SIXTY‑NINTH DAY

________

MONTGOMERY, ALA.,

Monday, August 12, 1901,

The Convention met pursuant to adjournment, and was called to order by the President.

Upon a call of the roll 87 delegates responded to their names.

Leaves of absence were granted to the following delegates:  Mr. White, for today and tomorrow: Mr. Howze, for today and tomorrow; Mr. Sentell. indefinitely on account of the death of his brother; Mr. Thompson of Bibb for today; Mr. Whiteside for today, Mr. Fletcher for today, tomorrow and Wednesday ; to Mr. Rogers of Sumter, indefinitely, on account of sickness; to Mr. Hodges of Jackson for today; to Mr. Parker of Cullman for today, to Mr. Miller of Wilcox for today.

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

MR. deGRAFFENREID‑ I desire—

MR. SANFORD (Montgomery)‑I rise to a question of personal privilege.

THE PRESIDENT‑ The gentleman from Hale has the floor.

MR. deGRAFFENREID‑ I yield to the gentleman.

MR. SANFORD‑ In the report of the vote upon the article on Suffrage and Elections, I am made to vote aye in the stenographic report. I voted no, and I hope that correction will be made.

THE PRESIDENT‑ The stenographer will make a note of the correction.


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MR. deGRAFFENREID— I move to reconsider the vote by which "an ordinance to provide for the establishment of a court house and jail at some point to be determined by an election by the people in that portion of St. Clair county which lies south and southeast of Backbone Mountains, and which is embraced in precincts Nos. 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21, in said county" was ordered engrossed and referred to the Committee on Harmony last Saturday. I state. that the motion is made not for the purpose of interfering with the action of the Convention with reference to the establishment of a court house in St. Clair county, but that I may be enabled thereby to move a reconsideration of the vote whereby the ordinance which was introduced by the gentleman from St. Clair,   Mr. Spears, was amended by an ordinance introduced by Mr. Beavers, to establish a court house at Calera, and for the purpose of enabling certain beats situated near Calera to have their cases tried at the Calera court house. I do this, Mr. President, because, as I am informed, since that action was taken by the Convention can last Saturday, much dissatisfaction has arisen over the action among the people of Shelby county. It was local legislation, and for that reason I was somewhat inclined to oppose it, but voted for it because I understood from all the people here, that everybody in Shelby county was satisfied with it, but I understand in that portion of Shelby county which is affected by this particular provision, there are some 1,350 or 1,400 voters, and that on yesterday, which was Sunday, something like a thousand people who were affected by this particular provision, manifested their disapprobation of what was done, and signed a petition to this Convention asking that they reconsider that action.  Now I make that motion and I want to say, so far as I am concerned. I have no interest in it at all. l know nothing of the people of Shelby county, but I make it at the request of some of the interested parties.  There is not a full convention this morning, and if the Convention prefers this matter can be laid over until tomorrow, when we will leave a larger attendance, or it can be taken up now.  If it is laid over until tomorrow I would like to be permitted also to make this other motion, so as to be sure to have both in time, and in order to test the question as to whether the Convention wants to take it up now. I move that the consideration of this particular motion that I have made be laid over until tomorrow after the reading of the Journal.

I have entered the motion to reconsider, and I now move that the consideration of that motion be deferred until tomorrow morning after the approval of the Journal.

MR. BEAVERS– I call for a reading of the motion.

MR. deGRAFFENREID ‑The first motion is—

MR. BEAVERS‑ The other motion—


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MR. deGRAFFENREID‑ The other motion will be to reconsider your amendment to the ordinance of Mr. Spears from St. Clair county.

THE PRESIDENT‑ It is moved that the vote whereby ordinance No. 390 was ordered engrossed and to a third reading, be reconsidered. Thereupon the gentleman from Hale moves to postpone further consideration of that motion until tomorrow after the reading and approval of the Journal.

MR. HOOD‑I want to ask the gentleman his objector purpose for making the motion to reconsider the vote whereby this ordinance was adopted.

MR. deGRAFFENREID ‑I tried to state it. It was in order that I might move to reconsider the amendment offered by Mr. Beavers, in which amendment there was a provision that there could be established a court house in Shelby county at Calera.

MR. BROWNE ‑It is not Calera, but a point on the Georgia Central Railway.

MR. deGRAFFENREID‑ It is for the purpose of moving to reconsider the amendment offered by Mr. Beavers.  That is the sole object, because I am informed that a good many people who were affected by Mr. Beaver's amendment are dissatisfied with what we have done.

MR. PILLANS‑I move to amend the motion last made by my friend to postpone consideration by making the time at which the motion for reconsideration shall be taken up, a time posterior to tho consideration of all the articles of constitution now on the calendar; that it be held and put behind the articles which are on calendar for consideration. I think we came here to make a constitution, and not pass ordinances, and it is very necessary for us to get through some day with the making of the Constitution, and the best thing we can do with the time which we have is to make a Constitution, and when we get through with that, then we can determine whether we have time to take up these ordinances.

THE PRESIDENT‑ It is moved to amend by postponing the consideration of this motion until after the work of framing a Constitution is finished.

MR. BEAVERS‑I want to know if that is a subject for discussion.

THE PRESIDENT‑ The Chair is disposed to hear discussion on the question, if the gentleman from Shelby desires to be heard.

MR. BEAVERS‑ It seems to me that this Convention is as well informed on this subject now as it will ever be. I am not disposed to advise this Convention what they ought to do with this


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matter at all.  I leave that entirely to them, to their sense of justice and right, but I want to say this, gentlemen, that I have read somewhere that, “He who is armed with justice and right is thrice armed.”  I want to say, gentlemen of the Convention, that this isa just cause; that if that portion of St. Clair needs a court house and jail, the upper portion of Shelby also needs one.  As I stated in my former talk on this matter, the people up in that country, really wanted an opportunity to have a county formed, when they would be enabled to comply with the requirements of this Constitution, and I offered an ordinance here to that effect, which was referred to that Committee, and that committee passed on it, and unanimously reported it favorably. That is not before the Convention yet.

I offered this amendment because the gentleman from St. Clair offered an ordinance and had it reported here favorably to establish in St. Clair, to be formed into a new county, a second court house and jail. Of course that would destroy the necessity for a new county. I say that the people of Shelby are as badly in need of a court house and jail as the people in that portion of St. Clair county. I want to say that on my offering this amendment to this ordinance to establish a court house, as the record will show, on last Saturday, I made a motion to lay the amendment and the ordinance on the table, to be taken therefrom whenever this new county matter was brought before the Convention, so as to leave both of these matters before the Convention, in order to enable them t do in justice what they thought ought to be done. Gentlemen were here representing Columbiana, and I will say that there is no serious opposition coming to this except from the town of Columbiana. They were here Saturday.

I made that motion and upon the request of the gentleman from St. Clair, I withdrew it to allow him to discuss his ordinance. While he was discussing it gentlemen here, and there were four of them, representing Columbiana, called me back in the lobby and together with Mr. Cecil Browne, requested me not to renew that motion, but to let the amendment ad the original ordinance and the whole thing go through. They were in favor of it, if I would consent to allow them to make one amendment to my amendment, which I consented to. Mr. Browne of Talladega offered that amendment.  By the unanimous consent of this body and my consent, it was adopted. The whole matter went through, the amendment and the original ordinance by consent, and I will say that it amounts to a consent judgment in open court. I will say that these gentleman agreed to it. They asked me not to make that motion to lay on the table, but to let the whole matter go through, and that would settle the new county proposition up in St. Clair and Shelby.  I consented to that.  They went around and asked their friends to vote for it, and I told my friends to vote for it, and it got 80 votes here. Now these gentlemen are


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back here from Columbiana Monday morning wanting to reconsider this whole matter and tear this whole thing up. They give as grounds for this proposition that two beats over which this court is to be given jurisdiction, run a little closer to Columbiana than they like. That isn't a good valid reason. Those gentlemen live there in Columbiana. They know exactly these beat lines, know all about it. They had the ordinance read a second time and amended it, and then consented to its passage. To show you there are no valid grounds of objection in that matter, I would readily consent for that part of it to be cut off, so as not to run closer than seven miles to Columbiana, which the new Constitution allows in the provision in which it says a county line shall run no closer than seven miles to a new county site, so there is nothing in that.  I want to say these gentlemen who came down here and consented to this matter, so to speak, in open court, went back to Columbiana, and I have been reliably informed, that they started runners out Sunday ; that they told people up there that I rushed this thing through without their consent, and without the consent of the people, and they got a great long petition, I haven't seen it, them haven't shown it to me, but delegates upon this floor know that with personal influence of that kind, they could get these farmers to sign a petition. It is an easy matter to get up a petition, but I want to state that of the new county, proposition, the people of the upper part of Shelby county and lower part of St. Clair had three or four mass meetings; that each section appointed three as a committee, composed of the best Democrats in that section of the country and among the lamest property owners and they came down here to represent that section, and to these gentlemen down here last week from the upper part of Shelby, I submitted that amendment to the ordinance of the gentleman from St. Clair County. They approved it and said they wanted it if they could not get the other; that if they could not get a loaf, they would take a part of the loaf. I say they consented to it. I will state further that Mr. W. B. Browne, who is one of the representatives and a leading man in this fight, called me in the cloak room, after this matter was passed, and said to me: "Mr. Beavers, now this matter has gone through and we have consented and agreed, and I hope we have settled this county site matter. We object, to it a little because it runs a little too close to Columbiana, but we have agreed to it, it is all settled, now, and I make the request to you to go into the upper part of Shelby county and tell the people up there that we from Columbiana helped you to get this thing through and ask them to stand by its in future fights on Shelby county, showing he fully understood the amendment, and I say that this matter ought not to be disturbed because I say it amounts to a consent judgment in open court.  They agreed to it unanimously. They had four men here representing Columbiana; they agreed to it, provided I would consent to let them amend it in one particular, which I consented to do. They asked the unanimous


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consent of this body to allow that amendment and it was given.  Then they went around here and requested their friends on the floor of this Convention to vote for it, and they voted for it.  Now I say‑ before the Committee on State and County Boundaries the evidence showed that the people in the upper part of Shelby are as badly in need of a court house and county jail, as are the people in St. Clair County, and I say it would be an injustice to those people and to the delegate from Shelby County for this Convention to give relief in one case and refuse to give it in another. I say and I will state upon the floor of this Convention, and I do not at all fear successful contradiction, that the people of Shelby County want this measure, if they cannot get the other. I would be perfectly willing to leave it to a vote of the entire people of Shelby County.  I would be perfectly willing to leave it to a vote, and stand or fall on it, to the upper part which is put under the jurisdiction of this court, that section‑I say‑ they want it, they need relief, they should have it; that these gentlemen came down here and consented to it, and now for this Convention to allow them to temporize and experiment with this august body. I say is ridiculous in the extreme, and I do not believe the delegates upon the floor of this Convention will ever vote for such action. I say gentlemen in this matter that I made the motion to lay the matter on the table, the whole matter, to be brought up with this report for a new county up there, and let this Convention consider the whole matter and do what they think in justice ought to be done to those people. Give them one or the other or nothing.

THE PRESIDENT– The time of the gentleman has expired.

MR. BROWNE– Mr. President and gentlemen of the Convention, the gentleman is mistaken in regard to the conversation that he has quoted between Mr. W. B. Browne and him, as I am informed. The gentleman from Shelby introduced an ordinance creating a new county out of a part of St. Clair and a part of Shelby Counties. That ordinance did not include beats 8, 9, 13 and one-half of Beat 11. He did not introduce an ordinance on this  measure about giving them a new court house in certain beats—

MR .BEAVERS– Will the gentleman permit me to interrupt him?

THE PRESIDENT– Will the gentleman yield?

MR. BROWNE– I did not interrupt the gentleman. On Saturday morning, without the knowledge of any man in Shelby County that we know of, certainly without the knowledge of the two men here, that he was going to do it, he introduced an ordinance giving a new court house to a part of Shelby County, which embraced two and one-half of the biggest beats, and one of the smaller beats not included in his new county scheme. Mr. W. B. Browne of Shelby and Judge Longshore were here; they came


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CONSTITUTIONAL CONVENTION, 1901

Saturday morning. The amendment for an additional court house came like a clap of thunder out of a clear sky ; they had no knowledge or information on the subject. They were out yonder in the hall. Mr. Beavers stated that he had seen the people in the section affected and that they wanted a new county or if they could not get that, another court house, and those gentlemen naturally inferred that he was speaking of the same area. Afterwards, they ascertained that it took two and one half large beats and another small beat, making three and one-half beats more than were in his proposed new county. Now, with reference to this new court house area, I will ask the members of the Convention to look at this map, which I have and will show to the Convention. This is the county of Shelby (describing on a map held facing the members of the Convention) from this point to this, is the proposed county court house and jail area.  Here is the upper edge of Shelby County right here, all the colored portion is Shelby County. Here is Columbiana six miles south of the center of the county. Here is the line of railroad that the gentleman from Shelby presents a measure that there shall be a court house and jail upon– away off up here. While he only embraced this (describing) in the territory for the new county in the court house area, he came down and took in Beat 9 which goes down a little further south than Columbiana, these people living two and one‑half miles from Columbiana must go twenty miles to court when the court house is situated at Vincent‑away over here is Beat 8, where my umbrella is pointing, these people must go by Columbiana and on to Vincent. Up here is Beat 13; no way to get from beat 13 to Vincent, on account of insurmountable hills; they have to take a train this way (pointing) and then another train this way. On account of a gap in the mountain they can go down to Columbiana this way.  He proposed to give exclusive jurisdiction in this territory. I ask the attention of the convention for a moment. He proposes to create a court house up here (describing) and giving exclusive jurisdiction of all cases arising in this territory (pointing it out) and he makes that territory come within two and one-half miles of Columbiana, and these people behind Columbiana, must go by it about twenty miles toe get up there. Now, he speaks about the petitions. Mr. Beavers stated in his speech Saturday morning that he agitated the question of a new court house and that these gentlemen agreed not to oppose hills.  That was on the general proposition to cut down the area limit of counties generally, but not for any particular county.  After they found out on Saturday what the measure really was they went home getting there about 7 o'clock Saturday night, and on yesterday, in this area affected they have gotten 800 signatures against this measure. There are 1,300 voters in that district and against his proposition then secured 800 in one day.


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OFFICIAL PROCEEDINGS

Here are petitions signed by more than half of the people who live within the area, and they protest against Mr. Beavers amendment.

MR. deGRAFFENREID ‑I withdraw my motion to postpone the consideration of this matter, so we can get through with it.

MR. BROWNE– Will the gentleman from Mobile withdraw his motion?

MR. PILLANS– I most certainly will not. I think it entirely out of order, and ought to be postponed until we get through framing this Constitution.

MR. BROWNE‑ If the motion, as made by the gentleman from Mobile is carried, it means to tie these people hand and foot to this treasure, because it is well known that if you delay this matter until the whole Constitution is made, members will go home, and that will be the last of it. Now, I have shown you that trial, and it is an answer to any argument that can be made by any men. Not only that, the gentleman stated on Saturday those people wanted the next court house. Now, those two men did not know whether the people in the upper part of the county wanted it or not, but they believed and you believed that this amendment for a court house embraced the same area as was incorporated in his new county plan. But it is entirely different and would carve the county up in such a shape that the State of Alabama would not recognize the county, and I have shown you on the map how those changes will be made.  This matter was never considered in committee. The St. Clair county court house was considered in committee, but this matter was not. When the gentlemen stated the people wanted it up there, I thought he referred to the other upper or smaller area and the two gentlemen who were here thought so too. They were out at the door and could not hear the numbers of the precincts read.

THE PRESIDENT— The time of the gentleman has expired.

MR. BROWNE— I move to lay the motion of the gentleman from Hale to postpone consideration until tomorrow and the motion of the gentleman from Mobile to postpone it until after the Constitution is framed‑the amendments‑I move to lay them upon the table.

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

THE PRESIDENT‑ The question recurs upon the motion. to reconsider.

MR. deGRAFFENREID — I move the previous question upon that.


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CONSTITUTIONAL CONVENTION, 1901

A vote being taken, the previous question was ordered.

THE PRESIDENT‑‑ The question is on the motion to reconsider the vote whereby this ordinance was ordered engrossed and to a third reading.

A votes being taken, a division was called for.

MR. BROWNE‑I ask that the question be restated.

THE PRESIDENT‑As many as favor the motion to reconsider the vote whereby this ordinance was ordered engrossed and to a third reading will please rise and remain standing until counted.

The vote resulted in there being 35 ayes, 38 noes, and the motion to reconsider was lost.

MR. BROWNE‑ My motion was to lay on the table the motion to postpone consideration.

THE PRESIDENT‑ That motion has been submitted to the Convention. The motion was carried, and the motion to reconsider was submitted to the Convention and lost.

MR. BROWNE‑I call for a verification. There was some misunderstanding. My motion was to table the motion to postpone.

THE PRESIDENT‑ The Chair submitted to the Convention the motion to table, and it prevailed, and the motion to reconsider was lost.

MR. BROWNE‑I call for a verification of the vote.

MR. HEFLIN (Chambers)‑It is entirely too late.

MR. O'NEAL‑ It is not too late. No business has intervened since the vote.

THE PRESIDENT— It is customary where a verification is asked for to submit it to the convention.

MR. LONG (Walker)— The vote has already been verified by a rising vote on a division.

THE PRESIDENT‑‑ The Chair will have the vote taken over again. There seems to be some misunderstanding. Some gentlemen caused confusion by talking to other delegates, while this matter was under consideration. The question is on the motion to reconsider the vote whereby this ordinance was ordered engrossed and to its third reading.

A vote being taken, there were ayes 34, noes 40, and the motion to reconsider was lost.


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OFFICIAL PROCEEDINGS

MR. deGRAFFENREID ‑ I make the point of order, Mr. President, that there was no quorum voting.

THE PRESIDENT There is a quorum in the convention.

MR. BEAVERS‑I make the point of order that there is a quorum.

MR. LONG (Walker)‑I make the point of order that they cannot make that point of order on the verification of a vote.

THE PRESIDENT– The Chair will count a quorum, if necessary.

MR. OATES‑ When the vote was first taken, if there was not a quorum that vas the time to make the point but on a mere verification, it was to ascertain whether the first vote was correct or not.

THE PRESIDENT–It seems to the Chair that the gentleman from Montgomery is correct.

MR. LONG (Butler)‑I ask unanimous consent to present a petition and I have it included in the stenographic report without being" read. It is about the pass evil. (Laughter.)

To the Constitutional Convention, Montgomery, Ala.:

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 be made an unlawful act for either State, county, or municipal officials to accept railroad passes from any railroad company or for any such company to give such passes.

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.

Greenville, Ala., July 23, 1901.

J. A. McGehee, J. D. Owen, E. H. Smith.  W. M. Connor, S. F. Ewing, M. W. Wimberley, F. M. Boutel, J. Beland. R. A. Belan, Jas. F. Belan & Bro., J. P. Reynolds, C. E,. Hamilton. C. C. Stewart, J. H. Dunklin & Co., J. H. Steiner, T. L. Lee, A. R. McQueen, F. C. Smith, W. T. Dunklin, J. N. McBride, E. D. Thames, J. F. Thames, E. M. Kirkpatrick, R. A. Thaggard, W. T. Thaggard, A. C. Whitehead, Dunklin Sons, W. F. Shell, H. E. Brown, H. D.

Lampley, H. J. Greton, C. B. Herbert, J. Long, J. A. Stewart, Thos. W. Peagler, T. D. Stallings, M. D., J. M. McKenzie, F.  Mack, P. E. Luns

Referred to Committee on Corporations.

MR. WILSON (Clarke)‑I have a similar petition to the one introduced by the delegate from Butler, which I desire to have read and referred.


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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 be made an unlawful act for either State, county or municipal officials to accept railroad passes from any railroad company, or for any such company to give such passes.

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.

Grove Hill., Ala., July 23, 1901.

John M. Wilson, Judge of Probate; C. E. Pugh, M. D.; A. K. Rennie, Pharmacist ; J. M. Cobb, Physician; J. F. Gillis, Register; S. P. Chapman, farmer; W. M. Gordon, farmer.

Referred to Committee on Corporations.

THE PRESIDENT‑ The next order will be the call of the roll for the introduction of ordinances, etc.

MR. WILLIAMS (Marengo)‑I move that the call of the roll for the introduction of ordinances, etc., and the call of the roll of committees, be dispensed with, and that we proceed to the other business.

MR. JENKINS‑I rise to a point of personal privilege. I ask that the gentleman will withdraw that until I can introduce an ordinance.

THE PRESIDENT‑ The gentleman can only introduce it now by unanimous consent. The question before the house is the motion of the gentleman from Marengo, that the Convention dispense with the call of the roll for the introduction of ordinances, etc., and the call of the standing committees.

Upon a vote being taken the motion was carried.

MR. O'NEAL‑I move that we remain in session—

MR. JENKINS‑ I desire to introduce an ordinance.

There being no objection Ordinance No. 448 by Mr. Jenkins of Wilcox, was read as follows:

An ordinance to provide for the election of the successors of the hold‑over Senators whose term of office expires in 1904.

Be it ordained by the people of Alabama in Convention assembled, that the State Senators whose term of office expires in 1904, shall continue to hold office until the general election for State officers in 1906, or until their successors are elected, provided, if a special session of the legislature is called by the Governor


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between August, 1904 and the general election for State officers in 1906, it shall be the duty of the Governor when he issues his call for said special session of the legislature to order a special election in all the odd number senatorial districts except thirty-fifth, and persons elected at said special election shall qualify as members of the said special session of the legislature. The term of office of the persons so elected as successors to the aid holdover Senators, now in office and whose terms expire in 1904 shall be from the date of the said special election, and the general election for State officers in 1906; provided, further, that the Senator for the thirty-fifth senatorial district shall be elected in 1902 at the general election for State officers; and shall hold office for four years and all laws governing the election of Senators in the even numbered districts shall apply to the thirty-fifth senatorial district.

THE PRESIDENT‑ The ordinances is referred to the Committee on Legislative Department.

MR. JENKINS‑I ask that it be referred to the Committee on Harmony in order that they may consider the same and make report on it.

THE PRESIDENT‑ The Chair does not think that it has any jurisdiction over an original ordinance. The gentleman can file a copy with them if he desires. The Chair refers it to the Committee on Legislative Department. If they find it should go to the Committee on Harmony,  they can bring it back.

MR. WILLIAMS (Elmore)‑I ask leave to introduce a short resolution.

The resolution was read as follows:

In order that the records of this Convention may be complete, be it

Resolved, That the Secretary of this Convention be and he is hereby instructed and directed to furnish to the printers of the daily "Stenographic Reports" a copy of the proceedings of the first, second and third days of this Convention and to order five hundred (500) copies thereof to be printed, and that the same be distributed among the members of this Convention as are the "Stenographic Reports."

Said copies to be of like size and form as the said report.

THE PRESIDENT–  A similar ordinance was referred to the Committee on Printing, was it not?

MR. WILLIAMS– Referred to the Committee on Rules but it was lost.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑ This will be referred to the Committee on Rules. The Chair was under the impression it was referred to the Committee on Printing.

MR. O'NEAL‑I move that the Convention remain in session until 1 :30 o'clock today.

MR. HEFLIN (Randolph)‑I move to lay the motion of the gentleman on the table.

THE PRESIDENT‑ The Chair is of the opinion it cannot be laid upon the table. The Convention may accept or reject it as they see fit.

Upon a vote being taken the motion was lost.

MR. BURNS‑I have a short resolution.

Resolution No. 295 was read as follows:

Resolved, That when this Convention adjourns on Friday next the 16th it will stand adjourned until 12 o'clock m. on Tuesday the 27th of August.

Resolved further, That delegates be paid during such recess 5 cents per mile going to and returning from their homes, and no per diem.

Upon a vote being taken the resolution was lost.

THE PRESIDENT‑ The special order will be the consideration of the report of the Committee on Impeachments. The gentleman from Etowah.

MR. SEARCY‑I desire to call attention to an error in the stenographic report Friday on the final vote on the Article on Suffrage. I am reported as being absent and not voting. I was present and voted aye.

THE PRESIDENT‑ The stenographer will make note of the correction.

MR. BURNS‑I rise to a point of order. My  understanding was that the resolution I sent up was referred to the Committee on Rules.

THE PRESIDENT‑ The Chair submitted the gentleman's resolution to the Convention and it was rejected. The Chair construed it to be a privileged motion, as it fixed the time to which the Convention should adjourn.

MR. BURNS‑I asked that it be referred to the Committee on Rules, and it was so announced.

THE PRESIDENT‑ The gentleman's hearing must be getting defective.


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OFFICIAL PROCEEDINGS

MR. BROWNE‑I ask the gentleman to yield for the purpose of introducing a short ordinance.

The Clerk read Ordinance No. 449 as follows:

Ordinance No. 449, by Mr. Browne (with thirty-one petitions)

Be it ordained by the people of Alabama in Convention assembled, That so much of an ordinance to provide for the establishment of a Court House and jail at some point to be determined in all election by the people in that portion of St. Clair which lies south and southeast of Backbone Mountain, and which is embraced in precincts numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21, in said county, as amended by striking out of the same all that applies to the county of Shelby.

THE PRESIDENT– The resolution is referred to the Committee on Amending the Constitution.

MR. WATTS‑I move that we adjourn until 3:30.

Upon a vote being taken, the motion was carried and the Convention thereupon adjourned until 3:30 p. m.

_________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 78 delegates present upon the call of the roll.

Mr. Lomax took the chair.

MR. SAMFORD (Pike)‑I ask unanimous consent to make a report from the Committee on Engrossment, two articles, so that they, may be passed and referred to the Committee on Harmony, who are anxious to have them.

Unanimous consent was given.

MR. SAMFORD— I move the adoption of the report and that the articles be considered and read a third time.

THE PRESIDENT PRO TEM. ‑The question is on the adoption of the report of the committee.

The report of the committee was adopted.

THE PRESIDENT PRO TEM.‑ The question is on ordering these articles to a third reading.

The Secretary read the articles as follows:


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CONSTITUTIONAL  CONVENTION, 1901

ARTICLE XI

Taxation

Section 1. All taxes levied on property in this State shall be assessed in exact proportion to the value of such property, but no tax shall be assessed upon any debt for rent or hire of real or personal property, while owned by the landlord or hirer during the current years of such rental or hire, and when such real or personal property is assessed at its full value; provided, however, the General Assembly may levy a poll tax not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund in the county so paying the same.

Sec. 2. No power to levy taxes shall be delegated to individuals or private corporations.

Sec. 3. After the ratification of this Constitution, no new debt shall be created against, or incurred by this State, or its authority, except to repel invasion or surpress insurrection, and then only by a concurrence of two-thirds of the members of each house of the General Assembly, and the vote shall be taken, by yeas and nays and entered on the Journals; and any act creating or incurring any new debt against this State, except as herein provided for, shall be absolutely void; provided, the Governor may be authorized to negotiate temporary loans, never to exceed three hundred thousand dollars, to meet the deficiencies in the treasury; and until the same is paid, no new loan shall be negotiated; Provided further, that this section shall not be construed as to prevent the issuance of bonds for the purpose of refunding the State's existing bonded indebtedness.

Sec. 4. The General Assembly shall not have the power to levy, in any one year, a greater rate of taxation than sixty one-hundredths of one per centum on the value of the taxable property within this State.

Sec. 5. No county in this State shall be authorized to levy a larger rate of taxation, in any one year, on the value of the taxable property therein, than one‑half of one per centum. Provided, that to pay debts existing at the ratification of the Constitution of 1875, an additional rate of one‑fourth of one per centum may be levied and collected, which shall be exclusively appropriated to the payment of such debts or the interest thereon; provided further, that to pay any debt or liability now existing against any county, incurred for the erection, construction and maintenance of the necessary public bridges or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges or roads, any county may levy and collect such special taxes, not to exceed a rate of one‑fourth of one per centum, as may have been or may hereafter be authorized by law, which taxes so levied and collected shall be applied exclusively to the purposes for which the same was so levied and collected.

Sec. 6. The property of private corporations, associations and individuals of this State, shall forever be taxed at the same rate; provided, this section shall not apply to institutions devoted exclusively to religious, educational or charitable purposes.


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OFFICIAL PROCEEDINGS

Sec. 7. The General Assembly shall not have the power to require the counties or other municipal corporations to pay any charges which are now payable out of the State treasury.

Sec. 8. No county shall become indebted in an amount greater than three and one‑half per centum of the taxable value of the property thereof; provided, this limitation shall not apply to any existing indebtedness, in excess of such three and one‑half per centum, which has already been created or authorized by now existing law, to be created.

Sec. 5. No city, town or other municipal corporation shall become indebted in an amount, including present indebtedness, exceeding five per centum of the assessed value of the property thereof, except for the construction or purchase of water works, or electric lighting plants and sewerage, or for the improvement of streets, for which purpose an additional indebtedness, not exceeding three percentum, may be created; provided, this limitation shall not apply, to any debt now authorized by law to be created, and, excepting also temporary loans to be paid within one year, made in anticipation of the collection of taxes, not to exceed one‑fourth of the general revenues of such cities and towns; provided, however, that this limitation shall not apply to towns and cities having a population of six thousand or more, nor to the city of Gadsden and Ensley, the town of Andalusia, Decatur and New Decatur, which last described cities and towns shall not become indebted in an amount, including present indebtedness, exceeding seven per centum of the assessed valuation of the property thereof, and provided further, that there shall not be included in the limitations of the indebtedness of such last described cities and towns the following class of indebtedness, to wit: temporary loans to be paid within one year, made in anticipation of the collection of taxes, and not to exceed one‑fourth of such taxes; bonds or other obligations already issued, or which may hereafter be issued for the purpose of acquiring, providing or construction school houses, water works and sewers; and obligations incurred, and bonds issued for street or sidewalk improvements, where the cost of the same, in whole or in part, is to be assessed against the property abutting said improvement; provided, that the proceeds of all obligations issued as herein provided in excess of said seven per centum, shall not lie used for any purpose other than that for which paid obligations were issued. Nothing herein contained shall prevent the funding or refunding of existing indebtedness. Provided, this section shall not apply to the cities of Sheffield and Tuscumbia.

Sec. 10. The Legislature may levy a tax of not more than two and one‑half per centum on every one hundred ($100) dollars of the value of all estate, real, personal and mixed, money, public and private securities of every kind, passing from any person who may die, seized and possessed thereof, being in this State, or any part of such estate, money or securities, or interest therein, transferred by the intestate laws of this State, or by will, deed, grant, bargain, sale or gift, made or intended to take effect in possession after the death of the grantor, the deviser or donor to any persons, bodies politic or corporate, in trust or otherwise, other than to or for the use of the father, mother, husband, wife, brothers, sisters, children or lineal descendants of the grantor, devisor, donor or intestate.


3995

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM‑ This ordinance has had three readings in this Convention, and the question is shall it be adopted. As many as favor its adoption will say aye, and those of contrary opinion no, as these names are called. The Chair will request the delegates who are present to vote, as the lack of a quorum may be developed if they do not vote.

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

AYES

Messrs. President,

Greer, of Perry,

Opp,

Almon,

Handley,

O’Rear,

Altman,

Harrison,

Palmer,

Ashcraft,

Heflin, of Randolph,

Parker (Elmore),

Banks,

Henderson,

Pettus,

Barefield,

Hood,

Phillips,

Beddow,

Inge,

Pillans,

Bethune,

Jackson,

Porter,

Blackwell,

Jenkins,

Reynolds, of Henry,

Brooks,

Jones, of Bibb,

Rogers (Lowndes),

Browne,

Jones, of Montgomery,

Samford,

Burns,

Jones, of Wilcox,

Sanford,

Byars,

Knight,

Searcy,

Cardon,

Lomax,

Sloan,

Chapman,

Long, of Walker,

Smith, Mac. A.,

Cobb,

Lowe, of Jefferson,

Spears,

Coleman, of Greene,

Lowe, of Lawrence,

Spragins,

Cunningham,

Macdonald,

Vaughan,

Davis, of DeKalb,

Martin,

Waddell,

Davis, of Etowah,

Maxwell,

Walker.

Dent,

Merrill,

Watts,

deGraffenreid.

Miller (Marengo),

Williams (Barbour),

Duke,

Moody,

Williams (Marengo),

Eley,

Mulkey.

Williams (Elmore),

Eyster,

Murphree,

Wilson (Clarke),

Gilmore,

Norman,

Wilson (Washington),

Glover,

Norwood,

Winn,

Graham, of Talladega,

Oates,

Grayson,

O'Neal (Lauderdale),

TOTAL‑85

NOES

Foshee,

Freeman,

TOTAL‑2

ABSENT OR NOT VOTING

Bartlett,

Bulger,

Carmichael, of Coffee,

Beavers,

Burnett,

Carnathon,

Boone,

Carmichael, of Colbert,

Case,


3996                                          

OFFICIAL PROCEEDINGS

Cofer,

Kirk,

Reynolds (Chilton),

Coleman, of Walker,

Kirkland,

Robinson,

Cornwall,

Lyle,

Rogers (Sumter),

Craig,

Ledbetter,

Sanders,

Espy,

Leigh

Selheimer,

Ferguson,

Locklin,

Sentell,

Fitts,

Long, of Butler,

Smith (Mobile),

Fletcher,

McMillan, of Baldwin,

Smith, Morgan M.,

Foster,

McMillan (Wilcox),

Sollie,

Graham, of Montgomery,

Malone,

Sorrell,

Grant,

Miller (Wilcox),

Stewart,

Greer, of Calhoun,

Morrisette,

Stoddard,

Haley,

Nesmith,

Tayloe,

Heflin, of Chambers,

O’Neill, of Jefferson,

Thompson,

Hinson,

Parker (Cullman),

Weakley,

Hodges,

Pearce,

Weatherly,

Howell,

Pitts,

White,

Howze,

Proctor,

Whiteside,

Jones, of Hale,

Reese,

Willet,

King,

Renfro.

The Article was adopted, ordered printed and referred to the Committee on Order, Consistency and Harmony.

Mr. Burns sought recognition.

THE PRESIDENT PRO TEM.‑ The Chair will say to the gentleman from Dallas that there is another article to be read, and he will recognize the gentleman from Dallas as soon as that is read. The Secretary will read the Article on the Judiciary.

The Secretary read the Article as follows:

JUDICIAL DEPARTMENT

Section 1. The judicial powers of the State shall be vested in the Senate sitting as a court of impeachment, a Supreme Court, Circuit Courts, Chancery Courts. Courts of Probate, such courts of law and equity inferior to the Supreme Court and to consist of not more than five members as the Legislature from time to time may establish, and such persons as may be by law invested with powers of a judicial nature; but no court of general jurisdiction at law or in equity, or both, shall hereafter be established in and for any one county having a population of less than 20,000 or property assessed for taxation at a less valuation than $3,500,000.

Sec. 2. Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions and regulations, not repugnant to this Constitution, as may from tithe to time be prescribed by law, except where jurisdiction over appeals is vested in some inferior court and made final therein; provided, that the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warran to, and such other remedial and


3997

CONSTITUTIONAL CONVENTION, 1901

original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions.

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

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

Sec. 5. The Circuit Court shall have original jurisdiction in all matters civil and criminal within the State not otherwise excepted in this Constitution; but in civil cases other than suits for libel, slander, assault and battery, and ejectment, shall have jurisdiction only where the matter or sum in controversy exceeds $50.

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

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

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

Sec. 9. Any county having a population exceeding 20,000 according to the next preceding Federal census, and also taxable property exceeding $3,500,000 in value, according to the next preceding assessment of property for State and county taxation need not be included in any circuit or chancery division; but if the value of its taxable property shall be reduced below that limit or if its population shall be reduced below that number, the Legislature shall not include such county in a circuit or chancery division, or either, embracing more than one county. No circuit or chancery division shall contain less than three counties unless there be embraced therein a county having a population exceeding 20,000 and taxable property exceeding 20,000 and taxable property exceeding $3,500,000. The Legislature may confer upon the Circuit Court or of the Chancery Court the jurisdiction of both of


3998                  

OFFICIAL PROCEEDINGS

said courts. In counties having two or more courts of record, the Legislature may provide for the consolidation of all or any of such courts of record, except the Probate Court, with or without separate divisions, and all appropriate number of judges for the transaction of the business of such consolidated court.

Sec. l0. The Legislature shall have power to establish in each county within the State a court of probate, with general jurisdiction to grant letters testamentary and of administration, and of orphans' business; provided, that whenever any court having equity powers has taken jurisdiction of the settlement of any estate, it shall have power to do all things necessary for the settlement of such estate, including the appointment and removal of administrators, executors, guardians and trustees, and including action upon the resignation of either of them.

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

Sec. 12. The Supreme Court shall consist of one Chief Justice and such number of Associate Justices as may be prescribed by law.

Sec. 13. The Chief Justice and Associate Justices of the Supreme Court, Judges of the Circuit Courts, Probate Courts and Chancellors, shall be elected by the qualified electors of the State, circuits, counties and chancery divisions for which such courts may be established at such times as may be prescribed by law, except as herein otherwise provided.

Sec. 14. The Judges of such interior courts of law and equity as may be by law established, shall be elected or appointed in such mode as the legislature may prescribe.

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

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

Sec. 17. The Chief Justice and Associate Justices of the Supreme Court shall be chosen at any election held at the time and places fixed by law for the election of members of the House of Representatives of the Congress of


3999

CONSTITUTIONAL CONVENTION, 1901

the United States, until the Legislature shall, by law, change the time of holding such election. The term of office of the Chief Justice who shall be elected in the year 1904, shall be as provided in the last preceding section.  The successors of two of the Associate Justices elected in 1904, shall be elected in the year 1906, and the successors of the other two Associate Justices elected in 1904 shall be elected in the year 1908. The Associate Justices of said court elected in the year 1904 shall draw or cast lots among themselves to determine which of them shall hold office for the terms ending, respectively, in the years 1906 and 1908 and until their respective successors are elected or appointed and qualified; the result of such determination shall be certified to the Governor by such Associate Justices, or a minority of them, prior to the first day of January, 1905, and such certificate shall be entered upon the minutes of the court. In the event of the, failure of said Associate Justices to make and certify such determination, the Governor shall designate the terms for which they shall respectively hold office as above provided, and shall issue his proclamation accordingly. In the event of an increase or reduction by law of the number of Associate Justices of the Supreme Court, the Legislature shall, as nearly as may be, provide for the election, each second year, of one-third of the members of said court.

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

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

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

Sec. 21. If, in any case, civil or criminal, lending in any Circuit Court, Chancery Court, or in any court having the jurisdiction of a Circuit or Chancery Court, or either of them, in this State, the presiding judge or Chancellor shall, for any legal cause, be incompetent to try, hear or render judgment in such case; the parties, or their attorneys of record, if it be a civil case, or the solicitor or prosecuting officer, and the defendant or defendants, if it be a criminal case, may agree upon some disinterested person practicing in the court and learned in the law, to act as a special Judge or Chancellor to sit at a court and to hear decide and render judgment, in the same manner and to the same effect as a Chancellor or as a Judge of the Circuit Court, or of a court having the jurisdiction of a Circuit and Chancery Court, or either sitting as a court might do in such case. If the case be a civil one and the parties or their attorneys of record do not


4000                  

OFFICIAL PROCEEDINGS

agree; or if it he a criminal one and the prosecuting officer and the defendant or defendants do not agree upon the special Judge or Chancellor, or if either party in a civil cause is not represented in court, the Register in Chancery, or the clerk of such circuit or other court, in which said cause is pending, shall appoint a special Judge or Chancellor, who shall preside, try and render judgment, as in this section provided. The Legislature may prescribe other methods for supplying special judges in such cases.

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

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

Sec. 24. Registers in chancery shall be appointed by the chancellors of the respective divisions, and shall have been at least twelve months before their appointment. and shall be at the time of their appointment, and during their continuance in office, resident citizens of the district for which they are appointed. They shall hold office for the terns for which the chancellor making such appointment was elected or appointed. Such registers shall receive as compensation for their services such fees and commissions as may be specifically prescribed by law, which fees shall be uniform throughout the State.

Sec. 25. The clerk of the Supreme Court shall be appointed by the judges thereof, and shall hold office for the term of six years, and the clerks of such inferior courts as may be established by law shall be selected in such manner as the legislature may provide.

Sec. 26. Clerks of the Circuit Court shall be elected by the qualified electors in each county for the terms of six years, and may when appointed by the chancellor also fill the office of register in chancery. Vacancies in such office of clerk shall be filled by the judge of the circuit for the unexpired terms.

Sec. 27. The clerk of the supreme court and registers in chancery may be removed by the justices of the Supreme Court and by the chancellors, respectively, for cause to be entered at length upon the minutes of the court.

Sec. 28. A solicitor in each county shall be elected by the qualified electors therein, every four years, whose salary shall be fixed by law, according to the requirements of each county. The office of circuit solicitors shall cease at the termination of the terms of the present incumbents.

Sec. 29. In each precinct not lying within or partly within any city or incorporated town of more than fifteen hundred inhabitants, there shall be elected, by the qualified electors of such precinct, not exceeding two justices of the peace and one constable. Where one or more precincts be within a city or incorporated town having more than fifteen hundred inhabitants, the legislature may provide by law for the election of not more than two justices of the peace, and one constable, for each of such precincts, or an inferior


4001

CONSTITUTIONAL CONVENTION, 1901

court for such precinct or precincts, in lieu of all justices of the peace therein.  justices of the peace and inferior courts herein provided for, shall have jurisdiction in all civil cases where the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment. The legislature may provide by law what fees may be charged by justices of the peace and constables, which fees shall be uniform throughout the State. The right of appeal from any judgment of a justice of the peace, or from any inferior court authorized by this section, without the prepayment of costs, and also the term of office of such justices, and of the judges of such inferior courts and of notaries public, shall be provided for by law. The Governor may appoint notaries public without the powers of a justice of the peace, and may, except where otherwise provided by an act of the legislature, appoint not more than one notary public, with all the powers and jurisdiction of a justice of the peace, for each precinct in which the election of justices of the peace shall be authorized.

Sec. 30. The attorney general shall be elected by the qualified electors of the State at the same time and places of election of members of the legislature, whose term of office shall be four years, and until his successor is elected and qualified. He shall reside at the seat of government during his term of office, shall be the law officer of the State, and shall perform such duties as may be required of him by law.

Sec. 31. The style of all process shall be "The State of Alabama," and all prosecutions shall be carried on in the name and by the authority of the same and shall conclude, "Against the peace and dignity of the State."

Sec. 32. After suit has been commenced on any cause of action the legislature shall have no power to take away such cause of action, or to destroy any defense that may exist to any suit after such suit has been commenced.

See. 33. The legislature shall have the power to abolish any court (except the supreme court and the probate courts) whenever its jurisdiction and functions have been conferred upon some other court.

Sec. 34. Nothing in this article shall be so construed as to effect the term of office of any officer now in office.

Upon the call of the roll upon the final passage of the Article, the vote resulted as follows:

AYES.

Messrs. President,

Bethune,

Cunningham,

Almon,

Blackwell,

Davis, of DeKalb,

Altman,

Brooks,

Davis, of Etowah,

Ashcraft,

Browne,

Dent,

Banks,

Burns,

deGraffenreid,

Barefield,

Cardon,

Duke,

Bartlett,

Chapman,

Eley,

Beavers,

Cobb,

Eyster,

Beddow,

Coleman, of Greene,

Espy,


4002                                          

OFFICIAL PROCEEDINGS

Fitts,

Knight,

Pettus,

Foshee,

Lomax,

Phillips,

Freeman,

Long (Walker),

Pillans,

Gilmore,

Lowe (Jefferson),

Porter,

Glover,

Lowe (Lawrence),

Reynolds (Henry),

Graham, of Montgomery,

Macdonald,

Rogers (Lowndes),

Graham, of Talladega,

Martin,

Samford,

Grayson,

Maxwell,

Searcy,

Greer, of Perry,

Merrill,

Smith, Mac. A.,

Handley,

Miller (Marengo),

Spragins,

Harrison,

Moody,

Vaughan,

Heflin, of Randolph,

Mulkey,

Waddell,

Henderson,

Norman,

Walker,

Hood,

Norwood,

Watts,

Inge,

Oates,

Williams (Barbour),

Jackson,

O'Neal (Lauderdale),

Williams (Marengo),

Jenkins,

Opp,

Williams (Elmore),

Jones, of Bibb,

O'Rear,

Wilson (Clarke),

Jones, of Montgomery,

Palmer,

Wilson (Wash'gton),

Jones, of Wilcox,

Parker (Elmore),

Winn,

Total‑87.

NOES.

Byars,

Total‑1.

ABSENT OR NOT VOTING.

Boone,

King,

Robinson,

Bulger,

Kirk,

Rogers (Sumter),

Burnett,

Kirkland,

Sanders,

Carmichael, of Colbert,

Kyle,

Sanford,

Carmichael, of Coffee,

Ledbetter,

Selheimer,

Carnathon,

Leigh,

Sentell,

Case,

Locklin,

Sloan,

Cofer,

Long (Butler),

Smith (Mobile),

Coleman, of Walker,

McMillan (Baldwin),

Smith, Morgan M.,

Cornwall,

McMillan (Wilcox),

Sollie,

Craig,

Malone,

Sorrell,

Ferguson,

Miller (Wilcox),

Spears,

Fletcher,

Morrisette,

Stewart,

Foster,

Murphree,

Studdard,

Grant,

NeSmith,

Tayloe,

Greer, of Calhoun,

O'Neill (Jefferson),

Thompson,

Haley,

Parker (Cullman),

Weakley,

Heflin, of Chambers,

Pearce,

Weatherly,

Hinson,

Pitts,

White,

Hodges,

Proctor,

Whiteside,

Howell,

Reese,

Willet.

Howze,

Renfro,

Jones, of Hale,

Reynolds (Chilton),


4003

CONSTITUTIONAL CONVENTION, 1901

MR. deGRAFFENREID‑ I ask unanimous consent to explain my vote, I will only take a moment.

THE PRESIDENT‑ The gentleman from Hale asks unanimous consent to explain his vote. Is there objection? The Chair hears none.

MR. deGRAFFENREID ‑It was my understanding in some way on last Friday that this Article would not be ordered to a third reading before Tuesday. It came to me in some way. I don't know how, from the Chairman of the Committee on Judiciary, Mr. Smith. The agreement was not made between Mr. Smith and myself, but was so reported to me by some one. I don't know who. Mr. Smith is not here. There was an agreement on Friday that on Tuesday there would be some effort made looking to a change in this Article to the solicitorships, whether we should have county or circuit solicitors, and as to the manner of their election. Mr. Smith is not here. When he comes I will ascertain whether there was any agreement of that sort made. If there was such an agreement, I know him well enough to believe that he himself will tomorrow morning move the reconsideration of this Article. I vote aye for the purpose of moving that reconsideration myself. I do not make the motion now, but I vote aye for the purpose of making that motion.

By a vote of 87 ayes and 1 no, the Article was adopted.

THE PRESIDENT‑ The Article will be ordered printed and referred to the Committee on Order, Consistency and Harmony of the Whole Constitution.

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

Unanimous consent was accorded.

The Secretary read the resolution as follows:

Resolution No. 295 by Mr. Burns:

Whereas, Not less than 48,000 adult males who should not be allowed to vote, and not more than 300 who should be allowed to vote would be barred by the insertion of one word, in the Article on "Suffrage and Elections" and

Whereas, Provisions could be made whereby the disabilities of all those competent and worthy to vote, and hold office could be removed.

Resolved, That the Committee on Amendments to the Constitution be authorized and instructed to report an ordinance which shall include "bastards" among these, who shall not be qualified electors in this State, by the Governor, or Board or some court, or competent jurisdiction.


4004                  

OFFICIAL PROCEEDINGS

MR. BURNS‑I ask that the resolution be referred to the Committee on Amending the Constitution. The gentleman from Barbour happens to be the Chairman of that Committee.

THE PRESIDENT‑ It bears upon the question of suffrage, and resolutions relating to that subject should be referred to the Committee on Suffrage and Elections.

MR. BURNS‑I understood Mr. Browne of Talladega, offered an ordinance today on State and County Boundaries, which was referred to the Committee on Amending the Constitution.

THE PRESIDENT‑ That related to building of an extra Court House.

MR. BURNS‑I ask that the resolution under the rules go to the Rules Committee.

THE PRESIDENT‑ The Chair will refer the resolution to the Committee on Rules at the suggestion of the gentleman from Dallas.

Leaves of absence were granted as follows: To Mr. Stoddard for Monday and Tuesday on account of sickness, to Mr. Sanders for today, to Mr. Jones' of Hale indefinite leave on account of sickness.

THE PRESIDENT‑ The special order for this evening will be the consideration of the report of the Committee on Impeachments. Unless the Chairman desires to make some general statement, the report will be taken up Section by Section.

MR. HOOD‑I ask that the first Section be read.

MR. LONG (Walker)‑I would call attention to the minority report, which under the rules should be considered first.

THE PRESIDENT‑ The minority report will be considered as an amendment to the minority report, and will be the first considered.

The Secretary read the report as follows:

AN ORDINANCE.

Be it ordained by the people of Alabama in Convention assembled. That Article VIII of the Constitution be stricken out and the following Article inserted in lieu thereof:

ARTICLE—

Impeachments.

Section 1. The Governor, Lieutenant-Governor. Secretary of State, Auditor, State Treasurer, Attorney-General, Superintendent of Education, Commissioner of Agriculture and Industries and


4005

CONSTITUTIONAL CONVENTION, 1901

Judges of the Supreme Court may be removed from office for wilful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officers for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof or connected therewith, by the Senate sitting as a court for that purpose, under oath or affirmation on Articles or charges preferred by the House of Representatives.

The Secretary read the minority report as follows:

MINORITY REPORT.

Mr. President‑ The undersigned members of the Committee on Impeachments do not concur in the report of the majority as to Sections 1, 2 and 3, and in lieu thereof, we recommend the following:

Section 1. The Governor, Lieutenant-Governor, Secretary of State, Treasurer, Auditor, Attorney-General, Superintendent of Education, Commissioner of Agriculture and Industries and Judges of the Supreme Court, may be removed from office for willful neglect of duty, corruption in office, habitual drunkenness, incompetency, in any offense involving moral turpitude while in office, or committed under color thereof or connected therewith, by the Senate, sitting as a court for that purpose, under oath or affirmation, on articles or charges preferred by the House of Representatives.

The minority report was signed by the following members constituting the minority: Messrs. Thompson, Robinson, Haley, Smith (Mac. A.) and Long (Walker.)

MR. LONG (Walker)‑The question is on the substitution of the minority report for that submitted by the majority of the Committee. The minority report has added the words "Lieutenant-Governor and Commissioner of Agriculture and Industry." With that exception, it is the same. I have the honor of sitting on two committees. The other reported back exactly what was in the old Constitution, and that is .vhat we have tried to do on the Article on Impeachments. It is not necessary to discuss it. There is not much difference in the two sections. I think it is better as it is in the old Constitution, and, therefore, I move the adoption of the minority report.

MR. HOOD‑ The only differences between Section 1, as reported by the majority of the Committee and the old Constitution, (the same section in the old Constitution) is that the office of Commissioner of Agriculture and Industries and Lieutenant-Governor have been added; the words "habitual drunkenness" have been stricken out, and in lieu thereof the following inserted, "or intem‑


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OFFICIAL PROCEEDINGS

perance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and the importance of its duties, as unfits the officer for the discharge of such duties."

MR, OATES‑I want to inquire if that change was made in consequence of the decision of the Supreme Court in the Robinson case?

MR. HOOD‑ Yes, sir; that last change that I mentioned, was made in consequence of two decisions of the Supreme Court of Alabama; the first of which was the Savage case, the impeachment of the Probate Judge of Cherokee County in this State; and the second the Robinson case from Lee County. The latter case is reported in 20 Southern Reporter. By an examination of that case, it will be found that the Supreme Court have decided the words "habitual drunkenness," in effect, mean a person who is drunk more than sober. It will also be observed by an examination of this entire Article that these words. "habitual drunkenness," apply to all officers of the State, from the Governor of the State, the members of the Supreme Court of the State, to the constables in the several beats of the State. Under the rule as laid down in these two cases, a Supreme Court Judge is not required to be a more sober man than a constable of a precinct. With those purposes in view, the Committee has undertaken to meet the necessities of the case, and have added, “intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties.” We apprehend that from the use of that language the same rule would not apply to a Judge of the Supreme Court in view of the dignity of that office that would apply to the Justice of the Peace or the constable of a precinct. I move the previous question on the section and the amendment.

A vote being taken, the previous question was ordered; a further vote being taken on the substitute to the majority report, the motion to substitute was lost.  The question recurring upon the adoption of the report of the minority, a vote being taken, Section 1, the report of the Committee, was adopted.

The Secretary read Section 2 as follows:

Sec. 2.  The Chancellors, Judges of the Circuit Court, Judges of the Probate Court, Sheriffs, Solicitors of the Circuits and Judges of the inferior courts, from which an appeal may be taken directly to the Supreme Court, may be removed from office for any of the causes specified in the preceding section, by the Supreme Court, under such regulations as may be prescribed by law.

The Secretary read the minority report for Section 2 as follows:


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CONSTITUTIONAL CONVENTION, 1901

Sec. 2. The Chancellors, Judges of the Circuit Courts, Judges of the Probate Courts, Solicitors, and Judges of the inferior courts, from which an appeal may be taken directly to the Supreme Court, may be removed from office for any of the causes specified in the preceding section, by the Supreme Court, under such regulations as may be prescribed by law.

MR. LONG (Walker)‑Mr. President and Gentlemen of the Convention: This is an important section. Five members of the Committee on Impeachments have seen proper to sign the minority report. I regret that Mr. Thompson and Judge Robinson are not here to defend this report, as we expected them to lead the fight.  In my judgment, if the majority report is adopted, it will seriously interfere with the ratification of this Constitution. The report of the majority will require every sheriff of the State of Alabama, no matter what he is charged with, if articles of impeachment are filed against him, for failing to make a levy for one hundred dollars, or to turn over fifty dollars that some attorney might claim, to come before the Supreme Court of Alabama to defend himself against impeachment. It is much more radical, to my honest judgment, than the report of the Committee on Executive Department, which was a slap, as I said, at every sheriff in the State of Alabama. I want this Convention to adopt Section 2 of the minority report, which leaves it exactly as it is in the old Constitution, without a single change whatever. Now, the distinguished chairman of the Executive Department, as we all know, saw fit to encroach upon the Article on Impeachments and added to the Article on Executive Department a provision which allows the Governor of the State of Alabama to impeach the sheriff without hearing him and without hearing the evidence. This report makes the sheriff come before the Supreme Court; while it denies to the Executive the power to suspend from office, it requires the sheriff to come before the Executive not only in cases of lynching, but for every other charge brought against him. Now, I appeal to the Convention in the name of the sheriffs of Alabama, who are good people, as to whether there are any good reasons why the majority report should be adopted? There is no reason why a sheriff should be required to come here to Montgomery and stand trial before the Supreme Court of Alabama. Leave the whole Article exactly as it is in the old Constitution. The distinguished chairman (Mr. Jones, Montgomery), in addressing the Convention on the Article on Executive Department, asked why should not a sheriff be in defense of his duty, the same as an engineer at the throttle of his engine? I will tell him why ;the engineer at the throttle has perhaps numbers of innocent women and children in his charge, and it is his duty to stay there and save them if possible; but a sheriff may have some black brute that is guilty of taking from some white woman in this State that to the loss of which death would be a thousand times more preferable, and would cause her kin people to the


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fourth or fifth generation to hang their heads in shame. It is not his duty to be in defense of a black villian like that, and I never want to see the time come in Alabama when there is not a disposition to carry out this opinion to such an extent that whenever a black brute in Alabama shall ravish a white woman, he shall be lynched regardless of law, and white women should not be permitted or required to go into the court house to testify against him.

I hope this minority report will be adopted. It is the same constitutional provision we have lived under for a long time, and I tell you the sheriffs of Alabama will do their duty— I have never seen one who would not do his duty–but I never have thought it was his duty to die, to give up his life, for a prisoner that the law should not protect. I know that mob law is a bad thing, but I know there are laws a thousand times worse than mob laws in this State, and you can say what you please, but the time will never come in this country when the white man's blood will fail to boil to such an extent all over this country that they will rise up and demand the execution of a brute, be he white or black, who takes things in his own hands and seeks to destroy virtue in this country. You take a "nigger" as black as the ace of spades, with a hundred dollars behind him, and he can keep his case in court for five or ten years in spite of justice, and in spite of juries. I tell you that this is an important section. It should be adopted exactly like it is in the old Constitution, and there is no reason why it should be changed. There is no good reason given why it should be changed.  We did not go before the people of Alabama and tell them that we were going to suspend the sheriffs of this State without the right to be heard and require them to come before the Supreme Court to defend the case. It should not be done.  No good reason can be given for it.  I tell you the sheriffs are human beings, like we are, and this thing of singling them out and putting the whole burden upon them for what mobs may do in the State of Alabama is wrong. You want them to stand up there and die, and I dare say there is not a man here, if he had a man of that character in his custody, who would not take to the thicket rather than die under such circumstances. You would do it, and I would do it. Death is a very serious thing, and it is not our duty to die for people who are not worthy to die for.

MR. PILLANS‑ Are we to understand that all the lynchings that take place in Alabama are for that offense?

MR. LONG-No, Sir; we are not to understand that, but why don't you fix it so in here that it will excuse in a case of rape?

MR. PILLANS‑ Are we to understand that the gentleman thinks the Constitutional Convention of Alabama should legalize‑

MR. LONG‑ Yes, sir; I think they should legalize it in that shape, and I would be willing to vote for it.


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CONSTITUTIONAL CONVENTION, 1901

MR. PILLANS ‑The gentleman is not even willing to have the question asked before he knows it cannot be properly answered.

MR. LONG‑I beg the gentleman's pardon;  I would be glad  to answer the gentleman's question.

MR. PILLANS‑I was going to ask if the gentleman intended to counsel the Constitutional Convention of Alabama to legalize that class of acts of sheriffs which would result in a failure to protect prisoners in their custody?

MR. LONG‑  No, sir; not to that extent.

MR. PILLANS ‑ Or the delivery of prisoners in their hands up to a mob to be executed.

MR. LONG‑ Now, I will answer you. I said before I did not think it is the sheriff's duty to give up his life for a five-cent nigger, and I repeat it.

MR. BAREFIELD‑I offer a substitute for the minority report.

The substitute was read as follows: "Amend Section 2 of the report on Impeachment by adding at the end of said section the following: “And the sheriff shall be eligible as his own successor in office.'"

MR. BAREFIELD‑I have been heartily in favor—

MR. LONG‑I rise to a parliamentary inquiry. I just want to know if that amendment comes in as an amendment to the minority report.

MR. BAREFIELD ‑It is a substitute for the minority report, by adding that to Section 2 of the report.

MR. LONG‑I make the point of order that it is not germane to the subject. Section 2 embraces a dozen other things. I have no objection to that being incorporated in either one of then, but we want to vote on Section 2 as it stands.

MR. BAREFIELD‑I think the Committee on "Harmonics" can harmonize that whether it is germane or not.

MR. PRESIDENT‑‑ The Chair is not disposed to rule it out on the ground of its being not germane. It may be somewhat inconsistent.

MR. LONG‑ Can it be offered as a substitute for this whole Article, when it only applies to the sheriffs' successor? I have no objection to the gentleman's amendment. I think the sheriff should succeed himself, and I would vote for it in the proper shape.

THE PRESIDENT‑ The proposition is to strike out Section 2 of the minority report and insert in lieu thereof the proposition he offers.


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OFFICIAL PROCEEDINGS

MR. LONG‑ Would it not be better to let them vote on this and then offer his amendment to Section 2 of the majority report when that amendment is voted down?

MR. BAREFIELD‑I prefer it as it is. I have not been in favor of the sheriffs being impeached by a jury of twelve then of their county. I have always been opposed to the Article in the report on the Executive Department that provided for the mode of impeachment, but I have seen quite a number of sheriffs, and they say that if they are allowed to succeed themselves, they do not care one iota about the impeachment question. They say if they are allowed to succeed themselves, to vindicate themselves if they are impeached, or an effort is made to impeach them, they do not care about the present impeachment law. I have talked to a whole lot of delegates in this Convention who favor the impeachment by twelve men of the county in the Circuit Court or court of like jurisdiction, but who prefer the amendment I have offered. They say we would rather have the sheriff to succeed himself in office than to defeat the impeachment proposition. Now, as I have stated, I have been bitterly opposed to the present impeachment law as adopted by this Convention, but if the sheriffs in this State want to succeed themselves, and I say they have a perfect right to do so, why, let us adopt that and allow the present impeachment law to remain as it is. Now, the question is—

MR. WALKER (Madison)‑Do you propose to strike out entirely any provision in the Constitution in reference to the impeachment of Judges of Circuit Courts and Probate Judges and Solicitors and Judges of inferior courts?

MR. BAREFIELD‑ No, sir; my amendment is to the latter part of Section 2, which provides the manner in which sheriffs shall be impeached.

MR. WALKER‑ But you offer it as a substitute for that entire section.

MR. BAREFIELD‑I offer it as a substitute to the minority report. The majority report provides how a sheriff—

MR. WALKER-‑Hadn't you better offer to amend the majority report by adding that?

MR. BAREFIELD‑I cannot see to save my life why a Sheriff should not have the right to succeed himself. I have never seen and, have never heard any man on the floor of this Convention give any valid reason why the Sheriff should not succeed himself. You take all the county officials. Your Tax Collector can default, and as a general rule, whenever they do default it is in their second term. It is the same way with your County Treasurer who handles thousands and thousands of dollars of money whenever he defaults. He acts the gentleman in his first term in order to be


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CONSTITUTIONAL CONVENTION, 1901

able to act a rascal in his second term. The other proposition as to the Tax Assessor and of county officials should be prohibited from succeeding themselves because he can undervalue property in order to electioneer for the office of Probate Judge or his successor in office. We allow the Probate judge to succeed himself.  He handles the State's money. He can default, and yet we say to him as sensible men, that he can succeed himself, and all other county officials can succeed themselves. Then I ask you gentlemen of the Convention why not allow the Sheriff to succeed himself, and I say to you gentlemen who are favorable to the Sheriff succeeding himself, if he can get a proposition through that will allow him to succeed himself, then let this impeachment law remain as it is, no matter how objectionable it is to us.

MR. BURNS‑I thought I understood you to say a while ago that the Sheriffs would be satisfied to compromise upon this amendment.

MR. BAREFIELD‑ That is what several told me, that they did not care anything about impeachment if they were allowed to vindicate themselves before the people.

MR. BURNS‑ Do you say that any Sheriff in Montgomery, Wilcox or in the black belt agrees to that?

MR. BAREFIELD‑I will say this much: They are not the only Sheriffs in Alabama.

MR. BURNS‑ Did as many as three say so?

MR. BAREFIELD ‑ Yes, sir.

MR. BURNS‑I just talked to the President of the Sheriffs and Clerks Association and they had not heard of it.

MR. LONG (Walker)‑Is it not a fact that the President of the Sheriffs' Association told you that between the two he preferred for the impeachment to be knocked out rather than the other?

MR. BAREFIELD‑ Yes, sir, he did and I will say the President of the Sheriff's Association is not the only Sheriff in Alabama who would like to succeed himself in preference to the impeachment proceedings.

THE PRESIDENT‑Is the gentleman through with his remarks?

MR. BAREFIELD‑ Yes.

THE PRESIDENT‑ The Chair recognizes the gentleman from Barbour.

The Chair is of the opinion that the amendment offered by the gentleman from Monroe would more properly be applicable


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OFFICIAL PROCEEDINGS

to the section as reported by the majority of the committee, and it seems that it would not be in order as a substitute for the minority report; so the gentleman had better withdraw his amendment and offer it after the minority report is disposed of.

MR. BAREFIELD‑ Yes, sir, I will ask unanimous consent to withdraw it.

The consent was given.

MR. MERRILL‑ The main reason why this committee included Sheriffs in this section was the fact that this Convention has virtually adjudicated that matter already in the Executive Department which has been adopted by this Convention, this matter has been virtually adjudicated, or at least the sentiment and desire of the Convention has been expressed to it, That article has been adopted and forms now a part of the Constitution that we are making, therefore your committee did not desire to bring it in its report what would conflict with what has already been done by this Convention, hence it has placed Sheriffs in the same category, or in the same position as to impeachments that the article on the Executive Department places them. We did not desire to undertake to repeal the action of this Convention as heretofore expressed.  The committee have no particular desire to press the matter, but we think the Convention has expressed its will. This section is in accordance with that will, and we can see no reason why the majority report should not be adopted. Now that is about all that actuated the committee. I move to lay the minority report upon the table.

MR. SMITH, MAC A. (Autauga)‑I ask the gentleman from Barbour to withdraw that a moment.

MR. MERRILL‑ Yes, sir, I will withdraw it if you will renew it.

MR. SMITH–Mr. President, when the article on the Executive Department was under consideration by this Convention, I voted for the section in that article providing for the removal of the Sheriff by the Supreme Court of the State, and his suspension by the Governor pending an investigation of the charge against him by the Supreme Court. I thought then that the effect of the adoption of that section would be very salutary in its character.  I believe it would have a tendency to make the Sheriffs of the State more careful in the protection of the criminals that were lodged in their hands for safe custody, and it was on that account that I voted for it. I thought that perhaps a change in the tribunal by which the Sheriff was to be tried would have that effect; but since then I have reconsidered the matter and come to the conclusion that there is no sufficient reason for changing the tribunal for the trial of a Sheriff more than there was before. I believe, in other words, Mr. President, that the sheriff should be tried as it pro‑


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CONSTITUTIONAL CONVENTION, 1901

vided by the old Constitution, by a tribunal of his county. He is a county officer and should be tried in the same way that a tax collector, a tax assessor, a county treasurer, the clerk of the circuit court, or constable is tried, and so far as that is concerned, I would favor an amendment to the Constitution which provided for the trial of the probate judges by the courts of the county. Why do I say that, Mr. President? It is because of the fact that it provides for a home tribunal for the trial of county officers; it is because of the fact that I believe a probate judge should be tried by his county tribunal simply for the reason that he is a county officer, and because whatever sins he may commit, neglect of duty or anything of that kind, malfeasance in office, or any offense involving moral turpitude, is most likely to occur in the county where he holds his office. Other defendants tried for criminal offenses are tried in the county where the offense is committed. Why should not the sheriff and probate judge be tried in the same way. Especially, Mr. President and gentlemen of the Convention am I opposed to that part of the section which we adopted here in the adoption of the Article on Executive Department, providing for the suspension of the sheriff pending his trial. That section provided that the governor of the State, after hearing the sheriff could suspend him.  In other words, it provided for the Governor having a preliminary trial of the sheriff. After hearing the sheriff, he had the right, under that law which we adopted, to suspend him. Now the Governor is an executive officer. He is at the head of a co‑ordinate department of the State government, and for him to have the authority to suspend the sheriff, the other co‑ordinate department of the government, the Supreme Court would be largely persuaded to sustain the Governor in his act of suspension. Because of these facts and because I think it would work an injustice upon a class of officers who are necessarily very important in the administration of the laws of our State I have favored that part of the minority report—

MR. PILLANS‑ Will the gentleman allow me to ask him a question ?

MR. SMITH‑ Yes, sir.

MR. PILLANS ‑Does the gentleman mean to intimate that he has a greater distrust of the fairness of the Supreme Court as a fit tribunal to try the sheriff, than of a jury of the county in which the breach of the law has taken place and a man been murdered by a mob?

MR. SMITH ‑ Not by any means. I do not wish to intimate any such thing, and I do not see, by any fair inference, how the gentleman has seen proper to ask such a question. I am unconscious that I said anything that could be taken to indicate that I had any idea that the Supreme Court would be unjust any more


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OFFICIAL PROCEEDINGS

than any other tribunal in the land. On the contrary this is my proposition

MR. PILLANS‑ Did not the Convention understand the gentleman to argue but a moment ago, that as the Supreme Court was a co‑ordinate branch of the government of which the Governor was the executive head. as the Governor acted in the suspension after a preliminary trial, that the would bias the Supreme Court or control its action in some way ?

MR. MAC A. SMITH–I did not intend it to have that meaning; but I say this: That the two co-ordinate departments of the government, the executive and the Supreme Court necessarily have a sympathy existing between them as they ought to have, and the action of one would be largely persuasive of the action of the other.

MR. PILLANS‑ Does the gentleman suppose that there would be less sympathy for the sheriff, and less sympathetic interference with the due coarse and progress of justice in the county in which public murder had been done, and the prisoner taken from the sheriff’s hands, in the lower court, than would be in the Supreme Court of Alabama.

M R. MAC A. SMITH‑I do not know that I exactly understand the gentleman's proposition.

MR. PILLANS–The proposition is this: The gentleman suggests that there would be a bias probably on the part of the Supreme Court affecting the Supreme Court because of its respect for the judgment of the Governor, as I understand.

MR. MAC A. SMITH–Yes, sir.

MR. PILLANS–I ask further whether the gentleman means to intimate that the course of justice, of abstract justice looking to the correct solution and correct decision of the issue in the impeachment proceedings, would be more polluted by passing through the tribunal of the Supreme Court than passing through the court in the county in which public murder had been done by a mob?

MR. MAC A. SMITH–I do not mean by any means that the action of the Governor would be conclusive upon the Supreme Court, but I can see no necessity for there being a preliminary trial of the sheriff by the Governor.  It amounts to nothing more than a preliminary trial.   After hearing the sheriff, it provides for the Governor to suspend the sheriff from office pending his trial by the Supreme Court.  In compliance with my promise to the  gentleman from Barbour, I renew his motion for the previous question.

MR. MERRILL–It was to lay on the table.

MR. MAC A. SMITH–I will allow the gentleman to make that motion himself.


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CONSTITUTIONAL CONVENTION, 1901

MR. MERRILL‑I yield to the gentleman from Greene.

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

The amendment was read as follows: "Amend Section 2 of the majority report by striking out the word of the circuit‑

THE PRESIDENT‑ That would not be in order until the Convention disposed of the minority report.

MR. COLEMAN‑ The gentleman got up to move the previous question upon the minority report and the majority report, and we did not have opportunity to offer amendments to anything.

THE PRESIDENT‑ The motion was to table the minority report.

MR. COLEMAN‑I have no objections to it. I would like to say while I am up that the discussion here is really not proper at this time. The discussion is really impeached, and as to whether the Article reported by the Committee on Executive Department has anything to do with it or not. I cannot see yet. It is not conclusive in any way. The only question in my mind is whether it is fair and right to make a sheriff come from Mobile or the remotest part of the State to Montgomery and stand his trial for impeachment. That is really the only question we ought to consider, except one other question, and that is if you impeach a sheriff at home, he will surely have some advantage, because he has something to do with the selection of the jurors, and he has more or less influence with the judge who tries him, notwithstanding he may be an impartial judge. It is a very serious question, though, whether we ought to bring the sheriff here to Montgomery, because it is a long ways and it is expensive in these trials of impeachment, as every one knows who has had a trial before the Supreme Court on that question. It costs money to bring his witnesses here and to keep them here, but still the court can dispense with the witnesses by the appointment of a commission if it sees proper. That is what we do sometimes.

MR. FITTS‑ Don't you bring the Probate Judge, who is a county officer, here to Montgomery to try him?

MR. COLEMAN ‑The judicial officers have always occupied in this State and in the public mind a different position from ministerial or even executive officers, like the Sheriff. I do not want to be understood as opposing this at all, I simply want the question presented to the delegates of the Convention, and not to be misled by bringing up this question of sheriffs and authorizing them to be shot down, or discourse on snob violence. It is not before us and has nothing to do with them at all. The question is, shall the sheriff be impeached before the Supreme Court or before the Circuit. Judge at home, as heretofore.


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OFFICIAL PROCEEDINGS

MR. PILLANS‑Is it not important in the discussion of that, in your judgment, that we should determine where that impeachment would be fairly and properly tried and the dignity of the law sustained?

MR. COLEMAN‑I think not, and I think it has no hearing on it whatever, that I can see. I think the question is shall the sheriff  be impeached at home or is it necessary for justice to be done that he be brought to Montgomery. I have not even intimated how I would vote, but I did not want the minds of the delegates to rule off on something that wasn't before them. This is bringing up all issue not yet reached, but which will be reached in the further progress of this argument.

MR. PILLANS‑ Is it the gentleman's conviction that an impeachment at home would ever be successful where you are impeaching him for submitting to mob violence.

MR. COLEMAN‑I think the gentleman is expressing a great want of confidence in the virtue and integrity of the people of this country. There are a class of citizens who always favor mob law, but I have never known of any county that did not have virtue enough to uphold the laws of the State, and I am surprised at the gentleman intimating such a thing here.

MR. HOOD–As stated by the gentleman from Barbour (Mr. Merrill) the Committee was largely induced to report Section 2 as it is for the reason that this Convention has heretofore made the sheriff impeachable by the Supreme Court of the State for certain offences. In the consideration of this question, the Committee was especially impressed with the fact that the sheriff is the most important county official; that is is the official that summons jurors and brings them to court, and it is in his charge that they are while in attendance upon court. Now, Mr. President and gentlemen of the Convention, would a sheriff who should be impeached for neglect of duty or otherwise likely be impeached by jurors whom he had summoned, and who were in his charge during the session of court? This is a practical question that should appeal to us all as members of this Convention.

MR. BURNS‑ Will the gentleman allow a question.

MR. HOOD–Certainly.

MR. BURNS‑‑ Would the sheriff have the selection of the jurors?

MR. HOOD‑ No, he does not have the selection of jurors now, but he does have charge of the jurors. Something has been said about incurring the ill will of the sheriffs of the State. Certainly the sheriffs would not object to being thus exalted in that they would be impeached by the highest tribunal of the State.


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CONSTITUTIONAL, CONVENTION, 1901

MR. SAMFORD (Pike)‑I will ask the gentleman if he does not think that a sheriff in the northeastern counties of the State where the salary or the perquisites amount to a little more than $1,000 a year, would object to being impeached, or to having a trial for impeachment before the Supreme Court where his witnesses and the cost of court would amount to as much as he got in the whole year.

MR. HOOD‑ Yes sir, and he would object to trial for impeachment before any court. In the first place, there are few sheriffs in Northeast Alabama who got as small a salary as $1,000.  In the next place, if it is good policy to impeach the Probate Judge before the Supreme Court, it is certainly good policy, it seems to me, to impeach an equally important official before the Supreme Court. The sheriff not only has charge of the juries, and not only has charge of the Court House, but he is a prominent election official as we all know.

MR. COLEMAN (Greene)‑Don't you know that in all proceedings against the sheriff the coroner takes charge.

MR. HOOD— Ordinarily, yes.

MR. COLEMAN‑ Altogether.

MR.  HOOD‑ Yes, sir, but the sheriff is there and his friends are there, and he has his friends there.

MR. O'NEAL (Lauderdale)‑Isn't it a fact that in the last ten years about one hundred persons have been taken from the custody of sheriffs in Alabama, and isn't it a further fact that in not a single instance has a sheriff been impeached under the law as it now exists.

MR. HOOD‑I do not know of any sheriff having been impeached. I do not know how many persons have been taken from the sheriffs, I know, however, a great many have, and if one has ever been impeached or that reason I have never heard of it.

MR. BEDDOW‑Is it not a fact that since this Convention has been sitting here, three lives have been taken by mob violence in Alabama ?

MR. HOOD‑I believe the newspaper reports say so. So far as it is concerned, if there is to be any question about incurring the ill will and displeasure of the sheriff, I will undertake to say we will have no objection to permitting the sheriff to succeed himself. It seems to me if the important officials, such as tax assessor and tax collector, are permitted to succeed themselves and it is good policy to allow them to succeed themselves, that it is certainly not any worse policy to allow the sheriff to succeed himself, however, that question is not up now, and I move to lay the minority report on the table.


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OFFICIAL PROCEEDINGS

MR. LONG (Walker)‑ On that I call for the ayes and noes.

The call was sustained.

MR. MULKEY‑I rise to a question of inquiry. What has become of the substitute offered lay the gentleman from Monroe?

THE PRESIDENT‑ The substitute was withdrawn by unanimous consent, with the view of adding it as an amendment to the section as reported by the Committee.

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

AYES

Messrs. President,

Fitts,

Murphree,

Altman,

Foshee,

Norman,

Ashcraft,

Freeman,

Norwood,

Banks,

Graham, of Talladega,

Oates,

Barefield,

Greer, of Perry,

O’Neal (Lauderdale),

Beddow,

Harrison,

Palmer,

Blackwell,

Henderson,

Phillips,

Brooks,

Hood,

Pillans,

Byars,

Jones, of Montgomery,

Searcy,

Cunningham,

Jones, of Wilcox,

Spears,

Davis of Etowah,

Lomax,

Vaughan,

Dent,

Lowe (Jefferson),

Waddell,

Duke.

Maxwell,

Watts,

Eley,

Merrill,

Wilson (Clarke),

Espy,

Miller (Marengo),

Winn,

Ferguson,

Mulkey,

Total–47.

NOES .

Almon,

Handley,

O’Rear,

Bethune,

Heflin, of Randolph,

Parker (Elmore),

Browne,

Inge,

Pettus,

Burns,

Jackson,

Reynolds (Henry),

Cardon,

Jenkins,

Rogers (Lowndes),

Chapman,

Jones, of Bibb,

Samford,

Cobb,

Knight,

Sanford,

Coleman, of Greene,

Long (Walker),

Smith, Mac. A.,

Davis, of DeKalb,

Lowe (Lawrence),

Spragins,

Eyster,

Macdonald,

Walker,

Glover,

Martin,

Williams (Barbour),

Graham, of Montgomery,

Moody,

Williams (Elmore),

Grayson,

Opp,

Wilson (Washington),

Total‑39.

ABSENT OR NOT VOTING.

Bartlett,

Boone,

Burnett,

Beavers,

Bulger,

Carmichael, of Colbert,


4019

CONSTITUTIONAL CONVENTION, 1901

Carmichael, of Coffee,

Kirk,

Reynolds (Chilton),

Carnathon,

Kirkland,

Robinson,

Case,

Kyle,

Rogers (Sumter),

Cofer,

Ledbetter,

Sander,

Coleman, of Walker,

Leigh,

Selheimer

Cornwall,

Locklin,

Sentell,

Craig,

Long (Butler),

Smith (Mobile),

deGraffenreid,

McMillan (Baldwin),

Smith, Morgan M.,

Fletcher,

McMillan (Wilcox),

Sollie,

Foster,

Malone,

Sorrell,

Gilmore,

Miller (Wilcox),

Stewart,

Grant,

Morrisette,

Studdard,

Greer, of Calhoun,

NeSmith,

Tayloe,

Haley,

O'Neill (Jefferson),

Thompson,

Hinson,

Parker (Cullman),

Weakley,

Hodges.

Pearce,

Weatherly,

Howell,

Pitts,

White,

Howze,

Proctor,

Whiteside.

Jones, of Hale,

Reese,

Willet,

King,

Renfro,

PAIRED

AYES.  NOES.

Porter,

Heflin, of Chambers,

Sloan,

Williams (Marengo),

So the motion to table prevailed.

MR. BAREFIELD–I have an amendment.

The amendment was read as follows:

An amendment to Section 2: "Amend Section 2 by adding at the end thereof; provided, that sheriffs shall be eligible to succeed themselves in the office of sheriff.

MR. BAREFIELD‑I yield to the gentleman from Jefferson.

MR. CUNNINGHAM‑I do not intend to make any speech of any length upon this subject, but I am heartily in favor of allowing the sheriffs to succeed themselves. In the first place, I know of no substantial reason why they should not succeed themselves, if the people want them. In the second place, I think the provisions that we are adopting in regard to the impeachment of sheriffs should give them the right of an appeal to the people, where they live, for re‑election. I am in favor of the impeachment of the sheriffs as ordained in the ordinance can the executive department.  I voted to table the minority report, and am in favor of the majority report, which is, as I understand it, substantially the same as the Executive Department upon this question. But I believe


4020                                          

OFFICIAL PROCEEDINGS

that the sheriffs should have an opportunity to vindicate themselves and for that reason I am heartily in favor of the sheriffs having the constitutional privilege of offering for re-election. I do not know whether this would be any compromise or not. So far as I am individually concerned, I do not believe that this Convention should condescend to ask any officer in the State of Alabama, from Governor down what he thinks about it. That is my ticket. We are here to do what is right, and it does not make any difference whether it is politics, or whether it pleases or tickles any particular officer in Alabama. That is my idea. It makes no difference whether it pleases the solicitors, Governor or courts or anybody else.  I believe it is right that the sheriff should, if possible, maintain order, and maintain the law of the land, and I believe it is also right that an officer who is an arm of the executive in the county should be amenable at least to that executive to the extent of discharging his duty faithfully, and I believe the Governor has the right to suspend him pending impeachment proceedings, and I believe the Supreme Court of Alabama is the proper tribunal to try him. I subscribe fully to this doctrine, but I also subscribe to the principle that the sheriff has the right to succeed himself, and that the people of any county have the right to reelect him, not in a spirit of compromise. I have never yet, in all my life, subscribed to anything that was a compromise of what I believed to be right, and I believe that the majority report upon this question, which is the same as that contained if the Article on the Executive Department is right. I also believe in the right of the sheriff to succeed himself if the people want him.

MR. JONES (Montgomery)‑ I favor the amendment which has just been offered, because I see no particular detriment to the public welfare if it becomes a part of the Constitution. I have no other reason. There has been wide difference of opinion among the members of the Convention as to the wisdom of certain provisions which are now in the Constitution regarding the responsibility which sheriffs shall incur, and the manner in which the Governor may deal with them. I am not one who is opposed to the compromise of policies. While I would not compromise with the sheriff, 1 am perfectly willing, in order to remove this question from further debate, and to satisfy the members of the Convention to vote for this amendment, with the understanding, as I believe it is with many of them that if it is adopted, it will end the differences in this body.

MR. LOWE (Jefferson)‑ Should there not be some provision, then, in case a sheriff should be a candidate for re-election, the sheriff being returning officer and also having charge of every box in the county, limiting the power of the sheriff where he himself is a candidate for re‑election?


4021

CONSTITUTIONAL CONVENTION, 1901

MR. JONES‑ My impression is, though I have not looked at the Statutes, that the laws have already provided, when the sheriff is a candidate, that some one else should be selected in his stead.

MR. ESPY‑ He has not been a candidate, and could not be under the law, but where he is interested, that is the law.

MR. JONES‑ That would be a matter of legislation, and there would be no objection to putting it in the Constitution.

MR. LOWE‑ That is the objection that I have to the amendment— the fact that there is no provision made by which the sheriff is disqualified. Isn't it a fact that there is an exception made now in the law by which the Probate Judge cannot act as a supervisor when he is interested, and that there is no such exception to the sheriff?

MR. JONES‑ That is because the sheriff, as my memory has been refreshed, cannot be a candidate to succeed himself, but the general provisions of all our laws is that when an officer is interested, some substitute is provided, but there would be no objection, certainly on my part, if necessary, to put a provision in the Constitution to cure any defect on that subject. That is my reason for favoring the amendment.

MR. BURNS‑I have an amendment to amend by adding after the word "sheriff" the words "and Probate Judge."

THE PRESIDENT‑ The question will be on the adoption of the amendment to the amendment.

MR. BAREFIELD‑ The Probate Judge can succeed himself. Therefore, I move to lay the amendment on the table.

MR. COLEMAN‑- President, I must dissent from the amendment offered and now pending before this Convention. I never thought it was a wise policy to try to remedy one wrong by doing another wrong. We have been acting under the present law for many years, and it has worked well, and the people who have been intimate with sheriffs, particularly the solicitors of this State, are universally of the opinion, I think, that if you allow a sheriff to succeed himself, you, might as well give him a perpetual office in this State. There are several reasons why a sheriff should not succeed himself. One is be can entrench himself so that you can not get him out, and then where an officer handles public money, and other people's money, he ought to be brought to an account sometime or other.

MR. SANFORD (Montgomery) ‑ I would like to ask the gentleman what right a sheriff should have to succeed himself, under an Article on Impeachment, when you are punishing them for crimes?


4022                  

OFFICIAL PROCEEDINGS

MR. COLEMAN‑ My only answer is, that is the amendment offered by the gentleman from Monroe, and that is up for discussion, and that is what I am discussing; I hope that is satisfactory. That is my understanding of it.

MR. BAREFIELD‑‑I would like to ask the gentleman if a Probate Judge does not handle quite a lot of money.

MR. COLEMAN‑‑ It has been the rule from time immemorial, that judicial officers did not occupy the same place, and in most of the States and countries they hold office during life, or for good behavior, and Probate Judges settle up every month, for that matter, but they occupy a different position altogether, and even in case of a Probate Judge, it is almost impossible to defeat one for the second term. Still, it is not so bad. They learn more law and become better qualified, but why should we make this inroad on a custom which has existed so long in this State, and which has given perfect satisfaction so far as I know. I hope the amendment will be tabled, and I make the motion to lay it on the table.

MR. GRAHAM (Talladega)‑Mr. President, I want to speak in behalf of the amendment. I hope the gentleman will withdraw that.

MR. COLEMAN‑I will withdraw that.

MR. GRAHAM‑ The gentleman who has just taken his seat knows very well why sheriffs could not succeed themselves in days past, and he must know that those reasons and conditions do not now exist. Every sheriff is required to give a bond for the faithful performance of his duty, and if he collects money that he does not pay over, he is just as responsible, on that bond, and can be made to meet his obligations as easily, as can a Probate Judge or Tax Collector. As to the objection urged by the distinguished gentleman, you might as well continue him in office forever, or perpetual1y. I want to state that sheriffs have not a monopoly on the line of office holding in this State. I have known men who were not sheriffs to stay in office almost forever. (Laughter).

MR. LOWE--Will the gentleman permit a question?

MR. GRAHAM‑ Just one moment. I want to say, furthermore, when you turn a sheriff out of office, he sometimes succeeds in getting the office of Tax Collector, Tax Assessor or some other office.

MR. LOWE ( Jefferson)‑I would like for the gentleman to explain to the Convention how it would be practicable to provide for peace officers at an election, and returning officers at an election, if the Sheriff is allowed to succeed himself, and I suggest to the gentleman, before he replies, that every other county officer can succeed himself, and in that view it will not do to impose that


4023

CONSTITUTIONAL CONVENTION, 1901

duty on any other county officer, and in addition to that, that Sheriffs' forces as peace officers is already organized for every county.

MR. GRAHAM (Talladega)‑I want to say in reply that the peace officers on election day have nothing to do with the management of the election. Of course there are returning officers not appointed by the Sheriff, but appointed by three county officials, and the statute already provides that in the event any member of the Canvassing Board should be interested in the returns, a third man shall be selected by those who are disinterested to sit upon the Canvassing Board on the day of returns.

MR. LOWE‑ Has it been the gentleman's observation that even in municipal elections the police do not interfere with elections where interested, or that in county elections, the Sheriff's posse does not sometimes interfere.

MR. GRAHAM‑I have had no experience on that line. I think they have been just as fair when Probate Judges wanted to succeed themselves and Circuit Clerks wanted to succeed themselves as they have been on other occasions and I do not see why you should by implication and insinuation say that an election would not be fair because the Sheriff wanted to succeed himself as Sheriff, and not run for the office of Tax Collector instead of Sheriff. That meets the argument of the gentleman. I have had experience and observation on that line, and I believe that the elections would be just as free from intimidations and interference with the Sheriff running to succeed himself, as it would be for a Probate Judge to run to succeed himself, and the statute already provides for all such elections.

MR. COLEMAN‑ May I ask a question? You say that Sheriffs do not succeed. After he has gone out of office, he is elected sometimes Tax Collector or to some other office.

MR. GRAHAM‑I say they usually run for Tax Collector or some other office.

MR. COLEMAN‑ And are not elected.

MR. GRAHAM‑ Some times they are elected.

MR. COLEMAN‑ You say some times?

MR. GRAHAM‑  Certainly.

MR. COLEMAN‑ Only some times they are elected.

MR. GRAHAM‑I said some times they are elected.

MR. COLEMAN‑ You know the reason they run is because they are prevented by law from succeeding themselves as Sheriff, and if they had been in there one term, how can you beat them?


4024                  

OFFICIAL PROCEEDINGS

MR. GRAHAM‑‑‑I have never seen any man who got a taste of it that did not want more and possibly there are some fine illustrations on this floor. (Laughter.)  I say the Sheriff should not be singled out and let it be said of him that he is too dishonest to run to succeed himself, and that every other officer may run to succeed himself.

MR. LONG (Walker)‑Is it not a fact that nearly every State in the Union except Alabama allows the Sheriff to succeed himself ?

MR. GRAHAM‑I do not know, and if the gentleman knows it, let him state it as a matter of fact.

MR. LONG‑ Can he succeed himself in Texas and nearly every other Southern State.

MR. GRAHAM ‑‑ I think so, and if a man is honest enough to be a Sheriff one time, he is honest enough to succeed himself. I therefore move the previous question on the amendment.

On that I call for the ayes and noes.

MR. OPP‑I call for the ayes and noes.

THE PRESIDENT‑ On the call for the previous question?

MR. OPP‑ On the main question.

The main question was ordered.

MR. MULKEY ‑If I am in order, I move to lay the amendment on the table.

 MR. GRAHAM (Talladega)‑And upon that I demand the ayes and noes.

The call was sustained and the roll call resulted as follows:

AYES.

Bethune,

Freeman,

Murphree,

Blackwell,

Glover,

Norman,

Brooks,

Harrison,

Oates,

Browne,

Henderson,

Palmer,

Byars,

Inge.

Phillips,

Chapman,

Jackson,

Reynolds (Henry),

Coleman, of Greene,

Jenkins,

Sanford,

Davis, of DeKalb,

Jones, of Bibb,

Smith, Mac A.,

Dent,

Lowe, of Jefferson,

Spears,

Epsy,

Martin,

Walker,

Fitts,

Merrill,

Watts,

Foshee,

Mulkey,

Williams, of Barbour,

Total‑36.


4025

CONSTITUTIONAL CONVENTION, 1901

NOES.

Messrs. President,

Graham, of Talladega,

Opp,

Almon,

Grayson,

O'Rear,

Altman,

Greer, of Perry,

Parker, of Elmore,

Ashcraft,

Handley,

Pettus,

Banks,

Heflin, of Randolph,

Pillans,

Barefield,

Hood,

Rogers, of Lowndes,

Beddow,

Jones, of Montgomery,

Samford,

Burns,

Jones, of Wilcox,

Searcy,

Cardon,

Knight,

Spragins,

Cobb,

Lomax,

Vaughan,

Cunningham,

Long, of Walker,

Waddell,

Davis, of Etowah,

Lowe, of Lawrence,

Williams, of Elmore,

Duke,

Macdonald,

Wilson, of Clarke,

Eley,

Maxwell,

Wilson, of Washington,

Eyster,

Miller, of Marengo,

Winn.

Ferguson,

Norwood,

Graham, of Montgomery

O'Neal, of Lauderdale,

Total‑49.

ABSENT OR NOT VOTING.

Bartlett,

Howell,

Proctor,

Beavers,

Howze,

Reese,

Boone,

Jones, of Hale,

Renfro,

Bulger,

King,

Reynolds, of Chilton,

Burnett,

Kirk,

Robinson,

Carmichael, of Colbert,

Kirkland,

Rogers, of Sumter,

Carmichael, of Coffee,

Kyle,

Sanders,

Carnathon,

Ledbetter,

Selheimer,

Case,

Leigh,

Sentell,

Cofer,

Locklin,

Smith, of Mobile,

Coleman, of Walker,

Long, of Butler,

Smith, Morgan AS

Cornwall,

McMillan (Baldwin),

Sollie,

Craig,

McMillan, of Wilcox,

Sorrell,

deGraffenreid,

Malone,

Stewart,

Fletcher,

Miller, of Wilcox,

Studdard,

Foster,

Moody,

Tayloe,

Gilmore,

Morrisette,

Thompson,

Grant,

NeSmith,

Weakley,

Greer, of Calhoun,

O'Neill (Jefferson),

Weatherly,

Haley,

Parker, of Cullman,

White,

Heflin, of Chambers,

Pearce,

Whiteside,

Hinson,

Pitts,

Willet,

Hodges,

Porter,

PAIRED.

AYES NOES.

Sloan,

Williams, of Marengo

4026                                          

OFFICIAL PROCEEDINGS

And the motion to table was lost.

MR. COLEMAN‑I have an amendment.

THE PRESIDENT‑ The previous question having been ordered on the amendment, the amendment of the gentleman will not be in order until the amendment offered by the gentleman from Monroe has been disposed of.

Upon a vote being taken a division was called for and upon a further vote of 41 ayes and 40 noes the amendment was adopted.

The Clerk read the following amendment offered by Mr. Coleman: "Amend by adding at the end of the amendment as follows `Provided that sheriffs shall not hold for more than two successive terms.’”

MR. HOOD‑ The Committee ask unanimous consent to accept the amendment.

There being no objection, consent was given.

MR. COLEMAN‑I have another amendment, to strike out the words "of the circuits" in the second line of Section 2.

MR. HOOD‑ The Committee ask unanimous consent to accept that amendment.

Consent was given.

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

MR. LONG (Walker)‑I ask unanimous consent to withdraw the balance of the minority report.

There being no objection it was withdrawn.

Section 3 was read as follows:

Sec. 3. The Clerks of the Circuit or courts of like jurisdiction, of criminal courts, tax collectors, tax assessors, county superintendents of education, county solicitors, coroners, justices of the peace, notaries public, constables and other county officers, mayors, intendents and all other officers of incorporated cities and towns in this State may be removed from office for and of the causes specified in Section 1 of this Article, by the circuit or other courts of like jurisdiction, or criminal court of the county in which such officers hold their office, under such regulations as may be prescribed lay law; provided, that the right of trial by jury and appeal in such cases be secured.

MR. HOOD‑I have an amendment.

The amendment was read as follows: "Amend Section 3 of the report of the majority by striking out the words "County Solicitor" in the third line of the section?


4027

CONSTITUTIONAL CONVENTION, 1901

MR. HOOD‑ This amendment becomes necessary by the adoption of the amendment offered by the gentleman from Greene.  The members of the Committee ask unanimous consent to accept the amendment.

Consent was given and the amendment was ordered.

MR. HOOD‑I move the adoption of Section 3.

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

Section 4 was read as follows:

Sec. 4. The penalties in cases arising under the three preceding sections shall not extend beyond removal from office, and disqualifications from holding office, under the authority of this State, for the term for which he was elected or appointed; but the accused shall be liable to indictment and punishment as prescribed by law.

MR. HOOD‑ This is identical with the old Constitution and I move its adoption.

Upon a vote being taken the section was adopted.

MR. HOOD‑I move that the article be engrossed and ordered to a third reading.

MR. WADDELL‑I call the gentleman's attention to the fact that Section 2 of the Article, it says "Solicitor of the Circuit."

MR. HOOD‑ That has been stricken out.

Upon a vote being taken the motion to engross and order to a third reading was carried.

The Clerk read the following ordinance accompanying the report of the Committee on Impeachment

Whereas, ample provision is made by law for the impeachment, and

Whereas, it is contrary to the policy of this government that any part of the powers of one department should be exercised by an officer of another department, and

Whereas, it is contrary to the spirit of our institutions that any person should be punished before trial,

Now, therefore, be it ordained by the people of Alabama in Convention assembled, that the following part of Section 28, of Article V, adopted by this Convention be, and the same is hereby annulled, to wit: And the Governor when satisfied after hearing the sheriff that he should be impeached, may suspend him from office until the impeachment proceedings are decided.


4028                  

OFFICIAL PROCEEDINGS

MR. JONES (Montgomery)‑I understand that after a conference with a great many of the members on the vote that has just been had, that would not be insisted upon, and I therefore move to lay it on the table.

MR. COLEMAN‑I do not think that that is right, and I ask that the gentleman withdraw it.

MR. JONES‑ What is not right?

MR. COLEMAN‑ To lay that on the table. I do not know who they have had a conference with.

MR. JONES‑ If that isn't the understanding they will vote it down.

MR. COLEMAN‑ It is a matter for discussion.

MR. JONES‑I regret not to be able to favor the gentleman. I insist on the motion to lay it on the table.

MR. COLEMAN‑ Certainly the Committee has a right to be heard on its own resolution.

THE PRESIDENT‑ The delegates will please be in order and be seated.

The Chairman of the Committee did not ask for recognition, and the gentleman from Montgomery was recognized by the Chair, and he submits a motion to lay this ordinance on the table, which is not debatable.

MR. HOOD‑I do not care to debate it, Mr. President, but I want to make a simple statement, that I had no such understanding.

THE PRESIDENT–The gentleman is out of order. The question is not debatable.

MR. SPRAGGINS‑I demand an aye and no vote on this question.

The call was sustained.

MR. BROWN‑I call for a reading of the Section reported by the Committee.

THE PRESIDENT— The Section has been read in the hearing of the Convention. The Secretary will again read the Section.

The Secretary again read the Section.

Upon a vote being taken the vote resulted as follows:


4029

CONSTITUTIONAL CONVENTION, 1901

AYES

Messrs. President,

Ferguson,

Palmer,

Altman.

Fitts,

Parker (Elmore),

Ashcraft,

Foshee,

Phillips,

Banks,

Freeman,

Pillans,

Barefield,

Jones, of Montgomery,

Porter,

Beddow,

Jones, of Wilcox,

Reynolds, of Henry,

Brooks,

Knight,

Searcy,

Byars,

Lomax,

Spears,

Cunningham,

Maxwell,

Vaughan,

Davis, of Etowah,

Miller (Marengo),

Waddell,

Dent,

Murphree,

Williams (Barbour),

Duke,

Norman,

Williams (Elmore),

Eley,

Oates,

Wilson (Clarke),

Espy,

O'Neal (Lauderdale),

Winn,

TOTAL— 42

NOES

Almon.

Handley,

Moody,

Bethune,

Harrison,

Norwood,

Blackwell,

Heflin, of Randolph,

Opp,

Browne,

Henderson,

O'Rear,

Burns,

Hood,

Pettus.

Cardon,

Inge,

Rogers (Lowndes),

Chapman,

Jackson,

Samford,

Cobb,

Jenkins,

Sanford,

Coleman, of Greene,

Jones, of Bibb,

Smith, Mac. A.,

Davis, of DeKalb,

Long, of Walker,

Spragins,

Eyster,

Lowe, of Jefferson,

Walker,

Glover,

Lowe, of Lawrence.

Watts,

Graham, of Montgomery,

Macdonald,

Wilson (Washington),

Grayson,

Martin,

Greer, of Perry,

Merrill,

TOTAL— 43

ABSENT OR NOT VOTING

Bartlett,

Cornwall,

Hinson,

Beavers,

Craig,

Hodges,

Boone,

deGraffenreid,

Howell,

Bulger,

Fletcher,

Howze,

Burnett,

Foster,

Jones, of Hale,

Carmichael, of Colbert

Gilmore,

King,

Carmichael, of Coffee,

Graham, of Talladega,

Kirk,

Carnathon,

Grant,

Kirkland,

Case,

Greer, of Calhoun,

Kyle,

Cofer,

Haley,

Ledbetter,

Coleman, of Walker,

Heflin, of Chambers,

Leigh,


4030                                          

OFFICIAL PROCEEDINGS

Locklin,

Proctor,

Sorrell,

Long, of Butler,

Reese,

Stewart,

McMillan, of Baldwin,

Renfro,

Stoddard,

McMillan (Wilcox),

Reynolds (Chilton),

Tayloe,

Malone,

Robinson,

Thompson,

Miller (Wilcox),

Rogers (Sumter),

Weakley,

Morrisette,

Sanders,

Weatherly,

Mulkey,

Selheimer,

White,

NeSnlith,

Sentell,

Whiteside,

O'Neill, of Jefferson,

Sloan,

Willet,

Parker (Cullman),

Smith (Mobile),

Williams (Marengo),

Pearce,

Smith, Morgan M.,

Pitts,

Sollie,

So the motion to table was lost.

MR. PETTUS‑I move the previous question on the ordinance and the amendment.

MR. SPRAGINS‑I want to move the adoption of the ordinance, and on that I move the previous question.

MR. HOOD‑ We would ask the gentleman to that and let the Committee be heard from.

MR. SPRAGINS‑I withdraw the request.

THE PRESIDENT ‑ The gentleman from Madison moves the adoption of the ordinance, and upon that called for the previous question. 'The question is shall the main question be now put.

MR. O'NEAL (Lauderdale)‑And upon that I call for an aye and nay vote.

(The call was immediately withdrawn).

The previous question was ordered.

MR. PILLANS— I rise to a question of privilege.

THE PRESIDENT‑ The gentleman will state the question.

MR. PILLANS‑' There is a question contained in this report as amended, which occurs to many of us as being a vital one, and one upon which there ought to be a large vote cast. There must be in the city of Montgomery, many delegates to this Constitutional Convention who at this moment are not doing their duty, and, I rise to ask the Chair if this house is powerless to bring up the recalcitrant members, in order that their votes may be taken, and that we may know where we stand. We are now acting by a bare majority and it is not just or right that this should be the case. I ask whether or not this house has the authority to bring in the absent delegates.


4031

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT— Where there is no quorum present, the Chair does not know of any rule to require us to send for the absent members.

MR. PILLANS— I move that the absent members be sent for and that no further proceedings be had until they are brought in.

MR. COLEMAN— I suggest that the gentleman is out of order.

THE PRESIDENT— The gentleman from Barbour has the floor.

MR. DAVIS (Etowah)— I move that we adjourn.

THE PRESIDENT— The motion is not in order after the previous question has been ordered.

MR. MERRILL— I thought I had the floor.

THE PRESIDENT— The gentleman has had the floor, but the gentleman from Mobile arose to a question of privilege, which the Chair discovered was not exactly a question of privilege.

MR. MERRILL— This ordinance has received most careful consideration by this Committee. On account of the previous action of the Convention we gave it more than ordinary consideration, and voter Committee decided, Mr. President, that the provision which has been formally adopted by this Convention is undemocratic, and therefore think that the Convention ought to reverse its actions, and that this ordinance should be adopted.

MR. O'NEAL‑ May I ask the gentleman a question?

MR. MERRILL‑ Not at present.

MR. O’NEAL‑ You will not answer a question then?

MR. MERRILL‑ I will answer the question directly.

THE PRESIDENT ‑The gentleman declines to yield.

MR. MERRILL— Here we have, Mr. President, an officer, one of the executive officers of the State of Alabama elected by the people of the county and put into this office of trust and importance, and to let another arm of the government, or another officer, the head of the Executive Department, suspend or take from him, even though it be for a day,  an office that the people of the county have given to him we consider undemocratic, and it was improper to put it in this Constitution. The people of the county select and the people of the county elect, the sheriff. It is from there that he receives this office, and we think that nobody – not even the Governor, the head of the Executive Department ought to be authorized to take the office from him for any length of time. He ought to be placed in the same category as any other


4032                  

OFFICIAL PROCEEDINGS

officer; that is, he should have a trial according to law, before the office is taken from him for any length of time. Suppose he is suspended by the Governor, the Governor being human, would naturally, like the balance of us, desire that his action be sustained, and he would virtually become in a measure a prosecutor for the purpose of seeing that the suspension that he had ordered was determined to be proper and right.

Then, another thing, Mr. President; how long a time is he to be suspended? What is to become of his office, and the emoluments of the office, during the time that he is suspended. It may be but a short time, or it may be on account of the law's delays a long time, and during that time, without a trial, this Constitution authorizes the taking away of the office that the people have given him.

Then another great maxim of the law is that the law throws around every man that is charged with an offense the presumption of innocence. That presumption ought to follow the sheriff as it does every other man that is charged with an offense, but if you allow the Governor, as is provided by the ordinance on the Executive Department, to suspend the sheriff, the presumption is reversed, and becomes a presumption of guilt before he is tried, and he is presumed to be guilty before the verdict of the court authorized by law to try him is rendered. Therefore, although it was a delicate matter, and although the Convention had acted upon it, otherwise, yet after due consideration, the committee thought that upon a reconsideration of this important matter, the Convention would come to the same conclusion as this committee, and agree with the committee that the ordinance ought to be passed.

THE PRESIDENT‑ The question is upon the passage of the ordinance.

MR. O'NEAL‑ I call for an aye and no vote.

MR. DUKE‑I call for a reading of the ordinance.

THE PRESIDENT— It has been twice read, and the Chair will decline to have it read a third time.

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

AYES

Almon,

Coleman, of Greene,

Heflin, of Randolph,

Bethune,

Davis, of DeKalb,

Hood,

Blackwell,

Eyster,

Inge,

Browne,

Glover,

Jackson,

Burns,

Graham, of Montgomery,

Lowe (Jefferson),

Cardon,

Grayson,

Lowe (Lawrence),

Chapman,

Greer, of Perry,

Macdonald,

Cobb,

Handley,

Martin,


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CONSTITUTIONAL  CONVENTION, 1901

Merrill,

Pettus,

Walker,

Moody,

Samford,

Watts,

Norwood,

Sanford,

Williams (Barbour),

Opp,

Smith, Mac. A.,

Wilson (Washington),

O'Rear,

Spragins,

TOTAL‑38

NOES

Messrs. President,

Foshee,

O'Neal (Lauderdale),

Altman,

Freeman,

Palmer,

Ashcraft,

Graham, of Talladega,

Parker (Elmore),

Barefield,

Harrison,

Phillips,

Beddow,

Henderson,

Pillans,

Brooks,

Jones, of Montgomery,

Porter,

Byars,

Jones, of Wilcox,

Reynolds (Henry),

Cunningham,

Knight,

Rogers (Lowndes),

Davis, of Etowah,

Lomax,

Searcy,

Dent,

Long (Walker),

Spears,

Duke,

Maxwell,

Vaughan,

Eley,

Miller (Marengo),

Waddell,

Espy,

Murphree,

Williams (Elmore),

Ferguson,

Norman,

Wilson (Clarke),

Fitts,

Oates,

Winn,

TOTAL‑45

ABSENT OR NOT VOTING

Banks,

Hinson,

O'Neill (Jefferson),

Bartlett,

Hodges,

Parker (Cullman),

Beavers,

Howell,

Pearce,

Boone,

Howze,

Pitts,

Bulger,

Jenkins,

Proctor,

Burnett,

Jones, of Bibb,

Reese,

Carmichael, of Colbert,

Jones, of Hale,

Renfro,

Carmichael, of Coffee,

King,

Reynolds (Chilton),

Carnathon,

Kirk,

Robinson,

Case,

Kirkland,

Rogers (Sumter),

Cofer,

Kyle,

Sanders,

Coleman, of Walker,

Ledbetter,

Selheimer,

Cornwall,

Leigh,

Sentell,

Craig,

Locklin,

Sloan,

deGraffenreid,

Long (Butler),

Smith (Mobile),

Fletcher,

McMillan (Baldwin),

Smith, Morgan M.,

Foster,

McMillan (Wilcox),

Sollie,

Gilmore,

Malone,

Sorrell,

Grant,

Miller (Wilcox),

Stewart,

Greer, of Calhoun,

Morrisette,

Studdard,

Haley,

Mulkey,

Tayloe,

Heflin, of Chambers,

NeSmith,

Thompson,


4034                  

OFFICIAL PROCEEDINGS

Weakley,

White,

Willet,

Weatherly,

Whiteside,

Williams (Marengo).

And the ordinance was lost.

MR. JONES (Montgomery)‑I move that we adjourn.

The Convention thereupon adjourned.

________

CORRECTIONS.

In the sixty-eighth day's proceedings in the remarks of Mr. Merrill, third column, first page, in lines 62 and 64 from the bottom of the column, the word "innovation" should be corrected to read "novation."

In the remarks of Mr. Browne, in the proceedings of the sixty-seventh day, on third page, commencing in the third column, in the twentieth line from the top of the column, the word "article" should read "amendment." In the seventy-seventh line, the word "and" should read "was."

In line one hundred and twenty-eight, commencing "Mr. Oates" down to "principal," in the 141st line, should be stricken out. In line 35 from bottom of fourth column. the second "this" should be "that." In line 26 from bottom, "then that" should read "if so," and in line 8 from bottom, "could" should read "should."

In fifth column, "that Committee is up" should read "that Committee's report is up."

In 25th line "engrossed" should be "engrossment." In 28th line erase "that" and add "I will move to take Section 5 from the table. The proposed amendment." In 36th line should read "Section 5. Article XI." In 60th line erase would be and make it read "was ordered to." In line 32 "motion" should be "amendment."

In line 94 "there" should read "which."

In line 97 strike out "if we" and make it read "to;" in the same line "words" should be "section."

In lines 100 and 101, strike out "and therefore."

Commencing in line 17, it should read:

"MR. BROWNE‑ That leaves Section 5 the only remaining section of the report of the Committee on Taxation.  That is exactly as the section in the present Constitution, except that in this proviso, "provided, further, that to pay any debt or liability now existing," etc., after "bridges," "roads" is included; "roads" was not in the other Constitution. "Any county may collect," etc., for road;" is not in the present Constitution, as there is no pro‑


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CONSTITUTIONAL CONVENTION, 1901

vision for collecting a special tax for roads. Neither is there a limitation upon the amount of tax that can be levied for public roads and buildings. In the Code there is a statutory limit upon the amount that can be levied for public buildings at one-half of one per cent, but no limitation to the amount to be levied for roads.  A county in the State of Alabama can, under the existing law, levy 10 per cent, or any per cent it wants under the Code for bridges. The committee thought it best to include roads along with bridges for which a special tax can be levied and limit the amount of taxation for public buildings, bridges and roads to one-quarter of one per cent, whereas now there is no limit for buildings and bridges. That is the only change made in that section.

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

MR. WATTS ‑ Have you not made another change which you neglected to state in the eighth line by leaving out after "bridges" "or other ordinary purposes?"

MR. BROWNE‑ Yes, because, as we understood, there were no such debts created that now existed for ordinary county purposes. This is provided to pay for the construction and maintenance of public buildings or bridges. We left out "or other ordinary purposes." It was considered by the Committee that there were no debts for other county purposes for which special taxes could be levied.

_______________