3547

CONSTITUTIONAL CONVENTION, 1901       

SIXTY FOURTH DAY

MONTGOMERY, ALA.,
Tuesday, August 6, 1901.

The Convention met pursuant to adjournment, was called to order by the President, and opened with prayer by Rabbi Messing, as follows:

Almighty God, Maker of the heavens and of the earth, Creator of all men, Father of all spirits, we thank Thee this day as the source of all benefits and blessings: we thank Thee for our life, for our republic, for our homes, which are the foundations of the republic: for our schools and churches, and for all the moral forces


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which have helped to shape the nation of which we are a part. We thank Thee for the traditions of freedom and justice, for that tolerance that knows neither sect nor creed; for the mutual trust and generous impulses which have made possible this gathering of men led together in holier service to the commonwealth. We pray Thee to remit the guilt of all, that in our deliberations thus far for which we are responsible, through our ignorance of the bounden duties of a lofty patriotism. Soften Thou the bitterness of partizanship and subdue our hearts to the amenities of love. May the people’s representatives discharge the people’s trusts without fear, without favor and without hope of reward. We pray Thee that Thou wilt guide all who have come here this morning conscious of doubts and difficulties, and whose souls are troubled herewith. Give them the light they need. Pour Thou the balf of They consolation into the bleeding heart of our distinguished brother who has twice within these legislative halls been called to the highest office within the gift of the State, but who today is called to darkness, to cares and to great heart troubles. In the communion of a common grief, we would life up our voices unto Thee who doeth all things for our best, and repeat with our brother. in humble, yet unfaltering, courageous trust. "Father Thy will be done on earth, as it is in Heaven." Amen.

Upon a call of the roll 78 delegates responded to their names.

Leaves of absence were granted as follows:

To Mr. Bartlett, indefinite leave on account of sickness; to Mr. Case, indefinite leave on account of sickness; to Mr. Jones of Wilcox, until the afternoon session ; to Mr. Morrisette for yesterday and today on account of sickness: to Mr. Moody of Jackson, for Monday, Tuesday and Wednesday: to Mr. Davis of DeKalb for Tuesday, Wednesday and Thursday.

MR. HOWZE– In the stenographic report of July 6th in the report of the Committee on Exemptions, my attention has been  called to the fact that it is reported as allowing 18 acres as exempt, and I want that corrected. I apologize to the President of the Convention for not having read this report. I do not often fail to read them. My attention was called to it this morning by an outside party and I would like to have it corrected and let it read 80 acres instead of 18.

THE PRESIDENT– The Chair will call the attention of delegates to the difficulty we have had for a day or two in securing  a quorum. It seems to the Chair that concerted action will have to be taken on the part of delegates to be here in time and to reduce leaves of absence except in cases of sickness. It is absolutely necessary that we get along with the business of the Convention, which  is now near an end, and the Chair hopes that all of the delegates will co-operate to that end, so that we may bring the business of  the Convention to a speedy conclusion. We are losing time in


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CONSTITUTIONAL  CONVENTION, 1901      

the morning session and also in the afternoon session on account of being unable to procure a quorum.

The Committee on Journal reported that the Journal for the sixty‑third day had been examined and found correct, and the report was adopted.

MR. BOONE‑I move that the regular call of the roll for the introduction of resolutions and ordinances and the call of the standing committees be dispensed with and a suspension of the rules for that purpose.

Upon a vote being taken the motion was carried.

MR. SANFORD (Pike)— I ask unanimous consent to introduce a short resolution, and desire to call attention to the fact that I shall move to suspend the rules and put it upon its passage.

The resolution was read as follows:

Resolved. That no leaves of absence be granted except on account of sickness.

MR. SAMFORD (Pike)‑Upon reflection, I ask that that be referred to the Committee on Rules.

THE PRESIDENT‑The resolution will be referred to the Committee on Rules.

The special order this morning will be the consideration of the report of the Committee on Judiciary. When the Convention adjourned on yesterday afternoon we had under consideration Section 27. The secretary will read Section 27.

MR. HEFLIN (Randolph)‑I ask unanimous consent to call up the report of the Committee on Schedule and Printing for passage this morning. It will only take a few minutes.

Consent was given.

The report was read as follows:

Report of Committee on Schedule, Printing and Incidental Expenses.

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

The committee has audited the accounts hereto attached and find that the State of Alabama. is indebted to the Brown Printing Company of Montgomery, Ala.., in the sure of $68.75.

We find that said State is indebted to William H. Carrigan of Montgomery, Ala., in the sum of $3.


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OFFICIAL PROCEEDINGS

We find that said State is indebted to Robert Hasson. doorkeeper in the sum of $6.23.

We find that said State is indebted to Ed. C. Fowler Company of Montgomery, Ala., in the sum of $20.

We find that said State is indebted to J. W. Terry of Montgomery, Ala.., in the sum of $5 for rent of typewriter up to July 24.

We find that said State is indebted to Ed. C. Fowler Company of Montgomery in the sum of $5.46.

All of the above amounts for printing done, for articles furnished State of Alabama, for use of Constitutional Convention. And all of the above amounts are itemized as shown by the bill hereto attached. Total amount $108.38, and we recommend the payment of the same. All of which is respectfully submitted.

John T. Heflin,

Chairman of Committee on Schedule, Printing and Incidental Expenses.

MR. HEFLIN (Randolph)– I move the adoption of the report. and that the President of this Convention be authorized to draw his warrant can the State Treasure in favor of the parties for the amounts due them.

Upon a vote being taken, the motion was carried.

Section 27 was read as follows:

Section 27.  The Clerk of the Supreme Court and Registers in Chancery may be removed from office by the justices of the Supreme Court and by the Chancellors respectively, for cause, to be entered at length upon the minutes of the court.

MR. WALKER (Madison)– There is a minority report to that section. It is there was a substitute offered by the minority and it conforms to the substitute which was offered to Section 25, and that substitute having been rejected by the Convention, this being a substitute to Section 27, there is no use of it being offered to the Convention, and we ask consent of the Convention to withdraw it.

Consent was given and the minority report withdrawn.

Upon a vote being taken, Section 27 was adopted.

The Secretary read Section 28 as follows:

Section 28.  A solicitor for each judicial circuit, or other territorial subdivision prescribed by the General Assembly, shall be elected by the qualified electors of such circuit or other territorial subdivision, who shall be learned in the law, and who shall, at the


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CONSTITUTIONAL CONVENTION, 1901       

time of his election, and during his continuance in office, reside in the circuit or other territorial subdivisions, for which he is elected, and whose term of office shall be for four years; Provided, that this article shall not operate to abridge the term of any solicitor now in office; and, provided, farther, that the solicitors elected in the year 1904 shall hold office for six years, and until their successor, are elected and qualified.

The Secretary read the minority report to Section 28 as follows:

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

MR. SAMFORD (Pike)‑I desire to offer an amendment for the minority report ; which was inadvertently left off.

The Secretary read the amendment as follows: "That the Legislature may when necessary provide for the election or appointment of county solicitor."

THE PRESIDENT‑The question will be upon the adoption of the amendment offered by the gentleman from Pike. The gentleman from Pike will be entitled to the floor, if he desires to discuss it.

MR. SAMFORD (Pike)‑I do not desire to argue that just at this time. I will yield to the gentleman from Jefferson.

MR. FERGUSON‑I have an amendment.

THE PRESIDENT‑The Chair would suggest to the gent1eman from Jefferson that there are already two amendments pending; and an additional amendment would not be in order at this time.

MR. FERGUSON ‑ I understand, Mr. President, that the amendment I offer, will be excepted by the gentleman from Pike.

MR. SAMFORD (Pike)‑I would ask unanimous consent to add the amendment and incorporate the same in the recommendation of the minority report.

THE PRESIDENT‑The gentleman from Pike asks unanimous consent of the Convention to add the amendment and incorporate the same in the minority report.


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OFFICIAL PROCEEDINGS

Leave was granted.

MR. FERGUSON– I wish now to offer my amendment.

The Secretary read the amendment as follows : "Amend the minority report of Section 28 in line two after the word "Legislature," by adding the words : "who shall be learned in the law," and amend the same in line four by striking out the word "four." and inserting in the place thereof, the word "six."

THE PRESIDENT– The question will be upon the amendment to the amendment.

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

MR. GRAHAM (Talladega)– Owing to the confusion, I failed to hear the reading of the amendment.

The Secretary again read the amendment to the amendment.

Upon a vote being taken, on a division, there were 47 ayes and 22 noes, and the amendment to the amendment was adopted.

THE PRESIDENT‑The question recurs upon the minority report as amended.

Upon a vote being taken, a division was called for, and a further vote being taken, there were 58 ayes and 30 noes, and the minority report as amended was adopted.

THE PRESIDENT‑The question will recur upon the majority report as amended.

MR. NESMITH‑The amendment to the amendment which was adopted provides for the election of solicitor, every six years by the Legislature.   This Convention has already ordered that the Legislature should meet once in every four years. That would result in an election two years in advance or two years thereafter. I now, move to reconsider the vote whereby that amendment fixing the time at six years was adopted.

THE PRESIDENT – It is moved to reconsider the vote whereby  the term of solicitors was fixed at six years. I t is not in order as the Convention has adopted the amendment. It would be necessary to move to reconsider the vote whereby the minority report as amended was adopted.

MR. NESMITH‑I make that motion.

MR. deGRAFFENREID– I move to lay that motion on the table.

MR. ASHCRAFT‑A motion to reconsider is not in order this morning. It goes over until tomorrow.


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CONSTITUTIONAL CONVENTION, 1901       

THE PRESIDENT‑Where it relates to an amendment, it seems to the Chair that it would be in order under the rule, a motion on an amendment could come up at this time.

MR. GRAHAM (Talladega)‑I give notice that in the morning I will move to reconsider the vote by which the amendment to the minority report was adopted.

MR. SAMFORD (Pike)‑I ask the gentleman how he voted.

MR. GRAHAM‑I did not vote at all.

THE PRESIDENT‑The question is to reconsider the vote by which the amendment was adopted. The question is on the motion to table.

A vote being taken, there were 43 ayes and 24 noes, and the motion to table prevailed.

THE PRESIDENT‑The question will recur upon the adoption of the section as reported by the committee and as amended.

MR. SPRAGINS‑Would it be in order to offer an amendment at this time?

THE PRESIDENT‑Yes, in order until the previous question is moved.

MR. SPRAGINS‑As I understand it, Mr. President, there is a provision that the Circuit Court solicitors shall be paid a salary. The amendment by the gentleman from Pike provides that solicitors be appointed by the Governor, with no provision as to whether he shall receive fees or salary. It seems to me that they ought to be in harmony and that the solicitor should also receive a salary and that is the amendment I have sent to the clerk's desk.

The secretary read the amendment as follows: By adding "who shall be paid a salary to be fixed by law."

MR. SPRAGINS‑The Circuit Court solicitors are not in there under the amendment by Mr. Samford.

THE PRESIDENT‑The amendment should relate to the section as amended.

MR. SPRAGINS‑I will ask the clerk to change it so as to make it read that way.

MR. SAMFORD (Pike)‑I would like to call the attention of the gentleman from Madison to one fact in relation to his amendment. I have no objection to it in the world, but it does not seem to me to be expedient in view of the fact that there are a great many county solicitors in the State, in small counties, who do not make over $150 or $200 a year, and there are a great many


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who make a great deal more than that, and I will state that the general law fixes a limit to their salary.

MR. SPRAGINS‑Does not the law provide that over $150 or $200 should go for the benefit of the public schools?

MR. SAMFORD (Pike)‑I call your attention to the fact that that is the general law of the State, that has been the general policy of the Legislature. There is no objection in the world that I have to it personally.

MR. deGRAFFENREID‑In Hale county, we have a law that fixes the salary of the solicitor at so much, with a provision that if he makes that much he can have that salary, if he does not make that much he shall have what he makes, if he makes more than that, it goes into the county treasury. Would not that meet your objection?

THE PRESIDENT ‑ The gentleman from Madison asks unanimous consent so as to make it relate to the section as amended.

MR. SAMFORD (Pike)‑ I will state to the gentleman from Hale so far as my knowledge goes with reference to the laws creating county solicitors over the State, where they are created, that that is the law, fixing the limit to the amount that they can make, but it occurs to me that this amendment of the. gentleman from Madison will necessitate the General Assembly making a fixed salary which would come either out of the county or State treasury, and that it would be a very difficult matter to make a general law to cover that sort of thing, and as the General Assembly has already adopted the idea of the gentleman from Madison in passing the laws for solicitors over the State. I see no reason why it should be charged from the old Constitution, and I will state to the Convention that the provision that I introduced there is in the exact words of the present Constitution. It is suggested that I move to table the amendment of the gentleman from Madison, but if he desires to discuss it. I won't do it.

MR. SPRAGINS– I desire to discuss it. I presume there will be some inequalities about the thing, no matter how we fix it. For instance, take a large county, and the solicitor will make twice or three times as much as he would be willing to take as a salary fixed by law, and the surplus, of course should go into the public treasury. It is true that possibly in some of these smaller counties, that a salary fixed by law would have to be very small. but the Legislature certainly, under the local legislation, the legislature could certainly pass a general law based upon the assessed taxable values of that county and upon the population of that county, and considering the business that so far has been done in that county. The question of whether the officers in this State should receive fees or should receive salaries has been threshed


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CONSTITUTIONAL CONVENTION, 1901       

over on yesterday. It seems to me that the Convention has decided in favor of the fee system to some extent, and there is no further use at this time of going into that question. My own private and personal judgment is that all officers should be upon a salary, and without that they should make sworn reports at least twice a year and the surplus over and above those salaries should go into the treasury for the use of the public schools or for the use of the roads of the county. Not only the clerk of the Supreme Court should be upon a salary, but as a matter of abstract justice, the probate judge and clerk and sheriff of each county should be upon salaries. It is true that those officers are officers of the people who will appoint the inspectors for this election for the ratification of this Constitution. There is no sense in mincing words over this matter, but where we have a chance and where it is safe, so far as this Constitution is concerned, to carry out that principle, it seems to me it is our duty to do so.   There is one further reason, so far as the solicitor is concerned, that he should be placed upon a salary, and that is, in my judgment, that no man should have a monied interest in the conviction of the defendant. All lawyers and business men who have seen the workings of the old fee system will concur with me in the statement that they have often seen frivolous cases in which defendants were compelled to line up and pay their fines and the costs when under a salaried system, those cases would never have been brought. It seems to me, Mr. President, they are open to some inequalities somewhere. Now, the question is whether or not in the small counties the State shall pay these solicitors a little more than they are entitled to, and receive from the larger counties a surplus that will out balance what the State has already paid in these smaller counties.  It is a step in the right direction and it seems to me that the Convention should certainly adopt an amendment of this sort.

MIR. HEFLIN (Chambers)‑I move the previous question on the section as amended.

MR. BAREFIELD‑I would like to request the gentleman to withdraw that motion for the previous question for a moment.

THE PRESIDENT‑ The question, gentlemen, is a call for the previous question upon the amendment offered by the gentleman from Madison and the section as amended.

MR. HEFLIN-I withdraw for a moment, if he will renew it.

MR. BAREFIELD‑ I am heartily in favor of the amendment offered by the gentleman from Madison, except, Mr. President, I fear that the amendment goes a little too far. Now, the question of county solicitors might be construed by the Supreme Court to mean a deputy solicitor. I think that it is all right where it would apply to such counties as Mobile, Montgomery and Bir‑


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OFFICIAL  PROCEEDINGS

mingham, but I do not think that a county like mine or some of the smaller counties that the county solicitor should be paid a salary. Now, as we all know that nearly all of the counties throughout Alabama especially the smaller counties, have what is called a deputy solicitor. Now, the Supreme Court might construe the word "solicitor" to mean a county solicitor, and if it means county solicitor, why then they should not and ought not to be put upon a salary. Therefore, I offer an amendment to the amendment.

The Secretary read the amendment as follows: "That this section shall not apply to deputy solicitors."

MR. BAREFIELD‑I move the previous question.

MR.  OATES‑I rise for the purpose of making an inquiry which I would like to hear answered in behalf of the Committee on Judiciary in regard to this question of solicitors. I wish to occupy only a minute to propound a question.

THE PRESIDENT‑The gentleman from Monroe has the floor.

MR. BAREFIELD-I yields to the gentleman from Montgomery to ask a question and ask that he will renew the motion for the previous question.

MR. OATES‑I will yield the floor black to you. Mr. President, it seems to me that the retention of the circuit solicitor system and the system of the county solicitors makes the thing entirely top heavy and we are fixing it in the Constitution so that this State is to be overwhelmed with solicitors. Why not, if it be necessary to establish and maintain county solicitors, why not abolish circuit solicitors and have county solicitors. It seems to me it would be economy. It looks like it is demonstrated a county solicitor is necessary for they have deputies everywhere, and why not then have county solicitors and at the end of the term dispense with circuit solicitors ? I would like to hear from the Committee on Judiciary in answer. It is incurring a great deal of expense to the people of the State, much greater than is justified. I merely call for an explanation.

MR. BAREFIELD-I am requested by the gentleman who offered tile amendment to request unanimous consent to accept my amendment.

THE PRESIDENT‑ The gentleman from Madison asks unanimous consent to accept the amendment offered by the gentleman from Monroe.

MR. BAREFIELD-I yield to the gentleman from Talladega.

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


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CONSTITUTIONAL, CONVENTION, 1901      

MR. GRAHAM (Talladega)‑The gentleman from Monroe yielded to me before the gentleman from Chambers made his motion, and he cannot take my time to do it.

THE PRESIDENT‑The gentleman from Chambers had the floor and yielded to the gentleman from Monroe. The gentleman from Monroe seems to parcel his time very much to his own notion. Now, who does the gentleman from Monroe desire to be recognized? (Laughter).

MR. BAREFIELD‑Mr. President, I have no favoritism. You may recognize whoever you please.

MR. REESE‑I rise to a point of order that the gentleman from Chambers has moved to table both amendments.

THE PRESIDENT‑The only motion that has been made was the motion for the previous question upon the previous section as amended and pending amendments, and the gentleman from Monroe seems to have withdrawn that in some way. It was made by the gentleman from Chambers, Mr. Heflin. My agreement with him was that he would renew it before he yielded the floor.

MR. REESE‑I rise to a point of order. I desire to state it. The gentleman from Chambers, after the gentleman from Monroe parcelled out the floor and abandoned the floor as the Chair ruled, the gentleman from Chambers made a motion to table both amendments, and I insist upon that motion.

THE PRESIDENT‑The gentleman did not get recognized to make that motion because the gentleman from Monroe yielded to the gentleman from Talladega, and the Chair recognized the gentleman from Talladega.

MR. GRAHAM (Talladega)‑I do not know the exact status of this question now with the minority report adopted and several amendments pending to that, but I do know one thing, gentlemen, there has not been during the whole session of this Convention such an open and outrageous attempt to push down the report of the committee on a proposition. There has been no time allowed for debate.

MR. FERGUSON‑I rise to a point of order. The gentleman's remarks are not germane to the subject before the Convention.

MR. GRAHAM‑They may certainly become so if the gentleman will wait.

THE PRESIDENT‑ It does not seem to the Chair there has been anything irregular that has occurred. But when the question was before the Convention, the Chair desired to know if any gentleman wished to discuss the question, and no gentle‑


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OFFICIAL PROCEEDINGS

man arose. The Chair asked if the Convention was ready for the question; a call was made for it, and the question was submitted.

MR. GRAHAM-I was on my feet at the time. I was not on "the schedule" to speak at that time, if we are going into secrets. I got on my feet, but the Chair was looking in the other direction.

THE PRESIDENT‑The Chair recognized some gentlemen here, I think, because it was because you made a motion to table, or something of that kind.

MR. GRAHAM-Who made a motion? I am not blaming the Chair, but am calling the attention of the Convention to the fact that there is a report of the majority of the committee here, a minority report that has been adopted against the report of the majority of the committee without discussion, and I say that is unusual; and that there should be some chance given on an important matter like this for discussion, no matter how it may go hereafter.

MR. SAMFORD (Pike)‑I rise to a point of order.

MR. GRAHAM‑I do not yield.

THE PRESIDENT-State the point.

MR. SAMFORD‑'The gentleman has no right to lecture to this Convention on how it shall act. If he fails to get the floor it is his own lookout.

MR. GRAHAM‑I think I am, as much in order as a lecturer, as the distinguished gentleman from Pike; if anybody has lectured this Convention incessantly it has been the gentleman from pike (Laughter.)

We have had a number of platform lectures in this Convention who have lectured on all topics until it came to one where they happened to be on the other side, and then they grew quiet, for the first time in the Convention. (Applause). I apprehend that it is now pertinent to discuss this question, as it stands before the Convention with reference to the amendment to the minority report, as it would apply to the original proposition. There are a great many delegates on this floor that are at least in favor of the discussion, whether they are in favor of the proposition to elect solicitors  by the people or not. (Applause). I believe that the people of the State want an opportunity to select their solicitors. I do not believe that any lobby of present or prospective solicitors in this Convention should defeat the will of the people on this proposition. (Applause). Ever since yesterday morning there have been men abusing the privileges of this floor, that had no right on earth within this circle, and what for?  This precipitate vote this morning shows you, Mr. President, what for. I submit


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CONSTITUTIONAL, CONVENTION, 1901      

as a fair proposition, that if the people are competent to elect the judges who control the courts of this country, they have a right to elect the solicitors who work largely under the supervision of the judges. It is a matter of common knowledge that the people of a particular circuit have no voice in who shall be their solicitor. but it has come to pass that the Mobile circuit can dictate to the Huntsville circuit, and the Opelika circuit can dictate to the Marengo circuit. It is not a question of the man who is suited for the place, or the man whom the people desire to serve them in a specific locality but it is a matter of how it can be traded with some other section of the State. I want it to come back home and let the people attend to this matter. We heard a good deal the other day about heredity in the right and privilege of suffrage. I want to say that the solicitorships in this State are not hereditary on that line, but they are hereditary on the line that if men whose fathers or brothers or friends are men of political influence in the State, and they happen to say that a certain man shall be put upon the slate for a solicitorship, he goes upon it without reference to qualification or whether the people want hiin or not. I call upon this Convention to halt, and consider the matter seriously, and say  whether the people who select the judges may not also select the solicitors. They say there will be trading in the circuit. Well, it will be trading at home, and be limited to that particular circuit and not involve the thirteen circuits of the State. They say there may be corrupt and evil influences used. I say to the solicitors who are here lobbying in this matter, are you afraid of the corrupt and evil influences upon yourselves? If not, get out of this Convention, and let the delegates vote upon it as they think is right, unbiased by your influence. My observation has been that the moral influence and conscience of the people will direct matters right in the end, because the majority rules, and I do not believe it is a violent presumption to say that the moral sentiment and power of the people is always in the majority. If you are afraid of that majority then show your hand and say it in the Convention, and do not bid for a perpetuation of trades and doubtful practices in the selection of these officers, upon the people of this State.

If I have seemed over zealous in the discussion of this question, I want to say it has been provoked by the apparent desire of friends of this minority report to precipitate it and force it upon this Convention before a discussion has been had. I hope you will come out in the open and meet us face to face in the discussion of this matter. Do not suddenly become economical along the line of time when your supporters have been perpetual and perennial speakers in the past history of this Convention. Come out and speak some more. Now, gentlemen, I have managed to get in a few remarks on this proposition, and I hope the gentlemen of the minority report will answer and give us an opportunity for a gen‑


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eral discussion of this subject, and the no more motions will be made to table. I will not make it on  you, if you will not make it on me.

Give us time to dismiss it, and then after a fair discussion of it, if the sober judgement of the Convention is with you I will do as I always have done, yield to the majority, and go to the people to ratify what you have done.

MR. HEFLIN (Chambers)— The gentleman from Talladega has displayed a great deal of earnestness here in this discussion. He squirms here this morning, Mr. President and groans as if his toes had been pinched, and the gentleman was suffering from a severe blow just made upon him by this Convention, not upon him personally because we all like him personally, we all like the handsome distinguished and eloquent gentleman from Talladega, but we do not like, Mr. President, a display of that spirit that the gentleman has just exhibited to this Convention, because forsoothe, this Convention did as it had a right to do. substituted the minority report for the report of the majority.  If delegates, Mr. President, have gone into any schemes car trickery to bring this about, I challenge the gentleman to name those men and tell where and when it was done.

MR. GRAHAM‑I did not complain that the minority report had been substituted for the majority report at all. I was complaining that it had been done without any opportunity for discussion. That was the sole complaint and I have made no charge of any fraud or anything of that kind.

MR. HEFLIN ( Chambers )-The gentleman used the word fraud in his speech. I am sorry he made that charge, or that he did not remember just exactly what he was saving at the time, but the word “fraud” was used and I put it down when it fell from the gentleman’s lips. This Convention has a right from day to day to come into this hall to respond to roll call, and to respond when they are called upon to vote on any question, and when the President deliberately asked this deliberative body if they were ready for the question, and nobody responded to speak, the Convention ordered the question, and the Convention passed upon the question, and the majority voted for the minority report. The gentleman favored, it is true, the election of solicitors by the people. There are those of us who do not believe the man who goes with tile grand jury into the various precincts of this State, and hunts out the criminal and brings up the violator of the law, indicts hint, and prosecutes hull before the petit jury, ought to have to go back to that same people and beg them for re‑election to office. We believe it ought to be removed as far as possible from them. Put it in your legislative body. Let the members of the legislature who come up here from tile various counties in the


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CONSTITUTIONAL CONVENTION, 1901                   

State, select the solicitor for that circuit away over yonder. Then he is independent. He does not feel that he must rely upon the people whom he has prosecuted. It differs from the case of the Circuit Judge, he has nothing to do with the criminal until he is indicted, and is brought before the court, and he has to pass upon the question of law; but the solicitor goes with the grand jury into every nook and corner of Alabama, and he hunts the man who openly violates the law and brings him up and says you must face the law that you have violated, and he sits with the grand jury and says, this man ought to be indicted ; he prosecutes him vigorously and when he goes back to those people, possibly some prominent man who has relatives all over the county and who has been prosecuted will say: "You prosecuted me vigorously and I am going to try to attend to you when the election comes off." On the other hand, frequently a great pressure is brought to hear on the solicitor to prosecute a man vigorously  whom he believes in his heart is an innocent mall, and if he has the manhood and courage to say, I will not prosecute this case, he has offended the people who are in favor of that prosecution; but when you give the power to the legislature to select, it does away with all that, and when the solicitor comes to be judged by the people all over the State for serving in Mobile County or the Mobile Circuit or any other circuit or county in the State, he riven a fair hearing. Why, our indictments as has been suggested to me, do not read that "Montgomery charges" or that "the first Judicial Circuit charges " They read that "The State of Alabama charges," and the solicitor is a State officer. Chambers County has no right to select that officer. It ought not to select him because he would have to pander oftimes to the people that elected him and whom he had prosecuted.

MR.  HOOD‑Do you insist that the criminal laws of A1abama are better and more effectually enforced than in threefourths of the States of the Union.

MR.  HEFLIN- More vigorously?

MR.  HOOD‑ Yes, effectually

MR. HEFLIN- Enforced?

MR. HOOD‑Yes.

MR.  HEFLIN‑ Now?

MR.  HOOD— Now. I say do vote insist that the criminal laws of Alabama are more effectually enforced and that criminals are brought to justice to a greater extent in Alabama than they are in three‑fourths of the States of the Union?

MR. HEFLIN— I have not from the time I took the floor down to splendid present made any such charge as that and I never


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expect to. I will ask the gentleman if he believes they are not as vigorously prosecuted as in some of the other States.

MR. HOOD‑Not any more so than they are in Georgia, New York, Pennsylvania and some other States where the solicitors are elected by the people.

MR. ROGERS (Sumter)‑I move that the privileges of the floor be tendered to the  Hon. F. S. Moody of Tuscaloosa.

PRESIDENT PRO TEM‑Does the gentleman yield for that purpose.

MR. HEFLIN‑Yes sir.

MR. PETTUS‑I move to amend lay adding the names of Mr. Morrow and  Mr. Arrington.

The amendment was accepted, and upon a vote being taken, the privileges of the floor were tended to the gentlemen named.

MR. deGRAFFENREID‑I rise to a question of parliamentary inquiry. I want to see where we are at? My recollection is that the House adopted the minority report, which provided that solicitors should be elected by the Legislature; that there was a motion made to reconsider that Vote and a moment was then made to table the motion, and the motion to table prevailed ; so I wanted to inquire of the Chair if that question was now before the House which is being discussed?

THE PRESIDENT‑'The question was upon the adoption of the section as reported by the committee, as amended, and thereupon the gentleman front Madison moved to amend further and the immediate question now before the Convention is the amendment offered by the gentleman from Madison, fixing the salary for county solicitors.

MR. HEFLIN (Chambers)‑I have but a word or two more to say. I have been interrupted. The gentleman's suggestion, I think, is very well taken. The minority report has been substituted for the majority report, and the election of solicitors by the Legislature has been fixed by this Convention, but the section has not yet been adopted.

I do not desire to detain this Convention with any further discussion of this question. The law now fixes the salary of county solicitors. In our county they cannot make over $500. All above that goes into the county treasury. In some counties they do not make over $150. I am informed, and that matter is already fixed by the law and I believe this Convention is ready to vote on this question, and I therefore move the previous question on the section amendments


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MR. WALKER (Madison)‑I desire to ask the gentleman from Chambers to withdraw that motion. The committee has not had any opportunity to be heard one way or the other.

MR. HEFLIN‑I will withdraw it if the gentleman will renew it at the conclusion of his speech.

MR. REESE‑I object to its being withdrawn on those conditions.

MR. WALKER‑I desire to appeal to the gentleman's idea of fairness The committee ought to have a right to be heard whether they lost that opportunity by their own act or not.

MR. HEFLIN (Chambers)‑I withdraw it.

MR. MERRILL‑I suppose I am somewhat to blame for the failure of the Committee to have what they greatly desire, a discussion of this matter. I was selected, Mr. President, by the committee to open the argument on this question, and it was my expectation as it has been the custom of the Convention, that when the minority report came tip, some one supporting that minority report would open the argument, and that then those who desired to follow, could do so, and excepting that, I failed to pop up in time, and I regret it very much, because the committee charged me with a failure to discharge my duty, and Mr. President, this is a question that ought to be discussed. In the committee there was more discussion of this question than any other one, or as much as any other question that arose before it. It was a friendly discussion. There was no unpleasantness among any of us. We discussed it as friends, Mr. President, there is nothing in me now, except the most pleasant feeling for every gentleman that opposes me on this proposition. It was the desire of the committee to put the solicitors in the same place with the other officers of the State, to put their terns at four years. Suppose that this amendment now of six years goes on and goes into the Constitution. Here will be the Legislature to elect these solicitors, and they will only meet every four years. and they will have to elect the solicitors two years before they go into office. Is that in accordance with the desire of the people of Alabama that these solicitors all over the State should hold these offices two years before they go in and exercise the functions of the office?

MR. DUKE‑I rise to a point of order.

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

MR. DUKE‑I think the point of order should have been made on the delegate from Talladega and the delegates from Chambers. This discussion before the house is the amendment of the gentleman from Madison, and that is to fix the salary of the county solici‑


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tors.  This Convention has adopted the minority report as an amendment to the majority report, and the question is on the adoption of the amendment of the gentleman from Madison, which is to fix the salary of county solicitors, and any discussion as to these other matters is entirely cant of order.

THE PRESIDENT‑It seems to the Chair that the question before the Convention now is the amendment offered by the gentleman front Madison, fixing the salaries of the county solicitors, and that the general discussion would lie in order when the proposition comes before the Convention on adopting the section as amended.

MR. WATTS‑Speaking to the point of order, it seems to me when a minority report is before the Convention, and somebody offers an amendment to that minority report, We have a right to discuss the whole, the main proposition and the amendment, too, and that we are not confined to the question whether or not this particular amendment should be adopted; non constat. the Convention might refuse to adopt the minority report as amended.

A DELEGATE-It has been adopted.

MR. WATTS-No sir, as a substitute for the minority report – I hope that this Convention will refuse to adopt the minority report.

MR. MERRILL-That was the question I was addressing myself to.

THE PRESIDENT-The chair has not heretofore been very strict in confining the remarks to direct point in issue and as tile gentleman's time is so limited, having, only ten minutes, the Chair will overrule that point of order and allow the gentleman to proceed.

MR. MERRILL_.‑‑The Committee, as I have said, after a thorough discussion of the matter fixed the term of the solicitor at four years for the purpose of making it harmonized with the balance of the Constitution, and putting it in a place where the number of elections would be reduced even though they are by the Legislature. Even if that part of it goes into the Constitution, they ought not to hold their terms for longer than four years. Now, let us go to the other proposition whether or not they ought to be selected by the people or by the Legislature. Now, that is an important question. The people are the source for which all power arises. It is their duty-

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

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


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MR. FERGUSON‑I regretfully rise to a point of order‑the Convention has passed upon that question as to how they shall be elected.

MR. MERRILL-They have not adopted the section as amended yet.

THE PRESIDENT‑ The Convention has not adopted the section as amended. It has incorporated in the section as reported an amendment, lout the question of adopting the section as amended has not been submitted to the Convention.

MR. MERRILL‑The people, Mr. President, are the sources of all power, and it is peculiarly their duty to select the officers who are to serve them in the various branches of the State.  If you say that the people are incapable of selecting any officer, or filling any office then, Mr. President, you make a direct thrust at republican form of government, because when they cease to be capable of selecting the men to serve them in the office, they cease to be capable of self government, and the form of a republican government is a failure. Now, that is admitted. They say that although this lower to elect belongs in the people, and it is their duty to exercise it, that they ought to delegate this power to their agents, the legislature, to serve for them. I say, Mr. President, there is no argument in that. The fact that the principal is incapable of discharging the duty and must appoint the agent to do the thing, is an absurdity upon its face. Why is it that the Legislature, the servants of the people, call elect their officers better than the people, the principal itself. Now, let us go further. It has been the policy of this Convention to cut off from the Legislature everything except the discharge of the duty for which they were elected, that is, the performance of general legislation. We have cut off everything we could, we have pruned it. and we propose now to take the solicitor business away from them and prevent their being harassed by a duty which the people ought to perform at home. We leave the Legislature in a condition where they can discharge their great trust, and hereafter, you will hear no more criticism of the Legislature because their duty will be plain and simple, and they will have the time and the inclination to discharge it.

MR. ASHCRAFT‑I offer a substitute for the section and the amendment.

The Secretary read the substitute as follows: The solicitor in each county shall be elected by the qualified electors therein every four years, whose salary shall be fixed by law according to the requirements in each county. The office of circuit solicitors shall cease at the termination of the term of the present incumbents."


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MR.  ASHCRAFT‑ We are told by the distinguished member from Chambers that the Legislature is not affected by certain disqualifications for the election of solicitors which the people them selves are affected by. I beg to call the attention of the Convention to the fact that they are affected by infinitely worse disqualifications. It is true that the members of the Legislature are not to be affected by the course of conduct pursued by the solicitor in the county, but according to the observation and experience of those of us who are here.  I am sure, we will concur in the opinion that they have been effected by other influences very largely. Now sir, the day has passed in America when any man can stand up and with self-respect affirm that the that the State in the respective localities are incapable of selecting those persons who shall discharge the public duties. The necessity for the election of circuit solicitors by the Legislature has long since passed, the people have felt it, and a great force comes up here, Mr. President, asking that they be rehabilitated with the right to elect their officers. We met the mailed hand of the lobbyist. Mr. President, we cannot go back to the people of this State and say to them that we have discharged faithfully the trust that has been reposed in us, that we have fully performed the duty reposed by the people, if we fail to fulfill their wishes and I do not believe that a member on this floor but would say that if the people, unembarrassed and free, would say  that it was not better that they should be allowed to elect their solicitors.  If that is a fact, of the people do have faith in themselves, why should we not repose the same faith? Now, the amendment proposed by me, under its provisions, it is not required that the salaries of the solicitors in the respective counties shall be uniform, but it does require that the legislature shall fix those salaries according to the work which is to be performed in each county. Of course the solicitor in Clay County would not be required to perform arduous duties, nor to posses the great skill which would be required of the solicitor in Jefferson County, and therefore the amendment provides that the Legislatures shall fix these salaries according to the requirements in the several counties. Now, in many of the counties that have county solicitors, we have circuit solicitors covering those same counties, there is a lapping over and doubling up of the expense. This will provide for the doing away with all of that.  It gives us an opportunity of saying to the people, we have rid  you of a large expense, and we have freed the legislature from perhaps the most corrupting influence that enters into its body. The solicitor being in the county, will do more thorough work, because he will be familiar with all the affairs, with all the transactions, with all the circumstances.  He will know the people, he will know the witnesses, he will be able to act intelligently, he will be able to respond quickly to the demands I think, Mr. President, that all the arguments against home rule are relatively speaking very weak.


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MR. PITTS (Dallas)‑I rise to support the substitute. Let us take a common sense view of the matter. Of what good is a circuit solicitor, now? I submit that in every county in this State there is a county solicitor, and he does most of the work except prosecuting the case immediately before the court. As a general thing, the deputy solicitor performs all the work done before the Grand Jury, and as a general thing the deputy solicitor is as well qualified to perform the duties of the office as the circuit solicitor. He is certainly more thoroughly acquainted with the facts and the witnesses. The circuit solicitor goes into the county with the judge, he knows nothing in the world about the offenses committed in the county, he goes before the Grand jury, if he does not send his deputy before him, and there he hears the testimony for the first time, and he knows nothing about the offenses committed in the county. Now he bets ‑a salary of $3,000, the deputy solicitor or county solicitor gets a salary of say $500 to prosecute the cases. Now, why not let the county solicitor go before the Grand Jury and get the salary? Another thing, Mr. President, I believe that when a law is upon the statute books, that it ought to be enforced ‑of course. There are trivial cases coming before a Grand Jury that it will ignore, but I say the circuit solicitor knows nothing in the world about the offenses in the county unless where he resides, until he gets in the county. What is the use of paying $30,000; why not save $45,000 or $50,000 a year if it is to be saved, and if not give it to those who labor and work for it. Another thing, if the people in a county want the law enforced they are going to elect a good man there, and they will uphold his hands. It is objected in this case; they say in some counties they have not good solicitors, have not men who are qualified. In nearly every county in the State you will find good lawyers who will enforce the law, and it makes no difference whether learned in the law at a particular time or not. they will soon qualify themselves to prosecute effectively all the violations of law. I do not think that the people of this State are tired of circuit solicitors ; there is no necessity for them.

Now, about the election‑I think there are objections both ways. If elected by the people, and one of his friends or those active in having him elected is brought before the Grand jury he necessarily leans toward him, and if those who are opposed to his election are brought before the Grand Jury he is necessarily prejudiced against them; but the Grand Jury is there, the Grand Jury will always develop if there is any prejudice on the part of the solicitor as they do if there is any prejudice on the part of a witness. Now, about the election by the Legislature. We know it is a fact, Mr. President and delegates, the way solicitors are now elected is by trading and combination. There is no use in disguising the fact. I can come to the Legislature with the support of the delegates from Jefferson county, and I can trade for my


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office, although I might not he able to get a single vote in my county. Why? Because the delegates from Jefferson come here not only, in the interests of their friends, but they‑ are supposed to support those who will support their candidate. The delegates front Jefferson will ask, if any candidate is qualified and being answered yes, they will support him, so the solicitor is elected not according to the will of the people, but according to the will of the majority of those who combine together. I am heartily in favor of the substitute, and I think it will give general satisfaction to the people.

MR. SAMFORD (Pike)‑It is always unfortunate in the discussion of any question from delegates to have their feelings too strongly involved in the outcome of the question before the body. We ought to discuss this matter as was suggested by the gentleman from Barbour, in a dispassionate way and see if we can arrive reasonably at what would be for the best interests of the State of Alabama. The question before the House is the substitute of the gentleman from Lauderdale, and I will address myself to that substitute briefly. I will begin by, remarking that since 1819 when this State was admitted into the Union. it has been under the control of the Democratic party, except during the reconstruction period. During all that time from 1819 to the present hour, with the exception of the time when the Republicans and scalawags had control of the State, the solicitors have been elected by the General Assembly. We have had circuit court solicitors, and the only party that ever attempted to elect county solicitors by the people and put them in direct contact with the people whom they prosecute, were the Republicans and the scalawags. That was their methods and modes of electing solicitors; and it proved a woeful and a howling failure, so I am informed, though I was not old enough at that time to remember it. Shall we follow in the lead of Buckley and his gang of negroes, or shall we follow the time-honored customs of the Democratic party if they are reasonable? Now, as has been said here, the policy or the manner of electing solicitors either by the people or by the Legislature, is not a perfect system by any means. It seems to me that we must choose the lesser of the two evils. If they are elected by the General Assembly, it is said that they go into combinations, cliques and slates, which is entirely objectionable and ought not to be. I do not know anything about that, because I have never been into one of them, I do not know anything about combinations. I Suppose that is  the fact, because American politics is American politics, and that is the only explanation of it, and yet, if you elect them by the people, the practice has been to hold all the conventions in Montgomery, or nearly all of them, including the conventions for the nominations of the judges of the different circuits and the different circuit officers. That being the case when the Convention to nominate State officers is called for the nomination of


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CONSTITUTIONAL CONVENTION, 1901       

chancellors, of judges and of solicitors, it will be called to meet here in Montgomery at the same tithe, and if they are so smooth that they can get up their cliques in the General Assembly, and so manipulate the General Assembly as to bring reproach upon it, I submit to this Convention when they are here, they will swap everything from the Chief Justice of this State down to the lowest officer in order to accomplish their purposes. There is about equally bad results following either mode. You say it is bad to trade in the legislature. I ask you if it is not just as bad to trade in a convention as it is in the legislature. They are both but the representatives of the people, that is all, one happens to be paid four dollars a day, and the other is paid nothing at all. They are both agents of the people. You talk about the people selecting their officers, why the people of Alabama have not selected an officer in twenty‑five years‑it has been done by their agents. The people have sent their agents to the city of Montgomery year after year and they have nominated the candidates for office by making combinations for twenty‑five years, and I suppose it has been going on ever since it has been a State, and it will continue to go on as long as we are a republic. As long as you have nominating conventions. the people will not nominate them, it will be by the agents. This is not a pure democracy, we are too large and spread over too large a territory to meet at Mars's Hill as did the people of Athens, and transact the business. Of necessity we do it through our agents, and the question is, which agent is the lest, and select him or them. On the other hand, when you elect them, you let the people vote upon their directly after having agents to select them. The other party comes in and they put up a man, and it is a question sometimes between two evils, the nominee of the party. or the nominee of the other, and they go before the people and they begin to scrap and to go into the slums, dives and barrooms and to the low elements of the cities that largely control the policies of large cities, and I will ask the gentleman from Lauderdale who will elect the solicitors?

MR. ASHCRAFT‑Will the gentleman permit me to answer?

MR. SAMFORD‑Yes, if you will do it right away.

MR. ASHCRAFT‑We will nominate the candidates in the primaries, and the man that goes into saloons and dives will be laid upon the shelf, sir.

MR. SAMFORD‑Oh, glorious time in Alabama, as pictured by the gentleman from Lauderdale, but it is only in his vivid imagination. I pray to God that the time will come that he describes, but it is not here yet, and I am afraid he will never live long enough to see it. Now, Mr. President, just a word with reference to county solicitors, and I am done. So far as I am personally concerned, I desire to state to the Convention I have been a deputy solicitor for some time, and I am yet, and it would redound to my


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advantage to have a salary fixed for the county solicitor— I desire to put it that way— but it is not at all practicable to do it. In some counties, as I stated, the earnings would be about one hundred and fifty dollars, and in some counties they would run considerably over two thousand dollars, and I hardly see how it would be managed

MR. MACDONALD-Mr. President-

MR. ASHCRAFT‑I will ask the gentleman to yield a moment.

MR. MACDONALD‑Very well.

MR. ASHCRAFT‑‑I desire to ask unanimous consent to strike out the words "elected by the qualified voters therein," and insert "selected as may be provided by law."

THE PRESIDENT‑The gentleman asks unanimous consent.

MR. WATTS ‑I object.

THE PRESIDENT‑There is objection.

MR. ASHCRAFT ‑Will the gentleman from Montgomery yield for a moment?

MR. MACDONALD‑The gentleman can make his motion after I get through. I won't take much time. Now, Mr. President, I will address myself briefly, to which might possibly lie called a question of privilege. I have heard a great deal of talk about the lobby of the Convention and the results of the lobby made upon members of the Convention on various matters that came before it. I have been grossly neglected in that particular. The lobby, whoever they are, have not been about me, and I don't think I ought to be ignored in that kind of way, and I wish to serve notice on the lobby that if I am treated in this way anymore, I and going to get as mad as the gentleman from Talladega.

MR. BROWNE-Which one?

MR. MACDONALD‑ I allude, of course, to Mr. Graham, as I have not seen you display any wrath lately. Like the gentleman from Talladega, we get mad sometimes, but when we do get mad, we stay mad all the time. We are Scotchmen. Now, my mind has been very much confused in the course of the various arguments before the Convention by the assertions in reference to what the people of Alabama want. Every man seems to think that he knows what the people of Alabama want; that he is the sole custodian of the interests of the people of Alabama, and the only man who knows their desires. I can only speak for myself and partially for the county I represent, and I have heard no howling demand from anybody in my county or anybody from any other county for a change in the existing law in reference to the appointment of


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solicitors. But we are told that the people want it. One man says all the people want it, and all the people expect it and demand it, and another man says all the people expect it and demand it, and another man says all the people do not want it, and all of them deny that they will have it. Along with the question of what the Legislature is, the character, quality and conduct of the Legislature, those are two mysteries to my mind which I think will never be solved. One man speaks about the Legislature as if it were a gang of convicts or lunatics, and another man speaks as if they had all the wisdom of the Roman Senators in the palmy day, of the republic, a kind of Jeckyll and Hyde business. Sometimes they are infamous and sometimes they are respectable, according to the man who speaks of them. Now in regard to the people of Alabama. to return to that abstruse question again, technically, I suppose we are the people, and incidentally in the word of Job. "Wisdom will die with us," but actually as said by my distinguished friend from Macon the other day, "There are others,” a matter of fact, no matter what may be the law. Now what is here suggested by the gentleman from Lauderdale? He says the county solicitor, shall be elected by the people, and therefore he says we are bound to have purity in the source of their election. Well, I am not going to tell any tales out of school, gentlemen of the Convention, but I know something about county politics, and I know something about the swaps and exchanges in County Convention and in county primaries. I defy the record even of the Legislature, treating the Legislature its some gentlemen treat it, as the acme of all infamy, I defy even the Legislature to show a grosser instance of trading and swapping of votes, and furthermore the buying of votes than you can find in the primaries, and sometimes in the Conventions.

MR. GRAHAM (Talladega)‑I will ask if your experience in politics is not limited to Montgomery County, and that is what you have in mind now?

MR. MACDONALD‑I am afraid not. I have no reason to suppose that this condition is limited to Montgomery County and my information is direct to the contrary. We have them as I understand in the other counties, and you have them in Talladega. The history of the primaries in Talladega you know more about than I do, but it does seem to me, Mr. President, and, gentleman of the Convention, that we might rely, at least to some extent, upon the wisdom of the framers of the Constitution of 1875. They had an object lesson before them at that time. They provided that the solicitors should be elected by the Legislature and there is nothing in the history of this State that shows any wisdom in departing from the ways suggested by that Convention. Now what has been said here? That the people of the county are letter qualified to judge of the capacity and the capacity of the county solicitor than


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the Legislature is. That the body of any particular county, in other words, must of necessity have more wisdom in reference to the character of a lawyer, ability of a lawyer and integrity of a man than the Legislature has. Well, I do not think that can be true. Certainly the people of the State of Alabama are presumed to select able men for the Legislature who are sent here to do that duty, not for one particular section, but for the entire State, and whose action in reference to the selection of solicitors, must be for the benefit of the entire State. It is well known and cannot be denied that a large number of people occasionally and frequently enough change the result of an election in the rank and file of voters, will endeavor to secure the election in the county of the man who will best subserve their interests and for that reason the Convention of 1875 adopted this clause, and there has been no change in the Civilization of this country, which would justify a departure from it.

Mr. OATES My colleague who has just taken his seat and myself, locally, have no right to complain about the solicitor or the system of solicitors, so far as this county is concerned.  Our colleague, Mr. Lomax, is the solicitor of Montgomery County, and a very able and efficient but in regard to the substitute proposed. Since the amendment of the Section as reported by the Committee, I am in favor of the substitute, and I will state briefly why I am.  Now sir, in the Constitutional Convention of1875. as the Chairman of the Committee on Judiciary, I suppose I am more responsible than any other delegate in the Convention for the Circuit Solicitor system.  I brought it forward and urged it advocated it until it was adopted. Why so? The County Solicitor system as has been stated, had been inaugurated and tried at that time had in a large number of the counties proven a failure, at least. it ,was very unsatisfactory, but why so, Mr. President?  Is there not a vast difference existing between the conditions in the State today and then. Why at that time, a good many of the solicitors were not such men as would today be elected, either by the people or by the Legislature, to position of County Solicitor. In very few of the counties would the same men be reelected and put in that position.  Now what we want is the establishment of that system which is the best in securing officers to prosecute the guilty as vigorously, and contribute in that way as much as possible toward putting down crime. Now the question is which is the best system at this time?  The Circuit Solicitor system was good, but the times change and we change with them, and it may not be the best now. The Circuit Solicitors, I believe, as a rule, through out the State are officers of ability, and I know that the one who resides in the same town with my friend the delegate front Pike, Mr. Parks, the Solicitor of the Twelfth Circuit, I know from having come in contact with him, and having seen the way), he prosecutes for the State, is a most excellent and able Solicitor, but, sir, that


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does not answer the question. It is as to what is best for the people, for the public, and what will be the best not only now, but in the future. Now, sir, it is impossible for a Circuit Solicitor to attend to the duties of his office in every county and the consequence is under the present system, he has a deputy in every county and is that for the best interests? Would it not be better that there be a permanent officer of County Solicitor whose duty it would be, and I think probably it would be well for the public, that his eligibility to more than two terms should be limited and he should be prohibited from the practice of the law, so as to require his w hole time and attention in the performance of the duties of his office. I think with such a system, as that, and I would say I believed the Legislature should have power to do it, that the County Solicitors should not begin prosecutions in misdemeanor cases, but leave that for some one else. That was the defect with the old system. Some of those were unrestrained, would get up prosecutions themselves and get up frivolous cases in order to make fees, and that was one great abuse of the office that led to its abolition. But it is an easy matter for this Convention if it sees proper to establish the County Solicitor system, and to so hedge about and guard that office, as to make it a most excellent one and a very useful one. Now, sir, it is simply a question as to whether that is a better system than the present Circuit Solicitor system. The Circuit Solicitors may be very efficient, and are good men as  a rule, but how call they go to this county and that and the other to attend to every case that comes up. They cannot do it. Frequently a Circuit Court is being held in ogle part of the circuit, and there is a necessity for a Solicitor in another county. Then he must depend upon some deputy, he cannot be there to do it, and the deputy is not of the people's selection, nor is he selected by the Legislature. He is a man selected by the Solicitors, as a sort of assistant to him, and it seems to me that if any change is to be made at all in the circuit Solicitor system, and return to the County Solicitor system, with guards around it to prevent abuse an to make the officer efficient, would certainly be economy, and an improvement in the administration of justice.

MR. TAYLOE ‑Mr. President, the motion now before the Convention is one that I earnestly insisted upon in the Judiciary Committee. In the first place, the first point to which I wish to call the attention of the Convention is this: In the last fiscal year, we spent on the Circuit Solicitor, $29,840. All of them got a salary of $2,400 except in the 13th District and he received $600, and there was some little of that paid on the preceding fiscal year. In addition to that, we paid in commissions $2,282.60, making in round figures, nearly $32,000 that we paid to Circuit Solicitors. In addition to that, we have a system of Deputy Solicitors in sixty‑six counties, and in almost every one of them, there can be a Deputy Solicitor who is allowed to make out of the fees $500 a year. In


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round figures, it amounts to about $30,000 more. The whole trend of recent years has been towards County Solicitors. Starting at the northern tier of the State, we find a County Solicitor in Madison. I do not know really what salary is paid him. We find one, I believe, in Jackson count‑. We find one in Talladega; we find one in Anniston; we find one in Walker; we find three in Birmingham ; we find one in Tuscaloosa; we find one in Hale; we find clue in Montgomery and we find one in Mobile. And in addition to that, there are three criminal courts, I believe, each of which has a Solicitor, so that, gentlemen, you call easy enough see that this question-

MR. GRAHAM (Talladega)-You left out Etowah in your call of the list.

MR. TAYLOE- Yes, sir, Etowah.

MR. OATES‑I desire to ask the gentleman a question. I do not desire to break the continuity of his discourse, but it is a matter I forgot, to mention when I was on my feet. I will ask you if that is not the case in view the retention of the circuit in accordance the report of this committee, and the action of this Convention thus far, will it not be in many cases to continue to pay the salaries now given to Solicitors? Would it not be practically a useless expense of money.

MR. TAYLOE ‑To Circuit Solicitors.

MR. OATES‑Yes, sir, with the number of the circuits reduced so greatly, with the number of Solicitors.

MR. TAYLOE ‑Now, gentlemen, we can easily enough see that in one branch of the criminal law we spend in the neighborhood of $100,000  to get 66 counties represented. The whole trend has been toward County Solicitors.  For twenty years it has been in the direction of County Solicitors and a County Solicitor is necessarily the coming thing. We can get them for less money than we are now paying for competent men under the present system of Solicitors. Putting it simply on the question of economy, we all know that almost in all the places, the fees of the Solicitor go into the treasury to help pay the expenses of the criminal system, and that they are a tax in some measure upon the people. At any rate, the fees now go to a certain extent to relieve the taxation of the people.  The point I want to make is the question of economy. We can have a Solicitor in each county of the State with that system. We will follow up what is the development in the present day towards County Solicitors. I say furthermore that the County Solicitorship is a hatter that should belong to the bar of each particular county, and to the people of that county. I call attention to another fact that frequently in some of these cases, I believe it was in the county, of Walker, the Solicitor gets all the fees he is entitled to in that county. Now I call attention to an‑


3575

CONSTITUTIONAL, CONVENTION, 1901      

other fact that before the committee, it developed that there were only two counties in the State in which there was probably not a lawyer who could fill the requirements of the place. I did not agree with the proposition, one of them was said to be Baldwin county, but I am inclined to think that there is a very competent man there to attend to the County Solicitor's business. I do not know about Winston county. Those were the only two counties that I heard mentioned, and I heard that it did not make much difference about Winston any way, as the people are law abiding. and there is very little criminal business. Now the other sixtyfour counties in the State have competent lawyers and the people are competent to attend to their business, and are just as competent to elect the Solicitors as they are anywhere else, and I venture to say that the system of County Solicitors will give us just as good ones as we have now, or have any prospect of getting in the future. Now, gentlemen, there is one paramount question above every other, that induces me to advocate that system. The most important Legislature that we will have for years will he the one elected in 1902. That one elected in 1902 will have to elect these Solicitors if we elect them lay the Legislature. We want that an able body of men, eve want them to come here with patriotic principles; we want them to come here so that they can devote their attention solely to these local laws, and we do not want them mixed tip with electing 25 Solicitors. It has been said that Legislators, and I have been a member of the Legislature, as soon as the Solicitors' office were filled, the Legislature was through; that they had either lost or won, and there was nothing else in the Legislative Department for which they cared ; in other words, men are already probably elected to hold over in senatorial positions for the solicitorship in 1902, or 1904. They are there to lay their pipes for election, and other people are going to be elected for no other purpose than to get the solicitorship.

MR. ROGERS‑I do not know that I can add anything to the able arguments that have just been made on both sides of the question, but I want to call attention to a statement made by the gentleman from Montgomery, Mr. Macdonald, and the gentleman from Pike, Mr. Samford, in reference to the change of the law in the Constitution of 1875, which abolished county solicitor, and gave to the State of Alabama, the District or Circuit solicitors. At that time, gentlemen of the Convention, we were just coming through the throes of carpet‑ bagism, scallawagism and negroism in Alabama. A scene was pictured and vividly described by Lord Byron, at the siege of Corinth: "We saw the lean dog beneath the wall hold o'er the dead their carnival."

Republicanism in its worst form. Negroism in dastardly form had been holding over the dead of Alabama their carnival. We had been enabled lay the concerted action of the white people of


3576      

OFFICIAL PROCEEDINGS

the North and a few of the Northern part of the State, and a few of the black belt counties, to overthrow this system in the State of Alabama, but notice the distinction. We had overthrown it in the State of Alabama, but not in all the counties of Alabama. In many counties of the State at that time, those scenes were being continued, and the able and patriotic men who sat in the Convention of 1875 wished to give to the people of the State of Alabama at large, competent and honest men as their solicitors, and they apportioned the State of Alabama into different districts so that the Democratic party would control each district and dive to the people competent and able solicitors. It seems to me that is an answer absolutely to the argument that we should follow the pre‑ cedent of 1875 and continue the district solicitor. Another proposition is this : So far as I am concerned I and perfectly willing that these solicitors shall be selected in the manner prescribed by law, whether it be by the election of the people at different times, or whether by the vote of the legislature, because it is perfectly reasonable to suppose that the counties of the State of Alabama will do about their solicitors as they do about other things. They will submit it to the primary of the county as to who is the choice of the people, and then any, member of the legislature who comes here will be bound to support this man. Now as to the combinations that have been made, I suppose there is no question. Whether these men have a right to make these combinations or not is a question for them to answer and I suppose they will answer it satisfactorily that all is fair in 1ove and war, and politics, but you go upon the proposition when you deny the right of the county to select its solicitors that the county is not capable of taking care o its own affairs. Why don't you say that the members of the county and the different districts shall be selected by the district and not by the county. Some gentlemen object to this on the ground that there will be fourteen or fifteen solicitors in Alabama who are Republican. Now this is not a question of Democracy, of Populism or of Republicanism. We have upon the floor of this body some twelve or fourteen men who are opposed to the Democratic party, and while I am a Democrat myself. I say these men have deported themselves decently and respectably and have gained the highest respect of this Convention. It would not, perhaps, be a bad thing if some of the counties in this State should be controlled by the present order of Republicanism. It would institute a comparison. We are not here to uphold the Democratic party. We are here for the Democratic party to uphold us in the right. It is not a proposition of holding up one party or tearing down another. But the proposition is, whether we shall be upheld by the people of Alabama in doing the best we call for the people of Alabama. Now take the great county of Jefferson. It has its county solicitor, and the County of Montgomery, and others as mentioned by Mr. Tayloe. That shows the tendency of the growth of the sentiment for county solicitors,


3577

CONSTITUTIONAL CONVENTION, 1901       

and if you will notice the wording of this substitute, it says that the salaries shall be fixed according to the requirements of the county. Now do not get it in your mind that we are going to pay in the county of Geneva $2,500. We will pay the sum justified by the amount of law business that is done in that county. And so on throughout the State. The system as at present has cost the State of Alabama $10,000 more than it brought into the State in the way of fees. That would be done away with. I thank you, Mr. President and gentlemen of the Convention. I have nothing more to say.

MR. BLACKWELL– I desire to say that I made the question of selecting county solicitors one of the issue in the campaign that I made before the people as a candidate for delegate to this Convention. I made a speech in every precinct in the county except two out of twenty‑two precincts, and at each of those precincts I advocated the abolition of circuit solicitors, and advocated the selection of county solicitors, and I want to say that there was not a man, so far as I am informed in the county that attended these meetings, or who expressed himself on this question, but said to me that they were in favor of the abolition of the circuit and the institution of the county solicitors. The people could see a necessity for circuit solicitors in 1875, because many counties were then under Republican rule, and the legislature was expected to be Democratic, and could make them all Democratic solicitors. They could remove the carpetbagger that had so robbed and fleeced us. Now the county solicitor does the greater part of the work, and, the circuit solicitor is practically a fifth wheel that is largely useless expense for which the people derive no particular benefit that would not come to them by simply having county solicitors. My opinion is there is no reason under the plan and provisions of this article as reported that we have already adopted. There will be probably twenty counties in the State of Alabama that leave population enough to have for themselves a separate court for that, particular county which will require the solicitor for that particular court. That will remove another of the necessities for having Circuit Solicitors making these separate courts in probably twenty counties of the State of Alabama. It seems to me that if the same object and purpose can be obtained by having, the sixty six County Solicitors which so far as my county goes and expressions I have heard from the people, the people want, and we can have law maintained and can abolish the thirteen Circuit Solicitors, we will save that much money to be used for other needy purposes in the State of Alabama, and will bring the administration of the affairs of the people nearer to them. As has been said, and sufficiently, probably there is no question but what the County Solicitor is more familiar with what is done in the county and knows better how to look after the administration of the law where he stays constantly than a man who lives somewhere else, or have


3578      

OFFICIAL PROCEEDINGS

his time divided. For these reasons, knowing my people are practically unanimously in favor of this matter, I favor the substitute offered by the gentleman from Lauderdale.

MR. SANFORD (Montgomery) ‑ Many of the gentlemen have remarked upon the idea that the circuit system of solicitor was established to get rid of the County Solicitors under the domination of the Republican Party. Is it not a fact that the system of Circuit Solicitors existed long ago before the Republican Party had an organization

MR. BLACKWELL‑Yes, sir, I think that is so.

MR. SANFORD (Montgomery)‑It is an old system that we have always had.

MR. LONG (Walker)‑I desire to make a parliamentary inquiry. The Journal says that Section 28 and the minority report was adopted as amended. I want to know what is before this Convention. Notice was given by the gentleman from Talladega that on tomorrow he would move to reconsider a vote by which Section 28 of the minority report was adopted.

MR. GRAHAM (Talladega)‑I did not make that statement.

MR. LONG' (Walker)‑The Journal is the best evidence.

THE PRESIDENT ‑The Chair recollects that the minority report, there was first an amendment offered by the gentleman from a Jefferson to amend the minority report. That was adopted or accepted. The Chair does not remember which. Thereupon the minority report was substituted for the majority, but the Section has never .been voted upon by the Convention.

MR. LONG (Walker)—  Well, the Journal says differently, and my recollection is different.

THE PRESIDENT‑The Journal is wrong. The Chair has never submitted to the Convention the question on tile adoption of the 'Section as reported by the Committee as amended.

MR. WALKER‑The situation of this matter as I understand it is that the amendment proposed by the minority‑ was adopted so that to put before this Convention the proposition that the Circuit and County Solicitors should be elected by the Legislature for a term of six years, then amendment as proposed by the gentleman from Madison, and while that was pending the gentleman from Lauderdale proposed as a substitute for the amendment proposed by the minority and for all pending amendments, a proposition to make County Solicitors elected by the people and that they should be compensated by salary alone. Now I submit that as between these two propositions, the Convention certainly should hesitate before in the first place they adopt a proposition to make


3579

CONSTITUTIONAL CONVENTION, 1991       

all solicitors in this State elected by the Legislature for a term of two years, and that hesitation should have in view the fact that we are to have quadrennial sessions of the Legislature, and this provision would, of necessity, require the election of these solicitors at least every two years before their duties shall commence. Now is this Convention ready to put that provision in the Constitution. Do you think that would be satisfactory to the people, to require that every session of the Legislature, solicitors over the State should be selected for a term commencing at least two years from the time of the session of the Legislature. Now I submit that we should also consider this proposition in view of the circumstances, that as the population of this State increases, solicitors will, in the course of time, be established for each separate county in the State‑that is inevitable unless our growth and development is stopped that in a few years, every county in the State will have its own separate solicitors, and that official of the county is not to be elected by the people of the county, but in the Legislature here. Now let every  man in this Convention consider which is better to pass upon the fitness and qualification of the several candidates for this Convention, the members of that county, or the members of the Legislature, sixty‑five counties being represented by strangers, who are strangers to the county. Now is that local self‑government? Do the reason` which induced the Constitutional Convention of 1875 to establish this system of Circuit Solicitors exist now. The reasons for that were that at that time this State had not been entirely reclaimed front the domination and possession, in certain localities of the power in politics as prevailed eight years before. And that was done in order that throughout this State these officials should be controlled by the dominant parties. That condition of affairs has passed away. The people have long since come to their own, and one of the things they ought to own is control of their local affairs. The reason for arresting and stopping the power of the people to control their own local affairs that existed in 1875 do not exist now in any part of this State. so far as I am concerned. Unless this Convention is of the opinion that the powers of local self‑government have been paralyzed in this State, and that the several localities need guardians to look over their interests. I cannot see how they would hesitate as between the two propositions that are now before us.

MR. OATES‑I understand you would be in favor of the substitute or as at first presented by the County Solicitors to be elected by the people in the counties.

MR. WALKER‑I would state to the gentleman I would prefer a proposition that would read thus, as between the two propositions I favor the substitute. I would prefer a proposition which is embodied in this Section which will be offered if opportunity is present.  Section 28.


3580      

OFFICIAL PROCEEDINGS

Sec. 28. A solicitor for each judicial circuit, or other territorial subdivision prescribed by the Legislature. shall be elected by the qualified electors of such circuit or other territorial subdivision. who shall be learned in the law, and who shall, at the time of his election, and during his continuance in office, reside in the circuit or other territorial subdivision, for which he is elected, and whose term of office shall be for four years ; and who shall receive no other compensation except the salary provided; provided, that this article shall not operate to abridge the term of any solicitor now in office.

MR. OATES‑That is probably much better than tile section as amended, but I understand the gentleman to say that the time is not far distant when there would be a solicitor for every county in the State.

MR. WALKER‑That is true. This provides for that. My proposition is this. To fix it so the system for a circuit solicitor shall not be made rigid in this State but whenever the growth and development of the State has reached so far that county solicitors in each of the county or in the several circuits is required by local demand, such solicitor can be provided, but pending that development, circuit solicitors where they met the existing requirements shall be retained until the counties have been so developed that county solicitors may be eliminated.

MR. KIRKLAND‑I think the question has been discussed sufficiently before the Convention, and that the delegates have made up their minds as to how they desire to cast their votes. and I therefore move the previous question upon the amendments and upon the section.

MR. HEFLIN (Chambers) ‑ I move to lay the pending amendments and all upon the table.

MR. WATTS ‑And upon that demand the ayes and noes and in division oaf the question as to the amendments.

MR. ROGERS‑A division of the question is asked for.

THE PRESIDENT‑A division of the question is asked for, and the Chair will submit the question to table in the inverse order in which amendments were offered. The pending question will be the substitute offered by the gentleman from Lauderdale to the section as amended, and the amendment offered by the gentleman from Madison.

MR. ROGERS‑I ask for a reading of the substitute.

MR. SPRAGINS‑With unanimous consent I will be glad to withdraw my amendment.


3581

CONSTITUTIONAL CONVENTION, 1901       

Unanimous consent was given and amendment was withdrawn.

THE PRESIDENT‑The question will be upon the substitute of the gentleman from Lauderdale. The ayes and noes have been demanded to the section as reported by the committee as amended.

The call was sustained.

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

AYES

Messrs. President,

Haley,

Opp,

Banks,

Handley,

Reese,

Browne,

Harrison,

Reynolds (Henry),

Cardon,

Heflin, of Chambers,

Samford,

Carmichael, of Colbert,

Heflin, of Randolph,

Searcy,

Carmichael, of Coffee,

Howze,

Selheimer,

Carnathon,

Inge,

Sentell,

Cobb,

Jackson,

Stewart,

Coleman, of Walker,

Jenkins,

Vaughan,

deGraffenreid,

Kirk,

Weatherly,

Duke,

Kirkland,

Whiteside,

Ferguson,

Knight,

Williams (Marengo),

Foster,

Long (Butler).

Williams (Elmore),

Glover,

Long (Walker),

Wilson (Clarke),

Greer, of Calhoun,

Madonald,

TOTAL‑44

NOES

Ashcraft,

Gilmore,

NeSmith,

Barefield,

Graham, of Talladega,

Norman,

Beavers,

Grayson,

Norwood,

Beddow,

Henderson,

Oates,

Blackwell,

Hodges,

Palmer,

Boone,

Howell,

Parker (Elmore),

Brooks.

Jones, of Bible,

Pearce,

Bulger,

Jones. of Hale,

Pettus,

Byars,

Kyle,

Phillips,

Chapman,

Lowe (Lawrence),

Pitts,

Cofer,

McMillan (Baldwin).

Porter.

Cornwall,

McMillan (Wilcox),

Rogers (Sumter).

Craig,

Malone,

Sanders,

Davis, of Etowah,

Maxwell,

Sanford,

Dent,

Merrill,

Sloan,

Espy,

Miller (Marengo),

Smith, Mac. A.,

Fitts,

Miller (Wilcox),

Smith, Morgan M.,

Fletcher,

Mulkey,

Sorrell,

Freeman,

Murphree,

Spears,


3582                  

OFFICIAL PROCEEDINGS

Spragins,

Waddell,

Weakley,

Studdard,

Walker,

White,

Tayloe,

Watts,

TOTAL‑65

ABSENT OR NOT VOTING

Almon,

Hinson,

Parker (Cullman),

Altman,

Jones, of Montgomery,

Pillans,

Bethune,

Jones, of Wilcox,

Proctor,

Burnett,

King,

Renfro,

Case,

Ledbetter,

Reynolds (Chilton),

Coleman, of Greene,

Leigh,

Robinson,

Cunningham,

Locklin,

Rogers (Lowndes),

Davis, of DeKalb,

Lowe (Jefferson),

Sollie,

Eley,

Martin,

Willet,

Eyster,

Moody,

Williams (Barbour),

Foshee,

O'Neal (Lauderdale),

Wilson (Washington),

Grant,

O'Neill (Jefferson),

Winn.

Greer, of Perry,

O'Rear,

PAIRS

AYES

NOES

Graham, of Montgomery,

Hood,

Lomax,

Smith (Mobile),

Burns,

Bartlett,

Morrisette,

Thompson,

So the motion to table was lost.

MR. NESMITH‑I move the previous question.

THE PRESIDENT PRO TEM.‑The previous question has already been moved. The question is on ordering the previous question on the substitute and the section as amended.

THE PRESIDENT‑The gentleman from Chambers anticipated the motion of the gentleman from Madison by a motion to table which took precedence of the motion of the previous question. The question is, shall the main question be put?

MR. LONG (Walker)‑I ask the gentleman to withdraw that motion a moment.

(Expressions of dissent).

The main question was ordered.

THE PRESIDENT ‑ The question will be first upon the substitute offered by the gentleman from Lauderdale.

MR. HEFLIN (Chambers)‑I rise to a question of parliamentary inquiry. Was the gentleman from Lauderdale allowed to accept the amendment?


3583

CONSTITUTIONAL CONVENTION, 1901       

THE PRESIDENT PRO TEM.‑He was not.

Upon a vote being taken a division was called for, and the substitute of the gentleman from Lauderdale was adopted.

While vote was being taken—

MR. deGRAFFENREID‑Is this on the motion to adopt?

THE PRESIDENT PRO TEM.‑Yes, sir.

MR. deGRAFFENREID ‑ I vote for it for the purpose of moving to reconsider tomorrow.

The vote was 72 ayes and 32 noes.

MR. deGRAFFENREID‑I desire to give notice that on tomorrow I will move a reconsideration of the vote whereby the amendment was adopted.

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

MR. WALKER (Madison)‑I desire to offer a substitute.

MR. SAMFORD (Pike)‑I rise to a point of order, the previous question has been ordered.

THE PRESIDENT ‑ The previous question has been ordered.

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

MR. WILLIAMS (Marengo)‑I want to give notice that I vote aye in order that I may move for a reconsideration of the vote by which the section was adopted.

THE  PRESIDENT‑The Secretary will read the next section.

Section 29 was read as follows:

Sec. 29. In each precinct not lying within, or partly within, any city or incorporated town of more than twenty‑five hundred inhabitants, there shall be elected, by the qualified electors of such precinct not exceeding two justices of the peace and one constable. Where one or more precincts lie within or partly within, a city or incorporated town having more than twenty‑five hundred inhabitants, the General Assembly may provide by law for the election of not more than two justices of the peace and one constable, for each of such precincts, or an inferior court for such precinct or precincts, in lieu of all Justices of the peace therein. Justices of the peace, and the inferior courts herein provided for, shall have jurisdiction in all civil cases where the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment. The General Assembly may


3584      

OFFICIAL PROCEEDINGS

provide by law what fees may be charged by justices of the peace and constables, which fees shall be uniform throughout the State. The right of appeal from any judgment of a justice of the peace, or from any inferior court authorized by this section, without the prepayment of costs, and also in the term of office of such jutices, and of the judges of such inferior court, and of notaries public, shall be provided for by law. The Governor may appoint notaries public without the powers of a justice of the peace, and may, except where otherwise provided by an act of the General Assembly, appoint not more than one notary public with all of the powers and jurisdiction of a justice of the peace for each precinct in which the election of justices of the peace shall be authorized.

The minority report was read as follows:

“Strike out the word ‘except’ and strike out the word ‘otherwise’ in the last paragraph of Section 29.”

Mr. Pettus here took the chair.

THE PRESIDENT PRO TEM– The minority report will be treated as an amendment to the section. The question is upon the adoption of the amendment.

MR. JONES (Hale)– I think the minority report should meet the judgment of every delegate of the Convention. You just take the majority report and cut out the two words. The reason of the former law was that certain counties in the State were under negro domination, and as Coke says, “The reason fo the law is the life of the law, and he that knoweth the law without knowing the reason thereof, has very insufficient knowledge.” The State now is under Democratic rule, and there is no necessity of having these officers.

We have a justice of the peace who does all this work, and the idea of having a notary public was that in some counties where the negroes had control, the Governor might appoint the officer, but this is a judicial officer and it is against the spirit of the times to have a Governor appoint a judicial officer. It is also such a small office that he is sometimes appointed without due consideration. Some man, probably a Justice of the Peace, gets up a petition to have himself appointed, and sends it up and there being no opposition, because it is a small office, he is appointed.

Another thing, this officer is not like a Justice of the Peace. He is not responsible to any one. The Justice of the Peace has to be re-elected. This officer, being appointed by the Governor, has nothing behind and just acts according to his own good will, and I hope the Convention will not make perhaps forty or fifty that do not want this office, to be excepted, but will require the counties that want this office created, to come in and ask for it.


3585

CONSTITUTIONAL CONVENTION, 1901       

Do not make the counties that want to be excepted come here and ask for it, but make the counties that want it come to the Legislature for it.

MR SMITH (Mobile)‑So far as the Section is concerned, it was molded largely to suit, as the Committee understood it, the varying conditions of the several counties and municipalities in the State. As the gentleman will notice, it makes the Justice of the Peace a constitutional officer in the counties, but not in cities and towns having 2,500 inhabitants or more. In cities and towns of that size the Legislature has the right, though it is not made compulsory, to create an inferior court to exercise the jurisdiction that Justices of the Peace would otherwise exercise in such cities or towns as the Legislature may create these inferior courts, and abolish the office of justice of the Peace. In the provisions, so far as the Notary Public is concerned, it is left just as it was in the old Constitution, authorizing the Governor to appoint the Notary Public with powers of Justice of the Peace in each precinct, except as otherwise authorized by law. So far as we could learn in the Committee, there was but one county there represented that did not want the Notary Public with the powers of Justice of the Peace. That was the county of Hale. The gentleman from Hale now desires that all the other counties should have acts passed in order to authorize the Governor to appoint a Notary Public with the powers of Justice of the Peace, so as to save the county of Hale the necessity of passing that act. So far as we could learn, there are sixty‑five counties that want it, and one that does not want it, which is the county of Hale, and the Committee therefore said that the county of Hale could get exempted from it. But the gentleman from Hale says, no that burden ought not to be put upon Hale ; the other sixty‑five counties ought to get an act passed for their benefit. He thought there were more of them, and they could pass more acts, and he thought it was fair that they should pass these acts and that is the only controversy between the majority and the minority. I therefore more to lay the report of the minority upon the table.

MR. MACDONALD‑Is it the purpose of the majority to allow the Legislature to provide for inferior courts in each precinct of a town such as prescribed in the Section?

MR. SMITH‑No, sir.

MR. MACDONALD‑That is the phraseology ; just read it.

MR. SMITH‑‑I have read it and discussed it a great deal.

MR MACDONALD‑Permit me to read it to the gentleman.

MR. SMITH‑You are welcome to read it.

MR. MACDONALD (reading)‑"In each precinct, not lying within, or partly within, any city or incorporated town of more


3586      

OFFICIAL PROCEEDINGS

than 2,500 inhabitants, there shall be elected by the qualified electors of such precinct not exceeding two Justices of the Peace and one Constable. Where one or snore precincts lie within, or partly within, a city or incorporated town having more than 2,500 inhabitants,  the General Assembly may provide by law for the election of two Justices of the Peace and one Constable for such precincts, or an inferior court for such precinct or precincts.”

That is the phraseology of it. I merely want to know if it is the purpose of the majority to put upon the county or State, an inferior court with all its machinery, in each precinct?

MR. SMITH (Mobile)– It is not the purpose, nor is it so expressed. in my opinion.

Upon a vote being taken, the motion to table the minority

report presented.

MR. WILLIAMS (Marengo)‑I desire to offer an amendment.

The amendment was read as follows:

“Amend Section 29 of the report of the Committee on Judiciary by striking out in the eighth line the words ‘and the inferior courts herein provided for,’ and by inserting after the word ‘ejectment.’ in the tenth line, the following, ‘and the inferior courts herein provided for shall have such jurisdiction as may be conferred upon them by law.”

MR. WILLIAMS– Just a word of explanation to the Convention on the amendment as offered. The Section, as reported by the Committee, provides for the abolition of the courts of Justices of the Peace and the establishment of an inferior court in the precinct wherever the court of the Justices of the Peace may be abolished.  But it goes further and limits, the jurisdiction of all civil cases in these inferior courts by saying that it shall not exceed $100, except in cases of libel, slander, assault and battery and ejectment.  My amendment only goes to this extent, that whenever that Justice Court is abolished, and the inferior court established. that the court so established shall leave such jurisdiction as may be conferred upon it by law ; in other words, here we have got two Justices of the Peace in a precinct; their offices are abolished and an inferior court established.  What is the object of giving to that inferior court only the jurisdiction that the Justices of the Peace had?

MR. WALKER (Madison)— Do you mean under your amendment to leave it so that the Legislature can confer upon such inferior courts the jurisdiction of the Circuit or Chancery Court?

MR. WILLIAMS‑I think they might have more extended jurisdiction than Justices of the Peace, and this is the principal


3587

CONSTITUTIONAL CONVENTION,  1901      

reason:  When you abolish Justices of the Peace, I presume you propose to put that judge of the Inferior Court on a salary. What salary are you going to give him?  If he is only going to have the jurisdiction of the Justice of the Peace, you could not give him much salary. If you don't give much salary you can't get a good lawyer, and if you can't get a good lawyer, you can't have a good judge, and if you don't get a good judge you are going to have these courts in the same fix they are in now, presided over by inferior men, and in an illegal manner, to differ from the Supreme Court decisions.  The object in my opinion, to be reached, by Section 29 is to have inferior courts in towns having 1,500 or 2,500 people, which courts will be some good to the people in that particular locality. What is the great kick against Justice of the Peace? The inferiority of those who preside over them, the fact that they decide question of one hundred dollars down which decisions are not satisfactory to they people and it gives rise to appeals, while if you had those courts presided over by fairly good lawyers with fairly good salaries, which you could get by giving them some increased jurisdiction; you would have fewer objections and fewer appeals. Who is going to be the first man who presents himself for election to inferior court judgeships? It will be some justice of the peace who now presides over these courts, and the object of the section will not be obtained. I hate to see the absolute jurisdiction given provided by the amendment, but how else can you reach it, and you must not, for the hundredth time to repeat what other learned men have said here on the floor believe that our legislators are going to be a set of fools, but they are going to have some sense, and that they are going to apply to the various precincts of which they create these inferior courts, solve judgment as to how much discretion they are going to give these judges.  It might be different in one town of 1,500 or in one town of 2,500, and let there be some elasticity about it, and lets get rid of justices of the peace absolutely and totally, and get for a presiding judge of that particular court some good man who will expedite justice, and who will give out justice in a Judicial manner, that is the object of my amendment.

MR. COBB– I am in accord with the gentleman who has just addressed the Convention in part.  I am not in favor of erecting these courts with the general jurisdiction which his amendment would give them, but I do believe that if we erect these courts at all they ought to have some jurisdiction above that conferred upon a justice of the peace. The Convention will observe the object of this proposition embraced in the Committee's report. There is a complaint all over the State of Alabama with reference to justices of the peace. They are sometimes said to be nuisances. While I do not go to that extent, because the office of justice of the peace is an important office, and it is frequently filled by men who are valuable officials in their section of the country. That is undoubt‑


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edly true, while it is equally true that this office is often filled by men who have no consideration for anything except the amount of fees that may be made out of their official position and wherever that is the case, then they become troublesome citizens of the section in which they reside, they encourage instead of suppress litigation, and they get up a great many trifling and unimportant matters to the harrassment of their neighbors. Now to meet that condition of things, it is the object of the Committee here to provide. I might observe further that this complaint to which I havereferred with reference to action of the justices of the peace obtains more specially and greviously in the cities, in Montgomery, Mobile, Selma and these large and growing places, especially in cities where they are surrounded by a certain class of our population who more than any other class of citizens are subject to these annoyances and indirectly their employers.

Now, then, in order to remedy this in part at least, and as far as we feel justified in going, it is provided in this report that in certain places, having as many as two thousand five hundred inhabitants, there may be an inferior court with a judge of qualifications and better character it may be, and a man having more regard for the public interest than the ordinary justice of the peace and he is represented to be, should be established, and wherever that is done, at the instance of the people (because it will only be done at their instance), then the office of justice of the peace within that jurisdiction should be abolished, and in place of two justices of the peace you have got one responsible officer, more responsible than the justices are deemed to be, before whom you can go with these little matters of litigation and who will be supposed to be above encouraging litigation among any class of people . That is the object of the Committee.

Now, then, the Committee has limited the jurisdiction of such a court as this, if established, to the jurisdiction of the justice of the peace. I believed and so did some of the Committee, that wherever the circumstances authorize the establishment of such acourt as this, while we would not give him a general jurisdiction, you might increase the jurisdiction somewhat above that of justices of the peace, and have provided here by amendment that you give him jurisdiction in civil cases of $250, and I offer that amendment.

MR. WILLIAMS– I would like to accept that amendment.

MR. OATES– Before your amendment is ready, why not confine these inferior courts to those misdemeanors, under the law that justices of the peace have a right to dispose of now?  Ihave heard more complaint in respect to that class of misdemeanors than anything else, and why not confine them to that court?


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MR. COBB‑I have no objection to that if you think it is wise. I don't know if you could not safely allow him to have control of this business, but I think the Legislature can deal with it if they see proper to do so. I think it better not to put too much in the Constitutional provision. Leave it to the Legislature in their wisdom, if they have any wisdom, and I think they have, notwithstanding the abuse which has been heaped upon them.

The substitute offered by Mr. Cobb to the amendment of Mr. Williams was read as follows:

Amend by striking out the words, "And the inferior courts herein provided for," in the eighth line of the original Section, and by adding after the word "law" in the fifteenth line, the following "Such inferior courts shall have the jurisdiction of justices of the Peace, except that in civil cases they shall have jurisdiction where the amount involved does not exceed $250."

MR. WILLIAMS (Marengo)‑I ask unanimous consent to accept that substitute for my amendment.

MR. WATTS‑Mr. President and gentlemen of the Convention, this matter in reference to the Justices of the Peace and in reference to this inferior court occupied many hours of consideration by the Committee on Judiciary, the final result after very much discussion and hearing the idea of all persons connected with that Committee, was the Section which has been presented, the objection of this Section is simply this: that instead of having in towns of 2,500 inhabitants, several Justices of the Peace exercising their jurisdiction, the Legislature should have the power to create an inferior court to take the place of all of the justices of the Peace, within such a town. Now, mark you, that the policy, of this Committee, and I may say the policy of this Convention. because they have adopted that much of this Committee's report, is that there shall not be established by the Legislature of this State inferior courts in counties which have less than 20,000 population and $3,500,000 of taxable property, so that the Committee in recommending this inferior court to take the place of justices of the Peace and Notaries Public with powers of the Justice of the Peace, meant to simply engraft an exception upon this first Section which is contained in their report. and the object was not to give the Legislature the right to establish in every town that had 2,500 inhabitants an inferior court with general jurisdiction, or with the jurisdiction either in equity or at law, but the intention of the Committee was to simply substitute for a lot of Justices of the Peace and Notaries Public with powers of Justices of the Peace, one person, who should be learned in the law, and who throughout the towns and throughout the precincts which were partly within and partly without the town, exercise the same jurisdiction that the collective Justices of the Peace would otherwise exercise. I do not think it would be a good idea to say that the Legislature should


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give this inferior court such powers as they might see proper, because if we adopted that amendment, that would in effect nullify the first Section of this report. I do not think that it would be right to the State to say to the Legislature, you may establish an inferior court in each of these towns and give them what jurisdiction you please, because that would be giving the Legislature the right to multiply the very evil which the first Section of this report condemns, therefore the amendment of the gentleman from Marengo should not be adopted.

Now, the gentleman from Macon says;  give them jurisdiction to the extent of $250. Then you would have this state of affairs : You would have a lot of inferior courts established in towns of 2,500 people which would have concurrent jurisdiction with the Circuit Court of all amounts up to $250, except in cases of libel, slander and ejectment. Now, that is not the object of the Committee.

MR. WILLIAMS (Marengo)– I would like to ask the gentleman from Montgomery if they are to take the place of the Justices of the Peace, if these inferior courts would not be subject to the jurisdiction of the Circuit Court? If they are simply putin the place of Justices of the Peace, why should they not be subject to the jurisdiction of Circuit Courts, that is what Section 29says, and—

MR. WATTS– I will answer the gentleman if he will let me. Because now the Justices of the Peace, have jurisdiction up to $100, and the Circuit Court has jurisdiction about $50, and yet every lawyer knows that Justices of the Peace and the Circuit Courts have concurrent jurisdiction  for amount over $50, although you can appeal from the Justices.

MR. COBB– Can't you appeal here.

MR. WATTS– There is no provision made for appealing here.

MR. WILLIAMS— Yes, there is, if you will put it in.

MR. WATTS– Let us keep to the question. The simple question is this: Shall we substitute an inferior court for all of the Justices of the Peace and all the Notaries Public with powers of justices of the peace within towns of 2,500 inhabitants. Now the committee say that we agree to that provided the jurisdiction of this inferior court shall be what the jurisdiction of those justices would have been. All of this matter that these gentlemen are discussing here was discussed in the committee. It was proposed in the committee to make this very amendment offered by the gentleman from Marengo. It was well considered, and it was voted down as unwise. Why, then, if we are going to open the gates, if we are going to establish these inferior courts of such jurisdiction


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as the Legislature may give them, or with $250 jurisdiction, should we adopt the first section of this article limiting the power of the Legislature to establish these courts.

Something was said about criminal jurisdiction. We don't want to put into the Constitution anything about criminal jurisdiction. It never has been there, and we don't want to recognize in this Constitution the jurisdiction of these justices of the peace or these inferior courts in criminal matters.  The Legislature had power before to give justices of the people criminal jurisdiction in a certain manner, and we propose to leave that untouched so that hereafter the Legislature can do what they please in that matter. I do not think either of these amendments should be adopted, unless we go back and say the gates are wide open and the Legislature may establish inferior courts with plenary power to every cross road in Alabama.

MR. WILLIAMS‑Did I understand you to say the right of appeal was not provided for in these inferior courts?

MR. WATTS‑‑I do not know what you understood. If I said so I made a mistake.

THE PRESIDENT PRO TEM.‑The question is upon the adoption of the amendment.

MR. VAUGHAN‑I have a substitute to offer for the section

and amendment. The substitute of Mr. Vaughan was read as follows:

"There shall be elected by the qualified electors of each precinct in the counties, not exceeding two justices of the peace and one constable. Such justices of the peace shall have jurisdiction in all civil cases wherein the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment.  In all cases tried before such justices of the peace the right of appeal without prepayment of costs shall be secured by law; provided that within incorporated cities and towns of two thousand inhabitants or more, the General Assembly may provide an inferior court of record for such city or town in lieu of all justices of the peace therein. such inferior court shall have the jurisdiction of a justice of the peace. Appeals from such inferior courts may be taken to the Circuit or City Court. Provided, further, that the Governor may appoint one notary public for each election precinct and for each ward in cities of over 5,000 inhabitants, with the jurisdiction of a justice of the peace and the term of such notary shall be prescribed by law.

MR. VAUGHAN‑That substitute is very much like the section of the Constitution as it stands now, except that it permits the creation of these inferior courts in cities or towns of 2.000


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inhabitants or more. I don't think that it is wise to abolish Justices of the people altogether, but I do think it is wise to abolish them in some localities. I think in all probability in cities and towns of two thousand inhabitants it is best to abolish justices of the peace for this reason: That in towns of that size justices of the peace are apt to abuse the powers that they have in a good many cases, and they trade around among themselves and manufacture cases. In that way they abuse the power conferred upon them and I think it is necessary to have an inferior criminal court to supply their places.

Now, as to the jurisdiction. We need the justice of the peace in the country and we need courts of that salve jurisdiction in town. We need little courts to attend to small matters, and I think that the jurisdiction ought not to be increased, as provided in some of the other amendments to $250. If it is necessary to have a case of that size, it may be brought in any court. It can be brought in the Circuit Court, and I think that all cases of that sort probably ought to be brought in the Circuit Court. The substitute as offered by myself, I think embodies a good deal of the merit in both the section and the amendment offered by various parties.

MR. GRAHAM (Montgomery)– The purpose of the committee, as has been stated to you by my colleague from Montgomery (Mr. Watts) was as far as possible to do away with the annoyance to litigants brought about by incompetent and ignorant justices of the peace throughout the State of Alabama, particularly in the larger towns of the State. Those of us who reside in those towns fully understand and appreciate the situation. The amendment offered by the gentleman from Dallas is very nearly the same as the report offered by the committee, hence I think it is unnecessary, and the report of the committee, or the conclusion reached by the committee which is embodied in its report, was after long and mature consideration.

MR. VAUGHAN– I want to suggest to the gentleman from Montgomery that my substitute abolishes ex‑officio justices of the peace.

MR. GRAHAM– Yes, sir, I understand and the report of the committee abolishes exactly the same thing.

Now, Mr. President, the amendment offered by my most excellent friend from Macon, confers a dignity greater tan was anticipated or expected would be conferred upon a court of this

character. He creates it with jurisdiction in civil cases to the extent of $250. In my humble opinion, a court of this character, possessing no more dignity than is conferred upon it by this Constitution, should not have the power and authority to try cases to that extent, particularly as it is anticipated that this will not be


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a court of record. It is true that if a man does not desire to bring his suit in this court, he would have the right to go into the City Court, or court of similar jurisdiction, or into the Circuit Court, but that was not the purpose of the Committee, and it should not be the intention of this Convention to create courts without number, conferring upon them jurisdiction entirely out of proportion to their merits. The whole purpose was to establish in cities and towns a court which would take the place of the number of Justices of the Peace who were carrying on the business of the administration of justice. In view of the situation, as I understand it, and believing that the report of the committee is the best that can be had under the circumstances, I move to lay the substitute, the amendment of the gentleman from Macon, and the amendment of the gentleman from Dallas upon the table.

AIR. WILLIAMS (Marengo)‑I ask for a division of the question.

MR. REESE‑I desire to make a parliamentary inquiry. I understood the Chair to state that there are three amendments now pending.

THE PRESIDENT PRO TEM‑The Chair did not so state, and the gentleman misunderstood the Chair.

MR. REESE‑I understood the Chair to state that there was an amendment offered by the gentleman from Marengo and a substitute offered by the gentleman from Macon, and also an amendment offered by the gentleman from Dallas.

THE PRESIDENT PRO TEM– The understanding of the gentleman from Dallas is at fault. The chair said that there was an amendment offered by the gentleman from Marengo, a substitute to that amendment offered by the gentleman from Macon, and Mr. Vaughan offered a substitute for the pending section and the amendment, and the gentleman from Montgomery moves to table the substitute and the amendment of the gentleman from Marengo. The question is, shall the substitute of the gentleman from Dallas be laid upon the table.

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

The question then recurred upon the amendment offered by the gentleman from Marengo, and upon a vote being taken, the motion to table the amendment prevailed.

MR. REESE‑I desire to offer an amendment.

The Secretary read the amendment as follows:

"Insert after the word `libel,' in the tenth line, the words, ‘and the jurisdiction of such inferior court shall extend over and include all precincts next contiguous thereto."


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MR. REESE‑The purpose of this amendment is this: That this provides for the establishment of the court which, in the opinion of the Committee, will be a much better court than the courts at present organized under the Justice of the Peace system. The purpose is to get a man who knows something about law, and the character of the judge over this court, than are in the country beats. In every town of 2,500 inhabitants, it is the post office and place of business of a number of beats that are next contiguous to that town. It is the most convenient where litigants can try cases. In counties where there is a town of 2,500 inhabitants, all the lawyers live in those towns. In the event of having to obtain the services of a lawyer, it is much cheaper for litigants to obtain them by attending the court in the town than, to have to go out in the country. In my opinion this would establish a court in a town of 2,500 inhabitants, and it would be to the advantage of litigants in the adjacent beats where the towel was their headquarters, and would furnish those people with an intelligent class of officers. Another thing: It would give a man in a  beat who did not happen to enjoy the confidence and good will of the justice of the peace in his beat an opportunity to get a convenient and fair tribunal to try his case. I hope very much that this Convention will adopt that amendment. I think it will result in very great good and it will leave it to the Legislature.

MR. HOOD‑May I ask the gentleman a question?   What does your amendment propose to do with the justices of the peace in those contiguous  precincts?

MR. REESE– I had not gone that far. The amendment does not go so far as to abolish the justice of the peace in the beats where the courts were established.

MR. HOOD– What good will it do if you do not abolish the justice of the peace in those precincts?

MR. REESE‑It will do this much good: If a party had a case that he desired to bring before a party where the jurisdiction lies in one of the beats contiguous to the court, should he desire a fair and uncorrupted and intelligent judge, he would have a right to bring it in the inferior court. In other words, this amendment is to give this inferior court concurrent jurisdiction with the Justice of the Peace residing in that beat.

MR. deGRAFFENREID‑‑Is there anything in here to prohibit the General Assembly—

MR. ESPY‑I yielded to the gentleman from Etowah, Mr Hood. to ask a question. but I did not yield the floor.

MR. REESE– I  would like to make a parliamentary inquiry. I got the floor, and it has been taken away from me, but if anybody


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is deprived of the floor, I do not want to trespass further on his

time.

THE, PRESIDENT‑The gentleman from Dallas will be protected in his right to the floor.

MR. deGRAFFENREID‑Is there anything in this Section prohibiting the Legislature from conferring jurisdiction on inferior courts ?

MR. REESE‑I am inclined to think there is not. For the people in the Black Belt counties I think this would be a good amendment, and it does not deprive the Legislature.

MR. ESPY‑It is not the intent of the Committee to interfere with the Justice of the Peace in the rural districts more than absolutely necessary. The amendment of the gentleman from Dallas would virtually destroy the jurisdiction of Justices of the Peace in the rural districts. I move the previous question on the amendment and the Section.

MR. FITTS (Tuscaloosa)‑I have an amendment to offer.

MR. deGRAFFENREID‑I want to offer an amendment before the previous question is called.

MR. ESPY‑I will call for the previous question on the amendment only, then

A vote being taken, the previous question was ordered.

MR. WADDELL‑I have an amendment to offer.

The Clerk read the amendment as follows: Amend by adding the following at the end of the Section: Provided, that Justices of the Peace shall not have final jurisdiction in criminal cases."

THE PRESIDENT‑The question will be upon the amendment of the gentleman from Russell.

MR. FITTS‑I will ask the gentleman to yield for a moment.

MR. WADDELL‑I will yield for a moment.

MR. FITTS‑I just want to say that my amendment can be discussed at the same time with your amendment.

The Secretary read the amendment offered by Mr. Fitts as follows:

"Provided, that the inferior court shall be established at all places where there is a sorry lawyer who wants a job with a good salary."

MR. DUKE– I call for the reading of the amendment. We cannot hear in this part of the hall.


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The amendment was read again.

THE PRESIDENT– The Chair will rule the amendment out of order.

MR. BURNS‑I desire to offer an amendment.

THE PRESIDENT‑The Chair recognized the gentleman from Russell as entitled to the floor.

MR. WADDELL– It seems that this Committee has recognized the fact that there was a good deal of evil existing in the office of Justice of the Peace and they have attempted to correct that evil in the cities of the State, without giving any relief to that part of the State which needs it the most. In the rural districts of the State is where the evil exists in its greatest extent. I have known Justices of the peace to grant divorces. There are sections in this State where they have absolutely established a convict system, and run it. Under our law they are not allowed to sentence a prisoner for costs, but they go and make special arrangements with farmers whereby they take the prisoners and pay the costs and  work them as convicts on farms in the State.

A DELEGATE– Where do they do that?

MR. WADDELL– I have heard of several instances of that sort related in this Convention on this floor. One instance was in Tallapoosa County, and that is not a Black Belt county. I say tat the evil should be corrected, and that Justices of the Peace should be deprived of final criminal jurisdiction. They have not the power under law to sentence for costs, and they exercise improper jurisdiction in that direction. They deprive persons of the right granted to them under our Constitution of a fair and impartial trial. They have no trial. They take them up and try them for felony. In numbers of instances I have known this to be the case. Mr. President, I now move the previous question on my amendment.

MR. GREER (Calhoun)– I move to lay the amendment offered by the gentleman from Russell on the table.

A vote being taken the motion to table was adopted.

MR. deGRAFFENREID– I have an amendment.

The Secretary read the amendment as follows: “By striking out in lines two and five thereof the words ‘twenty-five hundred, and inserting in place therof the words ‘fifteen hundred.’”

THE PRESIDENT– The question will be upon the amendment of the gentleman from Hale.

MR. deGRAFFENREID– As far as I am personally concerned I have no interest in the amendment. I offer it in order


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that some towns that are situated near where I live may get the benefit of this provision in the Section. You take such towns as Uniontown in Perry County, where they have 1,500 inhabitants, if not more, Livingston in Sumter County. and Gainesville in Sumter. A great many of these counties would. I presume, get the benefit of this particular Section. I have been requested by a delegate who resides in one of those towns to introduce this amendment in order that his town at least might be able to get the benefit of it. I trust that the Convention will adopt this particular provision.

THE PRESIDENT‑The question is on the adoption of the amendment on the gentleman from Hale. Does the gentleman from Dallas (Mr. Burns) desire to offer his amendment?

The delegate from Dallas did not respond to the interrogation.

A vote being taken, a division was called for, and a further vote being taken, the amendment was adopted by a vote of 45 ayes to 27 noes.

MR. SAMFORD (Pike)‑I move the previous question upon the section.

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

The Secretary read Section 30 as follows:

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

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

MR. COLEMAN‑I believe that the section provides that he shall reside at the capital. I presume it means during his term of office, and cannot intend that he should reside there always. I move to amend by stating during his term of office.

MR. REESE‑I desire to ask the Chairman of the Committee a question. Is not this section almost a repetition of Section 3 of the Article on Executive Departments?

MR. SMITH‑I did not compare them. I think so. If there is any question about what it means, we have no objection to accepting the amendment offered. It is copy of the old Constitution.


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THE PRESIDENT–The question is on the amendment of the gentleman from Greene.

MR. HARRISON‑I desire to ask the Chairman of the Committee if that is not exactly the language of the old Constitution?

MR. SMITH– Yes, sir, and besides says he must be an officer of the State. He would not be an officer of the State after his term expires.

MR. COLEMAN‑I think we ought to correct the oversights of our predecessor's. It says after election. He does not go into office until November. Heretofore, he went into office in August. If it said he shall reside in Montgomery during his term of office that would cover everything.

The Secretary read the amendment offered by the gentleman from Greene, Mr. Coleman, as follows: "Amend the section alter the word 'seat' of government, the words 'during his term of office'”

A vote being taken the amendment was adopted.

MR. WALKER– I  would suggest that the amendment of the gentleman from Greene ought also to strike out the words "after his election" and I move that those words be stricken out, and that the words offered  the gentleman from Greene be substituted in their place.

THE PRESIDENT‑‑The amendment of the gentleman from Greene has been adopted. Does the gentleman otter another amendment

MR. WALKER‑Yes. sir, that the words be stricken out.

A vote being taken, the amendment was adopted and a further vote being taken the section as amended was adopted.

MR, SAMFORD (Pike)‑Just at this point I would like to introduce an amendment to come before Section 31. It comes in at that place, and it will not be objected to by the Committee, as I understand it, however if the Chair thinks better, I will keep it and offer it afterwards.

THE PRESIDENT‑The Committee on Harmony will probably place it. It has not been our custom to interrupt the consideration of these reports and add sections until the consideration of reports was completed.

MR. SAMFORD (Pike)‑Very well.

The Secretary read Section 31, as follows:

Section 31. The style of all process shall be, "The State of Alabama," and all prosecutions shall be carried on in the name


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CONSTITUTIONAL CONVENTION, 1901

and by the authority of. the same, and shall conclude, "Against the peace and dignity of the State."

MR. SMITH‑I move the adoption of that section.

A vote being taken the section was adopted.

MR. SAMFORD (Pike)‑I move to amend the Article by adding Section 32.

Secretary read Section 32 as follows : "Nothing in this Article shall be so construed as to affect the term of office of any officer now in office."

THE PRESIDENT‑The question is on the adoption of the amendment offered by the gentleman from Pike.

MR. SAMFORD (Pike)‑I do not desire to discuss it, but to call the attention of the Convention to the fact that there is no provision made in here with reference to the terms of some of the city judges throughout the State that have already been fixed by the legislature heretofore, and I move the adoption of that section.

MR. BURNS‑‑I have an amendment to the amendment.

The Clerk read the amendment as follows: "Amend by adding Section 32. No judicial officer shall be interested in the termination of any criminal cause which may be tried before it."

THE PRESIDENT‑The question is on the amendment.

MR. BURNS‑I thought, perhaps, the gentleman from Pike would accept that.  A blind man can see what that section or amendment means. There is a cry all over the State against justices of the peace, and their process and mode of enforcing the collection against the poor of the State. That word "fees" has done more harm than any other word in the English language. The very fact that the justice of the peace or any other officer is interested in the termination of a case before him to the amount of perhaps fifteen dollars would affect and does affect in proportion to three railroad passes upon any other class of people. Now twenty‑six years ago. on this same article, a justice of the peace from one of the black beats from this State rose from his seat and offered an amendment in the Constitutional Convention of 1875, when General Oates was chairman of the Judiciary Committee, and such men as Pugh and Hood were there, and it was accepted and placed in the Constitution and it is in this article today. Another justice of the peace, perhaps the same one, twenty‑six years afterwards, offers another amendment, and an amendment against which no man can rise and make a speech and tell the truth. not a man here but, what will say to himself in his own heart, no judicial officer should ever be interested in the termination of a criminal cause.


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OFFICIAL PROCEEDINGS

MR. REESE‑Will my colleague permit a question?

MR. BURNS‑Two of them.

MR. REESE‑I will ask my colleague if he does not think a judicial officer should he permitted to take an official interest in a question pending before him?

MR. BURNS‑No, sir, not any interest mixed with duty. His only interest in any cause should be to do his duty, and I doubt, gentlemen, whether any man can do his duty when there is a fee held out, of a free pass in his pocket.

MR. SAMFORD (Pike)‑Under the amendment offered by the gentleman from Dallas, while it has considerable merit, it is not germane to the section offered, and I therefore move to lay it upon the table to be taken up at a more appropriate time.

A vote being taken, the motion to table prevailed.

MR. SAMFORD (Pike)‑I move the adoption of the amendment.

MR. ASHCRAFT‑I have an amendment.

The Secretary read the amendment as follows: "All fees in excess of a salary to be fixed by law collected by the Clerk of the Supreme Court shall be by such court turned into the State treasury to the credit of the general fund of the State."

THE PRESIDENT– The question will be upon the adoption of the amendment offered by the gentleman from Lauderdale.

MR. ASHCRAFT– I have already expressed my views on the subject of his amendment. On yesterday, the question when it appeared before the Convention ,was involved with the idea of the election of the clerk by the people. The Convention decided that the people were incompetent to elect their clerk, and therefore they voted that measure down, but I feel sure that when we contemplate the spectacle of the clerk receiving such an exhorbitant salary in comparison with the judges of the court, that we cannot refuse to say that he ought to be limited to a reasonable salary. The Convention here this morning, a great many members of this Convention evinced great faith in the Legislature to do that which is right We are perfectly willing to trust the Legislature to say what is a just and reasonable compensation for the clerk of the Supreme Court, and I am utterly  at a loss to understand how any man who comes here representing the free people of Alabama—

MR. HEFLIN (Randolph)‑I rise to a point of order. Under the rules the time for adjournment has passed.

THE PRESIDENT– The point of order is sustained. The gentleman will conclude his remarks at the afternoon session.


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CONSTITUTIONAL  CONVENTION, 1901

Leaves of absence were granted as follows:

To Mr. Altman for today and tomorrow; to Mr. Lomax for today.

Thereupon the Convention adjourned.

___________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being eighty‑nine delegates present upon the call of the roll.

THE  PRESIDENT‑When the Convention adjourned in the morning we had under consideration the report of the Committee on Judiciary, consideration of an additional section proposed by the gentleman from Lauderdale. The gentleman from Lauderdale had the floor.

MR. ASHCRAFT‑Mr. President and gentlemen of the Convention: I was about to say as we adjourned for dinner, that "we sat here in a representative capacity, and that upon its is laid the responsibility to see that the administration of public office is administered in the wisest and most economical way. If we should fail to put this provision in the Constitution of Alabama, when we go back to our people, and those who oppose our work ask why was it you were unwilling to reduce expenses, why were you unwilling to place the clerk of the Supreme Court upon a salary when the Governor, the Secretary of State and other State officers have been placed upon salaries?   Solicitors have been placed upon salaries. At one time the Solicitors of this State were on fees, but in the progress of business the fees multiplied and became of such magnitude that they carried to the Solicitors unreasonable compensation for their work. The result was, the Solicitors were put upon salaries, and the excess fees turned into the Treasury. We should pursue the same wise and economical policy in this matter that we do in our private affair.  Why not transact the business of the State in the same economical and just plan that we transact our own business?  We do not ask that the clerk work on a low salary; we do not ask anything of the kind. We ask that he be reasonably compensated, and whatever is in excess of that amount taken from the people shall be returned to the people in the best method we have of returning it to them. The attempt to reduce fees will be in vain until the incentive for lobbying has been removed from behind the effort.  Let us put the clerk upon a salary and then there will be nobody having a personal interest in keeping up exhorbitant fees, and affairs can be placed upon an economical basis. It is not proposed to interfere with the compensation of the present incumbent, and I do not believe that the people of the State will justify us when we say in answer to their question:  Why did you not reduce the


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compensation of the clerk of the Supreme Court?  I do not believe they will justify us if we reply that the present incumbent is a man of extraordinary high character; that he is an excellent man and that he will probably occupy the place again.  I do not believe that is a sufficient justification for continuing to pay an official an exhorbitant compensation in fees, and that it is exhorbitant we all know, because if it were not exhorbitant nobody would hesitate to put him on a fair basis; nobody would object to that proposition, so I can see no good reason except our personal regard for the present incumbent and the probability that he will occupy the place again, in continuing the present plan.

MR. SMITH (Mobile)– Mr. President, in the consideration of this question in the committee. I took absolutely no part whatever in the discussion, nor have I taken any part in the discussion of it here before the Convention. It was my purpose to allow the Convention to pass upon this question as it might see proper without any discussion whatever by myself as the chairman of the committee, but the gentlemen who have seen fit to attack the report of the majority, have taken the position here, that they, and they alone, possess the integrity and the virtue that is among the delegates in this Convention, and that those who thought differently from them were actuated by some improper motive. They have spoken of it here as the result of lobbying and have referred to it time and again in that way. Not only have they practically denounced the balance of the Convention as not sincere in this matter, but they have charged that it was absolutely impossible ever to obtain justice or right from the Legislature of this State, because they, too, were subject to the influence of lobbying. Now, Mr. President, it seems to me that that is assuming a great deal more virtue than these gentlemen have, a very great deal more, and it seems to me that it is taking the position that the balance of these delegates are actuated by motives which they cannot be justly charged with.

So far as I am concerned, it seems to be that a fee basis, except where the man who does the work has the opportunity of manufacturing business, is the proper basis. If a man does a great deal of work, then he should rec ive a great deal of pay, and if he does very little work, then he should receive very little  pay.  In the case of Solicitors, there is an evil to be guarded against.  The Solicitor may be subject to temptation to prosecute people whom he ought not to prosecute, for the purpose of enhancing his compensation. No such temptation can obtain with the clerk of the Supreme Court. He has no control whatever over the number of cases that come to the court, and I think, therefore, he stands on a different basis, and the question should be controlled by different principles than those applicant to the Solicitor. I think the proper and just way of compensating is by fee. If the fees


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are too high, then they should be reduced, and the fact that they are too high is no reason whatever why the basis of compensation should be different. What is the argument that he should not be paid by fees? The argument is that every man save these speakers are dishonest and that therefore it is not practicable.  It strikes at the very life of our form of government, by saying that we cannot trust the legislature because the last one of the legislators are dishonest. I say it is no argument; it is a vicious assault on the forms of civilized government and we cannot act upon it. Now, then, something has been said about the magnitude of these fees. These gentlemen have said that he should not receive several times the amount that our Judges of the Supreme Court receive. Have they here shown or been able to state upon their own information that these clerks receive such an amount? Not at all. But they have said that these people need the influence of those lobbying and that those who are representing this Clerk, if they expected to be believed upon the floor of this Convention ought to have brought figures to these gentlemen. I feel under no obligation to present my facts and information to other delegates simply because they disagree with me. Why don’t they go to the records themselves. The records are open to the gentlemen on the other side of this question as well as ourselves. They are public records and not private. Let them go to those records and bring these figures here and not stand up and call on us to do it.

MR. ROGERS ( Sumter)– Why have you never given us those figures?

MR. SMITH‑I did not feel myself under any obligation to do so.

MR. ROGERS‑You question it because you have the figures.

MR. SMITH‑I question it because you have not produced them.  The records are open to you and if you want the labor done, go do it yourself. Don't call upon me to do it. I am a delegate here as well as yourself.

MR. ROGERS‑We want the result of your investigation.

MR. SMITH— I know you do and I want the result of yours. I am at liberty to doubt the accuracy of your statements quite as freely as you are mine.

I am informed, and I believe reliably that there have been about four hundred and seventy cases come to this court yearly ; that of those there are as many as seventy that fall within the non‑fee paying cases. misdemeanor cases, and cases of  felonies, where there are no affirmancies, and cases of insolvent parties.  If that information is right, there would be three hundred cases left, and the ordinary fee bill, as printed, and that any man can look at, produces to the clerk, $11.05 under ordinary circumstances—


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$11.05 when an sciara facias is issued or execution, and there are one or two exceptional instances where additions are made. Those additions may run it up to a little over $12.   I am told that $12 is a fair or large average on tile cases.   If that be correct, them there is $3,600 or $4,000.  Then in addition to that there are copies of opinions.  That may amount to $200 or $300, and then from that must be deducted an amount for an employee in the office. I have understood that that made a net result of $3,000. It may be a little more, it may be a little less. So it seems to me that the statement made here that the clerk should not receive three times as much as the Justice of the Supreme Court is a reckless statement. So far as my information is concerned, it is not justified by any facts, but it does not seem to me that is the question.  The question is whether paying a man according to the amount of work he does is a just method of compensating him. If the amount paid for that work is too large, it seems to, me that the reduction of it is within the province of the legislature and not within our province, and therefore the majority report is correct, and I move to lay the amendment upon the table.

Upon a vote being taken the motion to table the amendment

prevailed.

MR. SAMFORD (Pike)‑I move that the report of the Committee be engrossed and ordered to the third reading.

MR. OATES‑‑I rise for the purpose of offering an additional section. I think there is merit in it.

The section was read as follows:

Additional section giving the power to the legislature to abolish courts.

Amend Article on the Judiciary Department by adding thereto the following section:

"The legislature shall have the power to abolish any court except the Supreme Court and the Probate Court whenever necessary from any cause, or its jurisdiction and functions have been conferred upon some other court."

MR. OATES‑.All that I have to say about that is that it offered to make the power of the legislature clear wherever it becomes necessary. I know that in the past there has been litigation springing up in consequence of the legislature abolishing courts, as to whether or not they had the power. One of the members of this Committee, the delegate front Mobile, Mr. Pillans, had drawn hurriedly two proposals to cover this ground and when he was leaving he handed them to me and asked if I would not draft one and present it. I have done the best I could on it, and think it is the proper thing to be done.


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Upon a vote being taken a division was called for, and the amendment was adopted by a vote of 54 ayes to 37 noes.

MR. REESE‑I desire to offer an additional section.

"Sec. 34. The Legislature may by law change the mode of selecting the solicitor of any county, or may provide for the appointment of such officer."

MR. REESE‑Mr. President, the amendment is offered to cover contingencies that may arise, in fact the local conditions of the various counties of this State are very much varied. The plan of selection by the people will result in the election of good men in some of the counties and it will be expedient in other counties to select the best men by that method. There are various reasons, unnecessary to mention, but which suggest themselves to the members of this Convention why this should be done.  As far as I am concerned, one reason that has guided me in  the support of this amendment is that the party which now has charge of the affairs of this State is the party that has furnished the best, most honest and trustworthy officers party the State has ever had. I am afraid to trust the Republican party of this State to furnish officers for the State of Alabama, and if I were a member of the Legislature, I would vote for a law that would permit the Legislature to select prosecuting officers in counties where otherwise it would be put in the hands of negroes and the opponents of the party which has given such good government to the people of Alabama.  Speaking candidly, that is one of the reasons why I would accept this amendment. But eliminating any partisan motives at all I have grave doubts as to whether this mode of electing solicitors would result in good in my county. It makes the solicitor dependent for the office upon the very melt whom he is expected to turn around and prosecute. We know in these cities there are men and influential citizens and politicians not interested in the enforcement of law and in the prosecution of criminal cases and Mr. President, that class of citizens in a community exercise a very large and a very wide influence and if they were to go out to get the office of solicitor they could get it. It has been suggested to me by a delegate of this Convention that the law and order crowd could control this matter. Mr. President, whether or not the law and order crowd has ever gone out against the other crowd, the law and order crowd generally got wiped up and I do not believe he ought to put in any iron clad ruling in this that plight confront the Legislature in the future and prevent their from rectifying a trouble that may ensue from the provision agreed upon by this Convention, and I hope that this committee, Mr. President, to aid in morality has been allowing this committee in allowing home rule, in allowing people of different communities to adjust these provisions to their particular and local needs and I think this is another


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step in that direction and I hope the delegates in this hall will vote in favor of the adoption of the amendment.

MR. ASHCRAFT‑I would like to have the amendment read.

The Secretary again read the amendment.

MR. SMITH (Mobile)‑I don't know that I am wedded to either of the methods of electing solicitors but I would regret very much to see the report of the committee or this article declare that it should be both ways. I should regret to see the article prescribe the Constitutional method and at the same time prescribe that the Legislature can repeal that portion of the Constitution whenever it thought best. I am opposed to the proposition of the gentleman more on that account than I am to the Legislature determining the matter in  the first instance and until the action of the Convention is reconsidered as to this matter, I do not think that this ordinance ought to be adopted, and I therefore move to lay it on the table.

A vote being taken the motion to table prevailed.

MR. MULKEY‑I have an additional section.

The Secretary read the amendment as follows:

“Amendment to the article on Judiciary Department by adding to the said article Section 34  as follows: ‘Section 34.   Any justice of the peace or notary public exercising the powers and duties of the justice of the peace, who for a consideration or reward compromises or consents to a compromise of any criminal case pending in this court shall be guilty of a misdemeanor and shall also be liable therefore to impeachment under the provisions of this article.’”

MR. MULKEY– Mr. President, it has been my observation that officers compromise cases for a very small reward and it ought to be prohibited and for that purpose I offer the amendment and move its adoption.

MR. SMITH (Mobile)‑I am heartily in favor of the law the gentleman advocates. I think it a most excellent measure, but I do not think it has anything to do with the Constitution. It is a legislative enactment pure and simple and it already exits in our statutory law, and I therefore move to lay the section on the table.

Upon a vote being taken the motion to table prevailed.

MR. OATES‑‑I desire to offer an additional section.

The Secretary read the section as follows: “It shall be the duty of the Legislature to provide for the appointment and compensation of a competent number of court stenographers who shall act upon oath and whose duty it shall be to take stenographically and typewrite all evidence in criminal cases that may be prescribed by law.


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MR. OATES‑I am aware that this is new in this State and I think to that extent we are in our judicial proceedings behind the age.In a majority of the States there are court stenographers provided for and every lawyer who has had experience in criminal practice knows that it is a measure really of economy. It is a saving in time and it prevents the trouble of disputation as to what witnesses have testified when an argument is going on before a jury and often prevents disputation and trouble arising by a difference in recollection of the presiding judge and the lawyers engaged in the case and sometimes absolutely gives rise to hard feelings and trouble in establishing bills of exception and for the Supreme Court. It is a saving in time because when the evidence of the witnesses is taken down at once by a competent stenographer there is no delay, no dispute, no misunderstanding about what these witnesses swore. Now, sir, it does not provide, this amendment does not, for court stenographers in civil causes for this reason:  In most of the States where I have noticed the system it is only provided by law that the court stenographer shall take down the evidence in a criminal case. Where there is a court stenographer, however, the Legislature prescribes a comparatively low rate of charges, which he may be entitled to wherever the parties in the civil cause see proper to retain him to take the evidence therein. So there is no reason for putting that in the Constitution. I offer this merely to require the Legislature to make it their duty to provide for the appointment and compensation of a reasonable number of competent court stenographers who shall act under oath in the performance of the duty of taking down testimony in criminal cases, and stop right there. Of course, when a man is given the position as court stenographer, he does not think of receiving such compensation as he does for contract work, not at all. It is a great deal less. I noticed the workings of this and inquired into it particularly in California where I happen to have a brother who is a distinguished member of the bar, and he furnished me great facilities for carefully looking into their system and their workings of court stenographers. They are worth a great deal less because in the aggregate it is a good thing for the stenographer and it is really an economy of time and adds much to the accuracy of proceedings and as I have said before as to civil causes, where parties agree, he, still acting under oath, can take down testimony and greatly facilitate them, but it is improper in my opinion to put a clause like that in the Constitution, and this provides as the Legislature may prescribe, leaving it to them to say when this goes into operation and how to pass a law describing the compensation and the manner of appointment, and their duties. I think it is a good thing for the profession. Now, Mr. President. I want to say to the delegates that I have no personal interest in this. I have been a member of the bar forty‑three years off and on in active practice a large part of the time, and I and in the practice now, but only in special


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cases. I do not suppose that I would ever receive any benefit from this, and if I were to it would not deter me from offering it. I offer it because I think it a good thing for the lawyer, for the court and for the people of the State. It is really in the interest of economy although it appears to be an expenditure, and will facilitate the prosecution of business. Believing this, I prepared it and offer it to this Convention, and I hope that they will adopt it.

MR. SMITH (Mobile)– I appreciate very thoroughly the benefit the gentleman speaks of which is received both by the court and by the bar from the use of a stenographer. In our county there has been an official court stenographer for the last ten years under the enactment of the State of Alabama under the Constitution of 1875. In the State of Mississippi where I also practice there is an official court stenographer which stenographer also acts under an act of the General Assembly of the State of Mississippi, and while I would not be without a court stenographer, and while it is my habit when I leave any place where there is an official stenographer, I carry a court stenographer with me. I have not tried a case for nearly fifteen years without one still it does not occur to me that because of the benefits we should enact these acts. It seems to me to be purely a legislative matter which it has not only power to exercise, but which it has heretofore exercised and should not therefore be in our Constitution. Therefore I move to lay the amendment upon the table.

Upon a vote being taken the motion to table prevailed.

A division was called for.

MR. SAMFORD (Pike)‑I rise to a point of order. The vote was announced before a division was called for.

THE PRESIDENT‑Yes, that is correct.  The Chair waited to see if a division would be called for, and the Chair did not hear any request for a division and the Chair announced the result.

MR. OATES‑‑I call for it as soon as I thought I ought, however, I am not wedded to it.

THE PRESIDENT– The Chair regrets very much that the gentleman was cut off from a motion for a division.

MR. OATES‑If the Convention is satisfied with the result, I am.

MR. WILLIAMS (Elmore)‑I have an amendment to offer.

The Secretary read the amendment as follows : “Amend Section 35 as follows : The compensation of the Judges of the Supreme Court shall be $5,000 per annum.  Judges of the Circuit Court and Chancellors shall be $3,000 per annum.’”


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MR. WILLIAMS (Elmore)‑I am aware of the fact that this amendment is similar in nature to the amendment offered by some delegate to this Convention to the report of the Committee on Legislative Department, which report was not adopted, but, Mr. President and gentlemen of the Convention, I think the arguments adduced and proposed in favor of the increase of the Governor's salary, by the gentlemen who supported that part of the proposition, was in the report submitted by the Committee. The Judges of the Supreme Court have a great deal of work to do, and in order to have the very best men of the State, the most conscientious man, men who are best fitted for that position. They ought to be well paid. Besides, there is a great deal of work, more arduous labor to he performed by the Judges of the Supreme Court than to be performed by the Governor of Alabama. As to the Judges of the Circuit Court, their duties are quite arduous, and I think it is nothing but fair and just that their salaries should be increased. You take a good man, a man who is a good lawyer, and who would make a good Circuit Judge; he could not afford to lay down a practice to accept an office paying twenty‑two hundred and fifty or twenty‑five hundred‑dollars which they now receive. It may be true that it is not proper to offer this amendment at this time; it may be, like it was in offering the amendment to fix the salary of the Governor, but whether it is or not this amendment, if not adopted here, should take the same course that the resolution took offering to increase the salary of the Governor.

MR. WALKER‑The Convention. I believe, has already adopted the policy of not fixing or increasing salaries in this Constitution, being of the opinion that we were not sent here for that purpose, to leave it to the Legislature, and believing that the Convention has made up its mind upon this subject. I move that the amendment offered by the gentleman from Elmore be laid upon the table.

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

MR. OATES‑I desire to offer one more section.

The Secretary read the following section:

"The Grand Jury authorized by law in any one of the courts in this State shall consist of not less than eighteen qualified persons, ten of whom shall concur in order to find a bill of indictment, and in cases of lynching and felonies which, upon conviction may be punished capitally, the first Grand Jury sitting within the jurisdiction after the commission of such offense fails to find a bill of indictment, the Solicitor of the State shall enclose the substance of all the evidence in such case which was before the grand jury to the Judge presiding and holding such court; thereupon if he be of the opinion that an indictment should have been found and returned into court by such court and jury, he shall enter an order upon the


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trial docket of such court directing the Solicitor to proceed against the suspected persons by information as may be prescribed by law.”

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

MR. OATES‑I overheard the gentleman on my left remark, "Lay it on the table." I suppose that will be the effect of it. (Laughter). Notwithstanding it will not deter me from performing my duty. On a former occasion I offered something similar, but not this proposition, and on that occasion I made some remarks as to the present state of affairs in Alabama‑as to murders and capital felonies committed which go unpunished. I have heard from reliable authority in many of the counties of the State where grand juries as at present constituted, failed to find true bills when the evidence certainly warranted it and called for such action. Now, sir, the Legislature, I admit, could remedy what is aimed at in the first part of this proposition. The Legislature could say by law that a grand jury shall consist of not less than eighteen qualified persons, ten of whom only shall be required to find a bill. They can do that, but they could not prescribe by law the remedy in the latter part of this proposition without constitutional authority.  Under the present law and practice, a grand jury frequently consists of but fifteen members, and in such case parties who are sufficiently artful and employ the necessary amount of means, can not always, but sometimes, tamper with, and control enough, say four members of that grand jury, and no bill can be found because, under the law it requires twelve to concur, and in that way guilty parties do escape justice– not always, but only, I am glad to say, in exceptional cases ; but even in those cases should it be allowed? Ought not the Constitution‑makers and lawmakers provide against any such contingencies, and make the administration of the law against offenders certain, as certain as it is possible for human invention to reach? I will not undertake, because it would take me much longer than the time that I have in which to state it  to recount the instances coming within my knowledge, and every gentleman here is acquainted with the fact that we have lynchings and when and where was a man in the State ever indicted for a lynching? Never, that I have heard of, except in one case, and that was in Washington County, there they did get three or four and put them in the penitentiary. The gentleman from Pike suggests that it was nine; I had not remembered the number, but that is an exceptional case. Now, when they have such influence upon the brand juries as not to find any bill of indictment, why not provide some way to get at it. Now, I have studied the question and this amendment presents the best way I can think of. If any delegate can provide any better way, I would like to see it and most anxious to support it. It is an absolute


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disgrace to our State, the number of murders that are annually committed within it, and it has gotten so, men escape so frequently for this offense, that it seems to justify good men, peaceable citizens, to go armed a great part of their time, as the law does not sufficiently protect their lives they go with pistols to protect themselves. Now, sir, we want to stop this thing. I provide in the amendment offered that wherever at the first term of a grand jury within any‑ jurisdiction where such a felony has been committed, and the grand jury fails to return a bill of indictment that the Solicitor shall disclose to the presiding judge the evidence that was before the grand jury, and then if that judge‑and a judge is presumed to be a just man, and it is his duty to enforce, the law‑if in his opinion he believes that a bill should have been found and that the suspected party should be prosecuted, to order the solicitor to proceed against the suspected party. It is true it is somewhat in the nature of a preliminary proceeding and a final trial combined, but how is he to get at it? It has become so fashionable to hide out in secrecy‑ these abominable crimes committed that you must get at it in some way, and this is the best way I have been able to think of. Now, gentlemen, not all, but the major part of the murderers that go unwhipped of justice is the murdering of negroes by white men, sometimes it is the case of the murder of a white man and I can give you instances, but take the case of the murder of negroes, which is of most frequent occurrence, what is our duty? Does the negro leave practically any voice in the making of the laws or in the execution of the laws? No, none. If any it is a still small voice that is not potent. I know none of the counties that have negroes to sit upon the jury. He is helpless, he is here among us, he is a laborer subordinate to the white man, but when he is the subordinate, when he has no voice in the making of the law and none in the execution of the law, is it not the bounden duty, of the superior race, the governing race, to protect him by law?

THE PRESIDENT‑The time of the gentleman from Montgomery has expired.

MR. SMITH (Mobile)‑I regret very much to have to object to these things going into this Article, especially when the motive and purpose is high and one that I entirely concur in. and I also regret very much that my friend from Montgomery dislikes the processes that I have to go through in order to get rid of it, but really I think this is legislative, not a matter that has been committed to our discretion or out charge, and despite my regrets I move to lay it upon the table.

MR. OATES‑Oh, well, as to that, I am used to it, fortunately.


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Upon a vote being taken a division was called for and a further vote being taken there were ayes 62, noes 29, and the motion to table prevailed

MR. BURNS‑‑I have an amendment.

The Secretary read the amendment as follows:

"Sec. 35. In the trial of all cases before a judicial officer, the compensation or the trial judge or justice shall be the same whether or not the defendant be convicted or discharged."

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

MR. BURNS‑I will not detain or take up any time in discussing that. Those words and lines speak for themselves. They appeal to every honest man in this Convention.

MR. WADDELL‑Will the gentleman submit to an interruption.

MR. BURNS‑Certainly.

MR. WADDELL– How do you expect to collect that?

MR. BURNS‑How do you expect to collect the salary of any judge, circuit judge, or anybody else? The Legislature will provide for the collection of it. The point I am after is that no judge or Justice of the Peace shall be interested in the determination of a case which is on trial before him. There is complaint all over the State of Alabama against Justices of the Peace. Why is it? It is because when they go out, or their strikers go out, or their constables go out and bring in a trifling negro or low down white man, their costs depend upon a conviction. If they convict him and fine him 1 cent, if a negro, some man will come along and pay the 1 cent and the costs and take that negro along to his plantation or wherever else he wants him to go. I hope I have impressed this point upon every member of this Convention. It is for you to say whether you will pass this or to make one great grand struggle upon the motion of some grand attorney and carry it out and push it along the rugged road to the table.

THE PRESIDENT‑The question is upon the amendment offered by the gentleman from Dallas.

MR. SMITH (Mobile)‑I move to lay that amendment on the table.

Upon a vote being taken the President declared the ayes seemed to have it.

A division was called for.

MR. BURNS‑I withdraw the demand for a division.


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MR. WILSON (Clarke)‑I wish to offer an amendment.

The Secretary read the amendment as follows:

“It shall be the duty of the Legislature to provide for taking down and preserving verbatim reports of the evidence in criminal and civil cases.”

THE PRESIDENT‑The question is upon the amendment offered by the delegate from Clarke.

MR. WILSON (Clarke)‑I desire to offer this amendment. I  was not in favor of the amendment offered by the gentleman from Montgomery, because I did not think it went far enough. I am not in favor of taking down the evidence in criminal cases alone, because I am not much interested in those cases, never deal in them, but I have seen the urgent necessity for some provision for all official stenographic reporter. It is seldom that you take an appeal to the Supreme Court that you do not have to dispute with the judges as to what ought to go in your bill of exceptions, or with the fellow on the other side, that you do not have to either have a fuss with him about what goes into it. Or permit something to go into it that ought not to be in there. I believe there are many cases that go to the Supreme Court in which the record shows that there was all exception or ground for objection to the evidence or something else there interposed, when, as a matter of fact there was no such thing. The bill of exceptions, as written in the records, as a matter of fact, is not true.

MR. REESE– I will ask the gentleman if it is not the poor man who cannot afford to employ a stenographer who always gets the worst of that?

MR. WILSON‑Yes, I believe it is, because the corporations and persons who are represented by counsel such as the distinguished gentleman from Mobile, the Chairman of the Judiciary Committee  who always takes a competent stenographer with him to report the trial, are usually persons able to" afford to take stenographers along, and it is the man whose home is in litigation, and it is all that he has, is not able to send and get a stenographer to report the trial, and he suffers because there is not an official stenographer there to take down the testimony.

MR. BOONE– Is it not the law that the Constitution is not a granting power?

MR. WILSON‑Certainly.

MR. BOONE‑And unless prohibited the legislature has the power?

MR. WILSON‑Certainly.


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MR. BOONE– Any inhibition in this?

MR. WILSON– Not a particle, but, Mr. President, there is not an official stenographer in the first circuit and never has been, and I am afraid there will never be, and that is why I want it put in here. There are various provisions in the Constitution simply saying that things shall be done, in here for instance says establish a judge of probate in every county. Who can deny that they could be in there according to the logic of the gentleman from Mobile. Strike it out, and the same with circuit courts and inferior courts. It is not only to have things to go into the Constitution what the legislature should not do, but general principles which the legislature should do should go in there to require them to do it. I believe this is one of them. It is not the legislature, it is simply the principle.   It does not say how many stenographers, or what stenographers, or what they should be paid, or how selected, or anything of that kind– there are no legislative details but simply says the legislature shall provide the method to take down a verbatim report of the evidence, and in my opinion there is nothing needed more to protect persons who are unfortunate enough to get into the courts in this State than a provision of that kind.

MR. DUKE– I am heartily in favor of this section. It strikes  me, Mr. President and gentlemen, that there are very few more important measures tan this would be. Gentlemen who have facilities and have the use of these stenographers, know something about the benefits there are in having court stenographers and it seems to me that they ought to be willing to vote for court stenographers in other portions of the country where they have not got them. We are met, Mr. President, with that same old cry, when gentlemen have no other good reason for opposing it, that it is legislative. Well, it may be legislative but it strikes me that it is no more legislative than it is to say that there shall be a justice of the peace court in a beat in the State of Alabama, two justices of the peace and one notary public– it is no more legislative than that. It is no more legislative than the establishment of any of the rest of these offices that we have established.  Now, isn’t a court stenographer a good thing for the poor people? It strikes me that every lawyer ought to see this. Every lawyer who has  cases go to the Supreme Court realize the necessity of having the proceedings taken down. Take a case tried during two or three days of court. When it is ended and court adjourns, or before court adjourns, usually done before court adjourns, the lawyer proceeds to get up his bill of exceptions. Do you expect him to remember all the points that were made, and all the exceptions taken, and very frequently it is necessary for him to recollect all the testimony in the case.


3615

CONSTITUTIONAL CONVENTION,  1901

MR. OATES– Isn't it a fact that this State is approaching one hundred years old, that there never has been a court stenographer except in Mobile, and that by virtue of a special act?

MR. DUKE‑Yes, and I am informed one also in the Fourth district. Now, after that case is finished and the lawyer has prepared his bill of exceptions, recollecting as best he could, and he tries to recall everything that has happened in the case, and has prepared his bill of exceptions, what does he do? He takes it to the Judge of the Court trying the case, and the Judge of the Court usually turns that over to the lawyer on the other side, and the lawyer on the other side recollects it just exactly opposite to what the lawyer taking the bill of exceptions recollects, and it goes to the Judge to decide, and the Judge usually sees it somewhat different from the man taking the bill of exceptions, and so it goes to the Supreme Court and very frequently the appellant has not a fair trial before that tribunal. These are facts and every lawyer here who practices in the Supreme Court knows it. Then, why not establish court stenographers in Alabama, and why not let the Constitutional Convention do it? Simply because the legislature can do it is no reason why the Constitutional Convention should not do it. If that he a sufficient reason then there are thousands of things put in this Constitution that ought to be stricken out.  It is an important matter, and it is a matter that ought to be placed in this Constitution. I cannot see why it should not be done. The expense will not be so great. In our sister State of Georgia they have court stenographers, and I am informed that the expense is not great and they are well pleased with them and would not give them up. I had a conversation not two weeks ago with a distinguished Superior Court Judge in that State and he told me that they could not get along without court stenographers in Georgia. I am informed that in our sister State of Mississippi they have court stenographers and they could not get along without them. This is an age of advancement. Alabama is taking her place among the most advanced States in the Union, then why should we not keep pace in the march of progress in the judiciary as well as in the other departments of State?

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

Upon a vote being taken a division was called for and a further vote being taken there were ayes 46, noes 40, and the motion to table was lost.

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

MR. PETTUS– Upon that I call for the ayes and noes.

The call for the ayes and noes was sustained.


3616

OFFICIAL PROCEEDINGS

MR. COLEMAN (Greene)‑The question of inquiry. Does that say all courts, justice of the peace and all?

MR. WILSON (Clarke)‑The Legislature has the right to say in what courts it shall be. To avoid difficulty I will ask unanimous consent to amend.

MR. SMITH (Mobile)‑I object.

THE PRESIDENT‑The previous question had been moved but not ordered.

MR. deGRAFFENREID ‑ I withdraw the demand for the previous question for the purpose of permitting the gentleman to amend and be heard.

MR. WILSON‑I ask unanimous consent to limit it to courts of record.

MR. SMITH‑I object.

MR. WILSON‑I move to amend the amendment by inserting the words "in courts of record."

THE  PRESIDENT ‑ The gentleman moves to amend by adding the words "in courts of record."

MR. COLEMAN‑I would like to hear it read as amended.

The Secretary read the amendment as follows:

"It shalt be the duty of the Legislature to provide for taking down and preserving verbatim reports of the evidence in criminal and civil cases in courts of record."

MR. COLEMAN‑That includes of course probate courts.

MR. WATTS‑Includes the Supreme Court.

MR. COLEMAN‑I do not remember whether the Commissioners' Court is made a court of record or not. The amendment as I stated just now, includes all courts of record. Commissioners' Court and all their proceedings, Probate Courts and all their proceedings, but whether it would apply to the Supreme Court or not is a question of doubt.

THE PRESIDENT‑The Secretary will read the amendment to the amendment.

The Secretary read as follows:

"Amend by adding at the end thereof in Circuit Courts or courts of like jurisdiction.

MR. COLEMAN ‑ When was that amendment offered. That has not been adopted.  There is nothing of the kind been proposed to this Convention.


3617

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑The gentleman from Clarke proposed his amendment verbally, and the Chair requested him to reduce it to writing, and that is the amendment offered to the Convention.

MR. COLEMAN‑That is not the amendment offered to the Convention. I do not know that a member can do that. The gentleman did not have the floor to offer it, and there is no such amendment before this Convention. I propose to make a few remarks, however, upon the merits of the question. Not acceding to the proposition that that amendment is before the Convention. There is but one and that is "all courts of record." After that time I have had the floor and no member has had an opportunity to offer an amendment. But upon the merits of this case. Who is it to come out of every litigant or is it to come out of the State? You say that s left to the Legislature. If the Legislature is to provide for that, why not let the Legislature provide also as to when and where a stenographer shall be appointed. Now just consider for a moment the breadth and extent of that proposition. Wherever there is a court in this State, City, Circuit or even the Chancery Court. If there is testimony taken there shall be a stenographer, one for every Circuit Court, one for every City Court, one for all these courts that you have provided for in your Constitution, inferior courts. You will burden the State with seventy five or one hundred additional officers and I am told that there would be six stenographers in Birmingham, they have that many courts going on at the same time.

MR. OATES‑I will ask the delegate from Greene if it provides there at all for the appointment of a single stenographer? It provides for the evidence being taken down.

MR. COLEMAN‑Why do you want a stenographer unless you take it down just as it is, and how can you take it down unless he is there at every trial?

MR. OATES‑It don't provide for any stenographer at all.

MR. COLEMAN‑The gentleman says it don't provide for a stenographer at all. I don't care what you name him, there has got to be somebody to take it all down. We have got to go slow in these matters. If it is to come out of the litigants, why, then, every trial that is had one party or the other will have imposed upon him additional costs. You may provide for stenographers in cities or towns of wealth and large litigation, but we are here to protect people of all classes, in all communities, the country courts, the farmer and others, and in the few instances where wrong is done by reason of not having a stenographer, will be nothing in comparison with the wrong imposed upon these parties. Something has been said about the difficulty of getting bills of exception. As far as that is concerned, it is a reflection upon your judges who try cases, but there is ample provision in this State


3618

OFFICIAL PROCEEDINGS

for establishing a bill of exceptions, and there is no lawyer here who will say that he event to the Supreme Court to establish a bill of exceptions and was refused when he has had the evidence to establish his bill. Time and again it has been done.

MR. PITTS (Dallas)‑Isn't that rather expensive, establishing a bill of exceptions?

MR. COLEMAN‑I don't know, not nearly so much so as a stenographer would be, and if so, it is upon the litigant and not upon all the people, If there is any particular expense about it I don't know. He takes his testimony, if it is not agreed upon by the opposite side, and the parties cannot reconcile themselves, all he has to do is to prepare his testimony as in any either case.

MR. WATTS‑What would be the probable cost of these stenographers‑‑about fifteen hundred or two thousand dollars?

MR. COLEMAN‑‑I have no idea.

MR. WATTS‑Don't they charge $7.50 a day, at least?

MR. SMITH (Mobile)‑Ten dollars a day while engaged in a trial.

MR. COLEMAN‑Seventy‑five officers at ten dollars per day when at work. These are questions upon the merits and I move to lay the amendment upon the table.

MR. HEFLIN (Chambers)‑I make the point of order that the gentleman from Greene was arguing that the amendment of the gentleman from Clarke is not before the Convention; therefore, the other amendment stands as it was. The other was to table, and the Convention declined to table.

THE PRESIDENT‑What was the motion of the gentleman from Greene?

MR. COLEMAN‑To lay upon the table. If that is not in order, I move the previous question and call for the ayes and noes.

MR. WILSON‑Before the vote is put on that, to get it before the Convention, I ask leave to withdraw the verbal amendment and substitute the amendment which I set out in writing.

THE PRESIDENT‑The gentleman from Clarke asks leave to withdraw the first amendment and substitute the second.

MR. COLEMAN‑I have not objection: I am willing to meet the question upon its merits. I move the previous question and call for the ayes and noes upon that.

THE PRESIDENT‑There is no objection; the gentleman will substitute the amendment and the clerk will read the amendment as offered.


3619

CONSTITUTIONAL CONVENTION, 1901

The Secretary read the amendment as follows:

"It shall be the duty of the Legislature to provide for the taking down and preserving verbatim reports of the evidence in criminal and civil cases in Circuit Court and courts of like jurisdiction."

MR. COLEMAN (Greene)‑I now renew my motion to lay the amendment on the table and call for the ayes and noes.

The call was sustained

MR. WATTS‑That includes the whole amendment, doesn't it?

THE PRESIDENT‑It includes the last amendment offered. There is only one amendment offered. The gentleman has withdrawn the other amendment, as the Chair understands.

MR. PETTUS‑I would like to amend the motion by including the substitute if the second is amended.

THE PRESIDENT‑There is no section, simply an additional section offered by the gentleman from Clarke.

MR. WILSON‑I withdraw the verbal amendment and offered the amendment which is in writing.

THE PRESIDENT ‑ Does the Chair understand that the gentleman from Clarke asks unanimous consent to incorporate the last amendment that he offered in the first?

MR. WILSON– Yes, sir.

MR. SAMFORD (Pike)‑I object to that.

MR. COLEMAN‑What was the original?

MR. WILSON‑I offered that awhile ago as an amendment. I first offered that the amendment be amended so as to add the words "courts of record." Some one objected to that, and I subsequently sent up an amendment in writing to add the words "in Circuit Courts and courts of like jurisdiction. That was the pending question, and I then asked leave to withdraw the verbal amendment which I offered, that is adding the words "courts of record," and then the vending question was on my amendment which was sent up in writing, adding at the end "in Circuit Courts and Courts of like jurisdiction."

THE PRESIDENT‑The Convention refuses unanimous consent to incorporate the latter amendment in the former. The question will be on the amendment last offered.

MR. COBB‑I rise to a question of parliamentary inquiry. Is it not true that when a delegate makes a verbal amendment and


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OFFICIAL PROCEEDINGS

he is required by the Chair to put it in writing, that that writing is the amendment and the verbal motion amounts to nothing.

THE  PRESIDENT‑Well, that point has been crossed by unanimous consent, and the gentleman has written out his amendment and it is now proposed to the Convention in the form in which he wrote it.

MR. COLEMAN (Greene)‑I want to hear the section read now as amended.

THE PRESIDENT ‑The Secretary will read the original amendment and the amendment to the amendment.

The Clerk read as follows:

“Section – . It shall be the duty of the Legislature to provide for the taking down and preserving verbatim reports of the evidence in civil and criminal cases.”

“Amend by adding at the end thereof ‘in Circuit Courts or courts of like jurisdiction.’”

MR. COLEMAN (Greene) – My motion now is to lay the amendment and the section on the table.

MR. deGRAFFENREID‑I rise to a point of order. The motion to lay the section upon the table has been voted upon and the house refused to lay it upon the table.

MR. PETTUS‑I rise to a point of order. The additional amendment is new matter.

MR.  deGRAFFENREID‑It has not yet been adopted.

THE  PRESIDENT‑The gentleman from Clarke asks unanimous consent that his second amendment may be incorporated in the first.

MR. SAMFORD (Pike)‑I object.

THE  PRESIDENT‑The question is on the motion to table the amendment to the amendment. The ayes and noes have been called for and the call sustained.  As many as favor the motion to table will say aye, and those opposed no, as their names are called.

Upon the call of the roll, the motion to table was lost by a vote of 52 ayes and 61 noes, as follows:

AYES

Ashcraft.

Boone,

Cobb,

Beavers,

Burns,

Coleman, of Greene,

Beddow,

Carnathon,

Coleman, of Walker,

Bethune,

Chapman,

Eley,


3621

CONSTITUTIONAL CONVENTION, 1901

Ferguson,

Macdonald,

Sentell,

Fletcher,

McMillan (Wilcox),,

Smith (Mobile)

Greer, of Calhoun,

Merrill,

Smith, Mac. A.,

Handley,

Miller (Marengo),

Smith, Morgan M.,

Heflin, of Randolph,

Miller (Wilcox), Sorrell,

Henderson,

Opp,

Spragins,

Howze,

O’Rear,

Stewart,

Inge,

Palmer,

Vaughan,

Jones, of Bibb,

Parker (Cullman), Walker,

Jones, of Wilcox,

Pearce,

Watts,

Kirk,

Reynolds (Henry), Williams (Barbour),

Kirkland,

Samford,

Williams (Marengo),

Lomax,

Searcy,

Lowe (Lawrence),

Selheimer,

TOTAL– 52

NOES

Messrs. President,

Foster, Mulkey,

Banks,

Freeman,

Murphree,

Barefield,

Gilmore,

Norman,

Blackwell,

Glover,

Norwood,

Brooks,

Graham, of Montgomery,

Oates,

Browne,

Graham, of Talladega,

Parker (Elmore),

Bulger,

Grayson,

Pettus,

Byars,

Haley, Pitts,

Cardon,

Harrison,

Porter,

Carmichael, of Colbert,

Heflin, of Chambers,

Rogers (Sumter),

Carmichael, of Coffee,

Hodges,

Sanders,

Cofer,

Hood, Sanford,

Cornwell,

Howell,

Tayloe,

Craig,Jackson,

Thompson,

Cunningham,

Knight,

Waddell,

Dent,

Kyle, Weakley,

deGraffenreid,

Long (Walker), Weatherly,

Duke,

McMillan (Baldwin), White,

Espy,

Malone,

Whiteside,

Fitts,

Maxwell,

Wilson (Clarke),

TOTAL– 60

ABSENT OR NOT VOTING

Almon,

Foshee,

Ledbetter,

Altman,

Grant,

Leigh,

Bartlett,

Greer, of Perry,

Locklin,

Burnett,

Hinson,

Long (Butler),

Case,

Jenkins,

Lowe (Jefferson),

Davis, of DeKalb,

Jones, of Hale, Martin,

Davis, of Etowah,

Jones, of Montgomery,

Moody,

Eyster,

King,

Morrisette,

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OFFICIAL PROCEEDINGS

NeSmith,

Renfro,

Studdard,

O’Neal (Lauderdale),

Reynolds (Chilton), Willet,

O’Neill (Jefferson),

Robinson,

Williams (Elmore),

Phillips,

Rogers (Lowndes),

Wilson (Washington),

Pillans,

Sloan,

Winn.

Proctor,

Sollie,

Reese,

Spears,

MR. deGRAFFENREID ‑I move the adoption of the amendment and of the section, and upon that I move the previous queston.

The main question was ordered.

MR. COBB‑I call for an aye and no vote on that.

MR. WILSON- Do I have the right to close?

THE PRESIDENT‑Yes, sir.

MR. WILSON‑I just want a word. The gentlemen have urged that this will be creating an expense costing ten dollars or seven dollars and a half a day. I have just been informed by the gentlemen from Hale and Dallas that they provide for an official stenographer for the whole circuit at $750 a year.

MR. HARRISON ‑ Didn't the last Legislature provide for that?

THE PRESIDENT– The question is not debatable. The question is on the amendment.

MR. ROGERS (Sumter)– Is the Chair stating the question correctly? We have just adopted  the amendment to the amendment.

THE PRESIDENT – The question will be on the adoption of the amendment to the amendment, and the ayes and noes have  been called for. Is that call sustained.

MR. COBB– I withdraw the call for the ayes and noes on this.

MR. SAMFORD (Pike)– And I renew it.

The call was sustained.

MR.  WATTS– I rise to a question of inquiry. After this question of the amendment is disposed of, then we will have a chance to vote on the main question, will we not.

THE PRESIDENT– Certainly.

MR. SAMFORD (Pike)‑‑I rise to a point of inquiry. The point of inquiry is, what there will be to vote upon after we have voted upon this question?


3623

CONSTITUTIONAL  CONVENTION, 1901

THE PRESIDENT ‑ It will be upon the amendment as amended. The gentleman himself made the objection to incorporating the amendment to the amendment in the amendment of the gentleman from Clarke, and when the amendment to the amendment is adopted, then we will have to vote on the section as amended.

MR. SAMFORD (Pike)‑‑‑I will ask if the amendment was not to the entire article by adding a section and when this amendment is incorporated in it, if we would not then have to vote upon the identical section that we are voting upon now?

THE  PRESIDENT‑‑‑It will be voting on the additional section. The gentleman from Clarke offered as an additional section the amendment which has been twice read in your hearing. He thereupon offered an amendment to that which limited the use of the stenographers to circuit courts and courts of like jurisdiction. It is the latter amendment that we vote on now. As many as favor the adoption of the amendment limiting the use of the stenographer to circuit courts and courts of like jurisdiction will say aye and those opposed no, as their names are called.

MR. SAMFORD (Pike)‑That being the case, if the gentlemen will agree with me, I will withdraw the call for the ayes and noes. I will ask unanimous consent to be permitted to withdraw it. I did it under a misapprehension.

Consent was given.

Upon a vote being taken the amendment was adopted.

THE PRESIDENT‑The question recurs upon the original amendment offered by the gentleman from Clarke.

MR. SAMFORD (Pike)‑And upon that I demand the call of the ayes and noes.

The call was sustained.

MR. OATES– I desire the amendment as amended read.

THE PRESIDENT‑The Secretary will read the amendment as amended.

The amendment as amended was read as follows:

"Section ‑. It shall be the duty of the legislature to provide for taking down and preserving verbatim reports of the evidence in criminal and civil cases in circuit courts or courts of like jurisdiction."

THE PRESIDENT‑The question is upon the adoption of the amendment as amended. and the ayes and noes have been called for and the call sustained. As many as favor the adoption of


3624

OFFICIAL PROCEEDINGS

the amendment as amended, will say aye and those opposed no, as their names are called.

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

AYES

Messrs. President

Duke, Mulkey,

Banks,

Espy, Murphree,

Barefield,

Fitts,

Norman,

Blackwell,

Freeman,

Norwood,

Brooks,

Gilmore,

Parker (Elmore),

Browne,

Graham, of Talladega,

Pillans,

Byars,

Glover,

Pitts,

Cardon,

Haley,

Sanders,

Carmichael, of Colbert,

Hood,

Thompson,

Carmichael, of Coffee,

Jackson,

Waddell,

Cornwall,

Kyle,

Weakley,

Craig,

Long, of Walker, Weatherly,

Davis, of Etowah,

McMillan, of Baldwin,

Whiteside,

Dent,

Malone,

Williams (Elmore),

deGraffenreid,

Maxwell,

Wilson (Clarke),

TOTAL– 45

NOES

Ashcraft,

Henderson,

Reynolds, of Henry,

Beavers,

Howell,

Rogers (Sumter),

Beddow,

Howze,

Samford,

Bethune,

Inge,

Sanford,

Boone,

Jones, of Bibb,

Searcy,

Bulger,

Jones, of Wilcox,

Selheimer,

Burns,

Kirk, Sentell,

Carnathon,

Kirkland,

Sloan,

Chapman,

Knight,

Smith (Mobile),

Cobb,

Lomax,

Smith, Mac. A.,

Coleman, of Greene,

Lowe, of Lawrence, Smith, Morgan M.,

Coleman, of Walker,

Macdonald,

Sorrell,

Cunningham,

McMillan (Wilcox),

Spears,

Eley,

Merrill,

Spragins,

Ferguson,

Miller (Marengo),

Stewart,

Fletcher,

Miller (Wilcox),

Tayloe,

Foster,

Oates, Vaughan,

Graham, of Montgomery,

Opp,

Walker,

Grayson,

O’Rear,

Watts,

Greer, of Calhoun,

Palmer,

White,

Handley,

Parker (Cullman),

Williams (Barbour),

Harrison,

Pearce,

Williams (Marengo),

Heflin, of Chambers,

Pettus,

Heflin, of Randolph,

Reese,

TOTAL– 70


3625

CONSTITUTIONAL CONVENTION, 1901

ABSENT OR NOT VOTING

Altman,

Jones, of Hale,

Phillips,

Almon,

Jones, of Montgomery,

Porter,

Bartlett,

King,

Proctor,

Burnett,

Ledbetter,

Renfro,

Case,

Leigh, Reynolds (Chilton),

Cofer,

Locklin.

Robinson,

Davis, of DeKalb,

Long, of Butler, Rogers (Lowndes),

Eyster,

Lowe, of Jefferson,

Sollie,

Foshee,

Martin,

Studdard,

Grant,

Moody,

Willet,

Greer, of Perry,

Morrisette,

Wilson (Washington),

Hinson,

NeSmith,

Winn.

Hodges,

O'Neal (Lauderdale),

Jenkins,

O'Neill, of Jefferson,

During the call of the roll:

MR. OATES‑For the first tine I ask leave to explain my vote.

Leave was granted.

MR. OATES‑I am in favor of court stenographers. As I understand this proposition, it requires all the evidence to be taken down accurately in every civil case, and I therefore vote no.

So the amendment was lost.

MR. WHITESIDE‑I offer an amendment.

Amendment by Mr. Whiteside of Calhoun. New section to Article on Judiciary, by adding an additional section as follows:

“Section — . After suit has been commenced on any cause of action the legislature shall have no power to take away such cause of action or to destroy any defense that may exist to any suit after such suit has been commenced.”

MR. WHITESIDE‑This amendment is in substance the same amendment I offered to the report of the Committee on Legislative Department, which was laid on the table. I would not trouble the Convention with the same thing again, but for the fact that I apprehend that the members of the Convention did not understand the purport of the amendment. Really, this amendment is not legislative. It is aimed at an evil that exists in the State of Alabama. Every lawyer knows that it is a common occurrence for penal statutes to be repealed by the repealing clause as to statutes then pending, and the statute against ex‑post facto laws and the constitutional provision against ex post facto laws, and all other provisions in this Constitution fail to reach the point that this amendment is aimed at. I undertake to say that I con‑


3626

OFFICIAL PROCEEDINGS

sider it a very unfair way to defend a suit when one is brought to go to the legislature to get the legislature to destroy the right of action in that suit, and it is a very unfair way to practice law to go to the legislature to get a law that will destroy a defense that may exist to a pending suit. It is well known that when I offered the amendment before, the distinguished Chairman of the Committee on the Legislative Department simply stated that this matter had already been provided for, and therefore he moved to lay it upon the table, and it was laid upon the table. I afterwards had a conversation with the Chairman of the Legislative Department and explained to him the object of the amendment and he then stated that if I would offer the amendment to the report of the Judiciary Committee, he would assist me in getting it through. It is an amendment that ought to be made and I hope that it will be adopted.

MR. OATES ‑ I want to say now that I hope no one will move to table the amendment, but that it will be considered.

MR. BOONE– Has the gentleman from Calhoun finished his remarks?

THE  PRESIDENT‑Not yet.

MR. WHITESIDE‑I yield to the gentleman from Mobile.

MR. BOONE‑Mr. President and gentlemen of the Convention. I favor the proposition which has been introduced by the delegate from Calhoun. If any delegate on this floor will take the 124th Alabama Report and look at the case of the City of Mobile vs. the Louisville and Nashville Railroad Company, he will find just what he says there to be true. There was a prosecution by the city to remove certain obstructions from the streets. After that else was tried in the Chancery Court and appealed to the Supreme Court, and after it had been argued and submitted in the Supreme Court an act was passed validating void ordinances and a portion of a void charter of the New Orleans, Mobile and Chattanooga Railroad Company for the purpose of defeating, that prosecution. Now I am not discussing whether that was wisely or otherwisely done, but only for the purpose of emphasizing the point made by the delegate from Calhoun. The Supreme Court in that opinion said that they would not consider the act of the Legislature because it was a special and private act and must be alleged and proven before the Court could consider it, and it was passed after the submission of the cause in the Supreme Court it could not be done but still when the case was revised and remanded by the court holding that the prosecution brought by the city could not be maintained, the act of the Legislature was put in as a special plea in bar in a supplemental answer, and upon the hearing before the Chancellor it was held that the validating  act of the Legislature constituted a perfect defense to the prosecution brought by


3627

CONSTITUTIONAL CONVENTION, 1901

the city to obtain a removal of certain obstructions unlawfully placed by the railroad company in its streets. I just call your attention briefly to the case in 124th Alabama, and ask you to look at that case and see if it is not as I represent. There ought to he a remedy against such acts being passed by the Legislature. If a man has his right of remedy and gets worsted in the court below. it ought not to right or within the province of the Legislature to abolish that right or take away the remedy while the suit is pending.

I heartily support the Section to the Article introduced by the delegate from Calhoun, and hope that the Convention will embrace the same in the Article now being considered.

Upon a vote being taken a division was called for and the amendment was adopted by 51 ayes and 25 noes.

MR. DENT‑I desire to give notice that I will move during the morning hour to reconsider the amendment to this report offered by the gentleman from Montgomery and adopted by this Convention, giving the Legislature power under certain conditions to abolish courts.

THE PRESIDENT‑It will be in order to consider the motion now if the gentleman desires it.

MR. DENT‑I prefer for it to go over until morning. I want to see it in print, and several of the gentlemen want to see it in print.

MR. FERGUSON‑I ask unanimous consent to introduce a short resolution.

Resolution No. 287, by Mr. Ferguson:

"Resolved, That the distinction between grand and petty larceny is narrow, technical and shadowy, and that the punishment between the two said offenses is shockingly unequal."

Referred to the Committee on Judiciary.

MR. SMITH (Mobile)‑I rise to a point of parliamentary inquiry.  I would be glad to dispose of this report on the Judiciary, but I do not want to ask an order that will have to be reconsidered before the gentleman's motion for reconsideration can be heard. If a motion to order it to be engrossed and ordered to a third reading would not cut off that reconsideration, I shall be glad to make it.

THE PRESIDENT‑It would not cut off the motion to reconsider, but it would have to be reconsidered before the other question can be reconsidered.


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MR. SMITH (Mobile)‑I make the motion that the Article be engrossed and ordered to a third reading, and that the motion lie on the table until tomorrow, to be taken up after the motion to reconsider is disposed of.

Upon a vote being taken the motion was carried.

MR. JONES (Bibb)‑I ask that this petition be read.

Petition was read as follows:

The Constitutional Convention, Montgomery, Ala.:

We, the undersigned citizen, of the State of Alabama, do hereby offer our protest against the railroad pass evil, and do hereby declare our desire that it be made on 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.

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.

S. R. Shepard, H. R. McCollum, Joseph W. Espy, Henry Jackson, W. L. Mulhard, A. J. Lampkin, W. M. Farquhar, D. J. Moreland and many others.

Brierfield, Ala., 1901.

Mr. Duke here took the chair.

MR. deGRAFFENREID– Something like ten days or two weeks ago I introduced two ordinances to repeal two sections that were adopted by this Convention when the article from the Committee on Banks and Banking was under consideration. in some way, I do not know how, these ordinances went to the Committee on the Legislative Department of which Governor Oates is chairman, and that committee has reported upon them adversely to this Convention. I wanted to ask that the chairman should order that these resolutions be sent to the Committee on Banks and Banking so that they can be reported on by that committee.

THE PRESIDENT PRO TEM‑The Chair so orders.

MR. OATES ‑ I ask leave to introduce a petition from the citizens of my old home in Henry county and have it read.

Leave was granted and the petition was read as follows:

To the Constitutional Convention, Montgomery, Ala.:

We the under signed citizens of the State 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


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State, county or municipal officials to accept railroad passes from any railroad company, or for any such company, to give such passes.

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.

E. C. Glover, B. W. Segara, Carl Espy, W. R. Wood, A. Trawick, John B. Ward, E. C. Porter, W. W. Espy, A. M. Granby, and many others.

Abbeville, Ala., July 23, 1901.

THE PRESIDENT‑The special order will be the consideration of resolution No. 194, favorably reported by the Committee on Legislative Department.

The Clerk read the resolution (by Mr. Morrisette.)

Resolved, by the people of Alabarna in Convention assembled, that the next General Assembly of Alabama shall reduce the tax on fertilizer to ten cents per ton.

Resolved further, that the General Assemble at the time shall provide for the support of the various agricultural schools in this State out of the general fund of the State.

MR. PETTUS‑The question having been elaborately discussed when it was up in the Convention before, I move the previous question on the passage of the resolution.

MR. GREER (Calhoun)‑I would ask you not to do that. I have a substitute. I would like to offer.

MR. OATES‑I desire to appeal to my friend from Limestone, and a member of the same committee not to make that motion, but allow it to be discussed.

MR. GREER— I hope he will withdraw that motion. I have a substitute to offer.

THE PRESIDENT‑Shall the main question be now put?

The main question was voted down.

MR. GREER (Calhoun)‑I have a substitute here I would like to offer.

The Secretary read the substitute as follows:

"Resolved, by the people of Alabama in Convention assembled, that the next Legislature of Alabama shall fix the tax on fertilizer at $l per ton. Resolved further that the Legislature at the same time shall provide for the establishment and support of an agricultural school in each county in the State where such ag‑


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ricultural school has not been established heretofore and that such school be maintained and supported out of the fund raised by said fertilizer tax.

MR. GREER (Calhoun)– Now, Mr. President, as is well known to you I was very much in favor of a reduction of the tax on fertilizer, and if it should be done I want to say I have not changed my opinion in the least, but as a farmer I want to say that if the principal of fifty cents per ton is right, if it is good, a  dollar per ton is better. If the nine agricultural schools now already established in Alabama are good, sixty-six certainly will be  more than six times as good, and while we do increase the tax 100 per cent. you must bear in mind at the same time that we increase the schools in Alabama more than 600 per cent., six special schools, and I want to say as a farmer that the time is fast approaching, aye, it is now here, when farmer must keep pace with the times, they must be skilled farmers, they must be prepared to farm on scientific basis, and conduct their farming on business principles, the same as the banker or the merchant. They should be prepared for their avocation and trade in life the same as the a lawyer, the physician and the teacher, and if we can have agricultural schools in  Alabama in every county where agriculture is taught the science of agriculture, making them agricultural schools indeed and in truth, what they purport to be, I say to you a greater blessing could not be bestowed upon the people of Alabama.

MR. JACKSON‑‑I desire to ask the gentleman if I understood him to say the other day that he never received any benefit from agricultural experiment stations.

MR. GREER– I said the other day I had not, but if you put one in my county I will receive the benefit from it, not only in seeing the working of it, but will receive benefit by having the privilege and the opportunity of educating my children there and preparing them as other farmers do in different counties, will have in preparing their children to enter colleges and universities in Alabama, and when we thus have the opportunity of sending our children to theses schools where they can receive proper training, they will go to your colleges, they will go to the universities in Alabama. I know Mr. President, that this is a very pretty question with some of the delegates, but mark my prediction, a majority of the opposition to this substitute will come from the men who represent guano factories, who have them in their town, and from men who have already agricultural schools established in their counties.  Now, I know, I see already, some distinguished gentlemen on the floor going around to move to table this substitute. It is a popular move in this Convention, but I say the time will soon come when the people of Alabama will pass on you and some of you gentlemen will be tabled and retired to political oblivion. Now, I say this, if it is right to tax fifty cents it is right to tax a


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dollar. If it is right to establish nine schools, it is certainly right to establish sixty‑six schools in Alabama, and I want to say to you I much prefer paying one dollar tax on fertilizer and getting a school than to paying fifty cents and getting nothing.  That is my position in a nutshell.

MR. REESE‑Does the gentleman think that one dollar a ton will produce enough revenue to run a school in every county in the State?

MR. GREER‑Yes, sir. It will give about three thousand dollars to each county in the State, that is about what it will give. Two hundred thousand dollars in sixty‑six counties. Now, we have heard on the floor of this Convention that the farmer did not pay this tax– sometime ago, when the matter was up. Be that as it may, I am a farmer. I live by the sweat of my brow. I get my living from farming, and expect to continue to do it,  and I am willing to pay a dollar tax on fertilizer that I use, if in return you will give me and the people a school where we will have the privilege of educating our boys, and schooling them in the scientific method of farming that they may be independent, and may be as skilled in their profession as the professional men of this Convention and of Alabama. Now, Mr. President, I know that the resolution offered by the gentleman, Mr. Morrisette, I do not remember where he is from, I believe it is Monroe, to reduce the tax to ten cents, but it also says that nine agricultural schools shall be provided for out of the general fund. If they provide for those out of the general fund, I want to ask you where it is to come from? It is to come out of the common schools of Alabama. You are taking it out of the agricultural districts where you certainly ought to give rather than to take, because they need your assistance. You cannot take between twenty and thirty thousand dollars from them without hurting the schools in the rural districts. In the cities you have public schools and educate your children. In the rural districts we have none, except such as the State has seen fit to give us, and when you take from us a part of the small pittance you have already given its, without giving that if you do that where do you expect us to educate our boys, where do you expect the children in the country to qualify under this election law passed here, and become useful men and women, but on the contrary you give its these agricultural schools one in every county, and we will educate our boys in those schools and prepare them for useful men and the girls for useful women ; we will have an enlightened and cultured people, and they will rise up and bless mankind, and they will be better for having that privilege, and we as farmers, will pay for it ourselves. I as a farmer ask that privilege. I say that I have just returned from my home where I have spent four or five days, and where I have consulted the farmers, and every one of them that I consulted, and I consulted them by


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the hundreds. all are in favor without exception, and they begged me to come back and when this resolution came up,  to offer the substitute that I offer, and I ask this Convention to consider well, and I ask the distinguished gentlemen who are so ready to table everything now to do it until they hear the matter properly discussed, and let us do what is best and right in the premise. We ask nothing more. If our position is not right then vote, it down by vote of this Convention, but I ask one thing, and it will be the last request that I have on this proposition, and that is that when I call for the aye and no vote on this proposition, I beg you in the name of the boys and girls who live in the rural district of Alabama to stand up here like men and say, Yes, we are willing to go on record on this proposition.  That is the last request I have to make of you in regard to this proposition.

MR. PEARCE—  I have a substitute to offer to that amendment.

Be it ordained by the people of Alabama in Convention assembled, that after January 1st, 1903, no tax on fertilizer in excess of ten cents per ton shall be levied on the sale or manufacture of fertilizers in this State. That the proceeds arising from such tax shall be used exclusively for the benefit of the farmers of the State.

THE PRESIDENT– The question is upon the adoption of the substitute of the gentleman from Marion to the amendment of the resolution offered by the gentleman from Calhoun.

MR. PEARCE– It is very easy to answer the gentleman’s  speech who has just preceded me. It is on that same old line, that if you cannot keep the government from taking money from me I want some of it. That answers his proposition. In order that the Convention may understand me, it is that same old human nature that if you cannot keep from concentration of the people’s money by legislation, by some hook or crook, I want some of it. That answers the whole proposition. I say without fear of successful contradiction, and I tell you, gentlemen, I am so earnest in this thing, a man can be so earnest in a thing, he is too much embarrassed to make a speech, or he can be so little concerned, but I feel a great responsibility in this thing and I am conversant of the use and benefits of guano. Whenever you go to tax guano or fertilizer or whatever you may be pleased to call it, you vote to burden the greatest industry that has ever been invented in Alabama, and you vote to burden a thing that is more help to the people who need help in Alabama than anything that has ever been invented, you vote to burden a thing that helps to build up the interests of Alabama more than anything else. I mean by that that it helps people who have unfortunately been backed out on the poorest districts of Alabama. It is an actual fact that there is a great portion of Alabama that a man can pay for his guano


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and can successfully compete with raising cotton on account of the quality of it with other portions of Alabama which are called rich. That is an actual fact, and the Legislature and law‑making power of this State has seen fit to exempt cotton factories from taxation. It would be a great deal more justifiable, while I do not oppose that, and think that it is good sense, it would be a great deal more justifiable to exempt this guano from taxation instead of taxing it, and a great deal more so, and there is but one of two things that can make a man want to do this. He blinds his judgment with selfishness, or greed, as a rule, and those are two of the worst leaders that ever presented themselves to a man. It was said the other day, that the reason this tax ought to be kept on the farmers of this country was that they participated several years ago in putting it on them, co‑operated with some lawyers and other gentlemen here in the Legislature who put it on them. I deny the justification of that proposition. If they are to be punished for co‑operating with the lawyers and other men here in putting this tax on them, they certainly have paid the penalty by paying; about a million and a half dollars, and certainly ought to be excused from now on. Why, it is unreasonable. I can remind you of an instance that happened about 1869, when I was a boy, which it reminds me of.  There were a lot of lawyers and blacksmiths and a few ignorant farmers in my county, who opposed the thimble skein wagon, saying it was ridiculous and stated that it would pull the oxen and mules’ heads off going downhill. (Laughter). And this proposition of wailting to keep the burden on the people to pay the tax on guano because they participated or co‑operated here with a few ignorant lawyers and a few ignorant farmers who put it on them, is simply ridiculous and out of place, and there is no sense in it. Now, the gentleman who just preceded ine says lie 1N'ants to double the bet in order that he may get some of it. I told him in a brief way the other day that he ought to have understood it, but I will be a little plainer today. I will, tell the gentleman a fact about his guano‑well, I will not call them guano schools; I will call them complete fertilizer guano schools I want to tell you that they will not benefit us. When he gets them established in his county, the barefooted boys and girls he is talking about—

MR. GREER– Will you allow an interruption?

MR. PEARCE‑When I am at leasure. (Laughter). I will answer the gentleman.

MR. GREER‑I would like to inform the gentleman that I did not use the term barefooted boys and girls. That is already copyrighted, and I never infringe upon the rights of my friends.

MR. PEARCE– You will have to excuse me, if you did not use it. Now, I can, tell you, gentlemen, the facts. The school is located in Hamilton, ten miles from my house, and so far as I am


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concerned, in my honest judgment, I do not believe they have ever had a man there who knew anything more about farming than a two years' old birdnest. I do not, and I regret to use a plain language as this is about an institution that is in my own county. I was told by a man who come here, Captain Hamilton, last year and saw Governor Oates and the legislature in order to get that school located there, and he reaped a great deal of benefit out of it (and he was a mighty good man), by selling the land around there. I was told by him no longer than last year that the last

session before this they actually had a magic‑lantern show master there for a school teacher to teach children in an agricultural way. I tell my authority, I have never been in the school, because I could see as much and learn as much as there was in there by passing along the road.

I am a sort of one‑horse farmer and a pretty good judge. I can see the efforts of agricultural people, and the class of people that patronize the school and see the results of the students from it. Now, I want to tell you what is a fact. The brightest, smartest students they have had there, gentlemen, have hunted around to find out, the political parties that had the most appointive power, and has affiliated with them in getting appointments at Washington and around over the country. I do not say it to reflect anything unkind on the people that come out in the country to teach school, but I am inclined to believe from what I see about it that it was rather the neglected students that did not reach so high and stand so well with the managers of the school, they would send out over the country to deal out brains in job lots to people who were paying the tax on guano. That was about the way it was.

THE PRESIDENT– The time of the gentleman has expired.

MR. deGRAFFENREID‑I move the time of the gentleman be extended.

MR HEFLIN (Chambers)– Mr. President–

MR. FITTS (Tuscaloosa)— I move a suspension of the rules—

MR GREER (Calhoun)‑I rise to a point of order. The Chair had already recognized the gentleman from Chambers.

THE PRESIDENT– The point is well taken and the gentleman from Chambers has the floor.

MR. HEFLIN‑I think we have consumed a good deal of the time of the Convention discussing this resolution. I favor a resolution something on the line of Mr. Morrisette's resolution, but the gentleman's from Calhoun resolution I think wild. I think that one of the finest pieces of mechanism to the great workship of the world is the table. It supports the white scroll of the stenographer day by day, where he takes down the wise sayings and pon‑


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derous arguments of the delegates on this floor, I and told, that Thomas Jefferson used the table upon which he wrote the Declaration of Independence, and from that good day to this the table has been useful as well as ornamental, but, Mr. President, I would sing the praises of that invisible figurative table that has its place in the rules of this Convention. It is the temporary and oft‑times the everlasting resting place of mighty amendments, strong resolutions, and well‑built sections. I have seen delegates smile ofttimes when that table was mentioned in connection with a motion, and I have seen others tremble as does the gentleman from Calhoun at the mere mention of its name. I have seen lofty ideas of distinguished delegates start mantled in splendid language towards a place in the Constitution, and I have seen this ghostly old table rise up midway between the idea, and the Constitution, and seize it in ghoulish glee and lay it upon itself. Mr. President, of all the resolutions that have been introduced in this Convention, I do think that the resolution of the gentleman from Calhoun is entitled to a special place upon this table, and, as a friend to this table, I move that the resolution of the gentleman from Calhoun and the gentleman from Marion‑these amendments offered to the original resolution, be laid upon the table.

THE PRESIDENT‑‑The question is upon the motion to table the substitute.

MR. GREER‑Upon that I demand the ayes and noes.

A division of the question was called for.

THE PRESIDENT‑The question before the Convention is to table the substitute of the gentleman from Marion.

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

The question recurs upon the motion to table the resolution offered by the gentleman from Calhoun.

The Secretary again read the resolution.

MR. GREER (Calhoun)‑I call for the ayes and noes.

The call was not sustained.

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

MR. PETTUS‑I now move the previous question upon the resolution reported.

MR. LONG (Walker)‑I will ask the gentleman to withdraw that.

MR. PETTUS‑I withdraw it if desired.

MR. CARMICHAEL‑I rise to a point of order. The previous question has been called for.


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MR. PETTUS‑I withdrew it.

MR. CARMICHAEL‑He did not have leave to withdraw it.

THE PRESIDENT‑The point of order is not well taken because the question was not put to the house.

MR. LONG (Walker)‑It is wonderful how men from different sections of the State change their course of tactics. It is wonderful how men who are friends to agricultural schools are here calling for the previous question no doubt because they are permanently established by the Constitution in their own town. This is a proposition gentlemen of the Convention that has been here before, and it is a proposition that was voted down by this Convention, and it is a proposition that should be voted down again. Why rather than have 10 cents a ton you had better have nothing, and rather than to permanently pay for agricultural schools, out of the general funds of the State, if that is the proposition,  we had better abolish them. Now there could be no good reason why we should be called upon to reduce the tax 40 cents, from 50 cents a ton down to 10 cents a ton.

MR. ROGERS– Will the gentleman permit a question? I thought the next thing was the substitute offered by the gentleman from Marion.

MR. LONG (Walker)– That has been voted down and is on the table. Now then, what would be the effect. Why the distinguished Committee on Taxation reduced taxes here to 65 cents on the $100, three mills of that is asked for by the Committee for educational purposes. One mill goes to the Confederate soldiers of the State. That leaves only two and a half mills, and yet we are required to reduce this tax to 10 cents by that resolution, and to support these schools out of the general funds of the State. The State of Alabama is not ready for that. We will not be able to do it, I for one voted to reduce taxation, but the minute you pass that, I am one who is ready to vote to put it back to 75 cents on the $100.  Now this is a legislative matter pure and  simple. It has no place in our Constitution. The Legislature can reduce taxes on guano or it can raise it. It can place it to a dollar  a ton, to 25 cents a ton, to ten cents a ton, or it can take it all off. That being true why then are we asked to pass this amendment. It is a compromise pure and simple and a compromise that I see. Friends here of the agricultural schools are advocating it, because these schools are permanently placed in the Constitution. They are not permanent now. The Legislature can abolish every one of them. The Legislature can take them away, and can take away every cent of the guano tax. Why, Mr. President, there can be no reason why other counties should not some day be allowed to have agricultural schools in their borders, or at least have a chance to have it, but when you establish agricultural schools in the Con‑


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stitution, I plead to the delegates upon this floor not to load this Constitution down with such legislative enactments. Remember what you are doing, and remember that if once it is placed in there you cannot get it out. I am glad to see delegates around me that voted for the amendment to take the tax off, every bit of it; they will not vote for a miserable substitute and a compromise like this. What is it, 10 cents a ton ?  Why not take it off entirely, and establish agricultural schools in the Constitution, Mr. President, you may put on a tax of 10 cents a ton and I tell you it will not amount to enough to support the agricultural school in this State. It will take away from Auburn its just deserts. It will take away from the other agricultural schools their just deserts and the State of Alabama under a 65 cent tax rate is not able to sustain them and give them the encouragement they should have.

Now the 50 cents a ton tax on guano as has been stated here and I state it, and defy successful contradiction, as the mail who has been in the guano business for twenty years, is paid by the manufacturer, and you will find every manufacturer in favor of taking it off, and if they did not haven it to pay they would want it off. You can take it off and there is no farmer in Alabama next year who could buy guano one penny cheaper and you simply take that much and put it in the pocket of the manufacturer. I admit if you had a tax of five or ten dollars, it would raise the price of guano, but 50 cents is too insignificant a sum compared with the benefit to the farmer. He buys second hand through the merchant. If the manufacturer takes it off the merchant would not do it. In South Carolina they have a 5 cent tax on it, and is guano selling cheaper there? Not a penny. Does it sell any cheaper in Georgia than Alabama? Not one penny. I have seen Georgia manufacturers turn down goods, the same standard and class of goods, at the price furnished by fertilizer companies elsewhere. In the State of Alabama, that would not reduce the cost one penny, and yet we are called on to place it permanently in the Constitution at 10 cents a ton. I  would a thousand times rather wipe it out entirely. It is a much more honorable proposition. There is no good reason to be given for it and I hope this Convention will think well what you are doing.

You have no right, and he did not come here to legislate upon guano; we did not come here to place it at 10 cents a ton.  That is a legislative act, and what you leave out of this Constitution you leave with the people of Alabama. What you put in it is but a shackle upon the liberties of the people of Alabama. And you leave it out of there and you make the Constitution stronger in every county. What right has Limestone County with an agricultural school permanently fixed in the Constitution, above any other county in the State? What superior right leave these other counties in this State nine in number? It has been claimed upon


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this floor that agricultural schools are a farce. I am not here to defend them, but I was written the other day from one of them in the county of Marion, in the Sixth Agricultural District, that I have the honor to represent as one of the delegates on this floor, that out of 225 people enrolled, every one, with the exception of four, were sons of farmers, actually engaged as farmers in this State. Do you wish to put them at  the mercy of a State that you compromise by reducing taxation?   Alabama has as much to care for as she can care for under a 65 cent tax rate. Put it in there and you will see that one or two things will happen. Your agricultural schools will go by default, or else Alabama will default her honest obligations. I think that the other delegates on this floor will agree with me that this proposition should be laid on the table, and that it has no place here. It is a legislative act, pure and simple. I understand that the Commissioner of Agriculture himself is willing for a proper reduction to be made at the right time, and it should, be made, but why should we single out nine counties, and say you shall have schools and deny it to every other county in the State?   We  put a Constitution school upon them not an agricultural school, but a constitutional school, and it has no place in our fundamental law. I now move to lay on the table this resolution.

MR. ESPY‑I hope the gentleman will withdraw that.

MR. LONG‑I cannot withdraw it, with all due respect.

A reading of the resolution was called for.

MR. LONG ‑I will withdraw the motion.

MR. ESPY‑This question in part has been discussed by this Convention before, and every members knows my position. There is not one here more desirous of reducing tax tariff than I am, but I cannot and will not vote for the proposition now pending before the Convention. The tax levied upon the farmer is an unjust one, because it is double taxation, but this proposition to reduce the tax carries with it the perpetuation of thirteen agricultural schools in this State, and that means that the Legislature in the future, however much it might desire to change it, will not have the power to do it. Now what right have the thirteen various localities in the State of Alabama to have appropriated, especially to them, thirteen schools that must be kept up by the State at large. and so long as this Constitution we are now making shall exist. It is not right, it is not fair to the people at large. The money that would go to keep up these thirteen schools would go into the general fund of the State and be distributed out among the schools that are accessible to all children throughout the State of Alabama. For that reason I cannot support this measure, although if the proposition was to reduce the tag tax within itself, I would gladly do it. The Convention has just voted down the amend‑


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ment offered by the gentleman from Marion, which carries with it the proposition fairly and squarely within itself. Therefore this Convention has twice put itself on record that it is not willing to relieve the farmers of the State of Alabama from the payment of that excessive tax. And it is no answer to that proposition to come here and say we will reduce it provided you will let us put upon the State at large thirteen agricultural schools that will exist so long as this Constitution exist. I ask the gentlemen who advocate it, is it right to have thirteen schools in thirteen Congressional districts in the State of Alabama, when as a matter of fact nobody living beyond a radius of three or three and a half miles is accessible to that school. Certainly no man can show the justice of the establishment and perpetuation of any such a school, and now, Mr. President, as the natter now stands, I hope that this Convention will vote down the whole proposition.

The Chair recognizes the gentleman from Pike (Mr. Samford).

MR. COLEMAN (Greene)‑I rise to a question of personal privilege. The delegate from Limestone withdrew the previous question that I might make some remarks upon this question, and the Chair recognized the gentleman from Walker. He withdrew his motion to lay upon the table in my favor and the Chair recognizes another gentleman, and I think—

THE PRESIDENT PRO TEM.‑The Chair will state to the gentleman from Greene that the Chair did not know the gentleman from Limestone withdrew his motion in favor of the gentleman from Greene, but was under the impression that he withdrew it in favor of the gentleman from Walker, and the Chair did not see the gentleman from Greene on the floor at all. The gentleman from Pike will proceed.

MR. SAMFORD (Pike)‑It rejoices me to be able to say that I have never known a single instance in the history of Alabama or in any civilized State where a school that was once established at the expense of the State has ever been discontinued. It is a credit to the State of Alabama that notwithstanding the fact that the agricultural schools may not have been of benefit in the way of agriculture, Still they have been a benefit to education, and for that reason the General Assembly of this State have so far decided to keep them in operation. I have made several efforts in this Convention to secure relief for the farmers of this State from the iniquitous tag tax upon fertilizer. I have brought that question before the Convention in several different ways, and I desire to state here in the presence and hearing of every member of this Convention, that notwithstanding the fact by inuendoes I have been charged with having some ulterior motive in regard to this matter, that I do not buy fertilizer. I own no stock in any fertilizer factory and I am not employed to represent them. I am


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“Amend the resolution by striking therefrom the following words: ‘resolved further, that the General Assembly at the same time shall provide for the support of the various agricultural schools of this State out of the General funds of this State.’”

 MR. CUNNINGHAM‑That was the amendment I wanted to offer.

MR. COLEMAN (Greene)– I would like for the resolution, before the Convention to be read. The resolution was read as follows:

“Resolved by the people of Alabama in Convention assembled, that the next General Assembly of Alabama shall reduce the tax on fertilizers to ten cents per ton.

“Resolved further, that the General Assembly at the same time, shall provide for the support of the various agricultural schools the State out of the general funds of the State.

MR. COLEMAN (Greene)‑‑I call for a reading of that, in order that the attention of the delegate might be specifically directed to the second paragraph of the resolution. There is a distinct recognition of the fact that these agricultural schools are to become constitutional schools. It has been stated time and again by the speakers, but I thought that perhaps some of them had overlooked the expressed terms of the resolution. Now I have had nothing to say upon the tag question even when it was up before because i thought it was purely legislative provisions. It is no argument as adduced by the gentleman who last addressed you that because this Convention has time and again adopted legislative provisions, therefore it should continue to do so when there is no necessity for it. One wrong never justifies another wrong and if the Convention has gone too far, it seems to me that it is  time to call a halt. The effect of the adoption of this resolution is merely to limit all agricultural schools to their present number. Now if you know how they are situated in this State, some of them being in the extreme limits of the congressional districts, as illustrated by the district in which I live. The one established in the county of the gentleman from Marion (Mr. Pearce) and though that is a large congressional district there is no other school of that character established, there is none in Hale. Am I correct in that?

MR. deGRAFFENREID- Yes, you are correct.

MR. COLEMAN– Now, whether the policy of the legislature is right or not is a question that ought to be solved by future contingencies and circumstances. We ought not to adopt any resolution here which will limit the legislature in the establishment of these agricultural schools if they should prove a success, but the legislature will not venture to establish these schools if they are


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tax imposed from the farmers in South Alabama that cultivate the poorest land in the State—

MR. LONG (Walker)‑May I interrupt the gentleman?

MR. SAMFORD‑No, sir.

MR. LONG‑I want to make a correction.

MR. SAMFORD‑I do not care. I will state to him though in my section of the State there are men who are looking with longing eyes towards this Convention for relief that the Legislature of this State has failed to give them through the many years that have passed, and if the arguments of the gentleman from Walker are followed they will continue to refuse it in the years that are to come, and the members on this floor need not hide behind the proposition that it is putting into the Constitution these nine agricultural schools throughout the State, because when they look at it fairly they are bound to admit the proposition that there never has been a school done away with in Alabama that has ever been established, and I trust to God that it never will be the case.

Now, Mr. President, my principal object in this matter was a reduction of the tag tax upon fertilizer, but if it takes the combination resolution as offered by the gentleman from Monroe to get it, then I am ready to accept that. I stated here in my former speeches that if I should be a member of the legislature I would not vote to do away with the agricultural schools. I said it here that I would net vote to do away with the agricultural schools if I were in the General Assembly and that being the case, and knowing that these agricultural schools will remain fixtures in the State of Alabama I do not see the necessity of failing to support a good measure because there is another question involved in it. It says that the legislature shall provide for the maintenance of the schools out of the general fund. The effect of that would be to keep the General Assembly from taking any of the public school money to maintain then. and it would force the General Assembly to maintain them out of the general fund of the State, where they must be paid for if they are had at all, but there is nothing in there that I see that requires the legislature to appropriate any specific

amount.

Mr. Coleman of Greene, was recognized, and yielded to Mr. Espy .

MR. Cunningham sought recognition.

MR. ESPP‑I desire to have this amendment read before the gentleman makes his remarks.

The amendment was read as follows:


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been all my life, ever since I was a grown man but it does seem to me if you desire to keep up these agricultural schools, if you desire to have appropriations made for their continued prosperity in accordance with the ability of the State and the needs of the farmer, it is a question that ought to remain exactly where it is now. It ought not to become a part of our organic law, the Legislature established the school, the Legislature imposed this tax, the Legislature has the power to remove the tax, and it has the power to establish additional schools. It has the power now if they see fit to abolish them, according to the emergencies and contingencies of the time, and I think they ought to consider these questions and we should not put anything in the organic law which cannot be changed, except by another Constitutional Convention. Surely in a matter of this kind we can trust to the Legislature —

MR. PEARCE‑I offer an amendment.

The amendment was read as follows:

"Provided, that nothing herein contained shall be so construed as to prevent the Legislature from abolishing any or all of the agricultural schools now established by law, or to prevent the Legislature front reducing the tag tax on fertilizer below 10 cents per toll, or to repeal such tag tax altogether."

Mr. Greer (Calhoun) sought recognition.

MR. GRAHAM (Talladega)‑I desire to rise to a point of order on both of the gentlemen.  They have both spoken on this matter. Further, this amendment is not germane to the question that is before the House.

The resolution was again read: "Resolved further, That the General Assembly at the same time shall provide for the support of the various agricultural schools of this State out of the general funds of this State."

THE PRESIDENT PRO TEM‑In the opinion of the Chair the amendment is not germane.

MR. WHITE– As I have heretofore said I think this tax the most iniquitous one that the farmer has to bear. Whether he bears it or not. the tax is wrong in principle. It is selecting one product and taxing it at a different rate from that at which any other product is taxed. However, there are other questions involved in this matter. If this means anything (and I doubt very much whether it means anything at all or not) it means the establishment permanently or certain so‑called agricultural schools in this State. It means that they must be maintained by the State of Alabama, whether in the future they perform the office, intended or not. They are arbitrarily located, and we don't know how soon this State may be redistricted into new Congressional districts, and


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to be preserved by an appropriation from the general fund. We cannot expect it. Now, it is not such a hardship upon the farmer to have agricultural schools established and maintained by a tax that is imposed upon fertilizers which are used by them. But, Mr. President, if it is not considered out of order, and is not too much of a personal character, I should like to state to this Convention some facts relative to dealers in fertilizers. I dislike to refer to any personal transactions, but it seems to me that at this time it will not be altogether out of place. During the last season I was so situated that it became to my interest to sell largely or to be interested in selling largely of fertilizer. We corresponded with every manufacturing company in the South, in Louisiana, Mississippi, Georgia, Tennessee and South Carolina. We had the agents to meet us at Eutaw, where I live, one at a time, once or twice there were two or three there, and they all fixed absolutely a price upon all characters of fertilizers, and even upon the freights to be paid. They went so far in their agreement as to charge an additional rate of forty cents a ton whenever it was delivered at any landing upon the river. I mention this to show you how complete the organization is.

Now, gentlemen have said here upon the floor that you could go across into the Georgia line and buy the fertilizer at forty cents less than you could in Alabama. That might be all so, and my friend further says fertilizers cost him less because he does not have it analyzed and buys it in large quantities. If it is not analyzed he can afford to sell it at forty cents a ton less than the others,  but in order to protect the planter the fertilizer ought to be analyzed. Any lawyer with very much experience in the agricultural districts has seen more or less litigation growing out of the sales of fertilizer. I have defended such suits time and again, and have established in the courts, and it was so found by the juries that the fertilizer consisted principally of lime rock mixed up with a little stuff to give it the smell. The analysis is necessary in order to protect the farmer. The combination is complete and the sales are agreed upon by those companies before they enter upon a sale anywhere. Now you pay fifty cents a ton upon fertilizer. Many shall farmers, and I speak from what I know, buy four, six, eight hundred pounds or half a ton, and the charge is twenty‑five cents upon a half a ton. Now he never thinks of that and never feels it. You would not sell it to him as a merchant or as a dealer one cent less when retailing it than you would with the tax. Because, when you sell fertilizers to small farmers around that way the merchant invariably puts on his percentage, and the fifty cents per ton is not considered. The farmer does not lose much in the end.

Now I do not wish to be misunderstood about this thing. I am in favor of relieving the farmer as much as any other class. I know his troubles and difficulties and I sympathize with him, and am one of them, whether generally so understood or not, and have


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here in my humble way, and in my feeble way attempting as best I can to represent the constituency that sent me here.

That this is a tax upon a class for the benefit of the whole State cannot be denied. That the fertilizer tax is a tax upon a commodity that is used by a class of citizens that cultivate our poorest land, is a fact that cannot be denied. That it is wrong in principle no man has ever attempted to deny, and the only opposition that has sprung from delegates in this Convention, when it was discussed on prior occasions, was that it was a matter for the Legislature of the State. That is a statement that has been so often repeated since that time that I fail to see how delegates can get up courage enough to raise that old saw. We have passed one legislative enactment after another until we are presenting to the people of Alabama, not a Constitution within the limits of the authority of a Constitutional Convention, but we are upon the eve of submitting to the people of Alabama a very code of laws instead. Gentlemen of the Convention, one of the principal functions, and the only function of a Constitution should be that of limitations, and I ask members of this Convention how you may limit the Legislature upon taxes, licenses or anything else unless you place it in the Constitution of the State. I am informed by my friend from Walker that the Superintendent of Agriculture of this State will be willing to a reduction at the next General Assembly of this tax, and I ask him in answer if he makes the Superintendent of Agriculture of the State of Alabama the guardian of the people or the keeper of the consciences of the members of this Convention. If it is right to do it we ought to do it. If it is a proper limitation to be placed in the Constitution we ought to do it. If, however, such a tax ought not to be levied upon a class of our people, then we ought to limit the Legislature in this matter. If the farmers of this country are to continue to bear the heaviest burden of the government then we should adopt the substitute offered by the gentleman from Calhoun, which provides for a tax of one dollar per ton instead of fifty cents. Gentlemen, the State has no right to levy this tax. It takes the right by the rule of might, and when through its tax collectors, and through its other agencies it runs the gaunt hand into the pockets of the people and takes from a certain class more taxes than are levied upon other classes of its citizens pro rata. It does that which the highwayman did centuries ago and is still doing upon our frontiers. Now, I do not care so far as I am personally concerned, whether you reduce this tax or not. I have got no personal interest in it, and I have not been in the habit of making threats with regard to the adoption of this Constitution, but let me say in all earnestness and in all candor, that a gentleman who represents a county in North Alabama where they dig coal and iron from the bowels of the earth and do not need fertilizer may not care, and may still want this


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there may be two or three of those schools put into one district. I am utterly opposed to selecting and singling out these schools and making them constitutional schools in Alabama.

MR. SAMFORD (Pike)‑I desire to ask the gentleman from Jefferson if he ever expects to see one of the schools abolished.

MR. WHITE‑Well, I may not live to see it, Mr. President, and yet they may be abolished after I am dead and gone, and it may, be at a time when they are not fulfilling the purposes for which they were intended. At all events, I do not want them permanently fastened upon the people of Alabama. They have been criticised, and severely criticised upon this floor by men who claim to know something about them. I do not. But certainly in the face of the criticism indulged in against them they ought not to be made permanent institutions in this State, but as I said just now, I doubt very much whether this resolution means anything, and I got the idea from a distinguished gentleman upon this floor, the gentleman from Madison (Judge Walker) that this is simply a resolution, and does not become a part of the organic law of Alabama. It is simply advisory.

A DELEGATE‑It is directory.

MR. WHITE (Jefferson)‑How is it directory. It is neither that the Legislature shall, or should, or must, but it is simply a letter addressed to the Legislature from this Convention giving them the sense of this Convention. It does not in any sense become a part of the organic law of this State. It is not an ordinance. But I say if it means anything it means too much. It means a permanent fixing of these agricultural schools upon the State of Alabama, and I am opposed to it, and however much I may be in favor of relieving the farmers of this iniquitous tax, I will never do it at the expense of fastening a number of so‑called agricultural schools, which they say through members claiming to represent them upon this floor, are not, in fact, agricultural schools at all.

MR. VAUGHAN‑I move to lay the resolution and the amendment upon the table.

MR. ESPY‑I ask for a division of the question and call for the ayes and noes.

MR. LONG (Walker)‑I move that this Convention remain in session until the matter is disposed of.

Upon a vote being taken a division was called for.

MR. FITTS (during the taking of the vote)‑I make the point of order that under the rules the House is adjourned, the hour of 7 o'clock having arrived.


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THE PRESIDENT PRO TEM– By a vote of 33 ayes and 55 noes the motion that the House remain in session is lost.

MR. SANFORD (Montgomery)‑I move that we do now adjourn.

 The motion prevailed and the Convention adjourned.