SIXTY‑FIFTH DAY.

_________

MONTGOMERY, ALA.,

Wednesday, August 7, 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, as we again take up the broken threads of our daily task. we look unto Thee for guidance and for light. We pray Thee let not this day be an empty page in the record of our deliberations. Let it be a day of progress, of progress gained not by combining iniquity with selfishness, but by establishing righteousness in honor.  May a loftier conception of our duties here relieve the task from the dullness of routine, the dry rot of monotony.  While we are assembled together emphasize and impress upon the people a sense of the priceless value of all that in the Constitution for which our fathers were willing to sacrifice everything save their honor. May we so succeed in shaping, this sacred instrument, this bulwark of liberty, that when it shall have been completed it shall lend renewed support to the flag, that flag which has never yet been folded in defeat or has been drooped in reproach but which has gone in great splendor to the uttermost parts of the earth, where men bow in slavery where women weep, where cruelty and greed are entrenched in the power of ancient fraud, bringing unto every one liberty, equality and fraternity. May we be faithful to the end to our large and sacred trusts, and never shame the greatness of our priceless opportunities. Amen.

Upon a call of the roll 81 delegate, responded to their names.

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

MR. DENT‑‑I gave notice on yesterday that I would move to reconsider the section that had been offered to the report of the Judiciary Committee, which was adopted by the Convention. I will read the section:


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

Upon reflection, it seemed to some of the delegates that perhaps that was going almost too far. While I agree that the Legislature under certain conditions, ought to have authority to abolish certain courts, I will read to the Convention, if the motion to reconsider is adopted, which I make, the section as it will read as amended. I propose to offer an amendment to it, striking out these words “necessary from any cause or”  so that the section if amended will read as follows: “The Legislature shall have power to abolish any court except the Supreme Court or Probate Court, whenever its jurisdictions and functions have been conferred upon softie other court.” I think that is enough to say upon the subject. It makes it simple and plain.

I now move that the vote by which that particular section was adopted, be reconsidered.

MR. OATES‑ When I drafted the section that was adopted, I had some little doubt about whether it was not too broad to use the very words which my friend, the delegate from Barbour, proposes to strike out, and upon reflection, I have no objection to the section being reconsidered and thus amended. It is probably right.

MR. COLEMAN (Greene)‑The amendment offered by the gentleman from Barbour will harmonize the whole theory of our Judicial system. It provides that counties of a certain population may establish courts and then relieve there from being included in any circuit or chancery division. It is too radical to authorize the Legislature at discretion to abolish a court of record established by this Convention, but when counties have been removed from any chancery division or any circuit, then it is right and proper that those circuits and divisions be retired or else the counties left added to other circuits and division, and if you adopt the amendment offered by the delegate from Barbour, the whole system will harmonize and we will accomplish what we ought to accomplish.  I hope the vote will be reconsidered and the amendment of the gentleman from Barbour adopted.

MR. WALKER (Madison)‑I favor the motion made by the gentleman from harbour to reconsider the vote by which a new section was added on yesterday. My reason for favoring it is I do not believe that, under the plan presented by the Judiciary Committee and as has been adopted lay this Convention a provision of that kind is necessary, as under that plan it was left to the Legislature to supply the place of the Chancery court or of the Circuit Court in counties where a separate court was needed, and in those


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counties to get rid of the useless expense of a Chancery Court or a Circuit Court.

MR. COLEMAN‑ It is your opinion then that this amendment does nothing more than make clear the provision already accepted?

MR. WALKER (Walker)‑Yes sir.

MR. COLEMAN– It is my view and therefore I move its adoption.

MR. WALKER‑.I would not offer any objection to the amendment proposed by the gentleman from Barbour, as I think the amendment offered by the gentleman from Montgomery went beyond any necessity of clearing up what was meant by the Judiciary report, I hope the Convention will reconsider it.

MR. BOONE– I move the previous question on the motion to reconsider.

Upon a vote being taken the main question was ordered.

THE PRESIDENT ‑The question is on the motion to reconsider the rote whereby this section was adopted.

Upon a vote being taken, the motion prevailed.

MR. DENT– I send up my amendment.

The amendment was read as follows:

“Amend section adopted yesterday giving the Legislature power to abolish certain courts by striking from said section the following words ‘necessary from any cause or,’ so the section is thus amended, will read as follows: ‘The Legislature shall have the power to abolish any court except the Supreme Court and Probate Court whenever its jurisdiction and functions have been conferred upon some other court.’”

MR. DENT– I think the Convention understands the question and I move the previous question on the section as amended.

The main question was ordered.

Upon a vote being taken, the amendment was adopted.

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

MR. deGRAFFENREID– On yesterday when Section 28 of the report of the Committee was under consideration, the gentleman from Lauderdale, Mr. Ashcraft introduced a substitute for the section.  hat substitute was adopted, and at the time of its adoption. I gave notice that I would on this morning, move a reconsideration of the vote whereby his substitute for Section 28 was


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adopted, and later on when the Convention adopted the substitute, I also gave notice that I would make a motion to reconsider that vote. For the purpose of saving time, I desire now to make a motion to reconsider both votes so that the whole matter can at once come before the Convention. The section to which I refer is the section whereby this Convention has abolished the system of circuit solicitors as it heretofore existed in Alabama.

THE PRESIDENT‑‑ The gentleman from Hale moves to reconsider the vote whereby Section 28 was adopted.

MR. SMITH (Mobile)‑‑I rise to a point of order. The motion to enroll and to a third reading was specially set to follow immediately after the motion of the gentleman from Barbour to reconsider the vote whereby the amendment of the gentleman from Montgomery was adopted. I do not wish to cut off any gentleman who wishes to discuss this matter, but I do not want it to reopen the entire article, and cause it to lose its place which it has under the special order.

THE PRESIDENT ‑The Chair will state to the gentleman from Mobile that two motions to reconsider having been entered the Secretary understood the special motion to be set after the disposition of the two motions to reconsider, and it will not displace the special order.

MR. deGRAFFENREID ‑As I was going on to say, the section to which I refer, was the section which abolishes the system of circuit solicitors as they have heretofore existed in Alabama and provides in its stead, a system of county solicitors, which existed only for a short period in the history of the State. That was when the Republican party was in control of the politics and government affairs of Alabama. Now there was some wisdom in the men who framed the first constitution of this State. During all the time we have lived under the various Constitutions of Alabama which provide for circuit solicitors, we have had good government in this State. It is a matter of pride to every lawyer and citizen of Alabama that the judicial reports and the judicial history of the State take front rank with the judicial reports and history of the other States of the Union. There are but few reports that rank as high  as the Alabama Reports. During Republican times, it was seen fit by those in charge to abolish the office of circuit solicitor, and have county solicitors in order that they might have more officers to share in public plunder, which was then being distributed by that party to its members. Attention is called to the fact, gentlemen, that we have in this body ninety-six lawyers and that no office created by this section can be filled by any one other than lawyer, and when we go back to the people, it might well be argued that the increase in office provided for by this section, is an increase which can only be filled by members of the legal profession.


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It was said on yesterday, and I refer to it simply that the facts may be known, that there was a lobby in attendance upon this Convention upon this subject. I desire to simply say that if there has been a circuit solicitor in this capitol, at any time, while this matter has been under consideration, it is more than I have known. If any circuit solicitor has approached a single member upon this subject, it has been more than I have heard of. In fact we came here on yesterday morning with two reports for consideration on this subject, one the majority report, the other the minority report, both recognizing the circuit solicitor, the only difference being the manner of election, whether it should be done by the General Assembly or whether it should be done by the people themselves.  That was the question we came here to consider. While that subject was under consideration an amendment was introduced, changing the entire system of Alabama as it has always existed, with the exception of the time of Republican control between 1868 and 1875. I doubt very seriously whether the affairs of this State can be as well and ably administered by a solicitor in each county as under the present well tried system.

MR. GRAHAM (Talladega)‑How many counties are operated exclusively on the system of county solicitors.

MR. deGRAFFENREID ‑I do not know. There are deputy solicitors in many counties.

MR. GRAHAM (Talladega)‑I am talking about where the county solicitor has exclusive jurisdiction, not only of misdemeanors and not where he has a deputy. I am talking about where he has jurisdiction of the entire county, felonies and otherwise.

MR. deGRAFFENREID ‑I do not know.

MR. COLEMAN (Greene)‑Will the gentleman please state, how many of the solicitors have been elected by the people and by the Legislature.

MR. GRAHAM ‑They have all been elected by the Legislature. Nobody denies that proposition. That is not the matter of

difference between myself and the gentleman from Hale.

MR. deGRAFFENREID ‑I venture the remark that that systems only prevails in the wealthy counties, like Montgomery, Dallas, etc.

MR. GRAHAM‑I ask you how do Clay county, and Cleburne county stand in point of wealth in this State? If they are not under $2,000,000.

MR. deGRAFFENREID ‑I don't know any thing about how their affairs are administered.

MR. GRAHAM‑ Well they have county solicitors to the exclusion of circuit solicitors.


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MR. deGRAFFENREID ‑And under that, in circuits like Montgomery, Mobile, Dallas and the other wealthy counties in the State, our criminal affairs might be well administered, but in the poorer counties that is not true. It was stated yesterday that with the exception of two counties, the Committee on the Judiciary had ascertained that there were lawyers living in every county in Alabama who were capable of representing the State as its public prosecutor, but is that any guarantee that those men will be elected, if this becomes a law? Is it any guarantee that they will accept the position of county solicitor if the position is tendered to them or that they will be elected if they become candidates before the people?

Not at all. The fact about it, as it seems to me, is that the further you remove the person who acts as prosecutor from the people, the better and abler will be his services, and we might as well be plain about this matter. One gentleman said yesterday that he did not care to throw any bouquets at the Populists or the Republicans.

There are some fourteen or fifteen counties in Alabama represented on the floor of this Convention by members who do not represent the dominant party in this State. The dominant party represents the intelligence of the State of Alabama, and it has been through that party that we have been able to maintain white supremacy and honest government in this State, and I do not want to see the time when we will have a single Republican or Populist representing the State in a prosecuting capacity in any county in this State. Under the system, if it is maintained, that was inaugurated on yesterday, we will certainly have the condition in some of our counties. It seems to me Mr. President, that this vote ought to be reconsidered and we ought to go back to a system under which this State has prospered, and about which I am informed, with one exception (that of Morgan county), there was no discussion before the people.

MR. LONG (Walker)‑I hope the Convention will reconsider the vote whereby the substitute of the gentleman from Lauderdale was adopted yesterday. We are going to be called upon to defend this measure. I am going to ask how many delegates can defend a proposition that is going to open sixty-six offices in Alabama?  That is the proposition that will confront us on the stump. Even in the medical profession there are doctors that make a specialty of medicine, there are lawyers in the State of Alabama that make a specialty of prosecuting attorneys. It would leave many counties in this State without a man competent to represent the State of Alabama in the criminal prosecutions in this State. There are counties in the State of Alabama that have not a lawyer that is competent to even draw a bill of indictment. The effect would be


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that you would have no head to the criminal system of solicitors in the State of Alabama.

MR. WHITE ‑May I interrupt the gentleman?  Will you name a county that has a lawyer of that class.

MR. LONG‑I could name numbers of them.

MR. WHITE ‑Name one.

MR. LONG-The county of Winston, the county, of Marion, and a great many other counties in this State. That means no reflection upon these counties. There is scarcely a lawyer in the county of Fayette alone.

This is no reflection upon the lawyers, but there are agricultural counties in this State that a lawyer can not make a living in, because the litigation is so small that they do not need lawyers and it is a compliment to those counties. We all know that there are counties in the State of Alabama where there are no lawyers capable of representing the State. No gentleman can deny that.  This is a legislative matter, and should be left to the Legislature. Why our Constitution is but an old barge loaded down with 200 tons of rock and the enemies of it want to get us out into deep water and sink it, and when it comes to the ratification we should  consider carefully what we are doing. It is not wise to get up here upon an impulse of the moment to adopt a substitute that was not even considered by the committee, and if all the lawyers on this floor that have been defeated by the Legislature would vote against the proposition, it would be defeated almost unanimously.  There are many sore toes here, and it is natural for a man to despise a system that he failed in.  It is not necessary to mention them, they are al over the House.  If you would let the people elect them, why some of them would be defeated before the people and would be willing to right then put it back to the Legislature.  They would say it was a fraud, a snare, and a delusion, and they would say further than that that the people were all up to trickery and bribery in Conventions, you have heard that by defeated candidates ever since you have heard of elections in this or any other State.  The  trouble is that there are some lawyers on this floor want to be solicitors, that is the reason this measure is so popular, in my honest judgment.  There are counties in the State of Alabama where you could not elect a Democrat to save your life.  There are fourteen or fifteen counties in this State where you could not elect a Democrat, and yet you want to turn it over.  It is but a bribe to lawyers to turn in opposition against the Democratic party, in order to be elected, that is the result of it.  Everybody knows that with few exceptions there is not a lawyer in the State of Alabama but what is in sympathy with the Democratic party, but you do this, and there will be a heap of little lawyers whose services are not worth $2 a year would become candidates for solicitors in those counties

 


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and the counties would elect them, and the man of strong influence who can deliver the goods, deliver from three to five votes on that question will not be prosecuted or indicted by the Grand Jury, and if he is indicted the case will be nolle prossed, and that will be the end of it. The Legislature was an evil, but an evil that was placed upon us and it has elected solicitors every year since 1819 with a single exception when the Republicans were in power in the State of Alabama. Now, we are asked to abolish it. For what purpose?  In order that there may be no head to criminal prosecutions in this State to represent the State of Alabama. I tell you if you put the solicitors in the county to represent it, he will cater to the local interests in his own county, and it is natural that he should. This is a question that should be reconsidered and leave it to the legislature to say whether you ought to elect them in certain counties or let the legislature elect them in certain counties and let the people elect them in others. It is a legislative act pure and simple, and I appeal to the delegates on this floor. I have no personal interest whatever in any solicitor in the State of Alabama. I am not learned in the law, and therefore I could not be a candidate if I  wanted to, but I tell you the people of Alabama do not want any such thing. I want a man to rise in his seat and say that during the last canvass he advocated county solicitors, I want to see what kind of man he is. You know you did not advocate it. It has been hatched up, it is one of the buzzard eggs hatched out here without even three weeks setting, hatched out after the report of the committee had been considered, and I tell you it will do more harm to this Convention than anything you can place in it. There are men specially adapted to become prosecuting attorneys, and other attorneys not fit for it although able and competent lawyers. We all know lawyers that make a specialty of civil practice and are a success, other lawyers make a specialty of damage suits and make a success. That is their particular business, and they are better adapted in their particular line than a general lawyer that claims to do everything, a jack at all trades and good at none. We know that a lawyer who has represented the State of Alabama for years is more competent than one of these jack legs. We know that, and you are going to turn it over to that very class of men in the State of Alabama. You are going to have one lawyer in one county say this is the law, and another one in another county say, the other thing is the law. It will be hard to convict men in the State of Alabama on account of incompetent solicitors. Your cases will

be reversed in the Supreme Court, sent back on technicalities and errors. That will be the result. There are many counties in the State of Alabama that have not competent men to represent the State of Alabama. In my judgment it is one of the highest judicial offices in the State.

THE PRESIDENT ‑The time of the gentleman has expired.


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MR. GRAHAM (Talladega)–There are a few things necessary to be answered, just by the way, that are not argumentative.  The speeches that have been made upon this floor demonstrate that all the small men on the floor are not limited to the legal profession.  (Laughter.)  The statement of a gentleman on this floor that no circuit solicitors have been working in their interest demonstrates that he is either blind or has sat here with his eyes shut.

MR. deGRAFFENREID–Will the gentleman tell me who  they are?

MR. GRAHAM–If you will look around here for about three minutes, and not run up against one in the lobby right now, I’ll well–no use to say anything further.  (Laughter.)

MR. deGRAFFENREID–I have never seen them.

MR. GRAHAM‑‑I have not been personally approached, but I call designate solicitors who leave been talking to men on this matter, on which side, I cannot state. That is by the way. I want to argue this matter not from that stand point, not from any personal stand point, because I have no grudge against any solicitor in Alabama and nothing personal inspires my position, but I want to answer the argument of the gentleman from Walker, who says we are going before the people of Alabama with sixty-six new offices created for lawyers. How does it stand now? We have thirteen circuit solicitors in the State. We have sixteen city solicitors in the State, not deputies. We have about fifty deputy solicitors in the State making a total of seventy-nine under the present system.  Then how would it be damaging to the Constitution before the people for it to go out that we recommend only sixty-six. I can point you to three counties in this State that have three and four solicitors each. The county of Calhoun today has a circuit solicitor, a city court solicitor, with concurrent jurisdiction, and the deputy county solicitor--three in one county.  The gentleman from Madison tells me, the same thing exists in the County of Madison. I believe there are four in the county of Jefferson, and there is no reflection upon any gentleman there. It is on the line of reform and economy that I speak. Last year the State of Alabama according to the Auditor’s report paid to circuit solicitors of this State, $32,122, and those thirteen circuit court solicitors paid into the State Treasury in fees that they earned, $19,053, making a total loss to the State of Alabama of $12,169 on thirteen officers. Can you make it any worse than that? (Laughter.)

MR. FERGUSON–Entailing loss to the State of Alabama?

MR. GRAHAM‑ To the State of Alabama a loss of $12,000 in round numbers for thirteen men. The thirteen circuit solicitors had sixteen counties carved out of their circuits in which all of the fees went to the local solicitors.


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MR. FERGUSON‑I wish to ask another question. The Judges and Chancellors and other State officers, are they required to pay their way as they go?

MR. GRAHAM ‑No sir, because they are not on fees and never were. The fee system has been in existence all the while for solicitors and they have turned the fees into the State Treasury, until the change to a salary basis and the State has lost $12,000.

MR. FERGUSON ‑May I ask the gentleman another question?

MR. GRAHAM‑I have only five minutes more time, and I must decline to yield. I decline simply from lack of time without any intention to be discourteous. I would like to have an all day discussion with the gentleman and dinner on the ground, if we had the time. (Laughter.)

Thirteen circuit solicitors who lost the State $12,000. Can you make it any worse? There are sixteen county or city solicitors who retain their fees in local counties and do not contribute anything to the State. How does this sound with reference to counties? Here is a little Populite county where they have "no lawyers big enough to be solicitors." The little county of Franklin, represented here by Populist Byars, pays into the State treasury $1,026 for fees in one year, and the great big Democratic county of Hale pays in $44. (Applause).

What is it but this iniquitous system that makes the discrimination? The little county like Franklin with Populites contributing more than $1,000 a year, and the great big county like Hale with three or four representatives here in the Democratic party contributing only $44.

MR. deGRAFFENREID ‑The people are law abiding in Hale county.

MR. GRAHAM ‑Now there is another argument I wish to use here. I did not by the way use the term Populite in derision. I used it to answer these gentlemen who argue that if they adopt this system, it will work to the good of Populites or Republicans in small counties. Gentlemen, are we here to frame a Constitution which says the Democratic party shall forever be perpetuated in control of this State, or are we here on the higher plane, to reform the suffrage, and base the privilege of voting on intelligence and virtue, and then let the intelligence and virtue of the State rule and dominate it without reference to the party in which it may be found? I am a born partisan and will always be a partisan, but God forbid that I should ever become so narrow minded and so small that I would deny the right to rule to the intelligence and virtue of this country, simply because it may be transferred to the Republican or some other party. We cannot make the solicitor


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system any worse. They say corrupt influence will get in, that Republicans and Populists will be elected. I would like to know if the Democrats don't get out in the open and take their chances of electing Probate Judges and Sheriffs and all county officials? Is the election of Probate Judges of less importance in this State than the office of solicitor? I would like for you to answer that question. They say that it will be corrupt. I cast no reflection on any solicitor in this State, but it seems from reading the reports of solicitors made to the Attorney-General that the saloon men and gamblers, except negro crap shooters, are "immunes" under the present system. You cannot make it any worse. There were only 45 cases coming from the entire State of Alabama last year, where the saloon men were prosecuted for selling liquor to minors. Do you believe that would represent anything like the violations of the law on that line? They say that cases will be nol prossed. The report of the Attorney-General shows that 2,200 cases out of 10,000 were nol grossed last year. Can you make it any worse? I am not a candidate for solicitor or any other office, and have none in contemplation. None in the world.

PRESIDENT–Time is up.

MR. HARRISON–Mr. President, though scarcely able to talk, I feel that this is a very important question, and I desire to say a few words in regard to it.  As a delegate to the Constitutional Convention in 1875  I remember well the pressure that was brought upon that body to change from a system that this Convention now seems desirous by vote on yesterday to again follow.  It was not as I remember it, Mr. President, because they were Republicans, but it was because of the abuses of county solicitors, not only by Republicans, but in counties where they had Democrats.  The people  almost en masse, as I remember, came before that Convention and through their delegates, demanded the abolition of county solicitors, and that we should return to the system of the State prior to the war, and have circuit solicitors.  Why was is?  Just as it exists today, you will find, Mr. President, that in a majority of the counties of this State, in the first place, you will be unable to secure a proper man to represent the State of Alabama in important cases, for what fees they will make in a single county.  The average county will not afford enough income for a lawyer to lay aside his business and undertake the prosecution of criminals.  If he does, he will abandon his practice, and we will have a very obnoxious system of prosecuting every sort of case.  I remember will in my own county that the County court under this system was one of almost perpetual motion, every character of case being presented and the sitting almost every day.  We best judge others by ourselves.  Let a man lay aside his practice and undertake to prosecute criminals, and making a livelihood by it, he will yield to the solicitation of every darkey to prosecute these trivial offenses, profane language, vulgar language in the presence of women, as-


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sault and battery among negroes, and every county in the State is run to an expense that is outrageous. That was the practice among county solicitors before, and I say it will be under the proposed system.

MR. BOONE‑ Were they not under the fee system then, and now they are under the salary system. Would a man under salary try to put all this work on himself when it isn't necessary?

MR. HARRISON‑I do not know what the effect will be. I understand by your system you do not propose to pay a salary, but you leave it to the Legislature.

MR. ASHCRAFT‑ Put them on a salary.

MR. HARRISON‑ Well if that is the system, you cannot get competent men to prosecute for the State in these cases under a salary. The Legislature will never fix it on earth in the average county, so that you can get a proper man to represent the State. In case of murder, arson and these cases, we need the best talent in the State to prosecute these cases. I heard a brother lawyer say to me on the street that it would help the profession, because the other fellow will employ some fellow to assist him. That may be, but have we come to the pass that men have got to be employed to prosecute for the State in cases of murder and arson where the dignity of the State is involved. I say, take the average county, and the average deputy solicitor, now, and in reply to my friend from Talladega, so far as doing away with these county deputy solicitors, I am in favor of it now. If is the only objection I see in the plan, that when we changed from county solicitors we did not put in a provision that they should not have any deputies. I do not refer to the cities and towns. The mere fact they have a little deputy if you go into these counties where they have them, you will find many of these nol prossed cases that were referred to by the delegate from Talladega, grow out of the fact that these deputies are hunting up little cases, which are bound over to the Grand Jury and bills are obtained on frivolous cases that the circuit solicitor does not think the interest of the State demands should be prosecuted, and they are nol prossed. I believe if we had solicitors enough in the circuit they would properly represent the State. Keep proper and competent men. It is to the best interest of the State. I am opposed to the election of those officers. I do not believe it is demanded by the people. I do not believe that the good of the State demands that they should be elected. The principal duties required of him in many cases if he does his duty, it will make men mad. He ought to make them mad. It is his duty to prosecute and he should not be amenable especially there at home.  It would be much better to elect by the Legislature. In many instances, if he does his duty properly, he will defend a criminal and defend a great many people and of all the officers that are elected or appointed. I think the solicitor is one that should be elected by a


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different body than the county or district. That he should be elected by the Legislature or some other tribunal, and not on account of his popularity, for if he does his duty, he will not be very popular after the first experience. In the next place, I submit this would not secure proper men. In the first place, lawyers such as we should have to represent the State of Alabama would not be secured for the salary that this system would secure to them. I am speaking about the average county.  Some of the counties would. Therefore I insist on the idea that we want as prosecuting officers, the best talent in the State. As has been said by the delegate from Walker, we want men who have made criminal prosecution a specialty, who are willing to devote their life to it.

MR. PITTS (Dallas) ‑I had the honor to represent the Fourth Judicial Circuit of this State from 1880 to 1882 as solicitor. I was not a candidate for that office, so I have no interest in the matter except to the good of my country. The gentleman who has just taken his seat has insisted that prior to 1874, the office of county solicitor was very obnoxious. Why was it then? Because prior to 1874, who were the judges in this State? Prior to 1874, when Houston was elected.  Who proposed the juries? Republicans mostly. The county solicitor then and now, cannot issue a process without the consent of the judge. Now, in those times, a judge and solicitor combined together as it were, that whenever he made application for a warrant to be issued, the judge at once issued it.  Now, there is a great deal of difference between then and now, and an entirely different system prevails. We have, as it were, Democratic probate judges in nearly all of the counties of the State, and we have Democratic circuit judges, but that is immaterial. Let us get down to the principle of the matter. Now it is said and it is so reported by the committee that they propose to elect the solicitors, circuit solicitors, by the people. Well now, why if that is right, why not elect county solicitors by the people? The majority of the committee reported that the circuit solicitors ought to be elected by the people of the circuit. Well, if the circuit is capable of electing them, why is not the county capable, where he is better known, and if he is not qualified, the good people of the county will not elect him.  I would much rather, if I had it in my power to elect solicitors, other than by the election of the people, I would much prefer to elect them by the people than by the Legislature, because the people know who are the candidates and they know whether or not they will perform their duty.  Now, I will say further on this line that it is said that in some counties good men will not be elected.  If a majority of the people of a county are opposed to enforcing the law, it does not make any difference what kind of solicitor you get, they would not enforce it, because they compose the juries and if they are against enforcing the law, if an indictment is found against a person, the solicitor, no matter how able he may be, they will acquit him.  My observation and ex-


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perience is, the good people Want the law enforced and will uphold the solicitor and if a county in this State has become so bad that the majority of the people in that county are opposed to enforce the law, I say let them carry it a while and they will see the error of their way, but because there are some counties in the State who are not in favor of enforcing the law, do not say to those people who are in favor of enforcing the law that you shall not leave a system by which they will enforce the law.

Now another thing. The judges are elected by the people. They talk about since 1819 the Legislature has elected chancellor or circuit judge and have one year elected the circuit judges,  and in fact up to 1875. Is there any complaint about the people  electing their circuit judges? Don't they give us good judges ?  Is there any complaint about it? None at all.  Now is there any complaint about the circuit solicitors ? Now you have heard what the gentleman front Talladega has said, there is universal complaint against the enforcement of the law.

MR. deGRAFFENREID-‑ Can I ask the gentleman a question? Would it not be just as consistent to abolish the chancellor or circuit judge and have one judge with plenary jurisdiction and powers for each county as to abolish the solicitor?

MR. PITTS-‑That is the tendency right now in every county of 20,000 inhabitants to have one judge, (applause) and I am in favor of it, and it has been adopted.

Mr. President, I did not propose to say anything about it, but there are delegates on the floor of this Convention who leave witnessed violations of the law in my county, who have been there on one occasion, and there are delegates here, if they will testify to it who have seen where open barrooms were kept in violation of the law, where blind tigers were kept and where gambling rooms were open, and the solicitor was right there a witness to it and yet no indictment was ever presented or ever will he presented.

I want it so that the county solicitor will be elected by the people, and if he fails to enforce the law that the people may hold him responsible for it. I think the proper way to do it is to make the people responsible for the election of their solicitors. A man who comes up here with three or four votes behind him can trade himself into office. It has been done and it has been frequently done and the will of the people has be defeated.

MR. GREENE (Greene)‑Was this a county solicitor?

MR. PITTS‑ It was a circuit solicitor right there, a witness to the whole of it, and no indictment was ever presented or ever will be presented. I believe if it had been a county solicitor the people would have said to him, you have failed to perform your duty, but what call they say to a circuit solicitor?  They don't


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elect him, and he can say I am not dependent upon you at all for election. I am dependent upon the other counties. They say, this body is composed of a great many lawyers and it will be creating offices for the lawyers. That is idle talk, talk to the winds. Don't anybody pay any attention to that. It is said for the purpose of intimidating the lawyers of this Convention.

If any lawyers in this Convention can be intimidated with any such speech as that, they are certainly not fit to represent the people of Alabama as solicitors.  Out of sixty-six counties in the State, I say that sixty-four of them have lawyers able enough to represent the State of Alabama.  If that is true, why defeat a system that is the best thing in order to satisfy two counties.  But I go further, they say a good many Republicans and Populists will be elected.  I am a Democrat, and I am a black belt Democrat and I believe about as good as any of them, but I want to say, and I am not ashamed of it, if a majority of white people in the country are Populists, I believe they ought to control it.  If a majority of people in the county say they believe in certain principles, the minority ought to yield, and allow them to have it, just as the majority of Democrats in a county insist that they have a right to control it. If they want to elect a Populite, I know Populists just as good as any Democrats.  If they want to elect a Populite, let them elect him if a majority of the people in the county want him.  Hold him responsible for the enforcement of the law.  Now that is the only form of government we have–that the majority must rule and I believe in it, and I believe in local self government and believe in letting the people in the county say whether or not they want a certain man for solicitor, and if they don’t hold him responsible, they will be responsible themselves.

MR. COLEMAN (Greene)–Mr. President and gentlemen of the Convention, my friend who has just taken his seat told you of the condition of affairs in his circuit; that a circuit solicitor had knowledge of the open violation of law, and that the parties had never been indicted and never would be.  Now, I wish to call your attention to the fact which of itself would satisfy me of the wrong of the plan suggested by him.  I ask him to rise in his seat and say whether or not the solicitor selected was not chosen by a primary vote of the people?

MR. PITTS–Yes sir, he was.

MR. COLEMAN (Greene)–Ah, he was.  Who wants any better argument, Mr. President, to show that the election of solicitors will not answer the ends of justice in this State?  His own argument and his own solicitor have demonstrated that this is a power and a proposition you cannot in trust to the people by their vote.


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Mr. President and delegates of this Convention, you find the same disposition and the same principle prevailing throughout this State when you entrust the duties of a prosecuting officer to

a man selected by the people. When I read the report of the committee and saw that the election was to be either by the Legislature or by the people, I cared very little for the two principles or plans. To my mind, as an individual with some experience in the office, it seemed to me that the old plan was the best; that it comported more with the dignity of the office than the new idea suggested here; that it had been tried a long time and had proven effective and satisfactory to the State. But while not concurring in the wisdom of the conclusion that the people should elect them I expected not to raise my voice one way or the other, but had I known or dreamed that there would have been such an innovation upon the system as to abolish the circuit solicitors and go back to the election of county solicitors, I surely would have been in my seat yesterday morning, at all hazard, to raise my protest against a plan so perilous to the proper enforcement of the criminal laws in this State.

It has been stated here tine and again that high crimes go unwhipped of justice even now, and it has been paraded before you, the fees received by county solicitors. The plan is not properly understood by everybody. It is only those who have had experience in these matters, who are able to trace and lay before you the reason why some solicitors do not receive or collect more fees than their salaries. The Legislature has time and again established county courts in the various counties. It is the misdemeanor fees which make the income of the office, and not the felonies, and the county solicitors prosecuting in the county courts collect the fees for the misdemeanors, and the Circuit Court solicitor has been made responsible for prosecuting the felonies and seeing that the higher crimes are prosecuted and punished. That is the reason the gentleman from Talladega has made out that only $44 were collected in Hale county. The reason of it is they have a County Court system there established by the Legislature, where all misdemeanors are tried, and fortunately for Hale county they have a very efficient prosecuting attorney for the county. The gentleman should look one county higher, to the county I have the honor to represent, Greene, and see that the fees were over $1,300, and he may go through the list. There are counties where the solicitor has no opportunity to prosecute for any other crimes than felonies, and his fees are necessarily low, but it is the only way you can have high crimes and heinous crimes prosecuted.

MR. FOSTER‑Is it not a fact that also in these county courts the excess over the solicitor's salary is paid into the State treasury?

MR. COLEMAN‑I was coming to that; these are legislative provisions. It is not because the people do not get the benefit of


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the fee system. The excess goes to the county and not to the State.

MR. GRAHAM ‑Will the gentleman allow Me to ask him a question?

PRESIDENT‑ Will the gentleman from Greene yield?

MR. COLEMAN‑‑I will once more yield.

MR. GRAHAM (Talladega)‑Is it not a fact that in all these county courts, with possibly one exception, the solicitor gets all the fees, the one exception being Pike County?

MR. FOSTER‑ No, sir.

MR. COLEMAN (Greene)‑Mr. President and Delegates of the Convention: My information is that the fact is exactly the opposite. The people of the county get the benefit of it.  But since the gentleman has seen proper to interrupt me, I do not wish a statement as reported by the stenographer of his speech yesterday morning to go unchallenged. It is reported here that he said "We want to say that the solicitorships in this State are not hereditary on that line," and when I read that this morning, I was reminded of what old Polonius said about Hamlet, "still harping on my daughter," and he went on to say, "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 qualifications or whether the people want him or not.

I ask the gentleman the question, who is it that has been put upon the slate and elected by the Legislature without having qualifications? 1 think, Mr. President, that the nominee of the Democratic party in the district where the gentleman resides is his equal in point of law, and I do not think there is any cause for complaint upon the action of the Legislature in selecting a man who has the privilege of being an opponent of his. I say, if he had in special view any one man when he made these declarations, it was without justification.

Now, Mr. President and delegates of this Convention, the people of Alabama had no idea that this Convention would undertake to re‑establish the system of county solicitors. In my own county, there is not a man who could be induced to take the office who is competent to fill the office for the salary you could pay him for performing its duties. There are counties around me where they have more criminal business, where they have competent men who are filling the office acceptably and well, and I do say that the great ends of justice would be defeated by re‑establishing the system of county solicitors. It is not fair to the State. It is not fair to the counties in this State, who had no such view in


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contemplation. Why not leave it to the Legislature, where it is and where it has always been? What wrong has been done? Why the gentleman speaks of a court up here in Clay County. That was done, of course, through the Legislature, and I hope the delegates of this Convention will remember that those occurrences cannot be repeated any more under the provisions of this Constitution.

MR. PITTS‑I would like to ask how many counties are in the Seventh Circuit?

MR. COLEMAN (Greene)‑I don't know.

MR. PITTS‑ Are there not only six, and haven't they got four county solicitors in these?

MR. COLEMAN (Greene)‑I don't know. I am speaking on general principles. It is hardly fair to me to ask a question and not let me answer it fully, but I know very well where there are cities and towns where it would pay a good lawyer to represent the State. Shall the interests of the State be sacrificed for the benefit of a few counties or cities in this State? The gentleman speaks of the prosecuting attorney for Montgomery. Who elected him ? The Legislature and not the people. There are cities in the State where if it is relegated to the people who will defy law and order, the beer saloon, the rum seller and the gambler will elect him, and law and order will be overthrown, but so long as it is trusted to the people of the State, you are safe in your prosecuting attorneys. I wish I had half an hour.

MR. BOONE‑ The delegate from Walker said that there are a good many rnen in this Convention and hereabouts who had aspired for the position of solicitors and had failed, and that there were a good many hereabout with sore toes. I would say that it seems to me that there are more toes in this Convention that are afraid of getting bruised than there are sore toes. Now, I want to ask you, gentlemen, what would be the condition in this State, so far as the enforcement of the criminal law is concerned, if we did away with all of the county solicitors or deputy solicitors in the State of Alabama, from and after the adoption of this Constitution?  Don't you know it is a fact that those men who are in the counties and who prepare the cases, who put them before the grand jury, who are conversant with the witnesses, who know the character and the standing of the men who are to testify on the one side and the other, know more about preparing that case and what is the proper way to treat that case in the selection of the jury than the solicitor of that circuit who is not in that county.

MR. COLEMAN‑ Don't you know it to be the law that when a justice of the peace tries a case he must take a note of the testimony and send it up for the use of the solicitors?


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MR. BOONE‑ Yes, sir; I know that is the law, but I would like to ask the gentleman how many justices of the peace in Alabama carry out the law in any particular?

MR. COLEMAN‑I would like to say to him that it is a misdemeanor not to do so and he is liable for indictment, and in my twelve or fifteen years' experience in the office of solicitor, they never failed more than once or twice to carry out the law. I will ask the gentleman, have you had any experience in the office?

MR. BOONE--No, sir;  I have not and do not expect to have any, and I haven't any relatives that are in the office, either.

Now, I say that, unfortunately for the State, we have not always had as vigorous and painstaking solicitor as the gentleman from Greene, he did make a distinguished solicitor, but we have not that caliber of men throughout the State today , as solicitors for the State of Alabama.  Now on the question of ability.  The delegate from Lee said that it should always be the paramount question of fitness or capacity for the office.  I agree with him, but I remember what took place in that hall in 1892, when a man who had been elected by the Legislature in 1886 as Solicitor from Mobile County, exclusively for that county, came back here in November, 1892, for re-election.  He was endorsed by the bar, he was endorsed by the bench, by the preachers, by the merchants, by the mechanics, and the laborers, no reflection, he had made as able a solicitor as was in the State of Alabama.  What was the question?  What was he told?  That they did not care two pence about his ability, not two pence about what the people of Mobile county want, but the question he wanted to be heard upon was the proposition, that and none other, how many votes could he put in the combination?  (Applause.)  That is all I have to say.  I contend that the steam cannot rise higher than its source. If this stream that comes from the people is so polluted, if they cannot be trusted, then they are incapable of preserving a Republican form of government, and you cannot get representatives in the Legislature coming from such an evil source, from which purity and sunshine and liberty and justice should ever flow.

MR. COLEMAN–Permit me to ask a question?  Do you undertake to tell this Convention that Mr. Webb, who was elected by the Legislature, was not the equal of any other man?

MR. BOONE–I will not.  Mr. Webb is my warm personal and political friend.  You have not seen him here.  He says if he cannot be elected by the people of Mobile County as Solicitor, he don’t want the job.  (Applause.)

MR. JONES (Wilcox)–I am not one of those who take issue with the proposition that solicitors should be elected by the Legislature.


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My distinguished friend from Jefferson, who had to leave here on business, paired with me on that question. I favor the minority report of the Committee on Judiciary, that favored the election of solicitors by the Legislature of the State. Mr. President, I lived in the times when we had County Solicitors in Alabama. It is true that in these days the Republicans were in control, but that was not all over the State, and I tell you that they did not have men of ability as County Solicitors to represent the people of Alabama in the prosecution of criminals. I lay this proposition down that the Solicitors should be as far as possible removed from the people. I am not interested in any way in any Solicitor in Alabama. I have not seen one of them here. I have not been in correspondence with any one of them. I am not related to a Circuit Solicitor or connected with a Circuit Solicitor in Alabama. I stand here, Mr. President, as one of the delegates of the State, representing the people, and doing what I think is for their best interest. Now, Mr. President, we know that there could be corruption in the Legislature as well as in the primaries.  My friend, Mr. Pitts, who just spoke awhile ago, said that the Legislature would be traded with. If there can be trades made with the candidates for Solicitor, with the Legislature, can it not be done with the primaries in the counties? It can be done just as well and easier in the primaries than it can be done in the Legislature of Alabama. I am not one of those who censure the Legislature. I suppose that I ought to be considered unfortunate that nineteen years ago, at the earliest request of my people, I was Senator from the district in which I lived. We had men in the Senate as Governor Samford, the lamented Seay and Hargrove, General Harrison and Troy, and a number of other gentlemen who would have reflected credit on any State in the South, they were incorruptible, and it was so in the Lower House, and I do not know, have not kept up much with the Legislatures in later years, but I believe that they are just as incorruptible as the Legislatures with which I was connected. I believe we can trust them. I know we can send honorable and incorruptible legislators here to the Legislature of Alabama. Solicitors should be as far removed as possible from the people. You know how it would be if they were elected in the county. They would have heated contests, and it would be human nature that they would favor personal friends. I read a short while ago the recollections of Reuben Davis of Mississippi and Mississippian. He was a Solicitor, elected by the people, (the Circuit Solicitors were elected by the people), and he was so much embarrassed when he started out on his circuit, it had been a close contest, and he had put himself under obligations to prominent men. In the first county, he paid $500 to the Clerk of the Court with the consent of the Judge to allow the friends of the deceased to employ counsel to prosecute a man who had supported him in the canvass‑-that he could not do his duty in the prosecution. Shortly after that another


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friend of his who had been indicted for murder when the case was called, rather than prosecute him, he resigned the office of Solicitor and went back to his law practice. When you have men near home‑-take it in a county where there are two gentlemen running for the office and the contest is narrowed down so that both of them exert themselves in every way possible to secure an election. The man who is elected is under obligations to his friends who assisted him, would he not feel embarrassed in representing the State of Alabama? Mr. President, there is another thing.  In 1975 the people of Alabama in Convention assembled changed that old system, and this Committee in this Convention have adopted the report of that Committee, in 1875, the minority report so far as electing solicitors by the legislature of Alabama. They have taken the right shoot, and the members of this Convention will regret it if they change this whole system. It will be indefensible before the whole people. They will say that when you carne here, you are in for helping lawyers, and have now provided for one in every county in the State.  Can you do it? I tell you, gentlemen, it will work against the adoption of the Constitution in this State. There is another thing. There are some counties in this State that cannot support County Solicitors, and they cannot get men of first-class ability, without proper compensation.  Take my friend, Mr. Pitts, I am glad he spoke; he was a circuit solicitor, an able and honest one. We have tried many cases when we were against each other, and I never cared whether I had anything in writing with Henry Pitts, I knew that he would do exactly what he said, and he was a man not only of ability and honesty but he was an honor to the office of solicitor, I am proud to say. But would he be solicitor of Dallas county now? Could you get him to take the place? The very fact that he was willing to represent the people of the State as solicitor for a circuit, that he were able to get a man of his ability, shows what character of men the Legislature as a rule selected for the people of Alabama, because he was a representative of that class. I do not know the circuit solicitors personally, I do not know one-third of the legislators who elected the solicitors, I was not here. I have not heard of a single one of the Legislature who were legislators who were corrupted—

THE PRESIDENT–The time of the gentleman has expired.

MR. CRAIG‑I am not interested in this matter in any way, shap or form, except as a citizen of Dallas county and the State of Alabama. I would not have said anything on this occasion except for the fact that reflection has been cast upon the solicitor for the 4th circuit in which I reside. I want to say here that I have lived in the State of Alabama all of my life and in the very same spot almost where I was born. I have known the solicitors from Joe A. Stallworth down to the present time. I have never known more faithful men in any office. Stallworth, Gaillard, Dawson,


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Pitts and the present solicitor. I can say on this floor that of all these men, none more faithfully, none more honest than the present solicitor the statements made here to the contrary notwithstanding, I am in favor of the people electing every officer in this State to rule them from Governor to Constable. I want no man nominated to office in this State, and I have introduced a resolution to that effect. We have seen things happen until we thought that we were in the hands of a Platt or a Quay. I am in favor of electing solicitors by the county and let the people say who they shall be. In the last election, it was said our solicitor was elected by primary.  He was not elected by primary.  There were two honorable men contending for the office. They agreed to submit it to a vote of the people and whoever got the majority came to the Legislature and was elected, which was done. Both were honorable men, both would make good solicitors, and there can be no reflection upon the present solicitor. I have lived in Dallas all my life, over sixty years. I have known hundreds of murders in that county and not a single white man has ever been hung in the county, and only two that I know of have been sent to the penitentiary, and the Governor turned them both out, and just as soon as one was turned loose, he might as well have turned loose a wild beast, he had killed two men and soon after he killed another man. The other one is loose now and we don't know when he will turn up and kill somebody else. A gentleman who was solicitor on one occasion told the jury "turn this man loose, you might just as well turn a man loose in this State to shoot down any man he pleases as to have the Governor turn him out of the penitentiary, who was not hung." The present solicitor has discharged his duties as well as any solicitor, he cannot make a jury indict a roan, he can call the witnesses and submit the testimony to the grand jury, but he has to leave the grand jury room and let them vote on it. A few weeks ago, a man waited on me about the franchise, what they wanted and what they did not want. I called attention to the fact that a short time ago across the river, three negroes were killed, I had asked, do you know who killed them? No. I Never will know. The very man who killed them would be on the grand or petit jury. How could a solicitor convict them under that condition of things? If he does his duty, that is all he can do. I have a letter from our solicitor who says: "I have considered the matter of selecting solicitors and have a fixed opinion upon the subject.  Every official in the State including Railroad Commissioners, should, in my judgment, be elected by the people whom they serve." I endorse every word of that. He says further: "Especially if the new Constitution restricting the suffrage is ratified, if the voters and particularly the voters hereafter cannot elect the solicitors they are not fit to be trusted with the election of any office." That is what I say, if we cannot elect the solicitors, to attend to our affairs in our counties, then we are not fit to elect


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anybody.  I yield the balance of my time to Mr. Carmichael of Colbert.

THE PRESIDENT—There remains five minutes of the gentleman's time.

MR. CARMICHAEL–Have I not time of my own?

THE PRESIDENT–The gentleman has not been recognized except to discuss the question in the time of the gentleman from Dallas.

MR. HEFLIN (Chambers)–I move that the time of the gentleman be extended so as to give him ten minutes.

The additional time was accorded.

MR. CARMICHAEL (Colbert) -‑Mr. President and gentlemen of the Convention. I have been, but am not now, a circuit solicitor.  I have never been defeated in my aspirations for that office, nor am I a candidate for that place, and I think I can speak with some degree of information and with perfect impartiality on that subject.

I submit to this Convention that there ought not to be any change in the old Constitution unless there be an imperious necessity for it.  I fear, Mr. President, that some gentlemen have a greater desire to write their names in the Constitution, just to see how they will look, rather than to consider the public good.  Now, Mr. President, has there been or is there a demand for a change along this line?  So far as I am informed, there is not.  These gentlemen who lived in the days when we had county solicitors hold up their hands and warn us against this plan.  There is no complaint of the solicitors who hold office at this time, and I want to say, Mr. President, that so far as I am informed on this subject the solicitors of Alabama have not been the subject of criticism for lack of discharge of duty.  There has been no canvass among the people along this line.  Who demands it that this office of circuit solicitor be abolished?  Where did it originate?  When the people have not demanded it, Mr. President, but going back to what I said before, unless there is a pressing necessity for it, then we ought to let well enough alone.  I oppose the institution of county solicitor, I oppose the election of solicitor by the people.  Why do I say that it is wrong to abolish the circuit sololicitor, and establish county solicitors?  For we ought to retain the system which we now have.  How many counties are there in the State?  There are sixty-six.  What would be the expense now of paying these county solicitors.  Do you expect to get a man of ability to prosecute for $1,000 a year?  Then that would be $6,000.  I lay down the proposition, Mr. President, that it would not cost the State of Alabama less than $75,000 to get anything like the service we have now form the circuit solicitors.  It


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only costs now, according to the statement of the gentleman, $29,000; that is the amount that these circuit solicitors are paid. Then you propose to appoint or elect county solicitors for sixty-six counties in the State. Suppose you do not pay them a salary, but pay them fees. Now there, Mr. President, I submit to this Convention, is the test of this system. Now, the gentlemen from Talladega proposes in order to save the State of Alabama $12,000 a year, to appoint and employ sixty-six detectives in Alabama and set them and turn them loose upon the people of Alabama. That would be the effect of it if you establish a fee system. If you establish a salary system, it would almost bankrupt the State of Alabama to pay the salaries.

MR. GRAHAM‑ Do you propose to abolish the fee system on your salary plan, and not turn the fee into the treasury to pay the salaries ?

MR. CARMICHAEL ‑Let it stay as it is.

MR. GRAHAM‑ Then you do not abolish it?

MR. CARMICHAEL-‑No, but the solicitor has not the same interest.

MR. GRAHAM‑ It would go into the State treasury.

MR. CARMICHAEL--No, sir. I do not believe that it would be wise to turn the county solicitors upon the people, to go into all kinds of litigation, and make all sorts of charges. I submit now on the question of expense, I want to answer the proposition of the gentleman from Talladega. Now, the total amount paid is $29,000, and the amount paid by the solicitors is $19,000, but that does not include felony cases, because in felony cases $12,850 is paid in the convict department, leaving a loss to the State of only $4,000 on these solicitors; so that they are not expensive now, and there is no man that will say the service will be better; there is no one that will say that it is in the interest of law and order. Some men will say it will prevent the Legislature from playing those tricks that they have been playing. Suppose they have done trading; has the service suffered, haven't they got good men to discharge the duties; is not the interest of the State protected?

Now, Mr. President, I submit this : I would be willing to abolish the deputy solicitors entirely. I would be willing to say that the solicitor should never hold court in the circuit for which he is elected but one time. Why ? I think it is of the utmost importance that the solicitor should be above reproach ; that they should be outside of temptation. Some men say you elect your judges; what is the difference? The difference is this, the judge acts in the open; everything he does from the bench is subject to inspection, whereas the solicitor does his business in the grand jury room; he takes the witnesses, and goes into the consultation


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room, and returns to the court room and says, "If your honor please, there is nothing in that case, and I desire to nol prosse it. Who knows whether there is anything in the case or not?  The lawyer trying the case before the judge says I accept the ruling of the court. Who excepts to the action of the solicitor? Who knows what has happened in the star chamber? I submit it is a dangerous thing; it would be a scramble. I insist in all these counties it would institute a scramble among the law‑breakers for the control of the solicitor, and for the election of a solicitor.  Now those men who have been solicitors know how hard it is to prosecute a friend‑-a man to whom he was under obligation; a good man. There is no duty on earth that is similar to it. To be called on to prosecute a man to whom you are under obligation.  But suppose you are called upon to prosecute a bad man that you are under obligation to. Who can say that solicitors are not human beings; who will say that a man will not be inclined to meet the emergency ? Here are two candidates running for solicitor.  One of them proposes to make the race on a high plane, looking to law and order—

MR. HOOD‑ Do you undertake to say that the criminal law is not enforced in those counties equally and effectually as they are in those counties that have circuit solicitors?

MR. CARMICHAEL ‑ I am not informed in all of those counties; in some of those counties I have no doubt that the law is enforced equally as well.

MR. HOOD‑ Do not the records show?

MR. CARMICHAEL– I will state for those counties they are not elected by the people.

MR. HOOD‑ Does not the record show that the criminal law is equally enforced?

MR. CARMICHAEL– They are not elected by the people.  And I would suggest in that connection, that we ought to have a man for solicitor who is a specialist– that is the practice of the age– a specialist in that line. Now, Mr. President, I move the previous question upon the motion to reconsider.

MR. ASHCRAFT‑I trust the gentleman‑ will I be in time to conclude the argument?

THE PRESIDENT‑ The gentleman who made the motion would be entitled to close.

MR. ASHCRAFT‑I appeal to the gentleman to withdraw his motion.

THE PRESIDENT‑ The gentleman from Colbert moves the previous question. The question is shall the main question be now put?


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The main question was ordered.

MR. WATTS‑-I demand the ayes and noes.

MR. deGRAFFENREID‑ I believe I have the floor under the rules.

THE PRESIDENT‑ It seems to the Chair, under the rules, the gentleman who made the motion would have the right to conclude.

MR. GRAHAM (Talladega)‑I do not believe that applies to a motion to reconsider. I would like to see the rules.

THE PRESIDENT‑ The Chair will consult the rules.

MR. deGRAFFENREID ‑The rule provides that the mover of the resolution will have the right to close when the previous question is ordered.

THE PRESIDENT ‑ It seems to the Chair that Rule 17 reads: "The previous question shall be in the following form: Shall the main question be put? If demanded by a vote of a majority of the delegates present, its effect shall be to cut off all debate and bring the Convention to a direct vote, but the mover of the question, or the Chairman of the Committee having charge of the ordinance or resolution, shall have the right to close the debate, after the call of the previous question has been sustained, unless the Convention extends that time. The demand for the previous question may be limited by them over to any subsidiary motion or motions not of a higher rank than the motion for the previous question or made to apply to the main question and all subsidiary motions."

MR. GRAHAM (Talladega)‑I make the point that this is neither an ordinance nor a resolution.

THE PRESIDENT ‑"The mover of the question," but the "mover of the question or Chairman of the Committee having charge of the ordinance or resolution shall have the right to close a debate." It seems to the Chair that the right to conclude rests with the gentleman from Hale. The question is, whether he will yield any time to the other side.

MR. GRAHAM‑Is that true, Mr. President, where he has already made a speech on the matter.

THE PRESIDENT‑ That brings up another question.

MR. deGRAPFENREID ‑ That is true, no member shall speak more than once, but the mover of a resolution may speak twice.

THE PRESIDENT‑ No delegate shall speak more than once to the same question, without leave of Convention, unless he be the


3672                                          

OFFICIAL PROCEEDINGS

mover of the chairman of the Committee.  It seems to the Chair that the gentleman is entitled to close.

MR. deGRAFFENREID– I want to say to the Convention that I shall occupy only two or three minutes of the time of the Convention in my closing remarks. I will simply call attention to the Convention that will prevail in the event this motion to reconsider is adopted by the House.  This discussion has taken a broader range than the circumstances justify, because we have been discussing questions that will come before the Convention in the event that this motion to reconsider is adopted.  The Section which was adopted on yesterday provides for the selection of County Solicitors by the people.  If this motion is reconsidered, we go back to the report of the Committee on this subject.  That report provides for the selection of solicitors for the circuits by a vote of the people, and there is a minority report which provides for their selection by the General Assembly, so that if this vote is reconsidered, you will then have before you the question as to whether or not you will adopt the majority or the minority report or whether or not you will amend it in such form as you see proper.  In other words, if there are gentlemen here who are opposed to the abolition of the Circuit Solicitors, but who favor the election of solicitors by the people, those delegates can consistently vote for the motion to reconsider.

MR. WATTS–There is no further question before the Convention as to electing Circuit Solicitors by the people.  Has not that been disposed of?

MR. deGRAFFENREID –Yes sir, but it was disposed of by this amendment which I now move to reconsider.

MR. WATTS–I understood you to say that the Convention would have a chance to vote on that.

MR. deGRAFFENREID –The Convention can have a chance and any delegate can introduce any resolution he sees proper in reference to Solicitors.

MR. HOOD–Is it not true you did not move to reconsider the vote whereby the report of the Committee was lost in reference to solicitors?

MR. deGRAFFENREID –No sir.

MR. HOOD–And that question is now before the Convention?

MR. deGRAFFENREID–No sir.  Because this was simply adopted as a substitute and if you destroy the substitute, the original Section stands, and if not, you could introduce a Section to take its place.  The delegate understands that.  Now, on the subject of county solicitorship, as to whether the Convention made


3673

CONSTITUTIONAL CONVENTION, 1901

a mistake in providing for their election by the people. The Solicitor is a person of some power and we all know, that if the Legislature permits him to succeed himself, that that office will furnish him, unless he be a man of first-class character, great leverage to secure his re‑election and to perpetuate himself in office. There is no doubt about that. Now, something has been said, (and I will reply to it now), about the method which prevails in the State of electing Solicitors by the Legislature. The gentleman from Mobile, Mr. Boone, refers to the fact that some time since, I do not remember when, a candidate for solicitor came before the General Assembly with the endorsement of the bar, the ministers and various people of Mobile, but he did not have any votes to put into a combination and was defeated. I call your attention to the fact that no system was ever devised by God or man that has not been made the subject of abuse or fraud. In ancient tinges, amid the solemnities that surrounded the summit of a sacred mountain, God delivered to Moses the Ten Commandments on tables of stone.  We all know that mankind has been breaking them ever since. They are not like the clause in the old Constitution about railroad passes. They are self-executing. To violate them means to incur a penalty in this world and in the next, but each day we see them violated by weak or vicious men.

Abuses have occurred in the election of solicitors by the Legislature, but abuses have frequently occurred, also, in primary elections, in nominating conventions and in the general elections.  Why, they have primary elections in this State in places, and this Convention was called upon at the commencement of its session to pass upon a question as to whether in the county of Elmore the privilege of the primary had been violated and whether or not fraud had been perpetrated in the primary there, and the will of the people overturned, and how frequently are charges made that combinations are made in conventions that nominate candidates, from the Governorship down?

MR. GRAHAM (Talladega)‑I just want to correct the gentleman; this Convention has never been called upon to do so.

MR. deGRAFFENREID ‑I believe that it was the Democratic caucus that was called upon to determine that matter, but the Convention was called upon to ascertain whether or not the last General Assembly was imposed upon in the matter of the Shelby Court House. It is humanity to sin, and you have fraud in every department, and the fact the privileges are sometimes abused by the General Assembly is no argument that we should go to the primary election or nominating convention, because the same abuses occur there that occur before the General Assembly in the election of solicitors.

MR. GRAHAM‑I move to lay the motion to reconsider upon the table, and upon that I call for the ayes and noes.


3674                  

OFFICIAL PROCEEDINGS

The call was sustained.

THE PRESIDENT ‑The gentleman from Hale moves to reconsider the vote whereby the section was adopted. Thereupon the gentleman from Talladega moves to lay the motion to reconsider upon the table. The ayes and noes have been called for, and the call is sustained. As many as favor the motion will say aye and those opposed no, as your names are called.

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

AYES

Ashcraft,

Graham, of Talladega,

Pettus,

Banks,

Grayson,

Phillips,

Beavers,

Henderson,

Pitts,

Beddow,

Hood,

Porter,

Bethune,

Howell,

Reynolds (Chilton),

Blackwell,

Jones, of Bibb,

Rogers (Sumter),

Boone,

Kyle,

Sanders,

Bulger,

Ledbetter,

Sloan,

Byars,

Lowe (Lawrence),

Smith (Mobile),

Chapman,

McMillan (Wilcox),

Smith, Mac. A.,

Cofer,

Malone,

Smith, Morgan M.,

Cornwell,

Maxwell,

Sorrell,

Craig,

Merrill,

Spears,

Davis, of Etowah,

Miller (Marengo),

Spragins,

Dent,

Miller (Wilcox),

Studdard.

Espy,

Mulkey,

Tayloe,

Fitts,

Murphree,

Waddell,

Flether,

NeSmith,

Walker,

Foshee,

Oates,

Watts,

Freeman,

Palmer,

Weakley,

Gilmore,

Parker (Elmore),

White,

TOTAL‑63

NOES

Messrs. President,

Duke,

Heflin. of Randolph,

Barefield,

Eley,

Howze,

Browne,

Eyster,

Inge,

Burnett,

Ferguson,

Jackson,

Cardon,

Foster,

Jenkins,

Carmichael, of Colbert,

Glover,

Jones, of Wilcox,

Carmichael, of Coffee,

Graham, of Montgomery,

Kirk,

Carnathon,

Grant,

Kirkland,

Cobb,

Greer, of Calhoun,

Knight,

Coleman, of Greene,

Haley,

Lomax,

Coleman, of Walker,

Handley,

Long (Butler),

Cunningham,

Harrison,

Long (Walker),

deGraffenreid,

Heflin, of Chambers.

Lowe (Jefferson),


3675

CONSTITUTIONAL CONVENTION, 1901

Macdonald,

Reynolds (Henry),

Weatherly,

McMillan (Baldwin),

Samford,

Whiteside,

Norwood,

Sanford,

Williams (Barbour),

Opp,

Searcy,

Williams (Marengo),

O'Rear,

Selheimer,

Williams (Elmore),

Parker (Cullman),

Sentell,

Wilson Clarke).

Pearce

Stewart,

TOTAL‑59

ABSENT OR NOT VOTING

Almon,

Leigh,

Proctor,

Altman,

Locklin,

Renfro,

Case,

Martin,

Robinson,

Davis, of DeKalb,

Moody,

Rogers (Lowndes),

Greer, of Perry,

Morrisette,

Sollie,

Hinson,

Norman,

Willet,

Jones, of Hale,

O'Neal (Lauderdale),

Winn.

Jones, of Montgomery,

O'Neill (Jefferson),

King,

Pillans,

PAIRS

AYES  NOES

Brooks,

Reese,

Bartlett,

Burns,

Thompson,

Wilson (Washington),

Hodges,

Vaughan,

THE PRESIDENT‑ The motion to table prevails.

THE PRESIDENT‑ The special order this morning will be the consideration of resolution No. 194, to which there is pending an amendment offered by the gentleman from Henry.

MR. ASHCRAFT‑ The special order this morning at this hour is the motion to engross and order to a third reading.

THE PRESIDENT‑ The gentleman is correct.

MR. SMITH (Mobile)‑Before making that motion, I wish to state that the term "General Assembly" is used throughout the Article on judiciary, but I believe the sense of the Convention was that the term "Legislature" should be used in lieu thereof. I, therefore, ask on behalf of the committee unanimous consent to have the word "Legislature" inserted wherever the words "General Assembly" are used in the Article.

There being no objection, it was so ordered.

MR. SMITH‑I now desire to call up the motion to have the Article engrossed and ordered for third reading.


3676                  

OFFICIAL PROCEEDINGS

MR. OATES‑I ask that that be withheld a minute. At the instance of several delegates I have prepared all additional section 1, with reference to stenographers, which was discussed yesterday evening. I do not wish to discuss it, but desire to offer it and let the Convention act upon it.

THE PRESIDENT‑-Does the gentleman withdraw the motion ?

MR. SMITH‑I believe there is general objection to it, and I cannot do it.

THE PRESIDENT‑ The pending question will be the motion to order to a third reading.

MR. WILSON‑A  motion to amend has precedence over a motion to order to a third reading. Under Rule 25, I believe, the motion to amend is seventh in rank and precedes the motion to order a third reading and engrossment.

MR. SMITH‑-I take it that making it the special order for today changes the status of it.

THE PRESIDENT‑ It seems to the Chair that the point of order would be well taken. The gentleman did not move the previous question. It was merely made the special order for this hour. The Chair is in doubt on the question.

MR. SAMFORD (Pike)‑I would call attention to Rule 30.  "Anv matter may, by a vote of the majority of the delegates present, be made the special order for any hour, which shall take precedence at that hour, of any other business, except a motion to reconsider," and, by unanimous consent, it was made the special order directly after these motions were disposed of.

MR. WILSON (Clarke)‑That is very true that when a matter is made a special order, a motion would apply just like it would to any other question. "'Whenever a motion to amend, no matter what it is, the motion may be applied to any order as laid down in Rule 25. Now, the main question is the third reading and engrossment. While that motion is pending any one of the motions enumerated in Rule 25 may be made. Were it otherwise when you set a matter for special order, you would be limited to what is in that proposition. For instance, when you set this Article for a special hour, you could not amend it and could not do anything. You must vote on it as it is. The special order simply takes it up at that time in preference to the regular order heretofore established, and when the matter is before the Convention, motions may be made in the order laid down under Rule 29.

THE PRESIDENT‑ It seems to the Chair that the point of order is well taken, that in the absence of some motion for the pre‑


3677

CONSTITUTIONAL CONVENTION, 1901

vious question upon the pending motion, that a motion to amend would be in order and would take precedence, the other motion having no preference so far as the rank of motions is concerned.

The Secretary read the amendment as follows

"It shall be the duty of the legislature to provide by law for the appointment and compensation of a competent number of stenographers as court reports of the evidence of proceedings, and to prescribe the duties to be performed by them."

MR. SAMFORD (Pike)‑I move to lay it on the table.

Upon a vote being taken a division was called for.

By a vote of 55 ayes and 39 noes the motion to table prevailed.

MR. WILLIAMS (Marengo)‑I have an amendment.

MR. SMITH (Mobile)‑I move that the article be engrossed and ordered to a third reading, and on that I move the previous question.

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

MR. WILLIAMS‑I have an amendment I would like to get in. I do not care to discuss it. I don't think we should be choked off in any such style. I ask the gentleman to withdraw it. It is simply to provide that no solicitor shall be eligible to succeed himself, provided it shall not apply to the present incumbent.

Expressions of dissent were heard.

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

The main question was ordered.

THE PRESIDENT‑ The question is upon the motion that this ordinance be ordered engrossed and to a third reading.

The motion was carried.

MR. deGRAFFENREID ‑ I give notice that I voted for that motion, and on tomorrow I shall move to reconsider the vote whereby that motion was adopted.

THE PRESIDENT-‑Ordering to a third reading?

MR. deGRAFFENREID ‑Yes, sir.

MR. JENKINS‑I move to reconsider the vote whereby the article is ordered to a third reading, as I have an amendment to offer.


3678                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ The special order this morning will be the special order that was under consideration yesterday afternoon.  The pending question, the Chair is informed, is the motion to table.

MR. ESPY‑ Yes, sir; and a division was called, and the yeas and noes demanded, and the call sustained, and I now ask that the Clerk read both the original resolution and the amendment.

The Secretary read the resolution 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 in this State, out of the general fund of the State."

Amendment by Mr. Espy: "Amend by striking out `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 fund of the State."

MR. VAUGHAN‑ The motion was to table the resolution and the amendment.

THE PRESIDENT‑ And a division was called for, and the ayes and noes demanded on the motion to table.

MR. ESPY‑ On the motion to table the amendment.

THE PRESIDENT‑ The motion is to table the amendment and the resolution. Division is called for. The proposition will be submitted separately, first upon the motion to table the amendment offered by the gentleman from Monroe. The ayes and noes have been demanded and the call sustained. As many as favor the motion to table the amendment offered by the gentleman from Monroe will say aye, and those opposed, no, as your names are called.

Upon the call of the roll the vote resulted as follows

AYES

Messrs. President,

Byars,

Fletcher,

Ashcraft,

Carnathon,

Foshee,

Banks,

Cobb,

Freeman,

Barefield,

Coleman, of Greene,

Graham, of Talladega,

Beddow,

Coleman, of Walker,

Grayson,

Bethune,

Cornwall,

Haley,

Blackwell,

Craig,

Handley,

Boone,

Davis, of Etowah,

Harrison,

Brooks,

deGraffenreid,

Hinson,

Browne,

Eley,

Hood,

Burnett,

Eyster,

Howell,


3679

CONSTITUTIONAL CONVENTION, 1901

Howze,

Norman,

Smith (Mobile),

Inge,

Norwood,

Spears,

Jenkins,

Opp,

Stewart,

Jones, of Bibb,

O'Rear,

Tayloe,

Jones, of Wilcox,

Palmer,

Vaughan,

Kirk,

Parker (Cullman),

Waddell,

Kyle,

Parker (Elmore),

Walker,

Ledbetter,

Pettus,

Watts,

Lomax,

Phillips,

Weakley,

Long (Walker),

Pitts,

Weatherly,

Lowe (Lawrence),

Samford,

Williams (Marengo),

Malone,

Sanders,

Williams (Elmore),

Merrill,

Sanford,

Wilson (Clarke),

Miller (Marengo),

Searcy,

Miller (Wilcox),

Selheimer,

TOTAL‑76

NOES

Beavers,

Graham, of Montgomery,

Oates,

Bulger,

Grant,

Pearce,

Burns,

Greer, of Calhoun,

Reynolds (Chilton),

Cardon,

Heflin, of Chambers,

Reynolds (Henry),

Carmichael, of Colbert,

Heflin, of Randolph,

Sentell,

Carmichael, of, Coffee,

Henderson,

Smith, Mac. A.,

Chapman,

Jackson,

Smith, Morgan M.,

Cunningham,

Kirkland,

Sorrell,

Dent,

Macdonald,

Spragins,

Duke,

McMillan (Wilcox),

Studdard,

Espy,

Maxwell,

Thompson,

Fitts,

Mulkey,

White,

Foster,

Murphree,

Whiteside,

Glover,

NeSmith,

Williams (Barbour),

TOTAL‑42

ABSENT OR NOT VOTING

Almon,

Knight,

Proctor,

Altman,

Leigh,

Reese,

Bartlett,

Locklin,

Renfro,

Case,

Long (Butler),

Robinson,

Cofer,

Lowe (Jefferson),

Rogers (Lowndes),

Davis, of DeKalb,

McMillan (Baldwin),

Rogers (Sumter),

Ferguson,

Martin,

Sloan,

Gilmore,

Moody,

Sollie,

Greer, of Perry,

Morrisette,

Willet,

Hodges,

O'Neal (Lauderdale),

Wilson (Washington).

Jones, of Hale,

O'Neill (Jefferson),

Winn.

Jones, of Montgomery,

Pillans,

King,

Porter,


3680                  

OFFICIAL PROCEEDINGS

MR. JACKSON (Lee)‑I give notice that I voted aye, and I give notice that I will tomorrow move to reconsider the vote.

The motion to table was carried.

MR. PRESIDENT-- The question recurs upon the motion to table the original resolution.

Upon a vote being taken the resolution was tabled.

MR. MALONE‑I rise for a personal statement. Two weeks ago, in discussing this matter, in reference to how these schools were established. I made the statement that a part of it was done by two gentlemen from my county, Mr. Ward and Mr. Williams agreeing one to vote for the others proposition. These gentlemen now ask that I make a statement that there was no agreement between them to vote for each other's proposition, though they admitted that was the practice, but they made no such agreement.

MR. WILLIAMS (Marengo)‑I have an ordinance I would like to have unanimous consent to introduce.

Ordinance No. 443, by Mr. Williams of Marengo:

Be it ordained by the Convention that no solicitor shall be eligible for re‑election as his successor, provided, this shall not apply to present incumbents who shall at the next election be eligible to succeed themselves.

Referred to Committee on Judiciary.

THE PRESIDENT– The regular order will be Resolution No. 120.

Resolution No. 120 was read as follows:

Resolved that all resolutions authorizing the payment of any money shall be adopted by a yea and nay vote.

MR. CARMICHAEL (Colbert)– I ask unanimous consent to cal up an ordinance (No. 409) which was reported by the Committee on the Journal. It is a very short ordinance and will not consume much time, and I ask unanimous consent to call it up for the purpose of putting it on its passage.

There being no objection the ordinance was read as follows:

Ordinance 409:

To provide for the filing and arranging of the papers and documents pertaining to the Constitutional Convention, by the Secretary of the Convention; also to provide for the delivery by the Secretary of a correct copy of the Journal to the public printer with a proper index thereto; also to provide for the superintendence of the printing of said Journal by the Secretary; also to make appropriation for the compensation of said Secretary for his services.


3681

CONSTITUTIONAL CONVENTION, 1901

Be it ordained by the people of Alabama in Convention assembled, that the Secretary of said Convention shall within forty days after its adjournment file, label and arrange the Journal of said Convention and all the papers and documents pertaining to said Convention in the office of the Secretary of State. He shall also copy and deliver to the public printer the Journal of said Convention, with the proper index thereto, within the said forty days.  He shall also superintend the printing and read and correct the proof of said Journal.

Be it further resolved, that for the services herein required of said Secretary, he shall receive the sum of five hundred dollars ($500) and upon the production by the said Secretary of the receipt of the Secretary of State for said papers. Journal and documents so required to be filed and labeled together with the receipt of the public printer for a copy of the Journal of the Convention, the State Auditor shall draw his warrant upon the State Treasury for said amount herein provided, and the said warrant shall be paid by the State Treasury.

Be it further resolved, that there is hereby appropriated out of any money in the State Treasury not otherwise appropriated, the stem of five hundred dollars ($500) for the compensation of the said Secretary for the said services herein required of him.

MR. OATES– Mr. President—

THE PRESIDENT– The gentleman from Colbert will be entitled to the floor.

MR. OATES‑I rose for the purpose of making an inquiry.

THE PRESIDENT‑ The gentleman will please state his inquiry.

MR. OATES‑ From a reading of the report, it seems to me there is no provision in there as to the number of Journals to be printed, and no provision to furnish a copy to each delegate.

MR. CARMICHAEL (Colbert)– I would suggest to the gentleman that another committee has an ordinance of that kind that has been favorably reported to the Convention for its action. This ordinance requires of the Secretary of the Convention, the same duties with some additional work as are required of the Secretary of the Senate and the Clerk of the House of Representatives.

MR. DENT‑ Will the gentleman permit a question?

MR. CARMICHAEL ‑Yes, sir.

MR. DENT‑Is not the report you refer to germane to this same subject?


3682                  

OFFICIAL PROCEEDINGS

MR. CARMICHAEL‑ No, sir, it comes from the Committee on Printing and I don't suppose it will be well to incorporate it in that.

MR. DENT‑I thought if they treated of the same subject, they might be called up and acted upon together.

MR. CARMICHAEL‑ We find in the act which calls this Convention, that the Secretary and officers of the Convention shall receive compensation for the same services that are required of these officers of the House and the Senate.

I move the adoption of the ordinance.

THE PRESIDENT‑As many as favor the adoption of the ordinance say aye and those who oppose no, as their names are called.

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

AYES

Messrs. President,

Fletcher,

McMillan (Wilcox),

Ashcraft,

Foshee,

Malone,

Barefield,

Foster,

Maxwell,

Beavers,

Freeman,

Merrill,

Beddow,

Graham, of Montgomery,

Miller (Marengo),

Bethune,

Graham, of Talladega,

Miller (Wilcox),

Blackwell,

Grayson,

Mulkey,

Boone,

Greer, of Calhoun,

Murphree,

Brooks,

Haley,

NeSmith,

Browne,

Handley,

Norwood,

Bulger,

Harrison,

Oates,

Burns,

Heflin, of Chambers,

Opp.

Byars.

Heflin, of Randolph,

O'Rear,

Cardon,

Henderson,

Parker (Cullman),

Carmichael, of Colbert,

Hinson,

Parker (Elmore),

Carmichael, of Coffee,

Hood,

Pettus.

Chapman,

Howze,

Phillips,

Cobb,

Inge,

Pitts,

Cofer,

Jackson,

Porter,

Coleman, of Greene,

Jenkins,

Reynolds (Chilton),

Coleman. of Walker,

Jones, of Bibb,

Reynolds, of Henry),

Cornwall,

Jones, of Wilcox,

Rogers (Sumter),

Craig,

Kirkland,

Sanford,

Davis, of Etowah,

Knight,

Searcy,

Dent,

Kyle,

Selheimer,

deGraffenreid,

Ledbetter,

Sentell,

Duke,

Lomax,

Sloan,

Eley.

Long, of Walker,

Sorrell,

Eyster.

Lowe, of Lawrence,

Spears,

Espy,

Macdonald.

Stewart,


3683

CONSTITUTIONAL CONVENTION, 1901

Stoddard,

Walker,

Williams (Marengo),

Tayloe,

Weakley,

Williams (Elmore),

Thompson,

White,

Wilson (Clarke),

Vaughan,

Whiteside,

Waddell,

Willams (Barbour),

TOTAL‑103

ABSENT OR NOT VOTING

Altman,

Jones, of Montgomery,

Reese,

Almon,

King,

Renfro,

Banks,

Kirk,

Robin son,

Bartlett,

Leigh,

Rogers (Lowndes),

Burnett,

Locklin,

Samford,

Carnathon,

Long, of Butler,

Sanders,

Case,

Lowe, of Jefferson.

Smith (Mobile),

Cunningham,

McMillan, of Baldwin,

Smith, Mac. A.,

Davis, of DeKalb,

Martin,

Smith, Morgan hi.,

Ferguson,

Moody,

Sollie,

Fitts,

Morrisette,

Spragins,

Gilmore,

Norman,

Watts,

Glover,

O'Neal (Lauderdale),

Weatherly,

Grant,

O'Neill, of Jefferson),

Willet,

Greer, of Perry,

Palmer,

Wilson (Washington),

Howell,

Pearce,

Winn.

Hodges,

Pillans,

Jones, of Hale,

Proctor,

So the ordinance was adopted.

Leaves of absence were granted to Mr. Reese of Dallas for today; to Mr. Leigh of Escambia indefinite leave on account of sickness, and to Mr. Sollie indefinite leave on account of sickness.

MR. JACKSON‑I ask unanimous consent to have a petition read.

The petition was read as follows:

To the Constitutional Convention, Montgomery, Alabama.

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

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.

James H. Lane, teacher; S. S. Scott,, farmer; W. A. Thompson, farmer; G. A. Wright, clerk; James W. Glenn, bookkeeper;


3684                  

OFFICIAL PROCEEDINGS

George W. Duncan, teacher; A. H. Whitman, dentist ; T. R. Whitman, druggist, and many others.

Auburn, Lee County, July 23, 1901.

THE PRESIDENT– The regular order will be report No. 13 of the Committee on Municipal Corporations. Resolution 120, however, will have precedence.

MR. deGRAFFENREID – I ask unanimous consent to be allowed to introduce a short ordinance to be referred to the proper Committee.

The ordinance was read as follows:

Ordinance No. 444 by Mr. DeGraffenreid:

Be it ordained by the People of Alabama in Convention assembled. That Section 28 of the Article on the Judiciary heretofore adopted by this Convention be stricken there from, and the following inserted therein in lieu of said Section:

A Solicitor for each Judicial Circuit, or other territorial subdivision prescribed by the General Assembly, shall be selected in the manner to be provided by law for such circuit, or other territorial subdivision, who shall be learned in the law, and who shall, at the time of his selection and during his continuance in office reside in the circuit or other territorial subdivision for which he is selected 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.

Referred to Committee on Judiciary.

The Resolution No. 120 was then read as follows:

Resolution No. 120, by Mr. Grayson:

Resolved, That all resolutions authorizing the payment of any money shall be adopted by a yea and nay vote.

Referred to Committee on Schedule, Printing and Incidental Expenditures.

MR. GRAYSON‑ The object of this resolution are patent to every one, that no money should be appropriated by this Convention, except by a yea and nay vote. It is simply to guard against hasty and ill-advised appropriations, and protect the Treasury of the State.

Upon a vote being taken the resolution was adopted.

MR. HEFLIN (Randolph)‑I ask unanimous consent to call up report No. 33 of the Committee on Printing, Schedules and Incidental Expenses.


3685

CONSTITUTIONAL CONVENTION, 1901

Consent was given.

The report was read as follows:

Report of the Committee on Schedule, Printing and Incidental Expenses:

The Committee on Schedule, Printing and Incidental Expenses instructs me to report Resolution No. 188, with a substitute, which substitute the Committee recommends he adopted.

John T. Heflin, Chairman,

Resolution 188, by Mr. Carmichael (Coffee):

Be it resolved, That the Secretary of State is hereby authorized and instructed to contract for the printing and binding of 1,000 copies of the journal of this Convention.

Be it further resolved, That the printing and binding shall be done in the same manner and under the same law as that of the House and Senate Journals, and that the printing and binding shall be paid out of the State appropriation for printing and binding.

Schedule, Printing and Incidental Expenses.

Resolution by Mr. Carmichael (Coffee), substitute for Resolution No. 188:

A resolution to provide for the printing, binding and distribution of the Journal of this Convention.

Be it resolved by the people of Alabama in Convention assembled, That the Committee on Printing, Schedule and Incidental Expenses be authorized to contract for the printing, binding and distribution of 1,000 copies of the Journal of this Convention.

Be it further resolved, That upon the delivery of 1,000 copies of the journal, printed and bound in accordance with the contract heretofore mentioned, to the Secretary of State, he shall certify to the Auditor the amount due to the publisher for the work, and the Auditor will issue his warrant on the Treasurer in favor of the publisher for the said amount due.

Be it further resolved, That one copy of the Journal of this Convention be delivered to each delegate and officer of the Convention, and to the persons to whom under the existing law, the Journals of the House and Senate are delivered.

Be it further resolved, That the sum of $2,000, or so much thereof as may be necessary, be appropriated out of the moneys of the State otherwise unappropriated to pay for the printing, binding and distribution of the Journal of this Convention.


3686                  

OFFICIAL PROCEEDINGS

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

MR. HEFLIN (Randolph) ‑ I move that the ordinance be adopted.

MR. WATTS‑I would like to ask the Chairman of the Committee what good reason there is for putting the printing of this matter in the hands of the special committee or the Committee on Printing of this Convention rather than the Secretary of State?  The original resolution provided for the Secretary of State to do it, as is usually done with State printing. Why was the distinction made of having this particular printing done by this Committee?

MR. HEFLIN‑I yield to the gentleman from Coffee to answer that question, as he conferred with the Secretary of State upon that question.

MR. CARMICHAEL (Coffee)‑The Secretary of State suggested to the Committee that it was barely possible that he might have some money left over from the general appropriation for printing, and he would investigate the matter, and see if he could  not let us have some of the money under the general contract for printing, and at his suggestion, I introduced this resolution, thinking perhaps we could put the expense of printing the journal in with the other printing of the State, which is done by a general biennial appropriation. I did this and conferred with the Secretary of State afterwards, and he told me that the appropriation for printing was already practically exhausted; that he would have no money left to pay for the printing of the journal of this Convention, and therefore he would not feel authorized to take any action or to contract for the printing of this journal or become responsible for it in any manner, and suggested that it be done as all other Convention printing had been done. I will state that, at the outset of this Convention, the Chairman of the Committee and the Committee endeavored to have some of the printing done under the general contract, but the Secretary of State washed his hands of the whole matter, and it has all been thrown on the Committee, and that is the reason this substitute was prepared. There is no existing law to cover it, and the Secretary of State declined to have anything to do with it.

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

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

AYES

Messrs. President,

Beddow,

Boone,

Banks,

Bethune,

Brooks,

Barefield,

Blackwell,

Browne,


3687

CONSTITUTIONAL CONVENTION, 1901

Bulger,

Harrison,

Palmer,

Burns,

Heflin, of Chambers,

Parker, of Cullman,

Byars,

Heflin, of Randolph,

Parker, of Elmore,

Cardon,

Henderson,

Pearce,

Carmichael, of Colbert,

Hinson,

Pettus,

Carmichael, of Coffee,

Howell,

Phillips,

Chapman,

Howze,

Pitts,

Cobb,

Jackson,

Reynolds, of Chilton,

Coleman, of Greene,

Jenkins,

Reynolds (Henry),

Coleman, of Walker,

Jones, of Bibb,

Rogers, of Sumter,

Cornwall,

Jones, of Wilcox,

Samford,

Craig,

Knight,

Sanders,

Cunningham,

Kyle,

Sanford,

Davis, of Etowah,

Ledbetter,

Searcy,

Dent,

Lomax,

Selheimer,

deGraffenreid,

Lowe, of Lawrence,

Sentell,

Duke,

Macdonald,

Smith, of Mobile,

Eley,

McMillan, of Wilcox,

Smith, Mac. A.,

Espy,

Malone,

Smith, Morgan M.,

Fletcher,

Maxwell,

Stewart,

Foster,

Merrill,

Studdard,

Gilmore,

Mulkey,

Thompson,

Glover,

Murphree,

Vaughan,

Graham, of Montgomery,

NeSmith,

Waddell,

Grant,

Norwood,

Walker,

Grayson,

Oates,

Weatherly,

Greer, of Calhoun,

O'Neal, of Lauderdale,

Whiteside,

Haley

Opp,

Williams, of Barbour,

Handley,

O'Rear,

Williams, of Marengo,

TOTAL‑96

ABSENT OR NOT VOTING

Almon,

Hodges,

Morrisette,

Altman,

Hood,

Norman,

Ashcraft,

Inge,

O'Neill (Jefferson),

Bartlett,

Jones, of Hale,

Pillans,

Beavers,

Jones, of Montgomery,

Porter,

Burnett,

King,

Proctor,

Carnathon,

Kirk,

Reese,

Case,

Kirkland,

Renfro,

Cofer,

Leigh,

Robinson,

Davis, of DeKalb,

Locklin,

Rogers, of Lowndes,

Eyster,

Long, of Butler,

Sloan,

Ferguson,

Lowe, of Jefferson,

Sollie,

Fitts,

McMillan (Baldwin),

Sorrell,

Foshee,

Martin,

Spears,

Freeman,

Miller, of Marengo,

Spragins,

Graham, of Talladega,

Miller, of Wilcox,

Tayloe,

Greer, of Perry,

Moody,

Watts,


3688                  

OFFICIAL PROCEEDINGS

Weakley,

Williams, of Elmore,

Wilson, of Washington,

White,

Wilson, of Clarke,

Winn.

Willet,

So the ordinance was adopted.

THE PRESIDENT‑ Unless the Convention desires to interrupt the regular order the next regular order will be report No. 13 of the Committee on Municipal Corporations.

Mr. Dent here took the chair.

MR. WEAKLEY ‑.Mr. President and gentlemen of the Convention, the Committee on Municipal Corporations has carefully considered the various ordinances and resolutions which have been referred to the Committee and report to this Convention an Article to be embraced in the new Constitution. It has become manifest to the people of Alabama in the last two years that the question of municipal government in this State is one of greatest public concern, and the importance which this branch of our government has reached is signified by the fact that a separate article upon that subject is proposed to be embraced in the new Constitution. The suggestions which this Committee make to this Convention while to some extent new to the people of Alabama, are not in any sense of the word, new and untried experiments. There is nothing embraced in this report which is not already embraced in the fundamental law of the State of Alabama, or some other State of the American Union. There has been suggested by this Committee to the Convention no innovation in municipal government, and the new ideas which are recommended by the Committee are those which have been in successful operation in other states. I do not care to take up the time of this Convention by making any extended remarks. The report will speak for itself, and the discussions which will be had upon the various sections when they are reached will, I trust, afford sufficient enlightenment to the members of this Convention, in order that they may vote upon it. I desire to say, gentlemen, that neither the Chairman nor any member of this Committee has any particular desire to impress their individual views upon the Convention except to the extent where they believe This report is the property of the Convention. They may alter or amend it, as they choose without doing any violence to the feelings of the Committee. I now move, Mr. President, that this report be considered section by section.

MR. MACDONALD– I simply desire to state, Mr. President, that at a former day in this Convention, I proposed an amendment to the Article on Taxation, and that amendment was laid upon the table to be considered along with the report on Municipal Corporations. It relates to the power given to municipalities to assess abutting property for streets and sidewalk pavements and sewers,


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CONSTITUTIONAL CONVENTION, 1901

and I would like, as a matter of parliamentary inquiry to know from the Chair the proper time for that matter to be considered.

THE PRESIDENT PRO TEM.‑ The Chair would state that it would be proper to take that from the table, if the Convention so desires, when the particular section to which that is germane is reached in the report. The motion is that this report be taken up and considered section by section. As many as favor that motion will signify by saying aye. Those opposed no.

Upon a vote being taken the motion was carried.

MR. SANFORD (Montgomery)‑I ask that the whole report be read.

(Expressions of dissent.)

The Clerk will proceed with the reading of the first section.

Section 1 was read as follows:

Section 1. All municipal corporations shall have the right to sue and shall be subject to be sued in all courts in like manner as natural persons.

MR. SANFORD (Montgomery)‑I asked that the whole report be read and I thought that was the order.

THE PRESIDENT‑ The Convention decided otherwise. They decided to take it up section by section.

MR. FOSTER‑I, for one, should like to hear some discussion of this section before I have to vote upon it. In the absence of any discussion to convince me to the contrary, I am inclined to think it is unwise to adopt this section. Every lawyer in this Convention knows that suits against municipal corporations are limited by public policy, as defined and illustrated by decisions of the court, to certain causes of action. For instance, you cannot embarrass a municipal corporation in its government by garnishing its employe. That is one instance in which public policy forbids the suing of a corporation.

MR. MULKEY‑Is the garnishing of city employes a suit against the municipal corporation?

MR. FOSTER‑ Yes, sir, the garnishment proceeding is a suit again the corporation. If you get a judgment you get it against the corporation.

MR. MULKEY‑ Isn't this the same as the old Constitution of the State?

MR. FOSTER‑I don't know.

MR. MULKEY‑ It is.


3690                  

OFFICIAL PROCEEDINGS

MR. FOSTER‑ It strikes me that it has been decided by the courts otherwise. If you put in here that they are subject just as a natural person, you not only open the door to these suits of garnishment, but you give litigants power to sue these municipal corporations for personal injuries or other injuries which occur in the prosecution of governmental functions of the corporations. As I say, I haven't looked into this thing, and if the chairman thinks the committee has investigated it, and they are protected to that extent by decisions of the Supreme Court, I, for one, would be very glad to hear from him before I vote upon this question.

MR. HARRISON‑ This is the provision in the present Constitution, except that the word "Municipal" does not occur in it. It simply says "All corporations shall have the right to sue and be sued."

MR. FOSTER‑ Does that especially say "municipal corporations?"

MR. HARRISON‑ It does not. It says all corporations.  This is a special committee that has been appointed to consider questions of municipal government alone and I notice in a few instances this section for one, and the second section likewise, that they have covered ground embraced in the present Constitution on corporations proper, and which are covered by the report of the Committee on Corporations itself, and it occurs to me that these two sections, the first and the second, should be postponed or laid on the table to be considered along with the report of the Committee on Corporations.

MR. BOONE‑Is the delegate from Lee not aware that the Supreme Court of Alabama has decided that "municipal corporations" is not covered by the sword "corporations?"

MR. HARRISON‑ It may not be unless it is especially mentioned. I have no particular objections to this first section. I think there would be some doubt about it as expressed by the delegate from Tuscaloosa. Our present Constitution does not confer the right to sue and to be sued on municipal corporations. My remarks, however, were more intended to refer to the second section which has not yet been reached, in which there is a difference between the report" of the two committees. The Committee on Corporations, so far as this first section is concerned, uses the language of the old Constitution and simply says "corporation," whether it includes municipal or not. The gentleman from Mobile refers to a decision I do not recall just at this time, and I only suggested to the committee. So far as the first section is concerned, whether or not they would pass it, but I will, when the second section is reached, make a motion and, will then state the reasons why I think it ought to be specifically considered. I do not think

that second section is in proper shape as it stands now. I have no


3691

CONSTITUTIONAL  CONVENTION, 1901

objection to the first if the Convention wants it, only if it is covered by corporations it would be useless to have two sections in the Constitution conferring the same right. If my friend from Mobile is correct, and it doesn't do it, I have no objection to it.

MR. WEAKLEY‑ Section I, as has been stated, is an exact copy of Article XIV, Section 12, of the Constitution, except that the word "municipal" has been inserted.

MR. WALKER (Madison)‑I just wanted to suggest this to the committee and see if they had considered it: Would not this section prohibit the Legislature from prescribing, in the case of municipal corporations. for instance, such a rule as is prescribed in many of the charters of municipal corporations in this State as this that before suit is brought again in certain accounts of cases the claim should be presented to the corporate body for their determination, the object being to take it out of the power of people desiring to sue municipal corporations to cast upon them the cost of litigation before giving the opportunity to settle.

MR. WEAKLEY‑I will state to the gentleman from Madison, in answer to that proposition, that the charters of a number of cities in this State do so provide. I was about to state that I am aware of the fact that the charters of numbers of cities provide that all claims, for instance, for damages, for personal injuries and otherwise, shall be first submitted to the City Council for adjudication before suit can be brought upon it. But I do not see that this provision interferes with that.

MR. HOOD‑ Will the gentleman permit an interruption? Is it not true that the Supreme Court has held that the word "corporations" does not apply to municipal corporations?

MR. WEAKLEY ‑That is my understanding. I do not recall the decision.

MR. HOOD‑ Now it is equally true that the Supreme Court have held that a garnishment on a judgment is a suit, have they not ?

MR. WEAKLEY‑ Yes, sir.

MR. HOOD‑ Now, wouldn't this provision authorize the garnishment of the income of the city on a judgment against the city?

MR. WEAKLEY‑I think not. I desire to state that the courts have decided upon the question of garnishing the cities, that it is in violation of public policy, and the universal rule has been it cannot be done, and I do not think this section affects that at all.

MR. FOSTER‑ Under this section, could not they be sued for false imprisonment for arrests made by officers of the city?


3692                  

OFFICIAL PROCEEDINGS

Couldn’t they be sued for anything that might be a claim against an individual person?

MR. WEAKLEY– I think not.

MR. FOSTER– It strikes me it is very dangerous, and might bring all sorts of suits against these corporations.

MR. WEAKLEY– I cannot conceive why municipal corporations shall not be subject to suit just as any other corporation.

MR. WEATHERLY– I would like to ask what is the necessity for this section? Is there any unreasonable restriction under the existing law upon the right of municipal corporations to sue or their liability to be sued?

MR. WEAKLEY– None that I know of.

MR. WEATHERLY– Then what is the necessity for this section, inasmuch as there seems to be some reason in the objections that have been made to it by the gentleman on the floor?

MR. WEAKLEY– I state to the gentleman from Jefferson that the Committee found this section, or almost a similar section in the old Constitution.

MR. WEATHERLY– I want to call your attention to the definition of “corporations” as used in the old Constitution to show that your idea is not correct. I read from Section 13 of the present Constitution:

“The term ‘corporation’ as used in this Article, shall be construed to include all joint stock companies, or any associations having any of the powers or privileges of corporations, not possessed by individuals or partnerships.’”

Now, does not that indicate that municipal corporations are not included in the Article?

MR. WEAKLEY– I move the adoption of the section

MR. HOOD– I offer an amendment.

The amendment was read as follows:

“Amend Article on Municipal Corporations by striking out Section 1.”

MR. HOOD– I think it very dangerous to adopt this Article with Section 1 contained in it. As has been stated by the Chairman of the Committee, and by another member of that Committee, the Supreme Court of Alabama have held that the word “corporation,” as it appears in the present Constitution, does not mean a municipal corporation. Now, it is true that under the present Constitution, the courts of the State have held that the income and


3693

CONSTITUTIONAL CONVENTION, 1901

revenues of a municipal corporation could not be garnished, because it would be against the public policy. It is true, however, that in this State, the Supreme Court of the State have held that a garnishment on judgment is a suit in the sense in which it is used in this State. Now, certainly, the committee does not propose to permit the income and revenues of the cities and towns of Alabama to be garnished by creditors of the cities and towns. As I view it, this section would clearly give any creditor who had judgment against any cities or towns in this State, the power to garnish the income or revenues of any such cities or towns in this State.

MR. HARRISON– Would it not also allow them in case of judgment to use the funds for the ordinary expenses of the government in the cities and towns for its debts?

MR. HOOD– I think it would; and for these reasons, I move to strike from the report Section 1.

MR. MERRILL– I have an amendment to the amendment.

The amendment to the amendment was read as follows:

“Amend Section 1 by striking the following words: ‘In like manner as natural person,’ and add in lieu thereof ‘as may be prescribed by law.’”

MR. WEAKLEY– We will accept that.

THE PRESIDENT– The chairman indicates the willingness of the Committee to accept the amendment just read.

MR. HOOD– I will accept the amendment offered by the gentleman from Barbour, or I will ask unanimous consent to withdraw the amendment offered by myself.

MR. O’NEAL (Lauderdale)– I object.

MR. MERRILL‑ The municipality is a part of the government of the State, a subdivision thereof, and the public policy that regulates suits and actions against a city or municipal corporations is not the same that applies to private corporations and it ought not to be so. With the sections as brought in by the Committee, it puts them upon the plane of all private corporations and all individuals. That should not be done, and the amendment that I suggest, it strikes me, relieves it from all that difficulty, and leaves it where it is now, and where it ought to stay.

MR. WEATHERLY‑I think the amendment proposed by the gentleman from Barbour, puts the matter in a worse condition than it was before authorizing municipal corporations to sue and be shed in such manner as may be prescribed by law at least infers that the Legislature will have to prescribe a method by which they may sue and be sued. Now there is a system that has grown up in the courts whereby municipal corporations sue and are sued. It


3694                  

OFFICIAL  PROCEEDINGS

is built up by cases and the adjudication of the courts.  We all know what it is. There is no necessity for any change. This whole Section is utterly useless, and it may bring some very great hardships and some very great inconveniences and embarrassments in the future in lines and directions which we cannot now foresee.  Municipal corporations are an arm of the State Government.

MR. HOWZE‑ Did you ever see a municipal charter that did  not have this provision in it that they could sue and be sued?

MR. WEATHERLY– Not in that language. They can sue and be sued, of course.

MR. O’NEAL‑ Do you think that under the provisions of this Section that an attachment could be levied upon the property of a municipal corporation?

MR. WEATHERLY‑I think it is possible. It says they could sue and be sued as natural persons.

MR. O'NEAL‑ Then a creditor could levy upon any public buildings or property owned by the Municipal corporations?

MR. WEATHERLY‑ You can't tell.

MR. O’NEAL‑ It leaves that question in grave doubt.

MR. WEATHERLY‑I think it is unnecessary. It leaves that matter open for construction, and inasmuch as we know that under the existing law, municipal corporations do sue and are sued. it doesn't seem to me necessary to refer to them all. I move to lay the Section and the amendment on the table.

MR. COLEMAN– Will the gentleman withdraw that?

MR. WEATHERLY– Yes sir.

MR. COLEMAN ( Greene)‑If the report of the Committee is vicious for the reasons which have been stated, the amendment offered by the delegate from Barbour leaves the question entirely where it would be even if Section 1 was stricken out. Surely the Legislature is competent to provide all legislation except where it is restricted by the Constitution, and at any session it may impose liabilities or relieve from liabilities, and the legislation thus far affecting municipal corporations has been in line and harmony with the experience of States and courts everywhere, as to what is best for them. The amendment offered by the delegate from Barbour.  I repeat, leaves the matter precisely where it is at this time, and where it would be if Section 1 is stricken out, and I think we would get along better by accepting these amendments which accomplish what is desired to be accomplished than by taking up time in the discussion of it. I do not care to renew the motion to lay on the table, because I would favor the amendment offered, which has


3695

CONSTITUTIONAL CONVENTION, 1901

been accepted by the Committee, and which makes clear the purpose of this Convention.

MR. WEATHERLY‑I renew my motion to lay the Section and the amendment on the table.

Upon a vote being taken, a division was called for, and the motion to table the Section and amendment prevailed by 42 ayes and 37 noes.

Section 2 was read as follows:

Sec. 2. Municipal corporations shall be invested with the privilege of taking private property for public use, but shall make just compensation for property taken, injured or destroyed by the construction or enlargements of its works, highways, or improvements, which compensation shall be paid before such taking, injury or destruction. The General Assembly is hereby prohibited from depriving any person of all appeal from any preliminary assessment of damages against any such municipal corporations made by viewers or otherwise; and the amount of such damages in all cases of appeal shall on demand of either party be determined by a jury according to law.

MR. HARRISON‑ My remarks on the other Section are applicable to this. I think this Section should be postponed for action in connection with Section 7 of the report of the Committee on Corporations. This Section, like the first one, is an attempt to take a part of the old Constitution, or rather to take a provision in reference to corporations generally, and apply it to municipal corporations. The old Constitution, in speaking of this right of condemnation, gave the same rights to municipal and other Corporations and to individuals where they were invested with the right and privilege of taking property.

The Committee whose report we are considering have in effect reported the old Constitution prescribing or confining its provision is to municipal corporations. It occurs to me that the general policy of the State in reference to taking property should be upon the same general policy of the State in reference to taking property should be upon the same general Conditions, whether by municipal corporations, private corporations or individuals, whenever they are invested with this privilege.  Your Committee on Corporations, in considering this matter had its attention called to a recent decision of the Supreme Court, in which, after a conference with members of the Court, and with the attorneys on both sides of a recent case of the Southern Railroad vs. Cincinnati Southern, in which it developed under the old Constitution, one railroad for instance by the right of appeal could prevent the use of the land for a year or two. It was stated before the Committee on Corporations even by the attorney who won the case he said he was glad


3696                  

OFFICIAL PROCEEDINGS

that the Constitution was as it was, but said it would be an outrage to leave the Constitution as it was, because it would in effect prevent a railroad from crossing another, and what applies to railroads would apply to individuals. There would be an appeal on demurrer and go to the Supreme Court and perhaps take a year or two before right of condemnation became available. In order to meet that your Committee on Corporations has amended the old Section 7 of the present Constitution, which covers municipal corporations as well as private corporations, which we think obviates that defect, and we think the provisions would be ample.

MR. WEAKLEY‑I would like to ask the gentleman from Lee if he has any objection to taking up the section at this time and let the matter be disposed of

MR. HARRISON– Nothing in the world except this being in the general provision on corporations, and if the Chairman of this Committee  will read Section 7, I think you will agree to it and let it remain. I think it should remain in the general Article on Corporation, and not be separated as we are about to do, to have one under the head of municipal corporations.

MR. BOONE‑ In the article reported by the Corporations Committee does it expressly include municipal corporations?

MR. HARRISON‑ It does. It was all that this section has in it, and it might obviate this difficulty which we tell you about, it is in Section 7. I will read it

Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargement of its works, highways or improvements, which compensation shall be paid before such taking, injury or destruction.

MR. HOWZE– There is a provision in there vesting that right in municipal corporations.

MR. HARRISON‑ Yes, sir, the very first words.

MR. HOWZE– Where is the authority vesting in municipal

corporations the right to do that?

MR. HARRISON‑ They will have to be invested with it by their charter.

MR. WEAKLEY‑I understand, Mr. Chairman, inasmuch as municipal corporations are provided for in the report of the Committee on Corporations we have no objection to its taking the course suggested by the gentleman from Lee.

MR. HARRISON‑I think it all should be in one article. If it meets with approval I move that its consideration be postponed


3697

CONSTITUTIONAL CONVENTION, 1901

and taken up and considered with the report of the Committee on Corporations.

PRESIDENT PRO TEM--It is moved that the consideration of Section 2 of the Article on Municipal Corporations be postponed and taken up on the consideration of the report of the Committee on Corporations.

On a vote being taken the motion was adopted.

The Secretary read Section 3 as follows:

Section 3. The General Assembly shall have the power to establish, alter, enlarge or diminish the boundaries of any city, town or village in this State, but notice of such intended change shall be given by publication in some, newspaper published in the village, town or city to be affected for thirty days prior to the meeting of the General Assembly if no newspaper is published in said city, town or village then said notice shall be given by posting copies thereof at three public places in said city, town or village, and said notice shall be spread upon the journal of the House in which the bill proposing such change is introduced

MR. WEAKLEY‑ The Committee is aware of the fact that this Convention has passed an ordinance providing that if  a local or special law shall be passed for the incorporation of any town or village, but after giving the matter due consideration the Committee was of the opinion that there might arise circumstances, by which it was necessary to procure the enactment by the legislature of a law authorizing the change in the boundaries of a city.  Where such changes are left to the vote of the people that is sought to be incorporated into the city, it is always universally the case that these enlargements of the corporate boundaries never take place, and it frequently happens that the health and the welfare of the community, the suppression of crime, or the extension of public  improvement demands that these suburban settlements be taken into the community. The Committee thought it would be unwise in all instances to allow the matter to be submitted to a vote, yet at the same time, in order that those people who sought to be embraced in the community, or left out of the community, may have notice of the intended change, it is provided that publication shall be made for thirty days prior to the meeting of the General Assembly, that the change is contemplated.

MR. O'NEAL (Lauderdale) ‑ I desire to ask a question. The gentleman from Macon (Mr. Cobb) has suggested that the word "incorporated" be inserted before the word "city." It is certainly not intended that this should apply to a city or town not incorporated ?

MR. WEAKLEY‑ I do not know any city or town not incorporated.


3698                  

OFFICIAL PROCEEDINGS

MR. O’NEAL‑ Oh, yes, villages that are not incorporated, and they may be a great many towns.

MR. WEAKLEY‑I have no objection that.

The Secretary read the amendment as follows:

"Insert the word ‘incorporated’ before the word ‘city’ in the second line.

MR. WEAKLEY‑ The committee is willing to accept the amendment.

MR. ASHCRAFT‑I desire to call the attention of the committee to the way in which that will read: "The General Assembly shall have the power to establish any incorporated city. How could they establish any  incorporated city? If it has been incorporated  how can they extend the boundaries?

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

MR. GRAHAM (Montgomery)‑With the consent of the gentleman from Macon I would like to ask some questions. Isn't it a fact that we are considering only incorporated cities, villages and towns. Then why the necessity of inserting the word "incorporated ?"

MR. COBB‑ Simply to make it undoubtedly plain.

MR. GRAHAM (Montgomery)‑Is it not undoubtedly plain as it is?

MR. COBB– We are not considering only incorporated towns, we have villages.

MR. GRAHAM (Montgomery)‑I understand that. But he says “incorporated.”

MR. COBB– If the gentleman be correct the word “incorporated” will not hurt anything.

MR. GRAHAM‑ It only makes the Constitution ridiculous by the insertion of ridiculous words. I move to lay the amendment of the gentleman from Macon on the table.

A vote being taken, the motion to table was lost.

MR. SANFORD (Montgomery)‑I ask for a reading of the amendment.

A vote being taken and the amendment laid upon the table.

MR. SANFORD (Montgomery)‑I have some rights here and when I ask for a reacting of the proposition I think I am entitled


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CONSTITUTIONAL CONVENTION, 1901

to be regarded. The request was that the amendment be read. I do not know what it is.

THE PRESIDENT PRO TEM.‑I thought the gentleman was keeping up with the action of the Convention. The Secretary will read the section under consideration for the benefit of the gentleman from Montgomery, the section and the amendment.

MR. SANFORD‑ It was the amendment I wished to hear.

The amendment was read: “To add the word ‘incorporated’ before the word ‘city.’”

MR. COBB‑I ask the gentleman from Montgomery to withdraw for a moment. I have a word to say.

THE PRESIDENT PRO TEM.–The question has been settled and the amendment has been tabled.

MR. COBB‑I called for a division and was interrupted by the gentleman from Montgomery, and it was this interruption that caused the confusion.

THE PRESIDENT PRO TEM‑ The call was not heard, and it comes too late. The Chair recognizes the gentleman from Dallas, Mr. Craig.

MR. CRAIG‑I have an amendment to offer.

The Secretary read the amendment as follows:

“Strike out the words ‘meeting of the General Assembly’ in line four of said section and insert in lieu thereof ‘election held for the election of members of the next Legislature after such election.’”

MR. CRAIG‑I offer that amendment for this purpose: In electing members of the Legislature people ought to know what they propose to do with regard to enlargement of the city boundaries. After the election it is too late to elect a man representing them on the subject, and they would have to come up and lobby the Legislature at a very heavy expense to get what they want.  Where they have all opportunity beforehand, and have a member of the Legislature representing their views, that will not be necessary. That trouble came up at the last session of the Legislature on the boundaries of Selma. The people of Selma desired the right to elect their officers instead of having them elected by the county and in an act passed they took in some plantations where there were no houses or anything else, making it a part of the city. The people knew nothing about it, and the law stands there today. There was great indignation on the part of our people. That is the reason I want to the people of a town, city or village to have the right to vote upon it, and they cannot do it, if put thirty days before the meeting of the Legislature.


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MR. SAMFORD (Pike)– I have no interest in this matter at all. I do not live in a town that is likely to desire to take in a suburb one way or another. But it occurs to me that we ought not to put it in the hands of the Legislature or one representative from a county to come to the Legislature and on account of the legislative courtesy that is always accorded to representatives from a county, because some city has accumulated a large bonded indebtedness to extend the boundaries around all the farms within reach of it, and all the little villages perhaps that have grown up around the city. It occurs to me that this is a proposition that is in the interest of the bond-holding class of citizens, rather than of the people. Now, I know that there are cities in this State that are largely indebted by reason of profligate expenditures– I take back the word “profligate”– I will say by reason of large expenditures, heretofore made in the building up and improvement of the city in the way of building water works, electric light plants, paving the streets, curbing them, and things of that sort, and there has been a large debt, accumulated, and they want relief, and the first place they look for relief is to bring in all the little villages that have sprung up around their city, and they are brought in not for the purpose of building up the villages that they take in, but for the purpose of paying the taxes that the people of the city have already voted, and paying the debt that the city has already made. Now that is wrong . This is a free country and a free government. I use the city of Montgomery as an illustration, without knowing anything about its financial condition. If I , as a citizen of this State, desire to move to Montgomery County and buy a farm or place within a few miles of the city limits, I do it for the purpose of getting out of the city of Montgomery; I do not want to come to the city, and I move to the suburbs of the city. I stay there and pay my State and county taxes, and when an election comes on, they elect members to the Legislature, mostly composed of gentlemen within the incorporated limits of the city, and what do they do? The tax burden of the city of Montgomery is pretty heavy, we will say they want this thing distributed as much over Montgomery County as they possibly can go, and therefore they extend the limits of the city with an arbitrary line around it, so as to get everything in, men, women and children, dogs and negroes, anything that looks like the payment of a tax, not for the purpose of building up the suburbs, but for the purpose of paying off the indebtedness that they have already accumulated. I am opposed, Mr. President, to the Section, and to the sentiment expressed in the Section.

MR. KIRKLAND– The gentlemen of the Convention have the Section before them, they are able to read and able to determine for themselves without the assistance of so much speaking in this Convention, whether they will support that Section or not. I do not see the use of consuming the time of the Convention in speech-


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making. I think the members of this Convention want to get away from here and get home, and I move the previous question.

MR. SANFORD (Montgomery)– I ask that I may be accorded the privilege of offering an amendment in accordance with the sentiment expressed by Mr. Samford of Pike. Will the gentleman withdraw the motion?

MR. KIRKLAND– I say it respectfully, General. I will not withdraw it.

THE PRESIDENT PRO TEM.– Does the gentleman move the previous question on the amendment?

MR. KIRKLAND– On the amendment and the Section.

Upon a vote being taken the Convention refused to order the previous question.

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

The Secretary read the amendment as follows:

“Amend said Section by adding to the end of said Section ‘Provided that the people residing in the territory to be annexed shall have an opportunity to vote upon the question of annexation.’”

MR. SANFORD (Montgomery)– In offering that, Mr. Chapman, and in carrying out the policy indicated by the able gentleman from Pike– who seemed to have known by intuition the precise condition of affairs in this city. It is largely in debt. There was a great agitation here not quite twelve months ago about the annexation of outlying territory. The first line drawn brought in all the little places and left out much outlying property, and all of the corporation property, until the people et in public assembly time and again for the purpose of protesting against any such policy and such injustice. There were fields taken in finally by the proposition in which nothing dwelt, except toad frogs and a stray rabbit, it was taxable property. It was for the benefit, not of outsiders it was confessed tat there would be no improvement for several years to come to that property, but it was brought in on account of the indebtedness of the city. I submit, Mr. President, and gentlemen of the Convention, that if men are to be drawn into the municipality for the purpose of bearing its burdens of taxation, that they should be afforded the opportunity of saying whether they favor it or not.

MR. O’NEAL– I am unable to see any necessity for this Section. The report of the Committee on Local Legislation contains no provision which prohibits the Legislature from passing a law of this character. The only prohibition is against a local law incur-


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OFFICIAL PROCEEDINGS

porating  a city, town or village. I move to lay the Section and all the pending amendments on the table.

THE PRESIDENT PRO TEM ‑The question is to lay on the table.

MR. MACDONALD‑I want to call attention to the importance of the amendment proposed by my colleague, General Sanford. As the members of the Convention heard the amendment read they will see that territory cannot be annexed to any municipality unless there is a vote of the majority of the inhabitants of the territory sought to be annexed. Now there is nothing in the report which has been adopted on the Article on Local Legislation to authorize any such vote as that, as I understand, and it is most important that such an amendment should be adopted, or such a Section should be adopted by itself because if that is done, and this Convention prescribes that do municipality shall increase its boundaries and take in the briar patches and rats and rabbits as was attempted around the city of Montgomery, unless the inhabitants of that particular district voted in favor of it, or a majority of them, we would have something, fair, just and equitable, whereas, if this amendment is laid upon the table, and this Section laid upon the table, we would be left to the doubtful construction of the Article on Local Legislation, and it seems to be wise that the amendment should be adopted.

The hour of 1 o'clock arrived.

THE PRESIDENT PRO TEM‑ The gentleman will have the floor at the evening session.

The Secretary here read the following notice:

“Beginning Thursday, August 8th, no certificates for per diem shall be issued except on Saturday. This is done at the request of the Auditor and Treasurer, who find it impossible to properly transact the business of their offices when interrupted by delegates and employes seeking to draw and have cashed their warrants.  All delegates will take notice and govern themselves accordingly.”

Thereupon the Convention adjourned.

_________

AFTERNOON SESSION.

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

MR. LONG (Walker)- I rise to a point of inquiry.

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


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CONSTITUTIONAL CONVENTION, 1901

MR. LONG‑‑I want to ask when a substitute would be in order for the whole Constitution as framed by this Convention?

THE PRESIDENT‑ It will be in order when the Committee on, Harmony Reports.

MR. LONG– I want to state for the information of the Convention, that I propose to move the adoption of a substitute at the right time, a substitute for this entire Constitution that we are framing. I propose to offer the old Constitution with the exception of the report of the Committee on Suffrage.

THE PRESIDENT‑‑ The special order for this afternoon is the consideration of Section 3 and amendments thereto, of the report of the Committee on Municipal Corporation. The gentleman from Montgomery (Mr. Macdonald) had the floor when we adjourned in the afternoon.

MR. MACDONALD— I have but little to add to what I have said before adjournment in support of the amendment offered by my colleague, Mr. Sanford. Nearly the entire ground was covered by the gentleman from Pike in the able speech that he matte upon this subject. We Montgomerians bear in mind, like the man bears in mind the memory of an old boil, the trouble that afflicted us at the last session of the Legislature. We had a number of citizens here of this county living contiguous to the city who objected to the process of "benevolent assimilation" which was undertaken by the municipality of Montgomery to bring them, nolens volens, into the corporate limits of the city of Montgomery, to be subjected to the onerous burdens of taxation which are unfortunately suffered here. The scandal that was caused by that action, in the Legislature will remain, I expect, fully as long as the lives of those men who participated in it. The facts of that transaction will never come to life, and I hope never will, but it has been to us as an object lesson which eve are not likely to forget. Now, what harm could result from the adoption of the substitute offered by my colleague? If it ever becomes expedient or right that the occupants of territory contiguous to Montgomery or to other cities that the occupants of suburbs should become citizens of any municipality, they themselves will see to it that they come in, but why should we pursue a man as civilization pursued Daniel Boone into the wilderness, so as to compel him to go into a city and be subjected to taxation, whether he wants to or not, if he lives within a half mile or mile of a city?

MR. SAMFORD (Pike)‑I suggest to the gentleman from Montgomery that the amendment offered by his colleague. Mr. Sanford, is a little indefinite in regard to who would be permitted to vote upon that question. Some of us think that the way the amendment reads now it would be by the vote of the city as well as the others.


3704                  

OFFICIAL PROCEEDINGS

MR. MACDONALD– My recollection is that it way by the inhabitants of the territory sought to be annexed. If you are right in your influence, it makes it no better but worse. I suggest that the amendment offered by my colleague be read.

The Secretary read the amendment as follows : "Amend said section by adding at the end of said section the words : 'Provided that the people residing in the territory to be annexed shall have an opportunity to vote upon the question of annexation.’”

MR. SAMFORD (Pike)‑It does not confine it to that if you notice.

MR. MACDONALD– That is true, and I think it needs amendment in the manner suggested by the gentleman from Pike.

MR. deGRAFFENREID – Cannot the General Assembly do that as well without this section as with the section?

MR. MACDONALD– I think they can, and, therefore, I think the substitute of considerable importance. I know they attempted it and came very near succeeding, and that is one of the reasons that I was not willing that the section or substitute be laid upon the table, because I think the idea suggested that the consent of the inhabitants of the territory to be annexed should be first secured is of great importance, otherwise there is no limit whatever to legislative discretion in annexing any territory to a city, and we know, as has been well said on this floor, that the local members generally come from the cities and will do what they can to relieve them of the burdens of taxation. I hope the substitute, amended possibly as by the suggested of the gentleman from Pike, will be adopted.

MR. WEATHERLY– As I stated in my opening remarks in introducing this Article, the members of this Committee have no pride of opinion as to the adoption or rejection of this section of this report, or any part of it. We are simply offering to the Convention the results of our investigation, and our ideas of what should be put in the Constitution so far as it relates to municipal corporations. It was suggested to the members of this Committee that great harm had been heretofore done by changing corporation lines in the Legislature without giving the people of the city which was affected any notice of it or any opportunity to be heard, and I understand that the gentleman from Dallas states upon the floor that that was done at a late meeting of the Legislature affecting his town.  The Committee thought it wise, therefore , that if any change should be made in the corporate boundaries of a municipality that notice of the intended change should be given by publication in the form set out in the report.  As the matter now stands, any member of the Legislature regardless of the wishes of the people, can either procure the enlargement of the limits of his town


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or have them contracted. We think that the people have a right to be heard, but, gentlemen of the Convention, it is not thought by those who have carefully studied the question, that the question of taking in or leaving out a certain territory should be left to the vote of the people affected by it. Now, the gentleman from Pike, speaking upon this question before the noon recess. pictured the beauties of a suburban residence, where a man who lived outside of a town could get all the advantages of city life, be able to carry on his business in the city and escape municipal taxation. I say that a man who receives the benefits of a municipal government ought to be willing to bear his proportion of the burden. If you leave it to the vote of the man who lives immediately on the outside where he can reach the center of the city and reach his place of business by a street car in ten minutes, where he gets the benefits of electric lights, police protection, paved streets and sewers and does not have to bear its proportion of the burden of course he is going to vote not to come in, and I say gentlemen that there are times when certain portions of suburban territory should be brought into the city limits even if those people themselves are opposed to it. This section gives them an opportunity to be heard before the Legislature. It brings the subject to the attention of the public, where it may be actively discussed by the people, and if any changes are to be made, they can be made in the open, and not, as heretofore, made in secret. These are the reasons that move the committee to recommend the adoption of this section to the Convention. I move to lay the amendment on the table.

MR. SANFORD (Montgomery)– Upon that I call for the ayes and noes.

The call was not sustained.

THE PRESIDENT‑As many as favor the motion to lay the amendment on the table will say aye and those opposed no.

Upon the vote being taken a division was called for and the motion to table the amendment prevailed by 36 ayes and 35 noes.

THE PRESIDENT– The question will recur upon the amendment of the gentleman front Dallas (Mr. Craig).

MR. HOOD‑I move that the amendment and the section be laid upon the table.

MR. GREER (Calhoun)‑I call for a division of the question.

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

THE PRESIDENT‑ The question will be first upon the motion to table the amendment offered by the gentleman from Dallas, and the ayes and noes are called for. Is the call sustained ?

The call was not sustained.


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OFFICIAL PROCEEDINGS

MR. BOONE– The committee asks unanimous consent to accept the amendment.

The consent was given.

MR PRESIDENT‑ The question will be upon the motion to table the section as amended.

Upon a vote being taken, a division was called for and the section as amended was tabled by a vote of 44 ayes and 37 noes.

Section 4 was read as follows:

Sec. 4. No city, town or village shall be authorized or permitted to grant any franchise or privilege or make any contract in reference thereto for a term exceeding twenty years, nor shall any city, town or village grant any right of way over or right to use any street or public way or part thereof except to the person or corporation offering the highest sum therefor or the highest percentage of gross annual receipts to be deprived from the business so using the right of way or street or public place. No such privilege shall be granted until the applicant therefor shall have given notice by publication for thirty days in some newspaper published in the city, town or village of his intention to ask for such franchise and the date upon which such application shall be made and the person, firm, association or corporation to whom such franchise is granted shall be liable for any damages inflicted upon the property or abutting properties.

MR. BROOKS‑I have an amendment.

The amendment was read as follows:

"Amend Section 4 by inserting after the word, ‘village’ in the eighth line, the following: "or if there be no newspaper published therein, then by notice posted in three separate public places in such city, town or village."

MR  WEATHERLY– The committee asks unanimous consent to accept the amendment of the gentleman from Mobile.

The consent was given.

MR. BROOKS‑ The object of that amendment is simply to provide the ordinary mode of giving notice where there is no paper published in the city, town or village.

MR. SMITH (Mobile)‑I have an amendment.

The amendment was read as follows:

"Amend Section 4 of the report of the committee by striking out the word "twenty" in second line, and inserting the word 'fifty' in lieu thereof.


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MR. SMITH — I (Mobile)‑I think the period as fixed is too short in the interest of our growing communities. A majority of the cities and towns of Alabama are not sufficiently large to make the character of improvements that enhance the value of property and to go to the progress of communities profitable to investors. Nearly all of these public improvements are put in comparative small places, with the hope of developing those places to some extent, and thereby making the franchise itself of some considerable profit.  If you restrict them to a very short period of time you will make it difficult, for small places at any rate, to obtain such improvements as lights, water works, street railways and things of that character.  I think it is otherwise therefore to limit it to so short a time  as to make it difficult to obtain the improvements themselves.

Taking a class of fifty-seven cities, which I looked into, somewhat larger than any cities we have here, and I find twenty-six of them limit the franchise to fifty years, three of them were perpetual, one was for ninety years, sixteen or seventeen were thirty ears and one twenty-four years. So that the limit that we are placing here upon franchises is far below the average limitation placed by cities of very considerable larger population than the cities we have here, and for that reason I have offered the amendment increasing the life of the franchise to fifty years instead of twenty.

Mr. Weakley was recognized by the Chair.

MR. SAMFORD (Pike)– I desire to ask the gentleman a question. I see that some misapprehension appears with reference to the power to grant franchises as contained in this section. It says: “No city, town or village shall be authorized or permitted to grant any franchise or privilege or make any contract in reference thereto for a term exceeding twenty years, nor shall any city, town or village grant any right of way over, or right to use any street or public way or part thereof, except to the person or corporation offering the highest sum therefor or the highest percentage of gross annual receipts,” and so on.

Does that have the effect of granting to corporations, cities and towns, the right to dispose of a part of the streets?

MR. WEAKLEY‑ It grants the use of the streets for the purpose of operating street car lines, water works, electric lights, etc.

MR. SAMFORD ( Pike)‑Suppose they wanted to grant the right to put a building in the street, would that—

MR. WEAKLEY‑ Nothing but a public utility could be permitted to use the street under this Section.

Mr. President, the question of the proper management and disposition of municipal franchises is one of the most important


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OFFICIAL  PROCEEDINGS

questions before the American cities today. I am unalterably opposed to the granting of a municipal franchise, in any event, for a period longer than thirty years.  I will admit—

MR. WALKER (Madison)‑Will the gentleman yield to a question?

MR. WEAKLEY‑ Yes sir.

MR. WALKER (Madison)‑Would not the prohibition contained in this Section apply to a railroad proposed to be run through a town, so it could not acquire from the city for a period longer than the tine limit, the right to run the railroad through its streets?

MR. WEAKLEY‑ Probably so. I do not see that a steam railroad has any more right to the use of a street than a street railway, an electric railway.

I will admit that an examination of the length of franchises granted to the various public utility corporations by cities of the United States will disclose the fact that the majority of these franchises are granted for a considerable length of time. There is a franchise granted to a street railroad in the city of New York that has several hundred years yet to run, but the tendency of modern times is for the public to retain control of the streets and public ways of the city as far as possible, and the question is what length of time would it best suit the interest of the public to part with the control over their streets.

I have taken occasion, since this matter came before the Committee, to make investigations, and I find that it is the unanimous opinion of the mayors of twenty-five leading cities in the United States that the length of the franchise ought not to exceed twenty-five or thirty years, and a great number of those people go so far as to say that there should be reserved to the city the right of readjusting this franchise at the end of every ten years.

It used to be the case, gentlemen of the Convention, that these franchises were given away, and I believe it is the case in Alabama today.

MR. BOONE‑ Except in Mobile.

MR. WEAKLEY‑I believe the gentleman says except Mobile, but if I read the paper front the city of Mobile aright it is proposed that the Street Railroad in the city of Mobile shall have its franchise so extended as to expire eight years from this time and in consideration of the grant to use the streets by the street railroad electric light and power company, they will furnish certain electric lights for the city building, and beyond that so far as my information goes, they received no compensation. Now, gentlemen, this Constitutional Convention has limited or will limit the


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CONSTITUTIONAL CONVENTION, 1901

power of the cities of his State to raise money by taxation. It certainly ought to prescribe some means by which they can get some compensation for the use of the streets. This is no new proposition. It is a method of raising revenue that is in operation in a number of large cities of the country.  Why, in the city of Nashville, a franchise has recently been granted to the gas company for a period of only twenty years, and the contract provides that at the expiration of ten years the city shall have the right to purchase the plant at its actual value and not including the value of the franchise. The gas company in the city of Nashville pays a license or privilege tax of $700 per annum. It pays a tax of 1 1‑2 per cent. upon the assessed valuation of its property, which is $900,000, the total tax being $13,500 and in addition to that, for the use of the streets it pays to the city of Nashville 5 per cent. on its gross receipts, and in addition to that the contract provides that the price of gas shall never be exceeding $1 a thousand.

MR. DENT‑I would like to hear the construction of the Committee upon this proposition. You provide here there shall be no right of ways granted by any city to any corporation except the one offering the highest sum therefor or the highest percentage of gross receipts. Would not that provision prevent a city from granting a right of way to a railroad.

MR. WEAKLEY ‑Yes sir, unless paid something for the street.

MR. DENT‑ And suppose a railroad was in any town and another was coming there that would be a rival road, wouldn't that road in the town be better able to pay for the use of streets than the new road, and wouldn't it cut it off?

 

MR. WEAKLEY‑I presume the new road would buy its right of way.

MR. PITTS‑ Section, in the ninth line, "the firm, association or corporation to whom such franchise is granted shall be liable for any damages inflicted upon the property or abutting properties."

MR. WEAKLEY‑ Property of abutting proprietors, that means.

MR. PITTS– I would like to ask the gentleman if that wouldn't prohibit electric railways on the streets.

MR. WEAKLEY‑ No sir, I think not.

MR. PITTS‑ Would it allow a man who owns abutting property to claim damages for use of the streets. Don't you think that would prevent electric cars from going on to—

MR. WEAKLEY‑‑I do not think it means that.


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OFFICIAL PROCEEDINGS

MR. PITTS‑ What is the damage to abutting property.

MR. WEAKLEY‑ The gentleman understands the Supreme Court decided that the operation of a street railroad is not an additional burden of servitude, but the gentleman must bear in mind that it frequently happens that a street railroad in constructing its lines will construct them without regard to the property upon which it abuts and so construct the road by placing it too near the sidewalk or otherwise, or by changing the grade as to damage to the property of individuals.

MR. PITTS‑ On the street.

MR. WEAKLEY‑ Yes sir.

MR. KYLE‑I would like to say that we have a case in point.  The Chattanooga Southern Railroad is arranging to build a line from Gadsden to Birmingham, through Oneonta, going through our town. Now how will they get through there if they cannot get a charter for more than twenty years. You say they shall not be granted for more than twenty years.

MR. WEAKLEY‑ This Section says that the city authorities shall not grant the use of its streets more than twenty years.

MR. HOOD– Carrying out further the question of my colleague, there are four other railroads there. Suppose in the extension of the Chattanooga Southern Railroad, these railroads should bid higher than the Chattanooga Southern Railroad for the right of way, how would the Chattanooga Southern ever get through?

MR. WEAKLEY‑I do not know that I can answer that proposition.

MR. HOOD‑ Might not this proposition prevent competition? For instance, in electric light plants and street railroads, one being already located and having a great advantage over the proposed one and thereby having a great advantage in this competition.

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

MR. VAUGHAN‑I have an amendment.

The Secretary read the amendment as follows: “Amend by striking out all after the word ‘and’ inhere it appears the last time on line nine.”

MR. VAUGHAN‑I simply want to amend the section.

THE PRESIDENT‑ It is not in order. There is an amendment pending to extend the time fifty years.

MR. VAUGHAN‑‑‑I desire to amend that.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑ The amendment is not in order unless the gentleman desires to amend the amendment.

MR. ‑ I move that Section 4 and pending amendment be laid upon the table.

Upon a vote being taken there were 47 ayes and 35 noes and the section and amendment were laid upon the table.

The Secretary read Section 5 as follows:

Section 5. No street railway, gas, water, steam or hot water heating, telephone, telegraph, electric light or power company within a city, town or village shall be permitted or authorized to construct its tracks or mains or erect its poles, posts or other apparatus or string its wire upon the same, along, over, under or across the streets, avenues, alleys or public grounds of such city, town or village without the consent of the proper municipal authorities of such cite, town or village being first had and obtained.

MR. WEAKLEY‑I desire to withdraw Section 5 and offer a substitute to that.

The Secretary read the substitute as follows:

Amend by striking out Section 5 and insert in lieu thereof the following:

Section 5. No person, firm, association or corporation shall be authorized or permitted to use the streets, avenues or alleys of any city, town or village for the construction or operation of any public utility or private enterprise without the consent of the proper  authority of such city, town or village, being first had and obtained."

THE PRESIDENT‑ The gentleman from Lauderdale asks unanimous consent to substitute the section just read for the Section as reported by the Committee. Is there objection?

MR. HARRISON‑I object.

THE PRESIDENT‑ The question will be upon the adoption of the substitute as proposed by the Committee. If the gentleman from Lauderdale desires to discuss it the Chair will recognize him.

MR. HARRISON‑I desire to suggest to the Chairman of the Committee what I rose for. I think the amendment is really better than the original, but I think the report of the Committee on Corporations better than either, and it belongs in that Article and I ask that he postpone this and that it be considered along with the report of the Committee on Corporations.

MR. WEAKLEY‑I desire to state that the substitute offered conveys the same idea contained in Section 5 of the printed report,


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OFFICIAL PROCEEDINGS

but the verbiage, I think is slightly different and as the gentleman from Lee suggested, I think it is an improvement. It simply provides that no person, firm or corporation can use the streets of a city for the purposes of carrying on any business without first obtaining the consent of the proper municipal authority. I think that this is an important provision and that it ought to go in to that section pertaining to municipal corporations. I move the adoption of the substitute.

MR. MERRILL‑ Don't they have to obtain the consent of the municipality under the law now?

MR. BOONE‑ No, sir, the legislature does that.

MR. HARRISON ‑It is immaterial to me where it goes. We have the article in the present Constitution under the general subdivision of corporations and it has been treated by that Committee, and it covers that article not only as the original article reads here, "street railways, etc." but it covers all railways and in very general terns and I submit especially as the Chairman to the Committee who has the floor. I will read Section 18 of the report on Corporations which I think is rather an improvement on the substitute and I think it properly belongs in that article.

Section 18 reads as follows: Sec. 18. Rights, privileges and easements for public utilities over, along and under the streets of incorporated cities and towns shall not be granted, except by the proper legal authorities of such incorporated cities and towns.

I think it properly belongs in this report. It is there in the old Constitution under that head and we have acted on it and I have no private opinion but I submit that there is really nothing in this report that ought not to go under the head of corporations or taxation and I think that the Convention will see as we progress, and while the Chairman of the Committee has so clearly agreed with the Committee on Corporations, I think the phraseology is a little better. I  think it probably belongs there and the Committee on Harmony can arrange it, I move that this section be postponed and considered along with that of the Committee on Corporation.

MR. BOONE– I think it very inexpedient that every section that comes up here should be passed to be taken up at a future date. We want to get through with these reports. If this Convention is of the opinion that the article as reported is better than the Corporation Article which is the last one on the report, which took weeks and weeks to get in here, and finally hot here, and now everything is to be tied up because it is to be the last.  I object to it. If the Convention thinks; it is letter covered in that I would rather see them table this than to put the whole work back. The Committee on Harmony are working every night trying to get their work up for this Convention when it is ready to adjourn to put their work before the Convention, and if everything is to be staved


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CONSTITUTIONAL CONVENTION, 1901

off to the last day they cannot do it, and I for one would rather see it tabled than put in that attitude.

MR. HOWZE‑ It seems to me that the President of this Convention or some one has made a great mistake in establishing this Committee on Municipal Corporation. After changing what has been done, as my friend says, there is no place in it for Committee on Corporations. I submit if there is any necessity for the Article on Municipal Corporations and I insist that there is, this section  properly belongs in that article. It is upon the subject of municipal corporations, and these municipal corporations should regulate the affairs of the different municipalities especially as to matters of franchise. It seems to me this Convention has been very hasty in its action already upon the report of this Committee. It is a report that has been thoroughly adjusted by it and they have presented some fine sections which should be in the Constitution of the State especially in the matter of Municipal Corporations and I do insist that better respect should be paid to the articles presented by this Committee. I hope that this section will not be relegated to be put in behind this Article on Corporations. It belongs here and I think we ought to put it here. It is a fine article and should be adopted. Municipal corporation should regulate these things.  It is important that they should and if we are to have an Article on Municipal Corporations this is the place for this section.

MR. COLEMAN (Greene) ‑Men will differ upon questions of this character. This State has existed a good long while and has had several Constitutions. We have never had an article upon municipal corporations before and the discussion this afternoon makes it clear that at this time there is no necessity for an article upon municipal corporation. I have examined it section by section through and to the very best of my ability have found only two of these sections which, it seems to me ought to be in the Constitution. The legislative power is ample for all the provision which they have set up here, and if they are incorporated in Section 24 of the present Constitution, all previous discussions in the first part of this report would have been disposed of and satisfactorily by constitutional provision, which has been adjudicated by the Supreme Court of this State time and again. Now, it may be that at the close of Section 7, if I am not considered out of order would be a very proper place for the amendment suggested the other day by the delegate from Montgomery, Mr. Macdonald, and Section 7, Where certain named towns have been excepted out of the operation of the general law.

MR. BOONE‑I rise to a point of order. The question under consideration is the substitute offered by the Committee to Section 5, and the gentleman is not addressing himself to that substitute.

MR. COLEMAN‑I was aware of the position, and I stated if I may be permitted to call attention to it.


3714                  

OFFICIAL PROCEEDINGS

MR. BOONE‑I make the point of order.

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

MR. COLEMAN‑I move to lay Section 5 and the substitute on the table.

THE PRESIDENT‑ The substitute was accepted unanimously by the Convention. The motion is to lay the section as amended upon the table.

MR. WHITE‑I call attention to the fact that the substitute was not unanimously accepted. The gentleman from Lee objected.

MR. HARRISON‑I withdraw the objection.

THE PRESIDENT‑ The Chair will again submit the question of the accepting the substitute. Unanimous consent is asked that the substitute may stand in lieu of the original. Is there objection? The Chair hears no objection. Thereupon the gentleman from Greene moves to lay upon the table the section as amended.

Upon a vote being taken, a division was called for, and by a vote of ayes 34, noes 44, the motion to table was lost.

MR. BOONE ‑I move the previous question on the section as amended.

MR. GRAHAM (Montgomery)‑I will ask the gentleman from Mobile if he will not withdraw his motion for the previous question in order that I may offer Section 18, under the report of the Committee on Corporations as a substitute.

MR. BOONE‑I decline to withdraw.

THE PRESIDENT‑ The gentleman declines to withdraw. The question is, shall the main question be now put?

Upon a vote being taken, a division was called for, and upon a further vote being taken, there were ayes 41, noes 34, and the previous question was ordered.

THE PRESIDENT‑ The question is on the adoption of the section as amended.

MR. HARRISON‑I call for the reading of it.

The Secretary read as follows:

"No person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, or alleys of any city, town or village for the construction or operation of any public utility or private enterprise without the consent of the proper authorities of such city, town or village, being had and obtained."


3715

CONSTITUTIONAL CONVENTION, 1901

The previous question has been ordered and is not debatable.

MR. HARRISON‑I just wish to ask the chairman of the Committee– I just heard it when read the second time– what would become of the right—

THE PRESIDENT‑ The question is not debatable.

MR. GRAHAM (Montgomery)‑I desire to ask unanimous consent to make a suggestion to the chairman of the Committee which I think will be accepted.

The consent was granted.

MR. GRAHAM (Montgomery)‑I suggest to the chairman of the Committee the insertion of "public places," so it would read "streets, alleys and public places." There is a distinction between public places, streets and alleys.

MR. WEAKLEY‑ The committee will accept that amendment.

THE PRESIDENT‑ The Chairman of the Committee asks unanimous consent to incorporate the amendment suggested by the gentleman from Montgomery. The Chair hears no objection. The question recurs upon, the adoption of the section as amended by the substitute offered by the chairman.

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

The Secretary read Section 6 as follows:

Sec. 6. The General Assembly shall not enact any laws which will permit a person, firm, corporation or association of any character to pay a privilege license or other tax to the State of Alabama, and relieve him or it from the payment of all other privileges and license taxes in the State.

MR. WEAKLEY‑I desire to say for the information of the Convention with reference to this section that it is designed to meet a situation, or prevent the recurrence of a situation, which exists in Alabama today. I will illustrate this by saying that the Southern Express Company has procured the passage by the Legislature of a law authorizing it to do business in this state upon the payment of a certain license to the State, and it has been held by the Supreme Court in a case originating in the city of Anniston that this license paid to the State was in lieu of all other licenses which could be charged to the Express Company for doing business in Alabama. As the gentlemen in the Convention know, in the cities in this State, every person, firm or corporation that is engaged in business in the city limits pays into the city treasury a certain privilege or license for doing business in that city. The railroads, the street railroads, the telegraph companies, the telephone companies and all other corporations and individuals pay this license,


3716                  

OFFICIAL PROCEEDINGS

but there is not a town or city in Alabama that has been able to collect a license from the Southern Express Company on account of this decision. I submit, gentlemen, that it is not right or proper to allow the Legislature to barter and traffic with corporations at the expense of the municipalities in this State, and if it is right and proper that all corporations should pay this license, it is right that this particular corporation should pay it. This explains the section as introduced.

MR. FOSTER–I presume, Mr. President, that the object of this section was, as stated lay the chairman, though the section itself speaks as if it were a privilege to pay a privilege tax. It seems to me to be a little ambiguous. Now, Mr. President, I am not in sympathy with the object of this section. I think we have trimmed down the powers of the Legislature enough already, certainly we ought not encroach upon this vital power of furnishing revenues to the State government. We have already cut down the tax limit from seventy-five to sixty-five, we have curtailed the power of the Legislature upon all these local matters and now this section proposes to put these cities and towns absolutely above the power of the Legislature in this matter of levying privilege or license taxes. The gentleman has stated that the Southern Express Company is by law exempt—

MR. WADDELL‑ You overlook the fact that they cut down the tag tax.

MR. FOSTER‑‑I did not say anything about the tag tax, I do not know what has become of that tax. It has been here so often. Now, it is true, Mr. President, that under Section 50 of Article IV of the present Constitution, the court has decided that a city or town cannot levy a license tax upon the Southern Express Company because a general law was adopted by which the privilege tax was fixed at four thousand dollars and the Express Company is required to pay that amount into the State. I do not know whether that is an adequate privilege tax or not, I do not pretend to say, but I think this Convention ought to leave it to the Legislature to say whenever they think it proper that the State should take all the privilege taxes which ought to be paid to the exclusion of the cities and towns, that the Legislature ought to be able to say whenever they deem it necessary that the State shall collect all the privilege and license taxes which in its opinion any business in the State can bear. This is not only true of the Southern Express Company, it is true of the Pullman Palace Car Company, steam boats and probably some other things.

MR. BOONE‑ Will the gentleman permit a question.

THE PRESIDENT‑ Will the gentleman yield to the gentleman from Mobile.

MR. FOSTER‑ Certainly.


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CONSTITUTIONAL CONVENTION, 1901

MR. BOONE‑ Are you not familiar with the proposition as announced by the Supreme Court of the United States that no city can collect a tax upon a steam boat navigating one of the navigable rivers of a State?

MR. FOSTER‑I am not talking about the United States, I am talking about the policy of the State of Alabama—

MR. BOONE‑I contend that the State of Alabama cannot do it.

MR. FOSTER‑‑I do not know. I yielded to a question, not to a discussion by the gentleman from Mobile. I was speaking of the policy of the Legislature, and the folly of this Convention, as I conceive it, of taking away from the Legislature the power of putting into the State treasury the privilege taxes that they see fit to collect. Now, Mr. President, suppose the Legislature deems it necessary to keep this high privilege tax upon these companies of four thousand dollars, if you put it in the power of every town and city, in this State to levy a privilege tax upon any of those corporations now exempt from the special privilege taxes, you would simply make it impossible for them to do business in this State at a profit. You either do that or the Legislature has got to give up what goes into the State treasury, or a large part of it. I must confess that I am not very much in favor of a privilege tax anyway. In my opinion privilege taxes are a tax upon industry.  Whenever they are put upon anything which does not specially need police protection.

MR. HOOD‑ Are other Express Companies subject to that provision you speak of?

MR. FOSTER‑I don't know whether it applies to other Express Companies in the State or not. I say this is an attempt to perpetuate privilege taxes on the part of the cities and towns, and this fiction of police protection is a fiction for the purpose of getting privilege taxes. It is a tax upon business, a tax imposed upon honest effort to make a living. I move to lay the amendment upon the table.

MR. BOONE‑ Please withdraw that for a moment. Do you want to discuss it yourself and not permit the committee to discuss it?

MR. FOSTER‑ The committee has already discussed it. However, I withdraw my motion.

MR. BOONE‑ This section as embraced in this article was introduced in this Convention by the delegate from Montgomery.  Mr. Graham, and we thought it fair and right that any corporation which has the police protection (which the gentleman from Tuscaloosa says is nothing) that uses the streets, that has fire pro‑


3718                  

OFFICIAL PROCEEDINGS

tection for their buildings where they have offices, and have every municipal care and guardianship thrown around them, that it was not fair to the city that they should pay a certain lump sum to the State and that should absolve the corporation from paying any license taxes. Every merchant, every corporation in this State, every railroad has to do it, and why should the Southern Express Company be exempt. In the last Legislature I believe there was passed through the House a bill which abolished this and allowed each city and town to have their proportion of what was due it in the way of license tax on a fair basis. That bill went into the Senate, to a certain committee there, and was lost, and we ask that it be put into the Constitution of the State. It is fair and right and just in the opinion of this committee. I suppose gentlemen will argue that all municipal license taxes should be abolished and thereby cripple a great many of the cities and towns in this State, practica1ly cause a suspension of municipal government therein. He says that the State should have the right at all times to take unto itself to the exclusion of every town and city every license tax. I suppose the gentleman would favor the abolition of the tax on insurance companies in Mobile and Montgomery and thereby strike down the fire departments in both of these cities. That is the trend of his argument. Go a step further with the plenary power in the Legislature and say all license taxes shall he taken by the State. I think that this Convention is not prepared to go so far, and I do not think that they approve of the view that these corporations who cone into a community and do business and make money, use the streets, have the benefit of fire protection, of water and sewerage and every other utility that you can get in an urban population, and escape all privilege taxes, the committee does not think it just nor right anti holes the Convention will adopt this section. There is no reason why these corporations should be exempt.

MR. O'NEAL ‑Permit me to ask a question. Are they less able to pay a privilege tax than a poor lawyer or doctor?

MR. BOONE‑I think not, sir. As the gentleman from Lauderdale suggests, the doctor, the lawyer, the merchant, and the mechanic, no matter how humble he may be he has got to pay a tax in his business, and why should not the Southern Express Company or any other corporation pay it?

MR. deGRAFFENREID ‑If this Section is not adopted, will there be anything to prohibit the General Assembly from exempting lawyers or doctors under privilege tax in a town or city?

MR. BOONE ‑No sir, but it prevents them from taking all the taxes. It prevents the State from stripping the municipalities of all taxes whenever it sees fit. That seems to be the view of the gentleman from Tuscaloosa, and he wants to go further and the State appropriate to itself the right to take all these taxes on corporations coming to the cities and towns of Alabama.


3719

CONSTITUTIONAL CONVENTION, 1901

MR. WALKER‑ Under this Section if adopted, would it not be within the power of the Legislature to impose a license tax on any corporation or business and to withhold the power from municipalities by simply failing to grant them the power to impose a license tax on such business?

MR. BOONE‑ It may be, sir, if this Convention should go further and abolish the charters of all municipalities of this State, but unless it does that, it cannot do it, because every one of them have a right to levy a reasonable license tax.

MR. WALKER‑ Could not the Legislature repeal these acts.

MR. BOON‑ Yes sir.

MR. FOSTER‑Is there anything in the Constitution to prevent the Legislature from authorizing cities and towns' to collect a tax on everyone of these corporations?

MR. BOONE‑ No, sir, but it has been the experience of men who have fought this thing here and tried to get it through the Legislature for the past ten years, that it could not be done, that is the information I get from the gentleman from Montgomery who introduced this. The people of Montgomery and Mobile and Birmingham have tried to get it through the Legislature, but it could not be done and that is the reason we are trying to put it here. We do not appear here in the interest of corporations, but in the interest of the whole people.

MR. GRAHAM (Montgomery)‑I cannot hope to present any stronger argument to the Convention than has already been presented by the gentleman from Mobile, but I will attempt in my feeble way to give some few reasons that I have why this Section in the Constitution should be adopted. By reference to the Civil Code of Alabama you will find that Section 3914 exempts express companies from paying municipal licenses. Section 3915 exempts sleeping car companies from paying municipal licenses. Section 3913 exempts Building and Loan Associations from paying municipal licenses. How long, Mr. President, before every other association or every other business in the State of Alabama that is capable of mustering a lobby in the General Assembly and forcing the passage of such laws as these? They are unjust, they are unfair to the various municipalities of Alabama. Who protects their property? Is it the State of Alabama? Nominally, yes, really it is the municipal corporation, towards the government of which they expend not $1 except the small amount paid in taxes upon office furniture, a few horses and old wagons. That is all the property upon which the Southern Express Company or other express companies pay in the city of Montgomery and other cities.  Sleeping car companies own no property in the State of Alabama, not one single solitary dollars' worth, and yet they are exempt from paying a license to the city of Montgomery, Mobile or Birming‑


3720                  

OFFICIAL PROCEEDINGS

ham, or any of the municipalities in the State of Alabama for the protection which is afforded them under the law. Is that fair and just, is it right that the Legislature of the State of Alabama should exempt these people from paying licenses in these municipalities, when if anything should happen they would come to the municipalities for protection and unless that protection was granted there would be a howl from one end of the State of Alabama to the other. I am not in favor of oppressing these people. It is contrary to all the views I have ever entertained in reference to government, to oppress any one person or any one business, no matter what its character, for the benefit of others. I say it is unfair, and it is unjust, that relief should be given to certain individuals and to certain corporations and that same relief denied to other individuals and other corporations. Why sir, as was stated to you by the gentleman from Mobile, these people get the benefit of our police system, they use our streets, they get the benefits of water and light and the general protection which a municipal corporation gives to a business of this character.

MR. FOSTER‑ Don't they pay for the water and lights?

MR. GRAHAM‑ Yes sir, but suppose they move outside of the corporate limits of the city of Montgomery, where do they get the water and lights?

MR. BOONE‑ Do they not get fire protection?

MR. GRAHAM‑ Yes, and use the streets possibly more dilateriously than any other class.

MR. BOONE‑ Pay any vehicle license?

MR. GRAHAM ‑No sir, nothing of the kind. I know that these corporations and associations have friends in this Convention, have friends in every assembly, and I am a friend of each of them, but I do not think, Mr. President, that they are entitled to an exemption under the law, and a distinction made in their favor which results in injustice to other people. The effect of this law if it is carried to its legitimate conclusion, would be to deprive every municipality in Alabama of the right to levy and collect a privilege tax to carry on the very purpose for which it was organized. and when you do that, it were better for the State of Alabama that this Convention should repeal every charter given to a municipal corporation and undertake to administer their affairs itself. Justice and fairness, in my opinion, demand that this Section of the proposed Constitution should be adopted by this Convention.

MR. CUNNINGHAM‑ Suppose a city depends entirely upon certain industries for its very existence and prosperity, and suppose that the health of the community demands that the corporate limits of that city should be extended and in such a way as not to


3721

CONSTITUTIONAL CONVENTION, 1901

include the industries, can the Legislature under the present Constitution exempt these industries from municipal taxation?

MR. GRAHAM‑ They have been doing it, whether they can or not.

MR. BOONE‑ They cannot under the Constitution we have adopted.

MR. CUNNINGHAM ‑If this Section is adopted they could not do it?

MR. GRAHAM‑ They could not.

MR. CUNNINGHAM‑ That is the reason I am opposed to the Section. There is an aspect of the question that has not been discussed here. Take the town of Ensley which depends entirely upon its industries. To use a hackneyed expression, "It is the goose that lays the golden eggs," and yet the circumstances are such that to give the people of the Community the benefit of free schools, sanitation and police protection, together with all the other advantages of municipal government, it will be necessary at no distant day to extend the corporate limits of the town, and yet I dare say that there is not to be found in the community a man who would not be willing to extend the corporate limits, and except these industries from municipal taxation, that is to say, the industry itself, and not the real estate upon which the industry is placed. Now, I have been informed that could be done under the present Constitution.

MR. BOONE‑I rise to a point of order. There is nothing under consideration in reference to corporate limits. The Section that is under consideration is license taxes.

THE PRESIDENT‑ In the opinion of the Chair the point of order is well taken, the question with reference to corporate limits has been laid upon the table.

MR. CUNNINGHAM‑I understand that, Mr. President, and if the Chair rules that the adoption of this section will prevent the extension forever of the limits of any city in the State of Alabama, so that my remarks would be out of order, and, of course, I would be out of order, but I do not so read the section.

THE PRESIDENT‑ The Chair will rule that the question of extension of corporate limits of a city is not germane to the question now before the Convention, and the gentleman is not in order to discuss it.

MR. CUNNINGHAM‑ Well, then, Mr. President— 

MR. BOONE‑ Will the gentleman, permit me for one moment—   


3722                  

OFFICIAL PROCEEDINGS

MR. CUNNINGHAM‑ Not right at this time. I say, for example, if the corporate limits of my town already embraced these industries, and they were to exempt them, if you adopt the section it could not be done, and in that way deprive the people of the community in which these industries are located of the advantages of municipal citizenship.

MR. BOONE‑ Was the gentleman not aware, as a delegate in this Convention, that we have already passed an Article pre‑

venting exemptions from taxation?

MR. CUNNINGHAM ‑Then I see no use for it, and I am opposed to the section.

MR. BOONE‑ There is a distinction between licenses and taxes as the Supreme Court has held.

MR. CUNNINGHAM— I read the section "licenses or other taxes. Now, I don't know what "other taxes" means except an ad valorem tax. That is the way I read the section.

MR. BOONE‑ It is tax or licenses and the section as passed has reference only to ad valorem.

MR. CUNNINGHAM‑ Well perhaps, it does; I am not lawyer enough to see the distinction. It strikes me, however, if this provision is adopted, the idea I am trying to advance is that a municipality might want to exempt industries from paying municipal taxes in order to give the advantage of citizenship in their city. If they are deprived of that, I am opposed to the section.

MR. O'NEAL‑ You were in favor of every municipality having the power to exempt any industry from taxation?

MR. CUNNINGHAM‑ Certainly.

MR. O'NEAL‑‑ Don't you want to give the municipality the power to tax if they desire.

MR. CUNNINGHAM‑ Yes.

MR. O'NEAL‑ That is the purpose of this section. It prevents the Legislature from denying the right to any city or town in the State the right to impose a license tax upon industries, etc.

MR. WEATHERLY‑ Mr. President, I favor the idea of allowing a municipality to impose a license or tax upon any corporation that does business within its limits. I think that is right and I think that power should be amply reserved to the municipalities of the State, but I desire to call the attention of the Convention to a contingency which might arise in the future somewhat like the contingency or situation that has arisen with reference to the taxation of railroad corporations. Wherever a railroad or other like corporation does business through a continuous part of the


3723

CONSTITUTIONAL CONVENTION, 1901

territory of a State, running through one county after another, or one city after another, if the county or municipality is alive to its own independence and free action in the levying of taxes, it gives rise to inequalities and injustice, hence it has been found necessary in the State of Alabama, and in a great many other States; in fact, I believe, in nearly all the States of the Union, if not all, in the matter of taxation of railroad property to put the power of taxation in the hands of a State Board.

 

MR. GRAHAM (Montgomery)‑Isn't it a fact that railroad companies in Alabama pay these taxes in every town and city through which they pass?

MR. WEATHLRLY‑ Certainly they do; I freely admit that, and I say the other corporations ought to do it, too. I am not making that point, but I am making the point that you ought not to withdraw it from the power of the State of Alabama, in case need should be, to take upon itself the right of levying all these taxes uniformly and distributing pro rata the license taxes to the municipalities. That is the proposition. I do not think that the State of Alabama should collect a municipal tax. a privilege tax, and put it in the Treasury, and deny it to the municipality, but the tithe may come when the State of Alabama may want to say to its people. "I take back to myself the power or levying these taxes." "I will levy a privilege tax for the city of Montgomery of so much upon a certain corporation and for the city of Mobile of so much," and then the State of Alabama will distribute it to the cities equitably. This section prohibits the State of Alabama from doing anything of that sort.

MR. BOONE‑I will ask you if the purpose of this section is, not to prevent the State from taking to itself all these licenses and what you urge is not applicable to this section because the State could levy the tax and distribute it under this still to the cities and towns?

MR. WEATHERLY‑I haven't so read it. It says that "the General Assembly shall not enact any laws which will permit a person, firm, corporation or association of any character to pay a privilege license or other tax to the State of Alabama, and relieve him or it from the payment of all other privileges and license taxes in the State."

As I read that, it prohibits the payment of any privilege license or license taxes to the State, and thereby relieving them of paying it to the city or municipality.

MR. BOONE‑ Isn't the object of that section to prohibit them  from taking those licenses away from the city?

MR. WEATHERLY‑ Certainly, but I say it goes further than that.


3724                  

OFFICIAL PROCEEDINGS

MR. BOONE‑ Does it prevent the State levying a license tax and distributing it under an equalization scheme?

MR. WEATHERLY‑I think it does. I think it would prevent the Legislature from passing a uniform law of that character. That is the very thing that section prohibits, and it is too broad. I will vote for a section which will simply impose the duty upon these municipalities of paying privilege taxes and so regulating that it will be done equitably, but I am opposed to the section as it stands. It is too broad, because it prohibits the State, in case public policy should require that it should take into its hands the duty of regulating these things, from doing it, and we ought not to pass the section in the language in which it is framed.

MR. BEDDOW‑I call for the previous question on the section.

The main question was ordered.

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

Upon a vote being taken Section 6 was adopted.

MR. FOSTER‑I voted for the section for the purpose of moving to reconsider tomorrow, and I make that motion now.

Mr. Waddell here took the chair.

Section 7 was read as follows:

Section 7. No county, city. town, village, district or other political subdivision of a county shall have authority or be authorized by the General Assembly after the ratification of this Constitution to issue bonds, unless such issue of bonds shall have first been approved by majority vote by ballot of the qualified voters of such county, city, town, village, district or other political subdivision of a county, voting upon such proposition. In determining the result of any election held for this purpose, no vote shall be counted as an affirmative vote, which does not show, on its face that such vote was cast in approval of such issue of bonds. This section shall not apply to the renewal, refunding or reissuance of bonds lawfully issued, nor prevent the issuance of bonds in cases where the same have been authorized by laws enacted prior to the ratification of this Constitution, nor shall this section apply to obligations incurred or bonds to be issued to procure means to pay for street and sidewalk improvement, or sanitary or storm water sewers, the cost of which is to be assessed against the property abutting said improvements or drained by such sanitary or storm water sewers.

MR. BROOKS‑I have an amendment.


3725

CONSTITUTIONAL CONVENTION, 1901

The amendment was read as follows: Amend Section 7 by inserting after the word "assessed," in the thirteenth line thereof, the following words: "In whole or in part."

MR. BROOKS‑ That is in line with the language employed in the Article on Taxation on the same subject. Without that amendment it would require that the amount of obligations incurred by issuance of bonds must be for the assessment of the whole of the abutting property. Now the proposition is that where the assessment is against the property in whole or in part, they shall have the right to incur these obligations.

MR. MACDONALD‑ On the fifth of last month, when the report of the Committee on Taxation was before the Convention I proposed an amendment to the article reported by that Committee and that particular amendment was laid on the table and ordered printed, and it was, the order of the Convention that it was to be considered when Report No. 13 on Municipal Corporations was considered. That amendment to the report of the Committee on Taxation is germane to this, particular portion of the report of the Committee on Municipal Corporations, and therefore it seems to me it should be taken up now. I will read this amendment and the Chair will see that it is germane at this particular moment

"Amend article reported by the Committee on Taxation by adding the following as an additional section No. 11:

Sec. 11. No city, town or other municipality, shall make any assessment for the cost of sidewalk or street paving, or for the cost of the construction of any sewers, against property abutting on such street or sidewalk so paved, or drained by such sewer, in excess of the actual increased value of such property by reason of such sidewalk or street paving, or by the construction of such sewers. And the burden of proving such increased value of said property shall be on the city, town or other municipality in all proceedings brought to enforce the collection of such assessments.  And such assessments shall in no case exceed I per cent of the assessed value of said property."

MR. O'NEAL (Lauderdale)‑You do not embrace grading in that do you?

MR. MACDONALD‑ No, sir; sidewalk and street paving includes grading. Now, as I say, Mr. President, that matter is germane right here. Mr. Brooks was incorrect in saying that in the article proposed by the Committee on Taxation, municipalities were given the power to assess the whole of such cost on abutting property, but the expression in that report was "in whole or in part."

The President here resumed the chair.


3726                  

OFFICIAL PROCEEDINGS

MR. BROOKS‑ The gentleman misunderstood me. I said this amendment was in line with the action taken by the Committee in that report.

MR. MACDONALD‑ Yes, sir. Now I would ask the Convention to pay particular attention to what I say–

MR. O'NEAL (Lauderdale)‑Do you offer that as an amendment ?

MR. MACDONALD‑ No, sir; I offer it in the way it was offered before as an amendment to the report of the Committee on Taxation, and the order of the Convention was that it should be considered at this time. I am speaking of the proposition that was ordered by the Convention on the fifth day of July, to be taken up and considered along with the report of the Committee on Municipal Corporations and I called the attention of the then occupant of the Chair this morning to the fact–

MR. O'NEAL (Lauderdale)‑I rise to a point of order. If the gentleman is correct in his statement as to the previous order of this Convention, it occurs to me that the amendment which he proposes will come up after we complete the consideration of this section. Is it to be taken first or last, or when? It strikes me we cannot take it up now.

MR. MACDONALD‑I will call the attention of the Chair to tile fact that the occupant of the Chair this morning, at my instance, stated to me that it would be taken up at that point of the report of this Committee where it was germane.

 

THE PRESIDENT ‑The amendment which the gentleman from Montgomery offers purports to amend the article reported by the Committee on Taxation. In its present form, it would not be germane to the report of the Committee on Municipal Corporations.

MR. MACDONALD‑I called the Chair's attention to the fact that the order of this Convention was that it should be considered upon the consideration of this report. You will see it upon the back, and the journal bears me out and the printed copies bear me out.

THE PRESIDENT‑ The order is that it be laid upon the table and ordered printed, to be considered when the report of the Committee on Municipal Corporations is considered?

MR. MACDONALD‑ And I called it up at the time of the consideration of the report on municipal corporations.

THE PRESIDENT‑ If it was offered for consideration now by the gentleman, no matter when it was offered, if it purports to be an amendment to the Article on Taxation, it would not be in


3727

CONSTITUTIONAL CONVENTION, 1901

order as an amendment to the report of the Committee on Municipal Corporations.

MR. MACDONALD‑I will offer it then, as an amendment to this particular section, as an amendment to the amendment offered by Mr. Brooks.

THE PRESIDENT ‑ The gentleman might offer a new amendment, but the present amendment, in its present shape would not be in order.

MR. MACDONALD‑ May I inquire of the Chair when it would be in order?

THE PRESIDENT‑ The Convention might postpone further consideration of any proposition, but when it came up for consideration, it would be a question of whether it is in order, and whether it is germane or relevant.

MR. MACDONALD‑I merely make the inquiry in view of the formal order of this Convention setting this matter down as a special order to be heard upon the report of the Committee on Municipal Corporations.

THE PRESIDENT‑ It is perfectly proper that the gentleman should call it up for consideration now, and when he calls it up for consideration, the Chair would be forced to rule that it is not proper, and germane to, anything the report of the Committee on Municipal Corporations has brought to the attention of the house, because it purports to be an amendment to the Article on Taxation.

MR. MACDONALD‑ Then I offer it as an amendment to the amendment proposed by the gentleman from Mobile.

MR. O'NEAL (Lauderdale)‑I make the point that it is not germane.

MR. WEAKLEY‑I am authorized on the part of the Committee to accept the amendment offered by the gentleman from Mobile and I ask unanimous consent to accept it.

The consent was given.

THE PRESIDENT– The Chair will recognize the gentleman from Montgomery to offer any amendment he desires to this section.

MR. MACDONALD‑ Now I offer that amendment which has just been sent up an as amendment to that section.

MR. WEAKLEY– I make the point of order that the amendment is not germane to any proposition before the house.


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MR. MACDONALD‑ I call the attention of the Chair to the fact that the latter part of this section says: "This section shall not apply to the renewal, refunding or re‑issuance of bonds lawfully issued, nor prevent the issuance of bonds in cases where the same have been authorized by laws enacted prior to the ratification of the Constitution, nor shall this section apply to obligations incurred or bonds to be issued to procure means to pay for street and sidewalk improvements or sanitary or storm sewers, the cost of which is to be assessed against the property abutting said improvements or drained by such sanitary or storm water sewers."

THE PRESIDENT‑ The ruling of the Chair was based more on the form in which the gentleman placed his amendment than on its substance. Upon its face it purports to be an amendment to the article on Taxation.

 

MR. MACDONALD‑ An error into which I was led by the Convention itself at the time it was presented.

MR. BOONE‑‑I rise to a point of order that the amendment was laid upon the table and cannot be considered unless it is taken from the table.

THE PRESIDENT‑ It seems to the Chair that it appears from the endorsement on the back that the ordinance was tabled and could not be considered until taken from the table.

MR. MACDONALD–Then I move to take that particular ordinance from the table.

MR. O’NEAL (Lauderdale)‑‑It is offered for what purpose?

MR. MACDONALD‑ For consideration now.

MR. COLEMAN (Greene)–Why not make the amendment germane by leaving out the caption and move to amend this section here ?

MR. MACDONALD‑‑I offer this amendment to this section.

The amendment was read as follows:

Amendment to Section 7:

“Amend by adding thereto the following:

"No city, town or other municipality shall make any, assessment for the cost of sidewalk of street paving, or for the cost of the construction of any sewers, against property abutting on such street or sidewalk so paved, or drained by such sewers, in excess of the actual increased value of such property by reason of such sidewalk or street paving, or by the construction of such sewers. And the burden of proving such increased value of said property shall be on the city, towel or other municipality in all proceedings


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brought to enforce the collection of such assessments. And such assessments shall in no case exceed 5 per cent. of the assessed valuation of the said property.

MR. BOONE–I rise to a point of order. This section of the report of the Committee on Municipal Corporations deals exclusively with the subject of the issuance of bonds by cities, towns and villages in this State, and, dealing with that, there is nothing in that particular section about sidewalks and improvements except in the way of issuing bonds for the purpose. Now this amendment deals with the limitation upon the power of the city to make an assessment on abutting property owners and shifts the burden of proof upon the city, of proving the increased value of the property of the owner, hence I claim that it is not germane to the section under consideration.

THE PRESIDENT‑ The authorities seem uniform that the question of the consistency or inconsistency of amendments is a question for the Convention to decide, and where all amendment is offered which involves a question that has been previous passed upon by the Convention, the authorities seem to be uniform that that question cannot be again renewed except through the medium of a motion to reconsider, but the mere fact that an amendment may not be fully consistent or seem altogether compatible with the matter before the Convention, the authorities all seem to hold that it is not a question for the Chair to settle, but it is a question for the Convention to consider, and they can either accept or reject the proposition as they may think it consistent or inconsistent. The Chair will overrule the point of order.

MR. MACDONALD‑I am glad that we have been relieved from a lot of parliamentary snarls about which I know nothing at all, and I have lived too long to undertake to learn them.

As I say, it makes no difference to me or to any one interested in the amendment suggested by me at what place or at what time in the Constitution or the consideration of the articles this proposition comes in, because justice, honesty and right should be welcome wherever it comes and in whatever place it comes.

Gentlemen of the Convention, when the report of the Committee on Taxation was before the Convention, a proposition was made, and to some extent at least, adopted by this Convention which indirectly, if not directly, vested or authorized the vesting in municipal corporations of the power to assess against abutting property, owners the entire cost of the paving of streets and sidewalks and the construction of sanitary sewers. I called this Convention to observe the danger of the proposed power to municipalities. I cited to them (and there are gentlemen familiar with the facts of the case cited to them) the hardships to which citizens of various towns had been subjected by reason of the exer-


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cise of the power vested, or supposed to be vested, in municipalities to assess against abutting property owners either the whole or a part of the cost of such improvements. I was met at that time, mainly from the great city of Birmingham, with the remarkable statement that the citizens of that great town, unlike those who reside in any other portion of the State of Alabama or in the world for that matter, clamored at the doors of the City Council or Board of Aldermen of the city of Birmingham for permission to be taxed. It was said they desired to pay the cost, and the whole cost, of sewers and the pavement of their streets and sidewalks.  I said then, and I say now, that Birmingham, was a paradox, but my views, and I dare say the views of the representatives of Jefferson, have changed somewhat on that subject as to the actual state of facts that exist in Birmingham.  There has been presented to this Convention, since the time when the Committee on Taxation made its report, two long petitions signed by the citizens of Birmingham and the owners of it large amount of realty there, one petition stating that the signers owned a million and a half dollars of real estate, protesting against the granting of any such unlimited power. There was another petition signed by certain men protesting against the unlimited power of taxation or increase of debt by municipalities, and it is a singular thing, Mr. President and gentlemen of this Convention, that one of the main cases in the Supreme Court reports of this State wherein the validity of such assessments was brought into question, came from the city of Birmingham. I allude to the case of Klein against tile city of Birmingham. Now the question, though outside of all those matters is the justice and equity of the matter. I can state to this Convention without fear of successful contradiction, that under the rule now obtaining in the city of Montgomery, where one-half of the costs of paving the streets in some instances, and where the entire amount of laying the sidewalks, is charged against the abutting property owner, that it has resulted in ruin to many citizens; that men have been deprived of their homes, and if they have not been deprived of their homes, they leave had them saddled with debts they, call never meet, and all for what purpose? So that other people in the city of Montgomery or in other municipalities similarly situated in this State might have good streets to walk on, and the municipal officers might be able to brag to succeeding generations of what they had done.

I stated that absolutely the only just basis for ally such taxation as this, and I will challenge any honest man from an honest mind to deny it, is that the assessment against the abutting property owner should be limited to the actual benefits his property derives front such assessment, and that all above that was confiscation of the property of a private individual for the benefit of the public without any just compensation to him whatever. I said that that was the rule approved of in the text books and that was.


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CONSTITUTIONAL CONVENTION, 1901

the rule approved of by the Supreme Court of Alabama in the case I just alluded to of Klein against the city of Birmingham, because the decision in that case upheld the validity of assessments which were questioned there on the sole ground that the charter of the city of Birmingham provided that such assessments should be based upon benefits to the property owners.

MR. BOONE-‑ What did the court say in the case from Montgomery of Birdsong against the City Council?

MR. MACDONALD‑ They said exactly the same thing. I happened to be of counsel in that case, and I know what they said. They said that the charter of Montgomery, in that it predicated such assessments upon the benefit to property owners was not susceptible to the attack I made upon it, and they based their whole decision upon the use of the word "benefited" in that section of the charter to which they referred, and an inspection of the case will show I am entirely correct.

MR. GRAHAM (Montgomery)‑I understood the gentleman to say a few moments ago that people had been ruined.

MR. MACDONALD‑ Yes, sir.

MR. GRAHAM‑ Name a solitary one whose property has been confiscated.

MR. MACDONALD‑I will give the gentleman the information privately, but before this Convention I decline to expose the poverty and ruin of any man.

Now I say that is the rule established by the Supreme Court of the United States. That is the rule laid down in Dillon on corporations, and that is the only rule that addresses itself to the sense of justice of any man. Because people want fine streets, "tasselated pavements," as my colleague from Montgomery, Mr. Sanford, said ; because they want sidewalks that suit the eye of the aesthetic, why should a citizen be compelled to contribute more than his share of the public burden? Where is the difference? When you say to a man that you have got to pay something more than you receive benefit for; that I am going to take out of your pocket money for which you have received no consideration whatever, what is the difference between that and absolute robbery under the forms of law?

Now, what do I ask in the amendment I suggest? Do I ask anything more than common justice? I had hoped that this amendment would have been received by those who are on the other side of the question, and I was led by certain remarks made to suppose it would be received, but it seems it is going to be resisted now, and I appeal to every man in this Convention to stand by me in a matter, the absolute justice of which, in my opinion,


3732                  

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as an abstract matter, will not be, denied upon the floor of the Convention. Sophistry may intervene, eloquence may set its charms upon the Convention, but let every man consider in his own mind as to whether any law, organic or statutory which authorizes the fixing of a liability for the payment of money by any citizen, without any consideration whatever, has any support in morality or justice, I might read you authority after authority, and refer you to case after case, laying down the same proposition, and they are open for the inspection, and possibly familiar to the knowledge, of every lawyer. I appeal to you, gentlemen of this Convention, who do not live in cities, to consider this question. With just as much justice could a county that lays out a road and constructs  it through your land assess the entire cost of such an improvement against your plantation as the municipalities of this State could assess the entire cost or half the cost of a street in front of your house. There would not be a particle of difference in the principle. Now then they say that these suggestions, if carried into effect, may result in injury to the municipalities and prevent their larger progress and prosperity. Sometimes, Mr. President, one

imagines that the car of progress and prosperity is the car of Jugernaut that crushes to death its worshippers and those who are in front of it.

MR. BOONE‑ Mr. President and gentlemen of the Convention, this Section which purports to limit the power to improve streets in the towns and cities of Alabama would be more aptly worder, in my judgment, if it expressed the idea that no further pavement; or sewers should be constructed in any city, town or village in Alabama. I apprehend that a large number of gentlemen of this, Convention are familiar with the principle as announced in many of the decisions of the Supreme Court of the United States and of our own Supreme Court, that the benefits which have accrued to the property by the improvement must be taken into consideration. Now I challenge the gentleman to show to me a single law, either in the Constitution or in the statutes of any State, that puts the burden of proof of showing the increase of value to the property upon the cities.

Let us took for a moment at how you go to meet this burden of proof. Pavements have been laid down in Montgomery, and we Alabamians hold with pride that it is one of the best cities in point of public improvement in the whole State, and yet how could the city meet the burden of proof that a certain building on Dexter Avenue was benefited in dollars and cents up to a certain amount? It is one of the most difficult things in the world to do, It is one of the most difficult things to say just how much in actual value that property has been benefited by the laying of the pavement.


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CONSTITUTIONAL CONVENTION, 1901

MR. SANFORD (Montgomery)‑How would you assess it, then, except by the benefit received?

MR. BOONE‑I would assess it according to the Barrett law in Indiana, which has stood the test of the Supreme Court of the United States, and which is the only way it can be done. That  provides that before an improvement shall be made there shall be a hearing given the abutting property owner and that he shall have the right to be heard on the question of benefits by the City Council; that whenever the improvements were trade, after hearing all the evidence on the subject, a rifling or decision as to what the benefits were that had thereby accrued should be made, and that the property owner should be guaranteed the right to appeal and take that question before a jury, as to whether it was benefited in the amount assessed or not, and that is the only way, in my judgment, in which it can be done constitutionally, so as to give to the abutting proprietor his day in court, and I would be opposed to giving it in any other way.

MR. SANFORD (Montgomery)‑I will ask you if that has not been done in many of the towns in Alabama which have assessed large sums against their property, in some instances amounting to confiscation?

MR. BOONE‑ If that is so, I would not be in favor of doing anything that would prohibit any man from having his day in court on any question, but I am opposed to this amendment putting the burden of proof of such increased value upon the city or town. I ask any gentleman in this Convention how you would go to prove the actual increased value that had accrued to that place? At most it is speculative. At most it is problematical.  Isn't it rather as the Supreme Court of the United States said in the case of Norwood against Baker, head note one, "The principle underlying special assessments upon private property to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and that, therefore, the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement." if you look at that case and look further at the case of Williams against the District of Columbia, you will find that that matter has been pressed upon the courts of this country, and there is not a text writer and not a decision to be found, (and I challenge any gentleman to show it) in America which lays down any rule by which we can measure accurately in dollars and cents the benefits derived by the owner of abutting property on account of the putting down of sidewalks or streets or pavements. This is a matter, it seems to me, of great importance.

It further limits the cost to 5 per cent. It may be that a man, owns a vacant lot. In my city there are unfortunately, many such lots on the principal streets, where the owners keep them year


3734                  

OFFICIAL PROCEEDINGS

after year and won't build on them and won't sell them. They stop progress, and a man has simply a vacant lot there. He keeps it there, and you cannot make the cost on that vacant lot more than 5 per cent. under this amendment, consequently there would be a break in your pavement, and a man next door that pays on the same space, the same front footage on the avenue, pays his 5 per cent, on say $10,000 while the man who owns the vacant lot adjoining, pays 5 per cent. on the value of the vacant lot.

MR. SANFORD (Montgomery)‑It is the difference in the value of the property.

MR. BOONE–But he arbitrarily stands in the way of the Jugernaut the gentleman referred to. You have got to keep up with the procession if you come into cities and towns, and we ought to have progress. We have not, and I say it with regret, a first-class city, such as is known in general parlance in this country, within the State of Alabama. We hope to have them in years to come, but I say that, if this amendment is adopted, as I say in the opening, you had better name it an amendment to prevent the development of cities and towns in this State.

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

The amendment was read as follows:

"Amend the amendment by striking out so much of the amendment as places the burden of proof upon the municipality and so much of it as limits the assessment to five per cent."

THE PRESIDENT– The question will be upon the amendment to the amendment by the gentleman from Greene.

MR. MACDONALD– I ask unanimous consent to accept the amendment.

The consent was given.

MR. COLEMAN–Please read it as amended.

The amendment as amended was read as follows:

"No city, town or other municipality shall make any assessment for the cost of sidewalk or street paving, or for the cost of the construction of any sewers, against property abutting on such street or sidewalks so paved, or drained lay such servers, in excess of the actual increased value of such property by reason of such sidewalk or street paving, or by the construction of such sewers."

MR. BOONE‑‑ If the delegate from Greene would substitute the words "actual benefits" for "actual values”—

MR. COLEMAN–I will accept that. I hope the gentleman will accept the amendment.


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CONSTITUTIONAL CONVENTION, 1901

MR. DENT‑I move that the Convention take a recess of ten minutes in order that the Committee may be able to get together.

MR. O'NEAL– I move that the section be recommitted to the Committee. It is an important matter and should be properly considered. I move that the section be referred to the Committee to report in the morning.

The motion was carried.

Section 8 was read as follows:

Sec. 8. That no city, town or village shall hereafter become indebted for any purpose or in any manner to an amount which including existing indebtedness shall exceed seven percentum of the assessed valuation of the real and personal property within said city, town or village, subject to taxation as shown by the last preceding assessment for State and county purposes, provided, however, that in determining the limitation of the power of such city, town or village, to incur indebtedness, there shall not be included the following, class of indebtedness, to wit:

(a) Notes, certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes, unless the same be not paid within two years from the date of such issue, and all such notes, certificates of indebtedness and revenue bonds shall be provided for, and made payable from the taxes levied for the year, in which they are issued, and shall never exceed the amount of such taxes.

MR. WEAKLEY (Lauderdale)‑I desire to state that Section 8 of this report was considered by the Convention at the time the report of the Committee on Taxation, and a substitute to Section 8 was adopted by this Convention. I, therefore, ask unanimous desire to withdraw Section 8 from the consideration of the Convention.

There being no objection, it was so ordered.

THE PRESIDENT‑ The Secretary will read Section 9.

MR. LONG (Walker)‑‑Before the section is read, I ask unanimous consent to introduce a short resolution.

The Secretary read the resolution as follows:

Whereas, The delegates to this Convention appreciate the consideration of the Montgomery Street Railway Company in not making said delegates wait at the Capitol steps for a car more than fifteen or twenty minutes in the hot sun every day when the Convention adjourns at 1 o'clock, and seldom less than fifteen minutes at Court Square for a transfer car; and, (Laughter).


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OFFICIAL PROCEEDINGS

Whereas, The sagacious business management of the said Street Railway Company, in catering to the additional passenger traffic caused by the daily sessions of the Convention, with their modern, noiseless, roomy, high-class cars, is deserving of attention.; and,

Whereas, It adds to the pleasure of a ride down Dexter Avenue when the thermometer is 104, to have seventeen or twenty-five delegates standing in the aisle, and two or three of more than average weight occupying each narrow seat, (Laughter.)

Therefore, be it resolved, That the thanks of this Convention be not tendered to the Montgomery Street Railway Company for their great courtesy, consideration and efficiency in hauling delegates and visitors to the Convention in modern and elegantly furnished cars who have always paid full fare.

Referred to Committee on Incidental Expenses. ( Laughter).

The Secretary read Section 9 as follows:

Sec. 9. No city, town or village whose present indebtedness exceeds the limitations herein imposed shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit ; provided, however, that nothing herein contained shall prevent any municipality from issuing bonds in renewal or for the refunding of obligations already existing.

MR. KIRK (Colbert)‑‑‑I have an amendment.

The Secretary read the amendment as follows: "Amend Section 9 by adding thereto the following: ‘Provided, the provisions of this section shall not apply to the cities of Sheffield and Tuscumbia.' "

MR. KIRK‑I anticipate the Committee will accept that as an amendment. If they do, I do not care to argue it. If they do not accept it—

MR. WEAKLEY ‑ I have no particular desire to interfere with the local conditions of the cities of Tuscumbia and Sheffield.  At the same time, I can see no reason why every city in the State should be limited in its capacity to create debts, and those places be exempt. I think there should be same limitation placed upon those two cities as is placed upon others. Now, the section which was adopted by this Convention permitted certain cities within the State having a population of less than 6,000 to contract debts to the amount of 5 per cent of its assessed valuation, with the permission to increase that. I say certain cities were allowed to incur debts to the extent of—

THE PRESIDENT‑ Does the gentleman from Colbert yield to the gentleman from Lauderdale?


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CONSTITUTIONAL CONVENTION, 1901

MR. KIRK‑ No, sir; I just asked if the Committee would accept it, and the Committee declines to accept it. I will ask the Secretary to read this petition as a part of my remarks.

The petition was read as follows:

Sheffield, Ala., July 8th, 1901.

To the Hon. James T. Kirk, Montgomery, Ala.:

Dear Sir‑ At a special meeting of the City Council of Sheffield, held this day, for the purpose of taking some action with regard to the limitation to be placed on the debt creating power of municipalities, the following was unanimously adopted:

"The City Council of Sheffield, views with great apprehension the action of the Constitutional Convention in limiting the amount of indebtedness that the municipality can make, and it asks its representatives in said Convention Hon. James T. Kirk and Hon. A. H. Carmichael, to do their utmost to relieve it from the burden of these provisions.

"The debt of the city at present, is about fifteen (15) per cent of its assessed value and the character of its growth will necessitate its making the debt larger, or it will be, smothered in its infancy. With the limitations provided for in the proposed article, the debt of the city will be more likely, to grow from the defaulted interest; the real danger will be that these provisions, though of some good effect elsewhere, will result in death to our municipal life.

"In municipalities like this, unlike those of slower growth, the ordinary rules do not and cannot be made to apply. The work ordinarily done gradually must here be done at once. Its public duties must be performed, or if not, the law will place on it an involuntary indebtedness against which the provisions of the Constitution cannot protect it. .

"We ask that the debt-making power of Sheffield be limited only by its borrowing capacity, believing that with the limitation provided for on the power of taxation, there is no danger of its unduly mortgaging its future.

Your very obediently,

J. R. Coleman,

Clerk of City Council, Sheffield, Ala."


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limitation upon the power of cities to create a debt, which I believe amounts to 7 per cent or 8 per cent. You will see from that petition from, the city of Sheffield, that that city has already an indebtedness equal to twice the limitation that has been put upon cities by that provision in the new Constitution. The result of it is that Sheffield would not under that eighth clause be permitted to increase her indebtedness until a portion of it, or all of it had been paid. Now the condition of Sheffield is this: It is unable to pay the interest on its bonded indebtedness. That debt will necessarily be increased by its failure to pay the interest. In addition to that she has undertaken to build a city hall, and a large school building, both of which are standing there today, and have been standing there for several years, incomplete. Those buildings with perhaps thirty or forty thousand dollars invested in them are worth absolutely nothing to her, and if she is not permitted to increase her indebtedness or to make another debt, the whole forty or fifty thousand dollars on this debt on these buildings are worth absolutely nothing to her, and she is unable to pay the interest on the debt. Now this petition was submitted to the Committee on Taxation, and they made an additional report to the first report made by them in which they advised that Sheffield and Tuscumbia be exempt from the provision of this Section 8, allowing them as requested by the city to create as much indebtedness as it can, the tax rate being the only limit placed upon that city. Now if this, provision is made to apply to the cities of Tuscumbia and Sheffield, our hands are absolutely tied. We cannot do anything at all, but to sit there and rot. That is the result of it. If a provision of this kind, gentlemen, had been in the law before the cities had created this indebtedness then, perhaps, it would be a wise thing, but with that indebtedness and unable to take a step further, you tie the hands of those two towns absolutely. They will not be able to do anything for themselves, or for their creditors. Gentlemen, you have frequently seen men who were very, much in debt, and by incurring an additional indebtedness they were able to accumulate something and pay the entire debt. That is the only salvation in the world for these two places, that is that they be turned loose and be permitted to manage their own affairs as best they can. They are already strangulated, already, have a debt twice the limit you propose to put upon them, and it is absolutely impossible for them to pay it, and if you tie their hands, so they cannot make one step forward, what advantage is it to them, and what advantage is it to their creditors. Their creditors may say "Why, we will hold your bonds, and force you to pay." But, gentlemen, I do not believe this Convention proposes to make a collection agency of itself. There was no limitation upon the power of these towns to create a debt when this debt was created. The creditors knew at the time the debt was created that there was a limitation upon the power of taxation,


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and it can hurt no one. No other city is hurt by their being excluded from the provisions of this section, and I do not believe this Convention under the circumstances will attempt to hold us down by the provisions of those two sections.

MR. WEAKLEY ‑ As I started out to say, I think there should be some limitation imposed upon the debt creating power of all municipalities. I do not see why any town in the State should be exempted. This Convention has seen fit to put a limitation upon the power of municipalities having a population of less than 6,000, on 5 per cent of the assessed valuation of all the property with the privilege of increasing that to 8 per cent for the construction of electric lights, waterworks and sewers. All cities above 6,000 population and certain other mined cities were allowed the privilege of, creating a debt to the extent of 7 per cent of its assessed valuation, together with the additional debt for the purpose of constructing sewers, and water works and some other utilities. I think that the cities of Tuscumbia and Sheffield come under either one of these  two limitations. I do not think we should adopt three different methods of dealing with the cities of the State upon this question of debt. If the town has gone too far to be embraced in the first limit, which I understand to be the case, then let it come in as other towns of the State which have been named, Gadsden, Woodlawn, Ensley and others, and insert the names of these two cities in this second class of cities. That is the only suggestion I have to make.

MR. DENT‑I would like to ask the Chairman of the Committee, to call his attention to what seems to me to be an inconsistency.

I understand you have withdrawn Section 8. Section 9 says, "No city, town or village whose indebtedness exceeds the limitations herein imposed."

MR. WEAKLEY‑I have an amendment to offer when the pending amendment is disposed of which will meet the views.

MR. CARMICHAEL (Colbert)‑I want to say, Mr. President, that to most members of the Convention this section may be of little interest, but to the cities of Sheffield and Tuscumbia, it is of supreme importance. This being true, I cannot see what objection the members of this Convention would have to the adoption of that amendment. All that we ask is to be allowed to work out our own salvation with fear and trembling. A man in that condition, involved and indebted as we are, must necessarily have some difficulty in contracting further indebtedness, and yet we ought to be allowed an opportunity. Most of the members of this Convention know that Sheffield is what is known as a boom town.  These towns do not operate like other towns. They contract an indebtedness, a large indebtedness, with the hope and expecta‑


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OFFICIAL PROCEEDINGS

tion that their population will increase, that their wealth will increase, and that they will he enabled to pay the indebtedness at maturity. In this way the bonded indebtedness of Sheffield was contracted during the boom days. Both of these towns, Tuscumbia and Sheffield, have acts which have been passed authorizing the founding of their indebtedness at a lower rate of interest. There are certain improvements they must make, certain debts they must contract, necessary for municipal life. Now, under this provision here of Section 9, as I take it, the cities of Tuscumbia and Sheffield will be unable to contract a single dollar of indebtedness until their indebtedness shall be reduced within the limitation provided in this section. When, will that be? Sheffield has already an indebtedness of 15 per cent of the assessed valuation of its property. Tuscumbia probably has an indebtedness of 10 per cent of the assessed valuation of its property, and it is a matter of impossibility at the present time, unless those towns grow, it is a matter of impossibility for them to reduce their indebtedness within the limitation., which these gentlemen propose to put upon them. Now, I believe this section ought not to be in here at all.

MR. CARMICHAEL–Yes, sir; certainly.

MR. SANFORD‑‑ You say you wish the privilege of going further into debt in order to pay out. If a man is sunk to his armpits in quicksand, how can he get out of the quagmire by going over his head ?

MR. CARMICHAEL–When you find a man sunk in the quicksand to his armpits, you don't hit him over the head and kill him for that reason. (Applause). Now, I say that there bondholders ought to stand on the same footing as other creditors.

I do not know, and am unable to tell, from whence these gentlemen have gotten their idea. I received a communication from some bondholders' association at Baltimore, and it suggested a plan of this sort. I do not know whether this, section has been dictated by the bondholders of this State or not, but I insist that a bondholder ought to stand on the same footing as any other creditor.  The doctrine of caveat et emptor ought to apply to them the same as to others. Why should we come in here and say that a municipality shall act on a different principle from that of an individual?  An individual is allowed to go out and contract as much indebtness as he can contract

MR. CUNNINGHAM‑ If there is a mortgage on a piece of property for five thousand dollars, and then there is another mortgage placed on it for five thousand, that is a good second mortgage, is it not?

MR. CARMICHAEL‑ Yes. sir.


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CONSTITUTIONAL CONVENTION, 1901

MR. CUNNINGHAM ‑ And cannot be collected until the first is paid?

MR. CARMICHAEL‑ Yes, sir.

MR. CUNNINGHAM‑ Then in the issue of bonds is this applicable there? Now, as to all the bonds of the first issue, covering the entire property of the city, the bondholders there would be upon a level, but if there were another issue—

MR. CARMICHAEL‑ The bonds cannot be issued except by a vote of the people.

MR. CUNNINGHAM-‑But this point is this: You said that a bondholder should have the same rule applied to them as to individuals. Now, the question is has a bondholder the same rule?  The man who takes a first mortgage has the first lick at the property. A man who takes a second mortgage has the second lick at the property, and the third man the third lick, but if you issue three series of bonds, don't all come in alike?

MR. CARMICHAEL‑ But don't the second bondholders understand that when they buy these bonds?

MR. CUNNINGHAM‑I suppose they do; yes, sir.

MR. CARMICHAEL‑ The second-class bondholders understand that, and, after all, as to whether interest on the bonded indebtedness is ever paid, depends entirely upon the honesty and integrity of the municipality. Now, we do not propose, and it is not supposed that the cities of Sheffield and Tuscumbia shall go into the market and try to find a sticker, but we say this ought not to be placed upon them. This burden ought not to be placed upon us. It will be a matter of time, and a long time, before we are able to fund out indebtedness and contract further indebtedness, but this proposes to last forever, or for a number of years. This proposition is to be placed in the Constitution, which says we cannot contract any further indebtedness until our indebtedness is reduced below the limitation placed upon it. Now, gentlemen of the Convention, as I said before, this is a serious matter for these two cities. The people up there are very much interested in it. We, of course, would not feel very much interest in the ratification of this Constitution if it meant our death. I beg the members of this Convention to adopt this amendment. It can do no harm. It will do us good. In the name of our people, we ask it.

MR. COLEMAN ‑ The Convention has been very liberal with towns and cities in excepting them from the operation of various sections in this Constitution because of their conditions. We find two cities making application upon the same ground. I cannot see any harm that will result to the State in allowing those cities as they say to make the best of their conditions, and


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OFFICIAL PROCEEDINGS

I hope that the Convention will accept or adopt the amendment offered.

MR. BOONE‑ The committee desires this amendment to be put in for the purpose of harmonizing this section with what the Constitution has done in other articles already adopted.

The Secretary read the following amendment:

"Amend Section 9 in the second line after the word `county' by inserting between that word and the word ‘until' the following ‘except as otherwise provided in this Constitution.' "

Mr. Weatherly took the chair.

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

Upon a vote being taken the amendment was adopted.

MR. KIRK‑ Now I move the adoption of the amendment I offered.

Upon a vote being taken the amendment was adopted.

MR. BOONE‑I move the adoption of the section as amended.

MR. WEAKLEY‑ Mr. President, when this report was originally drafted Section 8 was a part of the report of the Committee on Municipal Corporations. This section has been withdrawn and the report referring to the debt limit will be included in the report of the Committee on Taxation. Section 9 reads that "no city, town or village, etc," exceeds the limit herein imposed." We desire to, offer an amendment to strike out the word "herein" and insert after the word "impose," line two, the words “by this Constitution." I ask unanimous consent to insert that amendment.

The Secretary read the section as amended.

There being no objection the amendment was ordered.

MR. BOONE‑I offer this amendment to be added at the end of the section.

The Secretary read the amendment as follows:

Amend Section 9 by adding thereto the following: "Or from issuing bonds already authorized by law."

MR. WEAKLEY‑I will state that bonds "already authorized by law" to be issued were especially excepted from the operation of the debt limit as heretofore adopted by this Constitution, and it was thought best to add that clause to this section. I ask unanimous consent for the amendment to be allowed.


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THE PRESIDENT PRO TEM.‑ The chairman of the committee asks unanimous consent that the amendment just read be adopted. Unless there is objection the section will be amended as stated.

There being no objection the amendment was ordered.

MR. BOONE ‑ I now move the adoption of Section 9 as amended.     

The Secretary read the section as amended as follows:

"No city, town or village, whose present indebtedness exceeds the limitations imposed by this Constitution shall be allowed to become indebted in any further amount, except as otherwise provided in this Constitution, until such indebtedness shall be reduced within such limit; provided, however, that nothing contained shall prevent any municipality from issuing bonds in renewal, or for refunding obligations already existing, or from issuing bonds already authorized by law. Provided, the provisions of this section shall not apply to the cities of Sheffield and Tuscumbia."

THE PRESIDENT PRO TEM. ‑The question is on the section as amended.

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

MR. SAMFORD‑I move that we adjourn.

Upon a vote being taken there were 50 ayes and 29 noes, and thereupon the Convention adjourned.

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In proceedings of 58th day, second page, third column, the remarks of Mr. Morgan M. Smith of Autauga are attributed to "Mr. Smith (Autauga)." Inasmuch as Autauga county is represented by two delegates by the sir-name of Smith-Messrs Morgan M. Smith and Mac. A. Smith should have appeared to designate the delegate who addressed the Convention.

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