the following: “By the qualified electors of the county or counties within the jurisdiction of such inferior courts of law and equity.’”

MR. SPRAGINS–That is in line with what has already been done in the election of Circuit Judges and Chancellors and Supreme Court Judges, making the Judges of the inferior courts elected by the qualified electors of the various counties.

Mr. Heflin of Chambers here took the chair.

MR. SMITH (Mobile)–we of the Committee had that matter under consideration, and there was considerable contention that the conditions of some particular counties was such that it would not be to the interest of the people to have the judges elected in those counties.  It was thought that in certain counties, under certain circumstances, the power would be in hands unfit to select a judicial officer; that that had been the experience in the past in some of the counties, and that it might be in the future, and that the power should therefore be in the legislature to prescribe how the judges in the several courts should be appointed or elected.  That was the purpose the committee had, and I presume there are gentlemen here from some of the counties where there would be very strenuous objections to the election of judges in those counties by the people.  I simply state this that it may be understood why a different provision is made for the filling of these offices than for other judicial offices.  I therefore move to lay the amendment of the table.

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

Upon a further vote being taken the section was adopted.

Section 15 was read as follows:

Sec. 15.  Chancellors and judges of all courts of record shall have ben citizens of the United States and of this States for five Years next preceding their election or appointment, and shall be not less than twenty-five years of age, and, except judges of probate courts, shall be learned in the law.

MR. MACDONALD–I have an amendment.


3501                

CONSTITUTIONAL CONVENTION, 1901  

The amendment was read as follows:

Amend Section 15 by striking out the words "except judges of probate courts" on the third and fourth lines of the section.

MR. MACDONALD‑I do not suppose there is a lawyer in the sound of my voice who will disagree with me upon the principle of the amendment proposed. I cannot say that I have any hope that it will escape the fate that has befallen amendments to this article, as a general rule, but I would like to examine the mind and the conscience of each lawyer upon the floor of this house and ask him, and if I could get him out of this room, or at any place where his expressions would not be made public, he would agree with me. Every man knows that before these probate judges some of the most intricate and important propositions of law are brought; that in cases where the validity of wills are contested, and many other matters of the administration of the probate law of this State, a skilled lawyer is infinitely more required, as a rule, to occupy the seat of  probate judge than in most any other court. Now we have all had that experience. Every man in this Convention who has practised law has had it, and yet, for some reason which might be very easily stated, but which never has been frankly stated, it has been the practice and the custom of the State of Alabama to except probate judges from the operation of the very salutary rule that all judges should be learned in the law. Why has it been? As I say, it has been known to all men, and I do not care to state it myself, but we all know it, and that very reason, it may be, Mr. President, will result in this amendment taking the ordinary course.

MR. ROGERS (Sumter)-‑What is the reason that exempted them from being learned in the law?

MR. MACDONALD -‑ Because some of the very eminent citizens of the respective counties in this State considered it a very fat office, and there were some of them than lawyers in the counties.

MR. ROGERS (Sumter)‑There are still more.

MR. MACDONALD‑‑And there are still more. I say that is the reason that this amendment will probably take the course the other amendments have taken, but, if we are here to do what is just, right and proper, to do what our last experience as lawyers or as litigants‑-if there are any of that unfortunate class in this Convention shows to be the facts we will adopt this amendment.  Why, we go before a judge of probate who has not attempted and does not propose to attempt to acquire any knowledge of law, and we submit to him questions relative to the construction of instruments, of wills, and the validity of wills, which I say requires technical learning of the very highest order, and lawyers gravely argue such propositions between judges of Probate, who do not


3502                  

OFFICIAL PROCEEDINGS

know what they are talking about, and are not presumed to know.  I say this without reflection on any of these eminent gentlemen who fill these offices, because it is no business of merchants or farmers to acquaint themselves with matters of this character.

Again, I made an effort this morning to strike from Section 11 the latter part of it, which prohibits any man who at any time gets to be a judge to take any office during his occupancy of the judgeship, and that included Probate Judges, so if an instance should occur where, by reason of some matters peculiar to himself, a Judge of Probate might resign  ( I do not say it is likely by any means that he will)  the office of Judge of Probate, he cannot accept any office during the term for which he is elected. Why not?  Let the members of this Convention be perfectly frank with themselves and the people of Alabama and adopt an amendment of that kind which declares that the Probate Judge should be learned in the law as well as any other Judge. Now, these are the reasons that suggest this amendment, and I submit them to the Convention without much hope, but with an entirely firm conviction.

MR. DUKE–I agree with the gentleman that most of the lawyers in this Convention think that nobody but a lawyer should hold this office. A great many of the lawyers would like to keep this office of Probate Judge in the family, if they could, but, we are not here to represent ourselves as lawyers. We are here to represent the people of Alabama, and this office of Probate Judge is peculiarly an office of the people, and it is an office that every man thinks he has a right to aspire to, and we do not think it right to deprive him of the privilege of holding this office if he wants to.  All over Alabama, we have Probate Judges who are not lawyers and they have made good officers, and I see no reason why a Convention composed of a large majority of lawyers should put it in the Constitution that nobody after this shall hold this office but us.  Mr. President, I do not believe the lawyers of this Convention think that is right, and I therefore move to lay the amendment upon the table.

MR. OATES–I appeal to the delegate from Chambers to withdraw his motion for a moment.

MR. DUKE–I withdraw it for a moment.

MR. OATES–I want to say this, that this is one office that I am in favor of leaving to the people to elect, and in the amendment I offered I excepted this office for that reason, and that the Probate Judge has not frequently complicated questions to judge, but the largest part of his jurisdiction, as you may never see, is of a domestic character–right down among the people with county matters, and I believe, as a rule, they do not make any mistakes in electing capable men to fill these positions.  Now, I do not know


3303

CONSTITUTIONAL CONVENTION, 1901                                                       

about all over the State, but you take all the southeastern part, Montgomery, Bullock, Barbour, Henry, Geneva, Coffee, Dale, Pike and Covington, and not a lawyer is Probate Judge in any of these counties, and yet I can say of my personal knowledge, that nearly all of them are very excellent officers, and I judge the balance of the State by them. Therefore, I oppose the amendment of my colleague, and renew the motion of the delegate from Chambers to lay the amendment upon the table.

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

Upon a further vote being taken, the Section was adopted.

MR. REESE‑I ask unanimous consent to offer a short ordinance which it will require but a minute to read.

Consent was given.

The ordinance was read as follows:

Ordinance No. 440, by Mr. Reese

Be it ordained by the people of Alabama in Constitutional Convention assembled, That Section 18 of the Article on Suffrage and Elections be and and the same is amended by adding at the end of said Section the following words:  Provided that after the rear 1906 said poll tax shall be upon each male inhabitant of this State over the age of 21 years and under the age of 60 years, and provided further,  such persons as are now over the age of 45 shall never be required to pay such tax.

Leave of absence was granted to Mr. Williams of Barbour for today.

THE PRESIDENT‑The Clerk will read the next Section.

MR. WATTS‑The next Section has three or four minority reports, and I therefore move that we adjourn.

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

___________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being ninety-two delegates present upon the call of the roll.

THE PRESIDENT‑The special order for this afternoon is consideration of the report on judiciary. We had under consideration Section 16 when the Convention adjourned in the forenoon. The Secretary will read Section 16.  There seems to be two minority reports. The Chair will rule the first minority report be considered as an amendment to the amendment. The Secretary will read the section as reported by the committee, then the first


3504                  

OFFICIAL PROCEEDINGS

amendment, then the second amendment, which latter will be the subject before the house.

The Secretary read Section 16 as follows:

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

The Secretary read the first minority report by Messrs. Watts and others as follows:

Sec. 16.  In the year 1904, Judges of the Probate Courts, Judges of the Circuit Courts and Chancellors shall be elected by the qualified electors of the respective Counties, Circuits and Chancery divisions for a term of six years, and until their successors are elected and qualified.  In the year 1910, and every four years thereafter, Judges of the Probate Court shall be elected by the qualified electors of the respective counties for a term of four years, and until their successors are elected and qualified.  The right of such Judges and Chancellors to hold their offices for the full term hereby prescribed shall not be affected by any change hereafter made by law in any circuit, division or county in the mode or time of election.

The Secretary read the second minority report by Messrs. NeSmith, Fitts and Duke as follows:

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

THE PRESIDENT–The question will be on the amendment to the amendment of the section reported by the committee.

MR. NESMITH–The purpose of the gentlemen who join with me in making this minority report is largely to carry out so


3505

CONSTITUTIONAL  CONVENTION, 1901     

far as possible what seems to be the purpose of this Convention in holding an election every four years and to avoid elections between times or biennial elections. The plan as proposed by the majority of the committee in the next section will necessarily result in an election for judges every two years as long as this Constitution may remain in effect by providing that a certain number of Supreme Court Judges shall be elected every two years.  The minoritv for which I speak attempted to carry out that idea also in reference to the Supreme Court Judges by providing that that time shall be eight years, that as nearly possible one‑half shall be elected every four years.  As I understand the report of the minority of the committee headed by the gentleman from Montgomery, Mr. Watts, is in substance the report of the other minority report, except that it provides that the terms of Circuit Court Judges and Chancellors shall be eight years instead of four years as reported by us.  The Convention is aware of the fact that the Executive Department has reported an article which has been adopted by the Convention providing for the election of Governor and other State officers every four years. The Legislative Department has proceeded along that line, and the Convention has adopted that report providing for the election of Senators and Representatives everv four years. It will be said that we will have national elections every four years and that this election for judges may be held at the same time, to avoid the expense.  Mr. President, for a great many years we have held our State elections separate and apart from national elections, and I am one of those who was opposed to the change at this time.  However, that may be wise. We know not when, for some reason–from Federal interference, perhaps–that we will wish to change the election from November to some other time in the year.  The convention has provided for that by leaving it within the jurisdiction of the legislature so to do.  In the event that it would be done we have a biennial election simply for the election of these judges.  I have not been able to get the correct figures, but I am reliably informed that State elections cost about $35,000.  Suppose that we were to same twelve or fifteen of these biennial elections by this method, it would result in a saving to the State of something like five hundred thousand dollars, and the interest accumulated on that would amount to much more.  As to the term of the Supreme Court Judges, the gentleman form Chambers, Mr. Duke, and I took occasion to look into the Constitution of the majority of the States and we find that the terms of the Supreme court Judges range higher than six years.  It seems to be the wisdom of a majority of the leading States to have the terms six, eight, fourteen years, and some for life, or during good behavior, as you know that is the policy of the United States judiciary system.  As to the term of circuit judges and chancellors it seems to me that four years is a proper term.  About that though, I am not particular whether


3506                  

OFFICIAL PROCEEDINGS

that be four years or eight years.   It may be said that four years is too short for a good man to give up his law practice and go upon the bench and get out of the practice.   In answer to that I might say that so far as my observation goes the men that make good judges can hold their position, they will demonstrate within four years whether or not they are fit for the position, and if so be, returned without opposition as a rule, but should he be unfit to perform those duties we would be able to put in some one who is fit.  I trust that the report will be adopted.

MR. WILSON (Clarke) ‑When the Committee on Judiciary struck this section of the article it found considerable embarrassment and difficulty in framing a section that would meet the views of a majority of that Committee, but after careful and mature consideration the majority of the Committee decided that it was better to leave the section just as it is in the Constitution of 1875, fixing the term of the judges including the Supreme Court, Circuit, Chancellor and Probate Judges at a term six years.  The very fact that the minority Committees could not agree on the same proposition emphasizes the difficulty that was in the way of the Committee and it seems to me that the position taken by the majority is the stronger position of the two.  One of the minority reports suggests one proposition and another of the minority reports another proposition.  Now, the only reason urged by either yet of the minority reports for changing the term of the judges is to make the election of the judges come at the same time as do the elections for the other State officers at the general State elections.  So in discussing the question it seems to me that the only matter that need be considered is whether or not we would gain as much by changing these terms to make them fit the regular State elections as we would lose by changing the terms of the judges from the terms they have been for very many years in Alabama.  In the first Constitution adopted in this State in 1819 the terms of the judges were during good behavior.  I think every lawyer who has had experience with the Federal Judges knows that it is wise for the State to change from that system and the State of Alabama did change in 1830 by the first amendment to the Constitution of 1819 from the life term, or the term during good behavior for the term of six years for all judges, and since the year 1830 to the present time the term of the judges in this State has been for six year.  For seventy years the terms of office of the judges in this State has been as it now is.  I do not argue that just because we have a certain state of affairs that it is always best to keep it, but I do insist that when it has been established for so long and has been acted upon and understood has been a part of our system for so many years, unless there is a good reason it is not worth while to change it.

Now, what are the reasons urged for changing the terms from six years to four years for Probate Judges?  Both sets of the mi-


3507                                          

CONSTITUTIONAL CONVENTION, 1901

nority recommend four years for Probate judges. A part of the minority recommend four years for Chancellors, Circuit Judges and other inferior court judges. The other part recommended eight years for Chancellors, Circuit Judges and Supreme Court Judges, but four years for Probate Judges. They all recommend four years for Probate Judges and part of them four years for the other judges and eight years for the remainder. The only reason given in the minority report for making that innovation is that these elections might come when the general State elections are held, and save the expense of an extra election ; but, when you come to consider how few extra elections there will have to be, you will see that we will not be compensated for overturning this provision which has been here for seventy years for the benefit of the little saving we will gain. In the first place, both minority reports recommend that all of the judiciary officers be elected in 1904.  That is the time their present terms will expire. You will remember that we have already fixed the time for the election of State officers in 1902, so you have an election for judges at which there will be no elections for State officers in 1904 if you adopt either minority report or if you adopt the majority report, so there is no difference on that proposition. We have an election for judges to start on in 1904.

MR. NESMITH– Isn’t it probable that the Committee on Schedule or Harmony will arrange that so as to harmonize it?

MR. WILSON– I don’t see how it will arrange it, unless this Convention undoes what it has done.  It has provided that at the general election in 1902 ass State officers shall be elected and hold for a term of four years, and the minority has recognized that proposition, because both minority recommend that Judges be elected in 1904 and hold until 1910, which is the time State elections will come on again–no, it is not the time, but four years  from which would be the time that State election will come on again.

MR. NESMITH–That election will be in 1902, for four years.  That will put an election in 1906, which will be for four years, which will make another election in 1910.

MR. WILSON–I will explain that.  I would rather the gentleman would not interrupt me with an argument.

MR. NESMITH–I ask if this should not provide for 1910 to reconcile it?

MR. WILSON–Yes, sir; thereby recognizing the provision that we have already made, it seems to me, that we elect the State officers in the general election in 1902.  I say under both minority reports and under the majority report, we will have this election for judges in 1904.  They all provide that, so that it is not an ex-


3508                  

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tra election. If you adopt the majority report, you do not provide for an extra election in 1904, because they all provide for the election of judges in 1904.  That is the time the term of the present judges expire.  Then you would have an election for judges again in 1910 if the term is for six years, as the majority recommends in this report, and in 1910 you would also have an election for State and county officers, so you would have that general election at that time anyway.  In 1914 you would have another election for State officers, but you would not have another election for judges until 1916.  The next election for judges would be in 1922, and at that time all the State officers would be elected again. So then—

MR. NESMITH-‑In the next section, as reported by the majority, doesn't it provide for the election of one Justice of the Supreme Court every two years?

MR. WILSON– Every two years at the Federal election; but if the Convention is unwilling to trust the Supreme Court Judges to be elected at the Federal elections, it would make no increase in the number of election.  They can leave them as these are here, which would be only one extra election every twelve years, less than eitht extra elections in one hundred years, which, I submit, is not very considerable.  Under the plan submitted by the majority, you will have an extra election for judges in 1916, 1928 and 1940.  These are the only three extra elections you would have, which you would not otherwise have, in the next forty-six years; that is, until 1946, and I submit that is not any considerable amount of expense and will not amount to very much.

THE PRESIDENT–The time of the gentleman has expired.

MR. SAMFORD (Pike)–May I ask the gentleman a question?

MR. WILSON–I yield, Mr. President.

THE PRESIDENT–The gentleman’s time has expired.

MR. SAMFORD (Pike)–I desire to yield the gentleman a portion of my time for this purpose.  Isn’t it a fact that the Convention has, since the framing of the report on the Judiciary, adopted a clause making the State elections come off in November, and, therefore, it is not necessary any longer for the elections as provided for in the minority report?

MR. WILSON–Since the adoption of the Article on the Executive Department, the convention has adopted the Article on the Legislative Department, and in that Article they provide for the election of Representatives and Senators in November, and under this arrangement the General Assembly can put the election for


3509                                        

CONSTITUTIONAL CONVENTION, 1901  

Judges as well in November as for Representatives and Senators.  If it does that, there will be no extra election. But, conceding the General Assembly does not want to do that, but will let it stay as it is now, then we would have only three extra elections for Judges between now and 1946, and I say that is not any very considerable extra expense.

MR. WATTS‑If this Convention desires to have this extra election for judges every twelve years, as mentioned by the gentlemam from Clarke, why, then, I don't care particularly about insisting on my minority report, but if the Convention desires to apply to judges that same scheme or method which has been applied to other officers, then I think that we ought not to have special elections simply for the election of judges of the courts. We ought to have all of the officers, judicial, executive and legislative, elected at the same election as far as practicable, and not to have off years in which only a couple of judges are to be elected, or a few judges of the Supreme Court. Now the only difference as I see it, or the only practicable difference between the two minority reports is this: The proposition of the gentlemen who unite with me in a monority report is that at the next election in 1904 all of the judges– Probate Court, Supreme Court and Chancellors‑-shall be elected for term of six years; that in the year 1910 the Probate, Judges shall be elected for a term of eight years, and the provision is made in the following Section for the election of the Supreme Court Judges for a term of eight years, but at the first election for only four years so as to have a part of the court elected every four years.

MR. deGRAFFENREID‑What is the reason for making an exception against the Probate Judges there, making their term four years and that of the other judges eight years?

MR. WATTS‑ None in the world except the concensus of opinion of the Committee seemed to be not to lengthen the term of Probate Judge to eight years.

MR. deGRAFFENREID– You shorten the Probate Judges two and lengthen the others two years. That is the effect of it.

MR. WATTS‑ Yes.

MR. deGRAFFENREID–As a matter of fact is it not the experience in the State that Probate Judges nearly always succeed themselves?

MR. WATTS–Yes, sir, and they can do so under the four year term.

MR. deGRAFFENREID–And if you gave them eight years would they not get the same they do now under the law?


3510                  

OFFICIAL PROCEEDINGS

MR. WATTS‑But if they were reelected then they would get sixteen years?

MR. deGRAFFENREID-‑Yes.

MR. WATTS-‑I was about to state the difference between the two minority reports. Now the other minority report is substantially like the report submitted by myself and the gentleman who joined with me except that it provides for the Circuit Judges, Chancellors and Probate Judges to be elected every four years after 1910, so the whole thing before the Convention is just simply this, and I do not care to and will not take up the time of the Convention to argue the matter.

MR. WADDELL–Under your plan, isn't it a fact that Probate Judges are not affected at all until 1910?

MR. WATTS–Yes, sir, under all the plans they are not affected until 1910. Now the whole question before this Convention is simply this: Shall all of the judges of this State have six year terms, or shall we make the Probate Judges' term four years and the balance of them eight, or shall we make the Supreme Court  Judges’  term eight years, and all the rest of the judges four?  Now there is the whole proposition in a nut shell. I do not care to take up the time of this Convention because it is a question I care very little about.

MR. DUKE–The minority report which was signed by Mr. NeSmith and myself recommends eight years for the Supreme Court  Judges and four years for the Probate Judges, Chancellors and Circuit Court Judges.  The majority report adheres to the six year plan for all of the judiciary, but they have a provision that every two years two Supreme court Judges, I believe, shall be elected, thereby causing an election certainly every two years.  Now that is in their report.

MR. WILSON (Clarke)–Is not that made the next succeeding Section and not that one?

MR. DUKE–I propose to argue both together and cannot argue one without arguing both.  The seventeenth Section which follows the sixteenth in the majority report, provides that the Supreme Court Judges and certain of the others shall be elected every tow years, thereby requiring an election in the State of Alabama for certain officers every tow years.  Now, the report which we bring in provides for an election every four years.  It provides that the Probate Judge, the Circuit Judges, and the Chancellors shall be elected every four years and a given number of the Supreme Court Judges shall be elected every four years to hold for eight years ; that is, at the first election in 1904, the Supreme Court Judges will be elected for six years, and all of the judiciary will be elected for six years in 1904.  Then in 1910 all of the elec-


3511

CONSTITUTIONAL  CONVENTION, 1901       

tions will come together in the State. Then it provides that these Circuit Judges, Chancellors, and Probate judges, shall be elected the next four years for four years, the Supreme Court  Judges shall be elected for four years, and they shall cast lots as to which shall take the four year terms and which shall take the eight year terms, and after that, each four years, a  Supreme Court Judge is to be elected under this report, thereby having only an election only every four years for any kind of an officer in the State of Alabama.

Now we think that it is not a good policy to elect probate judges for eight years.  We think that that would not suit the people of this country to elect a probate judge for that long. We think that it is better to elect the probate judge and circuit judge and chancellor for four years than to elect them for eight years.  Why ?   If you get an incompetent probate or circuit judge or incompetent chancellor, you can dispose of him after the four years under the four year plan, but if you elect him for eight years, you have got to keep him eight years.   If you elect him for four years, and he turns out to be a good judge or chancellor, competent and qualified for the position, he will be re‑elected at the next election.  We believe this will better suit the country than to elect the chancellor, circuit judges and probate judges, every eight years. Under the plan of the minority, you would have a democratic Convention and other Conventions, too, perhaps, for the nomination of these officers. That is something which the people of this country are tired of. It is as much worry and as much trouble to nominate and be troubled with the nominations of these officers as it is to have their election ; while under the plan of the majority, you will have to nominate these Supreme Court Judges every two years, and under Section 17 of this Article and in voting upon Section 16 you are bound to consider Section 17.  The people do not want to be troubled with these nominations except every four years. They are tired of it.  As I said, it is as much trouble to them to nominate as it is to elect.

Replying to the gentleman who spoke for the majority report, he says that the election for Supreme Court Judges has been fixed to occur at the Federal election, and it would not be much additional expense. They have also a provision that it may be changed by the legislature and put at any other time.  They fix also the election of probate judges at the same time they do the election of Federal officers. They fix the election of circuit court judges and chancellors at the same time they do these Federal officers. Suppose the legislature meets and says we are not satisfied with this, it doesn't work well to have it at the same time as the Federal election, we want to change this, and elect at a different time because it doesn't work well to have the Federal and State election at the same time, which I think will be the case.


3512                  

OFFICIAL PROCEEDINGS

Suppose they decide that and change these elections and have them at a different time of the ear then what do you have.  We have an election every two years in the State of Alabama and you cannot get around it because two of these Supreme Court Judges are elected every two years and you will have all extra election every four years instead of every six or eight years as argued by the gentleman from Clarke and so whenever we adopt the report of the majority we establish biennial elections in this State. We are bound to have it if we adopt the majority report.  I would prefer the report of the other minority committee to the report of the majority. We provide for the election every four years. We fix the term of the offices and Probate Judges four years, Chancellors four years.  Do you think that that would suit the people to elect Circuit Judges and Chancellor for eight years and Probate Judge for eight years and let them succeed themselves and hold for sixteen years, or what is a better argument, if you get an incompetent officer you have got to hold on to him for eight years.  Oh, well, you may say that applies to the Supreme Court Judges.  That is so.  It would apply to the Supreme Court Judges, but you would not be apt to elect five incompetent Supreme Court Judges and there is the difference.  This minority committee is not alone in its ideas as to the election of the Circuit Judges and Chancellors every four years.  In Arkansas I see they elect their Circuit Judges every four years, North Dakota every four years, Iowa every four years, they elect them in Kansas every four years, in Georgia every four years, in Montana they elect them every four years, Nebraska every four years, New Mexico every four years, Texas every four years and in Washington and so on.  Now when you come to the  election of Supreme Court Judges----?                        

MR. OATES–In Mississippi?

MR. DUKE–Yes, Mississippi, too.  Now when you come to the Supreme Court Judges of the State a vast majority of the States elect Supreme Court Judges for more than six years.  There are a very few States of the Union but what elect their Supreme Court Judges for a longer period than six years.  Arkansas elects them for eight years, Connecticut for eight, Delaware for good behavior, Florida has it six years, North Dakota six years, Iowa six years, Kentucky eight years, Maryland fifteen years, Mississippi nine years, Michigan ten years and so on down through all the States.  They make a distinction between the term of office of the Supreme Court Judge and the Judges of the lower courts.  In nearly all of these States you will find the distinction is made and in nearly all of them the Supreme Court Judges hold nearly twice as long as Circuit Judges and District Judges do.  Some are not without precedent in our opinion in our report.  Now I am not specially wedded to that, I am unalterably opposed to the report of the majority committee yes, you plan.  I do not think that would


3513

CONSTITUTIONAL CONVENTION, 1901

do at all.   I much prefer the report of the other minority committee, but I think that this report giving the minor judges, the inferior Judges, four years and the Supreme Court Judges eight years, is more consistent, and I think it will meet the wishes and desires of the people better, and above all gentlemen, we will have elections every four years and not oftener and under the majority plan we will have elections oftener than four years and the people of this State expect us to adopt a plan whereby they will not be worried with nominating conventions and elections every two years, and it has already popularized this Constitution in the fact that we have already adopted the four‑year plan in the Executive and Legislative Departments.

MR. WALKER–I simply desire to say enough to make plain to the Convention the different propositions that are presented here by the majority and by the two minority reports. Under Section 16 as reported by the majority the terms of the Judges in this State for the Supreme Court, Circuit Court, Chancery Court and Probate Court are left just where they are now, six year terms.  There are two minority reports upon this subject, the one signed by Mr. NeSmith and the gentleman from Chambers who has just taken his seat, provides for eight year terms for Supreme Court Judges and four year terms for all other Judges in the State. The other minority report signed by the gentleman from Montgomery, Mr. Watts, and other gentleman provide for eight year terms, for Supreme Court Judges, Circuit Judges and Chancellors and for four year terms for Judges of Probate, and under both of those minority reports you will observe that the chance that is proposed to be effected is not to be put into operation until 1910. Practically the present generation would not get the benefit of this reform and the only reason that has been suggested for this change from the custom which has prevailed for seventy years in this State, of having six year terms for the Judges is to obviate the possibility of additional elections at any time in the future. Well now as has been called to your attention by the gentleman from Clarke, the number of additional elections that would be involved in the course of the next forty years would be very small.  Under the majority plan the terms of Judges is left just where it is at present and where it has been for seventy years.  With the length of that term I have heard no complaint among members of the bar and among the people at large, and I submit that the only objection that has been made to this majority plan, viz: that of occasionally an additional election and very occasionally, it is not sufficient to warrant a departure form the practice as it has prevailed in this State for so many years without complaint, so I understood.  Now, in the subsequent section, providing for an election of Judges for the Supreme Court, it is provided that as near as may be one-third of them shall be elected every two years at the same time that members of Congress are elected, unless the time of election is


3514                           

OFFICIAL PROCEEDINGS

changed  by the Legislature.   It does not occur to the that much additional trouble or much additional expense would be involved by that arrangement.  We cannot get out of the fact that there will be every two years in this State as long as we are a part of the Union an election every two years. I doubt very much whether the people would be more satisfied with the Judges elected in the year in which the political offices in the State are filled than with the Judges elected in the off years.  And I venture to say just as good Judges if not better would he elected in years in which they were not tangled up in politics. Now the three propositions before you and the majority report, keeping the terms of the Judges as they have been for seventy years past, one minority report providing for eight year terms for all judges in the State except probate judges. Another minority report providing for eight year terms for Judges of the Supreme Court and four year terms for all other judges of the State. I do not desire to do any more than state the propositions that are before you.

MR. DUKE‑Will the gentleman allow just one question.

MR. WALKER--Yes, sir.

MR. DUKE-‑I want to ask if under your plan the State would not be bound to hold an election every two years for judges?

MR. WALKER–For the Judges of the Supreme Court?

MR. DUKE–Yes, sir.

MR. WALKER–Every two years.

MR. DUKE–Yes, sir.

MR. WALKER–It would be bound to hold an election every two years because of its relation to the Federal Union; it would not involve an additional election at all.

MR. DUKE–Now, another question.  You state in your report that the legislature may change the time of electing the Supreme Court Judges?

MR. WALKER–Yes, sir.

MR. DUKE–Suppose they find that that does not go well and they do change the time then wouldn’t you have an extra election every two years, wouldn’t you have State elections every two years if you changed the time.

MR. WALKER–No, even under that there would be an additional election only once every four years.

MR. DUKE–But wouldn’t you have a State election for State officers every two years if they change the time?

MR. WALKER–Still without an additional election for judges only once every four years—


3515                                  

CONSTITUTIONAL CONVENTION, 1901        

MR. DUKE‑And that would make an election every two years wouldn't it?

MR. WALKER‑Yes, that is true. Now, Mr. President, I believe this matter has been discussed as far as the members care to discuss it and I move the previous questions on the amendments and sections.

THE PRESIDENT‑The question is on the minority report signed by Messrs, NeSmith, Duke and Fitts.

Upon a vote being taken a division was called for, and by a vote of 26 ayes and 34 noes the amendment was lost.

THE PRESIDENT‑The question recurs upon the amendment proposed by Messrs. Watts, Leigh, Graham and others, fixing the terms of all the judges except the probate judges eight years, leaving the probate judges four years.

Upon a vote being taken a division was called for and by a vote of 30 ayes and 46 noes the amendment was lost.

THE PRESIDENT‑‑‑The question recurs upon the adoption of the section reported by the Committee.

Upon a vote being taken the section was adopted.

The Secretary read Section 17 as follows:

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


3516      

OFFICIAL PROCEEDINGS

for the election each second year, of one‑third of the members of said Court.

MR. WATTS‑I am authorized by Mr. NeSmith to withdraw his minority report and I ask unanimous leave of the Convention to withdraw mine.

Unanimous consent was given and both minority reports were withdrawn.

MR. SANFORD (Montgomery)–I offer an amendment to Section 17.

The amendment was read as follows:

Amend Section17 by striking out the second line of said section and a part of the third line to the words  “Congress of the United States,” and inserting the words “On the first Tuesday of May in the year in which the terms of such Justices shall expire.”

MR. SANFORD (Montgomery)–I make the motion, Mr. President, and I hope that it will be considered by this Convention, and that it will not act upon it as they did upon the very wise suggestion of my eminent colleague from Montgomery, or of the proposition of the distinguished delegate fro Hale, by laying it on the table.  It seems to me, Mr. President, that the course of this Convention in moving to lay on the table and calling the previous question has been somewhat overworked.. You are doing great injustice to the men who advocate the Constitution.  Men who object to particular provisions reported by the Committee make an argument against it and them at the suggestion of some Committeeman or person with whom they have lobbied, they lay it on the table.  The argument against it has not been answered, and the result is it goes before the people with a strong argument against adopting that particular Section of the constitution which has been adopted by the Convention without having answered the men who objected to it and it is a great injury to the men who advocate the Constitution.  Now this thing of calling the previous question, laying it on the table has become a matter of jeers, and sneers and laughter and ridicule of the Convention by the people.  (Laughter.)  So much so, that when you ask a little boy who beat in a game of base ball, they say  “We laid him on the table.”  It is a matter of laughter and ridicule among the people of the community and of the State.  These things should be answered.  Over in Mississippi when they could not answer an argument they laid it on the table, and finally they were known as the “peanut politicians.”  We have no such men here, I trust.  Now, the reason I offer this (the arguments of my friend from Montgomery and from hale were not answered at all),  in 1852 and before that, for the purpose of keeping the election of the judges free from political contests they elected the judges in May and the other officers of


3517                                  

CONSTITUTIONAL CONVENTION, 1901        

the government in August and this system prevailed as late as 1861. It occurs to me if you do not take the two amendments offered by the gentlemen, the next best thing is to make the elections at different times so that politicians cannot trade off a judge for a clerkship in a Department, or trade off a Chief Justice or other Justice of the Supreme Court for some other little appointment about the Capital. I think, gentlemen, that you should adopt that amendment. It is proper and becoming. You did not provide for them selected by the appointment of the Governor and confirmed by the Senate or elected by the Legislature of the State. The next best thing is to separate the elections so that at distinct times they shall be chosen. Then there would be no such thing as swapping of votes, no bargaining, and no corruption.  I hope you will adopt this suggestion so that we may have two distinct elections.  Your judgement in your choice of them would be as pure as they have been pure hitherto in their conduct. Let us, my friends, adopt this amendment.

MR. PETTUS-‑I want to say that this brings about all election that the people of the State do not want, and I move to lay this amendment on the table.

Upon a vote being taken the amendment was tabled.

MR. PETTUS-‑I offer an amendment.

The Secretary read the amendment as follows:

Amend Section17 by striking out the words beginning “The Associate Justice” in line eight, down to and including the words “such determination,” in line four.

MR. PETTUS‑The effect of the amendment is to strike out the part of the section which is to determine what judge shall hold the long term by lottery, and leaves it to the Governor to make the selection, just as is provided in the section, if judges do not take advantage of the lottery scheme. It seems to me that is better and wiser than the report of the Committee, and, in the language of the distinguished gentleman from Montgomery, I will say that I hope the Convention will not lay the amendment on the table.

MR. deGRAFFENREID--The two gentlemen from Montgomery and myself need company, and I move that this amendment be also laid upon the table. (Laughter).

Upon a vote being taken, the amendment was tabled.

THE PRESIDENT–The question recurs upon the section as orginally reported by the Committee.

Upon a vote being taken the section was adopted.

The Secretary read Section 18 as follows:


3518                  

OFFICIAL PROCEEDINGS

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

MR. SMITH (Mobile)–I move the adoption of Section 18.

Upon a vote being taken, the section was adopted.

The Secretary read Section 19 as  follows:

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

MR. SMITH‑‑I move the adoption of the section as reported.

Upon a vote being taken, the section was adopted.

MR. GRAHAM (Talladega)–I rise to a point of parliamentary inquiry in regard to the report of the Committee.  In the third line it reads “hold his office until the next general election.”  Do I understand that that requires a special election shall be held?

MR. SMITH (Mobile)–No, sir; if the man is appointed, he holds office at least six months and until the next election; if the election comes before the six month, it would lap over until next election.  If it comes after the six months, he will be elected at the first election.

MR. GRAHAM–I just wanted to know if it required a special election.

Section 20 was read by the Secretary as follows:

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

MR. SMITH (Mobile)– I move that the section be adopted.

Upon a vote being taken, the section was adopted.

The Secretary read Section 21 as follows:

Section 21.  If in any case, civil or criminal, pending in any Circuit Court, Chancery Court or in any court having the juris-


3519                                

CONSTITUTIONAL CONVENTION, 1901          

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

MR. SMITH‑I move that the section be adopted.

Upon a vote being taken, the section was adopted.

The Secretary read Section 22 as follows:

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

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

A vote being taken, the section was adopted.

The Secretary read Section 23 as follows:

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

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

A vote being taken the section was adopted.

The Secretary read Section 24 as follows:

Section 24‑ Registers in chancery shall be appointed by the chancellors of the respective divisions, and shall have been at least twelve months before their appointment, and shall be at the time of their appointment and during their continuance in office, resi‑


3520                  

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dent citizens of the district for which they are appointed.   They shall hold office for the term for which the chancellor making such appointment was elected or appointed. Such registers shall receive as compensation for their services only such fees and commissions as may be specifically prescribed by law, which fees shall be uniform throughout the State.

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

A vote being taken the section was adopted.

The Secretary read Section 25 as follows:

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

MR. SMITH (Mobile)–Before that is adopted I wish to ask unanimous consent to change the word “elected” in the third line and insert the word “selected.”  I think that was as originally intended, but there has been a mistake in the printing.

The unanimous consent was accorded.

The Secretary read the minority report signed by Messrs. walker, Hood, Davis, Fitts, Jones, Ashcraft, Leigh, Coleman and Kirk as follows:

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

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

THE PRESIDENT–The Chair has recognized the gentleman from DeKalb, Mr. Davis.

MR. SANFORD (Montgomery)–I want to offer this substitute and make a statement to the Convention in regard to a subject upon which I am better informed than any man in it.

THE PRESIDENT–Does the gentleman from DeKalb yield to the gentleman from Montgomery?

MR. DAVIS–I decline to yield.  Mr.  President, representing the minority report in this matter it seems to me that the minority is right.  From the best information I can get, and I have taken


3521                            

CONSTITUTIONAL CONVENTION, 1901  

the pains to investigate the matter, the office of the Clerk of the Supreme Court I dare say is the best office in the State. I think any office that is sufficiently attractive and of sufficient importance to induce a good man to run for it, a competent man to seek it, that office ought to be elective. It may be argued this office ought to be filled by appointment of the Judges of the Supreme Court, because it is all office peculiarly connected with that court, but why should that be? It seems to me that the people are competent to Associate Justices, why not the competent to elect the Chief Justice and the Associate Justice, why not be competent to elect the Clerk to that court? I can see no reason why that should not be true. Now in point of lucrativeness my information is that this office pays more than any other office in the State, that is, any State office. It pays more than the Governor's office, and more than is paid to the Supreme Court Judges. Why not put him on at salary. Why should the Clerk to this court receive more money than any Judge of the court ? These are my reasons for favoring this minority report. I think it is right that we should elect to this office, and I ask this Convention to consider it in that light.  There are a number of members to this Convention that take the opposite view from that. Another thing in this report is that it should be put upon a salary. Why not do that?  It seems to me that a salary to be fixed by the Legislature would be proper for this officer. I do not see why he should have a greater salary than the Judges.  Why not put him upon a salary and let the perquisites, the fees, go into the State treasury, or relieve the litigants of it?

MR. SANFORD (Montgomery)-‑I wish to offer a substitute for Section 25.

The Clerk read the substitute as follows:

"The Clerk of the Supreme Court shall be appointed by the Judges thereof, and shall hold the office for the term of six years, unless sooner removed by the said court, and the clerks of such inferior courts as may be established by law shall be appointed by the Judges thereof and shall hold office during the terms of the Judge making the appointment."

THE PRESIDENT‑‑Does the gentleman from Montgomery offer his substitute to the majority and minority reports?

MR. SANFORD (Montgomery)–To both.  Mr. President, I made a remark just now which sometimes will occur from a slip of the tongue.  I did not intend to say to this Convention that I knew more about the Supreme Court clerkship that anyone present, but perhaps it was the truth (laughter), for it so happened that by the courtesy and kindness of the Supreme Court I was tendered that office and held it for nearly twelve years and then resigned.  During that time I know it was one of great labor, one of responsibility and requiring great fidelity in the discharge of its


3522      

OFFICIAL PROCEEDINGS

duties. Great wrongs may be done by the appointment and the holding of that office by men not qualified to hold the place. It was that purpose which inspired the minority report that the income of the office is very large ranging from five thousand to eight and eleven thousand dollars per annum. All of that is an error. I suppose from what I have been informed that the income now would average about thirty‑five hundred dollars. It requires all of the time of the Clerk of the court. His relations to the Supreme Court are so intimate he has often such confidential relations with the court that he ought to be selected by the Judges, as they alone control him absolutely. If he should be inefficient, or if he should be guilty of any offense which may not lead to an impeachment but still may cause his removal, or if he has vicious habits, he is responsible alone to them. Therefore I hope that this amendment, so far as the Clerk of the Supreme Court is concerned, will be adopted. It has stood that way ever since Alabama had a Supreme Court, and for fifty years almost that I have known the court, I have never known but one Clerk that was requested to retire from that position. They all seem to have given satisfaction to the gentlemen who appointed them, and therefore I can see no reason for having him elected by the people.  When you cannot give a good reason for a thing, that is the very best reason in the world for your not doing that thing. There is no reason for changing the manner in which the Clerk of the Supreme Court is selected. So far as the inferior courts are regarded, the Clerks hold the same relation to the judges that preside over them. I have rarely known or even heard of a Clerk of an inferior court being guilty of an act which required his removal, but if he were, the Judge has the power to do it, as the Chancellor has to remove the Register, and has the Supreme Court to remove the Clerk, and therefore I offer that substitute so that these Clerks shall be entirely under the control of the Judges or tribunals that appoint them. Elect the Supreme Clerk by the people and you cannot get rid of him except by a process of impeachment, and that would be by a long and tedious and expensive process.

MR. HEFLIN (Chambers)‑Will the gentleman permit a question? Your amendment does not apply to Circuit Court Judges appointing Circuit Court Clerks?

MR. SANFORD (Montgomery)‑No, because they are elected by the people.

MR. deGRAFFENREID‑Some of us want to know the difference between your amendment and the majority report, and want you to explain it.

MR. SANFORD (Montgomery)‑It is the latter part of the majority report. It says that clerks of inferior courts may be "elected." I wish to allow them to be appointed by the Judges in whose court they serve.


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CONSTITUTIONAL CONVENTION, 1901           

MR. SAMFORD (Pike)‑May I interrupt the gentleman a moment. I desire to call your attention to the fact that the Chairman of the Committee asked unanimous consent to have the word "elected" changed to "selected" – as was intended.

MR. SANFORD (Montgomery)‑The only point is that the selection may be by election. It dose not necessarily mean an appointment. A selection is simply the choice.

MR. WATTS‑Your amendment simply adopts the law as it is in the Constitution of 1875?

MR. SANFORD (Montgomery)‑As it is now, that is it, yes.

MR. WATTS‑Your amendment is simply the Section as in the Constitution of 1875 ?

MR. SANFORD (Montgomery)‑That is what it is, the same thing that we now live under.

MR. WALKER‑The minority report contains two propositions.

MR. SANFORD (Montgomery)‑I want to make a further statement with regard to the emoluments of that office. They are not so large as gentlemen have heard.  When I was appointed to it twenty years ago they told me it was worth two or three times the amount which I realized. I simply want to make that statement.

MR. WALKER‑I have heard general statements about that matter, and never heard a statement that did not make it greater than the salary of the Chief Executive of the State or the Chief Justice of that Court. As I was proceeding to say the minority report contains two propositions. One is that the clerk of the Supreme Court shall he elected as the other State officers are elected, by the people. The other is that the rule which prevailed in the Constitution as to the other State officers should also prevail as to the Supreme Court. Now I call your attention to the fact that in the Constitution of 1875 it was provided that the State Auditor, State Treasurer, Secretary of State‑who prior to that tune had received fees‑shall not after the expiration of the term of those now in office receive to their use any fees, costs, perquisites of office, other than their salaries as prescribed by law.  That provision in the Constitution of 1875 in reference to the other State officers is embodied in this minority report. Now is there any reason in the world why the Clerk of the Supreme Court should, in reference to his compensation, occupy a different and a higher plane than any other officer who is established here in the Capitol, and is there any reason why that officer should receive higher compensation than paid to any other officer domiciled in this building.


3524      

OFFICIAL PROCEEDINGS

MR. REESE‑‑Is there any clerk in the State who received a salary– Judiciary Clerk in the State who received a salary?

MR. WALKER‑I see, the gentleman has been coached. I don't know whether or not, but if proper to be put on salary, they ought to be.

MR. BOONE‑I rise to a point of order. I do not think it is parliamentary for the gentleman to refer to another gentleman on this floor as being coached, without he has the proof.

MR. WALKER‑I withdraw the remark. I have heard the remark made so frequently that----                                                             

MR. REESE– I desire to say that not a human being on the face of the earth suggested the question to me. It occurred to me out of my own mind.

MR. WALKER– I regret that any such statement escaped me.  The proposition before the Convention is whether or not this Convention will make a discrimination of this kind unless there is some reason for such discrimination.

MR. SANFORD (Montgomery)– Will the gentleman allow me to make a suggestion?  The reason is that, that the Clerk of the Supreme Court has to employ men to copy the opinions, and aid him in the transaction of his business. The present clerk has one or two men aiding him, for which he pays himself. He does not call upon the State for his clerical force, and nobody pays the fees of the clerk except those who employ his services, and the fees have been reduced in the last ten years.

MR. WALKER– I have no doubt that same statement could be made in reference to those officers covered by this provision in 1875. Still, there is no reason why this officer should, as a matter of fact, under the system tat now prevails, receive a compensation in excess of any other official in the Capitol. Now, this provision is so arranged, as was the provision in the Constitution of 1875, as not to effect the interest of the incumbent, and I am glad that that would be the case, because I and everybody else who have occasion to come in contact with him, realize that the gentleman who now holds the office holds it to the entire satisfaction of the bar and people of the State, and I would not make a change so far as the present incumbency is concerned.  It is not a personal question.  There can be no possible objection to the gentleman who now holds that office,  but I submit that the fee system, as applied to offices, is one that should be abolished as far as this Convention can do so. It is a course of procedure that is followed in different States and in the United States. For many years, the clerk of the Supreme Court was compensated by fees, but it proved that it largely exceeded the compensation of the judges of that court. The result was that the Congress of the United States did


3525                                 

CONSTITUTIONAL CONVENTION, 1901         

the proper thing by putting it upon a salary. I can see no possible reason for preserving and maintaining this kind of a provision in the Constitution.

MR. COBB‑It is a matter of surprise to me that any lawyer familiar with the business of our Supreme Court, and more particularly so eminent a gentleman as the one who has just addressed vote, should hesitate for one moment to recognize the fact that this is not an officer who should be elected by the people.  There is no use for us to run wild on the question of election by the people‑that is a proper system, one that ought to prevail, wherever it pertains to an officer dealing directly with the people, having the people’s business directly in his hands, and with whom he is brought directly in contact. Such is not the condition, and not the position of the clerk of the Supreme court. He has nothing to do as such. Of course, he transacts their business, but his business is directly with the lawyers and the court, and he has very little to do with anybody else. Not only that, gentlemen, but his relations to the judges of the Supreme Court are very peculiar and intimate.

MR. HOOD– What objection have you to putting the clerk of the Supreme Court on a salary?

MR. COBB– I have not got to that yet. As I was about to say, his relations with the judges of the Supreme Court is peculiar and confidential. We all know the great importance of secrecy on the part of the Supreme Judges in conducting their business. It would not do for the consultation room of the Supreme Court to leak. We do not want to know, and no man has a right to know, what is going on there until these eminent officers give out the result of their deliberations and labors. Great hard would come from it if that were the case. Now, the relation of the clerk to these men is an intimate one; he knows what it going on in the consultation room necessarily. They have to deal directly with him; he is the keeper of the records of all matters that come before the judges; they pass through the hands of the clerk, and he occupies this peculiarly confidential relation which makes it highly important that he should be a man peculiarly fitted for that position. Now, gentlemen, a political convention cannot determine these things; a political party cannot determine these things, and the people cannot well determine them. The Judges of the Supreme Court knowing the importance of the manner in which that work should be conducted, alone know about these peculiar qualifications which fit a man for this confidential relation with them. They want a man tat they can trust implicitly as they trust themselves, and there is no reason, as has been pointed out so forcibly by the gentleman from Montgomery, why we should change a system which has worked so well for so long. There is no better way presented, and unless you have a better way, let us keep to the old way, that


3526      

OFFICIAL PROCEEDINGS

having been so satisfactory, and given such satisfactory results.  So much, gentlemen, as to the manner in which the Supreme Court clerk should be elected. Now, so far as his being put upon a salary is concerned, you have had enough already presented. General Sanford has told you a pre‑eminent reason why it should not be done. In the first place, he is on the same sort of pay that the other clerks are throughout the State and in the next place the Supreme Court Clerk must of necessity have assistance, he cannot do the work himself.

MR. SANFORD (Montgomery)‑And his services do not cost the State a cent.

MR. COBB‑And his services cost the State nothing. It comes out of the litigants, and he is compelled to have assistance, just how much he cannot tell.

MR. GRAHAM (Talladega)‑I wish to ask the gentleman if he does not think that the fee system is excessive in the Supreme Court and against the people who have to pay these bills. I understood him to say a while ages that the people have nothing to do with it. I want  to know if they do not have to pay the fees, and pretty high fees at that.

MR. COBB– It is true. I did not mean to say he had nothing to do with the people. The proposition is entirely correct. He has to transact the business of the people, that is a fact, and is paid by the parties litigant. Now, if his fees are too high, reduce them, let the legislature reduce them. I don’t know whether they are too high or not. If they are too high, go before the legislature and say to that body that there is too much coming out of the pockets of the people and get the legislature to give a proper scale of fees.  That is where your remedy is.

MR. SAMFORD (Pike)– If they do not do it, and he is paid a salary, the litigants do not get the benefit.

MR. COBB– And as suggested, if you put him upon a salary, why the fee system is to be maintained, these fees are to go into the public treasury.

MR. GRAHAM (Talladega)– Would it not be much easier to get the legislature to reduce the fee system if there was not a man behind the fees than it would if the man was on a salary?

MR. COBB– That brings up the old, old story.  Still “harping on my daughter” and that is, that some man can go before one hundred and thirty-five legislators of Alabama and control them by his will. I don’t believe it.

MR. BOONE– Isn’t it a fact that the bill of costs in the Supreme Court now average only about $18.50 and $6 of that goes to support the State Library?


3527

CONSTITUTIONAL CONVENTION, 1901       

 MR. COBB‑That is true. When I say go before the legislature and reduce these fees I don't want to be understood as saying they are too high. The Supreme Court Clerk from the estimate that my friends suggest received not more than $10 or $12 on an average in each case.

MR. REESE‑I will ask the gentleman if he thinks it would be right to public policy and the State of Alabama to pay these officers a salary, and then use the courts as a source of revenue in collecting these same fees. They ought not to collect more fees than it costs to administer justice.

MR. COBB‑The gentleman is putting before you my idea better than I could do it myself. I don't think that would be wise, but I have not got through with this proposition. It is all absolute imperative necessity that the Clerk of the Supreme Court should have assistance, how much he cannot tell exactly. Put him upon a salary and you must of necessity‑ put two or three other officers on salary to aid him in the conduct of his business.

MR. WATT'S– Isn't it a fact that the legislature of two years ago, or at its last session, reduced the fees of this office?

MR. COBB– I believe they did. I believe you can depend upon the legislature of the State of Alabama to make a proper scale of fees whenever you fairly present to that body the matter of too much fees, I think you can, and if you do not they are misrepresenting the people and ought to be rebuked by their master–that is all about it. There is the reason why putting him upon a salary is not wise. You have got to increase the salaried officers of the State or you have got to give to these assistants of the clerk the fees which he now gets. You will find that you will not reduce the expenses of the State one iota. It cannot be too often repeated that the State of Alabama does not pay it.  It is true it comes out of the pockets of the people, and I for one believe that no higher scale should exist in any of these offices than will give a fair reasonable compensation for the services rendered. I am not niggardly about these things.

MR. BAREFIELD‑I would like to ask if the fees of probate judges and circuit clerks do not come out of the pockets of the people?

MR. COBB‑Certainly, out of litigants, just as the Supreme Court Clerk, but they are quite different offices. As said here today about the probate judge, the most intimate connection exists between him and the people in the county. Different classes of officers have different duties to be performed. With reference to judge of probate, everything is open to the public, everybody knows what is, being done, and have the right to know. It is not so here, and this cry about high salaries– why, gentlemen, it makes me sick. The “laborer is worthy of his hire” everywhere and on all


3528      

OFFICIAL PROCEEDINGS

occasions, and I want to see the day come in Alabama when we will wake up to the fact that we ought to do justice to our officials.  Do you know, gentlemen, that the most important department of government of the State of Alabama is the judicial, and do you know that the judicial officers in the State of Alabama are paid more meagerly than any other officer under the government, but the cry is always raised by somebody of too high salaries. It reminds me of an incident I once heard. This question was up in the legislature years ago before the war, and the cry was to reduce the salary of the Governor, and they were contending that you could get men to be Governor for little or nothing. The prominent old farmer got up and said: "Gentlemen, yes, let us reduce the salary of the Governor, my overseer will take it for $1,000 and he thinks he is as competent as any man in the State of Alabama.  (Applause). Inasmuch as I believe that the majority is about correst in this matter. I move to table the amendments and the minority reports.

MR. GRAHAM (Talladega)‑I move for a  division of the question.

THE PRESIDENT PRO TEM– The question will be on the motion to table the substitute of the gentleman from Montgomery to the minority report.

MR. WATTS– I call for the ayes and noes on that question.

The call was not sustained.

The motion to table prevailed by a vote of 46 ayes and 12 noes on a division.

THE PRESIDENT PRO TEM– The question recurs upon the motion to table the minority report.

MR. GRAHAM (Talladega)– I ask, if possible, to have a division of that question. It says in substance that the clerk shall be elected by the people, and a salary paid him. I ask for a division of that question as to salary and election by the people.

MR. HEFLIN (Chambers)– I raise the point of order that it it  not susceptible of division.

MR. ROGERS (Sumter)– Replying to the gentleman from Talladega, who asked for a division of the question, I beg to say that I have an amendment to offer when you have taken up the minority report that will meet the suggestion of the gentleman from Talladega.

MR. HEFLIN (Chambers)‑I raise the point of order that a motion to table is not debatable.


3529                            

CONSTITUTIONAL CONVENTION, 1901  

THE PRESIDENT PRO TEM‑It is the Chair's opinion that the question is not susceptible of division. The motion, therefore, is to table the minority report.

Upon a vote being taken, a division was called for, and, by a vote of 53 ayes and 11 noes, the motion to table prevailed.

MR. HOOD‑I make the point of order that no quorum voted.

A DELEGATE– Too late.

MR. ROGERS (Sumter)‑I desire to offer an amendment to Section 25.

MR. OATES‑I rise to a question of order. I voted to table that proposition, but the point made by the delegate from Etowah does not come too late, that a quorum did not vote, and, with all due respect to point of order, was not made too late.

MR. ROGERS‑You had recognized the gentleman from Sumter, who had offered an amendment.

THE PRESIDENT PRO TEM– The chair is not quite sure whether he had recognized the gentleman from Sumter or not.  The Chair was of the opinion that he had recognized the gentleman from Sumter.

MR. HEFLIN (Chambers)‑At that time I was asking for recognition myself, and, if my recollection serves me correctly, the Chair stated that he had recognized the gentleman from Sumter.

MR. OATES‑Even though the Chair does recognize another gentleman, but before the Convention acts, and when it transacts no business, when a delegate makes the point that a quorum has not voted, the Chair is bound to take cognizance of it, because it is not a vote until a quorum has voted or is present.

PRESIDENT PRO TEM– The chair does not wish to do injustice to any one, and, therefore, the motion will be put again.

MR. FERGUSON– I rise to a point of order. There was a quorum present.

THE PRESIDENT PRO TEM. – The Chair has not so ascertained.

MR. FERGUSON– The Chair must presume so in the absence of anything to the contrary.

THE PRESIDENT PRO TEM– The Chair will not presume so in the absence of a vote that does not show a quorum.

MR. OATES‑One of the greatest parliamentary battles ever fought on this continent was over that very question, whether, when there may have been a quorum present and did not vote,


3530      

OFFICIAL PROCEEDINGS

it was a legal passage of the measure. It occupied many days in Congress, and never was overturned until Speaker Reed overturned it by deciding that he could count a quorum if present.  So the vote itself, when short of a quorum will not be questioned if no point be made, but if the point be made, then the chair must either adopt Reed’s rules and ascertain the presence of a quorum, or he may ascertain it by a call of the roll– a yea and nay vote, or a call of the roll, so as to ascertain if a quorum be present.

THE PRESIDENT PRO TEM– The Chair agrees with the gentleman in part, but—

MR. FERGUSON– I move that the roll of the Convention be called for the purpose of ascertaining whether or not a quorum is present.

MR. BAREFIELD– I offer an amendment to let the clerk count those present. He can count them in two minutes.

MR. SMITH (Mobile)– If I understand the gentleman from Montgomery and the position he takes, unless a quorum is challenged by some gentleman and the Chair’s attention called to it. the vote is valid and should be treated as a quorum. If it is challenged and the Chair’s attention is called to it, then the vote must show a quorum. If it requires a challenge, then that challenge must be in proper time, and the gentleman’s former position that the vote was void and that the Chair had not so declared at any time, is not well taken, and it goes back to the Chair’s original ruling, that if he had recognized some one else to make a motion, then the question of no quorum was never raised.

THE PRESIDENT PRO TEM– The Chair has decided to take the vote over again, in order that he may determine if a quorum be present.

MR. HOOD– I withdraw my point of order.

MR. ROGERS (Sumter)– I ask that the amendment be read.

The amendment was read as follows:

Amend Section 25 by adding at the end thereof, following; “The Clerk of the Supreme Court shall not, after the expiration of the term of the Clerk now in office, receive to his use any fees, costs, perquisites of office or compensation, other than salary to be prescribed by law, which shall not be diminished during his official term."

MR. ROGERS– The difference that this makes in report of the majority and minority is this: That it leaves the selection of the Clerk to the Judges of the Supreme Court, but his salary is fixed by law.  Now I can see why the Clerk should be selected by the officers under whom he has to serve. In the first place, be-


3531                                      

CONSTITUTIONAL CONVENTION, 1901

ing under them, and being selected by them, he would be more apt to give them better service than he would if he were independent of those judges, because he could very truthfully and rightfully say to them that you are not the judges of my action, and you must have me impeached if you want to get rid of me. On the other hand, if he is selected by these officers, they can turn him out whenever he is; failing in any particular. There is another reason. The technical knowledge of the people of the State of Alabama at large, I do not believe is sufficient to permit them to discriminate between persons who might be candidates for this place.  The people of the State of Alabama generally have not looked into this question of the clerkship of the Supreme Court, and the election of a man to that position would depend upon his popularity alone, or his astuteness as a politician rather than upon his fitness. So much then for the question of election. It has been stated that during an experience of over fifty years, there has been but one Clerk of that Court who was selected by the Court who failed to give entire satisfaction. It seems to me that argument is almost unanswerable. We have had more than one Governor in fifty years who failed by a great deal to give entire satisfaction to the people. So you see the judgment of the people is not always infallible in the selection of officers, indeed it is very fallible,  This is not an argument against the election system generally.  It is simply an argument against the election of this one particular person, whose dutes are ministerial and who owes his duty to the Judges of the Supreme Court.

Now in regard to the question of the fee system. We have established the Supreme Court of the State, and every officer of that court except this clerk is upon a salary.  Why leave one member of that body operating under a different rule? Well, you say it is because it has always been the custom for clerks of inferior courts to receive fees, and therefore you should not take out this one particular person and discriminate against him. It is not a discrimination against him. Let us suppose for instance that the fees of the Clerk of the Supreme Court of the State of Alabama were less than one thousand dollars. Is there any man here that would say that the Clerk of that Court should receive only the fees?  Why, no just person would be willing for a Clerk to serve for so little money. They would come here and advocate his receiving three thousand or perhaps thirty-five hundred dollars and rightly so. The pay of an officer should depend upon the Service he renders. Therefore the argument that we should not discriminate against the Clerk of the Supreme Court by putting him on a salary, falls on its own weight. There has been a great deal said about the size of the salary, whether it shall be greater or less.  I submit this question, that the intense interest which the Clerk of the Supreme Court takes in this matter, and nobody blames him for that, to have this system remain as it is at present instead of


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being changed, is answer enough to that proposition. I believe he gets five thousand or six thousand. I believe he gets it because he is unwilling to have his salary fixed. It is claimed he has to pay his assistants out of the salary he receives, but the very fact that he is so interested in keeping this system like it is, is positive proof to anybody of sense that he does get more than a just salary.

MR. GRAHAM (Talladega)– Have you been able to get any information as to just how much he does get?

MR. ROGERS (Sumter)– No, sir, I haven’t wanted it.  The friends of the Clerk have approached me here, and they are friends of mine– and I would not think a man much of a friend who did not stick to me– that is perfectly legitimate, but then I do not permit any question of that sort, if I know it, to influence me. Of course, it influences everybody to a greater or lesser extent, but as a general proposition, I try to keep above personal influences.  If I had the management of this thing myself, and it was a matter of personal interest, perhaps I would be willing for it to go along as it is, but I want the Clerk of the Supreme Court put upon a salary. I want the fees of the Supreme Court reduced, reduced down to where it will not pay expenses, if possible, because we want to make the obtaining of justice in Alabama as cheap as possible. Suppose I am sued, and feel that I am unjustly sued, and I am brought before the court, and have to proceed up to the Supreme Court. It is unfair to have a large fee system fixed upon me and maybe I may lose by some technicality, and have to pay these fees. In the giving of justice, we ought to reduce all fees to the very lowest limit. I would be in favor of reducing the fee system down to the very minimum, and of putting all of these officers on salary, because, as I said before, the men who are brought into court are not brought there of their own free will, they are place there by other people, and because they sometimes lose these cases, it is no reason why they should be mulcted.

MR. WEATHERLY– Haven’t you just voted for Section 24, which provided for compensating Registrars in Chancery by fees?

MR. ROGERS– Yes, sir, I have done so.

MR. WEATHERLY– Why not pay them salaries?

MR. ROGERS– I have done so, and the reason I have is this : I do not know much about court system, but I expect there would be sixty‑six of these Registers in Alabama, there are sixty-six counties, but anyhow I know that the compensation of these gentlemen taken upon the average would not more than pay them for their services. Now, if I could do so, and change the whole system, I would vote to change the whole system, but I am not going to refuse to take one right step in any direction, because I cannot go the whole course at once. This is a start. I want to go


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that way ; but I am not in favor of trying to do a month’s journey in an hour. This is proceeding along the line I want to go, and simply because I cannot go all the way here, I am not going to refuse to take one step of that way. Now this is in line with the course of the Supreme Court of the United States.  The Clerks of the Supreme Court of the United States is fixed upon a salary.  It was for a long time six thousand dollars‑a very large salary, they say– and I venture to say that the Clerk of the Supreme Court of the State of Alabama gets six thousand dollars, too. If you could ever find out he gets that match. I cannot argue these things because I haven't technical knowledge enough to do this, and I and trying to present a principle.

THE PRESIDENT PRO TEM‑The gentleman's time is up.

MR. MERRILL‑Whenever we find in the State what might be a policy so considered, that policy should not be departed from unless there is good cause shown. Now, in the State of Alabama it has existed for years past, and so far as this Convention has gone it seeks to establish the policy of these ministerial officers receiving fees and not salaries. There is a Judge of Probate, on account of the ministerial part of his duties, who is placed upon fees.  There are the clerks in the Circuit Courts, who hold their term for six years, they are placed upon fees. There is a Register in Chancery who receives fees, and then the Clerk we are now discussing is placed upon fees, and all the other inferior courts , where the clerks are appointed or qualified, you will find that all of them, Mr. President, receive fees and not a salary. Therefore I say it is the policy of the State of Alabama to pay this character of officers fees and not put them upon a salary. Why should we depart from it in this instance. Why should it be changed from the old Constitution? Why should the clerk of the Supreme Court be placed upon a salary, when no other officer of like kind or character is paid that way. The trouble rises in the minds of some of the, delegates because they believe that the clerk receives too much compensation for the service he renders. But the remedy is not to place him upon a salary, but to reduce the fees if they are too much.  That is the way to reach it, and let the policy of the State be harmonious in regard to all officers. Now I myself have undertaken to ascertain by inquiry, but not by a thorough investigation, how this office pays, and I have only learned that it pays less than is the general belief of a good many delegates and of a good many of the people of Alabama. It makes no difference on this question. the view I take of it. If it be too much, reduce the fees and rates, and I am in favor of reducing the expenses of the litigants in the courts, not that the same fees should be collected, not that any part of it should go into the treasury, because I believe that is a departure from the policy of the State.  I am in favor so far as I now know‑and if I were in the Legis‑


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lature upon this question I would vote for a reduction of the fees, but I never would vote there or here to put an officer of that character upon a salary.  What would follow?   You would place the clerk upon a salary and his subs in office would likewise be placed upon a salary.  We could not pay them with  fees if the clerk was not paid with fees, and the result would be that you would have three more salaried officers added to the officers in Alabama.  Would the people of Alabama endorse that action?  I think not.  They are not desiring any law by which the treasury is to be called upon for the payment of the officers of the State of this character.

Now, Mr. President, I think the matter has been discussed pretty thoroughly and I move to lay the amendment, or the substitute of the gentleman from Sumter upon the table.

Mr. Ashcraft desires to be heard in that connection and I withdraw the motion with the understanding that he will renew it.

(There was objection.)

MR. SAMFORD (Pike)– I object. I raise the point of order that whenever a motion is made before this house it belongs to the house, and not to the gentleman who makes it.

MR. PETTUS– I rise to a point of order. Not until a motion is submitted to the house does it belong to the house. Until a motion has been submitted to the house by the Chair the gentleman has a right to withdraw it.

MR. SAMFORD- The chair has submitted the question to the house.

PRESIDENT PRO TEM– The gentleman from Pike is mistaken. The chair had commenced to state the question, but had not stated it.

MR. SMITH (Mobile)– My recollection is I was out there smoking when the Chair announced it, and I broke and run to vote.

MR. ASHCRAFT– Mr. President and gentlemen of the Convention, I was in favor of the Clerk of the Supreme Court being elected by the people. I believe that if the people are capable of selecting the Chief Justices of this State by their suffrages that they are certainly capable of selecting the Clerk of the Supreme Court, but that question has been settled. I cannot conceive how any man can think that a merely clerical officer, charged with only ministerial duties, ought in common decency to be permitted to receive larger compensation from the people of this State than the Chief Justice of the Supreme Court, whom we are told it is his duty to serve. But we are told that the fee system has been established. True, it has, and Mr. President and gentlemen of the Convention, you will understand that they never have wrested any


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office from the fee system except after a great struggle. We are here today to mae that struggle. We are here to make an effort for economy, and that is what the people want us to do. But they tell us we are not working for economy. I am informed that about 450-470 cases come to the Supreme Court annually. The friends of this measure say that the average cost does not come below $18.50 a case. If he collects fees for 400 cases it makes the fees of this office $7,400. Two thousand of that goes for a library, which leaves $5,400 for the Clerk. Suppose he has an assistant at $1,000 or gets $1,000 worth of assistance, that would leave him $4,400 just $800 more than the Chief Justice of Alabama receives.  Such a state of affairs, I submit , is against the common conception of what is right, and this Convention ought not to act against what is usually conceded to be right.

MR. SANFORD (Montgomery)– Don’t you know that in many cases where there are reversals he gets nothing, and don’t you know that oftentimes when the cases are affirmed he gets nothing because they are insolvents?

MR. ASHCRAFT‑It is very significant that notwithstanding that one of the hardest fights has been made here that has been made upon this floor, not one of the friends of this proposition brings us the figures here to show us what the truth is. If we are claiming they are too large they have got the records. Why don't they bring them here and show us what the figures are.

MR. SANFORD (Montgomery) ‑ They didn't know the question was coming up.

MR. ASHCRAFT– Didn’t know the question was coming up forsooth. Haven’t they been fighting out yonder in the Committee night after night on this question? Hasn’t the Clerk of this Court, (who is my friend, and I make no complaint against him for his activity) but hasn’t he been busy upon this floor working upon this matter for weeks, and not a man brings a figure here to refute the proposition which we make, and it is even whispered that the average is much larger than his friends represent. If so, the fees are correspondingly high. But they say, why don’t you pay the Clerks of the Circuit Court —

MR. BAREFIELD‑Do you think that the Chief Justice of the Supreme Court of Alabama gets a large enough salary now.

MR. ASHCRAFT‑I am not discussing it as to the justice of the salary of the Judges of the Supreme Court, but I do say that so long as the people of Alabama say that the very ablest lawyer that they select within the boundaries of the State shall serve as Chief Justice for $3,600 a year, they ought to say, and have the right to say that a man who is a mere ministerial officer ought to serve them for that much or less. They say, why don't you


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advocate a salary system for the Registers, and Sheriffs and Clerks of the Circuit Courts? That is not relevant to the issue, because the situation in the different counties‑the varying conditions that exist, make it absolutely impossible, so far in our experience, to determine what would constitute a uniform and just rule; but today we have a just and proper ground upon which to base a uniform rule for the salary of the Clerk of the Supreme Court.

MR. MACDONALD– Can you state with any approximate accuracy how many cases are appealed to the Supreme Court every year, and is there any difference and uncertainty between the officer of the Supreme Court and that of a Registrar or Clerk or Sheriff, or any other officer of court, and how would you fix the fee or salary.

MR. ASHCRAFT– I dare say that if we put this proposition in here, the Legislature will fix the salary of the Clerk of the Supreme Court about like it fixes the salary of the Secretary of State or the Attorney General, or the Treasurer or Auditor or any other State officer.  They receive fees but they go into the Treasury.  It has been suggested that it would not be proper for us to collect fees and turn them into the Treasury. If we could find out the exact amount of fees that would cover the salary it might be proper to adjust it in that way, but there can be nothing improper in turning an excess of fees into the Treasury, besides, it doesn’t take the fees from the litigants for other purposes, because the State already retains a judiciary by paying a salary, and the fees would be used in some sense to recompense the State for the salary it pays the Justices.

Mr. Jones (Hale) was recognized by the Chair.

MR. OATES– I hope the gentleman will suspend a moment.  I wish to make a motion that will not consume any time. I move that the privileges of the floor of the Convention be tendered to the Hon. Lewis W. Turpin, who served with distinction for several terms in Congress.

The motion was unanimously adopted.

MR. ASHCRAFT– I was granted the floor on condition that I should yield it again to the gentleman to renew his motion to table, and I regret very much that I overlooked it and I request that he should have the floor.

Mr. Jones (Hale) was recognized by the Chair.

THE PRESIDENT PRO TEM– The Chair has recognized the gentleman from Hale.

MR. JONES (Hale)– I have heard a great many silly arguments, but the silliest of all is that litigants are not people. Are


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CONSTITUTIONAL CONVENTION, 1901

they not the people of Alabama? That is one argument, that litigants in Alabama in civil or criminal cases are not people. Why are they not people? And are they not interested in keeping down the fees as much as anybody else?

Then another argument has been used that the secrets between the Supreme Court and the clerk should be kept between themselves. Are we electing the Supreme Court Judges and the clerk to get up there and keep the Supreme Court secrets? What secrets have they between them?  I would like to know and the people of Alabama would like to know. I know of none. There are two arguments made against the election of the clerk by the people.  How does it come that we elect the Supreme Court Judges, the Chancellors and  all other officers, and yet we cannot afford to elect a clerical officer by the people?  Why should we pay him in fees and emoluments three times as large as the Supreme Court Justice gets?  It is an outrage, and I might say an injustice on the Supreme Court of Alabama to give the clerk three times as much.

MR. SANFORD (Montgomery) ‑ What is voter authority for saying he gets three times as much as the Judge of the Supreme Court ?

MR. JONES‑My authority is Mr. Sterling Wood in Birmingham. I was a member of the Judiciary Committee and I was informed he received $9,000 a year while clerk.

MR SANFORD– I don't know what he got, but some of his fees they said. were not proper.

MR. JONES‑There may be lots of them that were not proper but if you put them on a salary there will be no improper fees.

MR. GRAHAM (Talladega)– He got them whether they were improper or not.

MR. JONES– The idea is to cut down the fees of litigants in Alabama. And another thing is that we do not want any life time tenure of office. Under the plan adopted by the Judiciary Committee, where the majority holds over, when a Supreme Court clerk stand in with the majority of them  (and don’t you know the clerk stands in with them?),  when are you going to oust them?  You will never oust him in a lifetime. I hear a great deal of talk about the barefoot girl and the barefoot boy.  Let the barefoot boy and the barefoot girl come up here and vote on this question.  We don’t want any lobbying here, but let them come up and vote on it. Why do you elect every body else? If you can elect a judiciary officer who passes on a legal question, why can’t you elect a ministerial officer who writes out the votes and minutes of the court? I pause for an answer to that question. When you employ a clerk to work in your store, do you tell him, I will pay you a


3538      

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commission or a salary?  What do you tell him? What is the difference? I see no difference. I just wished to submit these few remarks in regard to what I think is the silliest proposition ever submitted to this Convention.

MR. SAMFORD (Pike)‑ The question as to the election of the clerk of the Supreme Court has already been settled.

MR. JONES– Yes, and I am going to make a motion to reconsider tomorrow.

MR. SAMFORD (Pike)– Did you vote in the proper way to do that? The question now before the Convention is whether or not the Constitution shall fix or shall prescribe that the clerk of the Supreme Court shall receive a salary. The only argument that has been advanced that has any force in it at all, is the bare statement by the gentleman in favor of the opposition that the clerk of the Supreme Court receives a great compensation than one of the judges of the court. They fail to take into consideration the fact that he serves five judges, whose aggregate compensation is a great deal more than he could expect to get under the fee system. Now here is the proposition that the minority asks us to accept: They fix a salary for the clerk of the Supreme Court, so that the State of Alabama may receive a profit on his labors.  The Legislature of the State has fixed a minimum fee for the work to be done by him. They have said that this is a reasonable charge for him to make. They have itemized each charge that he can make in his bill of cost, and they say that he shall not charge any more than that amount. Now, when , forsooth the work accumulates to such an extent that he is receiving a fair compensation, perhaps a nice salary, or a nice compensation, for the work he does by reason of the fact that he is doing a considerable amount of work, and perhaps a great deal more than was anticipated when his fees were fixed, these gentlemen come along and say: You are receiving entirely too much, and the people of the State ought to receive the benefit of it. Who opposes it? If you put him on a salary and take away all the fees from the clerk of the supreme Court, and say he shall be a salaried officer and the people of the State shall receive justice at the hands of the Supreme Court without being charged for the clerk’s services, then I am with you, but the litigants of the State pay the Supreme Court costs, just like they pay the costs in every other court. It is not the taxpayer.  It is a different class of citizens altogether, and it doesn’t redound to the benefit of the litigants— the unfortunate mass who have to litigate, when you place him upon salary, because you take it and make it a source of revenue, and put it into the general treasury.  One gentleman who preceded me stated (which was a fact) that other clerical officers in the State are not paid salaries, and the question was asked, why don’t you put them upon a salary? Gentlemen of the Convention, I will tell you they are not put upon a


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CONSTITUTIONAL CONVENTION, 1901

salary, why it s not insisted that they be put upon a salary here.  It is because of the fact that there is not one of them in Alabama that is receiving decent fair compensation for the time he engages in the work. But if you should find the fees of the Registers and Chancellors of this State piling up and making nice salaries, they would find some one jealous of them. who would want to put them down and put them upon a salary and let the surplus go into the State Treasury. I think the question has been argued enough, and I therefore move to lay the amendment upon the table.

MR. ASHCRAFT‑I demand 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 prevailed by a vote of 40 ayes to 20 noes.

MR. GRAHAM (Talladega)‑I make the point that no quorum voted.

MR. ASHCRAFT‑I demand that the vote ve verified by a call of the ayes and noes.

MR. SAMFORD (Pike)‑I move that the roll be called for the ascertainment of a quorum.

THE PRESIDENT PRO TEM ‑ I think the gentleman's motion has precedence, and it amounts to the same thing.

MR. HEFLIN (Chambers)‑I make the point of order that you cannot call the roll for the ayes and noes unless the call is sustained.

MR. OATES‑I would suggest that under our rule, the gentleman had better withdraw his point of order, because it would take no longer to call the roll on an aye and noe vote than to ascertain if a quorum is present. If a quorum has not voted, you will have to take the vote over again unless you adopt the Reed rule and count them, and I do not know whether the present occupant of the Chair will do it or not.

THE PRESIDENT – The Clerk will call the roll.

Upon the call of the roll eighty delegates answered to their names, and the Chair announced a quorum.

MR. HEFLIN (Chambers)‑I move the previous question on the section as reported by the Committee.

THE PRESIDENT PRO TEM– The amendment was laid upon the table, and the question recurs upon the adoption of the section as reported.

MR. HEFLIN (Chambers)‑And on that I move the previous question on the adoption of the Section as reported.


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MR. PETTUS‑I rise to a question of parliamentary inquiry ‑I would like to know the status of the amendment.

THE PRESIDENT PRO TEM.‑As the Chair remembers, the amendments have all been tabled.

MR. OATES‑I rise to a question of order. I voted to table the amendment, and it is not in that interest at all, but wholly in the interest of a correct parliamentary principle, and I think that if we establish a wrong precedent, it may return to plague us before we get through this Convention. The point was made that a quorum had not voted, and the Chair ordered a call of the roll, and ascertained that a quorum was present. Now the Chair announces that the motion was carried to table. It was not carried by the requisite vote‑not by a vote of the quorum. Now, the Chair announcing that there is a quorum present, it don't follow that a quorum was present at the time of the vote. and even if it was, the Char would have to count the members present in order to make that quorum legalize the vote in that way. That requires the same rule. We have got no rule like unto that known as the Reed rule, which authorizes the Chair to count the number of members present to see whether there is a quorum, and to vote a quorum, when a quorum, had not voted and to declare the measure carried, which ever way it was. Now there is no rule of this Convention as I understand it, which authorizes the Chair to count a quorum when the point is made that the quorum is not present. So it recurs to the vote again a quorum being present the former vote was an illegal vote unless the Chair is authorized by some rule to make a quorum present, but the vote would have to be taken over.

MR. ROGERS (Sumter)— I would like to know, Mr. President, how a vote of 60, I believe, leaving 20 more to vote, how the Chair knows whether those 20 would vote for the tabling of the amendment or against it, I cannot understand. The Chair has no right to presume or any one present, as to how many voted.

MR. SMITH (Mobile)‑We may presume twenty were paired.

MR. OATES‑That is the reason I made the point on the call of the roll for the ayes and noes, that is a verification of the vote, and determines it.

MR. COBB‑I do not of course know what the views of the Chair are upon this matter, and I just want to say in answer to my friend from Montgomery that it is the universal law of common sense that an any body if one than votes and there is nothing against it, that is carried, because we all know every silent man, every man who remains silent is presumed to vote in the affirmative. That has always been the rule and it is the rule today and it does not matter whether a quorum votes or not if a quorum is.


3541

CONSTITUTIONAL  CONVENTION, 1901

present the thing is carried, and I want to say one thing about what you call the Reed rule.

MR. OATES‑He states the rule correctly unless the point be made that there is not a quorum and then it requires further action to be taken to ascertain a quorum, You cannot presume it in that way in the absence of the vote.

MR. COBB‑Now let's see about that. I think the Chair did wrong in having this last call. It was one way to ascertain a quorum but it was not the proper way in my opinion. You cannot make men answer that they are here, but you can count them.  Now whatever may have been said about the Reed rule and of the men who fought it, knowing all the time that he was right, it is general parliamentary law. The gentleman says that we have no rule. It is within the power of the Chair under general parliamentary law to ascertain for himself whether there is a quorum or note, and long before the Reel rule was heard of, no less a man that David Bennett Hill enforced the rule in New York and the Democratic Congress that followed Reed's ruling adopted it as soon as they met. Where there is no doubt about it in my opinion.

MR. OATES‑Did not the House of Representatives have to make a rule to authorize it?

MR. COBB‑That is all I want to say.

MR. HEFLIN (Chambers)‑I make this point of order. The gentleman from Lauderdale demanded an aye and nay vote. There were only one or two that stood. The Chair was about to order the aye and nay vote, I understood. I made the point of order that an aye and no vote could not be had unless a requisite number rose and stood, the number of thirty. The Chair ruled the point of order well taken. The gentleman from Pike as I understand it asked that the roll be called to ascertain whether or not a quorum was present. It was found that a quorum was present.  The Chair announced that a quorum was present before any member on this floor rose and asked to have a verification of that vote.  The Chair announced that a majority had voted in favor of tabling the amendment and it was so ordered, it was done and there was no appeal taken from that ruling of the Chair. Now I make this point of order that as soon as the Chair announced that a quorum was present then it was the duty of some gentleman who favored the amendment to ask that the vote be verified or put to this Convention, but they did not do it and in the absence of that the Chair announced it tabled.

MR. OATES‑In reply to that, there never was a case yet where the point was made "No quorum," that a vote of no quorum was void when a quorum was ascertained to be present, they took the vote over invariably, and that has not been done; it has


3542      

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simply been announced by the Chair that the motion was carried on the former vote against which the point of order was directed.

MR. HEFLIN (Chambers)‑I want to make this point of order. I intended to make this point before I took my seat. I then move the previous question on the Section as reported by the Committee before this point was made.

MR. SMITH (Mobile)‑I rise to a point of parliamentary inquiry. If sixty people vote on a question and forty paired in the House, can there be said to be no quorum. There are 100 here, and forty pairs.  Only sixty were at liberty to vote.  Will the Chair declare no quorum and that we can proceed.

MR. OATES– I wish to say to the gentleman from Mobile in reply—

MR. SMITH (Mobile)– It seems to me that the gentleman from Montgomery has been up four times—

MR. OATES– I am addressing the Chair. If the Chair does not wish to hear me any more, I shall take my seat, of course.

THE PRESIDENT– Does the gentleman from Mobile yield to the gentleman from Montgomery?

MR. SMITH– No sir.

THE PRESIDENT – The gentleman from Mobile has the floor.

MR. OATES– I do not care to interrupt him, I merely wish to set myself straight. When a gentleman is addressing a parliamentary question he is not confined to one time nor to forty times, but as often as the Chair will hear him.

MR. SMITH– And it makes no difference who is speaking.

MR. COBB– Mr. President—

THE PRESIDENT– The Chair will recognize the gentleman from Mobile is through.

MR. SMITH– I rise to ask what the ruling was. I can not conceive of any parliamentary rule whereby any such condition could exist, whereby there could be a number of gentlemen present or participating in the result, but merely bound by pairs so they could not vote and that the business of the Convention should be stopped. I am not a thorough enough parliamentarian to deny that the gentleman says, but I am inclined to think he was talking about what they do in Congress. I have read the parliamentary authorities, but I did not come across this proposition. I think I did come across it in the rules or in the practice of the house of Congress, and I am inclined to think though I am not sufficient


3543                                  

CONSTITUTIONAL CONVENTION, 1901        

authority to say, that the gentleman from Montgomery has got the United States Congress on us again.

MR. OATES‑I would like to ask a question. Do you know of any case where a man's pairing keeps him from voting in order to make a quorum— 

MR. SMITH‑I know of no case where he can honorably vote after pairing.

MR. OATES‑He can make a quorum.

MR. ASHCRAFT‑When the point of no quorum was made, I instantly demanded that the vote be verified by a call of the house. Now, I am not a parliamentarian, but if this is the rule, and it seems to me common sense, it would meet the proposition of the gentleman from Mobile. If it is verified by the call of the roll, then those persons who are paired—

MR. HEFLIN (Chambers)‑I made the point of order and would like to hear the ruling of the chair.

THE PRESIDENT‑The Chair is now hearing from members on that point of order.

MR. BAREFIELD‑I make the point of order there is nothing before this Convention, as the Chair has already ruled—

THE PRESIDENT‑‑The point of order is overruled.

MR. WADDELL‑I rise to a point of order. What is, before the house?

THE PRESIDENT‑A point of order.

MR. WADDELL‑What point of order, Mr. President.

THE PRESIDENT‑If the gentleman will sit down and listen, he will catch it.

MR. COBB‑I think that the Chair has ruled upon the question and there has been no appeal taken from the ruling.

THE PRESIDENT‑The gentleman is out of order. The gentleman from Lauderdale has the floor.

MR. GILMORE‑I move that the Convention do now adjourn.

THE PRESIDENT ‑ The gentleman is out of order. The gentleman from Lauderdale has the floor.

MR. REESE‑I desire to make an inquiry. How many times can a man speak upon the same point of order?

THE PRESIDENT– What was the question?


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OFFICIAL PROCEEDINGS

MR. REESE‑‑How many times can a delegate speak upon a point of order?

THE  PRESIDENT‑It is only limited by the patience of the Chairman.

MR. GILMORE‑I make a motion to adjourn.

THE PRESIDENT– The gentleman from Lauderdale has the floor.

MR. ASHCRAFT– It seems to me, Mr. President, that I had the right to have the vote verified. I did not demand the ayes and noes as the gentleman from Chambers state, but I demanded that the vote be verified by a call of the roll. I think now that this is a thing which we are entitled to. Now that a quorum is ascertained to be present, we are entitled to have the vote verified by a call of the roll.

MR. HEFLIN (Chambers)– I would like to interrupt the gentleman.

MR. KNOX– It seems to me that a gentleman could not obtain an aye and no vote. I merely rise to speak to that proposition because it has been raised several times. If a delegate could secure an aye and no vote, although the right has been denied him, when he appeals to the Convention because thirty did not sustain him, if he could get an aye and no vote by merely questioning the correctness of the vote, why filibustering would be without limit.

THE PRESIDENT– The Chair has so ruled. The Chair is of the opinion that the motion or point of order made by the gentleman of Montgomery came too late. The question had been put before the house. A vote had been taken upon it and then the question of a quorum was raised and a demand was made for the call of the roll of the house in order to ascertain whether or not there was a quorum present. Now in the opinion of the Chair all the gentlemen in the house need not vote, but the acquiesce in the vote of the majority.  That is simply the opinion of the  present occupant of the chair, but the gentleman made the point that the vote ought to be taken over, the Chair had already announced that the motion to table had carried, had recognized the gentleman from Chambers, who had called for the previous question, and therefore it was too late to raise the question. The question is now shall the call for the previous question on the adoption of the section as reported by the committee be sustained.

The main question was ordered upon the section as reported by the committee.

MR. HEFLIN (Chambers)– I move its adoption.


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CONSTITUTIONAL  CONVENTION, 1901      

Upon a vote being taken the section as reported by the committee was adopted.

MR. deGRAFFENREID‑I move that we adjourn. I ask consent to withdraw it I thought we adjourned at 6:30.

Objection was made to the withdrawal of the motion.

MR. WADDELL‑I renew the motion.

Upon a vote being taken a division was called for, and upon avote of 39 ayes and 39 noes the motion was lost.

MR. REESE‑I call for the regular order.

The Secretary read Section 26 as follows:

Sec. 26. Clerks of the Circuit court shall be elected by the qualified electors in each county for the term of six years and may, when appointed by the Chancellor, also fill the office of Register in Chancery. Vacancies in such office of Clerk shall be filled by the governor for the unexpired term.

MR. NESMITH‑ In view of the action of the Convention in fixing the terms of judges at six years, I respectfully beg leave to withdraw the minority report.

There being no objection, the minority report was withdrawn.

MR. HEFLIN (Chambers)– I move the adoption of the section.

MR. OATES– I desire to offer an amendment.

The Secretary read the amendment as follows: “Amend Section 26 by striking out of lines three and four the word “Governor” and inserting in lieu thereof the words ‘The presiding Judge of such court.’”

MR. OATES– I will state briefly why I offer this amendment.  Of course there is nothing like so many occurrences of this kind per annum as there are elections in election year, but occasionally a clerk of court dies, very seldom do they resign, and then petitions usually are brought and representations made in favor of several rival candidates for appointment, to the Governor of the State. As a rule the Governor does not know the applicant, and he has to appoint a man upon the representations of those who are friends of the representative candidates, not knowing who is the best qualified to be appointed to fill the unexpired time. I know something, sir, of that kind of trouble, and I know furthermore than any man who serves as Governor of this State has my sympathy on account of experience I had when in that office. Out of curiosity the day before I left, I had the Private Secretary to go over the record and see how many appointments to office, great


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and small, I had made during my incumbency of two years. It was a little over two thousand, a little over one thousand a year.  That is enough to perplex, and politically ruin almost any man in the world who occupies that office. Now, sir, who is better qualified to make the appointment than the Governor. Who is better qualified, I say, to make the appointment than the Governor?  It is the Judge of the Court.

MR. WALKER‑‑Wouldn't you get the judge into a great deal of trouble?

MR. OATES– Well the judge is there to have that kind of trouble.  He knows more about it.  It is the court and the clerk is the most important officer to him, for a prudent judge will look and see that the clerk writes up his minutes correctly and that he executes his office in the main properly, and is not the judge of the court more competent and better informed as to who could fill that unexpired term well, than the Governor, who, perhaps, hundreds of miles away depends entirely upon the representations of friends favoring the one or the other of the rival candidates?  I believe it is better, and I believe that, as a rule, better men would be selected to fill the unexpired term when we leave it to the presiding judge, than to the Governor, and that is the sole object of the amendment I offer.

MR. COBB– I want to say, Mr. President, that the Committee were not unanimous on this question, and so far as I am concerned, I am in favor of the amendment offered by the gentleman from Montgomery. I believe the appointment ought to be made by the judge, I think he is the best officer to do it, and I hope that this Convention will accept that amendment.

The reading of the amendment was called for and it was again read by the Clerk.

MR. COBB‑‑I will ask that not the "presiding judge" of such court but that the "Judge of the Circuit Court" be substituted.

MR. OATES‑You see it may be a City Court or a County Court. It would give it to the Circuit Court Judge.

MR. SMITH (Mobile)‑The section only applies to circuit clerks and does not apply to city clerks at all.

MR. REESE‑‑I think it is a very wise and timely suggestion.  I do not think anyone can possibly imagine a person better qualified to properly fill the vacancy of a clerk than the judge who presides over that court, and I can not possible imagine any objection to it, and therefore, Mr. President, I move the previous question on the amendment and the section and I hope it will be

adopted.


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MR. COBB‑I hope the gentleman will accept my suggestion.  It only applies to the circuit clerks, and to prevent any mistake, I think it should say "judge of the Circuit Court" instead of the "presiding judge."

THE PRESIDENT‑Does the gentleman from Montgomery ask unanimous consent to make the amendment ?

By unanimous consent the amendment was ordered.

Upon a vote being taken the main question was ordered.

The question being put, the amendment offered by the gentleman from Montgomery was adopted.

The question recurred upon the adoption of the section as amended.

Upon a vote being taken the section as amended was adopted.

MR. BLACKWELL‑I move that we adjourn.

Thereupon the Convention adjourned.

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CORRECTIONS.

In remarks of Mr. Banks on sixty‑second day, first page, fourth column, middle of page, read: "And negroes are inspired with antagonism."

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In remarks by Mr. Knox on sixty‑first day, fourth page, fifth column, strike out sentence: "It is not from want of confidence." where it first appears, and insert at end of that sentence where it is repeated, the words : "I would call that not generalship but foolhardiness."