SEVENTIETH DAY

_______

MONTGOMERY, ALA.,

Tuesday, Aug. 13, 1901.

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

Upon a second call of the roll ninety-seven delegates responded to their names.

Leave of absence was granted to Mr. Reese of Dallas for yesterday.

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

MR. HANDLEY‑I ask unanimous consent to offer a short resolution.

Unanimous consent was accorded.


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The Secretary read the resolution as follows:

Resolution 297.

Resolved, that if in the future, a quorum be not present at roll call, all members absent without sufficient excuse, to be determined by the Chair, shall be fined $5 each.

MR. HANDLEY‑I move a suspension of the rules, that the resolution be submitted to the Convention.

Upon a vote being taken, a division was called for, and a further vote being taken, there were thirty-two ayes and fifty-three noes, and the Convention refused to suspend the rules.

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

MR. COLEMAN (Greene)‑I believe that this is the proper time, Mr. President, to take up a question of reconsideration where notice was given yesterday. Mr. deGraffenreid being called away by sickness and cannot be here, has requested me to bring up his motion to reconsider the vote by which the report of the Judiciary Committee was engrossed and ordered to a third reading yesterday. I do not know what views he would express if he were here but as I favored his view of the section in regard to solicitors, I will proceed to discuss it and express merely my own views.

MR. GRAHAM (Talladega)‑I understand that the gentleman makes a motion at this time to reconsider the vote by which the article on judiciary was read a third tune, and passed and sent to the Committee on Harmony?

THE  PRESIDENT ‑ That is the understanding of the Chair.

MR. COLEMAN– Mr. deGraffenreid gave notice yesterday that he would move to reconsider, and he is not here, and requested me to do so.

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

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

MR. GRAHAM (Talladega)‑That a motion was made to reconsider the Article when it was ordered engrossed as an Article and this Convention refused to reconsider the Article at that time, and under the rule, no question shall be twice reconsidered in this Convention.

MR. COLEMAN‑I do not think that the gentleman is correct in his statement.  There was no action taken yesterday upon his motion to reconsider.


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MR. GRAHAM‑I appeal to the journal. It was on last Thursday that the Article was ordered engrossed, and the journal will show that this Convention refused to reconsider the Article as an Article at that time‑ I appeal to the journal.

MR. COLEMAN‑ It was only read yesterday, reported by the Committee on Engrossment, read yesterday and adopted.

MR. GRAHAM‑ When it was ordered to be engrossed, is what I am talking about.

THE PRESIDENT‑ The gentleman from Greene possibly intends to apply his motion to the vote whereby the article was adopted, and referred to the Committee on Order, Consistency and Harmony of the whole Constitution. It had been previously ordered engrossed and to a third reading.

MR. GRAHAM‑ And when it was ordered engrossed, if the President please a motion was made to reconsidered the vote by which it was so ordered, on the whole article and this Convention refused to reconsider it. I submit that there has been no change in that article since that time, and that it is the same article which they refused to reconsider, and under the rules of this Convention, it cannot be reconsidered again.

MR. COLEMAN (Greene)‑Mr. President there is quite a difference between that and the adoption of the article, on the vote by which it was adopted yesterday. There has been no motion made upon that. Certainly we did this in one case before, and it is before the Convention. In fact, I believe in framing of the Constitution, no rule should prevent the Convention from doing‑

THE PRESIDENT‑ The Chair will hear from the gentleman from Greene on the point of order.

MR. GRAHAM‑ Rule 27 is the one I have been trying to call to the attention of the Chair.

MR. COLEMAN‑ There is quite a difference between a vote ordering to a third reading and the adoption of an article. It was adopted yesterday and the motion is to reconsider the vote whereby it was adopted, but independently of all that, Mr. President, if this Convention should see proper to correct any of its rulings before the final adoption and determination, it should be within its power to do so. I do not know what the Convention will do. We are frequently cut off here from discussing questions by the rules of the House.  Many members would rather express their views sometimes, whether right or wrong, and I for one (And I believe I represent a great many others) would rather have the question disposed of upon its merits, than by any ruling of the Chair, which takes away from members the consideration of any question on its merits. As stated before, I am not versed in parliamentary


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law and I do not expect to become so versed, but I do know what is right, and that is all we desire in this matter. I made no motion, but I was requested to represent the gentleman from Hale, and I think he is entitled to a hearing by this Convention. There can be no similarity between the vote to adopt and the vote to order to a third reading, and engrossment, and I do not think the point of order is well taken.

MR. GRAHAM‑ I desire to be heard.

THE PRESIDENT‑ Certainly the gentleman will be heard.  The Chair will ask the gentleman from Talladega to address himself to this point; ordinarily, any vote in the Convention may be reconsidered. You may reconsider a vote on final adoption of the article, or a section, or you may reconsider a vote on the adoption of any amendment. Now the vote whereby this article is ordered engrossed and to a third reading, was a separate vote from the vote whereby it was finally passed. The gentleman from Talladega is entirely correct in saying that a motion to reconsider the vote was made whereby this article was ordered engrossed and to a third reading, and the Convention voted it down, or laid it upon the table, the Chair does not recollect which. Now the article is engrossed and comes up for final passage. It has been ordered to a third reading and the right of amendment is thereby cut off.  Now, when it comes up for final passage, the Convention may either accept or reject it.  The vote was taken upon that question, as to whether the article should be accepted or rejected, and the article was passed. I understand the gentleman from Greene now moves to reconsider the vote whereby the article was passed. The Chair does not recollect that any motion to reconsider that vote has been made or submitted. He will hear from the gentleman from Talladega on that point.

MR. GRAHAM (Talladega) ‑ If the motion has not been made to reconsider, then all of this discussion of the question would be out of order.

THE PRESIDENT‑ No motion had been made up to the time the gentleman from Greene entered it. That is the point. The Chair would like to hear from the gentleman from Talladega.

MR. GRAHAM‑I beg the indulgence of the Chair that I may reply to a few remarks made, by the way, by the gentleman, in arguing his point and in his pleading ignorance of parliamentary law. I am satisfied that the Convention appreciates the modesty of the gentleman and will excuse him on that ground. Now then as to the point to which the Chair invites my remarks, I submit, in this case, is a distinction without a difference. The vote by which this article was ordered engrossed.

THE PRESIDENT‑ And to a third reading.


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MR. GRAHAM‑ And to a third reading, and that motion failed. The article was engrossed, reported without change, and put upon its passage in this Convention and was overwhelmingly adopted. There were only two votes against it.

THE PRESIDENT‑ Now the motion is to reconsider the vote by which it was adopted.

MR. GRAHAM‑ The motion is to reconsider the vote by which the article was adopted, being the identical article which was ordered engrossed and which the Convention refused to reconsider before it was engrossed, and I understand the distinguished President to say that after it is engrossed, it is not open to amendment.

THE PRESIDENT ‑ True.

MR. GRAHAM‑ And if after being engrossed, it is not open to amendment, I ask the Convention itself for what purpose, in

reason, could it be reconsidered at this stage?

THE PRESIDENT ‑ It could be rejected.

MR. GRAHAM ‑ It could be reconsidered for the purpose, as I understand the intimation of the President, of rejecting the whole article, and I ask the gentleman if it is his purpose, in making the motion, to reject the article on judiciary? I pause for a reply.

THE PRESIDENT ‑ The point the President wants to hear the gentleman on is not the propriety of doing it, or whether the Convention will or will not reconsider, but whether the motion to reconsider is in order.

MR. GRAHAM‑I am not questioning the propriety of the reconsideration. I ask under the intimation of the Chair if it cannot be reconsidered for amendment, then for what purpose would a reconsideration be. As I understand, the Chair acquiesces that it is for the rejection of the whole article and not for amendment.  Now I come back. When would we cease to reconsider a question?

MR. REESE‑I rise to a point of order. The gentleman is not stating a point of order. He is arguing what might be the effect of a reconsideration of the vote, and arguing on the merits of the proposition to reconsider.

THE PRESIDENT ‑ The Chair was anxious to have the benefit of the gentleman's experience, and called on him to address himself to that point. The understanding of the Chair is that it is competent for the Convention to reconsider any vote, and it may reconsider a number of votes successively, and any vote that the Convention takes is subject to a motion to reconsider. It is true a motion to reconsider a vote whereby this article was ordered engrossed and to a third reading was voted down and cannot again


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be renewed, but this "as a separate and subsequent vote, whereby the article was adopted. Unless the gentleman desires to be heard further upon that point, the Chair is ready to rule.

MR. GRAHAM‑I desire to be heard further and I regret exceedingly that I have not the prescience and grasp in see that I am going astray when it is so readily seen by the gentleman from Dallas, and intimated by the Chair.

THE PRESIDENT ‑ The Chair intimates nothing in the matter.

MR. GRAHAM ‑ Then I withdraw the remarks, as to the Chairman.

MR. OATES ‑ If the delegate from Talladega will allow me a moment on the point.

MR. GRAHAM‑I would be glad to yield a portion of my time.

MR. GRAHAM‑I think the Chair is entirely right as to this motion to reconsider the vote by which the article was finally passed. Now that may be done, but what is the next step? To reconsider the vote by which it was ordered engrossed and read a third time, which is precluded by the former motion to reconsider, which was voted down and laid upon the table. When they reached that point I do not see how they can go any further, but this motion that the delegate from Greene proposes I think is in order.

MR. GRAHAM– Notwithstanding the distinguished authorities (beginning with the gentleman from Dallas), against my proposition, I want to say that we lose sight of the identity of the

proposition and I insist that my point is well taken, because the propositions are identical and the Chair cannot lose sight of the identity of the propositions which are attempted to be reconsidered. That is the point I rest this whole thing upon. If they were separate matters, then I would yield readily, as I may have to do anyway, but I want to say that the doctrine held by the Chair sometime ago of res adjudicate, applies to this question, because of the identity of the propositions, where the engrossed article is the article we adopted. We refused to reconsider the engrossed article, and therefore we refuse to reconsider the adopted article, and I invoke the former ruling of the Chair of res adjudicate.

MR. NeSMITH – I desire to rise to a point of order. The gentleman from Greene voted aye on the proposition, and he cannot move to reconsider.

THE PRESIDENT– The Chair asks to be allowed to rule on the point already made.


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MR. COLEMAN ‑ I stated that the gentleman from Hale made this motion and requested me to represent him in the motion.  I think it is entirely proper. It is often done here.

MR. GRAHAM‑ Mr. deGraffenreid expressly stated on yesterday that he did not make the motion then, but would make it this morning, and he is not here to make it.

MR. COLEMAN ‑ He gave notice he would make it this morning and he asked me to represent him.

MR. GRAHAM‑ And he is not here to make it.

THE PRESIDENT‑ The Chair will rule on one point of order at a time. If this motion was a second motion to reconsider the vote whereby this article was ordered engrossed and to a third reading, the point made by the gentleman from Talladega would be correct, and the Chair would rule it out on the point of order, because under the rule, a second motion to reconsider cannot be entertained. But this is another vote, and a different vote. The article was ordered engrossed and to a third reading, went to the Committee on Engrossment, and was reported back to this Convention. Thereupon it was submitted for final passage, and was passed. It was in order, at that time, for the Convention either to have accepted or rejected the entire article. It is in order now to move to reconsider the vote whereby it was passed and when it comes before the Convention again, if it should be reconsidered, it would be in order for the Convention to accept or reject it, as it might see fit. That point of order is overruled.

Now, the next proposition is that a motion to reconsider can only be  made by a delegate who voted in favor of the Article. Did  they gentleman from Greene vote for the article on its final passage?

MR. COLEMAN – That is my recollection.

MR. NeSMITH‑ I withdraw the point of order.

THE PRESIDENT– Then the question will be upon the question to reconsider the vote upon which this article was adopted. Is the Convention ready for the question?

MR. WATTS‑ And upon that I call for the ayes and noes.

MR. SAMFORD (Pike)‑The gentleman from Greene had the floor and was addressing the Convention.

THE PRESIDENT– The Chair submitted the question to

the Convention, and asked if the Convention was ready for the question. I did not understand that the gentleman from Greene wished to argue the question.


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MR. COLEMAN‑I have been here trying to be heard all the morning, and I do not think it is right—

THE PRESIDENT‑ The Chair will recognize the gentleman from Greene. The Chair did not understand that he wished to discuss the question.

MR. COLEMAN‑I began my remarks, by stating that I do not know the views of Mr. deGraffenreid upon this subject, or what argument he would make, but I wished to express my own, assuring the Convention, at the same time, that whatever it does, in its wisdom, will receive my approbation. But I think it is right and proper that all these important questions be freely discussed, because when this Convention acts and determines the question, it will be too late to remedy any defect. It is very apparent that there are three classes of voters upon this door.  Those who favor the selection of solicitors by the legislature, under the old rule; those who favor circuit solicitors, to be elected by the people; and those who favor county solicitors elected by the people. The convention is divided into those three classes.  Those who prefer solicitors for circuits, to be elected by the people, indicate a preference even for county solicitors elected by the people, rather than circuit court solicitors selected by the Legislature, as heretofore.

Now, Mr. President and delegates of the Convention, in my opinion, we have very good and satisfactory prosecution attorneys throughout this State.  The theory under which they act is this.  That we have a man trained in the law to represent the State at the circuit court where felonies are tried, crimes of a higher character. He has a deputy solicitor in most of the counties, to keep him informed as to jurors and the facts pertaining to the case, but when the important trial comes on, he is there, a trained officer, to represent the State. It seems to me, under the circumstances which exist in this State, the best plan would be to leave it with the legislature to provide holy solicitors should be selected. It is well known that in Alabama there are twelve or thirteen counties which are not Democratic, but there are many good Democrats who live in those counties, who have been faithful to the party, and however much some people may get up here and say they are willing for the Republicans to elect a Republican candidate, if they are in the majority, or the Populites to elect a Populite in their county if they desire it, I for one, and I believe I represent the true Democratic doctrine, prefer if the qualifications are equal,  that we should have a Democrat instead of a man on the opposite side. If vote allow in these twelve or thirteen counties, Republicans and Populists to be elected, you will bind these Democrats hand and foot and turn those counties over to the Re-publicans or Populites. I do not take this position from any sense of partisanship other than I believe it is for the best interests of the State. I know very well if in my county a Democrat was


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running, and they had equal qualifications, we would elect the Democrat, and I believe human nature is the same, and if in a Populite or Republican county you run a Democrat who possesses equal qualifications with the Populite or Republican candidate, the ruling majority would elect the man of their own party. That is the way we do, and that is the way they would do. I do not think, therefore, that we are treating those Democrats right. neither do I think we are promoting the best interests of the State to let so large a portion of it pass from under Democratic rule. My desire and object has been to so act that the Populists will come back to the Democratic party;  to so act that there would be no reason for them to keep up a separate organization, but I think if you send the fatted calf to them, they would stay where they are but if they live on the husks, they will come home. That is one reason, but the controlling reason is this that there are agricultural counties, sparsely settled counties, where you need a good prosecution attorney, and there are cities in this State where the lawless element (maybe that expression is too strong) where those who keep beer saloons and gambling dens will be able to hold the balance of power, and keep from election a man who would prosecute them and enforce the law with vigor. If the Legislature has the power to determine in what counties and in what places the people shall hold an election, and where it is necessary to have a circuit court solicitor, the Legislature will always provide for those counties and those conditions. Take a city that is able to pay the prosecuting attorney a good salary; if it is desirable and for the best interest of the State, the Legislature can provide for the election of a solicitor in that county or it may provide for the election by the people of that county, in its wisdom and in its discretion.

It has been suggested to me that we could not get in an amendment. Mr. President and delegates to this Convention, I will never consent to the proposition until it has been passed by a vote of this Convention that this Convention cannot remedy a wrong if it has committed a wrong.

MR. WALKER (Madison) ‑The present motion is one to reconsider the vote by which the article on judiciary was finally adopted. I desire to ask the gentleman from Greene if he proposes to hold up the entire judiciary article unless a provision on the subject of solicitors is incorporated in it satisfactory to him.

MR. COLEMAN‑ I desire to ask the gentleman whether he prefers circuit solicitors elected by the people or county solicitors?

MR. WALKER ‑ My original preference was for such a method of selection as would not necessitate either the one or the other absolutely, but the Convention has three times acted on the proposition, and I am ready to abide by the action of the Convention.


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MR. COLEMAN – The gentleman's preference was for circuit solicitors. Of course he is willing to abide, as he says, by the action of the Convention. We will all abide by it.

MR. WALKER‑I ask to correct that.  My preference was for circuit solicitors, or solicitors for such territory or subdivisions as might be prescribed by the Legislature, all to be elected by the people.

MR. COLEMAN‑ That is exactly what I said‑ that we were divided into three classes here, the gentleman representing one view and other gentlemen representing another. Now, he asks me what we propose to do afterwards.   If it be important that this defect be remedied, there is no doubt that there is a way to do it.  It can never be said that we are not able to correct our errors if we have made any.

MR. GRAHAM (Talladega)‑ I desire to ask the gentleman a question

MR.  COLEMAN‑‑I do not desire to be interrupted any more. The gentleman's arguments partake of a personal character in a way more than they bear upon the merits of the question.

MR. GRAHAM (Talladega)‑ I shall not ask a personal question at all.

THE PRESIDENT‑ Does the gentleman yield.

MR. COLEMAN– I never have refused to yield.

MR. GRAHAM‑I understand the gentleman to say that he would not be satisfied until this Convention had expressed itself on this matter, or words to that effect. I want to ask the gentleman if we have not lead four distinct votes relating to this proposition.

MR. COLEMAN– I do not know. I was unfortunately sick when this question first came up, and had no opportunity to hear the discussion or express myself upon it, and we have invariably been cut off since. I wish it to go out how I feel and to have my views upon this question known. I believe we are making a great mistake. I do not intend to be responsible for it, and I do not say it is a mistake, but I think the Legislature ought to be able to provide and should be entrusted with the power of providing, how solicitors shall be selected. In some places they can safely submit it to the people; in other places they can elect those themselves an element would arise which they were not willing to trust with the enforcement of the law. Those are my views about it, and surely we can right it if we have done anything wrong.

MR. HEFLIN (Chambers)‑‑I heartily indorse what the gentleman from Greene has said upon this subject. I do not think


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that I violate any rule of this Convention, or of propriety, when I say that I am a Democrat and believe in the Democratic idea of government, and that I am proud that the State of Alabama is under Democratic rule. I want to suggest to members who are in the majority upon this floor, the Democrats that they are opening a way in a good many sections of this State to those who do not believe in the Democratic idea of government. They will turn over a good many counties in this State to the Republican party, and I want to say that, believing as I do, as a Democrat, I would not vote in this Convention for any measure that would take authority out of the hands of the party I love, and to whose principles I cling, and place it into the hands of others. I will never record my vote on that line. This radical departure, Mr. President, from the manner heretofore employed in the selection of solicitors is dangerous.

MR. GRAHAM‑I rise to the point of order that the motion is to reconsider the vote by which the entire Article on the Judiciary was adopted, and that discussion on any particular section is not in order, because it is not open to amendment on any particular section. I did not raise that point on the gentleman from Greene, but I desire to raise it at this time under the intimation of the Chair in his ruling on my first point of order.

THE PRESIDENT‑ It is true that no particular section is before the Convention and the Convention can only consider and vote upon the entire Article, but some section or sections of the Article might be so objectionable as to lead a delegate to vote against the entire Article, and, therefore, it seems to the Chair that it would be proper for a delegate in discussing the general subject, to point out objections that he has to particular portions of it.

MR. GRAHAM‑ In reply to that point, I desire to state that there were only two votes against the adoption of this Article yesterday, and I do not believe that the gentlemen who have discussed it heretofore were those two.

THE PRESIDENT‑ But the object of reconsideration is to give a man a chance to change his mind. He might vote for its adoption upon the first vote and then wish to vote against it upon a reconsideration.

MR. HEFLIN‑I appreciate the interest my distinguished friend is taking in wanting to shut off debate on this question.  He is one of the most enthusiastic of all the delegates in this Convention to make this radical departure and to get away from the selection of solicitors by the General Assembly and my mind goes back to the time when the distinguished gentleman himself was a candidate before that obnoxious body; when slates then were not offensive and obnoxious to the gentlemen from Talla‑


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dega; when he submitted his claim to a Democratic caucus in this hall, and when that caucus saw fit to select another, I submit the peer of the gentleman, and, in my judgment, a better lawyer. Now, Mr. President, I do not see why, if the gentlemen think their cause is just, they should not rise up here and be liberal, and say to this Convention, "We are willing for you to consider it again; if you can convince  the delegates in this Convention that you are right and we are wrong, we are willing to open the gates and turn you into this Democratic field, and allow you to bring out the objectionable feature here and convince us that you are right and that we are wrong.

The idea of electing the solicitors by the people, in my judgment is wrong. They say, and the gentleman has argued it, that it costs the State of Alabama so many more hundreds or thousands of dollars than the solicitors make. I submit that it has never been the low and groveling purpose of Alabama to make money-making machines out of its prosecuting officers. When the Governor of the State offers a reward for a man who shoots downs one of his fellows, he does not offer that reward to bring money into the coffers of the treasury of Alabama. He offers that reward to bring the guilty man to the bar of justice that he may be punished, to suppress crime and to strike off the fetters of our civilization and morals, that we play rise higher, and grow and become stronger and gander in this great State, and I spurn the idea of dollars and dimes coming from the prosecuting officers of the State into the treasury of Alabama.

MR. GRAHAM (Talladega)‑Is it not a fact that the State of Alabama, by statute, now puts a premium on the solicitor who earns more than his salary by giving him a certain commission on  the fees earned in excess of his salary?

MR. HEFLIN– There are only about four in the State that I believe make it.

MR. GRAHAM– And did not your solicitors make a premium last year by earning more fees than their salaries?

MR. HEFLIN– Possibly so; four out of thirteen, but that is a very small matter. They are now on a salary. They are elected by the General Assembly. The solicitor who stands up and does his duty prosecuting criminals before the jury does not have to go to those people and beg them to elect him to office. He goes to Montgomery and submits his claim to whom? To the members of the General Assembly. They come up here from all over the State, and if some man is in there, even from his own county, who has a knife up his sleeves, and this particular candidate will let the State at large know the circumstances, and will show them that he has discharged his duty, and that this man


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wants to defeat him on that account, the State at large will nominate him.

Now, Mr. President, I did not intend to say as much as I have upon this question, but I want to see a fair, open discussion. I want to see us stand together here as Democrats. We are in the majority. Some gentlemen squirm, it is true, and tremble when you mention the name of that party that our fathers love, but, Mr. President, in every State of the Union, the party in power carries out its ideas along this line, and it is just and right. In conclusion, I will say I trust these gentlemen will not become offended because we mention the Democratic party in connection with our discussion.

MR. ASHCRAFT‑ We will not become offended with the distinguished gentleman from Chambers because he mentions the Democratic party in connection with this subject. I suggest that we do not think he has a monopoly on that party.  We are very glad to know of the conversion of our friend from Chambers.  When the question first came up, the other morning, if I mistake not, it was he, before any member of the Judiciary Committee could get recognition from the Chair, that moved the previous question upon the proposition. He has suddenly become converted, when he sees that the body of the Convention after two long debates, needs discussion. He has suddenly become converted that debate is a good thing.

MR. SAMSON (Pike)‑May I ask a question?

THE PRESIDENT‑ Will the gentleman yield?

MR. ASHCRAFT‑ No, not at this moment.

MR. SAMFORD‑ Mr. President—

THE PRESIDENT‑ For what purpose does the gentleman rise ?

MR. SAMFORD (Pike) ‑ I desire to ask the gentleman a question.

THE PRESIDENT‑ The gentleman has declined to yield.

MR. HEFLIN‑ Mr. President, I desire to—

THE PRESIDENT– Will the gentleman yield to the delegate from Chambers?

MR. ASHCRAFT‑I have once declined.

MR. HEFLIN‑I want to make a correction.

MR. ASHCRAFT‑I will yield to the gentleman to make a correction.


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MR. HEFLIN‑I did move the previous question, not knowing the Convention wanted to discuss it, but was liberal enough to withdraw and allow the gentleman to inflict a speech upon the Convention.

MR. ASHCRAFT‑ We all remember how he withdrew the motion for the previous question, the Convention remembers well.  We are told, Mr. President, what a nice system it is to have these Circuit Solicitors going around, having Deputy Solicitors finding out all the facts, and when the Circuit Solicitors come how the deputy furnishes the facts and the guilty are brought to justice.  I want to state we are told that the poor counties can only employ deputies because they are not well enough off to employ Solicitors, and if even do not have this great Circuit Court Solicitor system, that crime in the poor counties would go unwhipped.  Well I remember one of the poorest counties in the State, and I remember they have one of these Solicitors and I asked the delegate whether or not the Solicitor came into his county, and he says he has not been there since they had the County Solicitor.  Now that same Circuit, of which that poor County forms a part, last year paid into the State Treasury the immense sum of three hundred and thirty dollars. The Circuit Solicitor I know did not go into that County and I am reliably informed that he did not go into another County in that Circuit where they have a County Solicitor. I received a letter yesterday from a true-blue Democrat, a man that is as loyal to the cause as is any man in Alabama, who resides in one of the poor counties, and he said “the men of this County want to congratulate you on a victory for the people. They are with you. The people from these two counties now conduct their criminal business at less expense than when visited by the Circuit Solicitors."  Gentlemen, we have an effete system. The Judiciary Committee has brought in a report here which will enable our people in the future to effect a complete system of judiciary, if we adopt this proposition. We have adopted it about four times, and if we hold to it, we will be able to effect that revision, but if we amend the proposition every time the legislature attempts to accomplish anything along the line of economy, there will be a lobby of Solicitors here resisting it at every step, and taking advantage of every opportunity to prevent reform. When this Convention was acting under first impressions, its virgin thought, this proposition was carried overwhelming, as you all know. Later, you know what has occurred, and you leave seen the struggle carried on here.

Now what is to be accomplished by reconsidering the vote?  The President tells you that the article will not be open to amendment. Then you cannot affect the Solicitors by reconsidering the vote. What are you going to do? The only thing, you can do as


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the Chair tells you, is to defeat the whole Article. Then you have no Article on Judiciary, and you have to go over the whole business again. Do you want to stay here until frost, or stay here forever? Have we not considered this subject, given it as much consideration, as much time and devoted as much debate to it, as the subject is worthy of?

We have already taken up nearly as much time with this one subject as we did with many other very dignified subjects.

THE PRESIDENT‑ The time of the gentleman has expired.

MR. PETTUS‑I have always been taught that one of the fundamental tenets, one of the fundamental principles of Democracy, is local self-government. It seems to me that the orators who are ringing the changes of the Democratic party upon the discussion of this question have neglected one of the fundamental principles in that great party to which the majority of the delegates on this floor belong. They seem to be going on the presumption, which I hope is a correct one, that the General Assembly of this State will always be in touch with the Democratic party.  They seem to be going on the theory that if solicitors are elected by the General Assembly of the State, that they will always be elected by a Democratic General Assembly. I submit that we have no prophets here, and no man can look in the future for the next twenty-five or thirty years and say that a General Assembly of some other political party might not some day be in power, or that at least the political parties may not when the suffrage is relieved of its incubus be so divided that there might be some question about whether or not Democratic solicitors would be elected, fifteen or twenty years from now, by the General Assembly, for the different circuits or different counties which they would provide.  It seems to me that we have had this question up, have discussed it pro and con, and the Convention has acted upon it some four or five different and successive times, and every time they have shown by their votes that they desire the solicitors to be elected in their counties by the vote of the people of those counties. Now it is claimed here, Mr. President, by some delegates, that this would not be safe, and that we cannot trust the people in the different counties to elect their solicitors. The people elect their Sheriffs and elect their Probate Judges and I submit if it is right that the General Assembly should elect their solicitors in order that the solicitors might be Democrats in all the counties, and you follow that argument out to its logical end, the General Assembly should elect the Sheriffs and Probate Judges in every county in the State and every other county officer forsooth because some counties in the State are Republican or Populist. It would destroy the whole system of Democracy and the whole system of self government. I am one of the men, Mr. President, while I am a Democrat, have always been a Democrat and expect always to be one,


4050                  

OFFICIAL PROCEEDINGS

am not one of those who absolutely distrusts the people. Some suggestions have been made by delegates, the gentleman from Greene for one, that; he hopes to see those people welcomed back to the ranks of the Democratic party.  I say to you if you want to see them come back, the policy to pursue is, to show them that you trust the people and extend to them the same right of self government, and win them back by fair method, and show them that they shall have some voice in electing their local officers, prosecuting or otherwise. It seems to me also that this discussion is not in place at this time, because it has been stated that it is well known that no amendment will be in order if the question is reconsidered, and certainly, Mr. President

MR. COLEMAN (Greene)‑ May I ask the gentleman a question?

THE PRESIDENT‑ Will the gentleman yield?

MR. PETTUS‑ Yes.

MR. COLEMAN‑ Would not this Convention have the right to recommit this article to the Committee on Judiciary, if it saw proper to do so?   

MR. PETTUS‑As I understand the parliamentary status if the question is reconsidered, the Convention will have the right to reject the whole article. It has been ordered to a third reading, and engrossment, and motion to reconsider this vote has been laid upon the table, and so I do not think it would be in order for the article to be recommitted. The only thing the Convention could do, would be to defeat the entire article on judiciary, because some section of that article does not please some member who favors circuit solicitors being elected by the General Assembly, and perchance they would rather vote down the entire article on judiciary, because a certain part does not please them. This question has been settle by four or five distinct test votes in this Convention, but they are not willing to abide by the action of this Convention under the rules by which you have been acting for two or three months. I am opposed to the reconsideration of the article.

MR. OPP– I do not desire, Mr. President, to make a speech, and if I were permitted to explain my vote, I would remain entirely silent upon this question. Mr. President, in behalf of the Democracy of Covington county, I beg to enter my solemn protest against what I conceive to be a piece of midsummer madness.  I don’t believe, Mr. President, that this Convention should depart from the time honored mode of selecting solicitors who are to represent the Commonwealth of Alabama. While I esteem the Republicans and Populites upon this floor as highly as any man, I for one am unwilling to let it go abroad that they have dictated the policy of the great Democratic party upon so important a mat-


4051

CONSTITUTIONAL CONVENTION, 1901

ter as this. It is matter of record, Mr. President that reconsideration of this vital proposition failed the other day upon a vote of fifty to fifty, from the fact that the solid phalanx of opposition to the Democracy voted in favor of introducing this innovation. If, sir, it had been bruited or supposed in Covington, if the Democracy in that county had understood when they sent their delegate to the Constitutional Convention, that the Populists and Republicans who we have been fighting tooth and toe‑nail for so many years- recognizing the effect that their action would have upon the future of the Democracy, would be allowed to hold and yield the balance of power in this hall, why, sir, they to a man would have registered their opposition by their votes to their assembling of this Convention. I do not believe that the Democracy of the State of Alabama should permit the Populists and Republicans, however much we might esteem there personally, to dictate to or shackle to any extent or any degree the policy of the great Democratic party of Alabama.

MR. FITTS (Tuscaloosa) ‑Will the gentleman permit an inquiry?

MR. OPP‑ Not at present ‑after a while, I will hear the distinguished gentleman. I want to emphasize that fact, that if there are those in this Convention in whose veins the tides of Democracy course freely and strongly, I ask them in behalf of the Democracy of Covington County not to allow Republicans and Populites to rule to any extent the Democratic party of Alabama. It is merely a question of arithmetic ‑fifty to fifty‑ a clear and decisive majority of the Democratic party of Alabama being in favor of the retention of the old mode of selecting solicitors; and yet, our wary friends, the gentlemen of the opposition, wishing to create confusion in the councils of Democracy, they well knew where to place their votes so as to explode a mine under the party, throw their united weight and power against the will and purpose of the majority of the dominant party, and the gentleman who advocate the new-fashioned mode of electing solicitors they manifest a cheerful willingness to accept the help of the enemy, the very men, Mr. President, against whom we have been lined up in battle array, for so many years. Is it to go abroad that we who favored the time honored mode of choosing those who are the interpreters or the vengeance and justice of the law, are to march tamely under the Caudine forks which the enemies of Democracy have erected for our confusion and humiliation.

Mr. President, if things like these are permitted to pass, if we go blindly ahead and practice these innovations concerning which there was no hint at the time the call for this Convention was adopted, why sir, evil times await the Democratic party. We were told and assured that the mission and purpose of this Convention was to take the white ballot from black hands, and yet the


4052                  

OFFICIAL PROCEEDINGS

other day we tried to place the white ballot in still whiter hands.  I submit, Mr. President, that if we desire to encompass such an innovation upon the policy of the party in selecting solicitors, we should have had some notice at the time that the call for the Convention was adopted. Why should we not select them in the old way? If they are permitted to be selected by the counties, we will very probably have in the nature of things, a rather measly set of solicitors. No man is great to his valet; the people seem to regard with far more consideration and respect the Circuit Solicitor on his rounds who is not subject to the play of local influences; who is not in daily contact with malefactors, whom he will be called upon to prosecute. I suggest that from every consideration and every standpoint it would be unwise to select the solicitors by the people of the several counties but the crux of the matter which presents itself to my mind, and which I desire to present to my fellow Democrats is this:  I insist, as a matter of policy, we ought not to permit the opposition to the Democratic party to dictate the course and line of policy we should pursue; and I desire to register my opposition to the new fashioned mode of selection prosecuting attorneys, because in the past, those officers have been gallant, high-minded, chivalric capable men; and the way to test a system, the way to pass judgment upon it, is to look at the results in the past. I ask those gentlemen who favor the overturning of the present system, to consult the records and say to this Convention whether or not the solicitors we have had in the past were not capable and trustworthy men, to whom the interests of the commonwealth of Alabama could at all times be safely entrusted I shall heartily favor any parliamentary method of reconsidering the vote by which the time-honored and effective system has been decreed to be altered, and am quite unable to perceive the necessity for a change.

MR. GRAHAM (Talladega)– I regret that it is necessary for me to make a personal statement on this subject, but am glad of the opportunity since it has been thrust upon me. On the question of Democracy, I desire to say that the Populists and Republicans of the State of Alabama have felt the thrust of my blade whether it be keen or blunt, since before I was twenty-one years of age, because it was my privilege and my pleasure to make speeches in behalf of the National Democratic ticket in 1884, before I was entitled to vote under the laws of Alabama, and there has been no campaign since that time that I have not been on the stump in Alabama in behalf of organized Democracy. The gentleman from Chambers refers to the fact that I was once a candidate for solicitor. I was a candidate and I was defeated, and I went home and dictated an interview to my home paper which was sent out over the State that I was defeated by a clean, competent and an honorable man, and that I had no scars from the conflict, and I want to say furthermore, I want to say, where the


4053

CONSTITUTIONAL CONVENTION, 1901

theory may come home to the other side, that I am not myself a candidate for solicitor and that there is no member of my family who is a candidate.

MR. COLEMAN (Greene) ‑ Will the gentleman permit a question.

MR. GRAHAM ‑ Certainly.

MR. COLEMAN‑I have been trying to refrain from personalities, but since it has gone so far, I will ask the gentleman to state whether or not he went to Governor Samford and tried to get a gentleman that occupies that place appointed to a judgeship, that he might become solicitor as the gentleman’s successor.  Now answer that.

MR. GRAHAM‑I can answer that, but I wish that the dead were here with me that it all might be known. I want to state that the first suggestion of such a thing came from a man very close to the delegate from Greene in the State of Alabama, who wanted the judgeship of a city court– if the gentleman wants me to call his name I will do it.

MR. COLEMAN‑I have no objection, because your remarks have been so personal. I want to know if vote did not write letters.

MR. GRAHAM ‑Yes, I did write a letter to the applicant for the judgeship who, himself, originated the entire matter so far as I have ever known. I have never said ought to reflect upon the solicitor of the circuit and it was he who first suggested that he would like my endorsement for a judgeship, and I promised it.  It first came through a man whose name I'm not at liberty to use. The gentleman can get at the correspondence and see what it is; I am willing that it should come out since he has gone into private matters without consent. The gentleman seems to be very sore. I was replying; to the gentleman from Chambers. As stated in the outset I paid a tribute to the solicitor from the Seventh Circuit. I want to say further that I presume that the gentleman’s (Mr Heflin) estimate of the relative merits of gentlemen as lawyers in this State will be considered along the line of his reputation as an attorney himself, and nobody will be injured by his opinion. Now, gentlemen, you can see why personal matters have been brought in here. I want to come down to a discussion of the merits of the case. I did not intend to be personal in this matter, this morning, if the gentleman had not used my name. I want to state in reply to the gentleman from Covington that on the first vote on this question we had more than two to one, and I would like to know if the Populites were the balance of power on that vote of two to one?  What has happened since that vote?  I do not know whether gentlemen of the Convention have been ap‑


4054                  

OFFICIAL PROCEEDINGS

proached or not, but I call testify that nine Circuit Solicitors have been in this Convention or in the lobby, and I can further testify to four county or city Solicitors who have been in this Convention.  Thirteen of them in all, I don't know what they have been doing—

MR. OPP‑ May I ask the gentleman a question?

THE PRESIDENT‑ Will the gentleman yield?

MR. GRAHAM ‑The gentleman declined to yield a while ago, and they have taken up so much of my time that I must decline to yield further. They have referred to the vote where it stood 50 to 50, and the gentlemen will remember that there were about seventy to thirty on the original vote, but since that time there have been nine Circuit Solicitors here and four County or City Solicitors, almost constantly in attendance upon this Convention.  Do those Solicitors represent the people, or do they represent themselves? Did the delegates represent the people when they recorded the first vote on this matter, and did they represent the people or the Solicitors when they recorded the last vote? I say that the Circuit Solicitors have proven a failure in some circuits. In the Judicial Circuit in which I live, there are four County or City Courts which have jurisdiction of the entire business and the Circuit Solicitor appears only on the felony docket in two of the small counties of the Circuit. The gentleman from Covington has seen fit to refer to county Solicitors as “measley fellows.”  It is possible he may not know what one of the “measley fellows” has done in a small county– that of Cleburne. The County Solicitor there convicted 107 men in the year 1900, and the Circuit Solicitor convicted 91 in the entire circuit. Where does “measley” come in? In the County of Clay, one of the poorest counties so far as taxable values go in this State, the County Solicitor convicted 61 against 91 in the Circuit Solicitor’s entire circuit, and the man who convicts sixty-one did not get a cent from the State of Alabama, but depended upon fees, while the Circuit Solicitor drew his $2,400 for prosecuting the County of Clay, where he did nothing. Is it right? That is the question. It is a question of whether my brother wants the office or your son wants it, or your brother wants it, or whether your political friend wants it.  It is a question of economy and right. Now, in the County of Talladega there were over 230 convictions in the County Court under a separate solicitor, against ninety-one in the entire Seventh Circuit, and I believe almost a similar record was made by the solicitor of the City Court of Calhoun County, and I am informed that at least four of the circuits in this State are practically in the same condition, and that the State of Alabama is paying four men $2,400 each, when the four men combined do not earn in fees the salary of one. Why?  Because the separate county system has been adopted, and it is much more effective in bringing men to justice.


4055

CONSTITUTIONAL CONVENTION, 1901

Gentlemen of the Convention, we had four votes on this question. No other question has been resurrected or attempted to be resurrected and brought before you like this. We had discussion  of it on both sides, and I appeal to the men in this Convention who believe that the people should rule to come back and have the manhood to stand by your original vote, of more than two to one upon this proposition, before the solicitors' lobby hovered over this Convention to defeat the will of the people. You talk about lobbies in the Legislature, and about this Convention being above such influences. 1 ask you whether or not you have yielded to influences, or whether you will stand here today and register your vote as a protest against the implied insult of the presence of these solicitors who have dared to trespass unlimited upon the floor of this Convention? In this matter, there is nothing personal. If they are willing for the people to judge them, let them go back home. Two solicitors, I am informed, have written here that they are willing to submit it to the people before whom they work, and I today, without calling their names, would mention them with honor and approval.  There are four on this roll of honor, and you know them. Gentlemen of the Convention, they talk about the vote of 50 to 50, and the vote of 49 to 49. The first vote, according to my recollection, was seventy-odd to thirty odd.  The Populist did not turn the scales on that vote. I want to say that Populites and Republicans are citizens, and white citizens, of Alabama, and this Convention has already voted that they shall not be disfranchised. Do you want to say that they shall not hold office, and that their votes shall not be counted for men for whom they vote in the State of Alabama?

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

MR. GRAHAM– I decline to yield, Mr. President I demand the previous question upon the motion to reconsider.

MR. OPP‑I rise to a question of personal privilege.

THE PRESIDENT‑ The gentleman cannot be recognized now. As soon as the vote is taken, the gentleman will be recognized.

Upon a vote being taken, the motion was carried, and the main question was ordered.

MR. OPP‑I did not catch the remarks of the gentleman just now, but I understood him to say that it was in effect an insult to the Convention to make the statement that the vote stood 49 to 49, and that Populists held the balance of power.

MR. GRAHAM‑I said it was an insult in connection with the fact that the original proposition was carried by seventy odd to thirty odd.


4056                  

OFFICIAL, PROCEEDINGS

MR. OPP‑I would like for the gentleman to say whether or not he meant to intimate that I intended to insult the Convention.

MR. GRAHAM‑I did not at all. I would not insult the gentleman or the Convention by such an intimation.

MR. OPP‑ That is entirely satisfactory.

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

MR. GRAHAM‑ And upon that I call for the ayes and noes.

The call was sustained, and the Secretary proceeded to call the roll.

MR. GREER (Calhoun), during roll call– I desire to say that Mr. Bartlett is paired with Mr. Whitesides.

MR. BARTLETT– In reply to that, I desire to say that prior to the vote coming up, I went to this gentleman. I did not see Mr. Whitesides ; did not make any pair with Mr. Whitesides, but through Mr. Greer I told him as the vote had never come up, we would withdraw the pair, and prior to the coming up of the vote, we withdrew the pair, and I declined to make a pair with him.

MR. GREER‑ In reply to that, I desire to say the gentleman did agree to pair with Mr. Whitesides this morning. I informed him that I was representing Mr. Whitesides; that he had asked me to get him a  pair, and furthermore he came to me on the floor of the Convention and asked me—

MR. PETTUS‑I rise to a point of order. I make the point that pairs are personal matters allowed by the indulgence of the Convention, and it is to be decided by the conscience of each member—

MR. GREER– I desire to rise to a question of personal privilege. The gentleman came to me and I asked him how Mr. Whiteside would vote, and he told me he would vote for reconsideration.

MR. OATES‑ This is entirely out of order, to go into a controversy about a pair, or anything of that kind, during the roll call. After it is over, it may be brought up.

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

AYES

Messrs. President,

Burns,

Eley,

Almon,

Carmichael, of Coffee,

Eyster,

Barefield,

Cobb,

Ferguson,

Beavers,

Coleman, of Greene,

 Glover,

Browne,

Duke.

Graham, of Montgomery,


4057

CONSTITUTIONAL CONVENTION, 1901

Grant,

Jenkins,

Proctor,

Grayson,

Jones, of Montgomery,

Reese,

Greer, of Calhoun,

Kirk,

Rogers, (Lowndes),

Greer, of Perry,

Knight,

Samford,

Haley,

Locklin,

Sanford,

Handley,

Long (Walker),

Searcy,

Harrison,

Lowe (Jefferson),

Smith, Morgan M.,

Heflin, of Chambers,

Macdonald,

Sollie,

Heflin, of Randolph,

Martin,

Waddell,

Hinson,

O'Neal (Lauderdale),

Williams (Marengo),

Howze,

O'Rear,

Wilson (Clarke),

Inge,

Parker (Cullman),

Wilson (Washington),

Jackson,

Pillans,

Winn,

TOTAL‑54

NOES

Altman,

Fitts,

Murphree,

Ashcraft,

Foshee,

NeSmith,

Banks,

Freeman,

Norman,

Bartlett,

Gilmore,

Palmer,

Beddow,

Graham, of Talladega,

Parker (Elmore),

Bethune,

Henderson

Pettus,

Blackwell,

Hood,

Phillips,

Boone,

Jones, of Bibb,

Porter,

Brooks,

Ledbetter,

Reynolds (Chilton),

Byars,

Lowe (Lawrence),

Sanders,

Cardon,

Malone,

Sloan,

Cofer,

Maxwell,

Smith, Mac. A.,

Cunningham,

Merrill,

Spears,

Davis, of DeKalb,

Miller (Marengo),

Spragins,

Davis, of Etowah,

Miller (Wilcox),

Walker,

Dent,

Moody,

Watts,

Espy,

Mulkey,

TOTAL‑50

ABSENT OR NOT VOTING

Carmichael, of Colbert,

 Jones, of Hale,

Robinson,

Case,

King,

Rogers (Sumter),

Coleman, of Walker,

Kirkland,

Selheimer,

Cornwall,

Kyle,

Smith (Mobile),

Craig,

Long (Butler),

Stewart,

deGraffenreid,

Morrisette,

Studdard,

Fletcher,

O'Neill (Jefferson),

Tayloe,

Foster,

Pearce,

Whiteside,

Howell,

Renfro,

Willet,


4058                                          

OFFICIAL PROCEEDINGS

PAIRED

AYES                                     NOES

Williams (Barbour),

Bulger,

Carnathon,

Chapman,

Jones, of Wilcox,

McMillan (Baldwin),

Williams (Elmore),

McMillan (Wilcox),

Lomax,

Pitts,

Norwood,

Sorrell,

Opp,

Weakley,

Reynolds (Henry),

White,

Sentell,

Thompson,

Vaughan,

Hodges,

Oates,

Weatherly,

There were 54 ayes and 50 noes, and the motion to reconsider prevailed.

MR. SAMFORD (Pike)‑I now move to recommit the Article on Judiciary to the Committee on Judiciary, and upon that I move the previous question.

MR. GRAHAM (Talladega)– I rise to a point of order, that you cannot recommit an Article after it has been engrossed and passed upon a third reading in this Convention.

THE PRESIDENT‑ In the opinion of the Chair, the point of order is well taken.

MR. WILLIAMS (Marengo) ‑ I offer a substitute to the whole Article—

MR. CUNNINGHAM‑I rise to a point of order. This ordinance having been engrossed and read a third time, all amendments are out of order.

THE PRESIDENT‑ The gentleman from Marengo will be seated.

MR.  WILLIAMS‑I thought I was recognized.

THE PRESIDENT‑ The Chair recognized the gentleman from Pike to make a motion and recognized the gentleman from Jefferson to state a point of order.

MR. CUNNINGHAM‑ This Article, having been engrossed and read a third time, all amendments are out of order.

MR. HEFLIN (Chambers)‑I want to make a motion that the Article be rejected for the purpose of making another Article with a slight amendment on this.

THE PRESIDENT‑ In the opinion of the Chair the point of order is well taken.


4059

CONSTITUTIONAL CONVENTION, 1901

MR. HEFLIN‑I move to rescind the action of the Convention by which it was ordered to engrossment and a third reading.

THE PRESIDENT The question before the House will be upon the final passage of the Article.

MR. ASHCRAFT‑I rise to a point of order. Under the regular order of this Convention, does not the further consideration of this question take its place at the foot of the Calendar?

THE  PRESIDENT ‑ The Chair will consider the point of order made by the gentleman from Lauderdale.

MR. SAMFORD (Pike)‑ I desire to make a motion. The Chair desires me not to make a motion until the Chair rules on the point of order?

THE PRESIDENT ‑The Convention will be in order while the Chair considers the point of order made by the gentleman from Lauderdale.

The gentleman from Chambers called my attention to what rule?

MR. HEFLIN ‑The motion made by the gentleman from Pike that the entire Article be recommitted to the Judiciary Committee.  It says ordinances and reports may be recommitted at the pleasure of the Convention, and I ask if it could not come under that head?

THE PRESIDENT ‑ In the opinion of the Chair, all motions to amend, to recommit, to lie on the table, those motions after the Article is ordered to a third reading, or concluded and the only question is on the final passage of the ordinance.

MR. SAMFORD (Pike)‑I rise to a point of inquiry, as to whether or not a motion ordering this Article to an engrossment and a third reading and a motion to reconsider the vote by which that was adopted or defeated was laid on the table.

THE PRESIDENT‑ It was laid upon the table.

MR. SAMFORD– Now then, a further inquiry: Would it not be in order to make a motion to take that from the table?

THE PRESIDENT ‑The Secretary will examine the Journal to see whether the motion to reconsider was tabled.

The Chair finds the motion was lost and not laid upon the table.

MR. HARRISON ‑ I desire to inquire if the ruling of the Chair on the motion of the gentleman from Pike is governed by any rule of this Convention. If it is not, I submit to the Chair that this is an important question, and upon the examination of the au‑


4060                  

OFFICIAL PROCEEDINGS

thorities, I believe the Chair would hold otherwise. I remember distinctly an incident in which this identical question was discussed between Mr. Crisp of Georgia, Mr. Dingley of Maine, and Mr. Reed in the Chair, and after a full discussion of the question, it was decided it could be recommitted. It was in one stage later than this, it was when an appropriation bill had failed to pass, and it was then moved to recommit it, and under the general parliamentary discussion between those three gentlemen, who were able men, it was decided that it would be recommitted. I believe if the Chair will examine the parliamentary law, he will come to the conclusion that this motion to recommit is in order.

THE PRESIDENT‑ The Chair will be glad to examine the question and will consider such authorities as the members may furnish on that point. The Chair will now rule upon the point of order raised by the gentleman from Lauderdale. The question is whether after the question is reconsidered it takes its place under the order of business and is not up for consideration.  Mr. Cushing, in his work on Law and Practice of Legislative Assemblies, laid down this proposition: "When a motion to reconsider is decided in the affirmative, the question of business to which it is attached immediately takes the place to which it belongs in the general order of business in the Assembly, or goes over until the next day on which business of the same description is in order.

It seems to the Chair, therefore, that when this matter is reconsidered at this hour, it is taken up out of its order because the motion to reconsider is in order immediately after the reading of the Journal and displaces the special order for that day. The regular order for today would be the report of the Committee on Education, and this matter being reconsidered, it seems to the Chair the point of order is well taken, even though a motion to recommit might be in order or a motion to take from the table, it would not be privileged, and would have to abide the regular order.

MR. HEFLIN– Would I be in order to make a further motion that the further consideration of this question be postponed until tomorrow at 11 o’clock?

THE PRESIDENT‑ The business will go over until after the regular order is disposed of unless the Convention sees fit to make it a special order. The Convention might now displace the regular order and make it the special order for 11 o'clock tomorrow.

MR. HEFLIN– I make that motion.

MR. O’NEAL– I call the attention of the Chair to Rule 30, that you can make it the special order for any hour.

THE PRESIDENT‑ That is the ruling of the Chair.

MR. O'NEAL‑I misunderstood the ruling of the Chair.


4061

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑ What is the motion of the gentleman from Chambers?

MR. HEFLIN‑I move that the further consideration of the question be made a special order for 12 o'clock tomorrow.

MR. WALKER‑I rise to a point of order, that motion before it could be placed before the House, would require a suspension of the rules.

THE PRESIDENT‑ It seems to the Chair, and the Chair ruled the other day when this same question was up, that it is competent for the Convention by a majority vote— Rule 30 says "Any matter may by a vote of a majority of the delegates present be made the special order for any hour, which shall take precedence at that hour of any other business except a motion to reconsider."

MR. WALKER‑ My point of order is that the motion itself must take its regular course on the Calendar, unless the rules are suspended so as to supersede the Calendar, and the motion at this time is not in order.

THE PRESIDENT‑ It seems to the Chair that when any matter—

MR. ASHCRAFT‑ If the question of the Judiciary Committee's report, or the Article that has just been reconsidered was before this Convention now, if it had an opportunity to be heard at all, then a motion might be trade to fix the consideration for another time, but that is not a matter now before the Convention.  The matter before the Convention is the report of some other Committee and you have no right to make a motion now relative to the report of the Committee on Judiciary until it is properly before the House. When that time arrives, if a postponement of reconsideration is desired, or a special hour is desired, that motion may be made with reference to it but now it is not before the House. Now gentleman has the right to displace the regular order except under the suspension of the miles, and if he makes that motion now, he displaces the regular order.

THE PRESIDENT‑ The Chair will not be able to hear any further discussion on this question, but the Chair is prepared to rule. The Chair would lie glad to hear every delegate on the floor discuss this question, but the time of the Convention is too valuable, and while the Chair has heard gentlemen speak on both sides of it, the Chair will announce its ruling. If the point made by the gentleman from Lauderdale were correct, that this motion could only be made when this report come up, there would be nothing accomplished by making it a special order, because it would have been reached in the regular order. It seems to the Chair, and such has been our practice from the beginning of the session, that the Convention by a majority vote may set aside any matter that it


4062                  

OFFICIAL PROCEEDINGS

has under consideration and take up any other matter that it sees fit. Rule 30 says that any matter may, by a vote of a majority of the delegates present, be made the special order for any hour, which shall take precedence at that hour, of any other business except a motion to reconsider." Now, if it would not be in order to take up the report of the Committee on judiciary until it was regularly reached, this rule would be nullified. The practice here has been to take up the reports of the standing committees when they are brought in by the standing committees and make theirs the special order. Under the rule, as soon as they are brought in and filed, they would be over and take their place in the regular order, but under this Rule 30, the chairmen of the respective committees successively moved that the consideration of their reports be made the special order. It seems to the Chair it is entirely proper under the rule. The point of order will be overruled.

MR. HEFLIN‑ With the consent of the Convention, I will change my motion to make it the special order for 4 o'clock this afternoon.

Objection was made.

MR. SAMFORD (Pike)‑I move to amend the motion of the gentleman from Chambers by making it the special order for 4 o'clock this afternoon.

MR. REESE‑I move the previous question on the motion and amendments.

The main question was ordered.

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

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

The call was not sustained.

MR. GRAHAM (Talladega)‑ I move to lay both motions on the table.

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

The call was sustained.

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

AYES

Altman,

Boone,

Davis, of DeKalb,

Ashcraft,

Brooks,

Davis, of Etowah,

Banks

Byars,

Dent,

Bartlett,

Cardon,

Espy,

Beddow,

Cofer,

Fitts,

Blackwell,

Cunningham,

Foshee,


4063

CONSTITUTIONAL CONVENTION, 1901

Freeman,

Miller, of Wilcox,

Reynolds, of Chilton,

Graham, of Talladega,

Moody,

Sanders,

Henderson,

Murphree,

Sloan,

Hood,

NeSmith,

Smith, Mac. A.,

Jones, of Bibb,

Norman,

Spears,

Ledbetter,

Palmer,

Spragins,

Lowe, of Lawrence,

Parker, of Elmore,

Waddell,

Malone,

Pettus,

Walker,

Maxwell,

Phillips,

Watts,

Merrill,

Pillans,

Winn,

Miller, of Marengo,

Porter,

TOTAL‑50

NOES

Messrs. President,

Greer, of Perry,

Macdonald,

Almon,

Haley,

Martin,

Barefield,

Handley,

O'Neal, of Lauderdale,

Bethune,

Harrison,

O'Rear,

Browne,

Heflin, of Chambers,

Parker, of Cullman,

Burns,

Heflin, of Randolph,

Proctor,

Carmichael, of Coffee,

Hinson,

Reese,

Cobb,

Howze,

Rogers, of Lowndes,

Coleman, of Greene,

Inge,

Samford,

Duke,

Jackson,

Sanford,

Eley,

Jenkins,

Searcy,

Ferguson,

Jones of Montgomery,

Smith, Morgan M.,

Glover,

Kirk,

Sollie,

Graham, of Dlontgomery,

Knight,

Thompson,

Grant,

Locklin,

Williams, of Marengo,

Grayson,

Long, of Walker,

Wilson, of Clarke,

Greer, of Calhoun,

Lowe, of Jefferson,

Wilson, of Washington,

TOTAL‑51

ABSENT OR NOT VOTING

Beavers,

Howell,

Robinson,

Burnett,

Jones, of Hale,

Rogers, of Sumter,

Carmichael, of Colbert,

King,

Selheimer,

Case,

Kyle,

Sentell,

Coleman., of Walker,

Kirkland,

Smith, of Mobile,

Cornwall,

Leigh,

Stewart,

Craig,

Long, of Butler,

Studdard,

deGraffenreid,

Morrissette,

Tayloe.

Fletcher,

O'Neill (Jefferson),

Whiteside,

Foster,

Pearce,

Willet,

Gilmore,

Renfro,


4064                                          

OFFICIAL PROCEEDINGS

PAIRED

AYES.                                    NOES.

Carnathon,

Chapman,

McMillan (Baldwin),

Jones, of Wilcox,

Pitts,

Lomax,

Sorrell,

Norwood,

Oates,

Weatherly,

Weakley,

Opp,

White,

Reynolds (Henry),

Hodges,

Vaughan,

Bulger,

Williams, of Barbour,

Eyster,

Mulkey,

McMillan, of Wilcox,

Williams, of Elmore.

And the motion to table was lost.

THE PRESIDENT‑ The question recurs upon the amendment offered by the gentleman from Pike to the motion as made by the gentleman from Chambers.

MR. ASHCRAFT‑I demand a verification of the vote.

The roll was called for the purpose of verifying the vote.

MR. GILMORE‑ I desire to be recorded as voting aye.

MR. PETTUS‑I object.

THE PRESIDENT‑ This was a call of the roll upon a verification of the vote. A vote was taken and the result announced and the correctness of the count was challenged and a call of the roll vas made merely for verification. The result of the vote is that the motion to table is lost. The question now recurs upon the motion of the gentleman from Pike to amend the motion of the gentleman from Chambers. The gentleman from Chambers moves that this matter be made the special order for 12 o'clock tomorrow and the gentleman from Pike moves to amend by making it the special order for 4 o'clock this afternoon.

Upon a vote being taken a division was called for.

By a vote of 55 ayes and 53 noes, the amendment was adopted.

THE PRESIDENT‑ The question will recur upon the original motion as amended.

MR. WATTS‑I ask for the ayes and noes upon that.

MR. SAMFORD (Pike)‑I rise to a point of order. The ayes and noes were demanded on that question once and the call was refused.

THE PRESIDENT‑ This is upon the question as amended. Is the call sustained?


4065

CONSTITUTIONAL CONVENTION, 1901

The call was sustained.

THE PRESIDENT‑ The question is on the adoption of the original motion as amended. The motion as amended fixes the time for the consideration of this report at 4 o'clock this afternoon.  As many as favor will say aye, and those opposed, no as their names are called.

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

AYES

Messrs. President,

Greer, of Calhoun,

Martin,

Almon,

Greer, of Perry,

O'Neal (Lauderdale),

Barefield,

Haley,

O'Rear,

Beavers,

Handley,

Parker (Cullman),

Bethune,

Harrison,

Proctor,

Browne,

Heflin, of Chambers,

Reese,

Burns,

Heflin, of Randolph,

Rogers (Lowndes),

Carmichael, of Colbert,

Hinson,

Samford,

Carmichael, of Coffee,

Howze,

Sanford,

Cobb,

Inge,

Searcy,

Coleman, of Greene,

Jackson,

Selheimer,

Duke,

Jenkins,

Smith, Morgan M.,

Eley,

Jones, of Montgomery,

Sollie,

Eyster,

Kirk,

Thompson,

Ferguson,

Knight,

Waddell,

Glover,

Locklin,

Williams (Marengo),

Graham, of Montgomery,

Long, of Walker,

Wilson (Clarke),

Grant,

Lowe, of Jefferson,

Wilson (Wash'gton),

Grayson,

Macdonald,

Total‑56.

NOES.

Altman,

Fitts,

Miller (Wilcox),

Ashcraft,

Dent,

Moody,

Banks,

Foshee,

Mulkey,

Bartlett,

Freeman,

Murphree,

Beddow,

Gilmore,

NeSmith,

Blackwell

Graham, of Talladega,

Norman,

Boone,

Henderson,

Palmer,

Brooks,

Hood,

Parker, Elmore),

Byars,

Jones, of Bibb,

Pettus,

Cardon,

Ledbetter,

Phillips,

Cofer,

Lowe, of Lawrence,

Pillans,

Cunningham,

Malone,

Porter,

Davis, of DeKalb,

Maxwell,

Reynolds (Chilton),

Davis, of Etowah,

Merrill,

Sanders,

Espy

Miller (Marengo),

Sloan,


4066                  

OFFICIAL PROCEEDINGS

Smith (Mobile),

Spragins,

Watts,

Smith, Mac. A.,

Walker,

Winn,

Spears,

Total‑52.

ABSENT OR NOT VOTING

Burnett,

Kirkland,

Robinson,

Case,

Kyle,

Rogers (Sumter),

Coleman, of Walker,

Leigh,

Sentell,

Cornwall,

Long, of Butler,

Sorrell,

Craig,

McMillan (Wilcox),

Stewart,

deGraffenreid,

Morrisette,

Stoddard,

Fletcher,

Norwood,

Tayloe,

Foster,

O'Neill, of Jefferson,

White,

Howell,

Pearce,

Whiteside,

Jones, of Hale,

Renfro,

Willet,

King,

Reynolds, of Henry,

Williams (Elmore),

PAIRS.

AYES.                                                NOES.

Carnathon,

Chapman,

Jones, of Wilcox,

McMillan, of Baldwin,

Lomax,

Pitts,

Weatherly,

Oates,

Opp,

Weakley,

Vaughan,

Hodges,

Williams (Barbour),

Bulger.

So the motion as amended was adopted.

MR. GRANT (Calhoun)‑ I desire to call attention to an error in the report of yesterday. The tax rate is there stated at 60‑100.  My recollection is that as the ordinance passed, it was 65‑100, and I ask that the correction be made. It should be 65‑100 instead of 60‑100.

Leaves of absence were granted as follows:  To Mr. Sollie for Saturday and yesterday on account of sickness; indefinite leave to Mr. deGraffenreid on account of sickness; leave of absence to Mr. Pitts for today.

MR. OATES‑ The call of the roll of Standing Committees for reports has not been made and has not been dispensed with this morning.

THE PRESIDENT ‑We have not been able to progress beyond the motions to reconsider, and the gentleman from Walker seems to be on the floor with a proposition of a similar kind.


4067

CONSTITUTIONAL CONVENTION, 1901

MR. OATES‑ All I desire to do is to submit a report for the Committee on Legislative Department.

MR. LONG (Walker)‑ I yield to the gentleman for that purpose, if I will be in order after he is through.

MR. OATES‑ That is all I ask.

THE PRESIDENT‑‑‑ The gentleman from Montgomery asks unanimous consent to make a report of the Committee on Legislative Department.

The consent was given.

The report was read as follows:

LEGISLATIVE DEPARTMENT

Minority Report

The undersigned dissents from the adverse action of the Committee on Legislative Department on Ordinance No. 429, introduced by Mr. Lomax.

Because the section which said ordinance seeks to repeal and which provides for quadrennial sessions of the Legislative disregards the fundamental and cherished Anglo-Saxon policy of having frequent meeting of the people through their representatives to consider the public welfare.

Because the long intervals between legislative sessions resulting from this change of policy will, it is believed, tend to exert an insidious influence upon the people by lulling them to a condition of apathy, which may in time dwarf their patriotic instincts, if not prove fatal to their liberties.

Because such long intervals, while depriving the people of a ready means heretofore enjoyed by them of revising, modifying, repealing or enacting laws which have an important and practical bearing on their daily affairs, will afford opportunity for the full play of sinister influences that may undermine the safeguards of popular rights.

Because the proposed change from biennial to quadrennial sessions is a sudden, uncalled for and radical departure from a policy that has been an integral element of our civil policy, State and national, since the inauguration of our federated system.

Because it will place Alabama out of harmony with the long established practice of frequent legislative sessions, to all the States of the Union.

Because every one of the forty-five States of the Union now have biennial sessions with the exception of Rhode Island and


4068                  

OFFICIAL PROCEEDINGS

South Carolina and the great States of New York, New Jersey, Massachusetts and Georgia, which have annual sessions.

Because if biennial and annual sessions were expedient when the country was sparsely settled, and the stage coach provided the principal means of transportation and mail communication, how much more so are they in this day of rapid progress and wonderful achievement when new questions and new interests spring out of our complex civilization, are constantly arising and demanding legislative attention-especially in Alabama whose multiform resources are rapidly developing and in which the triumphs of mining and manufacturing industries and of commercial activity may bring our farming interests under conditions necessitating prompt and effective legislative supervision.

Because are arrogance of capital backing in the sunshine of unrestrained power, will not be mitigated by the knowledge that it will have a free hand for four years in which to rivet its dominance in all that pertains to the public interests.

Because the alert self-seeking of corporate influence will not be slow to broaden the foundations of its power while the legislative authority is in a state of suspended animation.

Because the commercial classes which are today the thralls of trusts and combinations instigated by the modern doctrine of "community of interests," will be too busy making a living under the scant margin of profit vouchsafed try them to prevent their absorption under the process of benevolent assimilation while our legislative functions are held in abeyance.

One of the reasons assigned for committing it’s to the policy of having a legislative session only once in four years is that the business and farming interests and managers of great corporations favor it. It is not improbable that the managers of great corporations do favor it. Possibly they would be willing to have the State governed without a Legislature for at least twelve years as Charles I once did to "the deep damnation of his taking off;" but the assertion that the people of Alabama favor this sudden and radical change of policy that was not an issue or even discussed in the campaign which resulted in the holding of this Convention is not borne out by the utterances of the press which usually reflect public sentiment, and it is likely that the alleged popular desire for the proposed change is assumed by those to whom they wish is father to the thought, and that the special interests that are behind and around and about "the one who manages the great corporations in the State of Alabama" have not been backward in encouraging such a view of the popular desire.

Another reason assigned is that the Constitution now, making, will,  if ratified, leave the Legislature so little to do in respect to


4069

CONSTITUTIONAL CONVENTION, 1901

local affairs that there will be no necessity for a legislative session oftener than once in four years. In reply to this, it may be urged that similar restrictions upon local legislation exists in the Constitutions of California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, New Jersey, North Dakota, Oregon, Pennsylvania, South Dakota, Texas, West Virginia, Wyoming and Utah ‑ twenty-six States, in all of which is retained the system of biennial or of annual sessions. If these States, situated in every part of the Union, existing under such diverse conditions and representing every variety of interests, have found no reason for embarking upon an untried and doubtful policy, why should Alabama rather not wait and profit by the experience of other States that may inaugurate a change, instead of assuming a risk of a nature so serious.

Still another reason assigned for the change is that biennial sessions will give too early an opportunity for repealing laws that have not been in operation long enough to commend there to popular approval. But that would be a curious statute that would require more than two years to disclose its effect on the body politic, while, on the other hand, a four years' interval l would allow a vicious statute full opportunity to do its harmful work, and the people during that time would be helpless unless the Governor should, as an act of grace through an extraordinary session, give them an opportunity which ought of right to be theirs through the recurrence of the time-honored biennial session. What if a Republican administration should come into power and indulge in reactionary legislation of a disturbing and destructive nature—would the Republican Governor be apt to ignore his party relations and vouchsafe relief through a proclamation for an extraordinary session?

The undersigned therefore, recommends the adoption of said ordinance, No. 429, providing for the repeal of Section 5, all "the ordinance reported by the Committee on Legislative Department fixing the sessions of the Legislature quadrennially."

If said Section 5 shall be repealed, he recommends the adoption of the following ordinance:

The Legislature shall meet biennially, at the Capitol, in the Senate Chamber and in the Hall of the House of Representatives (except in cases of the destruction of the Capitol, or epidemics, when the Governor may convene them in such place in the State as he may deem best) on the day specified in this Constitution or on such other day as may be prescribed by law and shall not remain in session longer than sixty days at the first session held under this Constitution, nor longer than fifty days at any subsequent session.

Leslie E. Brooks.


4070                  

OFFICIAL PROCEEDINGS

During the reading of the minority report:

MR. PILLANS‑I rise to move that the reading of this long winded document cease and this house ho on with its business.

THE PRESIDENT‑ The gentleman is not in order at this time.

MR. BROOKS‑ I desire to say, notwithstanding the remarks of my worthy colleague from Mobile, that this long‑winded document, as he calls it, has a constitution right on this floor that he cannot take away.

THE PRESIDENT‑ The gentleman will please be seated.

MR. PILLANS‑I will be seated, sir, but I rise to a point of inquiry. Is the house powerless to cut off the reading of papers?  It so the opposition to the Constitution might bring in papers here world without end, which might take three months to read and defeat the Constitution.

THE PRESIDENT‑ The report was received and the reading was ordered by unanimous consent, and after the reading is entered upon the Chair cannot entertain motions to suspend the reading.

MR. OATES‑I ask that the ordinance upon which the action of the Committee is predicated, be read as I desire to make a brief statement on it.

The ordinance by Mr. Lomax of Montgomery, was read as follows:

Report of Committee on Legislative Department

The Committee on Legislative Department instructs me to report that Ordinance No. 429 was indefinitely postponed by the action of said Committee.

The accompanying minority report upon the action of said committee upon said ordinance.

Respectfully submitted,

Wm. C. Oates, Chairman of Committee.

Ordinance 429. By Mr. Lomax:

AN ORDINANCE

To repeal Section 5 of the Article on Legislative Department as reported to and adopted by this Convention.

Be it ordained by the people of the State of Alabama in Convention assembled, that Section 5 of the ordinance reported by the


4071

CONSTITUTIONAL CONVENTION, 1901

Committee on Legislative Department fixing the sessions of the Legislature quadrennially be, and the same is hereby repealed.

Referred to Committee on Legislative Department.

MR. O'NEAL (Lauderdale)‑I rise to a point of order. After a report is made by a Committee, it is not open for discussion. It has to lie upon the table for one day and be printed for the consideration of the House.

THE PRESIDENT‑ How does the gentleman from Lauderdale know that the gentleman from Montgomery wishes to discuss the matter?

MR. O'NEAL‑ He said so.

MR. OATES‑ No, I did not say that I said I wished to make a statement in regard to it.

THE PRESIDENT‑ The Chair understood that he rose for the purpose of making some motion in reference to it.

MR. OATES‑ This report is out of the regular order and there is no rule warranting it, but I want to state how it comes here. The Committee of which I have the honor to be Chairman, considered that ordinance, and by a vote of a large majority of the Committee indefinitely, postponed it. Now in such a case as that, the rules adopted do not provide for any report to be made, and I made no report, in official form, of that action, but my colleague, Mr. Lomax, who is the author of the ordinance, spoke to me about it and desired some means of getting at it; then my colleague on the Committee. Mr. Brooks came to me with his minority report and insisted that some report be made in order that he might get the question before the Convention and I consented in order that these gentlemen might not suppose that we intended to do them any injustice. I think it due to the Convention that I state how it is.  Their only remedy is to withdraw that ordinance from the committee by a vote of a majority of all the members under the rules of this Convention. I have simply discharged my duty in making the report back here, where they can have an opportunity to get it up, but they will have to comply with that rule in order to get it up. Now the gentlemen know what I have done in reporting it back here. It is in the possession of the Convention and I do not choose to take any further action in the matter at all. The committee never instructed me to report it back but I did it in order that there might be no just complaint of the action of the committee, and the matter is now with the Convention.

MR. BROOKS‑I think I ought to be heard upon this matter, for I am the author of the report.

THE PRESIDENT‑ The question is not up for discussion at this time.


4072                  

OFFICIAL PROCEEDINGS

MR. BROOKS‑I simply want to make a motion that the ordinance and the accompanying minority report, this "long‑winded document," as it has been characterized, might lie over and be printed.

MR. O'NEAL (Lauderdale)- That is required by Rule 47.

THE PRESIDENT‑ It seems to the Chair, with reference to the statement made by the chairman of the Committee on Legislative Department, that the committee may bring in the report or not as it pleases. If the committee does not instruct the chairman of the committee to make a report, the Chair does not know any method whereby the matter could be brought before the Convention, except by a vote, under the rule, recalling the matter from the committee, but if the committee makes a report, and brings an ordinance back into the Convention, whether it be reported favorably or unfavorably, it seems to the Chair that the matter would be before the Convention for consideration.

MR. HARRISON‑ It appears from the statement of the chairman of this committee that the committee has not instructed him to make a report, and that there is no report properly here from this committee. I move that the report be recommitted to the committee.

MR. O'NEAL‑I desire to call attention to Rule 47: "When any ordinance is introduced, it shall be read at length and be referred by the President without a vote being taken unless otherwise ordered, by a two-thirds vote of the Convention, to the appropriate committee. No ordinance shall be reported back from any committee until after the lapse of one entire legislative day. When any committee shall have reported to this Convention any article or section of tile proposed Constitution, the said article shall again be read at length, and three hundred copies thereof printed for the use of delegates; and such article or section shall lie on the table at least one day and until in regular order it shall be taken up for consideration by the Convention."

Now it is argued here that this report is by the minority, but as the Chair has suggested, it makes no difference whether by a majority or a minority of the committee, it is a report, and when it is reported, it ought to be over and be printed for the consideration of the Convention in its regular order.

THE PRESIDENT‑ The point the gentleman from Lee makes is that the chairman of the committee has the authority, according to his own statement, to make the report, and in the opinion of the Chair, the chairman of the committee could not by way of indulgence, or courtesy to a member of the committee, bring in a report, unless he was authorized by the committee to do so.


4073

CONSTITUTIONAL CONVENTION, 1901

MR. O'NEAL— I call for a reading of the majority report.

THE PRESIDENT‑‑ The Chair declines to have the report read any more.

MR. O'NEAL— The majority made a short report.

THE PRESIDENT‑‑ The gentleman from Montgomery states that is not a report from the committee.

MR. OATES‑ It is not a report of the committee. I did it as a mere courtesy to my colleague, Mr. Lomax, the author of the ordinance, and the gentleman from Mobile (Mr. Brooks) and so stated.

MR. LOMAX‑ The committee, through its chairman, having returned this ordinance to the Convention, another member of the committee cannot take the ordinance back from the possession of the Convention. Now, in what I shall have to say, I have no complaint to make of the action of the chairman of the committee, nor do I desire to criticize his action nor the action of the committee, but I submit to the Convention and to the Chair that a committee of this Convention, by refusing to make any report, or by indefinitely postponing a matter before that committee, cannot cut off the right of a minority of that committee to make a report of that matter to this Convention. The minority of a committee has some rights as well as the majority of the committee, and if by the action of the committee itself, that matter would never come back to the possession of this Convention, then I submit that a minority, even though it consists of but one member, has a right to come before this Convention, and state these matters, or have them stated, and to make a minority report upon the proposition, and that is what has occurred here. The chairman of the committee has returned the ordinance, as I understand it, to the Convention, and when he does that, then a minority of the committee, consisting of the gentleman from Mobile, has made a minority report. Now we have the right under those circumstances, we say, to have this rule observed and to have that ordinance lie over and be printed for the consideration of the Convention, in justice to the right of the minority of the committee which have been shut off as it were by a motion made in the committee to indefinitely postpone the proposition. It seems to me that the matter ought to take the course laid down in the rules which is that it shall lie upon the table and be printed for the information of the Convention.

MR. OATES– I want to correct one statement. I did not return the ordinance, but a copy of it, for the purpose of making the report of the minority intelligible. I had no right in view of the action of the Committee to return the ordinance. They voted not to return it, but to indefinitely postpone it. That fact is stated in the short report I sent in.


4074                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ The Chair will state that when the Committee on Rules had under consideration this question, the rule in the former House of Representatives in reference to an adverse calendar was considered and the Committee decided not to report any rule for an adverse Calendar, or that when a question was adversely reported by the Committee it should go on the adverse Calendar and shou1d be taken up on a certain vote, but decided to adopt in lieu thereof this Rule 43:

"And ordinance or resolution may be recalled from a committee by a vote of the majority of the whole number of the delegates elected to the Convention."

That is where a committee has a matter which it refuses to report or ad verses, or indefinitely postpones. Now if a minority of the Committee could, without regard to the wishes of a majority of the Committee bring any matter before the Convention, it seems to the Chair that it would operate to abrogate this rule which provides when a matter has been considered in committee, and the majority of the committee have decided adversely to it, and have voted to indefinitely postpone it, that the matter cannot come before the Convention contrary to the wishes of a majority of that Committee, unless recalled by a vote under Rule 43, which requires a vote of the majority of the whole number of delegates elected to the Convention.

MR. SANFORD (Montgomery)– I rise to a question of information. When a Committee has reported to the Convention that they have indefinitely postponed a certain resolution or ordinance is that not itself a report?

THE PRESIDENT– The distinguished Chairman of the Committee on Legislative Department states that he makes no report for the Committee, and is not authorized to make any report, and therefore the Chair would rule, unless a motion was made to recall this matter from the Committee that it is not properly before the Convention.

MR. BROOKS– I rise to a question of personal privilege. I want to say that if the Chairman of the Committee on Legislative Department had not, when I approached him on the subject, promised me that he would not make a report, I certainly would not have made a minority report. I never was notified of the meeting at which the action of this Committee is alleged to have taken place; although I saw the Clerk of the Committee going around here and notifying members, still I knew nothing of it. I do not know how many were present, whether there were seven, or ten or twelve. All I know is that the ordinance offered by the gentleman form Montgomery (Mr. Lomax) was adverse. When I went to see the Chairman of the Committee an told him I never had been invited to that meeting of the Committee, and I had no opportunity


4075

CONSTITUTIONAL CONVENTION, 1901

to make a minority report be said, very well, I will make a report and let me make a minority report; otherwise I should never have taken the trouble to make the minority report.

MR. LONG (Walker)‑ On yesterday, it is well known, while ordinance No. 404 was up for passage. I changed my vote from aye to no for the purpose, as stated then, of moving a reconsideration of that ordinance this morning. I ask your attention to Ordinance 404, because one of the most intelligent members on this floor yesterday evening voted against the ordinance and told me he did it because he thought it left the impeachment of sheriffs exactly like it was in the old Constitution.

It merely seeks to strike out of Section 28 of Article V. the report on Executive Department these words: "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."

This ordinance repeals only these words that I have mentioned. The Committee on Impeachments, of which I have the honor to be a member is unanimously in favor of this ordinance.  Whether wisely or unwisely, the impeachment of the Sheriff is removed from the county, and is placed before the Supreme Court of our State.  Now I submit, to give the Governor power to fix judgment before trial on any case, is a most radical departure indeed from time-honored tinstones, and is contrary to every republican form of government in the world. It is placing the power in one individual, not only to try the case, and to render judgment, but that man can hear but one witness, or he may take a newspaper report if he wishes, and suspend that sheriff from office. This suspension carries with it the idea of guilt or a failure to suspend carries with it the idea of innocence. I say it is a radical departure, and I speak in behalf of the Sheriffs of the State. I have seen them from every section of the State of Alabama and I have not seen one of them in this State, who did not rebel at the idea of the Governor being allowed to suspend them from office without a trial. It is done for the express purpose, and no other purpose, of trying to prevent lynchings in the State of Alabama as we all know. Lynchings in so many instances are to be deplored but in some cases, as I said here yesterday, they are right. It makes no difference who says they are not. If the time should ever come in the South when it is not the disposition to lynch for this unnamable crime, why sir, this crime will grow an hundred fold all over this State anti all over the South. You might place in the Governor's Chair of the State of Alabama some man who would suspend every Sheriff where a lynching occurred, no matter what the circumstances might be. Some men think, and honestly think, it is the duty of a man to die in defense of a dog, if the dog is in his protection. Other men differ from them. The Governor might


4076                  

OFFICIAL PROCEEDINGS

say, “Well, while he was not taken from you, he was taken from your deputy, and it was your duty to be there, and therefore I suspend you form office.” I submit, Mr. President, that Governors are no better than the common people of this country. If they are, why not let them try the case and settle it? Why do you want the Supreme Court to sit on it after the Governor has made up his verdict? He is forced to make up his verdict before it ever reaches the Supreme Court as I said before, it is a most radical departure, and it should not be adopted by this Convention. The sheriffs in Alabama are good people. A man has to be a good man in order to be elected sheriff. I never was a candidate for sheriff, because I was satisfied I would be defeated, and I have never known one of my kinsmen to be a candidate for sheriff. I have no personal interest in this matter directly or indirectly, but, in the name of justice, why do you want to pick out one official, and only one, in the State of Alabama, and give the Governor the right to suspend him. You cannot justify it. It is a direct slap at every sheriff in this State, and they are the men who stand behind the guns, and they are the men who, if they organize against this Constitution, will defeat it and you know it you have removed the impeachment proceedings from the counties. I thought that was wrong.  I thought the sheriff, like everybody else, should be allowed to be tried in his own county, and before jurors of his own county, but a majority of the committee and of the Convention decided differently yesterday, and I yield to them. All that I ask is that you take away the right of the Governor, when satisfied after hearing the sheriff, that he should be impeached, to suspend him from office.  It might take twelve months or two years to have his case settled, and for him to get a hearing, you bring him down here and suspend him from office, and you disgrace him. Rather than that, you better have one man rule in this State you might as well have a King and be done with it. What right has any one man to judge of my guilt or my innocence without hearing the evidence? How can you justify it? You know it is contrary to every known principle of law. Every man is supposed to be innocent until he is proven guilty. It is a rule as old as the Bible or the law itself.

MR. SANFORD (Montgomery)– His term might expire before he is tried by the Supreme Court.

MR. LONG– Of course it might, and it would expire in many cases.

THE PRESIDENT – The time of the gentleman as expired; the gentleman from Montgomery.

MR. HEFLIN– I move that the rules be suspended and his time be extended for a few moments.

THE PRESIDENT– The gentleman from Montgomery has the floor.


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MR. LONG‑I think there is a motion to extend my time.

MR. JONES (Montgomery)‑I move to suspend the rules and extend his time.

THE PRESIDENT‑ How long?

MR. JONES ‑ Fifteen or twenty minutes.

THE PRESIDENT ‑Hadn't the gentleman better make it an hour? We have plenty of time.

MR. O'NEAL (Lauderdale)‑I move to extend it ten minutes.

MR. PILLANS– Why not make it thirty minutes? We are doing nothing. We might as well extend it thirty minutes. (Laughter).

Upon a vote being taken, the motion to extend the gentleman's time ten minutes was carried.

MR. LONG‑I am thankful to this Convention and I am especially thankful to the distinguished gentleman from Mobile, who tries to ridicule the idea of an extension of time, because he is opposed to the cause. He is opposed to it in principle, and doesn't want to hear the members of this Convention discuss it, and ridicule it by saying thirty minutes, as we are doing nothing.  I thank him for his words, but it is a blow below the belt and unjustified by any action upon my part.

This is a most serious matter. It is a departure from every principle known to a republican form of government. The Governor, as great as he is, can make errors, and can make mistakes, and they have made mistakes, and will make them in the future.  The Governor has no right to suspend a man from office who is elected by the people. You must remember that he is not appointed by the Governor, and does not hold his term of office at his pleasure, but he is elected by the sovereign people, the same people that elect His Excellency, the Governor. It is an entirely new proposition. The Article on Executive Department, I contend had no right to go into the Article on impeachments and take out the sheriff from that Article so far as relates to his impeachment.

Now, I referred to the fact that a time may come in the State of Alabama, and I repeat it, when we may have a sheriff here, and, no matter how a lynching may happen in his county, the Governor will suspend that sheriff whenever it occurs. It is well enough to sit up here in Montgomery and advocate a cause of this sort, where the electric lights shine all night, where the police and military are within a few minutes’ call of the sheriff, but it is a different thing in many of the rural districts of the State. There often the office pays so little that the sheriff can have but one deputy, and a mob of 500 men might arise, and justly arise, and overpower the sheriff,


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or, under pretense, as is often done, that they have a prisoner to put in jail, take a man out and lynch him, and yet you have it written in the fundamental law of the land that the Governor may suspend that sheriff at pleasure. I never thought I would see the time in Alabama when any man would rise up and advocate such a cause, or when a majority of any convention would advocate giving more power to one man than to the people themselves. That is what you do in this ordinance. A delegate upon this floor told me it amounts to nothing; let it stay in there; we would never get a Governor who would carry it out, but, gentlemen, we might, and it is making a Czar out of the Governor. Why, when you drag a sheriff down here from North Alabama to be tried before the highest court in the State, is he not then far enough removed from any influence that he might have? But you say by this that the Supreme Court of the land will not do justice in the matter. You say that when you insist on this section being retained in here, because you say to the Governor, you must make up your verdict for the Supreme Court; you brand him as guilty or innocent, before the evidence is ever submitted to any tribunal authorized by law to try him.

I hope this Convention will consider this proposition. On the question of a compromise, I want to say to the friends of the measure who voted for the sheriff to succeed himself on yesterday, that I never agreed to a compromise. I said then, and I repeat it, that I was talking to a sheriff of the State of Alabama, President of the Sheriff’s Association, and he told me he would a thousand times rather have this Article on Impeachment out of the way than be allowed to succeed himself. It is a question of principle. He said here in Montgomery, where he had the protection of the police force and military, he had no idea that there could ever be any lynching in Montgomery when he once had his hand upon the prisoner, but he said it was for others, and the principle involved is the reason the sheriffs rebel against it.

MR. MULKEY– Isn’t it a fact that under the law, when solicitors are indicted for any crime, they are suspended from office, pending an investigation of that crime?

MR. LONG– He is suspended by the law, but not by an action of the Governor. If you want to suspend the sheriff, suspend him by law. If you want to hang him, hang him by law; but do not let it be by one man. Do not let it be that the sheriff may have to go to him and say, “Governor, most Excellent Governor, give me my right to be heard. Oh, please, do before suspending me from office.” That is exactly what you require by this Article.

MR. O’NEAL– Unlike the gentleman from walker, I have not consulted with the sheriffs or any other office-holder in Alabama to determine what action I shall take as a delegate in this


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Convention.  I deem it proper to vote upon every question presented, according to the dictates of my judgment, regardless of whether it incurs the favor or displeasure of any class of officeholders in Alabama. I think it is beneath the dignity of a delegate in this Convention to rise here and tell us what would be popular and what unpopular with the President of the Sheriffs' Association.  The question for us to determine is what is right; what ought we to do to advance the interests, not of sheriffs, but the best interests of the people of Alabama. That is the question. I had always understood that this was a government by the people, but after listening to this debate, it would occur to an ordinary man that this was a government of the sheriffs, by the sheriffs and for the sheriffs.  Now, I have no disposition to do injustice to the sheriffs; no disposition to deprive them of any office to which the people elected them, unless they violate the law of the land. The courts of the land say that public office is a public trust, to be administered for the good of the people and not for the interest of any class of office holders. That is the Democratic doctrine, and that is the doctrine declared by the courts. No than has any right of property in an office. The Supreme Court has decided, in 52 Ala.: “No doubt a citizen who has been elected according to law to an office has an interest in and a right to it, on complying with the conditions prescribed by law, upon which he is authorized to take and hold it but being an agent therein, or servant of the public, he is subject, like other employes, to the rules and regulations ordained by those who created the agency, and for whose benefit it exists." I would call the attention of the delegate from Walker to what the highest tribunal of the State says in answer to his proposition that the fact that the sheriff is elected to an office makes it his personal property.  The court says:  "The fact that he has been elected to it by a popular vote does not exempt him from the obligation to conform to stick regulations, or, on failure to do so, from being dismissed in the methods and by the officials appointed by legislative or con5titutional enactment, for the protection of the public interests."  Therefore, if, by constitutional enactment, the people of Alabama, in convention assembled, should deem that the public interests require that a sheriff who is cowardly in the discharge of his duty should be suspended from office by the Governor, it is as legal and constitutional as any other provision written in the fundamental law. Why should the clot be suspended? They say it is antidemocratic. The President can suspend any executive officer, and a solicitor can be suspended under our law. The declaration of our Constitution is that the Governor is the chief executive officer of the State, and must see to it that the laws are executed. The sheriffs are the subordinate and executive officers of the State. You say to the Governor, you must see to it that the laws are executed, and yet you will not give him power to see that his subordinate agents obey the law. Now, look at it from a practical standpoint, and I appeal to you as delegates of the people of Alabama, acting


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regardless of considerations of popularity, or unpopularity, to say whether the provision does not tend to prevent mob law and violence. You know, as a matter of fact, that since the close of the civil war, not a sheriff in Alabama has been impeached for permitting a prisoner to be taken by lawless force from his custody and murdered. The gentleman from Walker says that we ought to put it in the fundamental law of this State that we favor mob violence; that law is a failure; that we, the delegates of the people of Alabama, in convention assembled, must rise up here and solemnly announce to the civilized world that we are incapable of self government, and must relegate law to a mob. That is the proposition which he coolly makes to this convention. Why, gentlemen, take the gallant little State of South Carolina, where the conditions are the same as in Alabama.  What do they do?   They declare when any man is taken by a mob and executed in any county of that State, that county shall pay the sum of $5,000 to the widow of the person who was mobbed. I just want to say one more word in conclusion, that we should not stop and hesitate or falter in our duty, or pander to what are supposed to be the interests of the sheriffs; that we ought to consider what will best secure law and order and the best interests of the people of Alabama. I say the only way by which you can enforce law and order; the only way by which you can prevent a sheriff from a cowardly submission to a mob, is holding over his head the power of suspension. Can any man in the sound of my voice deny that in every case where a prisoner is taken from the custody of the sheriff, when confined in jail that it is not done with his connivance?  I say that, wherever the sheriff does his duty, the mob fails to get his prisoner.  Now, Mr. President, I move that the motion of the gentleman be laid upon the table.

THE PRESIDENT– The motion of the gentleman from Lauderdale is that the motion be laid upon the table.

MR. REESE– I call for the ayes and noes.

The call was not sustained.

A vote being taken a division was called for and by a vote of 41 ayes and 55 noes the motion to table was lost.

MR. COBB‑I have him a great deal to say, but it does seem to the that in a matter of this importance, and that it is important is conceded by everybody, some consideration should be given to the officers of Alabama that we have tinder consideration. The proposition which has already glassed this body to allow the sheriffs to be impeached before the Supreme Court is in itself bad enough, in my judgment, but we do not seek those who are friendly to the sheriff, and their cause to disturb that matter, but the further proposition, that during that impeachment he should be suspended from office by the Governor, is in my opinion, scarcely less than


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monstrous. It is wrong in principle, and it is wrong in policy.  My distinguished friend from Lauderdale brings his law book and discusses the proposition. The law quoted has no more to do with the question at issue than I have to do with an eclipse of the sun.  Who has ever advanced the proposition here that an office was property? How is it involved in the question under discussion here? If the gentleman had read further from the decision from which lie quoted he would have found that the Supreme Court of Alabama does, with emphasis, say that in an office a man has an interest, and further, that around every officer of the State of Alabama is thrown the protection of the law. I speak without critical examination, but I venture the assertion that we have never had before in the Constitution of the State of Alabama, any provision suspending any officer pending investigation charges against him.

MR. JONES (Montgomery)‑ What about the Governor?

MR. COBB‑I do not know about the Governor. Do you say that is true about the Governor?

MR. JONES‑ Yes, sir.

MR. PILLANS‑ How about solicitors?

MR. COBB‑ There is nothing in the Constitution about solicitors. There is a provision by legislative enactment allowing the Circuit judge to suspend a solicitor when he is under indictment but there is not a word in the Constitution. Why not make this a matter of legislative enactment?

MR. PILLANS‑ Are we to understand that the enactment would be unjust if provided for by the Constitution, and would be just if provided for by legislative enactment?

MR. COBB‑ I assert that proposition.

MR. PILLANS‑ You assert that it would be quite just to suspend pending trial if by act of the legislature, and quite unjust if it be by the act of this assembly?

MR. COBB‑I say so, but the word "just" used in that connection is hardly the proper word to use. In the abstract it would not be unjust to do any thing this Convention sees proper to do, but I say it is wrenching the office of sheriff from its proper connection, putting it as an exception here by the constitutional provision in the fundamental law of the land. That is what I assert.  I want to say this so that I may not be misunderstood, that I dissent into too.  I will say, in that particular, from my friend from Walker. I believe the sheriff ought to protect every prisoner to the extent of his authority. I do not believe in mob law for one offense more than another. I believe that around every jail in this State should be drawn the circuit of the law, and that that circle


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should be more potent in its influence to protect than ever was Richelieu’s circle of the Church. That is my position, and that no man has a right to put his unhallowed foot for violence within that charmed circle which the law draws around every jail. As I said on a former occasion, and I repeat it, that the walls of the jail, be they weak as gossamer, should be as adamant against unholy and unlawful entrance from without, but while that is my conviction.  I do not believe that the officers should be held to this extraordinary responsibility. My belief is that within the State of Alabama there are no more faithful officers than the sheriffs of the various counties of the State, and I say this from a long official acquaintance with them. I know them as well as any man upon this floor, and no officer as a general rule more promptly obeys the process of the court. I know they try to protect their prisoners in all cases-‑perhaps not as efficiently as they might sometimes, but that is no reason that they should be dragged before the Chief Executive on an ex parte showing, and suspended from office during the time a judicial investigation is pending against them. Let us be fair to these officers, and not be swept from our feet because now and then a sheriff has not protected as he ought to have done, perhaps, a prisoner in his custody.  Let us deal fairly with them as men and officers who are true to the trusts committed to them.  They have a right in their office–not a property right, it is true, but a right of which they should not be deprived except upon a fair hearing, when they can meet the charges against them.  What is the effect of the Section here? It is strongly stated by my friend from Walker.  It is judgment to some extent, of guilt without a hearing.  Now let this ordinance stand.  Let the Supreme Court try it.  I shall not complain about that part of it, but let us treat these men like every other officer of the State, and not condemn them until an investigation has been had, until he can be heard–do not let us denounce him in advance.  In the case to which my friend refers, “In the case of the impeachment of the Governor, his removal from office, death, refusal to qualify, resignation, absence from the State, or other disability, the President of the Senate shall exercise all the power and authority appertaining to the office of Governor until the time appointed for the election of the Governor shall arrive, or until the Governor who is absent or impeached shall return or be acquitted or other disability be removed.” Perhaps it is well that exception has been made against the highest official in the State of Alabama.  There is none here with regard to those who exercise judicial functions.  It has no place in the Constitution, and further the Governor would be tribal before the Senate as a court of impeachment.  It has been suggested, suppose he is suspended from office before a hearing, and there is perhaps a delay of one or two years, and while he is out of office, his compensation ceases.  That decision of the Supreme Court says that a sheriff and every other officer has an


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interest in the perquisites of his office. I do not like this idea of considering and reconsidering and all that. But I regard this as a matter of extreme importance, and I say you should not select this class of men for a peculiar denunciation.

MR. JONES (Montgomery)‑ I make a motion now to reconsider the vote by which two terms were given to the sheriff.  I voted for that.

Mr. Ester took the Chair.

MR. KNOX‑I move that consideration on the motion be postponed until after the consideration of the present motion.

THE PRESIDENT PRO TEM‑ The motion is to postpone until after the consideration of the present matter.

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

The President resumed the Chair.

MR. WILSON (Clarke)‑I move that the privileges of the floor be extended to the Hon. J. D. Poole, Representative from Lowndes County.

A vote being taken, the motion was carried.

THE PRESIDENT‑ The gentleman from Montgomery (Mr. Jones) will be recognized at the afternoon session.

Thereupon the Convention adjourned.

____________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 111 delegates present upon the call of the roll.

THE PRESIDENT‑ The gentleman from Montgomery was recognized this morning to discuss the question we had under consideration when the Convention adjourned.

MR. JONES (Montgomery) – Nothing but an imperative sense of duty would induce me to appear before the Convention at this time.   Believing that great consequences are to follow the fate of this ordinance, I ask the Convention to pardon me for a few moments, while I discuss the principles that enter into it.

MR. WILLIAMS (Marengo) – Mr. President, I move the suspension of the rules and that the time of the gentleman from Montgomery be extended until 4 o’clock, as otherwise his remarks will be broken.

Upon a vote being taken, the motion was adopted.


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MR. JONES‑ There are some, Mr. President, who believe that embodied in this Convention is the dignity and power and majesty of the sovereign people of Alabama, and its representatives are here to discharge the most solemn duty that could be committed to man so far as the welfare and happiness of Alabama is concerned. Engaged in that duty one of the committees submitted certain propositions to this Convention which after long debate it adopted. Afterwards the same matter came from another Committee, and has been debated and the Convention refused to depart from its first decision. Now we are asked to reconsider. What are the arguments by which this Convention, which represents the sovereignty, power and majesty of the people of Alabama ‑I say what are the arguments by which we are met? They are addressed not to reason, nor to our wisdom, but to our fears. We were told by the gentleman from Walker if we did not legislate according to our fears rather than our consciences, certain of our officials would pull down our work over our heads. It is the first instance I remember, Mr. President, where so august an assembly has been met by such an argument, and where the delegates of a free people have been threatened to incite their fears instead of appealing to their consciences. I know that that appeal will not affect many of my hearers. I believe so far as the adoption of the Constitution is concerned, that when our work here is done, it will be either overwhelmingly approved by 100,000 majority, or buried by an equally adverse vote. Too many great hopes, too much affecting the weal and woe of those who are to come after us, are wrapped up in our work for any set of men to pull it down, simply because they do not like its effect on them. I hope that argument will be dismissed.

It is said there is something new in this proposition– that is unheard of, Mr. President, it is singular to me that gentlemen so learned in the history of our institutions and laws should permit themselves to make such a statement. Ever since 1819 there has been a provision in our Constitution that the highest officer of this State, the man trusted with the pardoning power, the man trusted with legislative power in a large share, the man who can put every citizen of Alabama under arms and who typifies in his person as near as one man can, the majesty and power and glory of the law, if he were impeached, should be suspended from office and another should discharge his duties until he was acquitted. That has been the law from 1819 to this hour. We have had for years upon our statute book, a law that when a solicitor was indicted, ipso facto, he was suspended until the proceedings were terminated. We had for year upon our statute books, and enforced until it was declared unconstitutional by the Supreme Court, a law authorizing the Governor to suspend Tax Collectors and Tax Assessors. One reason, and I mention it in answer to the question why this was not left to the Legislature, is that the Supreme Court declared that


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under the present Constitution, it was not within legislative competency to suspend a Tax Collector or Tax Assessor, or authorize the Governor to do it. We did not wish that there should be any doubt as to that power. Now if the delegates will dismiss froth their minds who it is that may be impeached, and, leave it out of view the history of our institutions, in which this principle is indebted, if they will put all of that aside, and look at it purely as a  matter of common sense‑ business sense‑ they will see that it is nothing extraordinary‑ that the sovereign people who can thus administer their government to suit themselves, think it wise and proper to entrust their head servant with the power, under certain circumstances, to suspend others of their servants. It is done in every day life. There is not a man within the sound of my voice who could not go to his plantation for a year, who would put an overseer there in charge and tell him "You shall not suspend any of my employes, no matter what you think of their conduct, until they are convicted of doing something wrong.” There is not a business enterprise in Alabama where the manager does not have the power absolutely to dismiss subordinate officials. It is a law of order; it is a law of necessity. You have to have such a rule, if you will ever get the best results.

Mr. President, I am no enemy of the sheriffs. It has been my fortune to be with them often in the discharge of this disagreeable duty of protecting criminals, sometimes to cooperate with them, sometimes as their subordinates, sometimes when I was chief and director. I have never found them, as a rule, averse to doing their duty except where it grew out of a false standard of duty and the idea that the Sheriff was the judge of the innocence or guilt of his prisoners and not bound to uphold the majesty of the law if the prisoner was humble or vile or guilty. My friend from Macon spoke of this proposition‑ and I think his words were it was outrageous— applied to the proposition that the Sheriff could be called to account before the Supreme Court of Alabama. Another gentleman has said that we mistrust the people by insisting on impeachment before the Supreme Court. So far as I am concerned, I do not hesitate to say that in some matters I do distrust the passions and prejudices and the weaknesses of localities. I am not so willing as far as my vote or voice can influence to approve the doctrine that a high official, like the Sheriff, is wronged because he is not put on trial among his retainers and his friends.  There is not a man in Alabama, there is not a man in this house who does not know it would be worse than farce to put a Sheriff on trial in a county where a mob reigned supreme and took a prisoner away from him, and arraign him before a jury in the community where that mob came from. We had an example in a neighboring county not long ago. A mob took three prisoners, not charged with rape, in broad daylight, in God's open sunlight, and carried them off to a lawless death. The Circuit judge made one of the strongest


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charges to the grand jury that was ever delivered from the bench.  He said: "It is your duty to indict. You have called God to witness that you are going to discharge your duty. These citizens have been murdered.  There is Tom Williams who saw it, and there is so and so who saw it. Now go out and find a bill." From that day to this there has been silence. No bill has been returned.  and the majesty of the law is powerless and trampled down, because it could not find voice and expression in the locality where it was sought to be invoked.

Some years ago, when the Governor had no power to direct a Sheriff to be impeached, when a Governor of this State inquired of a Sheriff the circumstances under which a man was taken from jail and mobbed, the Sheriff answered back in defiance and contempt, that he was foolish, that it was none of the business of the Governor of Alabama whether a man was hung or not. Take this county adjoining us where, by common report, and also from what I learned from officers who were there, the Sheriff deliberately misled the armed power of the State which was sent there to see to it that justice was meted out according to law, and in the darkness of night, put them on a false trail in order that the mob might work its will upon its victims. The Governor of Alabama was powerless. In the interest of law and good government, ought not the Governor has power to suspend such a Sheriff until tried? In our sister State of Mississippi recently two women and a man, not charged with rape not charged with active participation in any crime, were taken front the Sheriff and led out to death, with the Governor of the State telegraphing the Sheriff, "I have troops to aid you. Do your duty." Judges and officers, I saw it stated in the papers, hung on the neck of the leaders of the mob and begged them for the sake of Mississippi not to do that deed. Yet this Sheriff, who stood there with the power of Mississippi at his call, declined to call for the military for fear there might be trouble between them and the mob, and folded his hands, and Mississippi was stained by the blood of citizens taken by lawless violence. Ought the Constitution to give the Governor power to suspend such a Sheriff?

Where is the harm in this proposition? It is said that the Governor might ruthlessly suspend all the Sheriffs. That is a mere phantom of the imagination. The Governor is not going to raise up mobs‑ he is not going to have people killed by mobs. The Governor is the man who by one stroke of his pen can arrest the execution of the whole criminal law. He is the Chief Magistrate of nearly two million people. Can't he be trusted? Can't he be trusted to do justice to one of his subordinates? We all know that in matters of this sort the human heart, even in the breast of an executive is weak, and that when it comes to meeting out punishment, the chances are that he would be lenient


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in exercising the power of suspension, rather than prone to exercise it even in a proper case.

As illustrating my argument, I call the attention of the Convention to some words of Justice Amos R. Manning of Mobile, a man who has long since gone to his reward, but who is venerable in our jurisprudence and who has left a cherished memory behind him. Here are his words:

"The offices themselves, if property at all, are the property of the people of the State.  They are merely occupied by persons who are in the employment of the State as its official. They may, not improperly, be considered as organs of the body politic, to which belong important functions in the political system ; without the regular and proper performance of which functions there cannot be in the body politic‑ the State‑ that vigorous life and health which are necessary to constitute a prosperous and honored commonwealth. We have therefore, more than once during this term, repelled the idea that the offices of the State are property in the sense in which it has become common so to regard them.

"No doubt a citizen who has been elected according to law to an officer has an interest in and a right to it, on complying with the conditions prescribed by law, upon which he is authorized to take hold of it. Put being an agent therein, or servant of the public, he is subject, like other employes, to the rules and regulation ordained by those who created the agency, and for those benefit it exists. The fact that he has been elected to it by a popular vote," upon which my friend from Barbour dwelt, "does not exempt him from the obligation to conform to such regulation, or on failure to do so from being dismissed in the methods and by the officials appointed by legislative or constitutional enactments, for the protection of the public interests."

Why is it wrong, why is it unwise, for the sovereign people of Alabama represented here, mindful of a great evil, to say to these peace preservers in the different counties, these deputy Governors, so to speak, in the preservation of the peace, you may be suspended if you don't do your duty. Why is it unwise or improper to say to them, “we regard this evil as so far reaching in its consequences that we intend to quicken your diligence, and we notify you now that when you take this office, which you are not bound to take, which you are not compelled to take, one of the terms upon which you take it is that in certain cases the overseer of the State, the Governor of the State, after hearing you, may, if he thinks, you have been direct, suspend you from office, until you are tried and acquitted or condemned." We are seeking to preserve, in a large measure, our civilization, by curbing a terrible evil. We cannot afford, by word or deed, here or elsewhere, to give life and germ to the idea that all our civilization must be broken down because in some locality, here or there, there may be some vicious


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criminal, whom his neighbors and those who suffered by him, desire to die by lawless methods rather than on the altar of justice which the State of Alabama has erected. Mr. President, has it come to this, that the great fundamental law that distinguishes all civilizations, and particularly ours, that no man shall be deprived of life, liberty or property, but by due process of law, is to be broken down, because, here and there, there may be some brute who, so far as he is concerned, deserves any punishment which may be meted out to him by lawlessness, breeds a cancer on the body politic, and incites and quickens all our evil passions, and rushes us on to practices and sentiments that are fatal to good government ?

THE PRESIDENT‑ The gentleman's time has expired.

MR. HEFLIN (Chambers) ‑Would it be necessary to make a motion that the further consideration of the question be postponed until tomorrow? I believe the special order comes up now.

THE PRESIDENT‑ It seems to the Chair that the special order would come up at this time and displace the matter under consideration, in the absence of some motion to displace the special order.

MR. COLEMAN‑I would like to say that I hope the delegates will withhold any judgment on the remarks of the gentleman from Montgomery until they have heard a reply to it, at least. I believe the special order now is that of the solicitors.

THE PRESIDENT‑ The question would be, this Article was ordered engrossed and to a third reading, and it was read a third time and passed. A motion was made to reconsider the vote whereby it was passed and that motion was reconsidered. The question will now be upon the final passage of the Article.

MR. COLEMAN‑ Mr. President, I would like to inquire as to the parliamentary ruling, whether it would be out of order to move to recommit it to the Judiciary Committee?

THE PRESIDENT‑ It seems to the Chair that it would not be in order to move to recommit. The Chair understands that a motion to recommit, or a motion to amend, is cut off when an Article, under our practice, is ordered engrossed and to a third reading.

MR. COLEMAN‑I would make the further inquiry, then would it be in order to move to lay the Article upon the table?

THE PRESIDENT‑ The gentleman can make the motion.

MR. SAMFORD (Pike)‑ I would like to suggest—


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THE PRESIDENT‑‑ The gentleman from Greene has the floor.

MR. SAMFORD ‑ With the permission of the gentleman from Greene, I would like to suggest to the Chair that the work on Parliamentary Practice, which the Chair has before him, lays down the rule that whenever a question is under debate, that a motion to recommit is in order, and it further lays down the rule that whenever the question has been submitted to the house for its approval or disapproval, it is sufficiently under debate to make that motion. If the Chair desires, I could furnish that authority out of the work which is open before the Chair.

THE PRESIDENT ‑‑ A motion to recommit?

MR. SAMFORD‑ Yes, sir.

THE PRESIDENT ‑ Cushing?

MR. SAMFORD ‑Yes, sir.

MR. GRAHAM (Talladega) ‑ Is there any motion before the house?

THE PRESIDENT‑ There is no motion before the house.

MR. O'NEAI,‑I desire to make parliamentary inquiry. What would be the situation of the pending matter if we displaced it now?

MR. HINSON‑I rise to a point of parliamentary inquiry.

THE PRESIDENT‑ The delegates will be seated. The Chair cannot recognize so many at once.

The Chair recognized the gentleman from Greene.

MR. OATS‑ If the gentleman from Greene will allow me one word. I rise merely to request the Chair that when the motion gets in shape, before it is settled, I would like to be heard upon the parliamentary status of the question.

THE PRESIDENT ‑The Chair would be glad to hear from the gentleman from Montgomery.

MR. HOWZE‑I think the matter we had under consideration ought to be determined as to its status.

THE PRESIDENT ‑ The present status is that the question is on the final passage of the Article.

MR. HOWZE‑ I have reference to the matter under consideration before we reached this.

MR. O'NEAL‑ What is the status of it?


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THE PRESIDENT‑ That was temporarily displayed by the special order for this hour, and it will be in order as soon as this matter is disposed of.

MR. O'NEAL‑ If it is displaced, wouldn't it take the regular course on the calendar?

THE PRESIDENT‑ In the opinion of the Chair, it would come up immediately after this matter is disposed of.

MR. SAMFORD‑ Mr. President—

THE PRESIDENT‑‑ Does the gentleman from Greene yield?

MR. SAMFORD‑ I desire to read him an authority. Section 1521 in Mr. Cushing's work says: "In many of the American legislative assemblies, it is the practice, by a special rule, to specify both what motions shall be used and the order in which they should be moved, for disposition of the business before the assembly. The rule of the House of Representatives of the United States, which has been extensively copied in other legislative bodies, is as follows: `When a question is under debate, no motion shall be received but to adjourn, to lie on the table, for the previous question, to postpone to a day certain, to commit' (or as we undertake now to commit), `to amend, to postpone indefinitely; which several motions shall have precedence in the order in which they are arranged. In the particular application of this rule, the following points are to be observed.’ * * * *Section 1522 says:

Sec. 1522 — "A subject is sufficiently under debate to come properly within this rule, when it has been proposed from the Chair as a question for the decision of the House."

 

MR. COLEMAN‑ In addition to that, Mr. President, I would call attention to Rule 48 of our rules, under the head of Regulations Governing the Adoption of Ordinances.

THE PRESIDENT‑ What rule?

MR. COLEMAN‑ Rule 48, page 78, "Ordinances and reports may be recommitted at the pleasure of the Convention." I do not suppose, Mr. President, that my time will be counted when we are advising with the Chair as to the question of order? I find that under Rule 48.

THE PRESIDENT‑ I suppose the gentleman is now speaking to a question of order?

MR. COLEMAN‑A question of order simply. I want to say to the delegates to this Convention that there is some way by which the will of this Convention may be arrived at. I do not know what the ruling of the President will be, but I judge that if the motion to recommit will not lie at this time, but which I will


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make if the Chair will entertain it, surely the motion to lay upon the table will be in order, and I propose to say to this Convention that a motion to lay upon the table does not defeat this Article at all. The only effect will be to have the report brought in by the Committee, or one substituted for it, and when that takes place, it is open then to amendment, and we have all the authority, then, under all the rules, under which we have been acting to amend this section, and to adopt the whole Article without any trouble or debate, and then an amendment will lie directly to the section now under consideration. .

MR. BEDDOW‑I rise to a point of order. As I understand, there is no motion now before the house.

THE PRESIDENT‑ The question before the house is on the final passage of the ordinance.

MR. COLEMAN‑ Now, I did not wish any person to be misled. Some might think that by voting to lay on the table, they would defeat the Article. That is not so. The Article will come up, and the same Article will be presented here just as it is now, or with an amendment, either, it makes no difference; but when the Article is presented, then the amendment we wish to make will be in order and pertinent. The shorter way, and the more direct sway, I understand, from the rule just read from Cushing, and also from our own rule, would be to recommit at this time, but if the Chair rules that out of order, then on a motion to table. I hope the delegates will sustain the motion that it may come up regularly, and we can amend the section if a majority of the Convention desire to amend it in that way, and no difficult or delay will occur.

MR. HEFLIN (Chambers)‑Do I understand that another Article, the same as this, with exception as to the election of Solicitors, will be offered in its stead?

MR COLEMAN‑ Yes, sir; there will be one offered, or you can offer the same if you wish to. It will be open to amendment then. There will be no trouble about it at all, and I do not wish the members to be misled in thinking that if they voted to lay this on the table they would be thereby defeating the Article.

MR. WALKER‑I would like to ask a question.

MR. COLEMAN ‑ Go ahead.

MR. WALKER‑ If the majority chooses now to lay the Article on the table, that same majority, we may presume, will decline to take it from the table until it is made entirely satisfactory to them.

MR. COLEMAN ‑ We have a new ordinance prepared to refer at once, unless they do it with a simple amendment which


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brings it up properly, and there can be no delay. It is only arriving at what a majority of this Convention desires, according to the rules, as interpreted by the President of the Convention.

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

THE PRESIDENT‑ The Chair does not feel authorized to take the gentleman from the floor to entertain a parliamentary inquiry. The Chair will entertain a parliamentary inquiry when the gentleman from Greene is through.

MR. GRAHAM ‑In view of the fact that the gentleman said he was going to move to table, I thought that it would be too late.

 

THE PRESIDENT‑A parliamentary inquiry would not be too late.

MR. COLEMAN ‑If I am in order I move to re‑commit.

THE PRESIDENT ‑The Chair will hear from delegates on that question. The Chair has made no final ruling on that point.

MR. COLEMAN‑ That is my motion then.

THE PRESIDENT‑ The Chair would be glad to be advised by delegates experienced in such matters.

MR. SAMFORD (Pike)‑ Mr. President. I am not especially experienced in such matters, but I have another authority handed me by the delegate from Dallas.

THE PRESIDENT‑ Will the gentleman read it?

MR. SAMFORD ‑It is the Rules and Practices of the House of Representatives. It says: "A bill on the third reading is not to be committed for the matter or body thereof, but to receive some particular clause or proviso."  It seems this authority says "A bill on the third reading is not to be committed for matter or body thereof, but to receive some particular clause or proviso.  It has sometimes been suffered." Now a suggestion merely. This Article is before this Convention for its approval or disapproval. The Convention by a majority of its votes, upon a test vote, has indicated that the Convention is opposed to the Article as framed.

MR. FITTS‑ Didn't it four times indicate that it was in favor of it as framed.

MR. SAMFORD‑ The question is impertinent and has no place in a parliamentary discussion. It makes no difference if it decided it four hundred times, the last time it was submitted to the Convention it was decided otherwise, and the old adage is that wise men reserve their right to change their minds. Now, with the Article before the Convention, it seems a preposterous propo‑


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sition that the majority cannot manage it as it sees proper. We have precedents in the authorities I have cited, for the recommitment of an Article when it was upon its third reading. That is done for the purpose of permitting a Committee appointed by this body to perfect the article that it may be in a proper condition for the approval of a majority of the delegates. It is the intention of this body, as I conceive it, to get at the will of a majority, and parliamentary tactics were never intended to permit a minority of a body to finally thwart the will of the majority. It is the rule in all bodies that a majority shall frame the laws. It was the intention of the people who sent us here that a majority of this Convention should frame this Constitution, and with the precedents before us, in the shape of as high authorities as can be submitted, I see no reason why this Convention cannot order this article back to the Committee from whence it came, to be put in proper shape.

MR. CUNNINGHAM (Jefferson)‑ Will the gentleman permit a question?

MR. SAMFORD‑I am such a poor parliamentarian that I am afraid to be interrupted by the scimitar of the gentleman from Jefferson. I merely make these suggestions so that the delegates may see that we want to proceed about this matter in the best way for our people.

MR. GILMORE‑ Will the gentleman yield to a question?

MR. SAMFORD‑ Nor to the scimitar from Clarke. (Laughter)

THE PRESIDENT‑ The gentleman declines to yield.

MR. SAMFORD ‑ We desire simply to arrive at the best conclusions. The best way to arrive at that is from the report of the Committee. The thing has gotten to where a majority is not in, favor of the article, and it does seem to me that the wisest thing that we can do is—

THE PRESIDENT‑ The Chair would like to ask the gentleman a question?

MR. SAMFORD (Pike)‑ Certainly.

THE PRESIDENT‑ If the Article would not be open to an amendment in the Convention, would it be open to an amendment in the Committee?

MR. SAMFORD‑ The proposition is this` Whenever an Article is referred to the Committee, it is done under the authority that I last sent to the Chair, for the purpose of re‑arranging a particular Section in the Article‑ for that purpose and for no other.


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MR. SOLLIE‑ Will the gentleman yield to a friendly inquiry?

MR. SAMFORD  ‑Yes, sir, if it is friendly.

MR. SOLLIE‑ Well, it is this, I am friendly to your object.  Why could not this Article as it now stands be amended. Is it final-having voted upon it and passed it in open Convention.

MR. SAMFORD‑I simply say, the rulings of the Chair are against it, and I am not sufficiently well versed in parliamentary law to answer that question. I am simply addressing myself to the question of recommittal.  Mr. President, as I understand the rule with reference to articles, after a third reading has been by reason of the construction of the Chair of parliamentary law in our actions heretofore, we have no special rule upon that subject.  There is no rule of this Convention that prohibits even any kind of an amendment upon a third reading.

THE PRESIDENT‑ The purpose of the Chair in asking for information is the Chair desires to be informed before making a final ruling. The idea of the Chair was, if this Article could be amended in Committee, it could be amended here, because the Committee is a mere agency of this Convention, and the creature could not do what the creator could not do.

MR. SAMFORD‑I admit that, and I will address myself to that now.

THE PRESIDENT‑ If it could be amended there, it could here.

MR. SAMFORD–Wilson’s Digest of Parliamentary Law says: “On third reading clauses may be added or amendments made which have been before rejected, and clauses made left out of the bill which have been inserted at any previous stage.”  There is the authority.

MR. GRAHAM (Talladega)‑Is that authority in that book?

MR. SAMFORD–I don’t know anything about the book except what I have read.   It is Wilson’s Digest of Parliamentary Law, I am not familiar—

MR. GRAHAM–It is the application that I want to ask the gentleman about–not the book.

THE PRESIDENT–Please send up the authority.

MR. SAMFORD– Yes sir.  Now under the authority read before, if this Convention can do nothing else it can recommit with instructions to the Committee. If it can recommit at all, as is held by Mr. Cushing, it may be recommitted without instructions.

MR. O’NEAL–We have not got to a third reading.


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MR. SAMFORD— Yes —

THE PRESIDENT‑ The Chair cannot permit a running discussion between members. A running discussion on this point will not be in order.

MR. SAMFORD‑ The same authority, Wilson's Digest of Parliamentary Law, says: "After a third reading it is too late to recommit it generally, but it may take this course to rescind the particular clause or proviso, it is not to be recommitted for the matter or for the body thereof or for the purpose of being divided into two bills"‑-concurring with the authority sent up prior to that time. Now this article has not had a third reading as it stands. That has been reconsidered by this Convention, and before it can be finally passed again, it must be read again to this Convention. Now it seems that all the authorities which I have been able to find, or which have been handed to me, hold that a recommitment under certain circumstances can be had, to wit, with an instruction from the Convention. With those remarks I submit this authority.

THE PRESIDENT‑ The Chair will hear from the gentleman froth Montgomery.

MR. OATES‑ Questions of parliamentary procedure are always interesting, though many times complicated and not easily comprehended. It is competent at certain stages of any proceeding, a bill or otherwise, to do certain things. There is a time to offer amendments, there is a time for motions to be made to recommit with or without instruction, but a period is reached after a while which nothing of that kind is in order. Now I am not going to follow my friend from Pike in going out and discussing the merits of this matter, because I am speaking to the President upon the parliamentary question. Now, sir, in this case, it seems that the motion is for a recommittal without instruction. If a measure is subject to be recommitted, it can be recommitted with or without instruction. In this case it seems the motion is to recommit without instruction, and in connection with it the delegate from Greene discusses an alternative proposition, that if it is not recommitted that then a motion to table is the thing to do and intimates that that will be done. Then as it has been brought up, I wish to remark on that, incidentally in passing, if this entire Article be put upon the table, then sir, it cannot be considered while on the table, it must be taken there from by the same authority that put it there before it can be made the basis of farther action. That is a well settled rule, or the Committee could, of course, originate a different thing—

MR. COLEMAN (Greene) ‑ May I ask the gentleman a question?

THE PRESIDENT‑ Will the gentleman yield?


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MR. OATES‑ Yes.

MR. COLEMAN ‑Would it not be entirely in order if that is done to offer an ordinance, an exact copy of this with the exception of that Section, to be referred to the Judiciary Committee?

MR. OATES‑ Yes, but it raises another question whether the Judiciary Committee could bring in the same thing that had been laid upon the table.

MR. COLEMAN ‑If it is a different thing?

MR. OATES‑ Well, if it is not the same thing, of course they could do that. Now, I wish to offer some authorities entirely applicable to this question. Now, sir, this from which I read is not only the rules by which Congress is governed, but it also embraces Barclay's and Jefferson's Manual of Parliamentary Law, and the most valuable part of it is the digest which gives precedence, rulings and decisions of the Speakers of the House and the President of the Senate, which have been concurred in and accepted as proper expositions of questions of parliamentary law not settled by rules. Now, sir, on the proposition to recommit it is stated "Committal to the Committee which has reported a measure, or recommitted — recommittal is the action usually taken when numerous amendments have been adopted, or when it is found necessary to rearrange the text of a bill. The motion to commit or recommit is of the same rank with the motion to amend, and in the house is in order at any time that an amendment would be in order and none others." Then : "A motion to commit with instructions or to report a certain amendment is not in order if the proposed amendment is not in order as an amendment to the bill. The journal, first volume, 48th Congress, page 1247‑48." In this case it would be impossible for them to amend because the motion to pass this Article, to order an engrossment and third reading of it, has been passed, and a motion made to reconsider, and that voted down and table. So it is not in a condition where before that period it was open to amendment.  Its condition is unlike it was then and an amendment could not be offered, so the motion to recommit without instruction to bring in a different proposition upon this particular thing, because that could not be offered as an amendment here. Now, sir, can it be done anyway?   In Congress committals and recommittals are made, but listen to what is said: "It is in consequence of this rule it shall be in order pending the motion for or after the previous question shall have been ordered, on the passage for the speaker to entertain and admit a motion to commit with car without instruction, to a standing or select Committee. This rule is construed to permit but one motion to recommit, which motion is amendable as other motions until the previous question is ordered thereon."  Now, in the absence of that rule here is what is declared: "A motion to commit or to recommit would not be in order after the


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order for the engrossment and third reading of a bill had been passed, but for the express provisions of Rule 17." Now you have no Rule 17 here, and this is an enunciation of well recognized settled parliamentary law. After the engrossment and third reading of the bill it is then too late, and it cannot be done in the absence of an express rule. That is held without dissent.

MR. HARRISON‑I will ask you if Rule 48 of this Convention which reads as follows: "Ordinances and reports may be recommitted at the pleasure of the Convention, is not fully as broad as Rule 17 of the House of Representatives, under which they hold it could be recommitted.

MR. OATES‑ The trouble about it is that it is not applicable all along the line. They may be recommitted at any time so long as they are amendable, but when they pass beyond that state, the motion then under that rule is not allowable.

MR. SAMFORD (Pike) ‑Will the gentleman permit an interruption just there?

MR. OATES‑ Yes.

MR. SAMFORD‑I desire to ask the gentleman if Rule 48 says anything about amendments‑ is it not absolute?

MR. OATES ‑ I have just read the general parliamentary rule, and it is only when the measure is subject to amendment.

MR. COLEMAN‑ There is Rule 48 which governs.

MR. OATES ‑ I have read it before, but that is not broad enough. The proper construction of it is that it is applicable so long as the measure is amendable, and no farther than that. It has frequently been decided that "it is not in order to move to recommit a bill with instructions to bring in a report which would not be in order if offered in the House." The House having voted to strike out what it is proposed to instruct the committee to report, though they have not offered any instruction here it is exactly what they are trying to reach. It is not in order to move to recommit with instructions to report the original matter as a substitute for or amendment to the bill in its present status." So ruled by Speaker Carlisle, reported in The Congressional Record in Volume 1, 49th Congress.

THE. PRESIDENT‑ What was the ruling of Speaker Carlisle?

MR. OATES‑ That it had been frequently decided that it is not in order to move to recommit a bill with instructions to bring in a report which would not be in order if ordered in the house.  It is very similar to the question propounded to the delegate from Pike a while ago. "The house having voted to strike out what


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it is proposed to instruct the Committee to report," or desire them to report is the same thing. "It is not in order to move to recommit with instruction to report the original matter as a substitute for, or amendment to the bill in its present status." That is in harmony with other decisions made by Speaker Carlisle, a Speaker who was the finest parliamentarian that ever sat in Congress, probably never had an equal in the United States, and probably few if any in any country, who was three times Speaker of the House, never was reversed, and but one single appeal taken from his decision in which he was overwhelmingly sustained, and he was so impartial as well as able, that at the conclusion of his third term he was presented with a fifteen hundred dollar silver service by the Republican side of the House. I think that these authorities settle this question, unless the Chair holds that the little rule they have read here applies all along the line and in every case even after a bill has been engrossed and sent to a third reading and is on its final passage, that it may be then recommitted and to reach a question which has already been adjudicated and passed upon fully by the Convention.

MR. CUNNINGHAM‑ It appears to me that the ruling of the Chair is eminently correct and not only in accord with parliamentary law, but with the rules of this Convention. In support of that position, let us consider for a moment what is the purpose of ordering an ordinance engrossed. It is that it may be correctly written and having incorporated in it in the proper place, all the amendments that have been proposed by the parliamentary body.  Now then we remember that this engrossment can only be ordered by a majority of the Convention on a motion to engross, it appears therefore that none but a majority of the Convention can pass upon the engrossment and when the majority orders it engrossed it is proof that the Convention is satisfied with its work. Now we sometimes change our minds, and therefore our rules wisely provide for reconsideration. A motion was made to reconsider the section about which there is contention here, and that was defeated. A motion was then made to order the article engrossed and read a third time, and the motion was made to reconsider the vote by which the article was engrossed and read a third time, and that also was defeated, and therefore, there was nothing for the Convention to do under our rules which prohibit a motion to reconsider twice after it has been defeated once than to go ahead and read the article and pass upon it, and which the Chair held this morning that a motion to reconsider the vote by which the ordinance was passed was in order he was eminently correct but it simply opens the outer door, but the inner door is locked by the special rule of this Convention after you move to reconsider the order by which it was read the third time. The gentleman from Greene has raised the question that the majority ought to do what it pleases. A majority cannot suspend the rules, else it would not


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require two-thirds of those voting to suspend the rules. The presumption is that there is no ordinance passed by this Convention that is not an expression of the majority, and that subsequent to the time when such action has been taken the matter has been adjudicated. I agree with the gentleman from Greene that there should be a remedy. He can introduce an ordinance on the whole judiciary article amending it, substituting it; he can introduce an ordinance amending any particular section by striking out or inserting—

MR. COLEMAN‑ You say it would be in order now to offer a substitute?

MR. CUNNINGHAM‑ No, sir, not at all, that would have to take the regular course. It would be in the form of a substitute, which would be an amendment, but in effect it would repeal certain sections or ordinances. I undertake to say that a motion to recommit‑ a question that the Chair asked the gentleman from Pike‑ was a correct question, and the opinion of the Chair upon that question is correct, that if this Convention cannot amend under its rules it would be impossible to delegate that authority to a committee. Now we have a remedy, we can pass this ordinance and it can be amended, and I understand there is an ordinance somewhere that has been introduced for the purpose of amending this article. It can be defeated straight out. That is a question upon which gentlemen who are opposing this particular section can take the responsibility.

MR. HEFLIN (Chambers)‑ May I ask the gentleman a question ? Does the gentleman remember an ordinance on this same line was introduced and referred to the Judiciary Committee?

MR. CUNNINGHAM‑ Yes, I remember that.

MR. HEFLIN‑ Does the gentleman know that they indefinitely postponed that ordinance.

MR. CUNNINGHAM‑I ha ve no personal knowledge of that, but I presume it is true.

MR. HEFLIN ‑Then does the gentleman hold if the Judiciary Committee refuses to refer back an ordinance that the Convention has reached the position in here it is bound—

MR. CUNNINGHAM—  That proposition I deny because the rules of this Convention provide that any gentleman upon the floor can move that a committee be discharged from any further consideration of an ordinance, which brings it before the Convention, and therefore there is a remedy with regard to that ordinance or any other ordinance, but we cannot go on forever and forever, reconsidering an article which has been settled, because they might have two or three each day and we would not know when the work


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was done. I simply rose to say that the position taken by the Chair in my judgment is impregnable, eminently fair, just and proper, and that the opponents of this question under discussion have a remedy, but it seems that they will not move to suspend the rules by which this could be amended, or that they are afraid of a committee or afraid that the Convention will not discharge the committee from further consideration. If they will not adopt the the parliamentary rules that we are all governed by, I cannot see why we should at this time undertake to set aside the consistent, fair and just parliamentary rulings of this body that have governed this body ever since‑ we met. In regard to the status of a measure that has been ordered by the Convention engrossed and read a third time.

MR. HINSON‑I understood the gentleman to say that the Convention refused to reconsider the vote whereby it ordered this article to a third reading and engrossment?

MR. CUNNINGHAM –Yes, sir.

MR. HINSON– I want to inquire if it would not be in order to rescind the action of this Convention? Move to rescind the action of the Convention whereby it refused to reconsider the vote whereby it ordered this article to a third reading—

THE PRESIDENT– That would be merely a second motion to reconsider, which the rules seem to prohibit.

MR. HARRISON— I desire to address myself briefly to the parliamentary question—

THE PRESIDENT‑ The Chair will be unable to hear unlimited discussion on this point. The Chair will hear from the gentleman from Lee, and will then announce his ruling.

MR. HARRISON– I would ask the Chair to send to me by the page the authority sent up by the gentleman from Montgomery, as I desire to compare the ruling of Congress therein referred to with our own rules. Admitting, Mr. President for the sake argument, that the general parliamentary law is, as has been insisted by gentlemen on the outer side, I submit to the Chair that the very authority submitted by the delegate from Montgomery with reference to the ruling of Speaker Carlisle, and Rule 17 of Congress, clearly show that under that role the rights, to recommit was entertained. That rule reads as follows: "It shall be in order pending a motion for, or after the previous question shall have been ordered on its passage for the speaker, to entertain and submit a motion to commit with or without instruction, to a standing or select committee." Our Rule No. 48 reads thus: “Ordinances and reports may be recommitted at the pleasure of the Convention." I submit that our role is broader. This rule of Congress specifies, nominating certain kinds. Our rule reads “at


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the pleasure of the Convention," which would he read between the lines at any time at the pleasure of the Convention. It occurs to me, Mr. President, that the very authority which I will return to the Chair, handed by my friend, the delegate from Montgomery, is no broader than Rule 48, which can have but one meaning, "at any time at the pleasure of the Convention," and therefore, whatever may be the final result of it, that the motion of the delegate from Greene to recommit this matter to a Committee is under our rules clearly in order.

THE PRESIDENT ‑The Chair is not without difficulty in reaching a conclusion on this question, especially in view of the number of authorities which have been presented, but it seems to the Chair, speaking first to the point made by the gentleman from Lee, which seems to be vital in the case, that our Rule 48 is not as broad as the rule referred to in the authority cited by the gentleman from Montgomery, for the reason that in the case cited lay the gentleman from Montgomery, the rule provided for a recommitment even after the previous question had been ordered. After a bill had been ordered to a third reading it specifically so provides. The rule reads as follows : "Pending the motion for or after the previous question shall have been ordered on its passage, for the Speaker to entertain and submit a motion to commit, with or without instructions, to a standing or select Committee." Now that our rule is not so broad, or intended to be so broad, seems to be made sufficiently clear by the fact that under Rule 25 a motion to commit is of inferior rank to a motion for the previous question, Rule 25 reads:

"When a question is before the Convention, motions may be received in the following order, to wit:

"First‑ To fix a time to which the Convention shall adjourn.

"Second‑ To adjourn.

"'Third‑ To lay on the table.

" 'Fourth ‑ For the previous question.

"'Fifth‑ To postpone to a certain day, not beyond the probable duration of the session.

"'Sixth– To commit.' "

And all the authorities hold that a motion to commit and a motion to recommit are of the same rank.

MR. HARRISON ‑Pardon me‑ our own Rule 48 is entitled "to recommit?"

THE PRESIDENT–Yes, says to recommit.


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MR. COLEMAN‑ Allow me to make a suggestion. Would the President hold, as a judge of law that a statute which said that a question may be recommitted at the pleasure of the Convention, meant the same thing as if it had said "may recommit at the pleasure of the Convention," except upon the previous question.  Now construe this as you would construe a statute of law, and it is as clear as any question can be.

THE PRESIDENT‑‑ The Chair understands a motion to commit, and a motion to recommit are of the rank. When the Convention commits a question to a Committee and it comes back from the Committee, it may be recommitted, and it seems that a motion to recommit is of the same rank as a motion to commit. All the authorities hold to this view. This authority of Congress says: "A motion to commit with instructions to report a certain amendment is not in order, if the proposed amendment is not in order." This same authority says: "The motion to commit or recommit is of the same rank with the motion to amend, and to the House, is in order at any time that an amendment would be in order." But when the Convention has considered an Article, Section by Section, it is then before the Convention for amendment or for recommittal.  A number of these sections of several of these articles, while they were being considered, were recommitted to the Committee, and it was in order to do so, but after the Convention passes from the state of amendment, and the entire article is ordered to be engrossed and toy a third reading, (the object of engrossment is to incorporate the different amendments into the Article), and when it comes back from the Committee on Engrossment, it does not seem to the Chair that it is then open to amendment. Some authorities hold that when a question has been reconsidered, it comes before the Convention just as it stood before it was passed.  That is true where there has been only one step taken in the passage of the Article, but where there have been sundry successive votes, as, for instance, votes on amendments, or votes whereby the bill was ordered engrossed, or to a third reading, a reconsideration of the final vote will not be effective beyond the reconsideration of that vote, as stated by Mr. Cushing in Section 1273 in his work on legislative practice: "The effect of this principle is that when one motion to reconsider has been made and decide, either in the affirmative or negative, or is still pending, no other motion to reconsider the same question is admissible." And in Section 1275, the same, author says: "It is a general principle with regard to reconsideration that at a subsequent stage there can be no reconsideration of a preceding vote in relation to the same subject, without first voting to reconsider such subsequent votes: thus, after a bill has been read a third time and passed, it is then too late for a motion to reconsider the vote ordering it to a second reading, or rejecting an amendment proposed at that stage, unless the second reading of the bill is first reached by a reconsideration of the preceding vote.


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This other authority, "Reed's Parliamentary Rules," says that "whenever the main question has been decided in the affirmative, the motion to reconsider an amendment previously adopted would not be in order. It would be necessary first to reconsider the vote by which the main question was passed, and if the reconsideration prevailed, then the motion to reconsider the amendment would be in order.

"In general, it may be said that if the assembly desires to reconsider an act, it must retract in regular order all subsequent action which affects the act to be reconsidered."

When each section of this Article was up before the Convention, it was open to amendment, and it was amended in various particulars. After each section had been taken up in regular order, it was open to amendment by adding additional sections, but  it has always been understood in this Convention that after an Article was ordered to be engrossed and to a third reading, that this order cut off further amendments, and it seems to the Chair that if it could not be amended in the Committee, and the authorities hold that a motion to commit or recommit is of the same rank as a motion to amend, and if a motion to amend is cut off, a motion to recommit is cut off. The special rule which has been referred to, Rule 48, does not seem to the Chair to authorize a recommitment of this Article at any stage; otherwise, after the final passage of the Article which we have just reconsidered, it could be recommitted. The Chair understands this Rule 48 simply to declare the general parliamentary law on that subject. The rule in Congress is more specific, and states specifically that it may be recommitted even after the previous question has been ordered; therefore, it seems to the Chair that a motion to recommit would not be in order at this time. If it were in order to recommit with authority to amend, then three separate votes of this Convention would be rescinded or abrogated without being reconsidered. The previous question was ordered, then the Article was ordered to be engrossed and to a third reading. and then again the vote to reconsider this vote was defeated. I do not think our rules contemplate anything of this kind. The Chair does not think the motion to recommit is in order at this stage of the proceedings.

MR. HEFLIN (Chambers)‑ I desire to renew the motion of the gentleman froth Greene for the purpose stated here—

MR. REESE‑I ask that the gentleman yield to me to make a parliamentary inquiry.

MR. HEFLIN‑I suppose that the Chair had once ruled that a parliamentary inquiry could be made after a motion to table is made.

THIPRESIDENT‑ Does the gentleman yield?


4104                  

OFFICIAL PROCEEDINGS

MR. HEFLIN‑I would be glad to yield, but I fear I would lose my place to make the motion to table. Will the gentleman make a motion to table the whole Article?

MR. REESE‑ I will make any motion you suggest.

MR. HEFLIN‑ I will yield to you, then.

MR. REESE‑ I desire to read one section and ask the opinion of the Chair on another question. As I understand the Convention has reconsidered the vote—

MR. GRAHAM (Talladega)‑We object to tentative parliamentary inquiries put to the Chair when the question is not before the house.

THE PRESIDENT ‑If the gentleman will send up his authority, the Chair will examine it.

MR. REESE‑ I desire to ask if it is not in the power of this Convention now, by a vote, to rescind its action ordering the previous question on the adoption of this engrossed Article, and to rescind its action ordering it to a third reading, although it may be now too late to reconsider the vote. The point is this—

THE PRESIDENT‑ The Chair ruled on that point the other day. It is perfectly competent for the Convention to repeal any article that it has passed, but as the rules require that a proposition of that sort should pass through three readings, it should go through the same formula that the original article passed through, just as a bill in the Legislature to repeal any act formerly passed would have to go through the same formula.

MR. REESE‑ According to my agreement with the gentleman from Chambers, I now move—

MR. HEFLIN‑ The gentleman yields to me to make that motion. I now move. Mr. President, and the Convention understands the purpose of this motion, that the Article be laid upon the table.

MR. PETTUS‑ And upon that I call for the ayes and noes.

The call was sustained.

THE PRESIDENT‑ The motion is to table the Article as reported by the Committee on Judiciary. As many as favor the motion to table will say aye, and those opposed no, as their names are called.

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

AYES

Messrs. President,

Barefield,

Browne,

Almon,

Beavers,

Burns,


4105

CONSTITUTIONAL CONVENTION, 1901

Carmichael, of Colbert,

Heflin, of Chambers,

O'Rear,

Carmichael, of Coffee,

Heflin, of Randolph,

Parker (Cullman),

Coleman, of Greene,

Hinson,

Proctor,

Coleman, of Walker

Howze,

Reese,

Duke,

Inge,

Rogers (Lowndes),

Eley,

Jackson,

Samford,

Eyster,

Jenkins,

Sanford,

Ferguson,

Jones, of Montgomery,

Searcy,

Glover,

Kirk,

Selheimer,

Graham, of Montgomery,

Knight,

Smith, Morgan M.,

Grant,

Locklin.

Sollie,

Grayson,

Long (Walker),

Waddell.

Greer, of Calhoun,

Lowe (Jefferson),

William (Marengo),

Greer, of Perry,

Macdonald,

Wilson (Clarke),

Haley,

Martin,

Wilson (Washington),

Handley,

O'Neal (Lauderdale),

Harrison,

Opp,

TOTAL‑55

NOES

Altman,

Freeman,

Norwood,

Ashcraft,

Gilmore,

Palmer,

hanks,

Graham, of Talladega,

Parker (Elmore),

Bartlett,

Henderson,

Pettus,

Beddow,

Hood,

Phillips,

Bethune,

Jones, of Bibb,

Pillans,

Blackwell,

Ledbetter,

Porter,

Boone,

Lowe (Lawrence),

Reynolds (Chilton),

Brooks,

Malone,

Sanders,

Byars,

Maxwell,

Sloan,

Cardon,

Merrill,

Smith (Malone),

Cofer,

Miller (Marengo),

Smith, Mac. A.,

Cunningham,

Miller (Wilcox),

Spragins,

Davis, of DeKalb,

Moody,

Spears,

Davis, of Etowah,

Mulkey,

Walker,

Dent,

Murphree,

Watts,

Espy,

NeSmith,

Williams (Barbour),

Foshee,

Norman,

Winn,

TOTAL‑54

ABSENT OR NOT VOTING

Bulger,

Jones, of Hale,

O'Neill(Jefferson),

Burnett,

King,

Pearce,

Case,

Kirkland,

Renfro,

Cornwall,

Kyle,

Reynolds (Henry),

Craig,

Long (Butler),

Robinson,

Fletcher,

McMillan (Wilcox),

Rogers (Sumter),

Howell,

Morrisette,

Sorrell,


4106                  

OFFICIAL PROCEEDINGS

Stewart,

White,

Willet,

Studdard

Whiteside,

Williams

Tayloe,

PAIRS

AYES                                     NOES

Carnathon,

Chapman

Cobb,

Leigh,

deGraffenreid,

Fitts,

Jones, of Wilcox,

McMillan (Baldwin),

Lomax,

Pitts,

Weatherly,

Oates,

Sentell,

Thompson,

Vaughan,

Hodges,

Foster,

Weakley,

THE PRESIDENT–On casting up the vote it appears that there are fifty-five ayes and fifty-four noes, so the motion to table prevails.

MR. BLACKWELL–I call for a verification of the vote.

MR. SANDERS (Just as the verification was completed and before the vote, according to the verification, was announced.)—   Perhaps this is not a parliamentary expression, but I counted the vote as fifty-five and fifty-five and therefore the motion to table fails.

THE PRESIDENT–Will the gentleman come up and assist the Secretary.

MR. REESE–I object.

MR. PROCTOR–I make the point of order that no delegate is allowed at the desk of the Secretary while the roll is being called.

MR. LOWE (Jefferson)–I move a suspension of the rules in order that the gentleman from Limestone may assist the Secretary.

MR. OATES–I do not think it is necessary.  While the rule excludes delegates from the Clerk’s desk, the presiding officer has a right to invite any delegate on this floor to go there and assist the Secretary.

THE PRESIDENT–The Chair hears no objection, and the gentleman will check over the list.

MR. LONG (Walker)‑‑Before the vote is announced, in order to give better satisfaction to all the delegates here, while I do not question anybody's veracity, I make a motion that the Clerk be required to again verify the vote.


4107

CONSTITUTIONAL CONVENTION, 1901

MR. HEFLIN (Chambers)‑ I object. It has been verified to the satisfaction of everybody.

MR. COLEMAN (Greene) ‑ I object. Two have verified it, and gentleman has been called up there to assist the Clerk in counting it.

MR. LONG (Walker)‑ I withdraw the motion.

THE PRESIDENT ‑ Upon casting up the vote it appear that there are fifty-five ayes and fifty-four noes, and the motion to table prevails.

MR. WILLIAMS (Marengo)‑I ask unanimous consent to introduce a short ordinance.

Objection was made.

MR. REESE‑I move that the rules be suspended and that he be allowed to introduce the ordinance.

Upon a vote being taken, a division was called for, and the Convention, by a vote of fifty-one ayes and fifty noes refused to suspend the rules.

MR. LOWE (Jefferson)‑ I desire to make a parliamentary inquiry as to the status of Ordinance No. 429, the ordinance that

the Chairman of the Judiciary Committee returned to the house this morning. As I understand, that was not the report of the Committee and the Chair so held. I desire to know in that view of the case, if that ordinance is not still pending before the Committee, and if such be the case I desire to offer a resolution instructing the Committee to report it.

THE PRESIDENT ‑‑‑Yes, sir: it is before the Legislative Committee.

MR. LOWE‑I ask leave to introduce a resolution instructing that Committee to report it.

MR. WATTS–What ordinance does the gentleman refer to?

THE PRESIDENT‑ That providing for a quadrennial session of the legislature. The gentleman asks leave to introduce a resolution. Is there objection?

MR. LOWE‑I was misinformed as to the number. If I can move verbally, I move that the Committee on Judiciary be instructed to report the ordinance before them to amend the section on the Judiciary report relative to sheriffs.

MR. GRAHAM‑I make the point of order that the motion is now in order because the Article on judiciary has just been tabled, and therefore is not before this Convention.


4108                 

OFFICIAL PROCEEDINGS

MR. LOWE ‑If there is objection, I shall not insist upon it.  My only purpose was to assist the action of the convention upon the judiciary report.

MR. WILSON (Clarke) ‑‑Before this matter is gone into, I have a privileged motion pending, which is the order now, and I want to call it up. On Friday, I moved to reconsider the vote by which the Article on Municipal Corporations was ordered to a third reading and engrossment, and by consent the motion was set down for today. I have been waiting all day to call it up, and I make the motion now.

MR. LONG (Walker)‑ I make the point of order that the motion goes over to the head of unfinished business. I do not care to displace the gentleman, but it was displaced by the special order set for a certain hour and therefore it goes over.

MR. WILSON‑ This, Mr. President, had precedence to that.

THE PRESIDENT‑ The Chair has been in some difficulty in reaching a conclusion on the motion made by the gentleman from Clarke, but the Chair has reached the conclusion that when the gentleman obtains the floor and makes his motion, it would be in order to move to make it a special order. That was the motion that was made by the gentleman and the Chair is inclined to make the same ruling with reference to this motion made by the gentleman from Jefferson. As the question is up, I might as well decide on it. Rule 43 says: "Any ordinance or resolution may be recalled from the Committee by a vote of the majority of the whole number of delegates elected to the Convention."

That motion might be made the special order by a vote of the Convention; otherwise, the Chair is unable to see how any delegate would get the benefit of this rule recalling any matter from the Committee. A motion, however, of that kind would not displace the regular order, unless it was displaced by a majority vote of the Convention, but it seems to the Chair that any delegate who gets recognition may enter his motion, and then if he pleases move to make it a special order.

MR. ASHCRAFT‑I desire to call the attention of the Chair to the rule which provides that every morning the roll of the Convention shall be called to allow delegates to introduce any resolution they may see fit. Now, how can the gentleman—

THE PRESIDENT‑ The Chair heard the gentleman from Lauderdale and the gentleman from Clarke very patiently on this motion, and took the matter under advisement, and the opinion the Chair reached is that the motion may be entered, and it would go over as unfinished business. unless the Convention directs otherwise.


4109

CONSTITUTIONAL CONVENTION, 1901

MR. WILSON‑I do not think it would be necessary to reach it by a motion to set this matter as a special order. I think if the Convention will listen to me a moment, we can dispose of this matter in the time it would take for setting a special order. I first move that the reconsideration of the Section which has just been placed on the table be made the special order immediately after the reconsideration of this article. Then I make the motion to reconsider the vote by which this Article was ordered to a third reading. That motion is now up. If that motion is carried, then to accomplish what I want, I would ask to make the motion to reconsider Section 6 a special order, but the Chairman of the Committee which acted on this matter, and the gentlemen who introduced the ordinance originally and who pressed its adoption on this floor has agreed with me and those who think as I do, on a substitute to this section, and I do not think there will be any objection whatever to the substitute upon which we have agreed, and  therefore I shall ask after briefly stating, the reasons, that this substitute be accepted by unanimous consent in lieu of Section 6 as it now is in the report of the Committee on Municipal Corporations.

THE PRESIDENT‑ The Chair is unable to understand how the gentleman is going to displace the special order which is the pending question, the motion to reconsider, unless he does so by a vote of the House, or by unanimous consent.

MR. WILSON‑ This matter was made a special order for today. The reconsideration was the first order of business after the reading of the Journal on Saturday, but by consent, it went over until today. It is a reconsideration and that gives it preference to other business.

THE PRESIDENT‑ Does the gentleman recollect if there was any vote of the Convention of the kind? The Chair does not recollect that it was submitted to the Convention.

MR. WILSON‑ It does not require a vote to make that the special order. I entered the motion and under the rules it goes over until the next morning.

THE PRESIDENT‑ Then the gentleman gave notice that he would move, or did make a motion to intake it the special order.

MR. WILSON‑ Not that, but the Section, a motion to reconsider, which had been laid upon the table. I wanted, in the first place, to reconsider the vote whereby the Article was ordered to a third reading. That would have been unless I could have reconsidered the vote whereby the Section I was after was adopted.  The motion to reconsider that Section has been laid on the table.  In order to get at that, I moved that be made a special order immediately after we considered this other. That was a matter of right.


4110                                          

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ Does the gentleman say that, upon his motion, this Convention did, by a vote, make it a special order?

MR. WILSON‑ No sir, some gentleman interposed a point of order that I could not make a motion to make Section 6 the

special order. The Chair said he would hold the matter under advisement and that matter is still under advisement.

THE PRESIDENT‑ The Chair now rules that the gentleman can make the motion to make it the special order.

MR. WILSON— Then the Chair overrules the point of order interposed by the gentleman from Bibb?

THE PRESIDENT–  Yes sir.  The Chair has heard no motion which would authorize the gentleman to occupy the time of the Convention.

MR. WILSON–The motion has heretofore been made.  Mr. President and the gentleman interposed a point of order against it.

THE PRESIDENT–The motion was to make this the special order, but the Convention did not make it so.

MR. WILSON–Well, I will make it right now, to make a long matter short.

MR. LONG (Walker)–I rise to a point of order.

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

MR. LONG–It is this: This unfinished business cannot be displaced by a point of order to make anything a special order, after we have gone into the consideration of it.  Now then it was displaced at 4 o’clock by the special order that was voted for by this House on yesterday.  That was right and proper, but if it can be displaced now by a motion to make a special order then it would be impossible to ever reach it unless by unanimous consent of the delegates here, and we could never reach a vote.

THE PRESIDENT–The gentleman from Clarke made his motion; it was in order before the Convention, and the Chair merely held up the ruling on it, and it seems to the Chair the motion would have precedence, and that the Chair ought not by merely withholding a ruling make him lose its place.  The Chair will entertain the motion, and then take up the point of the gentleman from Walker.

MR. WILSON–I moved immediately after the disposition of the motion to reconsider the vote whereby this Article was ordered to a third reading, and engrossment, that the reconsideration of Section 6 be made the special order.


4111

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ It is moved to reconsider the vote whereby Section 6 was adopted, or laid on the table?

MR. WILSON‑I move that it be made the special order for reconsideration immediately after the determination of this matter, of a motion to reconsider the vote whereby the Article was  ordered to a third reading.

THE PRESIDENT‑ In the opinion of the Chair it is not in order to reconsider a vote whereby a Section was laid upon the table.

MR. WILSON‑I did not intend to reconsider the vote whereby it was laid on the table, but to reconsider the vote whereby it was adopted. In other words, to take from the table, and to make it the special order for consideration as soon as this other question is disposed of.

THE PRESIDENT‑ The gentleman from Clarke moves to take from the table a Section. Do I understand that to be the motion?

MR. WILSON‑I move to make that matter a special order.

MR. O'NEAL‑ What matter?

MR. WILSON‑ The motion for reconsideration of Section 6.

THE PRESIDENT‑ Was the Section adopted or laid on the table?

MR. O'NEAL‑ It was laid on the table.

MR. WILSON‑ It was adopted.

THE, PRESIDENT‑ It was adopted.

MR. WILSON‑I move that the special order immediately after the determination of the motion to reconsider the vote whereby the Article was ordered to a third reading and engrossment.

THE PRESIDENT ‑ It is moved by the gentleman from Clarke, that the motion to reconsider the vote whereby Section 6 of the Article on Municipal Corporations was made a special order, be consider immediately after the consideration of the motion to reconsider the vote whereby the Article was ordered engrossed and to a third reading.

MR. O'NEAL ‑ I rise to a point of order. Section 6 was adopted. The gentleman made a motion to reconsider. That motion was laid on the table. Now I insist it is out of order to make

a special order to reconsider a vote by which a motion was laid on the table. The motion to reconsider has been made and laid on the table.


4112                                          

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ It is not in order for the gentleman now again to make a motion to reconsider the vote whereby Section 6 was adopted.

MR. WILSON‑I am not doing that, Mr. President. That is the very point which the Chair has had under advisement three days, and has held that I can do—

THE PRESIDENT‑ It seems to the Chair that the gentleman front Clarke confuses a motion to reconsider the vote whereby the section was adopted, with a motion to take from the table, a motion by him to reconsider the vote whereby the section was adopted. The Chair recollects that he entered his motion to reconsider, and it was laid upon the table.

MR. WILSON, Yes, sir.

THE PRESIDENT–Then the proper parliamentary motion would be to take from the table the motion to reconsider.  Now if the gentleman enters that motion and moves to make it the special order, after the consideration of the motion to reconsider the vote whereby this article was ordered engrossed and to the third reading—

MR. WILSON–That is exactly the motion.

THE PRESIDENT–The gentleman dropped the first part of the motion.

MR. WILSON–That is what I was trying to say.

THE PRESIDENT–Now, then, is the Convention ready for the question?

The question was called for.

THE PRESIDENT–As many as favor the motion to make this motion of the gentleman from Clarke to take the motion to reconsider the vote whereby Section 6 was adopted form the table the special order to be considered immediately after the consideration of his motion to reconsider the vote whereby the article on municipal corporations was ordered to a third reading, will say aye and those opposed no.

Upon a vote being taken a division was called for, and by a vote of 31 ayes and 40 noes the motion was lost.

MR. WILSON–Then I desire to be heard briefly on the motion to reconsider the vote whereby the article was ordered engrossed and to a third reading.

MR. LONG (Walker)–I make the point of order that the gentleman cannot do that until after the matters before the Convention have been disposed of.


4113

CONSTITUTIONAL CONVENTION, 1901

MR. WILSON‑ This was a privilege motion. It was entered on the very day that the order was granted, and went over until the next day, and its regular order would have been immediately after the reading of the Journal on the next day.

THE PRESIDENT ‑The Chair will overrule the point of order. It seems to the Chair that this motion to reconsider, which was entered first would have precedence to a motion insisted on by the gentleman from Walker.

MR. WILSON ‑My purpose in moving to reconsider this article is in order to offer an amendment to the article which in my judgment will take from Section 6 the objectionable feature of it.  Section 6 of the article as adopted reads as follows.

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

Now, Mr. President, it has been the policy of the Legislature of Alabama in three classes of cases to fix a privilege tax for doing business in this State, which should be paid in one lump sum.  One class of business was express companies, one sleeping car companies and the other class of business was building and loan associations. Now the Legislature has said that persons doing either one of those three kinds of business shall pay a privilege tax to the State of Alabama in a gross sum, and shall not be liable for any other privilege tax. The express company pays four thousand dollars. I do not remember what the other companies pay. It does not exempt those persons doing business in either one of those lines from paying tax on their property. Whatever property they have in a city, they pay city tax on it, county tax on it and State tax on it. It is simply license that the cities cannot impose and the reason for that is this: a sleeping car company runs all through the State from one end to the other and runs through many towns and villages. Express companies do business over the lines of railroads running through many cities and villages.  Certainly the only just and equitable way to get at how much license tax either one of those concerns shall pay would be for the State to say they should pay one gross license tax, otherwise you would have one town fixing one amount of privilege tax, another town another amount of privilege tax, and another town another amount, and you would fix it so that any little town could prohibit a sleeping car company from running a dining car over the lines of a railroad company in this State, owing to the degree of madness of particular Councilmen or town authorities of that town. It is impossible to say whether enough tax has been levied or whether too much tax has been levied under this plan because it is scattered all over the State and there is no way to get at it.


4114                                          

OFFICIAL PROCEEDINGS

The only just way to levy such a license tax as that is for the State to levy it in one lump sum, and if it is not enough they can levy more, but what I insist is that it is absolutely impossible (if you leave it to these towns to fix it according to their own pleasure) it is absolutely impossible to tell whether these concerns pay enough tax or too much tax, and by leaving it with the Legislature it is with the authorities of the State, just as in the case of the assessment of railroad property, the Board of Appraisers would put it where a just sum can be demanded, and you will know exactly what they pay. Now, under this provision of the code with reference to these two kinds of companies, or persons either, express companies and sleeping car companies, a gross privilege tax has been levied and is collected by the State. Now the Committee on Municipal Corporations, the Committee on Towns, looking out for the interests of towns, has put a provision in this article so that the State shall not fix a gross amount of privilege tax, and prohibit the town from also levying privilege tax.  I have no doubt that that section was put there to meet two cases which have been agreed on by the Legislature.  I think myself that the tax ought to go to the State.  I think the system proposed by the Legislature is right.  They do business through the State, and in the State, and in my judgment the tax should go to the State, but the committee thought it should go to the cities and put this provision here for that purpose.  But if you concede the idea that it should go to the cities and not to the State, then the State should still fix the amount of privilege tax, and let it be distributed among the cities in just proportions to which they are entitled.  The amendment that I have drawn for the section, and the chairman of the Committee on Municipal Corporation, Mr. Weakley, has agreed with me that this is a proper section.  In fact he said that it carried out his idea of it better than as the committee’s report fixed it.

MR. WEAKLEY–No.  I beg your pardon.

(Mr. Pettus took the chair.)

MR. WILSON– The chairman of the committee did not undertake to accept it for the committee, but he said that it met his own views.  The gentleman from Montgomery, Mr. Graham, told me that he agreed to the amendment also, and he was the author of the proposition and urged its adoption before the house, and I doubt not but for his argument it never would have been adopted.  I move on time to reconsider the vote but I was out of order at that time.  I had a majority vote, but as it was necessary to suspend the rules, I could not get the two-thirds vote which was necessary to suspend the rules.  I could not get it adjusted though a majority vote.  My amendment is this.  The section I proposed is this: Section 6.  If the Legislature enacts any laws which will permit a person, firm, or corporation or association of any character to pay a privilege license, or other tax to the State of Alabama and


4115

CONSTITUTIONAL CONVENTION, 1901

relieve him or it from the payment of all other privileges and license taxes in this State, it shall provide for a just proportion of such tax to be distributed among the several municipalities in which such person, firm, corporation or association does business.

It seems that that is better than the other way. In the first place the State ought never to take from itself the right to say what privilege tax should be paid. A privilege tax is a hard tax at best, and it is only by virtue of the power from the State that these towns can levy a privilege tax at all, and now here the proposition is that the State shall not have the power of preventing its subordinate branches of government from charging an excessive privilege tax. Now that is the objection I have to the proposition.

MR. O’NEAL‑Is it not a fact that the sleeping car companies only pay about three hundred dollars a year in Alabama?

MR. WILSON–Well, I do not know what the sleeping car companies pay.  I have looked up express companies.  They pay $4,000.  But I say if they do not pay enough let the State fix it enough.

MR. O’NEAL–But the State doesn't do it.

MR. WILSON‑I doubt not that the State will do it if it is just and fair. My experience has been if you come to the legislature with a proposition for taxation they will put enough tax on it.

MR. WALKER‑ Have not there been frequent attempts to change the express company tax, and they have always been unsuccessful in the legislature?

MR. WILSON‑ You mean to let towns fix it instead of the State?

MR. WALKER‑I mean to make any change in it at all?

MR. WILSON‑ It has been unsuccessful in that particular, because it is wrong. They ought not to be turned loose on all these towns. The legislature should fix it. Why you cannot make them take out a privilege license except for business done wholly in the State. You cannot make them take out a privilege tax on business out of Georgia into Alabama. It is only where it is business within the lines of the State and it is the people all over the State who pay the privilege tax. On goods shipped to me from Montgomery to Clarke County I pay the freight. The fellow that pays the freight is the one that pays the privilege tax. I say that the State should not only fix the amount of tax, but it should go to the State.

MR. HARRISON‑ If this proposition is allowed wouldn't it have the effect over both express and Pullman companies to deprive many small towns of either of those privileges?


4116                                          

OFFICIAL PROCEEDINGS

MR. WILSON ‑It might. It might put it in the hands of some town council to deprive other towns of sleeping car and express service. The State should not take from itself the power of fixing that tax. I think that the tax should go to the State as the legislature provided, but my amendment is that the State may still fix the tax as it does now, but if it does, shall distribute it to the cities and towns justly. I believe that is certainly as far as it ought to go. My purpose in moving to reconsider the vote whereby this matter was ordered to a third reading was in order that I might offer this amendment, and I hope the Convention will reconsider the vote whereby the article was ordered to a third reading in order that I might offer the amendment. I was cut off from offering it by the previous question. I tried to, but was prevented.

MR. WEAKLEY‑ In view of what the gentleman from Clarke has said I deem it proper for me to make a statement of my position in the matter. The section of the report of the committee on Municipal Corporations which he is discussing was introduced by the gentleman from Montgomery, who argued in favor of this report. The Convention will understand the object of this provision. I believe it is to divest the legislature from depriving the cities and towns of this State from their proportion of the revenue derived from the license tax from these various companies that operate in more than one town in the State. As far as I am personally concerned my object in supporting the measure was to obtain from these companies for the cities their proportion of the revenue. The section now proposed by the gentleman from Clarke to be inserted in lieu of that is that the State shall collect its revenues, and then proportion it among the cities and towns of the State, such part as it may decide to proportion. Now, I undertake to say that that law will be very difficult of execution. Who is going to determine how much of this revenue shall be paid to the city of Montgomery, and how much to the city of Birmingham and how much to the city of Mobile.

MR. WILSON‑ The legislature?

MR. WEAKLEY‑I understand the legislature is to determine that proposition, but how is it to be determined? Is it to be determined by the population or by the number of trains or railroads that run into a town, and what machinery is to be devised for carrying this into effect. There is one objection that I have to the section.

MR. REESE ‑ For information. Under the provision in your report is it not in the power of the legislature to pass a law prohibiting any city in the State from charging any license at all on express companies.


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MR. WEAKLEY‑ Yes, sir; I think that is undoubtedly true.  The provision in my report says that the State shall not come in and take all the license, but as I understand, it does not prohibit the legislature from saying that no city in the State shall exact a license tax from these express companies, or from sleeping car companies or building and loan associations. It seems to me, gentlemen, of the Convention, we ought not to throw anything in the way of towns and cities from getting their proper share of the revenue, and it seems to me that this is the entering wedge, if the State takes away from cities the right from this source of revenue, why not go still farther and take away other sources of revenue which a city has? I think, gentlemen, the question of uniformity of license tax is something to be desired and to that extent I concur with the gentleman from Clarke, but I think that towns of similar size and similarly situated in the State where the volume of business done by these corporations is about the same, ought to charge about the same license tax. I think the cities of Anniston, Huntsville and Selma, for instance, which are about the same size and similarly situated ought to charge about the same license tax. I do not think one ought to charge two hundred dollars, another one hundred dollars and another fifty dollars, but still, at the same time I do not see that the section as already adopted would interfere with that.

MR. REESE ‑Cannot the legislature prescribe for those particular cities, that they shall charge no more license than that?

MR. WEAKLEY‑I think it is competent for the legislature to prescribe exactly what license shall be charged in cities of certain population. I think they have the right. They have full control of the powers of municipalities to levy license tax.

MR. BAREFIELD‑I rise to a point of personal privilege.  Yesterday's stenographic report has me as saying: "I have not been in favor of sheriffs being impeached by twelve men of their county." I said: "I have always been in favor of sheriffs being impeached by twelve men of their county."

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

MR. MALONE‑I hope this motion to reconsider will not prevail. As I understand the provision as it remains in the article, it is one of the highest necessities to the entire State, especially in towns. Under the operation of the law, these concerns are turned loose upon the entire State of Alabama for a certain license, in some instances stated on the floor here, to be nominal, while others are quite large. The result of that is that they can go into any community that they please and do business without paying one single dollar of tax or license in that community. I believe it is agreed that practically all of them have no property on


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which they pay an ad valorem tax. Some of them do a business the income from which is largely in excess possibly, from any other enterprise or ordinary business enterprise.

MR. PILLANS‑Is it not a fact in one of the recent cases involving the right of the State to tax the property of foreign corporations, the State of Ohio found it necessary, as the facts in the case show, to tax the capital of the Adams Express Company, which was involved in business in Ohio, because the few wagons and horses that they had amounted to nothing in the cities of the State?

MR. MALONE‑ That is my understanding. The working of it is the main thing that I am interested in. I do not care much about the detail work. When you get down to the every‑day affairs, it is how much tax they pay and who gets it?  Not only the express companies and others, but take building and loan associations. Every one of those can go into the cities in Alabama, get the benefits of the business, and so far as that community is concerned, they pay not one nickel. There are some communities in which it is absolutely necessary to have larger license than it is in others. There is no doubt some good comes from this privilege to do business in a community and yet they do not pay their fair proportion. The same principle could be stated in connection with insurance companies. Every one might state that an insurance company should pay a certain amount into the State treasury and relieve them from municipal license.

MR. O’NEAL‑‑I agree with you fully in your views, but I want to make this suggestion : Under the law as it now exists, or would exist under that section, would it not be in the power of any city or any town in the State to make an arbitrary license varying in every town, for instance, Huntsville, $100: Florence, $200, and Tuscumbia, $l50 ; and won't it be but just to these corporations to amend that section so as to provide that the Legislature should regulate the amount of tax to be imposed by the different municipalities of the State? As it now stands, each municipality exercises its own discretion, which produces no uniformity in the amount of taxes imposed.

MR. REESE‑‑ Will the gentleman yield to a question? I would like to ask the gentleman from Lauderdale.

THE PRESIDENT‑ The gentleman from Henry has the floor.

MR. REESE-‑Under the provisions, of this Article—

MR. WADDELL‑I rise to a point of order. The gentleman from Lauderdale has not the floor. The gentleman from Henry has the floor.


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MR. REESE‑I desire to ask the distinguished gentleman if, under the provisions of this section of this Article as reported by this Committee, would not the Legislature have the right to say that a city of a certain class could not prescribe a higher license on these particular concerns than a certain amount and fix it at a reasonable amount.

MR. O'NEAL ‑ Certainly, unless there is something in the section to prohibit it.

MR. MALONE‑ There is nothing in this section, as I understand it, that would prohibit the Legislature from passing equitable laws for the protection of these companies, if there was any disposition to charge them more than what is fair? Besides, as a matter of law, it cannot be done. Then, again, the suggestion of the gentleman from Lee in regard to driving out these companies from certain places, suggests the remedy. If the smaller place, are charged an unreasonable price, why we all know they don't do a thing but move out. They have the power to protect themselves, and, besides, the law protects them. I think it is justice to communities where they get an income from should be allowed to make them pay a license, and the matter has been discussed a great deal, and I move that we indefinitely postpone it.  But I have no desire to cut off anybody and will withdraw the motion.

MR. PILLANS‑ This matter comes as a surprise at this time, and gives little opportunity for that preparation which I would like to have given to it in order to discuss it before such a body as ours; but it is a matter so serious that I am impelled to call attention to some of the objections, and meet some of the objections to the law that you have adopted, that have been made by my distinguished friend.

MR. WILSON ‑ The gentleman must not have been here during the last few days, or he would not have been surprised, because I have been trying to get it up for three days, and was ruled out on points of order.

MR. PILLANS‑I was not here for a time on account of illness in my family when this was under consideration, and did not know of the gentleman’s persistency in trying to get it up.  I will take the matter up here. This section, as written, merely declares that the General Assembly shall not emasculate the taxing power in the matter of privileges, or license taxes of the municipalities of the State. I take it that no gentleman on this floor wants to see the power of cities to tax privileges destroyed. This, I take it, was put in here because it was found that one great corporation at least, which monopolizes the express‑ carrying trade of the entire State, so far as I know,  (it certainly does in the city of Mobile), and I do not believe that any other express company does


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business in any other part of the State, the Southern Express Company had succeeded in getting the Legislature to adopt this law, by persuading them that it was a wise thing to do. It passed the extraordinary law in 1893 that is found in the Code, which entitled that company to pay a tax, I believe of $4,000 to the State of Alabama, and disentitles every city in the State of Alabama to take one cent from them for the privilege of doing their extremely valuable, wealth‑ producing business, in the cities and towns of the State, in every one of which they are afforded fire and police protection at the expense of the taxpayers and business men, and the streets of which are kept up and paved. and are used by this company, and we are told by the gentleman who now asks to reconsider this that we should have left to us, and we have got left to us, the miserable privilege of taxing half a dozen horses and three or four wagons, and perhaps $100 worth of fixtures found in the Southern Express Company's offices. I desire to call attention of this assembly to the question which I put to my friend who first spoke on this subject. It has been found by the taxing powers of great and enlightened States of the North that these great corporations doing business through the country, have got so small a proportion of their capital in the State in visible, taxable property, as specie, it is necessary to devise some method by which they can tax that proportion of the capital of the company which is in business in the State. I do not recall the names of the cases, ( I have not the faculty of my colleague for calling the names of cases),  but perhaps one of the latest cases, passed upon in the Supreme Court of the United States, is the case wherein the State of Ohio levied a tax upon, I think it was, the Adams Express  Company, and the tax was levied under the laws of the State, upon the proportion of capital stock of that New England corporation, which justly was to be considered in the State of Ohio. Now, then, besides a privilege tax in the State of Ohio, that State taxes the capital which belongs to a New England corporation and to the stockholders in other States, and the Supreme Court of the United States sustained it. Now that corporation has been able to come to the Legislature of Alabama and seduce them into putting a moderate tax upon them, payable into the State treasury, and it was the sole privilege of doing business; in fifty or a hundred cities incorporated in the State of Alabama, thereby escaping the payment of one dime to the maintenance of police protection.  To the paving of the streets and the other thins which area incidental to their business. as they are to my business and to your business, and that of every town dweller in the State. It is improper. It is in the power of the State of Alabama and I am perfectly content to see them do it, to let that corporation, since it wants to pay four thousand dollars to the Treasurer of the State to pay that and in addition to pay into the treasuries of the various towns that protect their offices and aid in getting business a reasonable license tax. It will not do for my friends to say that the effect of his


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amendment would be to protect these people against excessive taxation. The clause as written does not have anything to do with the rate of license tax which may be imposed. The clause as written does not deprive the State of Alabama of the power to levy a license tax on any business in Alabama. As it is written it simply declares that the legislature shall not enact any laws which will permit a person, firm, corporation or association of any character to pay a privilege license or tax to the State of Alabama, and relieve him thereby from the payment of other tax and license. It is a provision which will protect the legislature itself, and the cities and towns of the State, from the legislature erroneously being persuaded upon selfish appeals from corporations to take away the taxing powers from the cities and take in return a pittance payable into the State Treasury. Now let this stand as it is today, and where and what is the power of the State of Alabama? I say in the case of the sleeping car companies or express companies it is precisely what it was in 1893. The State of Alabama can and will doubtless make those companies which are doing business here pay a reasonable charge, for the protection this State gives to them, and if the State of Alabama finds these municipalities are acting oppressively upon business, they can control their action by general laws in place of local ones. 'These general laws can fix the rates beyond which the cities cannot go. So that the cities call levy a license tax that is just. Is that not what we want? Do you want to encourage corporations to come here and induce the legislature to relieve them from taxes under the pretense that they are helping the State out of the hole, which they will undoubtedly do as they have already done? It has been suggested that this legislation might be extended and I doubt not that  it will be. Such thins occur. One great corporation has found how to save money, and another will follow in its footsteps.

MR. WALKER‑Is it not a fact from your reading of the substitute proposed to be offered by the gentleman from Clarke that it is left entirely with the legislature as to what proportion they should allow to the cities, and they might make it one-tenth or so that the cities would get a dollar a piece.

MR. PILLANS‑I feel greatly obliged to the gentleman for mentions that. It had occurred to me somewhat in that way,

but I had forgotten it. If you take the amendment offered it is very ingeniously and astutely framed to destroy any hope of the city getting a dime. "If the legislature enacts any law which will permit a person, corporation to pay a privilege license or other tax to the State of Alabama it shall provide for a just proportion of such tax to be distributed among the several municipalities," etc. “A just proportion to be determined by the legislature," which as my distinguished friend has said, may be one per cent or one-tenth of one. per cent, to each of the cities of the State.


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MR. WALKER‑ Probably suggested by the express companies.

MR. PILLANS ‑ I thank you for the suggestion, it would probably be suggested by the corporation that had come and obtained the favorable legislation from the State.

Before closing I would call the attention of the Convention that it must not be forgotten in the existing state of the law, as we have already adopted it, there is no embarrassment in the State depriving any city of the power to tax occupations out of existence, because the legislature has almost plenary power to control the creatures of its creation the Municipal corporation.

MR. HARRISON‑ If the city of Mobile was to pay to the State all of the liquor licenses, wouldn't it lose money even if it got this. Doesn’t your city get more by retaining the liquor licenses than it would from this?

MR. PILLANS‑ Our city does not get one dime from the liquor licenses. There is not one cent of the liquor license that passes into the treasury of the city of Mobile. There is a State liquor license which passes into the school organization of Mobile County not the treasury of the city. The city does not receive one dollar of it, and I will say right here that the county outside of the  city, which is very sparsely settled, gets more than one-third of that money, although the city and its immediate suburbs pay about nine-tenths of the money.

MR. FITTS‑ Mr. President and gentlemen of the Convention, I hope very much that the Convention will not reconsider one Section as reported by the Committee on Municipal Corporations. The Section to which this motion is directed has hidden in it the protection which one special corporation has obtained in this State, by an act long since passed by the Legislature, and which has given trouble and dissatisfaction. I have had some experience with that act, and it has given great dissatisfaction to other corporations doing business in the State. We ought to either have one system or the other, applicable to all corporations alike, and the Southern Express Company ought not to stand on a different footing in this State from other corporations. It is not right, and there is no just reason why it should stand in one attitude with respect to license taxes, and all the other corporations in the State stand in another attitude.   Many years ago it came to pass that the Southern Express Company came here and by some influence or other upon the Legislature got a special act passed, putting them upon an entirely different footing from the other corporations doing business in this State.  I take it the object of this amendment which is proposed is to leave that class of legislation now in existence which is in favor of that corporation.  That ought not to be.  If corporations doing business in this State are to pay a li-


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cense tax into the State Treasury, then all ought to pay it, and if they are to pay licenses to Municipal corporation, who afford their police protection, whose streets they wear out, and where they obtain and solicit the business, they all ought to pay it to the cities and municipal corporations, and there ought not to be one favored corporation in this State doing business, under a special piece of class legislation, as that corporation has been doing for years. The purpose now is to put that class legislation into the fundamental law of the State. There never was a piece of legislation in this State that caused more dissatisfaction too other corporations doing; business in this State than that special act of the Southern Express Company, and I see upon the floor of this Convention two or three gentlemen who can bear me out from the school of experience. Other corporations when they have to pay city taxes constantly come up and say how is that there is one corporation that does not have to pay any city tax whatever, while we have to pay it. This has caused dissatisfaction, and has caused lack of harmony in the administration of the law. I hope that the motion to reconsider will not prevail, and I move to lay it upon the table.

MR. WILSON (Clarke)‑ I ask for the ayes and noes.

The call was not sustained.

MR. REESE‑ I desire to make a parliamentary inquiry. My information was that the gentleman formerly made a motion to reconsider, and that motion was laid upon the table, and he was now making a motion to take from the table.

MR. WILSON (Clarke)‑The gentleman from Dallas is mistaken.

THE PRESIDENT‑ The recollection of the present occupant of the Chair is that the gentleman from Dallas is mistaken.  The question is upon the motion of the gentleman from Tuscaloosa to lay upon the table the motion of the gentleman from Clarke to reconsider the vote by which the Article on Municipal Corporations was ordered to a third reading.

Upon a vote being taken a division was called for, and by a vote of 60 ayes to 13 noes the motion to table prevailed.

MR. BAREFIELD— I move that we do adjourn.

MR. WILSON (Clarke) ‑ I make the point of no quorum.

MR. O'NEAL‑ The point of order comes too late.

MR. WILSON (Clarke)‑I was on my feet endeavoring to make the point of order from the very moment the Chair announced the vote.


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MR. LONG (Walker) — I make the point of order that the point of no quorum cannot be made after a division is called for, but must be made upon the main vote.

MR. O'NEAL— I make the point of order that there is a quorum in the house.

MR. WILSON (Clarke) ‑Whenever the vote shows that a quorum has not voted, the presumption is that there is not a quorum in the house. Of course if it is found on a count that a quorum is revealed to be in the house, then the point is not well taken.

MR. LONG (Walker)‑ The point raised by the gentleman comes too late.

THE PRESIDENT PRO TEM.‑ It is the opinion of the Chair that a quorum is present.

MR. PROCTOR‑I move that this Convention do now adjourn. Upon a vote being taken the motion was carried and the Convention adjourned.