SEVENTY‑SECOND DAY

___________

MONTGOMERY, ALA.,

Thursday, August 15, 1901

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

O, Lord God, we come before Thee this morning realizing our weakness and our need of Thy help and Thy strength.  We thank Thee that no evil has befallen us during the dark shades of the night; that we have slept in peace, and have been refreshed, and that we find ourselves this morning in the enjoyment of the usual health of body and mind, and now we come before Thee to invoke Thy blessings upon us this day.  Give us the influence and light and guidance of Thy spirit in the work in which we are engaged.


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May we ever realize and appreciate the fact that in the great coming day we must stand before Thee and give an account of our work here below. Accept the gratitude of our hearts and the praises of our lips for Thy kind providence and mercy which has followed us all the days of our lives. May we under a sense of our obligations render to Thee the services of our lives and the homage of our hearts. Bless these, Thy servants. Bless their homes. Take care of their families and their interests during their absence, and guide us all in the way of life everlasting. Forgive our sin, and prepare us for every good work, and finally bring us to our home in Heaven, we pray Thee, through Christ, our Redeemer. Amen.

Mr. White here took the chair.

Upon a call of the roll 109 delegates responded to their names.

Leaves of absence were granted to the following delegates. To Mr. Oats for today; to Mr. Macdonald of Montgomery for today ; to Mr. Ledbetter for today and tomorrow; to Mr. Miller of Marengo for today, tomorrow and Saturday; to Mr. Porter for Friday, Saturday and Monday. 

Leave was granted to the Committee on the Journal to make their report later in the day.

THE PRESIDENT PRO TEM.‑ The call of the roll of delegates for the introduction of ordinance, resolutions, etc., will be next in order.

MR. PETTUS‑I move that the rules be suspended, and the call of the roll be dispensed with.

MR. COLEMAN‑I think that he should call the roll; it has not been called for some time.

Upon a vote being taken, a division was demanded, and bar a vote of 26 aye and 42 noes, the Convention refused to suspend the rules.

The roll call was proceeded with.

MR. BURNETT‑I have a petition on the railroad pass question which I would like to have introduced and then referred, at the request of Mr. Lee from Escambia.

MR. GRAHAM (Talladega)‑There was a rule passed here the other day that they should not be read, but simply referred.

THE PRESIDENT PRO TEM.‑ The petition will be referred to the Committee on Corporations.

MR. BROOKS‑I did not hear the statement of the Chair with regard to that petition.


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OFFICIAL PROCEEDINGS

THE PRESIDENT PRO TEM‑ It was a petition with reference to free passes. It was referred to the Committee on Corporations.

MR. BROOKS‑ Without being read?

THE PRESIDENT PRO TEM.‑ Yes, sir.

MR. BROOKS‑I do not think any such rule has been passed. It ought, as a matter of right to be read to let us know what it is.

THE PRESIDENT PRO TEM.‑ The Chair was misinformed. and, if no such rule has been adopted, the petition will be read before it is referred. I suppose the reading of the body of the petition will be sufficient without reading the names.

MR. MULKEY‑ An examination of the Journal will show that rule was adopted.

THE PRESIDENT PRO TEM.‑ The clerk informs the Chair it was simply a motion to dispense with it on that evening.

MR. BROOKS‑ The motion was adopted one evening to send up all at the same time to the secretary without reading.

THE PRESIDENT PRO TEM.‑ The secretary will read the petition.

The petition was read as follows:

Petition No. 84, by Mr. Leigh :

To the Constitutional Convention, Montgomery, Ala.:

We, the undersigned citizens of the State of Alabama, do hereby offer our protest against the railroad pass evil, and hereby declare our desire that it be made an unlawful act for either State, county or municipal officials to accept railroad passes from any railroad company, or for any such company to give such passes.  We further petition the Constitutional Convention now in session in Montgomery to incorporate in the proposed Constitution some effective and self-operative provision to that end.

Flomaton,  July 23, 1901.

F. F. Visscher, Con.; W. I,. Abernethy, Phys. ; Alex. Stewart, Mer. ; H. P. Powell, Carp.; W. Tosend, Mer. ; A. F. Chaudron, ,J. P.; 'I'. M. Smith, Lum. Ins.; J. W. Darling. Tel. Pole Ins.; G. A. Ivey, Mar.; S. L. Craft, clerk; J. E. Holley, Min.; J. M. Holley, mill man; John Hardy, Mer. : R. Martin. Far.; W. P. Powell, Mer. ; D. F. Leathewood, Ins. Agt. ; W. H. Abernethy, M. D.; J. A. Wilkinson, A. J. Agnew, M. D.; W. M. _Weaver, clerk; F. E. Dey, jeweler: J. D. McCurley, Mer. ; W. T. Price, clerk; M. A. Whitehurst, Far.; Ezra Hagin, Mer. ; J. A. Carson, Car.; W. Weaver,


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CONSTITUTIONAL CONVENTION, 1901

blacksmith; D. A. Wadkins, Far.; C. J. Johnson, Far.; W. R. Calloway, mill; T. T. Roberts, hotel proprietor; C. D. Moore, Far.; J. W. Evans, W. M. Washburn, timber; W. H. A. Peaden, teamster: H. L. Thompson, livery stable; E. E. Johnson, Mer.

Referred to Committee on Corporations.

Resolution No. 299 was read as follows:

Resolution No. 299, by Mr. Burns.

Resolved, That there should be no attempt to shut off delegates who may desire to offer ordinances, resolutions or amendments, by motions to table or calling for previous question.

Referred to Committee on Rules.

MR. CARDON‑I have a resolution.

Resolution No. 300 by Mr. Cardon was read as follows:

Whereas, it is now, beyond all reasonable doubt, apparent that many of the sections of this State believe that all persons now in office in Alabama or that all persons who may hereafter be called upon to fill such offices, are for sale, the price being fixed by the amount of travel, in a year, that they may be required or desire to take over the different railroads within this State; and

Whereas, it is the desire and duty of this Convention to forestall this market by relieving such railroads from the necessity of making bids for or buying the officers and servants of Alabama with railroad free passes, and also by removing from such officers and servants, the temptation of selling themselves to such railroads at the price of a railroad free pass.

Be it therefore resolved by the people of Alabama in Convention assembled, That all the railroads within the State of Alabama be and they are hereby required to issue free passes over the lines of such railroads within this State to all the judges of courts of record in Alabama, and to all the officers of such courts; and also to all the State officers of Alabama and to their employes ; and also to all members and employes of the future Legislatures of this State; and also to all delegates to any State Convention that may be hereafter called in Alabama.

MR. OPP— (During the reading of the above resolution)— I rise to a point of order. I do not think this Convention ought to be made a dumping ground for all this rot. It is clearly out of order, and we ought not to be forced to take up the time of the Convention with it.

MR. FITTS (Tuscaloosa) ‑The resolution offered by the gentleman from Cherokee has the same dignity as any resolution offered by any other delegate on this floor, and I think the Con‑


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OFFICIAL PROCEEDINGS

vention has a right to hear his views as much as those of any other delegate to this Convention.

MR. OPP‑I ask the ruling of the Chair on the point of order.

PRESIDENT PRO TEM.‑ The Chair does not see that it is entirely out of order. The Chair cannot so hold, and the point of order is therefore overruled.

MR. BURNS‑I suggest that you have it read before you rule whether it is out of order or not. Let us see what it is.

PRESIDENT PRO TEM.‑ The Chair has already decided on the point of order. The resolution will be referred to the Committee on Corporations.

MR. COLEMAN (Greene)‑I prepared yesterday an ordinance to introduce this morning and left it in my book, but find now that it is gone. I have, however, hastily drawn one that will bring up the question.

Ordinance No. 452 by Mr. Coleman read as follows:

Be it ordained that a solicitor for each judicial circuit shall be elected by the qualified electors of the circuit, who shall be learned in the lave and who shall at the time of his election and during his continuance in office reside in the circuit for which he is chosen, and whose term of office shall be for four years. Provided, that the Legislature may provide for the election or appointment of solicitors for any county in the State.

Referred to Judiciary Committee.

MR. FOSHEE‑I have an ordinance.

The ordinance was read as follows:

Ordinance 453 by Mr. Foshee:

Be it ordained by the people of Alabama in Convention assembled:

First‑ The Probate judges of each county of Alabama, shall appoint one registrar in each beat, precinct or ward, whose duty it shall be to register all male persons of 21 years old, who are not debarred from the right of franchise by crime.

Second‑ The Governor, Attorney General and Commissioner of Agriculture shall appoint three registrars from each county at large, whose duty shall be to register the colored voters in each county and none others.

Referred to Committee on Suffrage and Elections.

MR. HEFLIN (Chambers)‑I ask unanimous consent to pass my call until the roll is completed.


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CONSTITUTIONAL CONVENTION, 1901

Objections were made.

MR. HEFLIN‑ Who was it that objected?

THE PRESIDENT PRO TEM.‑ The gentleman was nearer that I am. I did not distinguish just who it was. Some friend, I suppose.

MR. WADDELL‑I am one who objected.

MR. HEFLIN ‑ I think that is about all the gentleman knows, is how to object.

MR. MILLER (Wilcox)‑I have a petition.

The petition was read as follows:

To the Constitutional Convention, Montgomery, Ala.:

"We the undersigned citizens of the State of Alabama do hereby offer our protest against the railroad pass evil, and do hereby declare our desire that it lie made an unlawful act for either State, county, or municipal officials to accept railroad passes from any railroad company, or for any such company to give such passes. We further petition the Constitutional Convention now in session in Montgomery to incorporate in the proposed Constitution some effective self-operative provision to that end.

Camden, July, 23, 1901.

J. P. Jones, M. D.; M. A. Turner, manor ; J. P. Jones, Jr., county solicitor; J. R. M. McIntosh, marshal, W. F. McWilliams, E. A. Rentz, merchant; E. P. Boltz, liveryman ; J. D. Caldwell: W. W. Boykin, F. L. Moore, J. F. Foster, clerk circuit court: O. H. Spencer, tax assessor; R. H. Bursy. farmer ; W. A. Dexter, city treasurer: J. P. Benson, Jr.: B. M. Miller, attorney at law; J. B. Miller; V. C. Gordon, J. Y. Kilpatrick: J. Y. Kilpatrick, Jr.; J. I. Lawler, O. C. Farish. D. D. S.; W. F. Spurlin, H. H. Hart, J. W. Dunn. R. L. Hawthorne, merchant; D. C. Olmoyne, E. L. McIntosh, D. L. Pritchett; W. R. Alford, E. H. Pritchett, C. S. Andrews; H. J. Ray: H. C. DuBose. Sherwood Bonner: J. R. Foster: M. C. Jones, P. H. Jones. W. C. Jones, Jr., J. M. Bonner, A. V. McMillin, H. H. Johnson, F. W. Spurlin, Spurlin Bros.: G. I,. Spurlin, W. N. Brigg, I. B. Foster, D. S. Pritchett, Jr., R. D. Gilbert, J. F. Holt. F. H. Savage, J. C. Hart, J. R. Liddell, A. S. Cuberg, T. L. Cochran, attorney at law: R. E. McWilliams, R. E. McWilliams, Jr.: J. H. Duke, Jr., C. C. Ray, J. P.; R. L. Rentz, merchant; Carlisle Duke; T. S. Caldwell; H. F. Cooke, D. J. Spiar, merchant; W. B. Dunn; E. J. Bailey. Jr.; M. W. Smith, W. B. Tones, M. D.; J. H. Jones, M. D.; S. D. Moore, Jr., farmer; H. A. Holt.

Referred to Committee on Corporations.


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OFFICIAL PROCEEDINGS

MR. ROGERS (Lowndes)‑I have a resolution.

Resolution 301 by Mr. Rogers (Lowndes).

Resolved, That after this Convention has adopted this Constitution that five thousand (5,000) copies of it be printed in pamphlet form, for distribution through the State and that six (6)

copies be sent to each member by the Secretary of the Convention, That the Committee on Printing be instructed to contract for the printing and distribution of the same and report to the Convention the cost of the satire.

Referred to Committee on Schedule, Printing and Incidental Expenses.

MR. MALONE‑I ask that it he made 10,000.

MR. BULGER‑ Make it 50,000.

MR. ASHCRAFT‑ My recollection is that the Enabling Act provides how this Constitution shall be promulgated, and I believe it provides for the printing of a much larger number.

PRESIDENT PRO TEM.‑ It is referred to the Committee on Printing and Incidental Expenses, and they can take it up there.

MR. SAMFORD (Pike)‑‑I offer Article 6 of the old Constitution. I do not care for it to be read.. I offer it and ask to have it referred. I will just state that it is the article on Judiciary in the old Constitution.

MR. WATTS‑I rise to a point of order. The rules of this Convention require that any ordinance offered shall be in writing, and, you cannot offer an ordinance in connection with other matters, as the gentleman has done.

PRESIDENT PRO TEM.‑ It appears to the Chair that the point of order is well taken.

MR. SAMFORD (Pike)‑Does the Chair hold that it must be written out?

PRESIDENT PRO TEM.–The Chair holds that you cannot introduce an ordinance in a book with a great deal of other matter contained in the same book or pamphlet.

MR. SAMFORD (Pike)‑If the Chair will indulge me a minute, I will cut it out.

PRESIDENT PRO TEM.‑ The Chair cannot wait on the gentleman.

MR. HEFLIN (Chambers)‑It appears to me that the gentleman from Pike has some rights on the floor of this Convention.


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CONSTITUTIONAL CONVENTION, 1901

MR. ASHCRAFT‑I call for the regular order.

MR. PETTUS‑I rise to a point of order. The Chair has ruled and the call of the roll is in order.

MR. HEFLIN‑ He has the right to cut it out of the book, and---

THE PRESIDENT PRO TEM.‑ The Chair has decided that the ordinance cannot be received in the shape it is in.

MR. HEFLIN‑ The gentleman from Limestone interrupted me. He was standing between me and the Chair, and---

PRESIDENT PRO TEM.‑I understand now, but there is nothing before the Convention now.

MR. HEFLIN‑ The gentleman from Pike asked the Convention to allow him time to cut it out, and it would not take but a second. The point of order I make is this: Will the gentleman from Pike lose his call because a second of time might enable him to cut it out, and that is to be denied him ?

(The article in the meantime was cut out and sent up.)

MR. HE FLIN‑I ask that it be read if it has been cut out.

MR. ASHCRAFT‑I call attention of rule 50 as follows:

"The title of each ordinance shall state concisely its subject matter, and shall state the article and section of the present Constitution to which it relates as far as practicable. Each ordinance shall be written on an entire sheet of paper with the name of the delegate who introduced it and the title of the ordinance indorsed  thereon."

PRESIDENT PRO TEM.‑ The Chair is of the opinion that the ordinance is not in the shape required by the rules of the  Convention.

MR. SAMFORD (Pike)‑That could not be written on one sheet of paper. It is certainly written on more than one sheet of paper. It is printed. If the Chair holds that it is to be written‑--

THE PRESIDENT PRO TEM.‑ The Chair holds that it has to be written or printed.

MR. SAMFORD (Pike)‑It is printed.

PRESIDENT PRO TEM.‑ It is not indorsed as the rules require.

MR. MULKEY‑I make the point that it is not in proper shape.


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OFFICIAL PROCEEDINGS

PRESIDENT PRO TEM.‑‑ The Chair has ruled that it is not in proper shape.

MR. OPP‑I rise to make an explanation. I objected to the reading of the paper with reference to the buying of officials by the railroad passes. I did not hear the first part of it read, and I was under the impression that it was a petition, whereas I have learned that it was a resolution by a gentleman on this floor, which makes it an entirely different thing.

MR.. PETTUS‑I make the point of order that the gentleman is not stating a question of privilege, and that the regular order is the call of the roll.

MR. OPP‑I do not see why the gentleman should interrupt.

PRESIDENT PRO TEM.‑ Does the gentleman ask unanimous consent to make a statement with reference to a question of personal privilege?

MR. OPP‑ It is a question of personal privilege. I supposed it was a petition. and while I do not agree with the sentiments expressed in the resolution, being a resolution, it is on a very different footing, and I desire to make that explanation.

Mr. Samford (Pike) took the chair.

MR. SANFORD (Montgomery)‑I offer this resolution.

The resolution vas read as follows:

Ordinance No. 454, by Mr. Sanford:

Whereas, A Convention of the Democratic Party was held in the city of Montgomery during the month of March, 1901.  For the nomination of candidates to be delegates to a Constitutional Convention; and to induce the people to vote for such a Convention, a platform of purposes, promises or pledges was adopted, to be kept by the members of the proposed Constitutional Convention. Among other articles was adopted the following pledge or promise, viz : "Third‑ That there shall be inserted in such Constitution a provision limiting the rate of taxation by the State, counties and municipalities, and that such rate of taxation shall not exceed the rate now fixed by the present Constitution, but a lower taxation shall be fixed if practicable."

And whereas, The rate of taxation limited for the use of municipalities has been transcended in the case of the city of Montgomery, Therefore, be it ordained by the people of the State of Alabama in Convention. That the part of Section 11 in the Article on Municipal Corporations which is in these words: "And provided, further, that this section shall not apply to the city of Montgomery, which city shall have the right to levy and collect a tax not exceeding one-half of 1 per cent. per year upon the value of


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CONSTITUTIONAL CONVENTION, 1901

the taxable property therein as fixed for State taxation for general expenses, and an additional tax of not exceeding three-fourths of 1 per cent per year upon the property therein, as fixed for the State taxation, to be devoted exclusively to the payment of the public debt, interest thereon, and renewals thereof, and to the maintenance of its public schools and public conveniences," be and the same is hereby repealed and annulled.

MR. SANFORD (Montgomery)‑I ask that the resolution be referred to the Committee on Taxation.

THE PRESIDENT PRO TEM.‑ The resolution will be so referred.

MR. SLOAN‑‑I have a resolution.

The Secretary read the resolution as follows:

Resolution No. 302, by Mr. Sloan

Resolved, That hereafter this Convention meet in the afternoon sessions at 3 o'clock and adjourn at 6 o'clock.

Referred to Committee on Rules.

MR. WATTS‑ Some time ago in this Convention, a resolution amending section 17 of the Legislative Department was introduced by myself, and by the Convention laid upon the table, to be taken up at the pleasure of the Convention. This resolution was to the effect that no negro could hold office in Alabama. I desire to move to take that resolution from the table.

THE PRESIDENT PRO TEM.‑ That motion would be out of order at this time. A motion to take from the table is not a privileged motion, and the regular order has been called for and the call of the roll of the house has not been completed.

MR. WATTS‑I have a right on the call of my name to offer a resolution. I offer a resolution to take this amendment from the table. I do not care to discuss it now.

THE PRESIDENT PRO TEM.‑Is the resolution in writing?

MR. WATTS‑ It is not necessary to be in writing. An ordinance is required to be in writing, but not a resolution.

THE PRESIDENT PRO TEM.‑ The resolution would have to be in writing.

MR. WHITE‑I will ask if it could not be printed? (Laughter.)

THE PRESIDENT PRO TEM.‑ It might be partly written or partly printed. (Applause.)


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OFFICIAL PROCEEDINGS

When the name of Mr. Wilson (Clarke) was reached, he yielded his call to the gentleman front Chamber, Mr. Heflin.

MR. PETTUS‑I object.

THE PRESIDENT PRO TEM–It has been the rule of the Convention that a delegate could yield his call to another delegate,  and the Chair would hold that we cannot change that rule at this late day.

MR. HEFLIN (Chambers)‑I do not ask that the ordinance be read, but that the resolution be read.

MR. PETTUS‑I make the point of order that the ordinance would have to be read under the rules.

THE PRESIDENT PRO TEM‑ The point of order is well taken. The Secretary will read the ordinance.

The reading proceeded: "Article VI, Judiciary‑‑

MR. ASHCRAFT–I rise to a point of order.

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

MR. ASHCRAFT ‑ The proposed ordinance is not in the form required by the rule.

THE PRESIDENT PRO TEM-‑What do the rules require?

MR. ASHCRAFT–The title is not endorsed on the article.

MR. HEFLIN—I tried to write it on there, if the gentlemen will give me an opportunity, will try to write it more plainly.

MR. ASHCRAFT ‑ I did not have all opportunity to examine it, but I do not see any endorsement on it.

THE PRESIDENT PRO TEM‑ This ordinance is headed "Judiciary Department” and relates to the judiciary of the State, and hence it is a sufficient heading upon which the base an ordinance upon Judicial Department, and the name of the gentleman from Chambers is indorsed on the back of it.

MR. ASHCRAFT‑‑ Does it say "be it ordained" or "be it resolved ?"

MR. PETTUS‑I make the point of order there is no ordaining clause in the ordinance, or "be it enacted." Without the ordaining clause. It is not in order.

THE PRESIDENT PRO TEM‑ The point of order is strictly correct.

MR. HEFLIN‑I move to amend it.


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CONSTITUTIONAL CONVENTION, 1901

MR. WATTS‑I call for the regular order.

MR. PETTUS‑I object to any amendment at this time.

MR. COLEMAN‑ You might as well Make objection to any ordinance for any defect in it as presented. It is to Be referred. We cannot tell what defects may be in it, not a single preposition we have adopted says "be it ordained," you can take the whole of  the Constitution and it is not here.

THE PRESIDENT PRO TEM‑‑ The Chair will hold that a defect in an ordinance may be waived by no objection being male at the time of its introduction. If a valid objection is made  at the time of its introduction, the Chair would hold that the point  of order would be well taken and under the rules of the Convention ordinances must comply with the rule.

MR. COLEMAN‑I would suggest that the defect has been remedied.

MR. O’NEAL‑I ask the clerk to see if there is a heading to it.

MR. PETTUS‑I rise to a point of order. It has been amended and endorsed by the clerk.

THE PRESIDENT PRO TEM.‑ The point of order is overruled because the gentleman has a right to amend his ordinance before it is read.

MR. WILSON (Clarke)‑Is the point made that the ordinance does not state "be it ordained."

THE PRESIDENT PRO TEM.‑ Because it had no proper heading.

MR. WILSON‑I submit there is nothing in the rules that requires you to say "be it ordained." or calling it all ordinance or proposition ; it simply requires that its title be expressed.

THE PRESIDENT PRO TEM.‑ The point of order was that the heading of the article was not in proper form, but the gentleman from Chambers says that it is made in proper form, therefore the Secretary will proceed to read.

MR. WATTS‑I rise to a point of order.

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

MR. WATTS‑ This ordinance is not in proper shape.

MR. HEFLIN‑‑ The Chair has already ruled, and we do not want to consume any more time on it.


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OFFICIAL PROCEEDINGS

MR. WATTS‑ The gentleman will consume time just the same.

MR. RESSE‑ The gentleman is out of order. The rules require that a delegate shall not he recognized unless in his seat.

THE PRESIDENT PRO TEM‑ The point of order is well taken. The Secretary will read the ordinance.

MR. ASHCRAFT‑ The point of order of the gentleman comes too late, the gentleman from Montgomery had already been recognized.

THE PRESIDENT PRO TEM‑ When that point of order was made, it was well taken. It has been held by the President of the Convention that point of order is well taken at any time.

MR. ASHCRAFT‑I move that the rules be suspended, and that the ordinance be referred to the Committee on Judiciary without reading.

MR. HEFLIN‑I object. I have a resolution accompanying that ordinance, it provides for the raising of a special committee,

THE PRESIDENT PRO TEM‑ The Secretary will read the resolution:

The Secretary read the resolution as follows:

Resolution 303 by Mr. Heflin (Chambers):

Whereas, the article on Judiciary has been laid upon the table, and whereas, the Judiciary Committee has indefinitely postponed an ordinance which provides for electing solicitors by the General Assembly and retaining the present circuit solicitor system, and whereas, the Convention desires Ordinance No.----- reported back speedily and favorably to the Convention.

Be it resolved, That a special committee be raised for the purpose of considering and reporting said ordinance No.--- , and said committee shall he composed of the President of the Convention, Smith of Mobile, White, Coleman of Greene, Oates, O'Neal of Lauderdale. Graham of Talladega. Browne, Jones of Montgomery, Lomax, Harrison, Pitts, Howze, Wilson. Fletcher, Weakley, Parker of Cullman, Hood, Foster, Proctor, Heflin of Randolph.

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

The motion of the gentleman front Lauderdale is that the rules be suspended, and that the ordinance introduced by the gentleman from Chambers be referred to the Committee without reading.

MR. HEFLIN‑I move to lay that upon the table.


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CONSTITUTIONAL CONVENTION, 1901

MR. SMITH (Mobile)‑I rise to a point of order. Rule 47 reads: "When any ordinance is introduced, it shall be read at length and he referred by the President without a vote being taken, unless otherwise ordered by a two-thirds vote of the Convention, to the appropriate committee."

PRESIDENT PRO‑ TEM.‑ The point of order, it occurs to the Chair, is not well taken, because this Convention may suspend any rule formerly made.

MR. SMITH (Mobile)‑The Chair has not heard me. I submit that an article on Judiciary is not referred to the proper committee when it is referred by the Chair without a vote of the House to the Rules Committee, and that the Chair has no right to refer it to the Rules Committee without a two-thirds vote of the Convention.

MR. LOWE (Jefferson)‑I suggest in reply to the gentleman from Mobile that the resolution does not pertain to the Judiciary, it pertains to the creation of a special committee.

THE PRESIDENT–The Chair was just about to make that reply.

MR. SMITH (Mobile)‑I misunderstood the Chair. I thought the ordinance was referred to the Rules Committee.

THE PRESIDENT PRO TEM‑ The Chair is of the understanding that the resolution has been referred, refers to the raising of a new committee for this Convention, and therefore the proper reference would he to the Committee on Rules. The motion of the gentleman from Lauderdale is that the rules he suspended and that the ordinance introduced by the gentleman from Chambers be referred to the Committee on Judiciary without reading. As many as favor the suspension of the rules for that purpose, will make it known by saving aye.

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

MR. WATTS‑I call for the ayes and noes on the vote to suspend the rules.

MR. ASHCRAFT‑I ask unanimous consent to withdraw the motion I offered. I offered it for the purpose of saving the time of the Convention.

Consent was given, and the motion was withdrawn.

THE PRESIDENT PRO TEM.‑ The Secretary will proceed with the reading of the ordinance.

MR. WHITE‑I would ask the Convention by unanimous consent to allow the Committee on Order, Consistency and Har‑


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OFFICIAL PROCEEDINGS

mony to sit from day to day during the remainder of the session of this Convention.

MR. HEFLIN‑I would qualify the motion in this way unless their presence is needed here to make a quorum.

MR. WHITE‑I will state to the gentleman that we will be in the Senate chamber where we can always be reached.

By unanimous consent, leave was granted.

MR. MAC. A. SMITH‑I move that the privileges of the floor be tendered the Hon. H. J. Livingston, who was a member of the Constitutional Convention of 1875.

The privilege was extended.

MR. HEFLIN (Chambers) ‑‑ I understand that under the rules of the Convention, and I think it is a fact, that all ordinances have to be read, and the gentleman suggests that a motion be made, that it be referred without reading, and I understand the rule is that it must be read.

PRESIDENT PRO TEM.‑ The rule of the Convention is. that all ordinances must be read three times before adoption.

MR. HEFLIN‑ Then this morning after the reading of this ordinance it will have to be referred?

PRESIDENT PRO TEM.‑ Yes, sir; the clerk will proceed with the reading of the ordinance.

The clerk read as follows: "Be it ordained by the people of Alabama, in Convention assembled ---"

MR. WATTS‑‑I rise to a point of order. The proposed ordinance in the hands of the Secretary consists of two or three sheets of paper printed upon both sides, and it is not in accordance with the rules of this Convention.

PRESIDENT PRO TEM.‑ The Chair is not cognizant of any rule which requires that an ordinance be written on only one side of the sheet of paper.

MR. WATTS‑ But different subject is written on the other side, and it is bound to result in confusion. An ordinance should be separate.

THE PRESIDENT PRO TEM.‑ The ordinance, it occurs. to the Chair, is in sufficient form to be intelligently considered.

MR. WATTS‑‑‑ What?

THE PRESIDENT PRO TEM.‑ The ordinance it seems to the Chair is in a condition to be intelligently considered.


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MR. WATTS‑ If you will examine it, you will see that what I state about it is correct. It seems to be cut out of the book with something printed on the other side entirely different from the ordinance.

MR. CARMICHAEL‑ The Secretary can mark that off the back there.

MR. WATTS‑ The Secretary has no authority to amend an  ordinance.

MR. FITTS‑ The Secretary might as well mark the front of it.

MR. BROOKS‑I suggest that the rule in reference to the preparation of ordinances be read so that we I will know what it is.

MR. ASHCRAFT‑ It is rule 50.

PRESIDENT PRO TEM.‑ Rule 50 reads: The title of each ordinance shall state concisely its subject matter and shall state the article and section of the present Constitution to which it relates as far as practicable, which ordinance shall be written on another sheet of paper with name of the delegate who introduced it, and the title of the ordinance endorsed thereon. There is nothing in this rule with reference to extraneous matters on the other side of the paper. The point of order is overruled.

MR. WATTS‑ Pardon me one moment, Mr. President. Then you mean to hold that a man could introduce an ordinance here in reference to the Judiciary, that had one of Sax's poems written on it.

MR. HEFLIN (Chambers)‑I would like to ask the gentleman a question. Do you think it would confuse you the way it is offered?

MR. WATTS‑ No, sir; there is no danger of its confusing me, none whatever.

MR. HEFLIN‑ Don't you think that you are an average specimen of this Convention?

MR. WATTS‑I think so, at least the equal of the gentleman from Chambers. (Applause.)

MR. HEFLIN‑I grant, Mr. President, that the distinguished gentleman is the equal of any delegate on this floor, and the gentleman said that he would not be confused by it. Then, who is

there in this Convention that will be confused?

MR. WATTS‑ It is not a question of confusion. It is a question of following the rules of this Convention. The gentleman from Chambers should be held to those rules as well as anybody else.


4238                  

OFFICIAL PROCEEDINGS

THE PRESIDENT PRO TEM. ‑‑ If the gentleman from Montgomery has any authority which shows, or any rule of this Convention, that prohibits the printing of extraneous matter, upon the opposite side of paper, upon which an ordinance is written, and will submit it to the Chair, the Chair will hold with him. Otherwise the point of order is not well taken.

MR. WATTS‑ You ask for my authority. It is one of common sense when a man introduces a proposition.

THE PRESIDENT PRO TEM.‑ The Chair will state to the gentleman from Montgomery, the question of common sense is always a matter upon which men differ.

MR. WATTS‑ Very considerably. (Laughter.)

MR. WILSON (Clarke)‑I just want to suggest an addition to the reason assigned by the President, that the Chair cannot undertake to say what a gentleman shall put in an ordinance.  The Chair cannot undertake to say that several provision, are inconsistent, and a gentleman can put the Greek alphabet in his ordinance if he wants to. That is not a question of order, it is a question for the Committee to deal with.

PRESIDENT PRO TEM.‑ The Clerk will read the ordinance.

MR. HEFLIN‑ Mr. President----

PRESIDENT PRO TEM‑ The gentleman is out of order.

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

PRESIDENT PRO TEM.‑ The gentleman will state the question of personal privilege.

MR. HEFLIN‑ The gentleman from Montgomery suggests to the Chair that he ought to hold me within the bounds of the rule. I have not undertaken at any time to ask the presiding officer of this Convention to go beyond the rules laid down by this Convention to confer a favor upon me, or any other member on this floor. I dare say, Mr. President, we have not had a presiding officer in that Chair that would show partiality to any member on the floor of this Convention, whether he comes from Montgomery or Chambers or St. Clair, or Clay, or any other county in this State, and I think that the charge or intimation of that sort was entirely out of order.

MR. WATTS‑I rise to a point of order. The gentleman on the alleged question of privilege is taking occasion to praise the Chair which is not a question of privilege to him.

MR. PETTUS‑ He is filibustering!

MR. HEFLIN‑ The point of order is a question to be determined by the Chair. I appreciate the alertness of my friend


4239

CONSTITUTIONAL CONVENTION, 1901

and his keen sense of parliamentary law, but so far as I am individually concerned, I do not care to trust myself to his keeping.  I think I am amply able, at least to some extent, to look after myself, although it may be in a very humble and feeble way, but I have never reached that place.

MR. FITTS‑I rise to a point of order. The gentleman is evidently talking against time. There must be some train to come in to bring people here.

MR. HEFLIN‑I rise to another question of personal privilege.

THE PRESIDENT PRO TEM.‑ The gentleman will state the question of personal privilege concisely. (Laughter.)

MR. HEFLIN‑ The gentleman from Tuscaloosa says that I am talking against time. I have never talked against time but one time in my life, and that was when I was carrying the banner of the Democratic party against its opposition. (Applause.)

MR. WATTS‑I rise to another point of order. He has no right to make a speech on the floor of this Convention on a question of privilege‑--

THE PRESIDENT PRO TEM.‑ The gentleman will be in order. The gentleman from Chambers will confine himself strictly to the question of privilege, if he has any.

MR. HEFLIN‑ One moment and I am through. If the gentleman will quit raising other questions of privilege, I will be through. I simply desire to state---

Mr. Reese sought recognition.

THE PRESIDENT PRO TEM.‑ The Convention will be in order.

MR. PROCTOR‑ The report of the Committee on Journal was asked for this morning, but it was not ready. The report of the Committee is now ready to report, and ask unanimous consent.

Objection was made.

MR. HEFLIN‑I will let him introduce it, but I do not yield my place on the floor.

THE PRESIDENT PRO TEM.‑ The gentleman asks unanimous consent to make the report.

MR. BURNS ‑ There was objection. You recognized the gentleman upon a question of personal privilege.

THE PRESIDENT PRO TEM.‑‑ And the gentleman from Chambers yielded.


4240                  

OFFICIAL PROCEEDINGS

MR. HEFLIN‑I withdrew it.

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

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

THE PRESIDENT PRO TEM.-- The gentleman will state the question.

MR. WADDELL‑ The gentleman from Chambers, Mr. Heflin, remarked when I was attempting to exercise a right which I have as a delegate to this Convention to object to a departure from the rules of this Convention, that was all right, that was all the sense I had. I wish to reply to the gentleman, Mr. President, that in doing this, he transcended every rule of this House, and while his remarks may have been true, they were unbecoming in any gentleman.

MR. HEFLIN (Chambers)‑I rise to a question of personal privilege, I asked this Convention when the roll was being called this morning for the introduction of ordinances and resolutions, to allow my name to be passed that I might, at the conclusion of the call of the roll, immediately, without taking up any time of the Convention, be allowed then to introduce an ordinance that I desired to introduce. I heard an objection or two from somebody, and the Chair stated that there was objection, and I asked who it was that objected. I thought at one time I would ask the gentleman to withdraw his objection, but as soon as I discovered that it was the gentleman from Russell, I desired to make the statement I did not have any wish to ask him to withdraw his objection, and if gentleman does not like my remarks on that line, I am responsible for them.

MR. WADDELL‑ Responsibility, Mr. President, does not make a gentleman.

MR. WILSON (Clarke)‑I make the point of order that the hour of 10 has arrived, and at that hour, the Convention, under the amendment to Rule 6, leaves off the call of the roll and proceeds with reports of standing committees, and this will go over as unfinished business.

THE PRESIDENT PRO TEM–The Chair does not understand that while the Clerk is in the midst of the reading of an ordinance, that the reacting of it would be dispensed with until the ordinance has been read and referred. If there is any rule to the  contrary, the Chair is not aware of it. The Clerk will proceed to read the Article.

MR. HEFLIN (Chambers)‑Ten o'clock has arrived, and the ordinance cannot be finished under the rules of this House.


4241

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM. ‑The Chair has already stated that if there is any rule of this Convention which requires the Clerk, at the arrival of the hour for the regular order, to stop in the midst of reading the ordinance, before it is completed, and referred, the Chair is not informed of such a rule.

MR. HEFLIN‑I yielded a while ago, while making a point of order, and other business has been transacted by this Convention. The report of the Committee on Journal has been read and adopted, and this other matter has come in, I make the point of order that it is out of order and should go over until tomorrow.

THE PRESIDENT PRO TEM. ‑ It is the opinion of the Chair that this ordinance will have to be read and referred. The Clerk will read the ordinance.

Be it ordained by the people of Alabama in Convention assembled, That the following be adopted as Article ‑- on Judiciary.

The ordinance was read as follows:

1. The judicial power of the State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, Circuit Courts, Chancery court, Courts of Probate, such Inferior Courts of law and equity, to consist of not more than five members, as the General Assembly may from time to time establish and such persons as may be by law invested with powers of a judicial nature.

2. Except in cases otherwise directed in the Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be co‑extensive with the State, under such restrictions and regulations, not repugnant to this Constitution, as may be from time to time prescribed by law. Provided, that said Court shall have power to issue rights of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of superior jurisdiction.

3. The Supreme Court shall be held at the seat of government, but if that shall have become dangerous from any cause it may adjourn to a different place.

4. The State shall be divided by the General Assembly into convenient circuits, not to exceed eight in number, unless increased by a vote of two-thirds of the members of each House of the General Assembly and no circuit shall contain less than three nor more than twelve counties; and for each circuit there shall be chosen a Judge, who shall, for one year next preceding his election and during his continuance in office, reside in the circuit for which he is elected.

5. The Circuit Court shall have original jurisdiction in all matters, civil and criminal, within the State, not otherwise except‑


4242                  

OFFICIAL PROCEEDINGS

ed in the Constitution; but in civil cases only where the matter or sum in controversy exceeds $50.

6. A Circuit Court shall be held in each county in the State at least twice in every year, and the judges of the several circuits may hold courts for each other, when they deem it expedient, and shall do so when directed by law; Provided, that the judges of the several Circuit Courts shall have power to issue writs of injunction returnable into Courts of Chancery.

7. The General Assembly shall have power to establish a Court or Courts of Chancery, with original and appellate jurisdiction. The State shall be divided by the General Assembly into convenient chancery divisions, not exceeding three in number, unless an increase shall be made by a vote of two thirds of each House of the General Assembly taken by yeas and nays and entered upon the journals; and the division shall be divided into districts, and for each division there shall be a Chancellor, who shall, at the time of his election or appointment, and during his continuance in office, reside in the division for which he shall have been elected or appointed.

8. A Chancery Court shall be held in each district, at a place to be fixed by law, at least once in each year, and the Chancellors may hold courts for each other, when they deem it necessary.

9. The General Assembly shall have power to establish in each county within the State a Court of Probate, with general jurisdiction for the granting of letters testamentary and of administration, and for orphans' business.

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

MR. HEFLIN (Chambers)‑Has the ordinance been finished?

MR. WATTS‑ Oh, no! It will take a week.

MR. FITTS‑ He has got to read the other side of it--

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

12. The Chief Justice and Associate Justices of the Supreme Court, Judges of the Circuit Courts, Probate Courts and Chancellors, shall be elected by the qualified electors of the State, cir‑


4243

CONSTITUTIONAL CONVENTION, 1901

cuits, counties and chancery divisions for which such courts may be established, at such times as may be prescribed by law.

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

14. The Judges of the Supreme Court, Circuit Courts, Chancellors and the Judges of the City Court, shall have been citizens of the United States and of this State five years next preceding their election or appointment, and shall not be less than twenty-five years of age, and learned in the law.

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

16. Judges of the Supreme Court shall, by virtue of their offices, be conservators of the peace throughout the State ; the Judges of the Circuit Courts within their respective circuits, and the Judges of the inferior courts within their respective jurisdictions, shall in like manner be conservators of the peace.

17. Vacancies in the office of any of the Judges or Chancellors of this State shall be filled by appointment by the Governor, and such appointee shall hold his office for the unexpired term and until his successor is elected or appointed and qualified.

18. If in any case, civil or criminal, pending in any circuit, chancery or city court in this State, the presiding judge or chancellor shall, for any legal cause be incompetent to try, hear or render judgment in such cause, the parties or their attorneys of record, if it be a civil case, or, the Solicitor or other prosecuting officer, and the defendant or defendants, if it be a criminal case, may agree upon some disinterested person, practicing in the court and learned in the law, to act as special Judge or Chancellor, to sit as a court to hear, decide and render judgment in the same manner and to the same effect as a Judge of the Circuit Court or City Court, or Chancellor, sitting as a court might do in such case. If the case be a civil one and the parties or their attorneys of record do not agree, or if a case be a criminal one and the prosecuting officer and the defendant or defendants do not agree upon a special Judge or Chancellor, or if either party in a special cause is not represented in court, the Clerk of the Circuit or City Court, or Register in Chancery of the court in which said cause is pending, shall appoint the special judge or Chancellor, who shall preside, try and render judgments as in this section provided.


4244      

OFFICIAL PROCEEDINGS

19. The General Assembly shall have power to provide for the holding of Circuit and Chancery Court in this State, when the Judges or Chancellors thereof fail to attend regular terms.

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

21. Registers in Chancery shall be appointed by the Chancellors of the divisions, and shall hold office during the term of the Chancellor making such appointment; and such Registers shall receive as compensation for their services only such fees and commissions as may be specifically prescribed by law.

22. A Clerk of the Supreme Court shall be appointed by the judges thereof and shall hold office during the term of the Judges making the appointment. and clerks of such inferior courts as may be established by law, shall be appointed by the Judges thereof, and shall hold office during the term of the Judge making such appointment.

23. Clerks of the Circuit Court shall be elected by the qualified electors in each county, for the term of six years. Vacancies in such office shall be filled by the Governor for the unexpired term.

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

25. A Solicitor for each judicial circuit shall be elected by joint ballot of the General Assembly, who shall be learned in the law, and who shall, at the time of his election, and during his continuance in office, reside in the circuit for which he is chosen, and whose term of office shall be for six years provided, that the General Assembly, at the first session thereof after the ratification of this Constitution shall, by joint ballot, elect a Solicitor for each judicial circuit of the State, whose term of office shall begin on Tuesday after the first Monday in November, 1876, and continue for four years; and provided, that the General Assembly may, when necessary, provide for the election or appointment of County Solicitors.

26. There shall be elected by the qualified electors of each precinct of the counties, not exceeding two justices of the Peace and one Constable. Such Justices have jurisdiction in all civil cases wherein the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery, and ejectment,

In all cases tried before such justices, the right of appeal, without repayment of costs, shall be secured by law; provided,.


4245

CONSTITUTIONAL CONVENTION, 1901

that the Governor may appoint one Notary Public for each election precinct in counties, and one for each ward in cities of over five thousand inhabitants, who, in addition to the powers of notary, shall have and exercise the same jurisdiction as Justices of the Peace within the precincts and wards for which they are respectively appointed; and provided, that Notaries Public without such jurisdiction may be appointed. The term of office of such Justices and Notaries Public shall be prescribed by law.

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

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

MR. HEFLIN‑I move that the reference of this article be postponed until tomorrow morning.

MR. PETTUS‑I rise to a point of order----

MR. GRAHAM (Talladega)‑I make the point of order that it should be immediately referred without debate.

THE PRESIDENT PRO TEM.‑ The rules would have to be suspended, and a motion would have to be made that the rules be suspended, in order to put the motion that the reference be postponed until tomorrow morning.

MR. HEFLIN‑ The uniform custom and the ruling of the Chair have been, when a member suggests a committee for his resolution of ordinance to be referred to, for it to be so referred, and it has been the practice of the House for the Chair to ask if the gentleman introducing it would suggest the committee he desired it referred to.

THE PRESIDENT PRO TEM.‑ The rules of this Convention provided that when an ordinance is read it shall be referred to the appropriate committee which has been raised for that purpose. When it is desired that a resolution or ordinance be referred to any special committee, a motion to suspend the rules must be made, and unless that motion is made, the Chair will refer the ordinance to the Committee on Judiciary.

MR. HEFLIN‑I have a resolution raising a special committee to refer this ordinance to.


4246                  

OFFICIAL PROCEEDINGS

THE PRESIDENT PRO TEM. ‑ The committee has not been appointed.

MR. HEFLIN‑I make the motion, then, that the rules be suspended and that the reference of this ordinance be postponed until tomorrow morning.

THE PRESIDENT PRO TEM. ‑ The gentleman from Chambers moves that the rule, of this Convention be suspend and that the reference of the ordinance he postponed until tomorrow morning.

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

The call was sustained.

THE PRESIDENT PRO TEM.‑ The question is, shall the rules of this Convention be suspended for the purpose of postponing consideration of the ordinance just read.

MR. MULKEY‑I move to lay that motion on the table.

The motion to table was then withdrawn.

MR. HEFLIN‑I will withdraw the motion to postpone the reference.

Objections were made.

MR. HEFLIN‑I desire, before I withdraw it, to read Rule 29 to the Chair: "When motions are made for the reference of the subject to a select committee and a standing committee, the question for the reference to a standing committee shall be first put." Now I and trying to have it referred to a select and new committee.

THE PRESIDENT PRO TEM‑ The Chair is perfectly satisfied upon this proposition. The gentleman, from Chambers asks unanimous consent to withdraw his motion.

MR. PETTUS‑I object.

of the Chair to Rule 29 which does not require a suspension of the rules to raise a select committee.

THE PRESIDENT PRO TEM.‑ This is not a resolution to raise the select committee. The resolution raising the select committee has been referred to the Committee on Rules.

MR. HEFLIN‑I move that a select committee composed of the President of the Convention and the Chairman of each Committee be‑---

THE PRESIDENT PRO TEM.‑ The Convention will be in order. The gentleman is out of order. The only motion before


4247

CONSTITUTIONAL CONVENTION, 1901

this House at this time is in reference to this ordinance which has just been read, and a motion has been made that the rules of this Convention be suspended and that it be referred to a special committee. Upon that motion, the ayes and noes have been demanded, and the call has been sustained. The gentleman thereupon asked unanimous consent to withdraw his motion, and objection is made by the gentleman from Limestone, and the question will be upon the motion to suspend the rules. Those who favor the suspension of the rules will say aye, and those opposed no, as their names are called. The Clerk will call the roll.

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

AYES

Barefield,

Heflin, of Chambers,

Lowe (Jefferson),

Burns,

Heflin, of Randolph,

Opp,

Carmichael, of Colbert,

Inge,

O'Rear,

Carmichael, of Coffee,

Jackson,

Parker (Cullman),

Glover,

Jenkins,

Proctor,

Grayson,

Jones, of Wilcox,

Sanford,

Greer, of Calhoun,

Knight,

Sentell,

Handley,

Lomax,

Smith, Morgan M.,

TOTAL-‑24

NOES

Altman,

Freeman,

O'Neal (Lauderdale),

Ashcraft,

Gilmore,

Palmer,

Banks,

Graham, of Montgomery,

Parker (Elmore),

Bartlett,

Graham, of Talladega,

Pettus,

Beddow,

Grant,

Pillans,

Blackwell,

Greer, of Perry,

Pitts,

Boone,

Henderson,

Porter,

Brooks,

Hodges,

Reynolds (Chilton),

Bulger,

Hood,

Samford,

Burnett,

Howell,

Sanders,

Byars,

Howze,

Selheimer,

Cardon,

Jones, of Bibb,

Sloan,

Chapman,

Kyle,

Smith, Mac. A.,

Cobb,

Long (Walker),

Spears

Cofer,

Lowe (Lawrence),

Spragins,

Craig,

McMillan (Baldwin),

Studdard,

Davis, of DeKalb,

Malone,

Tayloe,

Davis, of Etowah,

Martin,

Thompson,

Dent,

Miller (Wilcox),

Vaughan,

Eley,

Moody,

Waddell,

Eyster,

Mulkey,

Walker,

Espy,

Murphree,

Watts,

Fitts,

NeSmith,

Weakley,

Foshee,

Norman,

White,


4248                  

OFFICIAL PROCEEDINGS

Whiteside,

Wilson (Clarke),

Winn,

Williams (Barbour),

Wilson (Washington),

TOTAL‑77

ABSENT OR NOT VOTING

Messrs. President,

Hinson,

O’Neill (Jefferson),

Almon,

Jones, of Hale,

Pearce,

Beavers,

Jones, of Montgomery,

Phillips,

Bethune,

King,

Reese,

Browne,

Kirk,

Renfro,

Carnathon,

Kirkland,

Reynolds (Henry),

Case,

Ledbetter,

Robinson,

Coleman, or Greene,

Leigh,

Rogers (Lowndes),

Coleman, of Walker,

Locklin,

Rogers (Sumter),

Cornwall,

Long (Butler),

Searcy,

Cunningham,

Macdonald,

Sollie,

deGraffenreid,

McMillan (Wilcox),

Sorrell,

Duke,

Maxwell,

Stewart,

Ferguson,

Merrill,

Weatherly,

Fletcher,

Miller (Marengo),

Willet,

Foster,

Morrisette,

William (Elmore),

Haley,

Norwood,

Harrison,

Oates,

PAIRED

AYES                                                 NOES

Williams (Marengo),

Smith (Mobile),

And the Convention refused to suspend the rules.

MR. HEFLIN–The Chair rules in the face of Rule 29 that it requires a suspension of the rules.  I was satisfied the Convention would suspend the rules for that purpose.  I now move and wish to state my reasons why—

Objection was made.

MR. JENKINS–I would like to ask the gentleman a question.

PRESIDENT PRO TEM–Will the gentleman yield?

MR. HEFLIN‑‑ Yes.

MR. JENKINS‑ I would ask if the Convention could not go into Committee of the Whole, and if the gentleman will accept that: that the Convention resolve itself into a Committee of the Whole this afternoon at 3:30 o'clock.

MR. GRAHAM (Talladega)‑I rise to a point of order. The rules of this Convention require that when an ordinance is read, that it shall he immediately referred to the appropriate committee.


4249

CONSTITUTIONAL CONVENTION, 1901

PRESIDENT PRO TEM.‑ The occupant of the Chair has uniformly held----

MR. JENKINS‑ Will the Chair hear me on that point?

PRESIDENT PRO TEM.‑ Not until the Chair rules. That under the rules of this Convention, as stated by the gentleman from Talladega, when an ordinance is read, it must be referred, unless the rules of this Convention are suspended. The Convention has failed to suspend the rules and the ordinance is referred to the Committee on judiciary.

The special order for this time is the consideration of the report of the Committee on Education ‑Section 6 of the Article.

MR. GRAHAM‑ Mr. President, Section 6 reported by the Committee does not make any change in the old Constitution, therefore I move its adoption without reading.

PRESIDENT PRO TEM.‑ The Secretary will read Section

6.

The Secretary read Section 6 as follows:

Sec. 6. Not more than 4 per cent of all moneys raised. Or which may hereafter be appropriated for the support of public schools shall be used or expended otherwise than for the payment of teachers employed in such schools; provided, that the General Assembly may, by a vote of two-thirds of each House suspend the operation of this section.

PRESIDENT PRO TEM‑ The question is upon the adoption of the section as read.

A vote being taken the section was adopted.

The Secretary read Section 7 as follows:

Sec. 7. The supervision of the public schools shall be vested in a Superintendent of Education, whose powers, duties and compensation shall be fixed by law.

MR. REESE‑ That section remains unchanged in the old Constitution, with the exception of the Article for the Executive Department, fixing the time of office and the method of election. I move the adoption of the section.

PRESIDENT PRO TEM.‑ The question is upon the adoption of the section as read.

A vote being taken the section was adopted.

The Secretary read Section 8 as follows:

Sec. 8. No money raised for the support of the public schools of the State shall be appropriated to or used for the support of any sectarian or denominational schools.


4250                  

OFFICIAL PROCEEDINGS

MR. BETHUNE‑ Section, 8 is exactly like the old Constitution. I move its adoption.

PRESIDENT PRO TEM.‑ The question is on the adoption of the Section as read.

A vote being taken, the Section was adopted.

The Secretary read Section 9 as follows:

Sec. 9. The State University and Agricultural and Mechanical College now called the Alabama Polytechnic Institute, shall be each under the management and control of a Board of Trustees.  The Board for the University shall consist of two members from  the Congressional district in which the University is located, and one from each of the other Congressional Districts in the State.  The Board for the Agricultural and Mechanical College shall consist of two members from the Congressional District in which the College is located and one from each of the other Congressional Districts in the State, said trustees shall be appointed by the Governor by and with the advice and consent of the Senate, and shall hold office for a term of sic years and until their successors shall be appointed and qualified. After the first appointment each board shall be divided into three classes, as nearly equal as may be. The seats of the first class shall be vacated at the expiration of two years, and those of the second class in four years, and those of the third class at the end of six years from the date of appointment, so that one-third may be chosen biennially. No Trustee shall receive any pay or emolument other than his actual expenses incurred in the discharge of his duties as such. The Governor shall be ex-officio President, and the Superintendent of Education ex-officio a member of each of said Boards of Trustees.

MR. GRAHAM (Talladega)– There is a minority report to that Section.

The Secretary read the minority report as follows:

Therefore, the undersigned minority of your Committee on Education recommends that the words "each of said Boards of Trustees" at the end of Section 9 of the report be stricken out, and that there shall be added in lieu thereof  the words “the Board of Trustees of the Alabama Polytechnic Institute.  The Superintendent of Education shall be ex officio a member of the Board of Trustees of the University; and the said Board shall elect its own President.

THE  PRESIDENT PRO TEM– The question will be upon the adoption of the minority report. I recognize the gentleman from Limestone.

MR. PETTUS‑‑ Mr. President—


4251

CONSTITUTIONAL CONVENTION, 1901

MR. POSTER‑ Will the gentleman yield to an amendment to be considered at the same time?

MR. PETTUS‑I will yield to the gentleman to offer the amendment.

The Secretary read the amendment as follows:

"Amend minority report on Section 9 of Article on Education by striking out of said Section all therein that applies to the State University, and by adding at the end of the Section the following:  `The State University shall be under the management and control of a Board of Trustees, which shall consist of two members from the Congressional District in which the University is located, and one from each of the other Congressional Districts In the State, and the Superintendent of Education and the Governor who shall be ex officio President of the Board, the members of the Board of Trustees now existing shall hold office until their respective terms expire, under existing law, and until their successors shall  be elected and confirmed as hereinafter required. When the term of any member of such Board shall expire the remaining members of the Board shall by secret ballot, elect his successor. At every meeting of the Legislature the Superintendent of Education shall certify to the Senate the names of all who shall have been so elected since the last session of the Legislature, and the Senate shall confirm or reject them as it shall determine is for the best interest of the University. If it reject the name of any member, it shall thereupon elect Trustees in the stead of those rejected. The Trustees who shall hereafter be elected and confirmed, shall hold office for a term of six years from the date of their confirmation or election by the Senate, and until their successors shall be elected and confirmed; no Trustee shall receive my pay or emolument other than actual expenses incurred in the discharge of his duties as such.

THE PRESIDENT PRO TEM.‑ The question will be upon the adoption of the amendment to the minority report. The gentleman from Limestone.

MR. PETTUS‑ Mr. President, I will state to the Convention that my first idea was to offer some such plan as that proposed by the substitute of the gentleman from Tuscaloosa. Upon a casual investigation of the subject, it appeared to me that it might be wise and proper for the Board of Trustees of the University of Alabama to be made self perpetuating, subject to the confirmation of the Senate, but upon a more careful investigation of the subject, and upon an examination of the laws concerning other institutions of like character, I came to the conclusion that the reasons which might be urged against a section or provision like that were greater than the reasons which could be urged for such a plan. I think, Mr. President, that one objection which I might


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mention, taking, into consideration the courtesy that holds among bodies of that character, is the consideration which members of a Board of Trustees would come to leave for each other, when brought into the social relations that they would, in transacting, the business that would come before them. I think that the tendency of human nature in that regard would be for them to nominate each other, even after from old age or some other cause a member should have become inefficient. I do not believe that a Board of Trustees should have power to perpetuate itself in institutions of this character. The Board will never get to the point where they would turn down a single member, if he should desire a re‑appointment, and the Senate would not turn down a member recommended by the Board unless there was very serious, grave, or partisan reason for their action in the matter, and I believe that in itself, is a sufficient reason for not adopting this plan.

I have not been able to find any examples of this character in other institutions.  My first information was that this plan obtained in the University of Virginia, which I believe to be the model State University in the South, and I got the laws upon that subject to see if the University Trustees had power to perpetuate themselves.  On getting the law and investigating the subject. I find that the Board of Trustees of the University of Virginia is appointed by the Governor of Virginia, but the Governor is not a member of the Board.

Now, Mr. President, the reason why I object to the Governor being a member of the Board is not based on any special instance, nor on any particular experience, but on the general experience and history of the State.  I hold to the principle that the man who appoints the Board of Trustees, and to whom that Board reports, ought not to preside over it, and in that way be able to dominate and control its actions.  There is no question in my mind but what the power that appoints the Board of Trustees, if brought into direct personal contact, by being made the ex officio presiding officer of that Board, will be able to dominate and control its action.  There is a question, too, whether or not this control will always be for the best and highest interest of the institution, over which he is presiding. In some of the Northern Universities, and in some other institutions, provisions is made for a Board of 'Trustees to he appointed or elected, by the alumni of those institutions. It does not seem to me that it is necessary to go as far as that in framing a section for the University of Alabama, but I do believe, Mr. President, that the voice of the alumni should he heard upon this subject. I believe that they have an interest in this matter that is perhaps greater than that of other citizens of the State, and certainly it cannot be denied that they have a knowledge of the subject, from their experience and their contract with the University, which is greater than that of other citizens of the


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State. Now, while I do not favor the plan at this time, of putting it into the Constitution that the alumni are to elect the Trustees, or a part of them, I do believe that the voice of the alumni should be heard on this great question, and I read from an official resolution which was adopted by the Alumni Society at the last commencement, where a great number attended, and where it was said in the newspaper reports that the alumni who were present were older men than usually come back to the commencements. Interest in the University had brought back very many of the old alumni of the institution, and they adopted a resolution which says in paragraph 2: "That the Governor, being the Chief Executive Officer of the State, whose duty it is to report upon the work of the Board, should not be a Trustee." I submit, Mr. President, that in that pithy paragraph, they have summed up the reasons why the Governor should not be a member of the Board, because the board reports to hire and there should not be the anomaly in the organic law of the State requiring the Governor to report to himself. Let him appoint the Board, and in that way you will get good men ; you will get efficient men, and they will be confirmed by the Senate ; you will get a change in the Board whenever a change is necessary, and will not have the Governor under obligation to reappoint any members who may have become inefficient from old age or other causes. In that way, the Governor will appoint to be confirmed by the Senate, and these appointees will preside over the destinies of the University, and report to the Governor of the State.

Now, it has been suggested by some, Mr. President, that we ought not to make an exception of any University; that if we are going to take the Governor off of the Board of the University, we ought to take him off the Board of the other institutions, at Auburn and Montevallo.  While it might save some little space in printing the Constitution, to have all of it embraced in one section, but I submit that it is no argument that the University should be run like Montevallo or Auburn.  The State University is in a class by itself, both from its origin and foundation in the position it occupies among the schools of the State.  The reason Why I did not incorporate, with the other seven or eight gentlemen who sign this minority report, a section taking the Governor off of the Board of Trustees of Auburn and Montevallo while I believe the same reasons would hold good there, it would be better and wiser policy, but we did not incorporate in the minority report and make that recommendation to the Convention, because, Mr. President, those institutions sent a long petition to the Committee on Education and specifically requested and asked that no change whatever be made in their management.

MR. BROOKS‑I desire to ask my friend from Limestone if he will address himself briefly to the reason for his retaining in his amendment the Superintendent of Education as ex-officio


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member of the Board. Why should the Superintendent of Education, whose function; and field of operations are so distinct from that of the University be retained, or why in fact, should there be any ex-officio member of that Board ?

MR. PETTUS‑‑‑ The reason which actuated the minority in leaving the Superintendent of Education as ex-officio member of the Board of the State University was this: While the University was founded by the Federal government, while its appropriation that comes annually from the State is but the payment of the interest which the State owes upon the trust fund that founded the University, and while in theory, perhaps, it may be somewhat separate, at least in its origin theory,   the common school system of the State the minority believe that the ideal system of education is to have schools beginning with the common schools, open  to all the people in every county, through various graduations, and to have as a top and crown of the educational system of the State, a State University and believing the University should be in touch with these other institutions of learning over which the Superintendent of Education presides, and over which he exercises supervision, the minority believed that it was a wise policy to let him be an ex-officio member of the Board of the State University, in order that the relationship and harmony of the educational institutions and systems of the State might be preserved.

THE PRESIDENT PRO TEM.‑‑ The time of the gentleman has expired.

MR. PETTUS–I don’t want more time.  I simply want to submit that I am opposed to the substitute of the gentleman from Tuscaloosa, and I trust, with the minority of the Committee on Education who have signed the report with me, that the Convention will entertain the substitute and adopt the minority report which simply takes the governor off of the Board and makes no other change.

MR. FOSTER–The substitute has not been prompted by any feeling on my part that the present system has not resulted in the appointment of good men as Trustees of the University.

I believe that the Governor can always appoint good men upon the Board of Trustees of the University, but it is needless to ignore the fact, as every member of this Convention knows, there has been a cry all over the State which has injured the University materially, that politics have entered into its control.  It has even been stated, Mr. President, in parts of the State, that the University is a mere political machine, used for the advancement of political interests of certain men who are connected with it.  Now, Mr. President, while I do  not believe that politics enter into the management of that institution to any very great extent. I feel thoroughly and deeply the need of some action upon the


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part of this Convention to make it impossible in the future that this cry may be used against this institution of learning. The alumni, Mr. President, also feel it, and it is in response to a resolution at the last meeting of the alumni, that I have drawn up that substitute and offered it before this Convention. The gentleman from Limestone read part of a resolution adopted at the last meeting, of the Alumni Association, but he did not read all of it and I desire to call the attention of this Convention to the fourth resolution adopted at that meeting, "that some method should be incorporated in the Constitution of the State. In place of the present one, which will remove the appointment or election of the Trustees, as far as possible, from political influences and obligations." I agree with the gentleman from Limestone that meeting of the Alumni Association was a representative body of the alumni of the University. I do not concede the theory, and I do not believe in it, that the institution belongs to the alumni. I believe notwithstanding what the gentleman from Limestone said that its endowment is a gift of the Federal government, that the institution belongs to the State of Alabama. They are the people interested in it.

Mr. President, the Alumni met there at the last commencement, and having, canvassed the whole matter, adopted this resolution, as their deliberate opinion, that the appointment of trustees should be removed as far as possible from political influences and obligation.  For that reason, Mr. President, I have framed this substitute endeavoring to take away from any political power the appointment of these trustees, except from the Senate of the State.

Now I do not think it would be a good idea to leave the Governor off of this Board. I think the Governor ought to be on the Board, and think the Superintendent of Education ought to be on the Board, because, as it said before, the institution belongs to the people of Alabama, and they ought to have their representative upon the Board of this institution. There are other reasons why I think it best that the Governor should remain on this board. I believe it would be to the interests of the institution that the Chief Executive officer of the State should feel in some measure responsible for its conduct. I agree thoroughly with the gentleman from Limestone for the reason that it tends to harmonize and make a consistent whole out of the educational system of the State, that the Superintendent of Education ought to remain upon the Board, but I submit that the mere fact of detaching the Governor from this Board cannot have the effect that the gentleman from Limestone desires. If any Governor of this State should see fit to appoint men on that Board to advance his political interests or to accomplish any other object, wouldn't he appoint his own creatures, and couldn't he control them from


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his executive office just as well as he could from the room in which the Board of Trustees meet at the University? What difference would it make? None whatever in the management of that Board.

Now, it has been unfortunate that we have had trouble at the University. We have even had litigation over the appointment of the trustees. This plan now makes that impossible, if the Convention adopts the substitute offered by myself. The Trustees will themselves elect their successors, subject to confirmation by the State, and if the Senate rejects any member so elected, then it becomes the duty of the Senate itself to elect successors. If  objection is raised, that may give a life tenure to some of the Trustees. I have no objection to an amendment, if anyone sees fit to offer it, and I will accept it providing that no member shall be elected more than twice, or shall hold more than two terms.  As there are some objections upon that ground, I am perfectly willing to accept that amendment, but I cannot conceive that the Senate of Alabama would confirm a man known to be unworthy of the trust, even if he were elected by the board of Trustees, and I do not believe the plan as offered by the will result in the continuation of any unworthy man in the management in the control of that institution. However, it is not the trustees whose interest I care for. I do not care if their terns is limited to one or two or three, or how you limit it. It is the interests of the institution which I have at heart, and which I am endeavoring to protect, and this substitute is in accordance with the resolutions adopted by the Alumni Association. Now, I agree with the gentleman from Limestone that the alumni have the interest of the institution at heart, and that they do know, as well, perhaps, as any other body of the State, or better, what is to the interest of the school. There are, as is well known, and as is suggested to me by my colleague, Mr. Kitts, from Tuscaloosa, three members of the alumni who now sit upon that Board as all Advisory Board to the Board of 'Trustees. Those men are selected by the alumni and necessarily have great weight and influence in the management and control of that institution.

MR. REESE‑ May I ask the gentleman a question; Is your plan known as the Harvard plan; is it the same plan?

MR. FOSTER‑I am not familiar with that, but I am told that the Harvard plan is something like this: that the alumni there recommend the appointment of some trustees, and the Board elects its own successors.

MR. JENKINS‑I want to say that I agree with the gentle mall from Tuscaloosa. I made it my business to go to Tuscaloosa and visit that institution at the alumni meeting.


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MR. GRAYSON‑I would like to hear the substitute read before further discussion.

MR. JENKINS‑‑I will state to the gentleman what the substitute is. It simply provides that all vacancies on the Board of Trustees shall be filled subject to confirmation of the Senate, but they shall hold regularly for only six years. They shall he reelected by the Board, subject to the confirmation of the Senate, but if the Senate sees fit to reject any member of the Board, or all of the members of the Board, then the Senate shall elect the members of the Board. Now, Mr. President, I think that provision alone requiring the Senate, if they reject the action of the Board, to reelect, is a safeguard against any undue perpetuation of the Board by themselves. Their vote is a secret ballot, and every man on that Board has more the interest of the University at heart than he has personal ambition, and any member of that Board. I do not believe there is one of them, and I know each and every one of them personally, that would vote to perpetuate a single member if they did not think it was to the interest of the University of Alabama to do so. Now, Mr. President, I say this, that the only trouble with the University of this State today, is the great hue and cry raised by denominational colleges, and pretended friends and open enemies that politics will get in around and about it, and we want to remove that imputation, and if we can remove that imputation, I say you can put thirteen sticks or figureheads on the Board, and every power and force that is inherent in the college and the faculty will carry it over any obstacle that can get in the way. It is not so much the Board of Trustees, but it is that hue and cry of politics, and there is where politics come in through the Governor who appoints the Trustees. It has been the history of the University in the past, with a few exceptions, that the Governors have appointed personal and political friends on the Board, and not so much the interests of the University. It has been the dumping ground, as it were, for politicians, men who have axes to grind, in order to further the ambitions of Governors to the United States Senate and other places. Now, Mr. President, that charge has been made, and I think there has been good ground for it, and we ought to take that power out of the hands of the Governor and place it back with the people in the Senate, and not just leave it to the Governor to name them. I have no objection to the Governor being on the Board, if you remove that powers of appointment from him, but if you do not remove that power I think he ought to be taken off the Board. But if you do remove the power of appointment, then his being on the Board will not amount to anything, and he would have only one vote and that is all, but if you allow him to name the Board, he will have the whole vote, because every man he names he will have some kind of a claim upon him or will claim to have it, and there are very few men that can resist it. Now, I have thought


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about this question, I have gone to the college. I have talked with the trustees, I have talked with the people in the town, and it is the consensus of opinion as I could gather that this was the most feasible and practical plan for the interest of the university that could be gotten up, and for that  reason the gentleman from Tuscaloosa has introduced it, and I believe that the alumni over the State and the college, and the college itself will back it up and will support it and will be thankful to the Convention if they could see fit to give it to them. I will say furthermore that there is another institution in Tuscaloosa standing side by side with the university that has been a crowning success of the nineteenth century, and that is the Bryce Insane Hospital. It is the greatest product of our civilization. Alabama has nothing to compare to it. It is known the wide world over, and what has trade the success of that institution? They have such a plan as this for their trustees. They have a board that stays on the grounds, that stays in touch with the institution, that is part and parcel of it, and that is what we want with the university. We do not want a division of the forces all the time, one board coming in and reversing the action of the former board, vacillating, uncertain, wandering, policy of the collage, but if you will fix it like the asylum, like some of the leading institutions of the United States, why, sir, you will start the ground work of the greatest university in the South right here in Alabama. The university has always had the faculty that was the peer of any in the South. I do not grant any excellencies prior to them, even the University of Virginia. There has never been any faculty superior in the South to the faculty of the University, and its equipment and resources and ability to educate the young men of Alabama have been equal to any, but on account of this cry, this imputation, this entanglement, circumstances that have been round and about it, the institution has been hampered and we want to cut it loose from their charge and let it walk out and stand alone upon its merits, and if you will place it can its merits and take away these charges and this damning influence that is ruining the college and has for thirty years, why, Mr. President, it will be all well with the institution, and the only way to do it is to make a self-perpetuating board subject to the approval of the Senate. That to my mind is a sufficient guard against undue perpetuation by unworthy members. Now, Mr. President. I sincerely hope that the substitute the gentleman from Tuscaloosa will prevail.

MR. FITTS‑I desire to offer an amendment adding a sentence to the end of the substitute offered by the gentleman from Tuscaloosa. I ask unanimous consent to add this: "No trustee shall hold office under this plan for more than twelve successive years.”


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THE PRESIDENT‑ The gentleman from Tuscaloosa asks unanimous consent to offer his amendment to the substitute offered by the gentleman from Tuscaloosa. Is there no objection?

There was no objection, and the amendment was allowed.

MR. DAVIS (Etowah)‑I do not care to snake any remarks as to the two amendments proposed by the gentleman from Tuscaloosa, but I do desire to make some remarks in opposition to the minority report on this section. It is perhaps indelicate to line, a member of the Board of Trustees of the University, to take part in this discussion, but I would he recreant to the trust; imposed in me were I at this juncture to remain silent when I feel that a hurtful blow is being struck at the chief institution of learning in the State.  In coming here as a member of this Constitutional Convention, I adopted for myself a rule of action in which, in my humble opinion, leas wise and safe, and that rule is to guard jealously the provisions of the old Constitution and to vote against any proposed change or innovation until I was satisfied that there was a necessity for such change. I shall adhere to that rule of action in the present instance, for I feel that there is not only no necessity for a change, but that such change would be dangerous to the welfare of the University. What good reason can be assigned for wiping out this old landmark from the Constitution?  You have all heard the cry of politics, politics in the university; that its baleful influence was hanging like a millstone around her neck and dragging her down to destruction, but I say to you, gentlemen of the Convention, that this cry of politics in the University is all wrong, that tile charge that the University is going down is all wrong. She is in better condition for usefulness today than she has ever been. She is the peer of any institution of learning south of the University of Virginia. She has the ablest corps of teachers that she has ever had. She has for President a man whose name is revered and respected throughout the confines of Alabama, a man who has left the impress of his splendid personality on thousands of Alabama's most honored sons. Would any man dare say that politics placed a single one of that able corps of teachers there, that polities ever remotely entered into the selection of Dr. Wyman for its President or his predecessor, Dr. Powers, both of whom have spent their lives in the cause of education? Gentlemen of the Convention, it is well known that recently there was an applicant from our own State for the Presidency of the University‑ a man of scholarly attainments, one who had been honored not only by Alabamians but by the great universities of foreign lands, one who had stood high in the councils of the nation, yet he had never haul any experience as an educator.  It is equally well known that his application was backed by a petition with the names of 114 members of this Constitutional Convention signed thereto, urging the members of the Board of Trustees to elect him President; and yet notwithstanding this great


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political pressure, they selected a man who was neither directly nor indirectly an applicant for the position, because they believed that the welfare of the University demanded it. Was this politics?   Gentlemen of the Convention, I beg you to pause and consider long before you make this change. Take not ruthlessly from your chief educational institution the man whom the people of Alabama leave honored by making him their Chief Executive.  The students of the University feel honored by having the Governor of Alabama present at their closing exercises. The alumni and friends of the University who gather annually at the historic city of Tuscaloosa to witness commencement exercises feel glad to see that the State is present in the person of her Governor to add dignity to the occasion and to bid god speed to those who are engaged in the noble work of higher education. Do not strike from the roster of her Board the Chief Executive. Let her not feel by such a blow that Alabama has discarded her from the list of her cherished children and has relegated her to the position of a step‑child. She is worthy of your love, and your respect, and your personal attention. We all felt, when we elected Dr. Wyman to the presidency, that peace and harmony had at last been restored to this grand old institution, but hardly has she had time to adapt herself to the repose thus offered, when an attempt is made to disturb her serenity and to thrust her back into the old condition of unrest. I love the University; I love her classic halls. She is my alma mater; my cherished mother at whose breast I imbibed the greater portion of what learning I possess. In youth she nurtured me, and with what strength I have, I shall protect her now. It was the hand of our forefathers that planter her there to be forever a seminary of learning for the higher education of the young men of Alabama. The winds and the waves of stormy periods have beat about her. Even the cruel hand of grim visaged war has been laid heavily upon her, and those halls, consecrated to learning, were consigned to the flames; but even as those flames mounted upwards and the fiery sparks from that seething conflagration leaped skyward, they were borne by the winged messenger of the gods, Mercury, to the very battlements of heaven, and there laid at the feet of Minerva, the goddess of war and wisdom, who sat in full panoply of war at the right hand of her omnipotent sire, and Mercury said to her: “Lo, thy legions have invaded a fair land; they have sacked and pillaged; they have applied the torch freely, and now, mad with unbridled license, they have consigned to the flames as a burnt offering to thee a great seminary of learning;” and Minerva said to him, “Take back to the sorrow-stricken people of that fair land a message. Tell them that the walls of that school shall be rebuilt and that I will make of her a greater institution of learning wherein not only the sons, but the daughters of Alabama shall drink deep at the fountain of learning.”  Gentlemen of the Convention, do not adopt this minority report, lest sometime in the future even-handed justice


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should place the poisoned chalice to the lips of your other great educational institutions. But should you decide against her, should you decide she no longer shall be honored by having the Chief Executive at the head of her Board of Trustees, that same moment blot from the galaxy of great educational institutions in your State the bright star that glitters to the name of the University, but remember, you will have left her like "the Niobe of nations, voiceless in her woe." (Applause).

MR. REESE‑ The correction of abuses, and the reformation of abuses, are frequently accompanied with disaster. The efforts to correct and the efforts to reform do more harm than the abuses which it is intended to correct. Now. Mr. President, the distinguished delegate from Limestone, and I said it with the greatest sincerity, has undertaken to break down the greatest system that has endured since the commencement of the State University. He attempts to strike down from this Board, as the head of it, the peoples chosen servant, the man who holds the most exalted position to Alabama, the man above all others, who possesses the confidence and trust of the people of Alabama, and why, Mr. President, because forsooth during the last few years in the party which has been dominant there has arisen factions. and among them it was made the fashion of the day to abuse the late Governor of Alabama, and for the purpose of tickling the ambitions of gentlemen, who have found it proper and expedient to break down the late administration of Alabama they propose to strike froth the books the provisional that will rob the State University of the most capable man in Alabama, the man who possesses the trust, and to whom is reposed the great executive authority of Alabama. Mr. President, I concede that politics have crept into this University, this grand old institution that has turned out so many great mete. Its distinguished alumni are numbered by the thousands. Why, Mr. President, I am a graduate of that institution myself. (Laughter and applause.) Mr. President, I speak for myself. I speak for the institution (applause), and it is all right, notwithstanding I did graduate there. Now, I speak for myself and the other alumni of that institution that are devoted to its future, and who hope and confidently expect to see our sons educated in our old Alma Mater. I want it to be put on a grand plane, where it will be a grand institution. Certainly it has the faculty there which is capable of making it stick. Now the plan proposed by the gentleman from Tuscaloosa, and I want to say as a member of this Committee on Education, as one who voted for the majority oil this report. I believe it is a better proposition than either of, those suggested to the Convention by the majority or minority of the Committee. Mr. President, it is advocated by the gentleman from Tuscaloosa. the three gentlemen, as I am informed from Tuscaloosa, who live in that atmosphere. that it is for the interests of Tuscaloosa, for the interest of the


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State University. Now, what is the plan of the gentleman from Limestone? It does not take away from the Governor the appointing power. It permits him to put his minions in there if he sees fit to do it. If the Governor of Alabama sees fit to control the affairs of that, University for political purposes he has just as much power to do it under this plan as formerly, and, Mr. President, he can do it without assuming the responsibility for it. He can dictate, in a private caucus to his minions his appointees what they shall do and yet he is not held to personal account for he can say that he has nothing to do with it, that he is not the presiding officer. Now the plan of the gentleman from Tuscaloosa is the solution of the proposition. If you want to get it out of politics and I say as an alumnus of that institution, I want to get it out of politics, and I say as a citizen of Alabama I want to get it out of politics and I say as the father of a boy, that I want to send there in the future, I want to get it out of politics. I want to take away from the Governor this appointing power but I am unwilling that the State University should be deprived of the service of a man whom the people of Alabama sad‑ is the most trustworthy man in Alabama to attend to the affairs that belong to the people of Alabama. Mr. President, the gentleman is willing, and the other gentleman, in this report, they are willing to have Auburn afflicted with these troubles that have existed in the past.

MR. PETTUS—Don't you know that Auburn people sent a large petition to Montgomery, to the Committee on Education asking specifically that no change be made in regard to the measurement of that institution?

MR. REESE– Yes, sir;  I understated that, but are the officials, the professors and the beneficiaries of the plan which the gentleman from Limestone would tear down to dictate to this Convention. Are there responsibilities resting upon them as to what shall go into this Constitution. The responsibilities cannot be shifted and the fact remains, Mr. President, if it is a good thing for the State University to take the Governor of Alabama off of its Board and to say to the Governor that he shall take no interest in the State University, it is a good thing to say to him that he shall not interfere with the affairs at Auburn, the affairs that the Girl's School, and these other schools. The position of the minority in this case is absolutely inconsistent. As delegates of the people of Alabama they propose to leave an iniquitous plan on this question and propose an unjust discrimination in favor of the State University. They propose to leave the Governor, the official. head of every other educational institution in Alabama. They propose to say to him that he shall have nothing to do with it and absolutely put him in bad attitude of an unexpected guest at the State University, One of the most pleasant and attractive incidents of every commencement at the University when I was there was Governor`s day when he came there with his military staff front these hand‑


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some military-looking gentlemen. I recollect as a boy now we used to enjoy seeing these military men, these members of the Governor's staff. Now, Mr. President, if it is a good plan for Tuscaloosa it is good for Auburn, and all these other schools. The proposition of the gentleman from Tuscaloosa is the solution of the question and I ask the Convention to adopt it. These gentlemen more than others, represent the interests of the State University.  They are there and they grew up, every boy and child and man about Tuscaloosa, they have an attachment and veneration for this institution. Now, Mr. President, I move the previous question on the two amendments.

the purpose of hearing discussion on the subject. It occurs to me that after some gentleman speaks they want to stop–

MR. REESE– I ask the gentleman if he was not preparing to move to lay Mr. Foster's amendment on the table?

THE PRESIDENT PRO TEM— The gentleman from Dallas moves the previous question.

MR. PETTUS–I move we lay the motion on the table.

MR. FOSTER‑I demand the ayes and noes.

The call was sustained.

MR. LOMAX– I call for a division of the question. I ask that the vote be taken on the amendment offered by Mr. Fitts, and then on the proposition of the gentleman from Tuscaloosa, Mr. Foster.

THE PRESIDENT PRO TEM— The Chair will state to the gentleman from Montgomery that was incorporated by unanimous consent in the substitute offered by the gentleman from Tuscaloosa, Mr. Foster, and it seems to the Chair that the question is not divisible.

MR. LOWE (Jefferson)‑I would like to suggest to the Chair as I understand the proposition, the Chair held that the amendment offered by the gentleman from Tuscaloosa (Mr. Fitts) would not be in order, and unanimous consent was asked them to introduce the amendment.

THE PRESIDENT PRO TEM‑ The question before the House—

MR. LOWE‑ If it had been a question, of acceptance, and if I had so understood it, I would not have consented.

THE  PRESIDENT PRO TEM—  The Chair submitted the question as to whether the request of the gentleman from Tuscaloosa. Mr. Fitts, asking unanimous consent that it be accepted as


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an amendment to the substitute be permitted and the Chair heard no objection. It was thereupon incorporated as a part of the substitute offered by the gentleman from Tuscaloosa, Mr. Foster; otherwise it would have been out of order.

MR. LOWE‑ There was where the misunderstanding occurred. The Chair held that it was out of order at that time to submit an amendment to the substitute as offered by the gentleman from Tuscaloosa, and as I understood it, and as many others understood it, the request was for consent for the introduction of the amendment to the substitute. Now that was the way it was  understood, and I am sure the gentleman from Tuscaloosa would be perfectly willing for his amendment to stand upon that basis.

MR. PETTUS‑I submit the gentleman from Tuscaloosa, Mr. Foster, asked leave to accept the amendment. The question was put by the Chair whether or not consent was given to accept the amendment, and if any gentleman on the floor misunderstood it, it was his misfortune.

MR. LOWE–  The gentleman from Limestone is certainly in  error as to any statement of that kind made by the gentleman from Tuscaloosa, Mr. Foster.

THE PRESIDENT PRO TEM‑ The gentleman from Tuscaloosa. Mr. Fitts, asked unanimous consent of the Convention that the amendment which he offered might be added at the end of the substitute offered by the gentleman from Tuscaloosa. That is the understanding of the Chair.

MR. LOWE– We might refer to the stenographers notes to ascertain what was said. I do not so understand it.

THE  PRESIDENT PRO TEM‑ The journal would govern. The journal shows it was accepted by unanimous consent. The question will be upon the substitute offered by the gentleman from Tuscaloosa, Mr. Foster.

MR. LOWE‑I move to strike out the amendment offered by the gentleman from Tuscaloosa.

MR. PETTUS‑I make the point of order that it is out of order at this time. It was amended by unanimous consent.

THE PRESIDENT PRO TEM‑ It seems to the Chair that the motion to strike out would  not be in order, after an amendment has been accepted. The question will be upon the motion to table. The reading of the substitute has been called for. The Secretary will read the substitute as offered by the gentleman from Tuscaloosa, Mr. Foster, and amended by the gentleman from

Tuscaloosa, Mr. Fitts.

The substitute, as amended, was again read.


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CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM‑ The question will be upon a motion to table. As many as favor the motion to table, will say aye and those opposed, no, as your names are called.

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

AYES.

Altman,

Foshee,

Pettus,

Ashcraft,

Harrison.

Proctor,

Bethune,

Hodges,

Vaughan,

Cofer,

Merrill,

Williams (Barbour),

Eley,

Opp,

Total‑14.

NOES.

Almon,

Grayson,

O'Rear,

Banks,

Greer, of Calhoun,

Palmer,

Barefield,

Handley,

Parker (Cullman),

Bartlett,

Heflin, of Chambers,

Parker (Elmore),

Beddow,

Heflin, of Randolph,

Phillips,

Blackwell,

Henderson,

Pillans,

Boone,

Hinson,

Pitts,

Browne,

Hood,

Porter,

Bulger,

Howell,

Reese,

Burnett,

Howze,

Reynolds (Chilton),

Burns,

Inge,

Rogers (Lowndes),

Byars,

Jackson,

Samford,

Cardon,

Jenkins,

Sanders,

Carmichael, of Colbert,

Jones, of Montgomery,

Sanford,

Carmichael, of Coffee,

Jones, of Bibb,

Searcy,

Chapman,

Jones, of Wilcox,

Sentell,

Cobb,

Knight,

Sloan,

Coleman, of Greene,

Kyle,

Smith (Mobile),

Cornwall,

Locklin,

Smith, Mac. A

Cunningham,

Long, of Walker,

Smith, Morgan M.,

Dent,

Lowe, of Jefferson,

Spears,

Eyster,

Lowe, of Lawrence,

Spragins,

Espy,

Malone,

Stewart,

Ferguson,

Martin,

Stoddard,

Fitts,

Maxwell,

Thompson,

Foster,

Miller (Wilcox),

Waddell,

Freeman,

Mulkey,

Walker,

Gilmore,

Murphree,

Watts,

Glover,

NeSmith,

Whiteside,

Graham, of Montgomery,

Norwood,

Wilson (Clarke),

Graham, of Talladega,

O'Neal (Lauderdale),

Wilson (Wash'gton),

Grant,

ONeill, of Jefferson,

Winn.

Total‑97.


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OFFICIAL PROCEEDINGS

ABSENT OR NOT VOTING.

Messrs. President,

Kirk,

Pearce,

Beavers.

King,

Renfro,

Brooks,

Kirkland,

Reynolds, of Henry,

Carnathon,

Ledbetter,

Robinson,

Case,

Leigh,

Rogers (Sumter),

Coleman, of Walker,

Lomax,

Selheimer,

Craig,

Long, of Butler,

Sollie,

Davis, of DeKalb,

Macdonald,

Sorrell,

Davis, of Etowah,

McMillan, of Baldwin,

Weakley,

deGraffenreid,

McMillan (Wilcox),

Weatherly,.

Duke,

Miller (Marengo),

White,

Fletcher,

Morrisette,

Willet,

Greer, of Perry,

Moody,

Williams (Marengo),

Haley,

Norman,

Williams (Elmore).

Jones, of Hale,

Oates,

During roll call:

MR. DAVIS (Etowah)‑Being a member of the Board of Trustees, I ask unanimous consent to be excused from voting.

Consent was given.

MR. LOMAX‑As a member of the present Board of Trustees of the University, I ask to be excused from voting on this proposition.

The consent was given.

The motion to table was lost.

MR. PETTUS‑I will state that the acceptance of the amendment offered by the gentleman from Tuscaloosa, Mr. Fitts, limiting the term of office of these Trustees to a term of twelve years, obviates the objection I had to it.

MR. REESE‑I make the point of order that the previous question has been ordered on the pending amendments.

MR. O'NEAL (Lauderdale)‑Are we entitled to a division of the question on this subject?

MR. PETTUS‑I call for the previous question.

THE PRESIDENT PRO TEM‑ The Chair does not see very well how it can be divided.

MR. O'NEAL‑ Some of us are in favor of certain provisions and opposed to others.

MR. PETTUS‑I make the point of order that it is one and indivisible.

MR. O'NEAL‑ What is the previous question asked upon?


4267

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM‑ Upon the section and the pending amendment. The gentleman from Limestone moves the previous question on the section and pending amendment.

MR. FOSTER‑ The gentleman from Dallas moved the previous question upon the two amendments, and it was so ordered by the House.

MR. REESE ‑That was the motion made by myself.

THE PRESIDENT PRO TEM.‑ The recollection of the Chair is that the motion for the previous question by the gentleman from Dallas was never put to the House. Thereupon the gentleman from Limestone moved to table the substitute offered  by the gentleman from Tuscaloosa.

MR. REESE‑I make the point of order that when a motion for the previous question is made and not ordered and pending a vote on that proposition, a motion to table is made, and the motion to table is lost, then the question before the House is the motion for the previous question, which was made before the motion to table.

THE PRESIDENT PRO TEM‑ The gentleman's point of order, it seems to the Chair, is well taken.

MR. JENKINS‑I desire unanimous consent to offer an amendment.

Objection was made.

THE PRESIDENT PRO TEM‑ The question before the House is the motion for the previous question upon the substitute and the amendment.

Upon a vote being taken, a division was called for, and by a vote of 50 ayes and 16 noes, the previous question was ordered upon the substitute and amendment.

MR. LOMAX‑ Under the rules of the Convention, I demand a division of the question. The rules of this Convention say that any question may be divided if the sense will admit of it.

THE PRESIDENT PRO TEM‑ The gentleman from Montgomery will permit the Chair to state that he is perfectly cognizant of that rule, and the Chair will now look at the amendment and see if, in the opinion of the Chair, it can be divided. The substitute as offered by the gentleman from Tuscaloosa. has in itself several separate clauses, whereupon the gentleman from Tuscaloosa, Mr. Fitts asked unanimous consent that an additional clause be added to the substitute as offered, and that permission was granted. If it be divisible by voting on the last clause, it will be divisible by voting upon each separate clause of the substitute by the gentleman from Tuscaloosa.


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OFFICIAL PROCEEDINGS

MR. O'NEAL (Lauderdale)‑Will the Chair permit an inquiry?

THE PRESIDENT PRO TEM‑ Certainly.

MR. O'NEAL‑ Would it make sense if we voted on each clause of the original substitute?

MR. LOMAX‑ If the Chair will permit a suggestion, I will say there was no necessity for a division of the question, except in so far as the House demands that division. My demand for a division of the question goes merely to the amendment offered lay the gentleman from Tuscaloosa, Mr. Fitts.

Mr. Graham (Talladega) and Mr. Pettus sought recognition.

THE PRESIDENT PRO TEM‑ The Chair does not care to hear any further on that, in view of the facts this is a separate amendment offered by the gentleman from Tuscaloosa (Mr. Fitts), it is divisible, and, therefore, the vote will be taken first upon the amendment offered by the gentleman from Tuscaloosa (Mr. Fitts).

MR. PETTUS‑I make the point of order that when the previous question was ordered, it thereby cut off amendments, and that if the Chair now entertains a call for a division of the question by the gentleman from Montgomery, the Chair would thereby enable the Convention to divide the question, and in that way to amend the substitute offered by the gentleman from  Tuscaloosa by adopting one provision and by striking out another, and an amendment by striking out in that way is out of order, and the Convention has so decided by ordering the previous question.

THE PRESIDENT PRO TEM‑ And the Chair overrules the point of order.

MR. JENKINS‑I make the point of order that the amendment offered by Mr. Fitts has been adopted by unanimous consent.

THE PRESIDENT PRO TEM‑ And thereupon the gentleman from Montgomery demands a division of the question, and the Chair will so put it, and the point of order is overruled.

MR. PETTUS‑I make the point of order that the amendment has already been acted on and accepted by the Convention by unanimous consent.

THE PRESIDENT PRO TEM.‑ And the Chair holds that it has been incorporated as a part of it, and the Chair is going to divide the question and let the delegates vote upon a division of the question.

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

The call was not sustained.


4269

CONSTITUTIONAL  CONVENTION, 1901

THE PRESIDENT PRO TEM‑ The question is upon the amendment offered by the gentleman from Tuscaloosa, Mr. Fitts.

Upon a vote being taken, a division was called for, and by a vote of 50 ayes and 34 noes, the amendment was adopted.

The question then recurred upon the substitute offered by the gentleman from Tuscaloosa, Mr. Foster.

MR. SANFORD (Montgomery)‑Can I offer an amendment to his substitute?

THE PRESIDENT PRO TEM.‑ Not at this time.

Upon a further vote being taken, the substitute offered by the gentleman from Tuscaloosa, Mr. Foster, was adopted.

MR. JENKINS‑I want to offer an amendment to the section.

MR. PETTUS‑I rise to a point of order. The previous question has been ordered upon the section.

THE PRESIDENT PRO TEM.‑ The previous question has been ordered upon the substitute and the amendment which is the minority report. The substitute has been passed upon, and the amendment now comes up for adoption, and the amendments are in order and the gentleman from Montgomery is recognized.

MR. SANFORD (Montgomery)‑I offer this amendment.

MR. REESE‑I desire to make a parliamentary inquiry. The minority report offered an amendment to this section, and that the gentleman from Tuscaloosa offered a substitute. Now, the proposition that stands before this house is the amendment offered by the minority report of the committee, as amended by the substitute offered by the gentleman from Tuscaloosa. Now, it appears to me that it is the proper thing for this Convention to vote upon that proposition, to ascertain whether or not the amendment as amended shall be added to the section. Then the section itself will be open to amendments.

THE PRESIDENT PRO TEM.‑ The Chair is of the opinion that the point of order is well taken. The Chair will first submit the question as to the adoption of the minority report as amended.  Then the section will be open to amendment. As many as favor the adoption of the minority report will say aye, and those who oppose will say no.

Upon a vote being taken the amendment proposed by the minority report, as amended, was adopted.

MR. PETTUS‑I rise to a point of order. The amendment offered as a substitute by the gentleman from Tuscaloosa was amended. A separate vote was taken on that. Then the question


4270                  

OFFICIAL PROCEEDINGS

was on the substitute as amended, and the substitute as amended was adopted and then the last vote was on the adoption of the section as amended, and that having been adopted, the motion to amend is not in order without a motion to reconsider and I ask for the record as shown by the journal on that.

THE PRESIDENT‑ The journal shows that the minority report as amended has been adopted, and the section has not been adopted and is subject to amendment, and the gentleman from Montgomery is recognized.

The amendment offered by Mr. Sanford of Montgomery was read as follows:

" Amend Section 9 by adding at the end of said section the words : Neither the Legislature nor any Board of Trustees for the control and management of the University of Alabama, or the Alabama Polytechnic Institute of Auburn, shall have authority or power to abolish the system of military education in existence at those institutions of learning."

MR. SANFORD (Montgomery)‑I hope that amendment will be adopted because of the great benefit of military education upon the character of the young men of our State. Such institutions have been of east service to our country, not only in foreign wars, but in the war between the States. The institution of Captain Partridge in Vermont a famous military academy, has been of great service to the whole United States, in furnishing men accomplished as soldiers. The military institution at Lexington, Va., sent to the war between the States some of the most accomplished gentlemen that figured in that famous conflict. Among them was General Rhodes of Tuscaloosa, Alabama. So with the military institution of Georgia at Marietta. some of the most distinguished soldiers in the army were graduates of that academy. So even  with the institution at Tuscaloosa, young as it is, though more than forty years old. Some of the finest soldiers of the last war were graduates and cadets of that famous college. It seems to me that the effect upon men of a military education is that apart from the discipline exercised at a military institution, it teaches them the art of commanding as well as the duty of subordination. The familiarity of men with arms has a great tendency to develop manhood, character and courage. All old soldiers know that the difference between the veteran and the militiamen was simply an acquaintance with the danger, which he acquired after the first battle, when he became almost a veteran. He knew precisely what dangers he encountered, and he calculated the chances of death, wounds and captivity. It developed in him a spirit of honor that nothing in the world could make him forget. What is true of the soldier in the line and in commission is equally true of the young men at these military institutions. They have a sense of honor that resents an insult like it was a blow. The men at West Point


4271

CONSTITUTIONAL  CONVENTION, 1901

and the men at Annapolis are remarkable for their high character.  So with the graduates of all these military institutions. There is nothing that can be said against them, but a great deal in their favor. The conduct recently of the investigation at West Point and Annapolis shows that there was a movement on a contemplated movement for the dismantling of those military institutions and that very thing makes more important and more necessary military colleges in the different States of the Union. They train soldiers, they discipline good citizens, they develop manhood, they raise an exalted idea of character, and all those things that make a man proud of his country and his country no less proud of his manhood, courage, integrity and patriotism, which are developed by such institutions. I hope that this amendment will be adopted.

MR. LOMAX‑I move that the amendment be laid upon the table.

MR. SANFORD (Montgomery)– I hope, Mr. Chairman, that he will allow this question to be discussed, and not cut off all argument by that technical rule, which is a favorite weapon when they cannot answer the argument.

THE PRESIDENT PRO TEM‑ And the gentleman from Montgomery, Mr. Lomax, moves that the amendment of the gentleman from Montgomery, Mr. Sanford, be laid upon the table:

Upon a vote being taken the motion to table prevailed.

MR. PETTUS‑I now move the previous question on the section.

MR. JENKINS‑I ask the gentleman to withdraw that  a moment.

MR. PETTUS‑I decline to withdraw it.

MR. GRAHAM (Talladega) ‑ I ask the gentleman from Limestone, if he will yield to me for a moment.

MR. PETTUS‑ The gentleman, as Chairman of the Committee, will be entitled to the floor after the question is put.

THE PRESIDENT PRO TEM‑ The question is shall the main question be now put.

Upon a vote being taken a division was called for, and by a vote of 43 ayes and 37 noes the main question was ordered.

MR. GRAHAM (Talladega)‑I desire to have a reading of  a portion of that substitute that was adopted to see whether or not it leaves this section intact, so far as it relates to the officers‑

THE PRESIDENT PRO TEM‑ It occurs to the Chair that the whole substitute was adopted.


4272                  

OFFICIAL  PROCEEDINGS

MR. GRAHAM– Yes, sir; but I want a reading of it, because it states something about striking out all of the section that relates to Tuscaloosa in there, and leaving it intact otherwise, and I ask for the reading of the introductory part.

The reading was had.

MR. JENKINS‑I think we will have to reconsider the vote by which the previous question was ordered, and amend this section so as to not get this in a tangle. I want to say that a majority of the Board will go out the first four years, and leave the Board—

THE PRESIDENT PRO TEM ‑The gentleman is out of order.

MR. JENKINS‑I move a reconsideration of the vote whereby the previous question was ordered.

MR. PETTUS— I cite the gentleman to Rule 27. I make the point of order that the motion is out of order.

THE PRESIDENT PRO TEM‑ And the question will be upon the adoption of Section 9 as amended.

MR. JENKINS‑I move that we rescind the action of the Convention by which we ordered this question on the previous question.

THE PRESIDENT PRO TEM– Under the rules a motion to reconsider could be entered, but would have to lie over until tomorrow.

MR. PETTUS– I make the point of order that under Rule 27. which reads, "When a vote has passed, except on the previous question, or on motion to lay oil the table, or to take from the table, it shall be in order for any delegate who voted with the majority to move for a reconsideration thereof on the same day, or within the morning session of the succeeding day, and such motion if made on the same day shall be considered immediately after the approval of the journal on the day succeeding that on which it is made; but, if first moved on such succeeding day, it shall be forthwith considered, and when a motion for reconsideration is decided, that decision shall not be reconsidered, and no question shall be twice reconsidered."

The point of order that I make is that Rule 27 specifically excepts a motion to reconsider, the previous question, or a motion to lay on the table or take from the table.

THE PRESIDENT PRO TEM ‑That being the case it would be in order to reconsider it right now, and the gentleman from Wilcox moves to reconsider the vote by which the previous question was ordered.


4273

CONSTITUTIONAL  CONVENTION, 1901

MR. HARRISON— I desire to inquire what is the necessity for this reconsideration? I have heard none.

MR. JENKINS‑ The Legislature meets every four years, and the Board of Trustees go out every two years, and two-thirds  will be out of office until the Legislature meets, and I want to perpetuate the Board until their successors be elected.

MR. GRAHAM (Talladega)— I do not think as Chairman of the Committee, I yielded the floor on my right to close this matter.

THE PRESIDENT PRO TEM— The point of order is well taken.

MR. GRAHAM‑ The seeming disturbance is in regard to what should be stricken out of Section 9. As it reads so as to  leave Auburn intact, it is perfectly satisfactory to the Committee because it provides that as much as is in there relating to the University shall be stricken out and it leaves Auburn intact. I therefore insist that so far as that part of it is concerned, there is  no necessity to reconsider, and I insist upon the regular order.

THE PRESIDENT PRO TEM‑ The gentleman makes the point of order that the motion of the gentleman from Wilcox is out of order for the reason that at that time the gentleman from Talladega had the floor and the gentleman from Wilcox had no  right to make the motion.

MR. JENKINS‑I have just been told by the gentleman from Tuscaloosa that my amendment is provided for.

THE PRESIDENT PRO TEM‑As many as favor the adoption of the Section will say aye and those opposed no.

Upon the vote being taken the Section was adopted.

Section 10 was read as follows:

Sec. 10. The General Assembly shall have no power to change the location of the State University or the Agricultural and Mechanical College, or the Institutions for Deaf and Blind, or the Alabama Girls' Industrial School as now established by law, except upon a vote of two-thirds of the General Assembly, taken by yeas and nays and entered upon the Journals.

MR. GRAHAM (Talladega) ‑There is no change in that from the present Constitution except that it adds these other institution as constitutional institutions in the State. and I move the adoption of the Section.

Upon a vote being taken the Section was adopted.

Section 11 was read as follows:


4274                  

OFFICIAL PROCEEDINGS

Sec. 11. The General Assembly shall provide for taking a school census by townships and districts throughout the State not oftener than once in two years, and shall provide for the punishment of all persons or officers making false and fraudulent enumerations and returns; provided, the State Superintendent may order and supervise the taking of a new census in any township, whenever he may have reasonable cause to believe that false or fraudulent returns have been made.

MR. ASHCRAFT‑I move its adoption.

Upon a vote being taken, the Section was adopted.

Section 12 was read as follows:

Sec. 12. The several counties in this State shall have power to levy and collect a special tax not exceeding 10 cents on each $100 of taxable property in such counties, for the support of public schools, provided that the rate of such tax, the time it is to continue, and the purpose thereof shall have been first submitted to, a vote of the qualified electors of the county and voted for by three-fifths of those voting at such election; but the rate of such special tax shall not increase the rate of taxation, State and County combined, in any year, more than $1.25 on each $100 of taxable  property ; excluding, however, all special county taxes for public buildings, roads, bridges and payment of debts existing at the ratification of the Constitution of 1875, provided that such funds so raised shall be apportioned and paid through the proper school officials to the several schools in the townships and districts in said county, that the school terms of the respective schools shall be extended by each supplement as nearly the same length of time as practicable.

The General Assembly shall provide for carrying the provision of this Section into effect.

The minority report, offered as a substitute for Section 12, was read as follows:

12. It shall be the duty of the County Superintendents of Education, or other school officer in each county, by and with the advice and consent of the Court of County Commissioners, or body of tike jurisdiction, to organize the white people of the county into white school districts, and the colored people of the county into colored school districts, according to their respective needs and advantages, without reference to each other as to territorial boundaries.  Provided, no incorporated town or city maintaining a system of public schools, as provided by law, shall be separated into districts, without the consent of the Mayor and Board of Aldermen of such city or town.

For the purpose of building, enlarging, improving or furnishing school houses in any district or for the purpose of supple-


4275

CONSTITUTIONAL CONVENTION, 1901

menting the general school fund received from Federal, State, county, municipal and other sources, the Court of County Commissioners, or body of like jurisdiction, shall, as hereafter provided, levy a special assessment of not more than one-fourth of one per centum in any one year upon the property of a white person situated in a white district or upon the property of colored persons situated in a colored district; provided, no such levy shall be made except upon the request of three-fifths of the voters voting at an election held for that purpose and residing in the district. At such election in a white school district only, qualified white electors shall be permitted to vote, and in colored school districts, only qualified colored electors shall be permitted to vote. It shall be the duty of the Probate Judge to order such election in any district upon the petition of not less than one-fourth of the voters who will be entitled to vote at such election. The order for such election shall state the purpose for which it is proposed to make the assessment the rate of the proposed assessment and the number of years during which such assessment is proposed to be made.  Notice of such election shall be given and the election held in such manner as may lie provided by law for such special election. No proposition shall be made at any such election to levy such special assessment during a period of more than four years.

When any property belonging to a corporation is situated in a white school district where a special assessment is to be made as herein provided, such assessment shall be levied upon such proportion of the value of such property as the number of white children of school age in the county bears to the whole number of children of school age in the county.  When such property is situated in a colored school district where such assessment is made, it shall be levied upon such proportion of tile value thereof as the number of colored children of school age in the county bears to the whole number of children of school age in the county.

THE PRESIDENT PRO TEM.‑ The question will be upon the minority report as a substitute for the majority report.

MR. ASHCRAFT‑ Mr. President and Gentlemen of the Convention: I am aware that the proposition of the minority is in a certain sense novel, but the main purpose of this Convention in coming here was to settle in some sense upon a just basis the relations between the white and colored races. I sincerely trust that you will do me the kindness to listen to this proposition. We owe it to our people, gentlemen of the Convention, to at least give the matter careful consideration. Because a thing is new or even because in some way it has been tried. and in some way failed, does not always argue that it is wrong. Many efforts were made to build the steam engine before the successful effort. Many efforts of government have been made which have proved at first ineffectual and afterwards proved very successful. I say we have


4276                  

OFFICIAL  PROCEEDINGS

come here chiefly to settle upon some just relation between the two races which inhabit this State. We all know that we must build up two distinct civilizations in one territory. I call your attention to that proposition. You cannot evade it. You are resolved upon it. That is the first proposition, that you are determined to build up two distinct civilizations in one territory.  Now we have been aided in that effort by all of the people of the United States to this extent, the highest court of the land has held that we may maintain two distinct school systems. We are able in this way to divide the streams at the beginning, and if we will only act wisely, we may keep the currents apart, and it is with this view that I, and those who have joined with me, have submitted to you this proposition. I know that gentlemen on this floor will argue that it is in violation of the Constitution of the United States, but we respectfully beg to differ with them. In every effort that has been made along this line, an injustice has been sought to be done, an inequality has been sought to be practiced. The proposition which we submit to you gentlemen contains no injustice, but is based on justice. It contains no inequality, but proposes absolute equality, and I claim that the Puitt case and the Cummings case, and all the other cases that have been before the Supreme Courts of the States and of the United States, have been infected with both inequality and injustice. We bring you a proposition which is free from objection, from every moral, ethical and social standpoint. Your attention will be called, gentlemen of the Convention, to the Cummings case in 175 U. S. Supreme Court Reports, page 258. In that case the court went far towards establishing the very proposition whirl, we seek to establish here. In that case an injunction was sought to prevent the white trustees from appropriating the funds to a white high school when they made no such appropriation for a colored high  school. They said:

"While all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of race, the education of the people maintained by State taxation is a matter belonging to the respective States, and any interference on the part of Federal authorities with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of the rights secured by the supreme law of the land."

They held then that an injunction which would only impair the efficiency of the high school provided for white children, and compel the board to close it, would not result in any good to the colored children. They said if that were done the result would only be to take from the white children the educational privileges enjoyed by them without giving the colored children additional opportunities of education furnished in the high schools. That the colored school children of the county would not be advanced


4277

CONSTITUTIONAL CONVENTION, 1901

in the matter of education by a decree compelling the defendant board to cease giving support to a high school for white children, and the injunction was denied.

Now, gentlemen, the majority with which we concurred have brought in here, and by your vote have adopted a proposition which carries the advantages of free school education to all the children in this State, colored and white, to the children in remote country districts the same length of time that it carries it into populous cities, and large and more thickly settled rural districts. You have done nobly. The colored race cannot say that you have discriminated against them, because you have been careful to preserve their rights. But it is proposed to go further and authorize a voluntary contribution be made by the respective localities to supplement this fund which has been created by the State. Now it has been held by the Supreme Court of the United States and by the courts of the States that separate schools for the races may be maintained, and in the State of Ohio a special law was enacted whereby colored school districts could be organized independently of the lines which organized other school districts, and it is this proposition which we bring before you.

Section 31 of the General Statutes of Ohio provide:

"The Township Boards of Education in this State, in their respective township, and the several other Boards of Education and the Trustees, visitors and directors of schools, or other officers having authority in the premises, of each city or incorporated village, shall be authorized and they are hereby required to establish, within their respective jurisdictions, one or more separate schools for colored children, when the whole number, by enumeration, exceeds twenty, and when such schools will afford them as far as practicable, the advantages and privileges of a common school education; *** Provided that when the number of colored children residing in adjoining townships or districts, whether in the same or in different counties, shall exceed twenty, the Boards of Education of said townships or districts so situated, many form a joint district for the education of colored children."

The law was held to be constitutional upon the effort of a pupil who resided in that colored district to be admitted into a white school which was in the same territory.

The North Carolina case is one upon which great stress will be laid, and I trust, gentlemen, that you will notice the distinctions that are drawn here. In that case the course refused to inquire into the consistency of their statutes and Constitution with the Constitution of the United States. In their Constitution, it was provided that taxation should be uniform, and that no law should be enacted which discriminate either for or against either race. They hold in that case that a law which authorizes the


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white people in a township to levy a tax upon their property, and the colored people to levy a tax upon their property in the same township, which you will observe, gentlemen of the Convention, was the same social unit, was in violation of their statute which requires taxes to be uniform. We propose to put it into our Constitution that we have two social units occupying practically the same territory. and we propose to delegate to each of those units the right to do something for itself.

THE PRESIDENT PRO TEM–  The time of the gentleman has expired.

MR. PETTUS‑I move that the time of the gentleman be extended twenty minutes.

The motion to extend the time was adopted.

MR. ASHCRAFT– I profoundly appreciate this courtesy of the Convention.  In that same case. Mr. President, upon which so much stress is laid, it is said: "It is not every distinction dependent upon race, or color that cone in conflict with the Federal Constitution, but only when it produces inequality of rights or interests; and when this is the result, the State Legislature from which it flows is rendered inoperative.

"When the same essential privileges are secured to all, such Legislation is valid allot rests in the sound discretion and views of public policy of those who make the laws."

I ask you to examine the proposition of the majority report, and show the in any place where it results in inequality of rights or interests. It carries the same fund from the State to the white and to the colored children, and then gives each race the right not only to separate schools, but the right to organize districts best suited to the patronage of those schools. Now where is the inequality of rights. The State manifests its power and its beneficence to both races in exactly the same way. It gives them the same fund and gives them the same social institution. Now, gentlemen, if it is constitutional for the white people to have separate schools and for the colored people to have their schools, how can any man claim it is unconstitutional for each race to organize itself into districts for the better carrying out of its high purpose.

It is not necessary, it is not to the interest of the races, for them to be bound by the same territorial limits. Our proposition looks to the idea of the organization of each race for its own highest advantage. another argument will be urged here, that the negro does not have much property and that the white people have considerable property, that therefore the white schools would be better than the negro schools. That may or may not follow, but I call your attention to the provision of the majority report, that each county shall be allowed to levy a tax upon its people.


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Some counties are poor and other counties are wealthy and able to contribute more. If it so happens that one district is wealthier than another, that will not be discrimination but a misfortune. If the majority report is adopted, each county will be clothed with the same power, each will be given the same advantage. The mere fact that local sources of wealth or the industry of the people are giving them a greater amount of property to be taxed is not a discrimination against less favorably situated. If the minority report is unconstitutional on that ground, the majority report would be. Today the white people of this State have the negroes hung about their necks like a chain, they feel that they cannot make an effort for the up building of themselves without feeling the weight of this chain. They pray the Convention for freedom, to have two institutions not only so far as school houses are concerned, but so far as school communities are concerned.  They do not ask you to take from the negro, but they do want freedom for action for and on behalf of their own people. Now look at it from the negro standpoint. Will it be beneficial to him ? I am sure that we can do nothing that will please the negro better in this State than to enact some provision like this. As it is he occupies the position of a mendicant, a beggar. This plan would appeal to his sense of liberty‑ it would relieve that sense of oppression and injustice that he entertains because he has no sphere wherein to exercise himself on behalf of his own people as a race. Give him a chance to have his own school organizations, to say that he will contribute in a legal and statutory way to the up building of his own institutions. When you have done that he will feel that the white people are not against him, that he has some chance to cultivate race pride, to cultivate race fraternity, that he has a place where he can do something for himself and his people. The result will be that patriotism him take the place of suspicion, envy and jealousy, and go further to remove from the negro that hate which makes him commit unspeakable crimes, than any other thing that this convention can do. The white people of Alabama plead with this Convention, they will call upon you to choose wisely. I believe that you take no risk so far as the constitutionality is concerned. What interest would the negro have in striking you down? As the Supreme Court of the United States said it would not result in adding one hour to his school, it would not add one thing to his privileges, it would simply injure him arid injure everybody else to destroy the minority proposition. You are not under obligation to enact the majority not at all. The negro can make no such demand on you. You have done well by them. It is your own race that calls upon you to give them some additional opportunity for each race to do something for itself. I thank God that the Anglo-Saxon race does not have to triumph by pressing other races down. It has been its mission to lift up the fallen, to bring out of chaos the forms of


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society which makes fur the happiness of mankind. We do not have to trample the negro down. We do not want to rise up in order that we injure him but in order that we may lift him up too. Let our own race go forward and no other race on this earth will ever suffer by our advancement. But, gentlemen, those who oppose these ideas say that the white and colored race are bound together like Siamese twins, by the fourteenth and fifteenth amendment. I say to you that the Supreme Court of the United States, if we present a fair and just proposition, will go a long way towards sustaining any plan that is founded on justice and equality. In the Slaughter House case they said: "The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them by the most ordinary and fundamental character; when, in fact.  it radically changes the whole theory of the relations of the State and Federal governments to each other and of both those governments to the people; the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt."

The Supreme Court of the United States found a way to give separate schools, they will find a way to give us separate school districts, they will find a way to let each race have something to do in working out its own destiny. If they have not a separate destiny God would never have created the two separate and distinct races, if they had not a separate destiny‑ they should not be hindered by forms of law from fulfilling that destiny. We can find a way out. The minority have studiously considered the case, they have sought to eliminate all the objections that have been found in similar effort heretofore, and they present you a plan which is founded on justice, which is founded on equality, which encourages the white race to build itself up without the galling bitterness of being bound to the negro forever, a plan which enables the negro to do something for himself without being a mendicant. Give the two races freedom towards each other and we will do more for the peace and safety of our people than by any other act that we can do.

MR. GRANT– I have some inclination to support the amendment of the minority of the Committee. but I want to inquire before voting, why they felt it necessary to depart so widely from the majority in the amount of the tax. In one case 10 cents on the $100, and in the case of the minority you place it at 25 cents  on the $100?


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MR. ASHCRAFT‑ That is a misprint. The original provides for 10 cents just like the other, all we ask is 10 cents.

MR. REYNOLDS (Chilton)‑Does your plan for this tax by districts mean the tax is to be collected by districts? What I mean is this, if a railroad runs through a district, and in another district there is no railroad, would the latter get a share of the tax on the railroad?

MR. ASHCRAFT ‑ It would not. We struggled every way to settle that question, and we could not solve it so as to give separate school units without depriving in soiree sense one poor community from participating in the wealth of the other. The  majority does not do that either, it provides the tax of 10 cents for the schools and no distribution can be made between the children in Clay County and the children in Jefferson County.

MR. REYNOLDS (Chilton)‑In the districts where negroes are disfranchised, how can they vote for it?

MR. ASHCRAFT‑ If there are any districts that do not contain negroes who can vote they would have to wait until they could vote. Of course it is absolutely a voluntary matter with the white people whether they will tax themselves, and with the negroes whether they will tax themselves, and if there be a community of negroes without a single man capable of voting they will have to wait till they can educate men who can vote.

THE PRESIDENT PRO TEM‑ The time of the gentleman has expired.

MR. LONG (Walker)‑Would you object to amending so as to have a County School District?

MR. ASHCRAFT‑ The minority considered that proposition with great care. We could find no precedents that would lead us to believe that such a plan would not be considered an evasion of the Federal statute.

MR. JONES (Wilcox)‑Mr. President and gentlemen of the Convention. It has been urged by a great many friends of education in Alabama that Alabama is behind other States in not having local taxation for schools. If there had been a provision in the Constitution of 1875 which permitted local legislation in the several counties of this State, no doubt, Mr. President, the Legislature of Alabama would long since have provided for it in the counties. All lawyers on this floor are familiar with the case that came up from Cullman County. In the case of Schultz vs. Ellerbe, 82 Ala., in 1887, it was decided by the Supreme Court that the Legislature could not delegate the power of taxation to a municipal corporation, and for that reason, Mr. President, there has been nothing done in this State. I have examined the Constitu‑


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tion of quite a number of States in the South, in fact nine of them, and I find that there has been a provision in the different States of the South for local taxation, either in the Constitution, or where the Constitution did not prevent it, it has been done by act of the Legislature of the States. Now in Mississippi, it has a statutory regulation, and so it is in Georgia, South Carolina, Tennessee, Kentucky, Arkansas. There is a difference in Florida, it is done by a provision in the State Constitution, so also is it done by a provision in the Constitution of Louisiana. The State of Alabama is the only State in the South where no provision is made for local taxation in any way. The Committee had this question under consideration and spent a great deal of time on it and we came to the conclusion that the best way out of it was to allow local taxation by counties. You may search the Constitution of every State in the South and every State in the North and you cannot find a provision in the Constitution or in statutory laws of those States similar to the  minority report. You cannot find it. And why?  Is it because such a provision is unconstitutional It is against the Fourteenth Amendment of the United States Constitution. The gentleman has cited two or three authorities.  He cited in the case from North Carolina, First the Cumming case, and which he said went far towards establishing the proposition made in the minority report. The Cumming case decided nothing of the sort. In that case the Court stated that the complaints had taken the wrong means to get relief. They say further that if it had been shown that the school was in fact an abuse,  a discrimination and in hostility to the colored people because of race in any way, that the decision of Court would have been in favor of those filing the bill in that case. In North Carolina the case of Markham vs. Manning, 96 Carolina, the Court decides  that taxes for schools open to the children of only one race is unconstitutional as denying equal privileges and immunities. That is the language and opinion of the Court, that it is unconstitutional because it denies equal privileges and immunities. Now the Constitution of North Carolina, under which that case was decided, is almost in the exact language of the Federal Constitution. The gentleman cites another case from Ohio, and that, Mr. President, is nothing in the world but a provision that we have in our Constitution that we have separate schools for the two races. It don’t say a word about taxes, not a word, but it simply allows in that State separate schools for the two races, and the gentleman would base an argument upon that, that for that reason you could have separate school districts in the county and the money raised for the whites to go to the white children and the money raised from taxes of the colored people to go to the colored schools.

MR. GRAHAM (Talladega)– The gentleman is making a legal argument, and I fully understand and appreciate that he can-

                                                                                   


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not finish it now. I move that we adjourn. I move that the rules be suspended first and that his time be extended twenty minutes after dinner.

The motion to extend the time was adopted.

Leaves of absence were given as follows: To Mr. Ledbetter for today and tomorrow; to Mr. Gilmore for Friday and Saturday.

There upon the Convention adjourned.

_________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 96 delegates present upon the call of the roll.

MR. JONES (Wilcox)‑ Mr. President. I will to extend my thanks to the delegates of the Convention for their kindness in extending my time. I promise you that I will not abuse the privilege, and that my remarks shall be as brief as possible. As I stated, Mr. President, the question of local taxation is a new one to its in Alabama. The Constitution of 1875 made no provision for it. Since that time, it has been made a law in the Constitutions or statutes of the different Southern States, and Alabama stands alone as a State without local taxation. The Committee on Education considered the matter at great length, in fact we devoted more time to it than to any other section in the article on education, and the report of the majority of the committee in our opinion should be adopted by this Convention. The gentleman who is, the author of the Minority report stated to you in his concluding argument that the negroes all over Alabama were praying the Convention to give their the liberty of having the disposition of their own taxes. I have never heard of a negro from Booker Washington to a boot black asking any member of this committee to set aside the taxes of their race to themselves and have the white people set aside the taxes of their race for themselves. Why, gentlemen of the Convention, if it were constitutional to do this in a district, in a county, it would be equally constitutional to divide the taxes of the State of Alabama between the two races, and say that which was collected from the taxes of the white people should be set apart for white people and that the taxes collected from the colored people should be set apart for their children. We know gentlemen, that such a thing as that could not be done. The first section of the article on education sets out that they shall be as far as possible an equal distribution of the school fund. And why ? Why is it done?  Because when we fail to do that, we would go in the teeth of the Constitution of the United States, and any court, either State or Federal, that had the question before them would say that we could not


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do anything of the kind. Now the gentleman referred to a case as sustaining his position, but to show you how weak the argument of the gentleman was on that point, I will read you the facts, as they are very brief. In the case referred to by him– the case of Claybrook vs. the City of Owensboro, Ky., the decision of the court was rendered by Justice Parr, a United States District Judge in that State. Here are the facts in brief. Just exactly in line with the minority report of this committee: The complainants allege that they are citizens of the United States and of the State of Kentucky of African descent, and are residents of the city of Owensboro and are being deprived by defendants of the equal protection of the law in that they are discriminated against in the distribution of the taxes levied by the city of Owensboro for the public schools of that city, and they ask an  injunction against the Board of Trustees of Owensboro public school. The General Assembly of Kentucky has by separate enactment, one in 1871, and the other in 1880, authorized the Mayor and Common Council of the city of Owensboro to assess and levy all ad valorem tax not exceeding two dollars on each resident of said city over twenty-one years of age, this tax when collected to be applied to the maintenance of public schools of said city the taxes collected and assessed on the white people for white children only and the tax collected on colored people on their property to be used for sustaining the public schools for colored children." The court decided that that law vas clearly unconstitutional and void.  That is the case referred to by the gentlemen, and yet it is in direct line with the minority report of the committee. That says the taxes shall be collected from the whites for the benefit of the whites and from the negroes for the benefit of the negroes.

MR. PILLANS– What authority is that?

MR. JONES– The Federal Reporter, Volume 16.

Now as I before stated the other case cited in 95th N. C. went off on the question or whether an injunction was the right way to reach it, and the court there said that if it was shown that there was any discrimination on account of race, if that had been the manner in which it had been presented, that it would have decided that law unconstitutional.

In 48th Cal., the Supreme Court of that State, in speaking of the right of the races to participate in the fund, say that under the Constitution of the United States the right of the colored race to participate in the school fund is as much a vested right as the right of property. Now, gentlemen, what do they ask us to do?  They come here and ask us to pass an unconstitutional provision that the Courts have decided is unconstitutional. They ask us to pass a provision in the educational article that they know is in direct conflict with the Constitution of the U. S. and yet they say that the colored people demand it. They would have to be


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lacking in all sense if it were possible under the law, to ask that their pittance be set apart for them and that the taxes collected from the white people should be set apart for the white children.

The Supreme Court in the case that I cited a awhile ago of Claybrook against the City of Owensboro, in their opinion said :

“Waiving all consideration of the question as to the rights of complainants as citizens of the United states, we proceed to inquire whether the Act of 1871 and its amendments deny to complainants the equal protection of the laws does not mean the equal benefit of the laws; that protection in this section does not mean benefit ; and that the inequality here is only in the benefits arising from the laws. Perhaps, the best way to test the soundness of this distinction as applied to the laws of a State, would be to imagine the distinction a good one and see where it would lead.  Thus, if protection only means equal taxation and not the equal benefits of the taxes when levied and collected for governmental purposes, the State may apply such taxes not only according to color, but also according to the nativity of the citizen."

Now we have a class in every community of the State, a class of good citizens, a class of people, who do not, as a rule, violate the laws of the State, a class of people who are public-spirited.  I allude to the Jews. We had just as well say they are not getting what they ought to get from the other white people of Alabama, and to say that we will set apart the taxes paid by the Jews for the education of the Jews. It would be just as constitutional as the proposition of the minority committee. You might go further still and divide the people into classes and say that the people who are worth ten thousand dollars should be a class, and whatever money is collected from them on their property should go to building up the schools for the people who own ten thousand dollars’ worth of property, and the people who owned one thousand should be in another class, and that the taxes collected from them should be set apart for the benefit of their children in the different communities in Alabama.

MR. REYNOLDS (Chilton)‑I want to ask you what is the difference in separating the property tax and separating the poll tax?  I am not a lawyer.

MR. JONES– You cannot separate either. It is unconstitutional.

MR. REYNOLDS (Chilton)‑‑But it is done.

MR. JONES‑ There is a section in the Statute laws of Alabama setting apart the poll taxes, and when that is contested, you will see that any court will declare it unconstitutional.

MR. REYNOLDS (Chilton)‑How long has it been so?


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MR. JONES‑I don't remember the year. It was several years ago. The white people did not contest it, and the colored people would not do it.  They did not have enough interest in it, but that law is unconstitutional. If the poll taxes collected from the white people is set apart for the white children, and the poll taxes collected from the colored people are set apart for the colored children, that is just as unconstitutional as the setting apart of taxes collected on the value of the property owned by the respective races.

There is no Constitution in the country that has such a provision as this, not one.   You will not find  it. You will not find it in a single Constitution in the United States, where such a provision as this has been made.  There was a statute in one of the States,  Kentucky,  and that was decided unconstitutional by the court.

Mr. President. the provision that is made by the majority of the Committee for Taxation by counties is the one that has been almost universally adopted in the Southern country in carrying out the provision for local taxation in their Constitutions or in their statute laws. We think that the Committee has acted wisely in the report that it has made, the majority report, and we hope that the Convention will see it in the same way and will table the minority report that is offered, and have the majority report as part of the Article on Education in the Constitution.

MR.  SANFORD (Montgomery)– How long do you estimate the schools will be kept open under the provisions of the majority report?

MR. JONES– Only a short time longer.

MR. WILLIAMS (Barbour)– I did not sign this minority report for the reason that while I heartily approve of one portion of it, I do not the other. I reserved to myself, in the conclusions of the Committee, the privilege to oppose a certain provision, which I shall discuss without making any minority report to the House, and in that action I was sustained by a gentleman who is not here, and whose absence I greatly regret. Mr. Rogers of Sumter. He and I were thoroughly agreed upon one special subject. I do not discuss the matter of race, Mr. President. My friend who had just concluded, said something about class, and that we might manufacture classes and make the same distinction and our action would be unconstitutional. The negro is a class, and was made so by the Great Author of his being. It is not a work of human manufacture. He is of an inferior race and he knows it and feels it, and the distinction between himself and the white man is as wide as the world and is as high as the stars of heaven; so we need not run astray upon the subject of classes in talking about a division of taxes or of anything else with ref-


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erence to the negro. But I propose chiefly, in a very plain way, to speak about the feature of taxation that is before us. I have no finished oration to entertain gentlemen with, but I will try to be very practical and plain in what I say, in the hope that I may suggest some consideration to gentlemen who are more fond of debate than I am.

The trouble comes up in Section 12 in both the minority report and in the report of the majority. They differ very little in this special feature of taxation, except that the report of the minority committee goes more into detail. The majority section provides for action by counties. The minority section by school districts, and they both have a very innocent and harmless appearance, when they call these steps a method of securing additional contribution for school purposes. If you will attend me, you will see that there is nothing in the shape of contribution about it, but it is a compulsory movement from which you can not escape provided the requisite majority is against you.  A few words on the question of taxes in the minority report:

“For the purpose of building, enlarging, improving or furnishing school houses in any district or for the purpose of supplementing the general school fund received from Federal, State,  County, municipal and other sources, the Court of County Commissioners, or body of like jurisdiction shall, as hereafter provided, levy a special assessment,” not ask you for your contribution, “of not more than one-fourth of one per centum in any one year upon the property of a white person situated in a white district or upon the property of colored persons situated in a colored district: provided, no such levy shall be made except upon the request of three-fifths of the voters voting at any election held for that purpose and residing in the district. At such election in a white school district only qualified white electors shall be permitted to vote, and in colored school districts, only qualified colored electors shall be permitted to vote. It shall be the duty of the Probate Judge to order such election in any district upon the petition of not less than one-fourth of the voters who will be entitled to vote at such election.”

Now there you have it, one-fourth of the voters. So, according to the plans of our friends here, one-fourth of the white voters in a white school district, upon a petition to the Judge of Probate Court can secure an election. An election for what? To determine the levy of an additional tax for the benefit of the schools. Can’t you read between the lines and see who will compose that one-fourth in making the petition to the Judge of Probate? Don’t you know it will be the non-tax-payer? Then if it is voted for by a three-fourths majority when the election comes on, why the additional taxation is fastened upon you. It is well said that this is a new thing in the State of Alabama. It is not only new, but it


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is enormous. One-fourth of the non-tax-payers‑ because they will be the men to petition‑ will file their petition with the Judge of the Probate Court who will order an election. and when the election comes on, if the proposition for all additional tax is supported by a three-fifths majority then the tax is levied. Gentlemen, so far as I am able to see this gets up a contest in the county between the non-tax-payer and the tax-payer, because the non-tax-payer is the man that has all the interest in it; the non-tax-payer is the man who don't support the schools, nor any of the other burdens of the government unless it is in the militia or when he has to work the road or something of that kind. It is the tax‑ payer that bears the money burden, and in that way holds the support of the State upon his shoulder, and the tax‑payer is cited  to come up at the behest of one-fourth of the qualified voters of the county to an election.

To do him any good?  To benefit his children give them enlarged privileges of an education. Why, gentlemen, the tax-payer has already done that. He has borne all the burdens of the government in the shape of taxation for schools and everything else and he is the only man that can do it. So it is not intended for his benefit, but it is intended to be a compulsory movement provided there be the requisite majority against him. The matter looks very innocent and very harmless when you read it casually, but look at the facts and see the meaning that lies under the surface. They will call that election. If there be a majority of non-tax-payers there, they will vote the additional tax amounting to ten cents of the hundred dollars. Well, gentlemen, taxation is not a very easy thing to bear. I happen to live in an agricultural section of your State where we have not the channel of prosperity so active in the mineral regions. We have nothing but the cotton out of which eve can make our revenue and that is paid once a year. The interchanges of money do not visit us as they do in the mineral regions. By the help of advanced prices for cotton last year we forged through the weight of a large portion of our indebtedness and became reasonably independent and began to improve the farming situation and to meet all the duties and obligations of citizenship and  we are not prepared in the shape of our consent to come up to a contribution forced upon us by those who pay none of the taxes of the government.

THE PRESIDENT‑ The time of the gentleman has expired.

MR. SANFORD (Montgomery) ‑ I move that the gentleman's time be extended.

MR. HODGES‑ Mr. President and gentlemen of the Convention, I feel, in rising to speak upon this question that I should ask the pardon of the Convention for getting the consent of my mind to break a silence which I suppose must be regarded as golden, and it is only because of the intense interest that I feel


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in this question of public education that I have gotten the consent of my mind to address any remarks to the Convention upon this or any other subject. I shall not undertake to discuss the constitutionality of the question. I will say that there are those who have studied that feature of it, lawyers if you please, and they are not agreed upon the proposition that it is unconstitutional. I speak of the minority report. So, since there is a question, and since there has been a question upon other propositions as to whether they‑ are constitutional or not, I feel that at least the minority report is likely to be constitutional as unconstitutional. Hence, I for one, am willing to risk the judgment of the gentlemen who have studied it and said there is no danger along  that line. The objection that I have to the report of the majority of the Committee is that the unit is too large. One gentleman has said that the principle embodied in the majority and in the minority report is very much the same and it is true and as I say the objection that I have of the minority report I find to the majority, is that the unit of taxation is too large. In all matters of local government it is a matter of observation that the smaller the unit the more apt the measure to carry. In matters of prohibition, I have known, counties where they would hold an election as to whether saloons should be open in the county or not, and prohibition would fail, and in those same counties when the precincts or localities; would take hold of the matter and vote as a precinct prohibition would be established, and so I regard it with reference to the two propositions before us that it would be a difficult matter to persuade any one county to vote a tax upon themselves as a county, whereas, I believe that in many cases it would be an easy matter to persuade these districts, much smaller than the counties, that it would be best for their to have this special tax. It has been objected by some members that this proposition of a special tax would decrease the general appropriation. I feel that that proposition has been answered in the Section that has already been adopted which provides that the appropriation cannot be decreased at the will of the Legislature. It seems to me, Mr. President, that the principle running through the minority report of local self-government is one that we can safely afford not to be afraid of. It has been argued that the tax payer and the non‑tax payer would come in conflict with each other on other views on this proposition. In answer to that I would remind the delegates that, as they well know the tax paving element of the voting population of this country is usually the element that predominates in popular elections. One gentleman referred to the poll tax idea and doubtless will be followed by others. It has not been the practice of this State to divide the poll tax between the races according to the amount that each paid. It would not be constitutional, as charged by one speaker, but I for one, with many others, believe that the poll tax idea is right, and I also believe that the proposition for dividing the county into school dis‑


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tricts for taxation is right, and I believe that the time to strike an effective blow at the weight that has so long hindered the white people of the State of Alabama is now in granting to them in this new instrument which is to be the new Constitution for perhaps, a quarter or a half century to come, the right to tax themselves for the purpose of educating themselves and when this is done I believe that the people we represent will say that our work here has not been in vain and that they will be glad to vote for a Constitution embodying propositions that lie so close to them as the question of local self-government.

MR. COLEMAN (Greene)– Mr. President and delegates of the Convention: I do not think that I will be able to present this question as it ought to be in the short time that is alotted to us, but since the gentleman who has addressed you has stated that he was not satisfied that this law was unconstitutional, the proposition made by the minority report, I would respectfully invite his attention and the attention of any other lawyer in this Convention, to the consideration that I will give it for a few moments. It is so clearly unconstitutional and can be so clearly demonstrated, that if you will pay attention, I think you will have no difficulty in coming to a conclusion. A legal argument is always dry, there is no room for verbiage or rhetoric and whether interesting or not, as a matter of judgment for your own guidance I respectfully ask you to follow me while I consider the argument presented by the first gentleman who addressed you. I have all his authorities lying here before me and they are so clearly against any proposition that he has presented to you, that there can be no doubt upon it. Now the only decision by the Supreme Court of the united States is that in 175 U. S., Cummings vs. Board of Education. In this case the injunction was filed by some colored citizens to enjoin a high white school at which about sixty pupils attended, and the complaint was by some colored men that their daughters were excluded from the privileges of that institution.  Now as there had been no law in line exactly as is proposed here, the respondents answered this way: We have appropriated the money as asserted by you and maintained the high school at which sixty white pupils attend, and no colored pupils are admitted there, but they say we have reserved the funds so that you could get equal benefit of the money and if you establish a school at which only sixty colored pupils could attend we would thereby exclude from common schools 300 negro children.  Now that was the issue before the Court, whether or not the Board of Education in passing upon what was for the best interests of both classes were justified in withholding a high school for negro children in order that the money which would be taken for that purpose should be appropriated to 300 negro children  in the common school, and the white school of sixty not getting any advantage in the way of fund, in that view of the proposition ,but the question was whether


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the Board of Education was acting fairly between the two races with the funds, not that they proposed to take any money or to deprive the colored children of the money, but they proposed to apply it in a different way where it would do the most good and the court said that they could not see exactly how it could be held that the Board of Education was not giving them the benefit of the school funds equally.  The colored school children of the county would not be advanced in the matter of their education by a decree compelling the Board to cease giving the support to a high school for white children.  The Board had before it the question whether it should maintain under its control a high school for about sixty colored children to bring them up to sixty white, or withhold the benefits of education and primary schools from 300 children of the same race.  Now the question was whether they would take the money and establish a high school for sixty, or appropriate that money for 300.  “It was impossible the Board believed, to give educational facilities to the 300 colored children who were unprovided for, if it maintained a separate school for sixty children who wished to have high school education.  This decision was in the interest of the greater number of colored children, leaving the small number to obtain a high school education in existing private institutions at an expense not beyond that of the high school discontinued by the Board.  Now, Mr. President and delegates of the Convention, that was the reasoning of the Court, but not being contented with that conclusion and that statement, the Court went on to say where in that particular case the plaintiffs were not entitled to release.  It is known to every lawyer here of any experience that when he gets into a court he must present his case right according to legal rules and when you apply for an injunction as was done in this case you must show ground for an injunction.  Now here a bill was filed to enjoin the continuance of the white school and the Court said in reply what good would that do you?  If we stop the white school will you get anything from it?  Not at all.  There will be no benefit to you to stop them.  You ask to enjoin and restrain it from being conducted, but the Court was careful, as all learned courts are, to use this language (a hint full of meaning to every lawyer.)

“If in some proper proceedings instituted directly for that purpose, the plaintiffs had sought to compel the Board of Education, out of funds in its hand or under its control, to maintain a high school for colored children, and then, if it appeared that the Board refused to do it, the consequence would be that they would be compelled to do it.”

There is a great difference between restraining a Board from carrying on a school and filing a bill requiring the Board to divide the funds.  The intimation here is a very legal one, that if


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this bill had been filed against that Board to require them to divide the fund equally, and it appeared that they had not gotten their share of it, why, the court would have sustained the case and that Board that was appropriating this fund for a high school of sixty would have been compelled to distribute that fund equally. There is no doubt about it in the world, and it is just as plain-cut proposition as was ever presented to any court. Now, this next case was North Carolina case, and I am surprised that an attorney would look so little into the merits of a decision. He said this to you in the Pruett case of North Carolina. The court refused to inquire into the consistency of the statute with recent amendments to the Constitution of the United States, but the court added, "now bear with me," it is not every distinction depending upon the race or color that came in conflict with the Federal Constitution, but only when it produced inequality of right and when this is the result the State legislation from which it flows is rendered inoperative.

Now, he tries to impress this idea upon the delegates here in as much as the court declared that it would not consider a question as to whether it was in violation of the Fourteenth Amendment or not, and, therefore, you must infer that the court, if the case would arise under his proposition, would not inquire into it.

Now, Mr. President and delegates of the convention, this was the question.  The North Carolina case was precisely the case he has here.  Here it is, Section 4.  “The assessment thus levied and collected from taxable property composed of white persons shall be expended in aiding to keep up the public schools in said district for white children of both sexes between the ages of 6 and 21, and the assessment levied and collected from the taxable property composed of colored persons shall be expended in aiding to keep up the public schools in said district for the colored children between the ages of 6 and 21.”  We have his direct proposition, and the gentleman who last addressed you–I do not see him in his seat–had summed out on that question.  Well, now, there it is just in his own language.  The very statute he would here have you adopt.  It has been up before the Supreme Court of the United States and the Supreme Court of the United States has declared that it was in violation of the Constitution of North Carolina, and , therefore, null and void, and then it said and not till then, inasmuch as this statute is null and void under the Constitution of North Carolina, it is unnecessary to consider whether it is in violation of the Fourteenth Amendment, not that the court would not inquire if there has been a provision contrary to the Constitution of North Carolina.  Afterwards it would go on and see if it was in violation of the Fourth Amendment.  But what is the use of it, if it is in violation of your own Constitution?  There is the law so clear that there cannot be any mistake about it.


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MR. ASHCRAFT‑ Will the gentleman permit a question?

MR. COLEMAN‑ Yes, sir ; anything on this proposition if the gentleman will give me time.

MR. ASHCRAFT‑ Does the gentleman state the Constitution of North Carolina on this subject and the Constitution of the United States are the same thing?

            MR. COLEMAN‑ No ; I said this court declared it was in violation of the Constitution of North Carolina, and, therefore, it would not consider whether it was in violation of the Fourteenth Amendment. There was no use in going that far; that is what the decision holds, and it holds nothing else; that is the whole cream of it.

MR. ASHCRAFT‑ The gentleman don't say that I have misquoted. I quoted from the authority------

MR. COLEMAN‑ Yes, you quoted from the decision like the text "top-not come down," and he preached his sermon against people of proud and high looks, and when he was called upon to show where his text was in the Bible, he got it and it read this way: "Let those on the house top not come down." You have just taken out "top-not come down." You don't take the law.

MR. ASHCRAFT‑I say I submitted the quotation on a fair basis.

MR. COLEMAN‑ Yes, and I have read it from this decision. There is not a shadow in this proposition. Do you think a convention of the intelligence of this one, and of the many States in

the Union----

MR. SAMFORD (Pike)‑I move that the time of the gentleman be extended ten minutes.

THE PRESIDENT‑ ‑The gentleman's time has not expired.

MR. COLEMAN‑ This Convention would not hesitate thirty-four hours if it was our privilege to derive benefits front the taxation that is proposed in this amendment. We would never let it go out from the State of Alabama, if it was in our power to make appropriations for our benefit without doing it at once. But it is the Fourteenth Amendment and decision after decision that ties our hands to the law, and if any such law as that proposed by the minority was enacted it would be declared unconstitutional, not only by our own State, but by every tribunal that had jurisdiction of it in the United States, it is so palpably in violation of law. The other decision referred to was the case commented upon by General Jones. I need not do more than read to you the condensed statement of the law:


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"An act of a State Legislature authorizing a municipal corporation to levy a tax for the benefit of public schools within its limits, but directing that the tax collected of the white people should be used to sustain public schools for white children only, and the tax collected of the colored people should he used to sustain schools for colored children, the effect of such discrimination being to give the whites excellent school facilities and a school session annually of nine months, and the colored inferior school facilities and a session of three months, is contrary to the 14th amendment of the United States Constitutional and void. The colored race is entitled to have a fair share of the funds raised by such taxation applied to the maintenance of the colored schools."  Could anything be plainer than that? How could anything be more clear? I say it is in every decision that could be found.

MR. PETTUS–As one of the delegates who signed the minority report I desire to submit a few remarks in support of it.  It seems to me that the question before us to be determined is a question of policy.  If there are delegates upon this floor who believe that the taxes paid into the treasury for the benefit of public schools ought to be divided equally, no discrimination against the negro no matter whether he pays taxes or not, or in favor of a white man, of course it is needless to address any remarks to them along that line.  There is no question, no matter what the views of individual delegates may be upon this floor, that this is a subject in which the people of the State of Alabama are vitally interested.  This was demonstrated by the fact when this Convention first met there was not a day passed when ordinances did not pour in on the Clerk’s desk asking for and seeking some plan whereby the taxes could be divided so that the proportion would be more clearly just and equal to the white people that under the present system. Some of the delegates seemed to be frightened at this because they say it is a new idea.  Some of them are so bound to the hide bound traditions of the past they cannot get away from them and take fright and are ready to stampede like a herd of cattle, because forsooth it is a new idea.  I submit it would be a reflection upon the great State of Alabama if we hold a convention, sit for three months seeking to meet questions and settle conditions and decide upon policies for this State to live, move and have its being for the next forty years if we cannot develop new ideas, and if we have to fall in the tracks of Mississippi, Louisiana, and North Carolina, I submit it is a reflection if we cannot get up a new idea and I do not believe that we should be so bound to the traditions of the past that we will not accept a new idea if it is right and just, and is good policy, and is not in direct violation of the Federal Constitution.  I know that I have sworn to support the Federal Constitution.  I have my oath registered along with that of the other members, but I do not believe that when it is a doubtful question that has not


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been decided and when there is just as fair and sound argument made by just as able men in support of the minority report, when reasons are sufficient to create a doubt, I will not and cannot resolve that doubt against my own race. "The cases which have been cited and read by the gentlemen who oppose this minority report are most of them cases by District Courts. They do not come front the highest tribunal of the United States which passes upon the constitutionality of questions, neither arc the facts in those cases the facts that would confront a court if this minority report were adopted in our Constitution and its constitutionality ever raised. The facts in those cases are different, and the North Carolina case which the distinguished gentleman front Greene emphasizes was a case that was decided not upon the Federal Constitution. but upon the Constitution of the State of North Carolina, would have no application and no effect in this State, and I submit that in the dissenting opinion in the North Carolina case it is strongly intimated that local assessments would prevail even under the North Carolina Constitution. They do not seem to discriminate between the idea of a general public tax, like this thirty cent tax we have created in the constitutional for school purposes and the idea of a local assessment which is altogether at different plan and idea, and as has been suggested such a new idea that it has not been up before the courts to be passed upon. Now the gentleman from Wilcox talked about dividing people into classes, and why could we not take the Jews or Italians or some other race and divide them up into separate classes. I submit to the gentleman from Wilcox that the Supreme Court of the United States nor no other court in this country has ever held that it is right, just and lawful to provide separate schools for the Jews or for the Italians or some other white race. The negro race occupies a unique position in this country, and there has been legislation and decisions about the negro race which apply to them particularly and do not fit nor touch nor reach these other races in any particular degree and I submit that whenever the gentlemen on the other side or whenever the courts say that you can have separate schools for the white race and black race, if you follow that idea to its logical end you are bound to admit that you can have separate school districts for these races for the administration of their respective schools, and when you have your separate school districts, one for the negro and one for the white people, I submit under the plan of local assessment, which is elaborately worked out in the minority report, that you can have an assessment of the white race to go for the benefit of the white schools, and for the negro race to go for the benefit of the colored schools. We have cut down taxation from 75 to 65 cents. This minority report provided that in no event shall the local assessment go above the 10 cents taken off, and in no event in the district or county of the State where this plan would he put in op‑


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eration would there be an opportunity for the taxes to be raised above 75 cents, as they have been under the old Constitution.  Now the gentleman from Wilcox and other members, have seen fit to urge against this, its constitutionality, and when somebody asks them about the poll tax which we find in the Code divided up between the races they do not draw the line between the property tax and the poll tax, but they say that the poll tax which is divided is unconstitutional.  It is in the Code of 1886, and it is the law that we have been living under for more than a decade, and I submit that I never heard the constitutionality of it questioned until I came upon the floor of this Convention.  The question has never been raised on that, and it is not going to be raised on the property tax.  Suppose there is doubt in eh mind of some technical lawyer about its constitutionality, if there is and if it stands as long as the poll tax has stood upon the statutes of Alabama, then I submit it is the duty of the delegates to put it in the Constitution and let the with people of Alabama get the benefit of it for ten years at least.  If the question is not going to be raised then, let us put it in.  If the question is going to be raised and there is doubt about its constitutionality, and it seems that lawyers differ about it, then let us give the white people of Alabama the benefit of the doubt.  You have already done all that philanthropy, Christianity, or magnanimity or any other broad or patriotic sentiment could demand you should do, when you put in the Constitution 65 cents to be divided up between the people, white and black, in Alabama, and it is our duty to strike off the incubus which keeps the white people from making a forward step.  It is the duty of the Convention to remove the millstone which hangs around the necks of the white people, and put it in the power of the white people to go forward, and under this plan the negroes can go along in their ration on separate lines, I have always, when confronted with a question like this, and doubts have arisen in my mind as to whether it ought to be done, and whether it is conservative to do it, I have stopped to think what conservatism is, and tried to discriminate between conservatism which I believe is caution, and patriotism, and between inaction and timidity which I believe is something that should never stand in the path of any man, especially if he be the representative of a sovereign people.  What is it that prevents us from going forward along this line and taking the progressive step.  Is it conservatism, or is it inaction and timidity which makes us afraid to go forward, afraid of some bugaboo in the road.  It is the duty of the delegates who represent a noble and sovereign people on this floor when they come to a question like this, not to be deterred by fancied security, by inaction, timidity or cowardice, about what the Supreme Court of the United States is going to do.  It is a new question, and has not been decided, and we should give the benefit of the doubt to the white people of Alabama, and ought


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not to hide behind so-called conservatism, and let that be an excuse to keep us from going forward along a progressive, and a right and just idea for schools in this State.

MR. BROOKS‑ The discussion of the constitutionality of the minority report, as I understand it, seems to be decisive against it, but it is a question that may well be considered from the standpoint of expediency, policy and justice. One of the chief instrumentalities which civilization affords for the uplifting and broadening of citizenship is education, and after a good many years of reading and thought and discussion. I have come to the conclusion that the solution of the so-called negro problem depends very largely upon the practical utilization of that instrumentality. I refer not of course to the higher learning, to the university of education, which of course, is by no means to be disregarded, or underrated, but  speak of common school education which comes near to the people, has a direct and immediate effect upon them, and which will elevate our people of both races if applied justly, properly and wisely with reference to the special and peculiar conditions that confront us. Lord Brougham gave the world a very striking estimate of the importance and influence of a common school education in his speech against the appointment of the Duke of Wellington as Prime Minister of England. The great Iron Duke was then in the full tide of his popularity, justly his, as the result of his great military successes. In that speech Lord Brougham in a burst of defiance said:  "Field Marshal, the Duke of Wellington may take the army, he may take the navy, he may take the Great Seal, he may take the mitre. I will make him a present of them all ; let him come on with his whole force, sword in hand, against the Constitution and the English people will not only beat him back, but will laugh at his attempts. There was a time that the country may have heard with dismay that the soldier was abroad. It is not so now. Let the soldier be abroad if he will he can do nothing in this age. 'There is another personage abroad, a personage less important in the eyes of some, perhaps insignificant, but the school master is abroad and I trust him and his primer against the soldier in full military array." So, Mr. President, in Alabama today the school master, and the school mistress, if you please, are abroad, in and among the people, bringing the blessings of education, the elementary reform enabling them to gain knowledge and think and elevate themselves in the scale of humanity and become self sustaining and self respecting and valuable citizens. Now then, sir, if those things are the outcome of the common school education properly applied with reference to our conditions, it seems to me that they ought to apply equally to both races. and it does seem to me that we are making a great mistake, and we are endeavoring to inaugurate a very unwise policy when we propose


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by constitutional ordinance to imbed in it the principle that education shall be dependent upon that line of cleavage in tax‑paying which is more fancied than real as I shall show. The whole thing is based upon a fallacy being that the negro is little or nothing of a tax‑payer, but if you apply that principle and discriminate in favor of a white man, and against the negro along that line, why isn't it just as proper to discriminate against a white man whose name is not on the tax books, and yet we would not think of doing that. Mr. President, there are thousands of men in the State of Alabama whose names are not found on the assessor's books, who own no property, and who support themselves and their families comfortably and respectably from their daily labor, renting a little cottage over which the good house wife presides, taking care of her children and educating them as far as she can, supplementing the State in its work and in my observation and experience I have seen the children of those people grow up and become influential and prominent men in the communities in which they lived. The negro is a producer, he may not pay any taxes, his name may not appear can the tax books, but the man who employs him, who enjoys and possesses the product of his labor, pays the tax and enjoys the fruit of it. The negro is a con‑sumer and a consumer of the first water. He spends all his earnings in his desire to consume, happy-go-lucky, he has no idea thereafter what becomes of it. It goes into the tills of the merchant and finds its way into the tax book. You have a daily illustration in the city of Montgomery. Go on the thoroughfare any time and see the negroes who have sold their little truck or cotton, see them how lavishly they spend what little they have. What becomes of the profit made upon their labor, what becomes of the money which is paid out, for the articles they need, why  it goes into the drawer of the merchant, enables him to enlarge his stock, to employ more labor, to put up a new warehouse, to take stock in the new Montgomery Hotel proposed, or to engage in other enterprises of pith and moment indicative of his prosperity. That is the fruit of the negro, so, practically speaking, he is a tax‑payer, and a large tax‑payer, and it is not only unjust to him, but Mr. President, it militates against the negro race as a component part of our civilization and must re‑act upon our own selves and militate against ourselves. I can not go into a discussion of the negro subject, but I will say very briefly that we can not expect that in the thirty-five years since they have emerged from a thousand years of savagery and several hundred years of slavery and then, placed in a position of unnatural antagonism to the white people. We cannot expect that within the short time of thirty-five years for there to show any good results of education, but if education can influence anybody in the world the time must come when it will have its influence upon the negro race. We must recollect that he is here and we can not get rid of him; to use a familiar expression, he is here to say. Now DeQuincy's


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thrilling prose poem immortalized the fight of a tartar tribe, but the graphic pen of a future DeQuincy will never be required to record the exodus of the negro race from this land of ours; this is his land of milk and honey and he is here to stay, and our civilization, our well‑being depends upon taking him by the hands and giving him all the advantages we can, and giving him an equal opportunity to profit by the educational influences as far as common school education is concerned, and as far as his needs and requirements are concerned, as the other race. Now, sir, my opinion is, of course it is going to take a long time to do it, but whenever the negro reaches the point that he will be educated in the elementary branches of his language, so as to understand what he is doing, so as to be able to defend himself against the cupidity of the white man to swindle him, it makes him a self-respecting citizen, giving him habits of thrift and economy. They are going to be educated, and they will be a valuable part of our civilization, and as they go from one place to another and rise higher in civilization my opinion is the next thing will be a diffusion, they will be diffused all over the United States, because then they will be in a position to complete and maintain themselves in any part of the United States of America. They will be in that position as laborers, as industrious men, as self-sustaining, self-respecting citizens as will be welcome to every community where thrift and enterprise are the rule, and where there is a disposition to maintain those great rights of liberty which have been handed down to us by our forefathers.

MR. CUNNINGHAM‑I and in favor of local taxation for the common schools in the country. I am heartily in favor of the County as being the unit of this local taxation. I am in favor of a just and fair and equitable distribution of the funds raised by this method between the, race. I am opposed to the proposition contained in a measure that would give to the white people the money raised by taxation of the white people, and to give to the colored people the money raised by taxation of the colored people. I think that the lawyers upon this floor have the better argument who contend that the proposition. would be a violation of the fourteenth amendment of the United States. I contend, Mr. President, that it would be a violation of the fundamental principles underlying the whole question of taxation for public schools. If we subscribe to the doctrine that those who pay the taxes are to get the benefit of the moneys raised by, taxation, then we necessarily would carry it to individuals, into communities, that means to say that the rich counties of the State who will contribute thirty cents on the one hundred dollars under the provisions of this Constitution for the common schools and who have not sufficient population to get more than one-third of that back to say ten cents on the one hundred dollars, should not be compelled to contribute the other twenty cents. That would be the


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position of the County of Jefferson, which will get back under this provision a little more than one-third of the money paid under this provision a little more than one-third of the money paid under this three mill tax. Carry the argument further. It would mean that the poor counties of the State could not get any benefit industrial corporations and the development of your unsurpassed natural resources, and therefore should rely entirely upon the local condition and the wealth in the community in which they live. I undertake to say that the minority on this Committee would not subscribe to that policy. The gentleman from Limestone for example, I am quite sure in his county they get more in proportion for public schools than they pay into the State treasury, than the county of Jefferson would be willing to turn over the excess three mills taxes beyond the number of children that they have to enjoy the benefits. Carry the argument further.  It would mean that the great city of Montgomery, or the city of Mobile, or Birmingham paying two-fifths, possibly‑ one-half, maybe more‑-in my county it pays two-fifths of the taxes in the county, would not divide up and whack up with the poor beats in the county. Carry the argument a little further. The rich man would get the benefit of the money for his children, the comparatively rich man would get the benefit of the money for his children, and the poor man the benefit of the taxes paid for his children, and finally the corporation which is not a matter of flesh and blood and never participates either as a parent or child, ought not to pay anything at all. I am therefore opposed to the principle underlying the proposition of paying out the money raised by one race to that or by one county to that county, or by one community to that community, or by one individual to that individual. Now the question may properly arise what right have we to tax at all for education. Why not tax to clothe the children, to feed the children and to bury them when dead, to provide them with doctors just before they die and with lawyers to administer afterwards? The answer to that proposition is that these things are necessary evils and that the individual must bury them, but education is a blessing and it is a necessary condition to prosperity, safety and civilization and to the growth of this country. Statistics are innumerable to demonstrate the fact that education in any commonwealth aids prosperity; in other words, the greater the education the greater the productive capacity of the commonwealth, and inasmuch as the production of the commonwealth is but the aggregate production of the individual, hence that which increases the productive capacity of individuals, is the only excuse that we have for taxing anything, State, county or individual, for the purposes of education. Now the only objection that I have to this report is that it fixes it at ten cents. I am free to confess that I prefer the report offered by the Committee on Taxation which gave each county a margin between the sixty-five cents, the maximum State tax and the maximum county


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tax. I would prefer that. I want to say, in my judgment, if this provision for local taxation is defeated you will have taken a backward step in education. The question was asked me when it was pending if I would advocate a reduction to sixty-five cents, if I would vote for it if I knew it would not pass. I did not feel at that time that it was necessary to give my case away, but I say to you frankly that I expected this great Convention to rise to the occasion and give the people who desire the opportunity to tax themselves. I believe it is a wise provision. Now there are some counties in the State that do not need it. Well, then, if you do not need it you need not have it. There are other counties in the State who do need it, and if they want it, you ought not to deprive them of it. I believe the great county of Jefferson is getting along very well today with educational institutions, but we can improve on them and I want the opportunity to be a unit. I do not want to confine it to the beat, city, district nor the town, I want the outlying districts to get the benefits of our industrial cities that are being built up in the county I agree with the gentleman from Lauderdale that this is all innovation, and I agree so far as giving the negro the responsibility in the matter is concerned, it is a wise innovation, and as I informed him privately, I would be willing to support some provision of that kind if it could be done so as not to conflict with the Constitution of the United States, to make him the trustee of his part of the fund. I would have no objection to that proposition. I believe it would be a step in the right direction and aid in influencing the character of this dependent race, to encourage them in that line, but that can be done, as I understand it, under the statutes of your State, that the Legislature cannot pass laws governing this question and enable the negroes in part at least to take charge of the funds. I do not know whether that be true or not, I am so informed, so it is a proposition that has merit in it, because responsibility stimulates ambition and increases energy, and therefore increases the product of effort, and I believe it would be step in the right direction. I sincerely hope that this Convention will not take away from the counties of Alabama who want it the opportunity to vote this tax, and I hope they will preserve the county as a unit and provide for an equitable, fair and just distribution of the fund.

MR. HEFLIN (Chambers)‑I think, Mr. President, that we have already incorporated in the Constitution a provision that says if any particular section of the Constitution shall be declared by the Federal Court to be unconstitutional, it shall not affect the other sections in the Article. For one. I am in favor of running the risk. If the Federal Court should determine that this particular section was unconstitutional it would not destroy the educational system incorporated in the Constitution.


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Mr. President, this provision of the minority gives the people in their respective communities the right to tax themselves, the right to lay off districts. It provides that the white man shall have a district to himself and the negro a district to himself, the white districts to be voted on by nobody but white men and the same way with the black man for his district. It is the old Southern idea that the negroes should go to school to themselves, separate and apart from the whites, and that the whites should attend school to themselves. We have made the line of separation so plain, Mr. President, we do not want it crossed. We do not want to see the time, and I hope to God it will never come when they will mix and mingle in the schools of the South. They do in some sections of the country. We have said to them here, you shall not marry into the Caucasian race. It is a race, as I stated once before on the floor of this Convention, physically prohibited from assimilation and amalgamation. We have not said to the Jew and to the Italian, you shall not mingle and marry into the families of the Caucasians here and there and everywhere, but we have said to the black man, "so far shalt thou go and no farther." Mr. President, more than any other question, perhaps, before the people was urged this one- any other question save the suffrage of giving the white man the right to use his own taxes and the black man the right to use his. It has been argued hereby gentlemen that the negro was a slave for a hundred years, and has only lead his freedom for thirty-five years. and that it is too short a time after slavery has been abolished to now throw upon him the responsibility of working out his own salvation. I would reply to them that the sons of those men who fought and fell for four years, and who came home and found their property swept from under them ; who started out fighting the battles of life, with but little of the advantage afforded by letters; who fought their way and support their mothers and sisters. I ask them if it is right to tax them to educate the negroes of Alabama. The white people of Alabama and the Democratic party, I believe, and it is the dominant party in the State, has urged in different sections (it has been done in my immediate section of the State) that some time this provision  would be made, that some sweet day the people of Alabama would leave the right to tax themselves ‑-the white people, and would enjoy the benefit of that taxation, and allow the negroes to do the same. I do not believe that it is wrong to the negro race. They are being educated very rapidly, Why, they will attend school with but few garments to wear and with but little to eat, when the child of the white man would be kept at home because he hasn't good clothes to put on and good victuals to send with him to that school, as his neighbor has. Pride offentimes will keep him back. It is wrong, but it is true, nevertheless. The negroes are being educated very rapidly, and I say in the light of all the history, of the least, some day when the two separate and distinct races are thrown togeth‑


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CONSTITUTIONAL CONVENTION, 1901

er, some day the clash will come and the survival of the fittest, and I do not believe it is incumbent upon us to lift him up and educate him and put him on an equal footing that he may be armed and equipped when the combat comes. I favor the minority report and shall so vote.

MR. JONES (Montgomery)‑Mr. President, I find myself unable to concur in the proposition embodied in the minority report, for two reasons. One is that after a thorough investigation, I find the plan is plainly, and palpably, and manifestly unconstitutional; but I do not rest my opposition upon that ground only. I remember seeing it related somewhere of Robert E. Lee, when he was asked why he took so much interest in a worthless soldier, and why he seemed to have a solicitude for his welfare, that that grand old man answered, "Because he is under me." The negro race is under us. He is in our power. We are his custodians. In furtherance of what this Convention believes to be justice to him and justice to ourselves, we have shorn him of a political power, which is as much to his interest as to ours that he should not now have. In return for that, we should extend to him, as far as possible, all the civil rights that will fit him to be a decent and self-respecting, law-abiding and intelligent citizen of this State. We are dealing not merely with conditions of today, nor for ourselves alone, because in a few years at most, most of us will have passed away. We are dealing with conditions which are to affect our children, and our children's children. This race is here. It cannot be transplanted. It cannot be deported. He is a part of our economic system. We come in contact with him everywhere. If we do not lift them up, they will drag us down. It occurs to me, Mr. President, that a large part of the opposition to dividing the school tax with the negro, is based upon a misapprehension of, or at least a confusion as to a great economic truth. Every negro who works, does pay his share of taxes, whether he ever goes to the tax gatherer's office or not. You may take it in town, in the country, anywhere, and on an investigation you will find that every mail who pays rent, every man who works for wages, in the adjustment of those two relations, bears his fair share of the burdens of government. For instance, a man rents a house here ; he may have passed the poll tax age; he may have nothing to return to the tax gatherer; and yet, when he pays the rent charged him for that house, in some measure he inevitably aids in discharging the taxes that are levied upon that house, and it is the same way when his wages are adjusted.

 

Many years ago, having occasion to speak in another place on this same subject, I met a great man, a citizen of this county, who has long since gone to his reward, a Scotchman, a man of the intellect, but of violent prejudices. He reproached me somewhat for taking the position I now advocate. I said to him, "Colonel Gilchrist, has the negro a soul?" He threw up his hands,


4304                  

OFFICIAL PROCEEDINGS

and in his impulsive way, said, "That ends it; that settles it; he has a soul." We ought to teach the negro at least enough to enable him to read his Bible, to understand the laws that he is to obey, and to understand the contract he signs.

I hope for better things in the time to come in the relation between these two races. It was, perhaps, unavoidable that distrust, passion and race hatred should arise in the last thirty-years when the negro was launched out by the victor as a citizen and given power over his former master; but we have passed through the worst stages of conditions arising from his sudden emancipation and the ignorance and viciousness of many who led him. Let us not repeal him. Let us make him feel that while we intend to rule this land, yet at the same time we intend to be just to him, to be his friend, and that he ought to rely on us. Let us take hold of him in his schools and elsewhere, and teach him what he ought to learn, that while he can not rule us, that his interests, his prosperity, and his happiness are things for which we care.  Let us make him feel that we are too great to legislate on the lines of race hatred, or unworthy race passion:. When he is convinced of this, a condition of things will come about which will make a contented race which will be glad to be with us. But let him once he convinced that the white man hates him and intends as far as possible to oppress him, and let the idea glow with him for generations that the power of the white man is to be exerted not merely to govern the land but to cast the negro down as far as possible, and bar him of opportunity to improve, and deny him rights as a human being, and his condition will grow worse and worse. Where he can, he will leave us. Such a policy on our part will bequeath a legacy to our children of perpetual discord, race hatred, and it may be, here and there, race conflict. Why not hope and plan for better things?

Why does the State educate the children? It is because it is to the interest of the State as a body politic, leaving out other considerations, to have its citizens know something of its laws, of its institution, and of the duties of life. If the State of Alabama had the power to do this thing asked to be done by the minority, what reason is there why we should discriminate in this way, by giving the negro only the taxes on his property, and the white people the taxes on theirs. All of its know and realize that this simply means to give more to one race than to the other, because one is white and the other is black? The constitutional question has been elaborately argued by distinguished gentlemen. I will not go into that, or cite any authorities. We all know it has been laid down in unmistakable terms by the Supreme Court of the United States, that while the Fourteenth Amendment did not create any direct rights, it did negatively create a very valuable one, and that is the right not to be discriminated against in civil rights, not in social, not in political, but in civil rights. We can not dis‑


4305

CONSTITUTIONAL CONVENTION, 1901

criminate in civil rights between citizens, on account of race, color or previous condition.

I ask any man here, whether he is a lawyer or not, suppose we were to pass a law that the courts in Alabama should be open to the trial of civil disputes between negroes, only so long as the taxes derived from the property of the negroes would keep the courts open, and make the same provision as to white men, would any man in the sound of my voice say that was giving the negro the "equal protection" of the law. You cannot in a constitutional government, like ours, where these people are citizens and entitled to equal civil rights, use the taxing power, the police power, the taxing or any other power of government, so as to diffuse the blessings or ills of government according to races. You can not snake distinctions of that sort. To attempt to do so, is not only wrong in itself, but in violation of the Supreme law, and will only entail complication and trouble in the administration of our school laws. For all these reasons I am earnestly opposed to the minority report.

MR. BROWN‑ At the opening of the session of this Convention I introduced, and had referred to the Committee on Taxation, a provision for levying, a special county tax for school purposes, to be appropriated to the schools of the two races according to the amount paid by each race respectively. After that ordinance had been referred to the Committee on Taxation, I went into a careful investigation of the whole question, in its legal aspect, and I very soon became fully satisfied that such a provision would be clearly unconstitutional. I read then the authorities that were this morning read and referred to by the gentleman from Lauderdale, Mr. Ashcraft. But there is another case that he did not read or refer to in his brief, which is a much stronger case against the proposition of the minority than any case read or referred to. It is also a Kentucky case, the case of Davenport vs. Cloverport, in the 72nd Federal Report. Now the plan in the Owensboro case, as said by Mr. Ashcraft this morning, provided that there should be levied and collected school taxes upon the property of both the whites and the blacks, and then the amount realized separated into two funds, appropriating that which was derived from the taxation of the property of the whites to their school, and that derived from the taxation of the property of the colored people to their schools. And he drew this distinction That the case as provided in his minority report, they do not propose to allow the white people to levy the tax at all upon the property of the colored people, and that therefore this provision was not in conflict with Owensboro case, and was constitutional. That is exactly the point that was contended for in this case of Davenport vs. Cloverport. I will read just a few extracts, enough to show that the position of the minority is not correct:


4306      

OFFICIAL PROCEEDINGS

"There was authorized upon the request of said trustees a levy upon the property, real and personal, of the white persons in said school district, not exceeding 50 cents on each $100 value of property, and a tax per capita, not exceeding $2 on each white male 21 years of age. The said tax was not to be levied unless, at an election held for that purpose a majority of the white voters authorized the levy of said tax. By this law, the property of the colored people and the poll tax of colored voters were not subject to taxation for said purposes."

And by another Section of the law under consideration: "All white persons of both sexes between 6 and 21 years of age, living within the district constituted by this act, shall, have equal rights of admission to the schools."

It is alleged in the bill, among other things "that there is received annually from said taxes," from the white people, "a sum exceeding $4,000; and that it should be divided and apportioned equally among and for the benefit of all the children residing in said district and said Cloverport who are of school age."

Now that was the contention. The court held-but first, I will read further: "The bill was demurred to by the defendants, because the matters and things in the bill alleged are not sufficient to constitute a cause of action against them, or either of them, nor can the court, upon the matters and things in the bill alleged, grant the relief prayed for, nor any other relief." The relief prayed for was that this money should be properly divided between the schools of the different races. I read further: "It will be seen the purpose of the bill seeks a mandatory injunction, not to enforce the law of February, 1876, but to declare it unconstitutional, and in effect, applying its provisions to colored children as well as to white children." The Court now says: "This Court has heretofore had occasion to consider (in the Owensboro case) whether a tax levied upon the property of white persons for school purposes, and a similar tax levied upon the property of colored persons for the same purpose, could be separated, and the taxes collected from the property belonging to white persons applied exclusively for the benefit of white children of school age, and the taxes collected from the property of colored persons applied for the benefit of colored children of school age in the same district; and the court decided, after careful consideration, that such a division and distribution of taxes thus levied and collected would be a discrimination which is prohibited by the fourteenth amendment to the Federal Constitution."

"In the case under consideration, no tax was either authorized or levied under the act of 1876 on the property of colored people, but this fact makes no difference in the principle which was decided in the case of Claybrook vs. The City of Owensboro, supra."


4307

CONSTITUTIONAL CONVENTION, 1901

The court thereupon held that the levy of the tax itself in this case was unconstitutional, whereas in the Owensboro case, the tax being levied upon the property of both white and black, but applied to the schools of the different races in proportion to the amount paid by each race, the Court held that the application of the tax was unconstitutional."

In this case the Court further says: "It is true, in the case of Claybrook vs. Owensboro. there was a proportion of taxes which had been levied, enjoined, from being applied for school purposes for white children, but there the tax which had been levied, although by separate acts was an equal tax upon the property of both white and colored people, and the unconstitutionality of the act consisted in the unequal distribution of the tax levied and collected, in that the division was attempted by the law upon the color line. But here there is no constitutional authority for the levy of the tax at all; hence the court cannot grant to the complainants the relief prayed for."

Now, if this is good law, and it seems to me it is, it settles the question of the minority report. They undertook, in their report, to get around the decision in the Owensboro case by not levying, in the same district, a uniform tax upon the property of all white and colored people, and then apportioning it in proportion as it was paid by the different races. So they provided, and that was the basis of their whole argument, that the tax should not be levied upon the property of the colored people, but only by a vote of the white people upon their own property, and then applied exclusively to their own schools. Under that decision which I have just read, the Cloverport case, the Court has held that an unconstitutional tax.

I make this statement to show why I have abandoned the ordinance introduced by me at the opening of the session. I introduced as a substitute for a section of the report of the Committee on Taxation, a provision almost identical with the one that has been reported by a majority of the Committee on Education and which was printed, and I am heartily in favor of this section as reported by the majority of the Committee.

MR. GRAHAM (Talladega)‑Mr. President and gentleman of the Convention, this matter has been thoroughly discussed from a legal standpoint, and I want to say a few words in concluding the discussion in regard to the necessity for this plan. The recent Federal census shows that there are in Alabama 723,000 children within the educational age. The school fund which we have just provided for in this Constitution will give us in round figures, about one million dollars.  This will give a per capita educational fund of one dollar and thirty-three cents in this State, and I agree with the gentleman from Henry who said on yester‑


4308                  

OFFICIAL PROCEEDINGS

day that Alabama could not be content with one dollar and forty cents per capita for school purposes.

Now, then as to the unit. The State of Alabama has been the unit heretofore. The ideal unit, I admit, is the district, or the township, but we cannot so suddenly come from the large unit of the State to the idea unit. We come first to the county as the unit, and I favor it on this occasion for this reason especially: The development of the State is not equal. The distribution of wealth is unequal. The distribution of corporate property is unequal, and the centers of wealth are scattered. If we take the township as the unit, then these centers of wealth will profit by this, and the poorer sections of the State, especially the farming sections, will not receive any benefit of it. I can possibly give you the best illustration by referring to my own county. There are thirty-two school districts and townships in that county. It so happens that the railroads and furnaces of that county can be found in twenty of those districts, leaving twelve districts which happen to be agricultural districts, with possibly the poorest quality soil. They would receive no benefit whatever if we adopted the township or district as the unit, whereas if we take the county, these twenty districts that are especially favored with railroads or corporate property would give of theirs to the twelve adjoining townships and districts that have no such property. It is but fair between man and man that we adopt this basis now, because, educationally and otherwise, in Alabama, we have not developed beyond that point where we are still in a large sense "our brother's keeper," and it would be unfair for those of us who happen to live in the favored districts where there are railroads and corporate property to desire to hold all the taxes from that property ourselves. It is but just and right that some of us give to our neighbors who have no such property. You will readily recall with me an incident that occurred nineteen centuries ago, when an humble woman came with the box of precious ointment to anoint the weary feet of the lowly Nazarene. There were those who stood by and said, "Why all this, waste?" And the Savior administered a rebuke to those misers who stood there that has made that woman famous through all the ages. There are those today who ask us "Why all this waste?" in regard to educational matters. In reply to that I say to you every time you build a school near a farm you enhance the value of that land; every time you educate a child, you add to the prosperity and power of the State, and the more you give to the schools in the rural sections of this State the more you enhance the value of the lands there, and the more you increase the tax values in Alabama. There is no waste. That question has been answered, and there is no necessity to raise it any more.  This is only one mill. It is not compulsory. There are many counties in the State that will not levy it; but there are many counties especially in North Alabama that want the privilege, and it is


4309

CONSTITUTIONAL CONVENTION, 1901

limited to four years each time. If they try it and find they don't want it, it passes after four years, and the three-fifths vote is but fair. Those who own property cannot question the majority that is required in order for it to be levied. The ideal plan of this would be for the majority of the voters but we never tried local legislation in Alabama, and hence we come, leaving property on the safe side of the issue. No man can say that it is unjust in the present condition of affairs, and my only hope is that within a few years, when we shall have purged the electorate of Alabama from the ignorant and the vicious vote, that property will no longer be timid on this matter, and that an amendment to this Constitution may be put there whereby a majority may levy this tax not simply in the county, but in each individual district of the State. I do not ask that this be thrust upon the people now, but I ask you to give us this as an experiment, and I believe its results will be so beneficial to Alabama, that the prospect just now spoken of will be possible of realization.

MR. SANFORD (Montgomery)‑If the schools were open from January to January for the benefit of the impecunious people, would they be able to avail themselves of the opportunity?

MR. GRAHAM ‑ Unfortunately in many instances they would not be, but that does not argue that we should close the schools from January to January and keep out those who could or would go. Now I move to table the amendment proposed by the minority report.

THE PRESIDENT‑ The question is upon the motion to table the amendment offered by the minority of the committee to Section 12.

MR. ASHCRAFT‑ And upon that I demand the ayes and noes.

The call was sustained.

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

AYES

Messrs. President,

Carmichael, of Colbert,

Ferguson,

Altman,

Carmichael, of Coffee,

Fitts,

Bartlett,

Chapman,

Foster,

Beavers,

Cobb,

Freeman,

Beddow,

Cofer,

Gilmore,

Bethune,

Coleman, of Greene,

Glover,

Boone,

Cunningham,

Graham, of Montgomery,

Brooks,

Dent,

Graham, of Talladega,

Browne,

Eley,

Grant,

Burnett,

Eyster,

Greer, of Calhoun,

Byars,

Espy,

Greer, of Perry,


4310                  

OFFICIAL PROCEEDINGS

Handley,

Maxwell,

Rogers (Lowndes),

Harrison,

Merrill,

Samford,

Henderson,

Miller (Wilcox),

Sanford,

Hinson,

Mulkey,

Searcy,

Hood,

Murphree,

Selheimer,

Howell,

NeSmith,

Sentell,

Howze,

Norman,

Sloan,

Inge,

Norwood,

Smith (Mobile),

Jackson,

O'Neal (Lauderdale),

Smith, Mac. A.,

Jenkins,

O'Neill (Jefferson),

Spears,

Jones, of Wilcox,

Palmer,

Tayloe,

Jones, of Montgomery,

Parker (Cullman),

Vaughan,

Kirk,

Parker (Elmore),

Waddell,

Knight,

Phillips,

Walker,

Kyle,

 

Pillans,

Lomax.

Pitts,

White.

Lowe (Jefferson),

Proctor,

Whiteside,

McMillan (Baldwin),

Reese,

Williams (Barbour),

Martin,

Reynolds (Chilton),

Winn,

TOTAL‑90

NOES

Almon,

Heflin, of Chambers,

O'Rear,

Ashcraft,

Heflin, of Randolph,

Pettus,

Banks,

Hodges,

Sanders,

Barefield.

Jones, of Bibb,

Smith, Morgan M.,

Blackwell,

Locklin,

Spragins,

Bulger,

Long (Walker),

Thompson,

Burns,

Lowe (Lawrence),

Weakley,

Cornwall,

Macdonald,

Wilson (Clarke),

Davis, of Etowah,

Malone,

Wilson (Washington),

Foshee,

Moody,

Grayson,

Opp,

TOTAL‑31

ABSENT OR NOT VOTING

Cardon,

Kirkland,

Robinson,

Carnathon,

Ledbetter,

Rogers (Sumter),

Case,

Leigh,

Sollie,

Coleman, of Walker,

Long (Butler),

Sorrell,

Craig,

McMillan (Wilcox),

Stewart,

Davis, of DeKalb,

Miller (Marengo),

Studdard,

DeGraffenreid,

Morrisette,

Weatherly,

Duke,

Oates,

Willet,

Fletcher,

Pearce,

Williams (Marengo),

Haley,

Porter,

Williams (Elmore),

Jones, of Hale,

Renfro,

King,

Reynolds(Henry),


4311

CONSTITUTIONAL CONVENTION, 1901

So the amendment was laid upon the table .

MR. COBB‑‑‑I offer an amendment.

THE PRESIDENT‑ The chairman of the committee has an amendment which the chair will entertain and will recognize the gentleman from Macon later.

MR. GRAHAM (Talladega)‑I have an amendment just suggested of taxes that can be levied for roads, bridges, etc., I put amount of taxes that can be levied for roads, bridges, etc. I put in the same thing that is in the article on taxation, to relieve it, of ambiguity.

The amendment was read as follows:

Amend Section 12 in line nine after the figures "1875" by adding the following: "For which special county taxes not exceeding one-quarter of one per cent. may be levied and collected."

THE PRESIDENT ‑ The chairman of the Committee on Education asks unanimous consent to accept that amendment.

The consent was given.

MR. GRAHAM (Talladega)‑One other point. A few days ago the towns of New Decatur, Decatur and Cullman, in the article on municipal corporations put a three tenths of one per cent.  for school purposes, and they ask to offer this amendment, which the committee will unanimously accept and asks that the Convention do the same thing.

The amendment was read as follows:

Amend Section 12 by adding at the end of line thirteen the following words, namely

"And provided that the provisions of this section shall not apply to the cities of Decatur, New Decatur and Cullman."

THE PRESIDENT‑ The gentleman asks unanimous consent to accept the amendment.

The consent was given.

MR. GRAHAM‑I do this because they have already put a tax of three-tenths of one per cent. on themselves, and I do not think we ought to put any more on them. I would not be in favor of accepting it but for that.

MR. COBB‑‑I have an amendment.

The amendment was read as follows:

Amend Section 12 by adding at the close the following: "And provided, further, that the legislature may authorize the levying


4312                                                                  

OFFICIAL PROCEEDINGS

of said tax within the municipalities in said county, when no tax has been levied in the county for this purpose; provided the levy of the same be authorized by a three-fifths vote of the qualified voters within such territorial limits as above provided."

Mr. Cobb was recognized.

THE PRESIDENT‑ Does the gentleman from Macon yield to the gentleman from Tuscaloosa to offer an amendment to the amendment.

MR. COBB‑ Yes, sir.

MR. FITTS‑I offer this amendment.

The amendment was read as follows:

Amend Section 12 as follows: "Between lines five and six insert the following : 'And at such special election every single woman over the age of twenty-one years, and owning in her own right one thousand dollars worth of real estate, as shown by the assessment roll of the county shall be entitled to vote, which vote she may cast by a sealed ballot in writing to be delivered to the elections managers at the place and within the hours fixed for the holding of the election'."

MR. COBB-I am not advocating that last amendment, but as to my amendment, I do not care to discuss it at any length, but if the policy as marked out by this section is adopted it occurs to  me that it might be well to provide that where certain counties do not levy this tax, that municipalities be allowed to do it by act of the legislature and by regular vote, as provided for in the amendment, and it is also suggested to me that it might be well to put in there the municipalities and school district.  (There were expressions of dissent) I do not add that.  I merely threw it out by way of suggestion made to me, but the municipalities should have the power, if the counties have it.  If the policy is to have this special taxation for school purposes, then there are many municipalities throughout the State of Alabama that might well desire to have this power conferred upon them, and hence I offer this amendment.

I move to lay the amendment of the gentleman from Tuscaloosa---

MR. FITTS‑‑‑I would like to have a word on it.

MR. LONG (Walker)‑This woman's suffrage has been discussed here until it has exhausted all the members, and disgusted the people of the State, and I move to lay that amendment on the table.


4313

CONSTITUTIONAL CONVENTION, 1901

MR. FITTS‑‑I would like to have a word to say about it.  (Applause.) You just want to rob the women without a word being said in their behalf.

THE PRESIDENT‑‑‑ The delegate from Tuscaloosa is not in order. It is not debatable.

Upon a vote being taken the amendment was tabled.

MR. GRAHAM (Talladega)‑I more the adoption of the amendment offered by the gentleman from Macon.

MR. COLEMAN (Greene)‑I have an amendment to offer to it.

The amendment was read as follows: "Amend the amendment of the delegate from Macon by adding the following: `Provided. that the funds raised by such taxation shall be distributed for the benefit of the school children of the county.' "

MR. COBB‑I move to lay that amendment on the table.

MR. COLEMAN–I have not yielded the floor.

MR. COBB‑I do not mean to cut him off.

MR. COLEMAN‑ The very argument made lay the distinguished gentleman from Jefferson, and by the Chairman of this Committee, shows the injustice of any such provision without the amendment. There are municipalities in Alabama where the wealth of the remainder of the county is concentrated and you will cut off all these poor children of the county from the benefit of such taxation if you confine the appropriations to the children of the municipalities. I say if you are going to raise money by taxation for schools let the children, those from the County, get the benefit of it, who are not able to educate themselves, or to be educated by their parents. Let them get the benefit of it. You are bringing up the same evil which was so ably discussed here of alloying the rich to educate themselves, and depriving the poor, those who are entitled to the benefit, and who ought to be educated, from the benefit of such taxation, and it is wrong in principle and the amendment ought to be adopted.

MR. COBB ‑If I understand his amendment it means that the taxes raised in municipalities shall be distributed over the whole county. That manifestly is unfair.

MR. COLEMAN ‑May I ask you a question? What would you do if the city of Birmingham, and the cite twelve miles below it, where the wealth is concentrated, and the poor children out in the rural districts are not able to educate themselves?

MR. COBB‑ The county has an opportunity of voting on this. My amendment does not contemplate the levying and raising


4314                  

OFFICIAL PROCEEDINGS

of any taxes in any municipalities, where the county acts. Now the preference is given to the county. The whole county may raise this special tax if they desire to do it. Wherever they refuse to do it, or do not want to do it, or neglect to do it, then and of these municipalities afterwards, if they were to decide that they wanted to act, have an opportunity to come in and get the benefit of a part of the funds raised in the cities?

MR. GREER (Calhoun) ‑Well, after the cities have once acted, would the counties afterwards, were to decide that they wanted to act, have an opportunity to come in and get the benefit of a part of the funds raised in the cities?

MR. COBB‑I judge that that could be regulated largely by legislative enactment, but if afterwards the county acted, it would nullify the action of the municipality.

MR. COLEMAN‑ How could it nullify it?

MR. SPEARS‑ Take the county of Jefferson, and suppose the whole county acts, and the city of Birmingham acts in conjunction with them, and they decline' to levy the tax; then the city of Birmingham comes along and acts for itself, would the city of Birmingham, acting in conjunction with the county, defeat the right of the county to levy in the first place, and then fall back on its right to levy in the second place?

MR. COBB‑ Possibly so. But I am not apprehensive about that matter. I think it is hardly to be presumed that such a municipality as the city of Birmingham would pursue such a selfish course as that. I do not think that is hardly reasonable, and, as suggested to me, if the county refuses to act, then it could not have another vote, as I understand it, within four years.

MR. GRAHAM (Talladega)‑I desire to make a correction.  At one time we had that four years, but we substituted instead, "the time which," so the election when held would prescribe the time. I call attention to the error.

MR. COBB‑ This was merely as suggested to me. I have not kept up with the course of the debate on this point. But be that its it may, I think I am right in the assertion that the adoption of my amendment would not interfere in any particular with the powers of the counties to act at any time at which they are authorized to act under the constitutional provision in this regard.

MR. HARRISON (Lee)‑‑If you will read the first part of this Section 12, you will see whenever one of these elections is ordered the tine is submitted to the people when it shall go into effect. Now, under your amendment, if the county has not acted, you allow the municipality to violate this act and make this proviso; they can fix it, say, for ten years, and then where would the poor county districts be, if they wanted to add them afterwards?


4315

CONSTITUTIONAL CONVENTION, 1901

MR. COBB‑ My amendment provides that the Legislature of the State may first authorize these municipalities to act, and the act of the Legislature would he so framed as to meet these questions presented here by the various gentlemen.

MR. HARRISON‑ This very section authorizes these people voting and fixing the time, which it shall continue, and the purposes thereof shall have been first submitted to the rote of the qualified electors.

MR. COBB‑ What section are you reading from.

MR. HARRISON‑ Section 12, on lines three and four.

MR. COBB‑ If the gentleman from Lee will suggest an amendment that will carry out his views in that matter I will accept it.

MR. HARRISON‑ I have no amendment, but I would like to make a motion when you get through.

MR. COBB‑I do not hear the gentleman.

MR. HARRISON‑ If the gentleman will yield to me, I will make a motion.

MR. COBB‑ Well, I have no objection.

MR. HARRISON‑I move to lay the amendment and the amendment to it on the table. (Applause).

MR. COBB‑ Mr. Chairman. I do not think that is exactly fair.  The gentleman should be fair to me, when I was trying to be fair to him. But still, I have no objection. If they want it to go on the table I am willing.

THE PRESIDENT ‑The gentleman from Lee moves that the amendment offered by the gentleman from Greene, which is an amendment to the amendment offered by the gentleman from Macon, be laid upon the table.

MR. COBB‑I ask for a division of the question.

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

Upon a vote being taken the amendment was tabled.

THE PRESIDENT ‑The next question is the amendment offered by the gentleman from Macon.

Upon a vote being taken the amendment was tabled.

MR. GRAHAM (Talladega)‑I move the previous question upon Section 12 as amended.

The main question was ordered.


4316                  

OFFICIAL PROCEEDINGS

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

The call was not sustained.

MR. WHITESIDE‑I move to lay Section 1? upon the table.

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

The call was sustained.

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

AYES.

Altman,

Foster,

Phillips,

Bartlett,

Freeman,

Pitts,

Beavers,

Harrison,

Proctor,

Bethune,

Henderson,

Samford,

Burns,

Hinson,

Searcy,

Byars,

Howze,

Spears,

Carmichael, of Coffee,

Inge,

Studdard,

Chapman,

Knight,

Tayloe.

Cobb,

Macdonald,

Vaughan,

Cofer,

Martin,

Walker,

Fitts,

Moody,

Whiteside,

Foshee,

Murphree,

Williams, of Barbour,

Total‑36.

NOES.

Messrs. President,

Graham, of Montgomery,

Lowe, of Jefferson,

Almon.

Graham, of Talladega,

McMillan (Baldwin),

Ashcraft,

Grant,

Malone,

Banks,

Grayson,

Maxwell,

Barefield

Greer, of Calhoun,

Merrill,

Beddow,

Greer, of Perry,

Miller, of Wilcox,

Blackwell,

Handley,

Mulkev,

Boone,

Heflin, of Chambers,

Nesmith,

Brooks.

Heflin, of Randolph,

Norman,

Browne,

Hodges,

Norwood,

Bulger,

Hood,

O'Neal, of Lauderdale,

Burnett,

Howell,

O'Neill (Jefferson),

Carmichael, of Colbert,

Jackson,

Opp,

Coleman, of Greene,

Jenkins,

O'Rear,

Davis, of Etowah.

Jones, of Bibb,

Parker, of Cullman,

Dent,

Jones, of Wilcox,

Parker, of Elmore,

Eley,

Kirk,

Pettus,

Espy,

Kyle,

Pillans,

Eyster,

Locklin,

Reese,

Ferguson,

Lomax,

Reynolds, of Chilton,

Gilmore,

Long, of Walker,

Rogers, of Lowndes,

Glover,

Lowe, of Lawrence,

Sanders,


4317

CONSTITUTIONAL CONVENTION, 1901

Selheimer,

Smith, Morgan M.,

Weakley,

Sentell,

Spragins,

White,

Sloan,

Thompson,

Wilson, of Clarke,

Smith, of Mobile,

Waddell,

Wilson, of Washington,

Smith, Mac. A.,

Watts,

Winn.

Total‑81.

PAIRS.

AYES.                                                NOES.

McMillan, of Wilcox,

Palmer,

Carnathon,

Sorrell,

Robinson,

Cunningham,

And the motion to table was lost.

THE PRESIDENT‑ The question recurs upon the adoption of the Section as amended.

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

MR. GRAHAM‑ In view of the fact that we have had a long debate this afternoon, I move that we do now adjourn.

(There were loud expressions of dissent.)                                          

MR. GRAHAM‑I desire to withdraw the motion.

MR. BAREFIELD‑I renew it.

MR. HEFLIN (Chambers)‑I rise to a question of personal privilege. I did the delegate from Russell an injustice this morning in a reply to him for objecting when I wanted my name passed on the roll call for the introduction of ordinances. I was somewhat nettled when the objection was made and retorted that the gentleman wasn’t fit for anything else, or something of the sort. I desire to withdraw the remark. I think I owe it to him. I did not mean it in the serious sense in which he took it, and I owe it to the Convention and to myself to make this statement.

MR. WADDELL‑ The gentleman having withdrawn the re marks, mine are not applicable to it at all, and I heartily withdraw what I said.

Leaves of absence were granted to Mr. Duke for today and to Mr. Haley.

MR. BAREFIELD‑I move that we adjourn.

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CORRECTIONS

In proceedings of seventy-first day, first page, second column, on the report of Committee on Engrossment and Ordinance to


4318                  

OFFICIAL PROCEEDINGS

contract for enrollment on animal parchment, the result of the vote should read as follows: "Upon a vote being taken a division was called for, and the motion to table was sustained by a vote of 55 ayes and 26 noes."

In proceedings of seventy-first day, fourth page, fifth column, in remarks of Mr. Browne, strike out word "nor" after the words "be appropriated in answer to question by Mr. Graham (Talladega) and insert "and" in lieu thereof. Also strike out the words : "Say that no more money shall lie invested" and insert in lieu thereof "Admit that the present rate of increase shall not be maintained."

In Resolution No. 296, offered by Mr. Burns, the words "unless they have relieved," were omitted. I Also, in his question to Mr. Handley was left out the words "especially, hotel property.”

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