SEVENTY‑THIRD DAY

---------------

MONTGOMERY, ALA.,

Friday, August 16, 1901

The Convention met pursuant to adjournment, and was called to order by the President, and opened with prayer by Rev. Dr. Andrews as follows:

O Lord, our Heavenly, Father, we thank 'Thee that we are alive and are here to meet the responsibilities and to face the duties of another day. We pause ere we begin our work and look unto Thee from whence cometh all of our help, praying that Thou wouldst strengthen us for the duties that lie before us, and that we may be enabled to accomplish all that Thou wouldst have us do. We thank Thee for Thy help in the past, for Thy mercies which have been unfailing, and for Thy goodness which has followed us all the days of our lives. We have seen the end of days and years, but of God’s goodness and mercy we have seen no end. We are here today, our Father, as living monuments to Thy mercy and love. We pray Thy blessings upon us and that into our hearts may come that peace which passeth all understanding, that we may have clear judgments and that we may do the work that Thou hast assigned to us in a manner pleasing to Thee. We pray Thy blessings upon this Convention, and we thank Thee that the health of Thy servants has been dear in Thy sight. We pray that Thou wilt be with them and that the wrok they may do will redound to the good of all the people. Bless them today, give each one strength and wisdom and may the work done, O Lord, be such as will he acceptable to Thee, and that will accomplish good to our people, Bless any who are in distress; bless any who may be suffering with the severity of the elements. May the Lord bless


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CONSTITUTIONAL CONVENTION, 1901

all of our people along the storm‑ stricken coast, and grant, our Father, that Thy blessings may rest upon them, and that no harm may befall them. Bless us today and lead us through all of our future life and when our work here is ended, in Heaven, in the home of the good and the pure, save us, we pray Thee, through Christ, our Redeemer. Amen.

Upon a call of the roll 75 delegates responded to their names.

MR. PARKER (Cullman)‑ I move the call of the roll of the House and that absent members be sent for.

THE PRESIDENT–It is moved that we have a call of the roll of the House and that the sergeant-at-arms be instructed to send for absent members.

The motion was carried, and the call of the House proceeded.

The absent members were summoned.

THE PRESIDENT‑ It now appears that there are 92 delegates and a quorum.

The report of the Committee on the Journal was read, stating that the Journal for the seventy-second day had been examined, approved and adopted.

MR.  WHITE‑ I desire to make this statement to the Convention.  The Committee on Order Consistency and Harmony of the whole Constitution is being very much delayed by printing To give you one instance, the Article on Suffrage was paced in the hands of the printer on the 9th. We have not yet received that article. We have been urging it, the clerk of the Convention has been urging it, and the Committee on Printing and Incidental Expenses volunteered their services to hurry it up, but it seems we cannot have it done. The sub-committees are entirely up with their work and have been since last week, and if their continues, it is necessarily going to delay this Convention a week at least, after it has finished all of its other duties. I call the attention of the Convention to it, in order that it may take such steps as it seems proper to remedy this matter.

MR. FITTS‑I move that the public printer he brought before the bar of the House to give such excuse as he can before this august body, as to the delay he is forcing upon this entire Convention.

THE PRESIDENT–It seems to the Chair that the motion would he out of order.

MR. VAUGHAN‑I move that the article on Judiciary be taken from the table and he put upon its passage.


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OFFICIAL PROCEEDINGS

MR. HEFLIN‑I make the point of order that it is out of order.

MR. COLEMAN (Greene)‑Is that in order until we call the roll ?

MR. HEFLIN‑I call for the regular order.

THE PRESIDENT ‑The motion may be entered, but it will not be in order at this time for consideration, as a motion to take from the table is not a motion that has any privilege, and therefore would not displace the regular order.

The Secretary will call the roll of delegates for the introduction of ordinances.

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

MR. COLEMAN‑I insist upon the call of the roll this morning. I want to introduce a resolution.

MR. BEDDOW‑I will not insist upon it if there is objection.

Mr. Winn yielded to Mr. Coleman of Greene.

MR. COLEMAN (Greene)‑I wish to introduce a short resolution to be referred to the Committee on Rules, which I think will meet the motion just made.

Resolution No. 304, by Mr. Coleman of Greene was read as follows:

"Resolved. "That the article on Judiciary may be taken from the table; and when taken from the table, Section 28 thereof may be amended or revised or stricken out."

Referred to the Committee on Rules.

Leaves of absence were granted as follows:

To Mr. Cardon for today and Monday ; indefinite leave to Mr. Haley on account of sickness; to Mr. Reynolds of Henry for today and tomorrow on account of sickness in family: to Mr. Espy for today and tomorrow on account of sickness; indefinite leave to Mr. Kirkland on account of sickness in his family.

Mr. Burns offered the following resolution: "Resolved that the expenses of this Convention should be reduced and that a recess for ten days without any pay except mileage should be taken in order that the Committee on Harmony may make complete report."

Referred to the Committee on Rules.


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CONSTITUTIONAL CONVENTION, 1901

MR. HOOD‑I move that the further call of the roll be dispensed with.

Upon a vote being taken,. a division was called for, and by a  vote of 39 ayes and 38 noes, the Convention refused to suspend the rules.

Mr. Cofer sent up the following resolution:

Ordinance No. 456 by Mr. Cofer:

An ordinance to be entitled an ordinance to authorize and require the Governor, State Auditor and State Treasurer to set apart a certain sum annually out of the funds of the State for the purpose of paying the bonded indebtedness of the State of Alabama.

Be it ordained by the people of Alabama in Convention assembled, that after the ratification of this Constitution the Governor, Auditor and Treasurer of the State be authorized and directed to set apart the sum of not less than five thousand dollars ($5,000) and as much more as they shall deem prudent annually from the moneys in the State Treasury for the purpose of paying off and discharging the bonded indebtedness of the State, and calling in such bonds as they may deem advisable.

Referred to Committee on Taxation.

Mr. Lomax offered the following resolution:

Resolution 306 by Mr. Lomax:

Resolved, That Ordinance 429 in reference to quadrennial sessions of the Legislature be and the same is hereby withdrawn  from the Committee on Legislative Department and that the said ordinance with the views of the minority of the committee thereon be printed and placed on the calendar.

Referred to Committee on Rules.

Mr. Sorrell offered the following petition, which was referred without reading:

To the Constitutional Convention, Montgomery, Ala.:

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


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OFFICIAL PROCEEDINGS

Rockford, July 23, 1901.

J. W. Batson, attorney; E. C. Batson, merchant; J. S. Coleman, jeweler; J. W. Brooks, editor; J. K. McEwer, merchant; S. M. Suttle, clerk; J. Dabson, farmer; T. W. Johnson; A. D. Bentley, merchant; W. H. Bentley, farmer; J. Jones, M.D.; T. B. Reidy, J. P.; D. L. McAllister & Sons, machinists; A. L. Bridges, farmer; C. C. Denson, farmer; J. A. Crawford, Judge of Probate; J. T.  Cason, merchant; C. C. McManus, merchant; J. S. Kelly, farmer; G. W. Batson, merchant; W. F. Johnson, Circuit Clerk; J. C. Atkinson, farmer; J. F. Johnson, farmer; M. L. Lauson; A. D. Crawford; O. C. McCain, County Treasurer; T. P. Pennington, ex-County Supt. Education; T. S. McDonald, merchant; Geo. McDonald; A. L. Cordon, farmer; J. A. Smith, farmer; W. T. While, M. D.

Rockford, Coosa County, Ala.

This list could be extended to any length, had I been able to see more people   All whom I presented to, signed it.

I can safely say that there is not fifty men in the county who does not oppose this “free pass evil.”

Yours respectfully,

John W. Batson.

Referred to Committee on Corporations.

MR. SMITH (Mobile)– I move to make the motion of the gentleman from Dallas, to take the Judiciary report from the table, the special order for 11 o’clock today.

MR PETTUS– I second the motion, and on that I ask the ayes and noes.

MR. COLEMAN– I suppose that is open for discussion.

THE PRESIDENT– The Chair will hear from the gentleman from Greene.

MR. COLEMAN– MR. President, there was a resolution introduced this morning which would require but a few moments for the Committee on Rules to act, I will read it again that you may understand it—

MR. SMITH (Mobile) – I rise to a point of order. The resolution offered by the gentleman this morning is not germane to this discussion.

MR. COLEMAN– I insist that it is germane. It is part of my argument why it should not be set for 11 o’clock–

THE PRESIDENT– The Chair would be inclined to hold that the gentleman in opposing an early setting of the considera-


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CONSTITUTIONAL CONVENTION, 1901

tion of this motion might give his reason in the course of his argument that another time would be better and would be more just to the other side, incidentally as a part of his argument.

MR. COLEMAN ‑The resolution introduced reads this way: That the article on Judiciary may be taken from the table, that Section 28, that is the section regulating the selection of Solicitors may be amended or revised or stricken out, just as the Convention sees proper.

Now if you take that article up from the table without this rule, we will undergo the same delay and controversy that transpired here the other day upon the floor, but if the Committee should see proper to report this rule, then when it is taken from the table—

MR. PETTUS‑‑‑I rise to a point of order. A motion to postpone the consideration to a time certain is not debatable under parliamentary authority.

THE PRESIDENT‑‑ The question that the gentleman is speaking to is a motion to make the consideration of the motion a special order.

MR. PETTUS‑ The gentleman is making a motion to postpone to a time certain and it is not debatable.

THE PRESIDENT– The motion seems to be to advance its hearing instead of postponing it. Under the regular order it would probably be reached during the next session of some other Convention. They have not reached miscellaneous business during this Convention and this is a motion to advance the hearing. It seems to the Chair the gentleman might be heard briefly on both sides of the proposition.

MR. COLEMAN– I do not feel that I can be heard at all. I wish to call attention to the fact that if the Committee reports this rule and it is adopted, then that question will come before this Convention subject to its control and action without the delay incident to parliamentary rules, and the rules we have adopted, and that is all that is desired, that the question may be fairly considered, not hampered by any rule of this Convention, and it does seem to me if anybody wants to meet the question upon its merits, there can be no objection to that rule. I therefore insist, Mr. President, that that motion is not adopted unless you defer it longer, say until 4 o’clock this evening, or sometime when the Committee on Rules may meet and determine what is best to be done with the resolution referred to them. I would have no objection whatever if it was delayed until 4 o’clock this evening, so that the Committee may have time to meet, and if they report favorably, the whole question is then before you on its merits. I therefore move an amendment that it be deferred until 4 o’clock this afternoon.


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OFFICIAL PROCEEDINGS

THE PRESIDENT ‑It is moved to amend by setting this matter as special order for 4 o'clock this afternoon, in stead of 11 o'clock this morning.

MR. SMITH (Mobile)– This resolution that the gentleman has presented, and that he now claims an opportunity to be heard upon is only one of seven resolutions that have been presented with the same view and with the same purpose. They claim that it is not fair that this thing should be taken up within a couple of hours, and heard that he just wants five more hours, and yet he has has five hours on one such attempt at parliamentary tactics, and five on another, and more than five on another, until so far from its being, apparent that those who are opposed to him are indulging in procrastination, it is perfectly apparent that not only has the gentlemen undertaken to sacrifice the whole ordinance for the purpose of enforcing his individual views upon the Convention, but it is desired to abolish the rules, and to proceed in line with his particular wishes, in derogation of the method of procedure that has been deemed sufficient and proper in all of the important matters if this Convention. When he laid this article on the table, he did it under a speech, in which he positively assured this Convention that there would be no embarrassment whatever in taking that article from the table and when it was taken from the table under parliamentary rules, it would be subject to this amendment, which he seems to introduce a special rule to accomplish. Now, Mr. President, what is the proposition. Under the rules of this Convention, that article cannot be amended, when it is put upon its passage. To suspend those rules, requires a two-thirds vote of the Convention. The gentleman now proposes to introduce a resolution and asks the Rules Committee to declare that rule is not operative and effective in this particular instance. I am not much of a parliamentarian, but it seems to me, Mr. President that the Rules Committee has no more right to declare that a rule shall be suspended, by a majority vote, than has any other committee or small number of this Convention. If the Rules Committee were to report a resolution that this article might be taken up and amended, that would simply be a report, recommending a suspension of the rules, and then to adopt that report I take it, unless the Chair ruled that they might do by indirection what could not possibly be done by direction, they would have to suspend the rules by a two-thirds majority.

MR. COLEMAN–  May I ask the gentleman a question? This Convention adopted the rules?

MR. SMITH— It did.

MR. COLEMAN– And can’t it change them?

MR. SMITH– They were adopted for the method of procedure. and not to meet the behests of any one individual–


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CONSTITUTIONAL CONVENTION,  1901

MR. COLEMAN‑ Answer my question.

MR. SMITH (Mobile)‑I am answering your question and will not be cut off in my answer when you have part of it am not the whole.   

THE PRESIDENT‑ The gentleman does not consent to yield.

MR. SMITH (Mobile)‑ Not to stop. This Convention can suspend the rules, for the benefit of the Convention, and in the interest of the people, and the Convention can revoke the roles but the Convention cannot simply suspend the rules by a majority vote, when it is declared by its rule that it shall only be done by a two-thirds vote. I submit that there is no excuse for this further effort at delay by parliamentary tactics. I submit that the whole procedure of laying this on the table is not in the interest of the people generally, and is not so, considered, and I submit that this article ought to be brought up as a special order at 11 o'clock and I hope that the Convention will vote down the amendment.

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

The call was sustained.

THE PRESIDENT‑ The gentleman from Mobile moves that the consideration of the motion to take from the table, the article reported by the Committee on Judiciary be made the special order for 1 l o'clock today. Thereupon the gentleman from Greene moves to amend by making its consideration the special order for 4 o'clock this afternoon. The question will be first upon the amendment offered by the gentleman from Greene. The ayes and noes have been called for and the call sustained. As many as favor the adoption of the amendment will say awe and those who oppose no, as their names are called.

MR. PETTUS‑I understand there was a motion to table the amendment.

THE PRESIDENT‑ The Chair heard no such motion.

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

AYES.

Messrs. President,

Carmichael, of Colbert

Foster.

Almon,

Carmichael, of Coffee,

Glover,

Barefield,

Cobb,

Grant.

Beavers,

Coleman, of Greene,

Grayson,

Brooks,

Duke,

Greer, of Calhoun,

Browne,

Eley,

Greer, of Perry,

Burnett,

Eyster,

Handley,

Burns,

Ferguson,

Harrison,


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OFFICIAL PROCEEDINGS

Heflin, of Chambers,

Lomax,

Reese,

Heflin, of Randolph,

Long (Walker),

Rogers (Lowndes),

Hinson,

Lowe (Jefferson),

Sanford,

Howze,

Macdonald,

Searcy,

Inge,

Martin,

Selheimer,

Jackson,

Nowood,

Sentell,

Jenkins,

O’Neal (Lauderdale),

Smith, Morgan M.,

Jones, of Montgomery,

O’Neill (Jefferson),

Williams (Barbour),

Jones, of Wilcox,

Opp,

Wilson (Clarke),

Kirk,

O’Rear,

Locklin,

Parker (Cullman),

Total– 55

NOES.

Altman,

Graham, of Talladega,

Pillans,

Ashcraft,

Hodges,

Pitts,

Banks,

Hood,

Reynolds (Chilton),

Beddow,

Howell,

Sanders,

Bethune,

Jones, of Bibb,

Sloan,

Blackwell,

Kyle,

Smith, Mac. A.,

Boone,

Lowe (Lawrence),

Sorrell,

Bulger,

McMillan (Baldwin),

Spears,

Byars,

Malone,

Spragins,

Cofer,

Maxwell,

Stewart,

Cornwall,

Merrill,

Studdard,

Craig,

Miller (Wilcox),

Tayloe,

Cunningham,

Moody,

Thompson,

Davis, of DeKalb,

Murphree,

Vaughan,

Davis, of Etowah,

NeSmith,

Waddell,

Dent,

Norman,

Walker,

Fletcher,

Palmer,

Watts,

Foshee,

Parker (Elmore),

Weakley,

Freeman,

Pettus,

White,

Graham, of Montgomery,

Phillips,

Whiteside,

Total– 60

ABSENT OR NOT VOTING

Bartlett,

Kirkland,

Reynolds (Henry),

Cardon,

Ledbetter,

Robinson,

Case,

Leigh,

Rogers (Sumter),

Espy,

Long (Butler),

Samford,

Gilmore,

Morrisette,

Sollie,

Haley,

Pearce,

Willet.

King,

Renfro,


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CONSTITUTIONAL CONVENTION, 1901

PAIRED.

AYES.                                    NOES.

Carnathon,

Chapman,

deGraffenreid,

Fitts,

Knight,

Miller (Marengo),

Coleman, of Walker,

Mulkey,

Proctor,

Porter,

Williams (Marengo),

Smith (Mobile),

Williams (Elmore),

McMillan (Wilcox).

Wilson (Wash'gton),

Henderson,

Winn,

Jones, of Hale,

Weatherly,

Oates,

So the amendment offered by the gentleman (Mr. Coleman) from Greene was lost.

THE PRESIDENT–  The question will recur upon the original motion made by the gentleman  from Mobile, which is that the consideration of the motion to take the report from the table be made the special order for 11 o'clock this morning.

MR. HEFLIN (Chambers) – Upon that I call for the ayes and noes.

The call was not sustained.

Upon a vote being taken the motion was carried.

THE PRESIDENT‑‑ The Chair will announce that there will be a meeting of the Rules Committee in the Senate Chamber at 10:30 o'clock.

Mr. Pettus took the Chair.

MR. CUNNINGHAM‑ I desire to ask the unanimous consent of the Convention to make a statement on behalf of the Ladies Memorial Association of this city.

Leave was granted.

MR. CUNNINGHAM‑I hold in my hand a little pamphlet which is edited by Mrs. I. M. P. Ockenden which is a history of the Confederate Monument on Capitol Hill. It begins with the inception of the movement to erect upon this hill a monument in memory of the Confederate dead, and ends with the unveiling. It contains the orations delivered on various occasions by some of the best orators of the State of Alabama. The purpose of the Ladies' Memorial Association is to offer this pamphlet to each of the members on this floor, and who may come hereafter, at the very low and insignificant price of 25 cents, and they request that the attention of the Convention be brought to it, in order that every one may have an opportunity to procure copies. I therefore move,


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OFFICIAL PROCEEDINGS

Mr. President, that the Chair appoint two pages to take the names of delegates who are willing to subscribe for this beautiful and splendid book, which is not only a memorial to our Confederate dead, but to the self-sacrificing work of these splendid women.  The price is 25 cents. The purpose, Mr. President, is to erect a monument to the Confederate dead of Alabama in Chicaumauga Park. I sincerely hope that the Convention will adopt it, and that every member will procure a copy.

THE PRESIDENT PRO TEM– The Chair will presume a motion will not be necessary, and will appoint Paul West and Westley Gaston to act.

The special order for this hour is the report of the Committee on Education, Section 13. I recognize the gentleman from Talladega.

MR. GRAHAM (Talladega)–I call for the reading of Section 13.

MR. HEFLIN (Randolph)– I ask unanimous consent to make a report from the Committee on Schedule, Printing and Incidental Expenses.

Leave was granted.

The Secretary read the report as follows:

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

The Committee has audited the accounts hereto attached, and finds that the State of Alabama is indebted to the Ed. C. Fowler Company of Montgomery in the sum of $113.15.

We find that said State is indebted to the Brown Printing Company of Montgomery, Ala., in the sum of $464.45 for printing.

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

All of the above accounts are for printing done, and for articles furnished to the State of Alabama for the use of the Constitutional Convention, and all of the above accounts are itemized as shown by bills hereto attached. Total amount, $582.60, and we recommend the payment of the same, all of which is respectfully submitted.

John T. Heflin

Chairman Committee on Schedule, Printing and Incidental Expenses.


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CONSTITUTIONAL CONVENTION, 1901

MR. HEFLIN‑I move that the report take its usual course, be printed and lie upon the table.

The motion was adopted.

MR. JONES (Montgomery)‑I ask unanimous consent on behalf of the Committee on Executive Department to take up an ordinance and have it referred to the Committee on Printing and Incidental Expenses. It is to reimburse a gentleman who did some work for the Committee. The Ordinance is for the relief of E. L. May.

Unanimous consent was granted.

The Secretary read the ordinance as follows:

Mr. President, the Committee on Executive Department direct me to report the accompanying ordinance for the relief of E. L. May, and to recommend its passage.

Thomas G. Jones. Chairman.

An ordinance for the relief of E. L. May:

Be it ordained by the people of Alabama in Convention assembled, that the sum of $35 be and the same is hereby appropriated to pay E. L. May for his services as clerk for attending the meetings of the Committee on the Executive Department and  transcribing the article on the  Executive Department as finally adopted and reported by the committee.

PRESIDENT PRO TEM‑ The ordinance will be referred as requested.

MR. WATTS ‑Some days ago this Convention laid upon the table, to be taken up at the pleasure of the Convention a proposition of mine that no negro should hold office in this State. I want the Convention to dispose of the matter in some way. and I ask to take it up from the table and to make it a special order for next Tuesday at 11 o'clock.

THE PRESIDENT PRO TEM– Will the gentleman designate the number of his ordinance?

MR. WATTS ‑It is an amendment to the amendment to Section l7 of the report.

Upon a vote being taken the motion was adopted.

.MR. SAUNDERS‑I move that the Rules Committee be recalled, and be not allowed to sit during the morning session.

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

MR. SAUNDERS‑ Upon that I call for the ayes and noes.


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OFFICIAL PROCEEDINGS

The call was not sustained.

THE PRESIDENT PRO TEM‑ The question is on the motion of the gentleman from Limestone who moves that the Committee on Rules be recalled and be not allowed to sit during the morning session and the gentleman from Dallas moves to lay that motion on the table.

Upon a vote being taken, division was called for, and a further vote being taken, there were ayes 39, noes 57, and the motion to table was lost.

PRESIDENT PRO TEM – The question recurs on the motion of the gentleman from Limestone that the Rules Committee be recalled and be not allowed to sit during the morning session of the Convention.

MR. REESE‑ Mr. President, it is possible that this Convention, after having been in session for nearly three months, is going—

MR. SAUNDERS‑I rise to a point of order. The motion is not debatable.

MR. REESE– It is debatable.

PRESIDENT PRO TEM‑ It is the opinion of the Chair that the motion is debatable.

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

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

MR. HOWZE‑ That notice was given that this Committee would meet and the Committee went out for that purpose, and that notice implies unanimous consent of this Convention, and therefore this motion is too late.

PRESIDENT PRO TEM‑ The Chair will hold that it is within the power of the Convention to rescind its action and recall the Committee. The point of order is not well taken.

MR. REESE‑‑I have the floor.

The President returned here and resumed the Chair.

MR. GRAHAM (Talladega)‑I rise to a point of order that the committee has already met and is back, and it is not necessary to consider it any further.

MR. GREER (Calhoun)‑I rise to a point of order.

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


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CONSTITUTIONAL CONVENTION,  1901

MR. GREER‑ It would require a suspension of the rules of this Convention before they could be recalled.

THE PRESIDENT‑ What is the point made by the gentleman from Dallas?

MR. REESE‑I was arguing against the motion to recall the Committee on Rules. I do not think the Convention ought to make an exception against the Committee on Rules.

THE PRESIDENT‑ The understanding of the Chair is that the Committee on Rules may meet any time, and report at any time, so as to transact the business of the Convention.

MR. SMITH (Mobile)‑I desire to ask what disposition the Chair makes of Rule 44: "No committee shall sit during the Convention without special leave."

MR. WILSON (Clarke)‑I submit to connection with subdivision 1 of rule 41. the committee is exempt from that: "Rules, of which the President shall be Chairman, to be composed of nine members, and which shall have the right to report at any time."

MR. HARRISON‑I am instructed by the Committee on Rules to report a substitute for resolution No. 304.

MR. SMITH (Mobile)‑I rise to a point of order.

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

MR. SMITH (Mobile)‑Resolution No. 304 was not before the Committee.

MR. HARRISON‑I report a substitute for resolution No. 304.

MR. SMITH‑I was mistaken in the numbers.

THE PRESIDENT‑ The Secretary will read the report from the Committee on Rules.

The Secretary read as follows:

"Substitute for Resolution No. 304.

"Resolved. 'That when the article on Judiciary is taken from the table it shall be subject to amendment. as though it had never passed to a third reading.

MR. COLEMAN (Greene)‑I move the adoption of that resolution.

THE PRESIDENT ‑ The Secretary will read the original resolution.

The Secretary read as follows:


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OFFICIAL PROCEEDINGS

Resolution No. 304, by Mr. Coleman of Greene:

Resolved, That the article on Judiciary may be taken from the table, and when taken from the table, that Section 20 thereof may be amended, reviewed or stricken out.

Referred to Committee on Rules.

MR. PETTUS– I rise to a point of order. Under the rules of this Convention that resolution is in effect, a suspension of the rules. Under that construction it would require a two-thirds vote of the Convention to suspend the rules. I make the further point of order that it is in effect a revision of the rule No. 57. This resolution was introduced this morning and reported back at once.  There has been no notice that it would be rescinded. I make the point of order that it is out of order and that it must lie on the table for one day.

MR. HEFLIN (Chambers)– I think the gentleman from Greene gave notice.

THE PRESIDENT– What is the rule?

MR. PETTUS– I refer to Rule 57, and I submit this does repeal a specific rule which has been laid down by the Convention, and it is not in order to repeal, adopt a new rule, or suspend the general parliamentary law, which is the law we are acting under.

MR. LOMAX– A report from the Committee on Rules is in order at any time, and the Rule reported by that Committee now is not a revision of any rule of the Convention, but is a report to meet a situation which was not in contemplation at the time of the adoption of the rule by the Committee. No man on that Committee and no man in this Convention, had anticipated that an article after it had been adopted by this Convention would be reconsidered, and laid upon the table.  That situation has arisen, and in order to meet that situation, and to give this Convention an opportunity to dispose of that proposition, which has arisen, without being contemplated by anybody, this rule of the Committee on Rules has been reported. It does not rescind any rule of this Convention, because we had no ruling on the subject. It does not change any rule of this Convention, because we had no rule on that subject.

MR. PETTUS– Does not the gentleman know that we have been acting under the rule for three months nearly, that any article ordered to a third reading, and engrossed, it could not be amended and the purpose is to amend it and suspend the operation of that rule?

MR. LOMAX– We may have been operating under the rule and the article ordered to a third reading could not be amended,


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but we have not been operating under a rule which said that an article after a third reading, and had been passed, afterwards a motion to reconsider trade, that it should not be amended. I am one of those who take the position and I think the position is right, and if an article has been passed by this Convention to its third reading and voted on, and that vote has been reconsidered, that the reconsideration of that vote opened up the whole article to amendment, notwithstanding the fact that there might be a motion for the previous question or a motion to lie upon the table, and for this reason, that a motion for the previous question on a motion to lie upon the table prior to the passage of the article, exhausted itself upon that particular provision of the article, and that after it had been passed, and the Convention reconsidered it, that the Convention had the right to go back to the point of amendment. I do not propose to challenge the decision of the Chair in that regard, although my views were opposed to his, but I say when this Convention finds itself in that shape, where it must either take this article from the table, and attempt to amend it, car adjourn leaving out one of the co‑ordinate branches of this government that the Committee on Rules under the powers given it by the Convention has a right to report a rule which will relieve the Convention from that embarrassment, and that Committee having asserted its right, not undertaking to rescind any rule already made, not undertaking to change any rule that a majority of this Convention can adopt the report and transact its business, up to adjournment.

MR. WATTS‑ Does all you say excuse the Committee—

MR. LOMAX‑ The committee is not asking to be excused.

MR. WATTS‑ Pardon me, until I get my question out: Does all you say excuse the Committee for acting the same day that a resolution is offered, which practically has the effect of changing a rule, when Rule 57 says it shall not be done without one day's notice?

MR. LOMAX‑ All I say is, if the Committee needs excuse, it does excuse the Committee, because it does not change, it does not alter, it does not rescind, any rule of this Convention.

MR. PETTUS‑I submit that the gentleman asked me a question, to which I would like to reply now I have examined the rule. He wants to know what rule of the Convention the report of the Committee rescinds? I submit to the Chair and to the Convention that the effect of that rule if adopted, is to suspend and rescind Rule 57, which provides that a vote cannot be twice reconsidered‑ the vote by which this article was adopted and ordered to a third reading was attempted to be reconsidered and the motion failed and the Chair has correctly held that that motion could not be reconsidered. Now the gentleman comes in with a report


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from the Committee on Rules and attempts to do by indirection what they cannot do directly, and I hold that the Chair has correctly held that they cannot do directly, and I hold that the Chair has correctly held that they cannot by changing the phraseology, suspend Rule 57, and that would be the effect of it, if the resolution were adopted.

MR. BROWNE‑ This matter has already been settled by this Convention. Subdivision 6 of Rule reads as follows:  "Call of the roll in alphabetical order for the introduction of resolutions, memorials, petitions, and ordinances, and their proper reference.” Under that rule the Chair so construed that rule—

THE PRESIDENT‑ What rule?

MR. BROWNE ‑ Subdivision 6 of Rule 22, so as to compel the completion of the roll call before any regular order or special order could come up. It was found to work deleteriously, and the Committee reported an amendment to that rule, changing that rule entirely, as follows: "Resolved that Subdivision 6 of Rule 22 be amended so as to read as follows: "Call of the roll in alphabetical order for the introduction of resolutions, memorials, etc., but if the roll call is not completed by 11 o'clock on any day, the Convention shall at that hour, immediately proceed with the next regular order of business." That settles the question now before the Convention. 'That was an amendment to the rule. Now notice was given, and it did not require a two-thirds vote. Rule 55: "That the rules of the Convention shall not be suspended. Except by a two-thirds vote etc," has no reference whatever to the changing or amending of miles. There has never been a parliamentary body that by any rule was so handicapped that a majority of the body could not change the rules: they are so handicapped that the Convention itself without amending or changing its rules cannot suspend the rules for any particular occasion or purpose, but under all parliamentary laws the rules can be amended or changed. Now we have a rule here that no rule shall be rescinded without one day's notice. It is not necessary, however, to give one day's notice when the proposition is to amend or change a rule or bring in a new rule, but only when a rule is to he rescinded they must have one day's notice. I submit if it was necessary to give one day's notice, this Convention has had more than one day's notice, because the gentleman from Greene. I believe it was, or some member, introduced a rule and referred it to this committee, and the committee reports this as a substitute for that resolution, and the introduction of that resolution was notice. The gentleman from Greene stated the other day when he advocated the laying of this on the table that the rule would be so changed but I contend that Rule 55 has no application because this is not a suspension, but a change of the rule. neither does it come under Rule 57, because the Rules Committee does not pro‑


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pose to rescind any rule, but to amend one. No such point was made, and it is res adjudicate as far as this Convention is concerned, because Subdivision 6 of Rule 22 has already by this Convention been adopted. "This amendment does not suspend the operation of the old rule, but it amends the Rule so as to provide that if the roll call had not been completed at 11 o'clock, then they went to the regular order or any special order without completing the roll call, under Subdivision 6 of Rule 22.

MR. OATES – All parliamentary bodies have a right to change the rules governing their procedure, but only in the manner provided for in those rules. Now, sir, the manner provided for in these rules, it is contended, has not been complied with and it is contended on one side this is a change of rules and denied on the other side. The argument of the delegate who last occupied the floor is not at all to the point that changes have been made, and they have been made without question, but whenever there is any question made against a change of rule or any new rule which has the effect of a change, then it does invite the attention of the Convention to the rules governing changes. Now sir, the delegate from Talladega claimed that there had been ample notice given of this and then said that the delegate from Greene (Mr. Coleman) notified the other day that he was going to do it, but there is no report on the resolution introduced by him this morning. It certainly is, of course, in the power of the majority of the Convention, to make or unmake a rule, as it pleases, but the parliamentary code is that changes of rules are as much governed by the rules which have been adopted in the first instance as any other change, which may be made by the Convention or anything else, any business, that may be made. Now, sir, here is a fair test. I ask the Chair and every delegate on this floor if when this Judiciary Article is taken from the table, can it be amended? Can it, according to the ruling of the Chair? But the other day the Chair held that the Article having been ordered to a third reading and a motion then made to reconsider, which as been laid upon the table, that it was not open to amendment, and consequently the next step was taken by the friends of those who wish to retain the Circuit Solicitor system, and the delegate from Greene moved to lay the whole Article on the table, and that is the way it got on the table. Now, if it were taken from the table, would not the Chair adhere to the able decision glade just the other day that it was not at all amendable? It certainly would, unless it reversed itself. That being true, how can the Committee on Rules bring in a report into this Convention and adopt it today which was not to be done and could not be done under the rules except for that report that is brought in, and that proposed, and proposed this morning.


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THE PRESIDENT‑ The Chair will inquire of the gentleman from Montgomery what is the practice in Congress with reference to changing the rules? Does it require a day's notice?

MR. OATES‑I will state that I was coming to that. I will not evade it. I will answer it.

This is in that attitude; to take that Article from the table in the absence of a rule like this, it cannot be changed, it cannot be amended, under the rules. Then this (whatever you call it) report. if adopted, so changes the rules that it can be amended. Then what is it but a change or a rescission of the rules, or a modification of the rules slow existing, under which it could not be amended, when the object of this is to allow it to be done?

Now, in answer to the question propounded to me by the Chair. The rule of Congress providing for the change of rules, my recollection is requires a days notice and I know that the roles require a two-thirds vote in order to change a rule of the House as affecting any business before it. I recollect when a change was made under that rule with less than two-thirds during the time that Mr. Keifer was Speaker of the House, and it was done for the purpose of unseating Judge Dibble from South Caroline and seating his Republican contestant, and when it was done, it was done over the protest of the Democratic minority, everyone of whom signed a protest and had it spread upon the Journals of the House, as being in violation of the rules and in violation of parliamentary law. There is no dodging it. While if you have got the numbers you have power to change, but if you got a change in contemplation of the rules and in accordance with them, by enabling them to do a thing you cannot do without it.

MR. LOMAX‑ Is it not a fact in the Congress of the United States at the present day, the Committee on Rules, without notice. can report any rule they see fit, and if a majority of that House adopt it, it becomes a rule of the House?

MR. OATES‑‑ Yes sir, that is in accord with Republican precedent. That is their method of doing things. If they have got the numbers, they do it without regard to parliamentary law.

MR. LOMAX–Wasn't it done the last time the Democrats had control of the House? Didn't they substantially adopt Reed's rules?

MR. OATES ‑ Well, not in everything. If I had time I could produce the rules. My recollection is that they did not adopt that rule. My attention is called to the action of this Convention in changing Rule 22 under a resolution which had been introduced and pending some days before action was taken. There is no question about notice there at all.


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MR. HOWZE‑I take the position that this is not an amendment nor a recession of the rules of this house. It gives me an opportunity of bestriding my hobby on one of these rules once more. I think that we have acted too much upon the idea that this is the Congress of the United States or the Legislature of the State of Alabama, which is not a fact. Mr. President, we are nothing more than a deliberate body, and as a deliberative body, we have established our rules and there is not a syllable in these rules which this report rescinds or changes, not one. It is true, Mr. President, that we have been acting somewhat upon the rules of Congress and the Legislature in that we have ordered our articles engrossed and to a third reading, but I want to call the attention of the house to the fact that there is not a rule in this book under which you are acting

MR. HOOD‑ If this resolution reported by the committee be not a rescission of Rule 57, then why the necessity of the resolution?

MR. HOWZE– The resolution, as I understand, and shall attempt to show, is simply an explanation of the rules that is what it is, and nothing more. (Laughter). I stated before I was interrupted that we have been action upon the theory that we were a quasi Congress of the United States, or the Legislature of Alabama, in that we order articles to be engrossed and to a third reading, but there is no rule requiring such action.

The clock struck eleven o'clock.

MR. PETTUS‑I rise to a point of order.  The hour of eleven having arrived, the special order is the motion of the gentleman from Dallas to take from the table the report of the Judiciary Committee and put it on its passage.

MR. LOMAX‑ It cannot displace the report of the Committee on Rules.

THE PRESIDENT‑ In the opinion of the Chair, the report of the the Committee on Rules is a privileged report and will not be displaced by the special order, but the special order will come up immediately after the disposition of the matter now under consideration.

MR. PETTUS‑I would like to ask the Chair as a matter of parliamentary inquiry, if the special order is not a privileged matter and if it can be displaced?

THE PRESIDENT‑ The Convention has under consideration a privilege matter. The Committee on Rules may report at any time, notwithstanding what may be before the Convention.

MR. GRAHAM (Talladega)‑I ask the Chair to read Rule 30 on page 11.


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THE PRESIDENT‑‑ That the matter may be made a special order?

MR. GRAHAM‑ No, sir, but when made a special order it shall take precedence at that hour of any other business except the motion to reconsider. Rule 30 is explicit.

THE PRESIDENT–That, in the opinion of the Chair, means it shall take the precedence of any matter except the report from a privileged committee and the report of that committee can displace any matter. The Chair will overrule the point of order. The gentleman from Jefferson has the floor.

MR. HOWZE– I want to call attention to what I have said to the Convention as to the latter part of Rule 47 in reference to the action of this Convention upon the article before it, "and such article or section shall lie on the table at least one day and until in regular order it shall be taken up for consideration by the Convention." Now, Mr. President, that is what was done with the article on judiciary. It was taken up and considered section by section and then under the custom prevailing here— not a rule—because there is no rule to that effect-it was ordered engrossed and to a third reading and that directly in conflict ‑with Rule 52 which says all articles of the Constitution after their adoption by the Convention shall be engrossed before their delivery to the Committee on Order, etc. That is the rule upon which we are called upon to act and which we did not act upon. I insist that that article, when we ordered it engrossed in the condition in which it was, was nothing more than directing the Clerk of the house to copy it. It did not take away from the house the Privilege of further action upon that article, and I insist that every article in this house, that goes through this house, is subject to the action of this house as to amendment, until the final adoption of that article and the report of the Committee on Order, etc. Mr. President, I am borne out in this statement by the fact that in Rule 53 the report of the Committee on Order, Consistency and Harmony of the Constitution is also amendable. There is also a provision that the articles may be amended after they come back here in their report from that Committee on Order, Consistency and Harmony of the Constitution. I say that this argument in favor of the position I take that these articles are always subject to correction by this house until this final report is made and adopted. Now, there is no rule of this house which puts this article beyond the control of this house in the matter of amendment or otherwise and that rule, that report, brought in by this committee, is simply an explanation of the rules simply stating that this article is still subject to the control of this Convention. It is still subject to amendment of this Convention, and, nothing more.  It does not rescind a single rule. There is not a single rule suspended by it or rescinded by it, and it is nothing more than an ex‑


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planation of the rules of the house, have not placed this article beyond the control of this house, and I insist that it is an explanation of the rule which can be adopted and accepted by this Convention by a majority vote.

THE PRESIDENT‑ The Chair is ready to rule on the point of order.

MR. O'NEAL– I want to call the attention. of the Chair to one matter. I want to call attention to this fact. It is insisted that this is a rescission of the rules of this Convention. Rule 51 says "none of the foregoing rules shall be rescinded without one day's notice." We are not undertaking to defend any rule in the book. We are undertaking to rescind a general parliamentary, rule under which we are acting. Conceding that it is true, that we are undertaking to rescind a. general parliamentary rule. Can any gentleman rise here in his place and say that under general parliamentary law we have no power to rescind a general parliamentary rule except by a two-thirds vote and by one day's notice? This says, "none of the foregoing rules." which are the rules in this report that shall not be rescinded without one day's notice? Now, the rules under which an article can be ordered engrossed and to a third reading, and after that is done, there shall be no amendment, is a general parliamentary rule.

MR. WHITE–  If you are not rescinding or suspending this rule, why do you offer the other?

MR. O'NEAL ‑Because I say this body has a right to change any general parliamentary rule by a majority vote of this Convention.

MR. PETTUS‑ Without notice?

MR. O'NEAL– Without notice, because no notice is required in these rules.

THE PRESIDENT—The Chair has indulged considerable discussion on this point because the Chair is not free from difficulty on the subject. The Chair inquired of the gentleman from Montgomery as to the practice in Congress, and he says they have a similar rule, which requires a days notice to change the rules, and yet in the work which I have. The Constitutional Manual and Digest of Rules and Practice of the House of Representatives," it has been construed that unless the proposition originates with the Rules Committee, a day's notice is not required. This authority lays it down that under the practice, a proposition reported by the Committee on Rules, changing the rules, unless originating with the committee, is not required to lie over for one day. Now, we had up for discussion the other day the question of whether, after this matter has been ordered to a third read‑


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ing, it was open to amendment, and whether it was open to a motion to refer it to a committee for the purpose of amendment. We considered that, not specially with reference to any special rules, but under the general practice in such cases, and all the authorities, some of which were presented by the gentleman from Montgomery himself (Mr. Oates), went to show that such reference to a committee could not be made except where there was a special rule authorizing it, and in Congress he referred us to a special rule which did authorize it and which modified the general rule on this question. So, if there be any rule or regulation that is changed it is not much a rule of this Convention that has been adopted, as it is the general parliamentary practice on this subject. Now, Rule 57 says that none of the foregoing rules shall be rescinded, etc. The rule which is reported by the Committee on Rules is not an amendment of any rule which we have, and does not purport on its face to be an amendment. It is not a rescission of any rule that we have, and it does not purport to be a rescission of any rule that we have, but it is a new rule, which is brought in to meet some special exigency, or emergency, in the proceedings of the Convention. For instance, suppose that the Convention has under consideration a matter of debate. This Convention remembers that when the report of the Committee on Suffrage was taken up, the roles limited debate to ten minutes, yet during the session of the Convention, the Committee on Rules to meet a particular emergency, retired and brought in and reported a new rule, regulating the debate upon that question. This, the Chair understands, is the practice in all deliberative bodies, the Committee on Rules being authorized to report at any tune and to bring in new rules, to meet new situations, that did not confront the Convention when the rules were framed, and this is at special rule, a new rule, brought in to meet an emergency, and it does not seem to the Chair that it is an amendment or a rescission of any of our standing rules. It is not so intended, and it does not so appear on its face.  Of course, if the Convention does not care to adopt the rule that is a matter for the Convention. It may be rejected by a majority vote, just as it may be adopted by a majority vote. The Chair will overrule the point of order.

MR. SMITH (Mobile)‑If I understand, the question is upon the adoption of the rule.

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

MR. WILLIAMS (Elmore)‑ I desire to have the resolution read.

The Secretary again read the resolution.

MR. SMITH (Mobile)‑I desire to oppose the adoption of the rule because, in the first place, I do not think, upon its merits, it


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should be adopted. But in the second place, I desire, on account of my connection with the Rules Committee, to go upon record in this matter. The rules that we have, existed for the enactment of ordinances, have now been in force for nearly three months.  The most important measures have passed and been acted upon under those rules. Amendments which certain gentlemen thought of vital interest to the people, have been ruled out and debarred, the Chair holding that after an Article had once been adopted by the Convention it could not, by a new ordinance or otherwise, he replaced by a contrary proposition, that merely being an indirect way of amending the Articles. So that we have faced emergencies involving the greatest interests of the people and of the State, under rules made for the consideration of these questions, and there has been no thought by the Rules Committee or anybody else of making a new rule to meet any special individual emergency. In this particular instance, the committee has not brought in a substitute, providing as the gentleman from Montgomery has said, for the cassus omissus in the rules. It is  not provided that when the Convention finds itself in this dilemma it may take the Article from the table and amend. it. The Committee has not trusted itself to set aside wisely adjusted rules for the benefit of the people and the State in general, but it has carefully confined itself to this proposed rule, upon this one controverted question, on the Article on Judiciary, and if tomorrow another Article were laid on the table, this house, under the wisdom of this Rules Committee, would be as helpless to bring it, from the table as it was before this Rules Committee sat, passed and recommended this special ordinance to apply this special case.  Now it seems to me that this is putting us in a false position. Here is a Rules Committee with fifteen ordinances before it, some one day old and some a week old. It has not thought the business of the Convention laid before it over a week ago of sufficient importance to take it up and consider it, and yet when this controversy arises the rules of the Committee, sitting without leave of the house and while the house is in the very act of enforcing them to obey the order, rushes through and reports this particular rule upon this particular measure, and leaves unenacted upon the other fifteen resolutions that have been before the Committee for some time. Now it seems to me that such action as that is partisan.  It seems to me in the light of the history of the debate on this question that it is extremely a partisal action. It seems to me, Mr. President, that it gives an ugly color to the proceedings when we consider the fact that this Rules Committee consists of nine members, and that seven members of that Committee are arrayed on one side of the question and only two upon the other. It seems to me that the Committee has therefore put itself in a position of trying to force a partisan question by report‑


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ing a rule adopted in haste, and under circumstances which I submit it would not have reported any other resolution, and has not reported any other resolution, and I do protest not only against the method that has prevailed heretofore in the discussion of this matter, but I do solemnly protest against the proceedings by which this Committee has brought in this rule under the circumstances under which it has been brought in. In the majority of instances I have acted as acting Chairman of the Convention, the Chairman being usually engaged in presiding over the Convention I desire not only to oppose the adoption of the report but to go on record as not being a participant in the methods by which the resolution is offered.

MR. LOWE (Jefferson)‑ The letter killeth but the spirit giveth life."  The gentleman has protested against the partisan action of the Rules Committee.  I am gratified that at one stage of these proceedings I am able to be in accord with the action of the Rules Committee. What has the Rules Committee done? It has offered this Convention an opportunity to vote upon a vexed question which has disturbed your deliberations for many days.  Compare the action of the Rules Committee with the action of the other committee, of which the distinguished delegate front Mobile has the honor to be Chairman.  That Committee saw fit to pigeon‑hole an ordinance, thereby denying the delegate on this floor an opportunity to express themselves upon it, and he complains as the gored jay might wince, when the Rules Committee comes and proposes to this Convention to permit them an opportunity to express their preference upon the question which has held to this Convention for several days. I am astonished that one with so great an intellect, and so accustomed to forensic debate, should have fallen into the error of impeaching the action of the Rules Committee, thereby bringing it in contrast with the action of his own Committee before the delegates of this Convention. Mr. President, it might better have suited the gentleman to have denied the delegates here an opportunity to vote. Can it ever be unfair to give the majority opportunity to express themselves? For what other purpose is the Rules Committee continued? The Rules Committee has performed their ordinary functions when they reported the ordinary rules of this Convention.  For what purpose are they continued in office, except to meet an emergency like this. They have offered for days and days their merely technical defences against the assaults of the majority of this Convention. How will their justify themselves before the people of the State if they have to rely upon the fact of resorting to dilatory tactics hiding behind mere technical defences they have denied this Convention the right to express itself. Can this Convention tie its hands so that a majority of the Convention cannot express its will? Why, the statement of the proposition carries with it its answer. Why, Mr. President and gentlemen of


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the Convention you have seen on several occasions in this hall, when this question was presented when we asked that the question merely be submitted to the vote of the delegates, those who opposed the will of the majority have sought to explain themselves behind the technical rules of the Convention.  For what purpose were the rules made? The rules were made for the purpose of getting the expressions speedily of the will of the majority. When the rules fail to sub serve a that purpose the rules should be destroyed.

MR. WALKER‑ Why, then, is this resolution confined to one question and not made applicable to all.

MR. LOWE‑I will answer the gentleman. Because the emergency required that the Rules Committee should act on this occasion. The minority is seeking here to deny the majority the

right to legislate. The gentleman is too good a lawyer and too good technical defences, but in this Convention of the people, of the people's representatives a technical rule should not be allowed to stand in the way of the majority. Now what are we seeking to do? Those of us who seek to change, to amend, they defended themselves the other day behind the technical rule that you could not amend Section 28 because a motion to reconsider had already been made. Gentlemen of the Convention I submit to you that a technical objection ought not to be made and thrown in the way of the expression of the will of the majority. They have for three or four days continued those dilatory tactics and now they accuse the Committee on Rules of being arbitrary and unfair because they, in pursuance of the functions intrusted to them are providing that a majority of the Convention shall find means of expression. Those of us who are opposed to the clause in the article as it now stands are seeking merely to re‑establish the law as it has stood in Alabama since Alabama was a State with the exception of the period of Republican administration under a Republican Constitution rose in wrath and destroyed at the first opportunity. Mr. President, why should eve depart from the ways of the fathers. What good reason has been shown that we should depart from a method of selecting your prosecuting attorneys, the method that has been pursued since 1819. I say in my judgment that this Constitution of the fathers ought not to be touched unless it be in response to a demand that has grown up among the people and finds expression in this hall by a large decisive majority.

MR. OATES‑ Does not the gentleman know that it was in observance of the conservatism of a rule technical though he calls it, which saved the South from being reconstructed by the passage of the Force Bill.


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MR. LOWE‑I am not dealing in the past. My eyes are fixed upon the future. I am looking for the rising sun. We need none to see the South today. If technicalities have sub served their purpose in the past, let not odium come upon technicalities for thwarting the will of the people in the present. Mr. President, there is little to be said in favor of the alteration of that section in the article which is assailed by the majority of this Convention.  Those who have sought to defend it: have done so behind technical grounds merely. I hope that the motion to take from the table will prevail. I hope that this section will be reconsidered. I know that in my section, and I am thoroughly convinced in many other portions of the State of Alabama

MR. SMITH (Mobile)‑I rise to a point of order. The gentleman is discussing the adoption of an amendment to Article XXVIII.

THE PRESIDENT – It seems to the Chair that the question will be the consideration of the report of the Committee on Rules.

MR. LOWE‑I am obliged to the gentleman for his suggestion, because it intimates to me that perhaps he does not like the trend of the argument.  I am willing to leave the question to the Convention.

MR. FITTS‑ Mr. President. it is to be very much regretted that partisan spirit and feelings runs so high. It is to be regretted that the majority on one side or the other of this proposition

is not so pronounced as to remove it from further discussion at the hands of this house, but the fact that the vote is close, the fact that delegates of equal dignity, representing the people of the State, are so nearly divided, is no excuse for changing at this time the rules that have been in effect to make the articles of this Constitution under, and have been good enough to form a Constitution under, and to work under for three long months.

Mr. President, it occurs to me that if the Rules Committee is open to criticism, the fact that they have served diligently, and the Convention is composed of great men, is no reason to refrain from criticising them, when they fall into a great error. It seems to me that the action of the Rules Committee on this occasion cannot be characterized as being anything short of extremely partisan. It seems to me that when this house voted that they would take this article from the table at 11 o'clock, that for the Rules Committee to go out of this hall in advance of that hour, and to bring in a special rule which was expected to prevent the carrying out of that order of the house itself, a different rule from that which has met all the needs and the exigencies of every other occasion presented to this house. seems to me to be evidence of an extremely partisan spirit. True that committee is not unanimous.  True there are two gentlemen on that committee who do not con‑


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sent to this particular rule, made for this particular occasion. True that that committee like the Returning Board in the famous Hayes and Tillman controversy, has not risen above partisanship, and has divided strictly in accordance with the way in which they have voted for solicitors. Therefore the particular report of this Rules Committee, reporting this particular rule, is entitled to no more height or dignity than any partisan effort of that wing of the house to accomplish its purpose. (Applause.)

Now, it is true that deliberative bodies can change their rule, but I never before heard the proposition advanced seriously, that they could change them in any other way than in the mode provided in the rules themselves that they might be changed. When the rules provide a way in which they may be changed that is the course that ought to be pursued, but it is suggested that this ought to be done on this occasion in free Alabama, here in the Democratic land of the South. Here in this representative body. because forsooth a great big ball-headed Czar from the North, in the Congress of the United States, has established a precedence that the Rules Committee can retire behind curtains at any moment in the Congress of the United States and bring back a rule suited to carry out the will of partisan majority upon any measure.  That rule has been general, but the South has arrayed itself in continued criticism and lack of approbation on that. The South stands out against that and the only excuse for this rule on this occasion is that it is on that overbearing rule there layed down.  Their further excuse is that this is a particular emergency. I want to ask them who made that particular emergency? (Applause) Who brought it about? (Applause.)  The great article upon the judiciary of this State after two months of consideration at the hands of the committee. had passed this house with less than a score of dissenting voice, and was thus the Constitutional law of Alabama. Who took it after it had gassed its third reading. after it was the Constitution at law of this State and because it did not suit forsooth one little coteries of officers, and laid it on the table? Who did that? Who made the emergency that they now seek to escape from ? They made it. They made that emergency and now they seek to bring about a rule to get themselves out of a hole they put themselves in. (Applause.) Now, Mr. President, if this rule has been good enough to make this Constitution by, if it has been good enough for you to rule and preside) by, for three long months, it is good enough to finish the work of this convention by, and there is no necessity for the Rules Committee, or a portion of it. when this Convention has made a special order for an hour, that was rapidly‑ approaching, to retire, hastily jump to a conclusion and bring in a special rule said to be for a special emergency, but for an emergency that they made.  If this temple falls, if this Constitution goes without an Article on Judiciary, gentlemen of the Convention, if this thing goes wrong.


4346                  

OFFICIAL PROCEEDINGS

if these walls fall down that they are claiming to be an emergency about them, they have pulled them down themselves. They will be in the same attitude as Samson of old when he pulled the temple down upon himself. This Article has been enacted, and they, to meet their own emergencies, laid it upon the table, after it was solemnly enacted. Now, gentlemen of the Convention, this is not the time or place to discuss the merits of the Solicitor question as has been attempted to be done. I have no fear upon which side of the controversy merit rests, but this is the time and place to say whether when they say that an emergency exists, a partisan force in this House which can go out and bring in a particular rule in derogation of the rights of this Convention, or a portion of it, made to fit a particular occasion, made to accomplish a particular purpose, biased in its effect, biased in its operation, and intended to be biased in its results, I hope that this House will lay the same decisive vote by which it determined to take this question up at 11 o'clock and dispose of it, will now dispose of this newborn rule, born in a questionable time, and under questionable circumstances and brought in here to be rattled into life in the hands of this Convention. (Applause) Therefore, Mr. President, I move the previous question upon the adoption of that resolution.

MR. HEFLIN (Chambers)‑I ask the gentleman to withdraw that. There is not a single member of the Rules Committee who has had an opportunity to be heard.

MR. FITTS‑I will withdraw the call for the previous question.

MR. LOMAX– I have not during the course of this discussion upon the "Solicitor's question taken any part in the debate and I would not now take any part in this debate but for the charge of partisanship which is made against the Rules Committee. And I still would not take part in it but for the fact that the charge of partisanship comes from the Chairman of the Committee on Judiciary and from a member of the Committee on Judiciary, which by an indefinite postponement, pigeonholed the deGraffenreid amendment, and kept this Convention from considering it. With what grace can men when a solemn ordinance is introduced by a delegate in this Convention upon an important question in their Committee taks such action as to forever prevent the Convention from acting upon it, charge any other Committee with partisanship with what they do.

MR. WALKER‑Is there not a method under the rules of the House of getting that ordinance or any other ordinance from the committee, and it is not the purpose of this resolution to abrogate in effect the rule of the House?


4347

CONSTITUTIONAL CONVENTION, 1901

MR. LOMAX‑ There is a method, but does it stand as right Is it proper for it to be done, for a great Committee considering the provision of one of the three co‑ordinate branches of this Government, to have it compelled by the House to bring in a report on such a subject as that and we can only do it by introducing a resolution to compel them to make a report. Now what has the Rules Committee done?

MR. SMITH (Mobile)‑Do you think the Committee ought to be required to consider the same proposition after it has considered that identical proposition four or five times?

MR. LOMAX‑I think any Committee of this Convention should be compelled to consider any proposition as, long as any representative of the people on this floor believes it ought to be considered.

Now what has the Rules Committee done? Are they undertaking to do anything except to give this House an opportunity to act, and finally act, upon an important matter before the Convention? We have not introduced a rule here to shackle anybody, to shut off anybody or to compel anybody to do anything. The Rules Committee has simply reported to this Convention means by which this Convention can go on with its work and complete the work that the people sent then here to do.

MR. CUNNINGHAM ‑Has any of the majority who are for this question, asked unanimous consent to offer an amendment?

MR. LOMAX‑ No sir, I don't know that they have.

MR. CUNNINGHAM ‑They have failed to ask, which they can do under the rules, to have the rules suspended whereby an amendment would be in order?

MR. LOMAX ‑ Not in that form, no sir.

MR. CUNNINGHAM‑ Then has the majority of one on this floor exhausted their parliamentary privilege?

MR. LOMAX‑ They have not done anything the gentleman from Jefferson suggests, but when a member of that Committee has introduced a resolution that this Article be taken up and amended and that has gone to the Rules Committee, finding this House almost at a standstill on that question, had reported it. These gentlemen that talk about fairness and throttling things within the Committee are with the same voice, standing here and trying to prevent this Convention from debating the means the Rules Committee have provided for solving this vexed question. We want to go through with this Convention. We cannot go through with it and leave a co‑ordinate branch of the government absolutely unprovided for. And the Rules Committee has proposed to this Convention not to stop debate, not to shut off anybody,


4348                 

OFFICIAL PROCEEDINGS

but a means by which a majority of this Convention can accomplish the will of the people who have sent them here.

MR. WATTS‑ You are a member of the Rules Committee?

MR. LOMAX‑ Yes sir.

MR. WATTS‑ Hasn't your Committee indefinitely postponed an ordinance for the appointment of a Committee on Pensions for Confederate Soldiers, for the appointment of three other standing committees and Resolution 96 in reference to---

MR. LOMAX‑‑ Don't take up all of my time, please.

MR. WATTS‑I am not going to, I am just going to ask you about these things. And didn't it indefinitely postpone discussion about the call of the roll and another Resolution 65, another Resolution 43, another Resolution 93, another Resolution 100, another 61, another 29, another 20, another 108, another 162, another 121 and another No. 16?  Hasn't your Committee indefinitely postponed those and not given this Convention an opportunity to pass on them, and can't other committee exercise the same rights as the Rules Committee?

MR. LOMAX– I have not the marvelous recollection of my friend from Montgomery so as to enable me to know what resolution is by the calling of its number. If the Rules Committee have indefinitely postponed matters, every man on that Committee will bear me out in the  assertion that I have always said that we ought not to indefinitely postpone, but ought to report favorably or adversely on every proposition. I notice that my friend from Montgomery was furnished with his information by the distinguished acting Chairman of the Committee on Rules, Mr. Smith of Mobile, and my distinguished friend from Mobile called the attention of the Convention to the fact that there were fifteen ordinances and resolutions now pending before the Committee on Rules, and not acted upon. Why? If the President of this Convention, the Chairman of the Committee on Rules, was too busy in the performance of his duty, to call that Committee together why didn’t the Acting Chairman of that Committee, the gentleman from Mobile, call that Committee together and get action upon these resolutions?

MR. SMITH (Mobile)‑Is it not a fact that on Friday last, while this matter was up, this partisan matter, a meeting of the Committee on Rules was called, and that the acting Chairman was not even notified of that meeting?

MR. LOMAX‑I have been so informed by the Acting Chairman, but sitting in my place on this Convention on last Friday.  I heard the President of this Convention announce that a meeting


4349

CONSTITUTIONAL CONVENTION, 1901

of the Committee on Rules would be held at 8 or 8:30 o'clock on last Friday, and if the Acting Chairman had been using his ears, he would have gotten the same information that I got.

Now, Mr. President, all the Committee on Rules has done, is to bring in here a proposition to finally act upon an important matter, and to reinstate in its proper place the Article that provides for one of the co‑ordinate branches of this Government.  This Convention need not adopt that rule unless it wants to, but if it wants to do business, if it wants to get through work, if it doesn't want to spend its life with me in Montgomery, it ought to adopt this rule and go on with the work of this Convention.

MR. OPP‑ Speaking of partisanship, is it not a fact that that side of this question which includes the eminent gentleman from Tuscaloosa (Mr. Fitts) and the pre‑eminent gentleman from Mobile (Mr. Smith), would be in a hopeless minority with the Democratic party on this floor, but for the solid aid of the opposition to the Democratic party?

MR. LOMAX‑ The gentleman is eminently correct in his statement. Now, I do not wish to cut off debate, but unless some other gentleman desires very greatly to discuss this question, I move the previous question upon the resolution.

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

MR. HARRISON‑I have not intended to say anything upon this question—

MR. PETTUS‑I make the point of order that the previous question has been ordered.

MR. HEFLIN (Chambers) ‑ The gentleman representing the Committee has a right to conclude.

MR. PETTUS‑I thought the Chairman of the Committee had the right to close.

MR. SMITH (Mobile) ‑ I think the gentleman is acting Chairman of the Committee and would have the right to conclude.

THE PRESIDENT‑ Regularly,  the gentleman from Mobile would be entitled to speak for the Committee, but as he is in opposition to the report, it seems to the Chair that the gentleman who made the report would be entitled to be heard.

MR. HARRISON‑ It was not my desire to make the report, and, but for the absence, I apprehend, of the distinguished gentleman from Mobile, who has been acting Chairman, I would not have made it. But I feel, in view of the insinuations that have been made, and especially by the members of the Committee, and the so often acting Chairman of the Committee, that the proper respect for my associates demands that I should at least reply


4350                  

OFFICIAL PROCEEDINGS

to the insinuation that this is a partisan report. I feel that this Committee is but the mere servant of this Convention, not acting as it has been charged, in obedience to the behest of any Czar in Washington or elsewhere, but acting as it has been acting during the session of this Convention, in an endeavor to carry out the wish of a majority of this Convention, when it has been indicated, and preferring to follow, if need be, the desires of only a small majority, rather than those of a minority. It has done what it conceives to be its duty, acting as the servants of this Convention. when this Convention has placed itself in a condition where one of the particular Articles of the Constitution is upon the table, and in a condition finable to carry out the wishes of a majority, not of its own volition, but—

MR. WHITE ‑Isn't it a fact that it has already been taken from the table and is to be considered at 11 o'clock'

MR. HARRISON‑ Yes, and it will be in a condition for our action. If we are to undertake, by a minority vote, to throttle the voice of a majority of the people as represented in this Convention—

MR. PETTUS‑ May I ask a question?

MR. HARRISON‑I decline to yield. My time is limited and the gentleman has had the floor.

I desire to say this to justify the Committee who were endeavoring to devise some plan whereby the majority of this Convention can control its deliberations. It is said that this Committee is partisan.

I did not know, until it was stated by the distinguished delegate from Mobile, that this Committee consisted of seventy-two.  I have constantly voted for what I thought to be right, and have no interest in this matter, direct or indirect and am perfectly willing to accept any solution which a majority of this Convention may desire. If the Committee were partisan, if my friend who met so often with us, had pointed out the objection, it would certainly have been less partisan than to decline to meet with your Committee, and come here and fight the report which he ought to have made.

MR. SMITH (Mobile)‑Are you aware that the question under consideration was the school fund of Mobile, and that I expected it to come up at the hour when the Committee met ?

MR. HARRISON‑I was not aware of that, but the Committee would doubtless have waited on you. If you had asked for another time, we would doubtless have-appointed it, because we have always been courteous among each other. This Committee adopted this report without a dissenting voice. The question of partisan ship wasn't sprung or anything else but the question before


4351

CONSTITUTIONAL CONVENTION, 1901

the Committee was a desire to assist this Convention, and to aid in the discharge of its business, by providing a mode and manner for the conduct of its business, limiting the time of debate and in every other way, as it were, acting as a kind of steering committee for the Convention. To say that this Committee would do like the Judiciary Committee and refuse to act on what has been properly referred to it

MR. PETTUS‑I would like to ask the gentleman a question.  He yields to other gentlemen on the floor.

MR. HARRISON‑I will yield one moment.

MR. PETTUS‑I would like to ask, if the report of the committee is not partisan in its action, why it is they passed over the gentleman from Jefferson, Mr. Cunningham, and the gentleman from Montgomery, Mr. Lomax, and made the gentleman from Lee the acting Chairman of this Committee, when it is customary to take the Committee in the order in which it comes?

MR. HARRISON‑I do not know that it shows partisanship so far as Mr. Lomax is concerned. I think Mr. Cunningham was absent from the Committee. I do not know. I certainly did not seek it, and I am sorry the other gentlemen did not, but, by a vote. I was instructed by the Committee to make the report.

MR. HEFLIN ‑ I wish to say that I informed the acting Chairman the gentleman from Mobile, that the Committee would meet at once and requested him to be present.

MR. HARRISON‑ That makes no difference. It is the action of the Committee and while the present speaker did not seek it, and while it may have been more desirable for some one else to make the report---

MR. CUNNINGHAM‑I rise to a question of privilege. I do  not desire to contradict the gentleman from Lee, but there was a member of the committee present who opposed this resolution, though not in a speech. I have reference to the gentleman from Jefferson. I do not care to discuss committee proceedings, but if the gentleman will give me the privilege to do so, without violating the courtesy of the committee. I will explain.

MR. HARRISON– I have not heard my distinguished friend.  If he called for a question he spoke so low I could not hear, and he has a beautiful voice and if he wanted to be heard I could have heard him.

MR. OATES‑I would like to ask my friend this one question.

MR. HARRISON‑I decline to yield, even to my friend, General Oates. It looks like you are trying to cut off my time, though it is unlike you.


4352                  

OFFICIAL PROCEEDINGS

MR. HARRISON‑ Briefly in conclusion I desire to say I do not care what becomes of the pending question. I think and I think the majority of your committee thought that this Convention should have some way provided for it to settle this vexed question, and allow us to conclude the labors of the Convention.  Your committee has presented a solution of it. It has presented it, not in any partisan spirit, but has provided a rule for an emergency, which this Convention has gotten itself into. It is true that the gentlemen may say that those opposed to them did it, but didn't a majority of the Convention do it.

The intimation of the gentleman from Tuscaloosa that a certain partisan crowd in this Convention created this emergency, I think, Mr. President, is answered by the fact that a majority did it, and ought your Rules Committee, regardless of how they may vote, treat this resolution as the matter has been treated by another committee, postpone it, and refuse to consider it, and prevent it from coming before the Convention? We have simply brought it before you. We have provided a way for you to settle this difficulty, if you desire. If you don't like it and if a majority is opposed to it, and wish to leave the article blank or remain in indefinite session here, you may do so. If you cannot come up like men and compromise on differences and accept the will of a majority, however small, then the Rules Committee has discharged its duty, by offering you an opportunity, by pointing out a way by which you can do it, and the responsibility will be upon the Convention, and your committee will be satisfied.

MR. WHITE‑I move to lay the substitute offered by the committee upon the table, and upon that I call for the ayes and noes.

THE  PRESIDENT‑ It is moved that the substitute reported by the Committee on Rules, for the resolution offered by the gentleman from Greene, be laid upon the table, and the ayes and noes have been called for, is the call sustained.

The call was sustained.

MR. PETTUS ‑If I am in order now I would like to offer a resolution.

THE PRESIDENT ‑The gentleman would not be in order.  There is a motion now before the Convention, and there can only be one motion at a time.  And the gentleman from Jefferson submits a motion to table the substitute reported by the committee.  The ayes and noes have been called for and the call sustained. As many as favor the substitute reported by the committee for the resolution offered by the gentleman from Greene will say aye and those opposed no as their names are called.

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

4353

CONSTITUTIONAL CONVENTION, 1901

AYES

Altman,

Freeman,

Parker, of Elmore,

Ashcraft,

Graham, of Talladega,

Pettus,

Banks,

Henderson,

Phillips,

Bartlett,

Hodges,

Pitts,

Beddow,

Hood,

Reynolds, of Chilton

Bethune,

Howell,

Sanders,

Blackwell,

Jones, of Bibb,

Sloan,

Boone,

Kyle,

Smith, Mac. A.,

Brooks,

Lowe, of Lawrence,

Sorrell,

Bulger,

McMillan (Baldwin),

Spears,

Byars,

Malone,

Spragins,

Cofer,

Maxwell

Studdard,

Craig,

Merrill,

Tayloe,

Cunningham,

Miller, of Wilcox,

Vaughan,

Davis, of DeKalb,

Moody,

Walker,

Davis, of Etowah,

Murphree,

Watts,

Dent,

NeSmith,

Weakley,

Fletcher,

Norman,

White,

Foshee,

Palmer,

Whiteside

TOTAL‑57

NOES

Messrs. President,

Handley,

O'Neill (Jefferson),

Almon,

Harrison,

Opp,

Barefield,

Heflin, of Chambers,

O'Rear,

Beavers,

Heflin, of Randolph,

Parker, of Cullman,

Browne,

Hinson,

Pillans,

Burnett,

Howze,

Reese,

Burns,

Inge,

Rogers, of Lowndes,

Cobb,

Jackson,

Samford,

Coleman, of Greene,

Jenkins,

Sanford,

Duke,

Jones, of Montgomery.

Searcy,

Eley,

Jones, of Wilcox,

Selheimer,

Eyster,

Kirk,

Sentell,

Ferguson,

Locklin,

Smith, Morgan M.,

Foster,

Lomax,

Stewart,

Glover,

Long, of Walker,

Waddell,

Grant,

Lowe, of Jefferson,

Williams, of Barbour,

Grayson,

Macdonald,

Wilson, of Clarke,

Greer, of Calhoun,

Martin,

Wilson, of Washington

Greer, of Perry,

Norwood,

Haley,

O'Neal, of Lauderdale,

TOTAL‑58


4354                  

OFFICIAL  PROCEEDINGS

ABSENT OR NOT VOTING

Case,

Leigh,

Robinson,

Espy,

Long, of Butler,

Rogers, of Sumter,

Gilmore,

Morrisette,

Sollie,

King,

Pearce,

Willet,

Kirkland,

Renfro,

Ledbetter,

Reynolds (Henry),

PAIRS

AYES                                                 NOES

Carnathon,

Chapman,

Cornwall,

Carmichael, of Colbert,

Fitts,

deGraffenreid,

Cardon,

Graham, of Montgomery,

Miller, of Marengo,

Knight,

Mulkey,

Coleman, of Walker,

Oates,

Weatherly,

Porter,

Proctor,

Smith, of Mobile,

Williams, of Marengo,

Thompson,

Carmichael, of Coffee,

McMillan, of Wilcox,

Williams, of Elmore,

Jones, of Hale,

Winn.

So the motion to table the substitute offered by the committee was lost.

THE PRESIDENT‑ The question will recur upon the adoption of the resolution reported by the committee as a substitute.

MR. HEFLIN‑ On that I move the previous question.

THE PRESIDENT ‑The previous question has been ordered.

MR. PETTUS‑I call for the ayes and noes on the adoption of the resolution as amended. The motion to table failed and the question was submitted on the resolution of the substitute. Now it is on the adoption, of the resolution as amended, and I call for the ayes and noes.

A DELEGATE ‑Too late.

THE PRESIDENT ‑It is the opinion of the chair that the call is in time. The question will be upon the adoption of the substitute reported by the Committee on Rules to the resolution offered by the gentleman from Greene, and the ayes and noes have been called for. Is the call sustained?

The call was sustained.

THE PRESIDENT‑As many as favor the adoption of the substitute reported by the Committee on Rules to the resolution


4355

CONSTITUTIONAL CONVENTION, 1901

offered by the gentleman from Greene, will say aye and those opposed no, as their names are called.

During roll call, while some confusion prevailed:

MR. SAMSON (Pike)‑‑I make the point of order that the gentlemen are not in their seats.

MR. ASHCRAFT‑‑I rise to a point of order. We have a special rule in this house, which authorizes gentlemen to exchange seats.

THE PRESIDENT‑‑ The rule only applies when reports of Committees are being considered. To allow members of the Committee to consult.

MR. PETTUS‑I rise to a question of privilege. The gentleman from Chambers was in my seat, and we both could not occupy it at the same time.

THE PRESIDENT ‑The gentleman from Chambers will resume his seat and the gentleman from Limestone will resume his.

The vote resulted as follows:

AYES

Messrs. President,

Handley,

O'Neill (Jefferson),

Almon,

Harrison,

Opp,

Barefield,

Heflin, of Chambers,

O'Rear,

Beavers,

Heflin, of Randolph,

Palmer,

Browne,

Hinson,

Parker (Cullman),

Burnett,

Howze,

Pillans,

Burns,

Inge,

Reese,

Cofer,

Jackson,

Rogers (Lowndes),

Coleman, of Greene,

Jenkins,

Samford,

Duke,

Jones, of Wilcox,

Sanford,

Eley,

Jones, of Montgomery,

Searcy '

Eyster,

Kirk,

Selheimer,

Ferguson,

Locklin,

Sentell,

Foster,

Lomax,

Smith, Morgan M.,

Glover,

Long (Walker),

Stewart,

Grant,

Lowe (Jefferson),

Waddell,

Grayson,

Macdonald,

Williams (Barbour),

Greer, of Calhoun,

Martin,

Wilson (Clarke),

Greer, of Perry,

Norwood,

Wilson (Washington),

Haley,

O'Neal (Lauderdale),

TOTAL‑59

NOES

Altman,

Bartlett,

Blackwell,

Ashcraft,

Beddow,

Boone,

Banks,

Bethune,

Brooks,


4356                                          

OFFICIAL PROCEEDINGS

Bulger,

Jones,  of Bibb,

Reynolds (Chilton),

Byars,

Kyle,

Sanders,

Cobb,

Lowe (Lawrence).

Sloan,

Cram,

McMillan (Baldwin),

Smith, Mac. A.,

Cunningham,

Malone,

Sorrell,

Davis, of DeKalb,

Maxwell,

Spears,

Davis, of Etowah,

Merrill,

Spragins,

Dent,

Miller (Wilcox).

Stu

Fletcher,

Moody,

Tayloe,

Foshee,

Murphree,

Vaughan,

Freeman,

NeSmith,

Walker,

Graham, of Talladega,

Norman,

Watts,

Henderson,

Parker (Elmore).

Weakley,

Hodges,

Pettus,

White,

Hood,

Phillips,

Whiteside,

Howell,

Pitts,

TOTAL–56

ABSENT OR NOT VOTING

Carmichael, of Colbert,

Kirkland,

Renfro,

Case,

Ledbetter,

Reynolds (Henry),

Cornwall,

Leigh,

Robinson,

Epsy,

Long (Butler),

Rogers (Sumter),

Gilmore,

Morrisette,

Sollie,

King,

Pearce,

Willet,

PAIRED

AYES                                                 NOES

Carnathon,

Chapman,

deGraffenreid,

Fitts,

Graham, of Montgomery,

Cardon,

Knight,

Miller (Marengo),

Coleman, of Walker,

Mulkey,

Weatherly,

Oates,

Proctor,

Porter,

Williams (Marengo),

Smith (Mobile),

Carmichael, of Coffee,

Thompson,

Williams (Elmore),

McMillan (Wilcox),

Winn,

Jones, of Hale,

So the substitute reported lay the Committee was adopted.

The question then recurred upon the adoption of the original resolution as amended, and upon a further vote being taken the resolution as amended was adopted.

THE PRESIDENT‑‑‑‑ The special order will be the consideration of the motion to take from the table the report of the Committee on Judiciary.


4357

CONSTITUTIONAL CONVENTION, 1901

MR. GRAHAM (Talladega)‑I make the point of order that was made the special order was for 11 o'clock today, and that hour has long since passed, and now the special order is the report of the Committee on Education.

MR. REESE ‑ I desire to make an inquiry. If when this resolution is adopted, at the time it is adopted, it does not immediately relate back to the time the consideration of it was presented to this Convention, and having gone over before the hour of eleven, would not the special order be to continue the order until it was disposed of?

THE PRESIDENT‑ It seems to the Chair that it would.  The Chair ruled so the other clay with reference to a motion to reconsider, which was brought forward by the gentleman from Walker. The motion to reconsider was the special order to be taken up during the morning hour. Another motion to be considered that had precedence of it, consumed the morning hour, and part of the afternoon session, and so soon as consideration of that question was disposed of, the Chair ruled that the motion to reconsider made by the gentleman front Walker would be in order, and in the opinion of the Chair the special order was merely temporarily displaced by a privileged report from the Committee on Rules. Therefore the question would be upon the consideration of this motion to take from the table. It is competent for the Convention, if it desires to do so, to set it for another time.

MR. GRAHAM (Talladega)‑I would like to know if the special order at this time is not privileged over the special order which was set by the Convention at 11 o'clock.

THE PRESIDENT‑ The Chair will rule that the matter before the Convention unless the Convention sees fit to order otherwise, will be the consideration of the motion made by the gentleman from Dallas to take front the table the report of the Committee on Judiciary. Is the Convention ready for the question? As many as favor the motion to take the Article reported by the Committee on judiciary from the table will say aye and those opposed no.

A vote was taken and the motion to take the Article reported by the Committee on Judiciary from the table was carried.

MR. WATTS‑I move that the report of the Judiciary Committee be ordered to a third reading, and upon that I call for the question.

MR. REESE‑I move to lay the motion upon the table.

MR. COLEMAN‑I have an amendment to offer.

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


4358                  

OFFICIAL PROCEEDINGS

MR. COLEMAN (Greene)‑I had the floor.

THE PRESIDENT ‑ The Chair recognized the gentleman from Montgomery and the gentleman from Montgomery moves that the report of the Committee on judiciary be ordered to a third reading.

MR. REESE‑I move that the motion of the gentleman from  Montgomery be laid upon the table.

MR. GRAHAM (Talladega)‑I make the point of order that there is a motion for the previous question and the motion to table cannot be made.

THE PRESIDENT‑ The motion to table relates to the motion to order it to a third reading.

MR. WATTS‑I called for the previous question on it.

MR. COLEMAN (Greene)‑Not the first time.

THE PRESIDENT‑ The Chair thoroughly understands the question, and a motion to table has precedence of a motion for the previous question, and must be first submitted to the Convention.

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

The call was sustained.

THE PRESIDENT ‑The question is on the motion of the gentleman from Montgomery to order the Article on Judiciary to a third reading, and the gentleman from Dallas moves to lay that motion upon the table. As many as favor tabling the motion of the gentleman from Montgomery will say aye and those opposed no, as their names are called:

During the call of the roll:

MR. SANDERS‑I make the point of order that the gentleman from Greene is out of his seat.

THE PRESIDENT‑ The point of order is well taken.

AYES

Messrs. President,

Duke.

Greer, of Perry,

Almon,

Eley,

Haley,

Barefield,

Eyster,

Handley,

Beavers,

Ferguson,

Harrison,

Browne,

Foster,

Heflin, of Chambers,

Burnett,

Glover,

Heflin, of Randolph,

Burns,

Grant,

Hinson,

Cobb,

Grayson,

Howze,

Coleman, of Greene,

Greer, of Calhoun,

Inge

,


4359

CONSTITUTIONAL CONVENTION, 1901

Jackson,

Norwood,

Samford,

Jenkins,

O'Neal (Lauderdale),

Sanford,

Jones, of Wilcox,

O'Neill, of Jefferson,

Searcy,

Jones, of Montgomery,

Opp,

Selheimer,

Kirk,

O' Rear,

Sentell,

Locklin,

Palmer,

Smith, Morgan M.,

Lomax,

Parker (Cullman),

Stewart,

Long, of Walker,

Pillans,

Williams (Barbour),

Lowe, of Jefferson,

Pitts,

Wilson (Clarke),

Macdonald,

Reese,

Wilson (Washington),

Martin,

Rogers (Lowndes),

TOTAL‑59

NOES

Altman,

Freeman,

Pettus,

Ashcraft,

Graham, of Talladega,

Phillips,

Banks,

Henderson,

Reynolds (Chilton),

Bartlett,

Hodges,

Sanders,

Beddow,

Hood,

Sloan,

Bethune,

Howell,

Smith, Mac. A

Blackwell,

Jones, of Bibb,

Sorrell,

Boone,

Kyle,

Spears,

Brooks,

Lowe, of Lawrence,

Spragins,

Bulger,

McMillan, of Baldwin,

Stoddard,

Byars,

Malone,

Tayloe,

Cofer,

Maxwell,

Thompson,

Craig,

M errill,

Vaughan,

Cunningham,

Miller (Wilcox),

Waddell,

Davis, of DeKalb,

Moody,

Walker,

Davis, of Etowah,

Murphree,

Watts,

Dent,

NeSmith,

Weakley,

Fletcher,

Norman,

White,

Foshee,

Parker (Elmore),

Whiteside,

TOTAL‑‑57

ABSENT OR NOT VOTING

Carmichael, of Colbert,

Kirkland,

Renfro,

Carmichael, of Coffee,

Ledbetter,

Reynolds, of Henry,

Case,

Leigh.

Robinson,

Coleman, of Walker,

Long, of Butler,

Rogers (Sumter),

Cornwall,

McMillan (Winston),

Sollie,

Espy,

Morrisette,

Willet,

Gilmore,

Mulkey,

Williams (Elmore),

King,

Pearce,


4360                                          

OFFICIAL PROCEEDINGS

PAIRS

AYES                                     NOES

Carnathon,

Chapman,

deGraffenreid,

Fitts,

Graham, of Montgomery,

Cardon,

Knight,

Miller (Marengo),

Weatherly,

Oates,

Proctor,

Porter,

Williams (Marengo),

Smith (Mobile),

Winn,

Jones, of Hale,

MR. THOMPSON‑ On the former vote I announced a pair with Mr. Carnathon. That pair was not arranged between Carnathon and myself, and since that time I have arranged with the gentleman with whom I arranged the pair to transfer the pair to Mr. Leigh. He takes my place and I vote no.

So the motion was laid upon the table.

MR. COLEMAN (Greene)‑I desire to offer a substitute for Section 28.

MR. SMITH‑‑I rise to a question of inquiry. What is before the Convention? Is it a motion to adopt the article, or is it upon some section?

            THE PRESIDENT‑‑ There is a motion now to amend Section 28.

MR. SMITH‑ Upon what is that based. What is before the Convention upon which that is based?

THE PRESIDENT–The article on judiciary is before the Convention, having been taken from the table by the action of this Convention.

The Secretary will read the substitute.

The Secretary read as follows:

Amend Section 28. A Solicitor for each judicial circuit, prescribed by the Legislature, shall be elected by the qualified electors of such circuit, 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 elected, and whose term of office shall be for four years, and who shall receive no other compensation than a salary to be prescribed by law, which shall not be increased during the terns for which he was elected: provided, that this article shall not operate to abridge the term of any Solicitor now in office; and provided further, that the Solicitors elected in the year 1904 shall hold office for six years, and until their successors are elected and qualified; and provided further, that


4361

CONSTITUTIONAL CONVENTION, 1901

the Legislature may provide by law for the appointment by the Governor or the election by the qualified electors of a County Solicitor for any county or any sub‑division of a county.

MR. WATTS‑I rise to a question of inquiry.

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

MR. WATTS‑‑I want to know whether or not that substitute is in order without reconsidering the vote by which Section 28 was adopted?

THE PRESIDENT ‑It seems to the Chair under the new rule which the Convention has adopted, it would be in order. The Chair recognizes the gentleman from Greene.

MR. COLEMAN‑ Mr. President‑‑

MR. WILSON (Washington)‑I have all amendment which the gentleman from Greene has agreed to accept, and I will ask to be allowed to send it up now.

THE PRESIDENT ‑The gentleman front Washington offers an amendment to the amendment.

The Secretary read the amendment as follows:

"Strike out residing in the circuit, and insert in lieu thereof the words `reside in a county in the circuit in which lie prosecutes criminal cases.' "

MR. PILLANS‑I rise to a point of inquiry.

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

MR. PILLANS‑Is it the rule of this Convention that when a gentleman offers an amendment and yields the floor, and other gentleman have amendments which they desire to offer, that the gentleman can continue to hold the floor, and other gentlemen rise and offer amendments while the gentleman is on the floor?  I waited for my friend to yield the floor which he has never done.  I wanted to try and obtain the recognition of the Chair.

THE PRESIDENT‑ The gentleman from Greene has the floor, and it would be perfectly competent to yield as he did to the gentleman from Washington, and it would be competent for the gentleman from Greene to yield to the gentleman from Montgomery, if he desires to do so.

MR. PILLANS‑‑ Did he yield? Was it an intrusion upon his time, because I by courtesy kept my seat? I understand when a gentleman yields the floor that he yields it--


4362                  

OFFICIAL PROCEEDINGS

MR. WILSON (Washington)‑I understand as a matter of courtesy the gentleman from Greene yielded to the gentleman from Washington.

MR. PILLANS‑ It was not so announced.

MR. COLEMAN‑I wish to state to the delegates that so far as I am concerned I am not wedded to either of the propositions authorizing the election of Circuit Solicitors by the people or by the Legislature. I know very well that there are men on this floor who voted for the adoption of this resolution for the purpose of having an opportunity to have the Circuit Solicitors elected by the people, and I know there are others upon this floor who oppose that, and prefer the old rule. I have desired from the very beginning‑-any other motive attributed to me to the contrary notwithstanding‑-simply to present to the people of Alabama that which would be satisfactory to them, and in accordance with the old Democratic proposition that Democrats should rule in this State. My whole purpose has been from beginning to end without any personal consideration, to stand by the Democrats of twelve or thirteen counties who have been with the party for fifteen or twenty years. I thought it was bad policy, un-democratic and ungrateful to turn them over, to bind them hand and foot, from which they could never extricate themselves. Let the Convention adopt either plan it sees proper, provided you allow the Legislature to prescribe who shall be elected in the counties or subdivisions of a county where these true and tried Democrats have lived so long. My own experience has been that the rule we have been acting under has worked well. No man has risen during this heated controversy and pointed out a single instance where there has been an incapable prosecuting attorney elected by the legislature, and I have no doubt in my own mind that if the people see proper, or are permitted to elect the solicitor that they will also elect one competent to fill that office. Mr. President and delegates of the Convention, no such question as this was before the people when we were elected as delegates to the Convention. No such question was intruded into the Democratic platform, nor has it arisen elsewhere than in this Convention. I think we should he very careful about the innovations we make especially when a rule has been tried so long, and proven so successful, but, Mr. President, it is apparent from local legislation which has been going on in this State so long that there are criminal courts established and necessarily there must be prosecuting attorneys.  Elect them as may be prescribed by the legislature. I have no doubt in the world that a Democratic legislature will consult the wishes of the county, and where the legislature should intervene and select the solicitor it will do so, and where the people of the county prefer to elect their own solicitor, I have not a particle of doubt but that the legislature will permit them to do it.


4363

CONSTITUTIONAL CONVENTION, 1901

MR. WALKER (Madison) ‑ Will the gentleman permit a question? If a county in a circuit already had a circuit solicitor, why should that county participate in the election of a circuit solicitor?

MR. COLEMAN‑‑ The county should not participate, provided the circuit court is not kept there, and there is no criminal prosecution, but there are many counties in the State where there are criminal courts with jurisdiction co‑extensive with the boundaries of the county in which a circuit court is held, for criminal prosecutions. In those counties the people should be authorized, if you adopt the substitute or the amendment offered, to vote as they do in other counties. If the gentleman desires to provide that where there is no circuit court held. and only county courts or city courts held I see no objection to such am amendment. I would not make an objection thyself. What I desire is to have the wishes of the people consulted in that matter, and that we do no injustice to that faithful band of Democrats who have stood by us so long, and been so true, I am not made any other way. I cannot get my consent at this time of our power, when we are in convention assembled, to do any act by which they will be deprived of all participation in their county affairs, in the election of a county solicitor. It is unjust to them, and I appeal to the Convention that we should not go before the people with any such provision as that. The gentleman has asked me about subdivisions. I have no objection in the world. All I desire in this matter is, that we do fair and right by all the Democrats, and for the best interests of the State. I know of no other rule by which this Convention can be harmonized, except in this manner, which I have intimated, but whatever is done, above all things, retain that provision in there which authorizes the legislature to prescribe how the solicitor for a county or subdivision of a county shall be elected, whether by appointment of the Governor, or whether by election of the people ‑‑they will without any doubt in the world secure that plan which is best for the interest of the people. Note, Mr. President, I have been requested by those who arc much wiser than I am in these matters that as there has been so much discussion on this question, that I move the previous question upon the adoption of the amendment, or substitute as offered.

MR. GRAHAM (Talladega)‑‑‑I desire to know, if a gentleman has a right to hold the floor after his ten minutes have expired and shut off amendments?

THE PRESIDENT‑ The Chair thinks not.

MR. REESE‑‑‑ Will the Chair inform me how many amendments are already pending?

THE PRESIDENT ‑ Two.


4364                  

OFFICIAL PROCEEDINGS

MR. WALKER‑ Mr. President and gentlemen of the Convention, I understand that while the gentleman from Greene had the floor the matter was put in such a situation that it is not open now for me to offer an amendment or substitute for these provisions, but I desire to call the attention of this Convention‑--

MR. LOWE (Jefferson)‑ 1 rise to a point of information. Has the gentleman from Greene the floor, or the gentleman from Madison ?

THE PRESIDENT—The gentleman front Madison has the floor.

MR. LOWE‑ Has the gentleman from Greene yielded the floor?

THE PRESIDENT ‑The gentleman from Greene took his seat and the Chair recognized the gentleman from Madison.

MR. LOWE‑‑‑I understand that the statement of the gentleman from Madison vas that the gentleman from Greene had yielded.

THE PRESIDENT‑ The statement was that while the gentleman was on the floor it was put in such a shape that he could not offer an amendment. That happened from the fact that the gentleman from Washington offered an amendment to the amendment.

MR. COLEMAN–Mr. President, the Convention of course has-----

THE PRESIDENT—The gentleman is not in order.

MR. COLEMAN‑‑‑I am going to explain to the Convention and take the responsibility---

THE PRESIDENT‑‑‑ Will the gentleman from Madison yield to the gentleman from Greene?

Mr. Coleman (Greene), and Walker held a conference.

MR. WALKER‑‑ If it is not taken out of my time.

MR. LOWE‑‑‑I rise to offer a resolution, Mr. President----

THE PRESIDENT ‑‑The gentleman from Madison has the floor, and the Chair cannot recognize the gentleman from Jefferson at this time.

MR. FITTS‑‑ Then I move the gentleman from Madison go ahead and use the floor.

THE PRESIDENT ‑‑The gentleman from Madison will proceed until he yields to the gentleman from Greene.


4365

CONSTITUTIONAL CONVENTION, 1901

MR. WALKER‑ I desire to call the attention of the Convention to the attitude that the substitute presented by the gentleman from Greene as amended by the gentleman from Washington, would put this matter in. It would require the election in every circuit in this State of a solicitor, although every county in that circuit was provided with a county solicitor. Now is this Convention ready to do that thing? There are counties in this State now parts of judicial circuits, they have separate and distinct solicitors, and in those counties the Circuit Solicitor has no more to do with the public prosecution than the man in the moon.  Now is that right, will this Convention undertake to perpetuate upon the people of this State the necessity of electing in every circuit, although in every county of that circuit there is a separate Solicitor, so that there is absolutely no necessity for a Circuit Solicitor there. The question is, could he be abolished in such a case?  He could not and obey the provision of the gentleman from Greene. You must continue to elect Circuit Solicitors. Counties which have no more to do with that Circuit Solicitor than with the man in the moon, must continue to vote upon it. Is it right?  Are you ready to do that? Why are the words stricken out from the report as put in here by the majority authorizing the selection by the people of solicitors for each judicial Circuit, or other territorial subdivisions prescribed by the Legislature?

MR. PILLANS‑ Will the gentleman suffer an interruption?

MR. WALKER‑ Yes, sir.

MR. PILLANS‑ I would ask if in many places as in the Thirteenth Circuit, it is not a fact that the Solicitor is a resident of a county in which he practically never tried a case?

MR. WALKER‑I do not know about the Thirteenth Circuit, but I do know about the Eighth Circuit, and that is the fact.  Is that the kind of thing that is going to be perpetuated here by this Convention?

MR. SAMFORD (Pike)‑Will the gentleman permit an interruption? I would like to know if the substitute you propose to offer, in case you should get an opportunity, provides for the contingency you are addressing yourself to?

MR. WALKER‑ Yes, sir.

MR. SAMFORD‑I for one would like to know what it is.

MR. WALKER‑I would state to the gentleman from Pike that the substitute that I propose to offer is this: Sec. 28. A solicitor for each judicial Circuit or other territorial subdivision prescribed by the Legislature shall be elected by the qualified electors of such circuit, or other territory subdivision, who shall be learned in the law and who shall at the time of his election and during


4366                  

OFFICIAL PROCEEDINGS

his continuance in office, reside in the circuit or other territorial subdivision for which he is elected, and whose term of office shall be four years, and who shall receive no other compensation than a salary to be prescribed by law, which shall not be increased during the term for which he is elected; provided, this Article shall not operate to abridge the term of any Solicitor now in office, and provided, further, that Solicitors elected in the year 1904 shall hold office six years and until their successors are elected and qualified; and provided, further, that the Legislature may provide by law for the appointment by the Governor or election by the qualified electors of the county for solicitors for any county.

MR. COLEMAN'‑ That meets my views.

THE PRESIDENT‑ Does the gentleman from Greene accept the substitute offered by the gentleman front Walker?

MR. COLEMAN‑ Yes sir.

THE PRESIDENT‑ The gentleman from Greene asks unanimous consent to accept the substitute of the gentleman from Walker. Is there objection?  The Chair hears none.

MR. SAMFORD (Pike)‑I desire to ask the gentleman one further question, and that is, if he will not consent to have an amendment added there as offered by the gentleman from Washington, so as to provide that the solicitor shall live in the county or counties in which he prosecutes.

MR. WALKER–I think that is already provided for, but if it is not. I am willing to accept that.

MR. SAMFORD‑ The gentleman states that it is already incorporated in there, and the gentleman from Washington states that he is satisfied.

MR. WILSON (Washington)‑‑‑Hold on, I think the gentleman from Madison is in error. I do not think it is in there.

MR. MALONE‑I move that the Convention remain in session until ten minutes after 1 o'clock.

The motion was carried.

MR. LOMAX‑ A question of parliamentary inquiry. I would like to know what the status of the amendment is and how many amendments are pending before the Convention ?

MR. WALKER‑I will call the attention of the Convention to the fact that this provision as written provides: “Who shall reside in the circuit or other territorial subdivision for which he is elected." In other words, this provision is so written that---


4367

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑ Does the gentleman from Washington withdraw his amendment?

MR. WILSON‑ No sir, I don't. It does not touch the question.

MR. SAMFORD‑ An illustration: In the Second Judicial District, composed of the counties of Montgomery, and other counties, the prosecuting officer of the county of Montgomery has nothing to do with the prosecution outside of Montgomery, and the Solicitor has nothing to do with the prosecution in Montgomery.

MR. WALKER‑ Yes, it provides for contingency by this provision. The Solicitor for Montgomery is the Solicitor for the territorial subdivision of Montgomery county, and he must reside there, another Solicitor is for some other territorial subdivision, and must reside there. I think this matter is fully covered by this provision.

MR. WILSON‑ Is it not a fact that the same provision is in the present Constitution?

MR. WALKER‑ No, sir, it is very different. This provision as written prevents any overlapping of the territory over which a Solicitor is to have jurisdiction, and by requiring him to reside in that circuit or territorial subdivision, it certainly provides for that. I offer the substitute.

THE PRESIDENT‑ The time of the gentleman from Madison has expired. Does the gentleman from Madison decline to accept the substitute of the gentleman from Washington?

MR. WALKER‑ Yes, sir.

MR. LOWE (Jefferson)‑I rise to a question of inquiry. We got into some confusion on yesterday, and I do not understand that the amendment of the gentleman from Madison was accepted by the gentleman from Greene.

THE PRESIDENT‑ It was by unanimous consent.

MR. LOWE‑ At what time?

THE PRESIDENT ‑While the gentleman from Madison was on the floor, the Chair submitted the question to the Convention and it was accepted.

MR. WILSON‑ There has been so much confusion I would like to have the amendment of the gentleman from Madison read.

THE PRESIDENT‑ The Secretary will read it, and also the amendment of the gentleman from Washington.


4368                  

OFFICIAL PROCEEDINGS

MR. WALKER‑ It is simply, a question of language, I have no objection to it going in there.

THE PRESIDENT ‑To be accepted by unanimous consent?

            MR. WALKER‑ Yes.

THE PRESIDENT‑ The Chair submitted the question by the gentleman from Madison, and he withdraws that and the question will be upon the adoption of the original amendment. The Secretary will read the amendment as it stands.

The Secretary read as follows: Section 28. A Solicitor for each judicial circuit or other territorial subdivision prescribed by the Legislature shall be elected by the qualified electors of such circuit or other territorial subdivision, who shall be learned in the law and who shall at the time of his election, and during his continuance in office, reside in a county in the circuit in which he prosecutes criminal cases.

MR. LOMAX‑ I desire to offer a substitute.

THE SECRETARY (resuming reading)‑"Provided that this article shall not operate to abridge the term of any solicitor now in office, and provided further than the solicitors elected in the year 1904 shall hold office for six years and until their successors are elected and qualified; and provided further, that the Legislature may provide by law for the appointment by the Governor for the election by the qualified electors of a county solicitor for any county."

MR. GREENE (Coleman)– I move the previous question upon the adoption of the resolution as amended.

MR. LOMAX‑I caught the eye of the Chair.

THE PRESIDENT ‑ The gentleman from Montgomery is recognized.

MR. WILSON‑I ask unanimous consent to be allowed to amend my amendment by making it circuit or other territorial subdivisions, so as to conform to the substitute offered by the gentleman from Madison.

MR. COLEMAN‑ It is in there now.

MR. WILSON‑I withdraw it then.

MR. LOMAX‑I have an amendment.

The Secretary read the amendment as follows:

A solicitor for each judicial circuit and for such inferior courts and lesser subdivisions of the State as may be provided, shall be elected in such manner and for such time, and at such salary as


4369

CONSTITUTIONAL CONVENTION, 1901

the Legislature may by law prescribe, provided that this section shall not affect the term of any solicitor now in office."

MR. HEFLIN (Chambers)‑I move the previous question upon all the amendments.

THE PRESIDENT ‑ The gentleman moves the previous question upon all the amendments. The question is shall the main question be now put?

A vote being taken the main question was ordered.

MR. GRAHAM (Talladega) ‑I move to lay the amendment of the gentleman from Montgomery on the table.

MR. LOMAX‑I submit I have a right to the floor, when the previous question is ordered, on my amendment, and the gentleman from Talladega cannot move to lay on the table while I am entitled to the floor.

THE PRESIDENT‑ The previous question has been ordered. Under the former rulings of the Chair the mover of the original proposition would have the right to reply, unless he yields to the gentleman from Montgomery.

MR. COLEMAN‑I will give him half my time.

MR. LOMAX‑I do not care to address the Convention at any length. but I want to insist on my rights in the matter. I sat down while my substitute was read, and being a little slow in getting up the previous question was submitted. I do not care to take any part in the discussion on account of the position I occupy. The question of how the solicitors are elected is a matter of perfect indifference to me personally.

MR. DUKE‑I move that this Convention remain in session ten minutes longer.

MR. PETTUS‑ It requires a suspension of the rules.

THE PRESIDENT‑ The gentleman from Chambers movesthat the Convention remain in session ten minutes longer.

MR. LOMAX‑I move that the Convention do now adjourn.

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

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

MR. GRAHAM‑ That the Convention cannot adjourn when the previous question has been ordered.

MR. DUKE‑‑I call for a vote on my motion.


4370                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ The gentleman from Montgomery will proceed.

MR. LOMAX‑I cannot proceed with two or three on the floor. As I understand, Mr. President, the point of order made by the gentleman from Talladega applies both to my motion to adjourn and to the motion of the gentleman from Chambers to remain in session ten minutes longer.

MR. PETTUS‑I rise to a point of order. That the ten minutes provided for has expired, it is now ten minutes past one o'clock.

MR. HEFLIN‑ The previous question having been called for, the house cannot adjourn until that is disposed of.

THE PRESIDENT‑ The previous question having been ordered, a motion to adjourn will not be in order, the previous question is in order.

MR. LOWE‑ The previous question has not been ordered.  It was only demanded.

THE PRESIDENT‑ It was ordered.

MR. LOWE (Jefferson)‑ A vote has not been taken.

THE PRESIDENT‑ The Chair submitted the question of ordering the previous question, and it was ordered. The gentleman from Montgomery will please proceed with the discussion of the subject, he has one minute left.

MR. LOMAX‑ Does the Chair rule that notwithstanding the house has been in session ten minutes after its regular time for adjournment, that it must remain in session until a vote is taken, because the previous question has been ordered?

THE PRESIDENT ‑The Chair has not ruled on that point.

MR. PETTUS‑I made that point that the ten minutes have expired and that the Convention ipso facto stands adjourned.

MR. HEFLIN (Chambers)‑If I am in order I move the remain in session fifteen minutes longer.

MR. LOMAX‑I am not liable to interruptions except on points of order, and because the gentleman from Limestone was making points of order is the reason I have been quiet.

THE PRESIDENT‑ The gentleman's time has expired.

MR. GRAHAM‑‑I renew my motion to lay the amendment on the table.

MR. LOWE (Jefferson)‑The time has passed which the Convention fixed to adjourn.


4371

CONSTITUTIONAL CONVENTION, 1901

MR. SAMFORD (Pike)‑I move we remain in session fifteen minutes longer.

THE PRESIDENT‑ It is moved that the Convention remain in session fifteen minutes, those in favor of the motion will say aye; those opposed, no.

MR. LOWE (Jefferson)‑I rise to a question of parliamentary inquiry.

THE PRESIDENT‑ The ayes have it. The gentleman will state his parliamentary inquiry.

MR. LOWE‑A motion had passed that this Convention remain in session until ten minutes past one, and ten minutes past one having expired, and the fact having been called to the attention of the Chair, I ask as a matter of parliamentary inquiry if it is in order, after the expiration of the ten minutes for a motion to be made and entertained to remain in session ten minutes longer?

THE PRESIDENT‑ The Chair recognized the gentleman to make a motion, and the motion was made. During the confusion the gentleman from Montgomery was on the floor and the Chair recognized the gentleman to make a motion, and felt it his duty to submit to the Convention in order that the majority of the Convention might do what it pleased, and the Convention decided that it would remain in session fifteen minutes longer.

MR. LOWE‑I wish to suggest in that connection as a part of my question of inquiry, if the point of order having been made that the ten minutes had expired, under the rules by which the Convention should adjourn if after the expiration of that time a motion to continue longer in session could be entertained.

THE PRESIDENT‑ The Chair would have to decide when the hour of adjournment has arrived, the Chair cannot leave that question to be decided by delegates on the floor. The Chair decided that the motion was in order and the Chair will overrule the point of order and the Convention will proceed with its business.

MR. GRAHAM‑I move to lay the amendment of the gentleman from Montgomery on the table.

THE PRESIDENT‑ It is moved that the amendment of the gentleman from Montgomery be laid upon the table.

Mr. Jenkins and Mr. Lowe (Jefferson) called for the ayes and noes.

The call was not sustained.


4372                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑As many as favor the motion to table the amendment of the gentleman from Montgomery will say aye. It appears to the Chair that the ayes have it----                                                               

MR. JENKINS‑  Division.

THE PRESIDENT ‑The ayes have it and the motion to table is adopted.

MR. JENKINS‑ I rise to a point of order. I called for a division. I would like to have a division.

THE PRESIDENT‑ The Chair has announced the result.  The question will be upon the original resolution as amended by unanimous consent. As many as favor the adoption of that amendment will please say aye.

A vote being taken, the amendment was adopted.

THE PRESIDENT‑ The question is on the original section as reported by the Committee as amended. As many as favor the adoption will say aye, and those opposed no

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

MR. LOWE‑ Mr. President, a point of order.

THE PRESIDENT ‑‑The ayes have it and the section as amended is adopted.

MR. LOWE‑I rise to a point of order. I called for the ayes and noes.

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

THE PRESIDENT‑ Those in favor of that motion will make it known by saying aye, and those opposed no. The ayes have it and it is so ordered.

MR. LOWE‑ Mr. President.

MR. HANDLEY‑I move we adjourn.

THE PRESIDENT‑ It is moved that this Convention do now adjourn. The ayes have it and the Convention stands adjourned.

----------------

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 103 delegates present upon the call of the roll.

Leaves of absence were granted as follows: To Mr. Browne for this afternoon and tomorrow; indefinite leave of absence to Mr. Cornwall on account of sickness.


4373

CONSTITUTIONAL CONVENTION, 1901

MR. SAMFORD (Pike)‑ I desire to have unanimous consent to make a report from the Committee on Engrossment.

Consent was given.

The Secretary read the Article as follows:

AN ORDINANCE

Be it ordained by the People of Alabama, in Convention Assembled, That Article VII of the Constitution by Stricken out, and the following Article inserted in lieu thereof

ARTICLE------

Impeachments

Section 1. The Governor, Lieutenant-Governor, Secretary- of-State, Auditor, Treasurer, Attorney-General. Superintendent of Education, Commissioner of Agriculture and Industries and Judges of the Supreme Court, may be removed from office for willful neglect of duty, corruption in office, incompetency or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officers for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof or connected therewith, by the Senate sitting as a court for that purpose, under oath or affirmation on articlescar charges preferred by the House of Representatives.

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

Sec. 3. The Clerks of the Circuit or courts of like jurisdiction, of Criminal Courts, Tax Collectors, Tax Assessors, County Treasurers, County Superintendents of Education, Coroners, Notaries Public, Constables and all other county officers, Mayors, Intendants and all other officers of incorporated cities and towns in this State, may be removed from office for any of the causes specified in Section 1 of this Article, by the Circuit or other courts of the county in which such officers hold their office under such regulations as may be prescribed by law; provided, that the right of trial by jury and appeal in such cases be secured.

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


4374                  

OFFICIAL PROCEEDINGS

Mr. Grant of Calhoun took the chair.

THE PRESIDENT PRO TEM‑ The question will be upon the passage of the ordinance. All those favoring its passage will say aye and those opposed no, as their names are called.

The roll call resulted as follows:

AYES.

Messrs. President,

Handley,

Palmer,

Almon,

Harrison,

Parker (Cullman),

Altman.

Heflin, of Randolph,

Pettus,

Ashcraft,

Henderson,

Pillans,

Banks,

Hodges,

Pitts,

Barefield.

Hood,

Reese,

Beavers,

Howell,

Samford,

Beddow,

Howze,

Sanders,

Bethune,

Inge,

Sanford,

Blackwell,

Jackson,

Searcy,

Boone,

Jenkins,

Selheimer,

Brooks,

Jones, of Bibb,

Sentell,

Bulger,

Jones, of Montgomery,

Smith (Mobile),

Burns,

Kirk,

Smith, Mac. A.,

Chapman,

Knight,

Smith, Morgan M,

Cobb,

Kyle,

Sorrell,

Cornwall,

Lowe (Lawrence),

Spears,

Cunningham,

Macdonald,

Spragins,

Davis, of Etowah,

McMillan (Baldwin),

Stewart,

Duke,

M alone,

Tayloe,

Eley,

Martin,

Vaughan,

Ferguson,

Maxwell,

Waddell,

Fitts,

Merrill,

Walker,

Fletcher,

Miller (Wilcox),

Watts,

Foster,

Moody,

Weakley,

Glover,

Murphree,

White,

Graham, of Talladega,

NeSmith,

Williams (Barbour),

Grant,

Norman,

Williams (Elmore),

Grayson,

Norwood,

Wilson (Clarke),

Greer, of Calhoun,

Oates,

Wilson (Wash'gton ),

Greer, of Perry,

Opp.

Winn,

Haley,

O'Rear,

Total‑95.

NOES.

Bartlett,

Freeman,

Studdard.

Byars,

Phillips,

Thompson,

Total‑6.


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CONSTITUTIONAL CONVENTION, 1901

ABSENT OR NOT VOTING.

Browne,

Graham, of Montgomery,

O'Neal (Lauderdale),

Burnett,

Heflin, of Chambers,

O'Neill (Jefferson),

Cardon,

Hinson,

Parker (Elmore),

Carmichael, of Colbert,

Jones, of Hale,

Pearce,

Carmichael, of Coffee,

Jones, of Wilcox,

Porter,

Carnathon,

King,

Proctor,

Case,

Kirkland,

Renfro,

Cofer,

Ledbetter,

Reynolds (Chilton),

Coleman, of Greene,

Leigh,

Reynolds (Henry),

Coleman, of Walker,

Locklin,

Robinson,

Craig,

Lomax,

Rogers (Lowndes),

Davis, of DeKalb,

Long (Butler),

Rogers (Sumter),

Dent,

Long (Walker),

Sloan,

deGraffenreid,

Lowe (Jefferson),

Sollie,

Eyster,

McMillan (Wilcox),

Weatherly,

Espy,

Miller (Marengo).

Whiteside,

Foshee,

Morrisette,

Willet,

Gilmore,

Mulkey,

Williams (Marengo).

And so the Article was adopted.

MR. KNOX‑I ask unanimous consent to introduce a resolution. Some time ago the question of admitting Hon. J. W. Taylor to the privileges of the floor was raised, and it was stated that leave had been granted. Upon an investigation of the record, it is found that that was a mistake and the privilege was never granted. I also wish to include Hon. Oscar W. Underwood, member of Congress from the Ninth District of this State.

The consent was given.

Resolution No. 307 by Mr. Know was read as follows:

Resolved, That the privileges of the floor be and are hereby extended to the Hon. G. W. Taylor, member of Congress from the First District, and Hon. Oscar W. Underwood, member of Congress from the Ninth District of this State."

MR. KNOX‑I move that the resolution be adopted.

Upon a vote being taken, the resolution was adopted.

MR. OPP‑I ask unanimous consent to introduce a resolution extending the privileges of the floor to the Hon. D. M. Powell.

The consent was given.

Resolution No. 309, by Mr. Opp, was read as follows:

"Resolved that the privileges of the floor be extended to the Hon. D. M. Powell, Senator from the 17th District."

MR. OPP‑I move the adoption of the resolution.


4376                  

OFFICIAL PROCEEDINGS

Upon a vote being taken the resolution was adopted.

Ordinance No. 404, reported from the Committee on Engrossment, was read as follows:  Ordinance 404.

Whereas ample provisions is made by law for the impeachment of officers, and whereas it is contrary to the policy of this government that any part of the powers of one department should be exercised by an officer of another department, and whereas it is contrary to the spirit of our institutions that any person should be punished before trial.

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

THE PRESIDENT PRO TEM.‑ The ordinance is on its final passage, as many as favor the passage of the ordinance will say aye and those opposed no as their names are called.

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

AYES.

Altman,

Graham, of Talladega,

Macdonald,

Almon,

Grant,

McMillan (Baldwin),

Barefield,

Grayson,

Malone,

Beavers,

Greer, of Calhoun,

Martin,

Beddow,

Greer, of Perry,

Maxwell,

Bethune,

Haley,

Merrill,

Blackwell,

Handley,

Miller, of Wilcox,

Boone,

Heflin, of Chambers,

Moody,

Brooks,

Heflin, of Randolph,

Murphree,

Bulger,

Henderson,

NeSmith,

Burns,

Hodges,

Norman,

Chapman,

Hood,

Norwood,

Cobb,

Howze,

O'Rear,

Craig,

Inge,

Palmer,

Davis, of DeKalb,

Jackson,

Parker, of Cullman,

Davis, of Etowah,

Jenkins,

Pettus,

Dent,

Jones, of Bibb,

Pitts,

Duke,

Jones, of Wilcox,

Reese,

Eley,

Knight,

Samford,

Ferguson,

Kyle,

Sanford,

Fletcher,

Locklin,

Searcy,

Foster,

Long, of Walker,

Selheimer,

Glover,

Lowe, of Lawrence,

Sentell,


4377

CONSTITUTIONAL CONVENTION, 1901

Smith, of Mobile,

Stewart,

Weakley,

Smith, Mac. A.,

Tayloe,

Williams, of Barbour,

Smith, Morgan M.,

Thompson,

Wilson, of Washington,

Sorrell,

Vaughan,

Winn.

Spears,

Walker,

Spragins,

Watts,

Total‑‑87.

NOES.

Ashcraft,

Harrison,

Pillans,

Banks,

Howell,

Studdard,

Byars,

Jones, of Montgomery,

Waddell,

Cofer,

Lomax,

White,

Cunningham,

Oates,

Whiteside,

Fitts,

O'Neal, of Lauderdale,

Freeman,

Phillips,

Total‑18.

ABSENT OR NOT VOTING.

Messrs. President,

Graham, of Montgomery,

Parker, of Elmore,

Bartlett,

Jones, of Hale,

Porter,

Browne,

King,

Proctor,

Burnett,

Kirk,

Renfro,

Cardon,

Kirkland,

Reynolds, of Chilton,

Carmichael, of Colbert,

Ledbetter,

Reynolds (Henry),

Carmichael, of Coffee,

Leigh,

Robinson,

Carnathon,

Long, of Butler,

Rogers, of Lowndes,

Case,

Lowe, of Jefferson,

Rogers, of Sumter,

Coleman, of Greene,

Hinson,

Sanders,

Coleman, of Walker,

McMillan, of Wilcox,

Sloan,

Cornwall,

Miller, of Marengo.

Sollie,

deGraffenreid,

Morrissette,

Weatherly,

Espy,

Mulkey,

Willet,

Foshee,

O'Neill (Jefferson),

Williams, of Marengo,

Eyster,

Opp,

Williams, of Elmore,

Gilmore,

Pearce,

Wilson, of Clarke.

THE PRESIDENT PRO TEM‑ The next regular order is report of Committee on Education, Section 13.

Section 13 was read as follows:

Sec. 13. The provisions of this article and of any act of the General Assembly passed in pursuance thereof to establish, organize and maintain a system of public schools throughout the State, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portions of the funds to which said county shall be entitled for school purposes, and to make reports to the Superintendent of Education as


4378                  

OFFICIAL PROCEEDINGS

may be prescribed by law. And all special incomes and powers of taxation, as now authorized by law for the benefit of public schools in said county shall remain undisturbed until otherwise provided by the General Assembly; provided, that separate schools for each race shall always be maintained by said school authorities.

The President here resumed the Chair.

MR. REESE‑ This is the same as Section 11 of the present Constitution. There is no change made in it and I move its adoption.

MR. GREER (Calhoun)‑I have an amendment.

The amendment by Mr. Greer was read as follows:

Amend Section 13 of the article on education by adding at the end of said section the following, to wit:

"Provided Calhoun county shall possess and enjoy the same privileges as are now enjoyed by Mobile county, and that said special incomes and powers of taxation for public schools shall remain undisturbed until otherwise provided by the General Assembly; provided that separate schools for each race shall always be maintained by said school authorities."

MR. WADDELL‑I ask that the gentleman will allow me to introduce an amendment along the same line.

THE PRESIDENT‑ The gentleman froth Jefferson caught the eve of the Chair.

MR. SAMFORD (Pike)‑ I desire to ask the gentleman to yield to me a. moment to offer an amendment.

The amendment was read as follows:

"Amend by adding Pike county."

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

MR. WHITE‑‑‑ I dislike very much to antagonize my friend from Mobile. I have always had a fondness for that city, even before I moved to the State. It was the first city I ever visited in any life, and our people now feel a great interest and have great pride and great hope for Mobile. Mobile is a great city now and in the rears to come will be a much greater one, and I dislike because of the fact that my section of the State is linked commercially and industrially with that great city to antagonize it.

We expect eventually, when our water connections have been made complete, to find with our products, through the gates of that city, the markets of the world. We are proud of Mobile, but I do not feel that I can discharge my duty and be true to myself


4379

CONSTITUTIONAL CONVENTION, 1901

without opposing the adoption of this Section. There may be a good reason for it. If there is, I have never heard it. If there is a good reason for it I know that the distinguished gentlemen who represent Mobile upon the floor of this Convention can give us that reason and give it to the people of the State just why Mobile, the richest city in the State, has more wealth per capita than any other city in the State; just why it is allowed to withhold from the public treasury its license tax for the sale of vinous, spirituous and malt liquors amounting to $44,000 last year. I am unable to understand, and in addition to that the county of Mobile does not only withhold this $44,000 for last year, but it has been withholding that from the State Treasury since 1852, and if it received only one-half as much per annum in the past or rather if it withheld half as much per annum in the past as it did last year, the State of Alabama has already contributed to it in round numbers $1,000.000. Is that right? Is it right that every city or every other county in the State to pay the license derived from the sale of spirituous liquors into the State Treasury and yet it be withheld by the county of Mobile?

MR. PILLANS‑I know the gentleman wishes to be fair in his statement. Mobile County procured this authority to put a license on liquor dealers in 1852, many years before the State put license on theirs for any purpose, and therefore did not withhold from the state Treasury, but taxed her own people for the schools.

MR. WHITE‑ That I suspect is no doubt true, but it was about that time that the different States of the Union commenced to tax or impose a license tax as a matter of police regulations upon the sale of vinous, spirituous and malt liquors. How long Mobile imposed the tax before it was imposed by the balance of the State, I do not know, but I do know that it has been imposed for a long time since the State has been imposing it upon other counties, or upon that industry in other counties. Now I say I hope there is some good reason for this, something that will satisfy the people of Alabama and make their feel that it is right. I can not believe that Mobile will want anything that is wrong. I feel that that great county wants to be fair and just. And when we see the interior counties struggling for education where education has been denied their for nearly a half century, how can it be fair for Mobile to withhold from the public treasury $44,000 which ought to be distributed, and allowed to flow to the public schools in all the counties of the State. That is not the worst of it, either.  Mobile does not only withhold from the public treasury this amount of money, but this very Section provides that the only sway upon which the public school system of Alabama shall bear upon the county of Mobile save that superintendents shall make report and that there shall be a separate school district for the two races is that Mobile shall be allowed to withdraw from the Treasury its


4380                  

OFFICIAL PROCEEDINGS

share of the public school fund. Last year it withdrew from the Treasury its share of the public school fund the sum of $19,000, and this year I am informed it will withdraw from the public fund for the schools in this State $25,000. Now if this is right, if this can be defended, I want to know it, and I know that her distinguished sons upon the floor of this Convention can make it plain if it can be made plain. I am not in favor of the amendment offered by the gentleman from Calhoun. I do not believe that another county ought to be added to that of Mobile. If it is wrong for Mobile to have it, then it is wrong for Calhoun to have it.

MR. GREER (Calhoun)‑If it is right for Mobile to have it, is it not also right for Calhoun to have it?

MR. WHITE‑ Yes sir, then I will answer that it is right for every other county in Alabama to have it. I have an amendment I am going to offer. It is not an amendment to this, it is true, but I am going to offer it as a separate Section, that every county in Alabama will have a right to withhold all monies derived from the license of retailing for the purpose of applying it exclusively to the schools of the counties from which it is derived. I believe then that would be nearer right.

MR. BAREFIELD‑I would like to ask the gentleman if we have too many amendments here this afternoon, if it does not virtually mean that the prohibition counties have got to go into the liquor business.

MR. WHITE‑ No, I understand not. They would have the distinction of being prohibition counties and they might very willingly part with the revenue in order to get rid of the vice and coil, but even these little dispensary counties, as I understand it, ever the State where the towns or the school districts whatever they arc that are operating these little dispensaries have to contribute to the public treasury their share. Of course the great county of Mobile shares in that with them when the very purpose was the main purpose of the dispensary of course is to regulate the sale or regulate this evil and then to save the money derived from it and apply it to the public schools of the towns or district. Now I say, Mr. President, it pains me to have to make this fight. These delegates upon the floor are my friends, but I feel that it is my duty and I feel that I would not be discharging my duty to the people of Alabama to allow this Section to go unchallenged into the new Constitution. They tell us that the Legislature may regulate it, but how long have we waited for the Legislature to do it. We have waited since 1852. How long may we expect to wait?  If we must wait upon the Legislature to take action in the premises, and if this body, the sovereign body of the people assembled as such a body cannot do it, and will not do it, how can we expect the Legislature to do that which we ourselves refine to do?


4381

CONSTITUTIONAL CONVENTION, 1901

MR. SAMFORD‑I desire unanimous consent to withdraw the amendment I offered a while ago.

There was objection.

MR. SAMFORD‑I hope no one will object to that.

Consent was given and the amendment was withdrawn.

MR. SMITH (Mobile)‑The gentleman from Jefferson stated he presumed that if there was any good reason why Mobile County should be exempt from the operation of this general law that her representatives ought to be able to state it. Mr. President there has been for some reason a consensus of opinion among the representatives of the various sections of Alabama, since 1854 at least, in the fact that there was some good reason why the county of Mobile should enjoy this exemption and if I knew nothing of the history of the surrounding circumstances of the matter I should be inclined to think, after so many men of ability, representing the people of the State through so long a period of years had assented to its propriety, that there must lie some justice or some equity in the claim or it would not have been so universally conceded, but, Mr. President, the Mobile school system, which is separate and distinct from any other school system in the State of Alabama, has its birth long before there was any such thing as a school system in any other portion of the State. It was originated as a public school system before any other such system was known to the State. Money was expended by her people in the erection of buildings and in the creation of the system that has acted as a stimulant and as an object lesson to the rest of the State.

Mobile erected at very considerable expense, which was wholly independent of any contribution from the State, buildings of considerable magnitude and has instituted and created a system that has done credit to our State from its inception. In 1854, my recollection is, when, as said by my colleague, there was no such thing as a liquor license known to the laws of this State she, for the purpose of building up a free school system of education for the citizens in her confines obtained permission from the State of Alabama to levy a liquor license for the benefit of that school system and it is that liquor license that was levied and used by the county until the State also levied a liquor license throughout the State and it has been allowed to stay in the county's hands until the present time. With the encouragement she has received from the State, Mobile has built up a school system which I believe exceeds in perfection and beneficial results any other school system in the State. She has had it and had the benefits of it since 1854.  It has been attacked from time to time but Mobile County has successfully maintained her position, and if there was no other reason than the fact that the system has stood as an educational


4382                  

OFFICIAL PROCEEDINGS

monument for this length of time and been approved of by the people of the State we should feel that it was a piece of vandalism to tear down the system and render absolutely useless the expensive buildings Mobile has erected ; but, Mr. President, I have taken occasion since I came here to look into this question of inequalities between the contributions male by the County of Mobile and the contributions made by the other portions of the State to the maintenance of public schools. I have heard for years that Mobile did not contribute her fair share to the funds of this State and I was perfectly astounded upon looking into the facts to find that Mobile after retaining her liquor licenses contributes more per capita to the support and maintenance of the State of Alabama than any county in Alabama, not excluding the great county of Jefferson. I find, Mr.  President, that there is a property tax, not including licenses, in this State of $1,467,972.92; that there is a population of something over one million eight hundred thousand, making all average tax paid by each citizen of this State of 80 cents per annum. I find that Mobile pays a property tax irrespective of all questions of license, of $114,784.68 according to the Auditor's report of 1900. She has a population of 62,740, making a payment, upon property tax alone, of $1.82 per capita against an average payment of eighty cents. So that Mobile County contributes per capita more than twice as much to the support and maintenance of the State, general fund and school fund, than the average amount contributed by an individual of the State.

MR. WHITE–I want to ask you if that does not show that Mobile had more property per capita than any other county in the State.

MR. SMITH–I am coming to that in a minute.  This is the largest per capita tax in the State.  Now, Mr. President, the city of Mobile constitutes about one-fourth of the wealth and population of the entire county.  The city of Mobile in area is about the size of the city of Birmingham.  She has a population almost the same of Birmingham.  The real estate in Birmingham is at least fifty per cent higher‑‑‑ I speak of the market value of real estate -- than real estate in the city of Mobile. Outside of the city of Mobile there are no cities and no towns of any considerable size and no urban property. In the county of Jefferson there are a number of other towns of great prosperity and hence having property of considerable value. The outlying property in the county of Mobile is of no value for farm purposes. In the county itself there is but little timber, so that there is but little value to anything but the urban property. While in the county of Jefferson there is not only farming lands but there are stores of wealth beyond that in any other portion of the State. Now, Mr. President, in addition to that there are more railroad in the county of Jefferson than in the


4383

CONSTITUTIONAL CONVENTION, 1901

county of Mobile. There are more large institutions in that county.  There are institutions there worth millions against institutions of hundreds of thousands in Mobile. In fact there are no great institutions in Mobile, and yet the city of Mobile equal in size and population to the city of Birmingham contributes to the State's fund more than the city of Birmingham. Now, Mr. President, my friend says, is that not because she has more property. Every man within the sound of my voice knows that it is not true that values of property in the city of Mobile exceeds the value of property in the city of Birmingham, and I can come to but one conclusion and that is that the city of Mobile simply pays more upon an equal amount of property, I will say by way of concession, more than does the city of Birmingham.

MR. REESE‑ Will the gentleman allow me to make a motion to extend time ten minutes?

Upon a vote the time was extended ten minutes.

MR. SMITH‑ Now, Mr. President and gentlemen of the Convention, Jefferson County pays a property tax on $217,412,33 and has a population of one hundred and forty thousand four hundred and twenty, making the payment per capita $1.34 against a payment by Mobile of $1.82 per capita.

MR. WHITE‑I wish to ask the gentleman if he is not mistaken. If Jefferson does not pay tax to the extent of $269,000?

MR. SMITH-‑She does not on property. She does on her license and special taxes, but not on property tax.

MR. WHITE-‑ Against $118,000 for mobile?

MR. SMITH‑I beg your pardon. The license tax is taken out while Jefferson's is included in these figures of yours. If my friend will look on page 18 of the Auditor's report, he will find the figures I am giving him, making Jefferson's payment $1.54 against 1.82 by Mobile, or a difference of 28 cents. If she paid at the same rate as Mobile, she would have to pay $39,317.60 more than she now pays, while her liquor license tax is only $34,800.  So that, if the County of Jefferson paid on the same basis as the County of Mobile, and took out her license tax, she would find herself obligated to pay $5,000 into the State Treasury more than she now pays. Montgomery is the next closest to Mobile. Montgomery pays a property tax of $110,054.74, and has a population of 72,047 making a payment of $1.40 per capita or 42 cents per capita less than Mobile. If she paid at the same rate as Mobile, she would pay $30,259,04 more than she now pays in, and her liquor licenses only $24,700, so that Montgomery, if she went on on the same basis per capita and kept her licenses she would have to pay in $5,000 more than she now pays in. There is another county (which I shall not mention by name, because there is no discussion as to that county at the present, but it is one that I understood was going


4384                  

OFFICIAL PROCEEDINGS

to make an amendment), whose tax is $21,567.82. Her population is 26,559, making a payment of 80 cents, which is the average per capita all over the State, or $1.02 less than Mobile. If she paid at the rate Mobile pays, it would cost her $27,090 more than she now pays, and her liquor licenses is only $3,050, and, besides that, she gets the benefit of $7,500 on her Normal School, so if she came in on the same basis as Mobile County, she would pay more than twice the amount of taxes she now pays into the State. Now, then on the question of property tax and license tax, both put together, the total property tax of the State is $1,467,972.92. The total license paid in is $205,288.09, making in all $1,673,261.01, or an average of 93 cents per capita. Mobile County pays on property, as stated, $114,724.68. She pays on licenses of $60,510.58, part of which she retains, however, making $175,235.26, which is an average payment of $2.62 per capita. Now, she actually pays in out of that license only $15,987.58, making her actual contributions to the State upon property and licenses $130,712.43, or a per capita of $2.08 paid in upon property and license tax. Without going into the figures, which I have here, but to economize time, I will simply say that I find that Jefferson pays on the same basis at the rate of $1.97. That is upon property and license, 65 cents per capita less than Mobile, and that if she paid on both licenses and property upon the same basis that Mobile pays, then took out her license, as Mobile does, she would pay in $46,463 more than she now pays Montgomery, upon the same basis, would be out $24,300 besides $7,500 in her Normal School. Now, I have not called attention to these figures and comparisons with Jefferson and Montgomery because of any hostility to those two counties, but only because they are the only two counties in the State of Alabama that anything like approximate the per capita paid by the County of Mobile.      

On the contrary, every other county would pay more than 100 per cent more than their present contribution if put upon the same basis with Mobile. I cite these two counties, as I said before, not in hostility to them, but to show that each of these three counties contribute more, not only a lump sum, but per capita, than any other county in the State, and that Mobile, after taking out her licenses, absolutely pays per capital into the treasury more than any other county in the State.

This Convention has determined that the whole tax upon property shall be 6.5 mills; that of that 3 mills shall be applied to school purposes, making six-thirteenths of the entire property tax applicable to school purposes, and seven-thirteenths applicable to general purposes. If her property tax averages 80 cents, as it does, that will make about an average of 37 cents per capita for school purposes and 43 cents for general purposes, Now. Mobile pays $1.82 upon property alone, and, taking from it the average of43


4385

CONSTITUTIONAL CONVENTION, 1901

cents for general purposes, would leave her paying $1.39 over and above her fair proportion for general purposes, which is almost four times as much per capita as is paid by any other counties, save Jefferson and Montgomery, for purposes other than for general State purposes. But if you take the average, with the licenses included, you will find that there is 56 cents that would be applied to general purposes, and, on that basis, Mobile would pay an excess of $1.52, she paying on license and property $2.02, or almost five times as much as is contributed by any other county, save the two I have mentioned, to purposes other than the general purposes.

So, Mr. President I say that when you take the figures, you will find that Mobile does not shirk her proportion of the general burdens, and that while this is owing to the high assessments in Mobile, she does, in fact, after retaining her required license for her school fund, contribute more than her full share to the maintenance of the State and her public schools. I think, therefore, that there is no reason in equity‑-no just reason-‑why her system----

MR. HOWZE‑ If this section were left out of the Constitution, would it affect the right of Mobile to retain the license under the act authorizing it?

MR. SMITH‑ Undoubtedly.

MR. HOWZE‑ It would?

MR. SMITH‑ I think so; but there is something more in it than that license money. Her entire school system is different.  It was formed under the act of 1854, and is upon an entirely different basis.

MR. HOWZE‑ Has that act been repealed in any way?

MR. SMITH ‑ Never.

MR. HOWZE‑ Would not you be entitled to keep that money under the act if it were not in the Constitution?

MR. SMITH‑‑I think not. Your present article creates a school system and provides for the regulation of public schools and provides how the funds for that school system shall be applied,

and it is with reference to that that the act was passed.

MR. JONES (Montgomery)‑Isn't it a fact that Mobile county, owing to the worthless character of its land, gets less benefit from the 16th section fund than any other county in the State?

MR. SMITH‑ Yes, sir, gets hardly any benefit, practically none.


4386                  

OFFICIAL PROCEEDINGS

MR. JONES‑ Isn't it a fact that a great many people in the surrounding counties send their children and are admitted into Mobile schools?

MR. SMITH ‑Yes, sir, we have a primary department and a high school department and the high school department is a good educational department and that is practically the normal school for that section of the country. Under our rules anybody in the State of Alabama, I don't care where they come from, I don't care whether they reside in Mobile permanently or board there, are allowed to attend the high school and receive an education just as the school children of Mobile county.

MR. JONES (Montgomery)‑Will you kindly inform us what the tax rate is in the city of Mobile and Mobile county?

MR. SMITH‑‑ Two and seven-tenths this year, and besides I would say, there is an indebtedness upon property there of thirty per cent. upon its entire value.

MR. GREER (Calhoun)‑I believe you said that Mobile had less of the 16th section fund than any of the counties. Is it not also true that that amount is made good out of the general appropriation of Alabama and that she receives as much as any county in the State?

MR. SMITH‑I don't think she does, I haven't figured that, but I will say that Montgomery got $23,000 against Mobile's $19,569 and that Mobile has a population of sixty-two thousand against Montgomery's seventy-two thousand, I believe.

THE PRESIDENT‑ The time of the gentleman was expired.

MR. LONG (Walker)‑ Section '13 of the article as reported favorably by the Committee on Education is an exact counterpart of Section 11, Article XIII, of our present Constitution. I want to state in the presence of all the members of this floor that I come from a county that has not a roof in the county but what sheds it rain upon one side or the other so that it finds its home at Mobile. I want to state further that I remember well, and my father remembers, when there was no market for coal in the State of Alabama except by transporting it in flat boats, when we had to wait for a rise in the river that would give us a market at Mobile. That was way back yonder in the fifties. Now I am willing to admit that the principle is wrong, but I am willing here to state on the floor of this Convention that there is nobody, not even the delegates from Mobile, who will more gladly vote for sustaining the schools of Mobile than will your humble servant who represents the county of Walker. I want to tell you that I love Mobile as our Gulf port. I want to tell you that there is nothing more in Section 13 than is in Section 11, Article XI, of our present Constitution. It is a copy verbatim. I want to say with all fairness


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CONSTITUTIONAL CONVENTION, 1901

that the mineral region of Alabama, which I have the honor in part to represent oil this floor, has never made any kick against Mobile. I want to tell you that in simple fairness, we are willing to give Mobile that which in her position she has a right to retain. Why, sir, you must remember that a squatter on 160 acres of land, after twenty years, is entitled to the land. All lawyers will admit that. They have had this, Mr. President, for forty years.

We look to the time when the Alabama River and the Warrior River will deliver coal at a less rate at Mobile than coal can be delivered at any seaport on earth. We look for that time and we believe it is near at hand. We are not here to take away from Mobile the right given her in the past and which she has by the Constitution of 1875‑I plead with the delegates on this floor, not as an advocate of a principle that is right I tell you that we have no right to set back a movement that will give us the grandest seaport town in this State, and I tell you that our people in the hills have never dreamed of such thing. I pause for a man to get up here on this floor and say that, he advocated such a thing when he advocated the calling of the Constitutional Convention. I want to look at him. Nobody rises, Mr. President. We never met here for that purpose. It is not a question of sustaining the magnificent public schools in Mobile, but it is a question of tearing down that system and putting it in the Constitution of our State that Mobile shall not be entitled to certain privileges that have been given to her and which have existed since 1852. I am not a partisan of Mobile. but when in my house at eleven, twelve, or two o'clock at night I hear the drippings of the rain that falls upon its roof, I know the natural drain of that water is towards the Gulf; I know that Mobile is the natural port that water will flow to; I know that no State can be great without a seaport, and I know further than that that Mobile is our only port, and I am the last man in the world that would do anything detrimental to Mobile. It has a lovely face, it has a lovely countenance. Mobile! The prettiest word in the English language. I am not seeking it as a home, but it is a great seaport, and it is a great and beautiful city.  Are we here to destroy its magnificent system of public schools? Do we object to the public schools because our fathers didn't have them ? Have we got so low that when we compare the city upon a hill with the one that sets at the mouth of the Alabama River, that we cannot give them justice which they have had since 1852. If it comes to that, as one of the men who has no commercial interest in Mobile, who does not own one of her bonds, which, thank God, stand as high as those of any city in the world. I am the last man that would cry out against Mobile. I am the last man that would stand upon this floor and say it is right to take away from Mobile that principle of self government, that property and license tax that she has had since 1852, because we don't have it.

THE PRESIDENT‑ The time of the gentleman has expired.


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OFFICIAL PROCEEDINGS

The Chair recognized Mr. Graham of Talladega.

MR. WALKER (Madison)‑I move that his time be extended.

MR. LONG‑ Just one word.

THE PRESIDENT‑ The Chair recognized the gentleman from Talladega.

MR. GRAHAM‑I will yield to the gentleman to make one statement.

MR. LONG‑ The only statement that I have to make is deliberately and soberly to say that Mobile, our Gulf City, with all of its public schools, is open and that a free education is offered to every citizen in the State of Alabama. I make that point, and that is all I desire to say. Remember that when you vote to destroy it.

MR. GRAHAM (Talladega)‑The Committee of which I am Chairman has had its report before this Convention for several days, and I believe that this intelligent body is fully informed upon this matter, and I therefore move the previous question upon the amendments and upon the Section.

THE PRESIDENT‑ The previous question is moved upon the amendments and upon the Section. The question is shall the main question be now put.

MR. KYLE– I call for the ayes and noes on the previous question.

The call was not sustained.

The main question was ordered.

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

MR. REESE‑I move to lay the amendment on the table.

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

The call was not sustained.

Upon a vote being taken the amendment offered by the gentleman from Calhoun was tabled.

THE PRESIDENT‑ The question recurs upon the adoption of the original Section as reported by the Committee, and upon that the ayes and noes are demanded. Is the call sustained?

The call was sustained.

THE PRESIDENT‑As many as favor the adoption of the Section as reported by the Committee, relating to the Mobile


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CONSTITUTIONAL CONVENTION, 1901

schools, will say aye and those opposed no as your names are called.

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

AYES.

Messrs. President,

Howze,

Parker (Elmore),

Almon,

Inge,

Pettus,

Altman,

Jenkins,

Pillans,

Ashcraft,

Jones, of Bibb,

Pitts,

Banks,

Jones, of Montgomery,

Proctor,

Barefield,

Jones, of Wilcox,

Reese,

Beavers,

Kirk,

Rogers (Lowndes),

Bethune,

Knight,

Samford,

Blackwell,

Locklin,

Sanders,

Boone,

Lomax,

Sanford,

Brooks,

Long (Walker),

Searcy,

Bulger,

Lowe (Jefferson),

Selheimer,

Chapman,

Macdonald,

Smith (Mobile),

Cobb,

McMillan (Baldwin),

Smith, Mac. A.,

Coleman, of Greene,

Malone,

Smith, Morgan M.,

Craig,

Martin,

Stewart,

Cunningham,

Maxwell,

Tayloe,

Davis, of Etowah,

Merrill,

Thompson,

Dent,

Miller (Wilcox),

Vaughan,

Eyster,

Murphree,

Walker,

Fitts,

NeSmith,

Watts,

Foster,

Norman,

Weakley,

Glover,

Norwood,

Whiteside,

Graham, of Talladega,

Oates,

Williams (Barbour),

Grant,

Opp,

Williams (Elmore),

Greer, of Perry,

O'Rear,

Wilson (Clarke),

Haley,

Palmer,

Wilson (Wash'gton).

Handley,

Parker (Cullman),

Winn.

Total– 84.

NOES.

Bartlett,

Grayson,

Moody,

Beddow,

Greer, of Calhoun,

Phillips,

Byars,

Harrison,

Sentell,

Davis, of DeKalb,

Heflin, of Randolph,

Sorrell,

Duke,

Henderson,

Spears,

Eley,

Hodges,

Spragins,

Fletcher,

Jackson,

Studdard,

Freeman,

Kyle,

Waddell.

Graham, of Montgomery,

Lowe (Lawrence),

Total– 26.


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OFFICIAL PROCEEDINGS

ABSENT OR NOT VOTING

Browne,

Foshee,

Mulkey,

Burnett,

Gilmore,

O’Neill (Jefferson),

Burns,

Heflin, of Chambers,

Pearce,

Cardon,

Hinson,

Porter,

Carmichael, of Colbert,

Hood,

Renfro,

Carmichael, of Coffee,

Howell,

Reynolds (Chilton),

Carnathon,

Jones, of Hale,

Reynolds (Henry),

Case,

King,

Robinson,

Cofer,

Kirkland,

Rogers (Sumter),

Coleman, of Walker,

Ledbetter,

Sloan,

Cornwall,

Leigh,

Sollie,

deGraffenreid,

Long (Butler),

Weatherly,

Espy,

McMillan (Wilcox),

Willet.

Ferguson,

Morrisette,

PAIRS

AYES                                                 NOES

Miller (Marengo),

O’Neal (Lauderdale),

Williams (Marengo),

White.

During roll call:

MR. SANFORD (Montgomery)– I ask leave to explain my vote.

Leave was given.

MR. SANFORD (Montgomery)– I would say that Mobile has for nearly half a century enjoyed the generosity of the State; that today she is under a cloud and shadow of great calamity; that the Section No. 13 is a temporary one and can be changed when the General Assembly deems it proper to change it, therefore I shall vote aye.

MR. WHITESIDES– I ask leave to explain my vote.

Leave was given.

MR. WHITESIDES– I vote for it because it is temporary and the Legislature can change it. I am against the principle, but I vote aye.

And the Section was adopted.

MR. LOMAX– I desire to offer an amendment in the nature of an additional Section.

The amendment was read as follows:

“Amend the ordinance as reported by the Committee by adding thereto the following Section:


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CONSTITUTIONAL CONVENTION, 1901

"Section ‑ After the ratification of this Constitution there shall be paid out of the Treasury of this State at the time and in the manner provided by law, the sum of not less than $36,000 per annum, as interest on the funds of the University of Alabama heretofore converted into the Treasury, for the maintenance and support of said institution; provided that the Trustees of said University at any time they may deem it proper for the best interests of the University may abolish the military system or reduce said system to a department of instruction, and that said action on the part of said Trustees shall not cause any diminution of the amount of the annual interest payable out of the Treasury for the support and maintenance of said payable

MR. LOMAX‑‑ I desire to say to the Convention that the purpose of this Section is to fix in the Constitution the minimum income of the University. The Section provides that there shall be paid annually not less than $36,000. Under the law, as it stands today, the University receives and has received since 1896, $34,000 from the State, $24,000 being the interest on the debt that the State acknowledges that it owes the University, and $10,000 being included in the annual appropriation bill since that year, making $34,000, and the purpose of this amendment is to make it so that hereafter the University shall not have to come to this Capitol every two years or every four years, as the case may be, and beg and lobby for an appropriation of $10,000 in order to prevent two or three chairs of that institution from being destroyed by reason of the withdrawal of that appropriation. For seventy years in Alabama the State University has been the shuttle-cock of legislation, and the time has come, as we believe who love the University, that it should be removed from that position and placed upon a permanent and a firm foundation, although most of them are perhaps familiar with it, and I do not ask this thing to be done on behalf of that institution of charity. If any man will study the history of the University, the origin of its endowment, he will see at once that it ought not to be the subject of legislative caprice. When the State of Georgia ceded to the United States the territory of Mississippi, there was reserved in the act of cession one entire township of land to be devoted to the erection of a seminary of learning. When the State of Alabama was admitted into the Union, the enabling act of Congress which permitted her admission, reserved not only the township which the territorial grant had reserved, but another township of land to be devoted to the erection of a seminary of learning. Two entire townships, seventy-two sections, in round numbers, forty-six thousand acres of land, were reserved for the establishment of what is now the University of Alabama. The State of Alabama, in its Constitution accepted this provision of the act of Congress and prescribed that two townships of land should be reserved for the establishment of that institution and by an act of the Legis-


4392                  

OFFICIAL PROCEEDINGS

lature thereafter, these lands were authorized to be sold at the price of $17 per acre.  A simple calculation will show to this Convention that if that forty-six thousand acres of land hd been sold at $17 an acre (and much of it was sold for more) there would have been realized from that sale the enormous sum of seven hundred thousand dollars. After that was done, after this land had been granted, after it had been reserved and the reservation accepted by the people of this State and the attempt made to sell it, the men who bought the land, many of them, failed to meet their deferred payments. Under any rule of law which has ever existed, the payments which had been made upon the land and the land itself would have reverted to the seller, but under acts of the Legislature of Alabama, those men who had purchased that land and had failed to make their payments, were excused from the payment of the deferred payments, and the land was authorized to be revalued and was revalued at $9 an acre, and more than $150,000 taken from the funds of the University.

After that had been done; after this fund had been scaled down by that means, the State went into the banking business. It had no capital to establish a bank. It authorized books of subscription to be opened in every prominent town in Alabama, and the people of Alabama refused to subscribe to the stock of that bank, but the State had the money of the University in its hand, and by the use of more than one hundred thousand dollars of the funds of the University, they established their bank. For a number of years that bank prospered and grew rich. It earned more than 12 per cent upon its invested capital, but by an act of the General Assembly of Alabama only 6 per cent of that what was earned by the bank was paid to the University and 6 per cent. Of what was earned on the University money was charged to the credit and loss account of the bank.

MR. FITTS– I move that the time of the gentleman from Montgomery be extended so that he will have half an hour in all to make his argument, which will require some time.

THE PRESIDENT– It is moved that the time of the gentleman from Montgomery be extended twenty minutes.

Upon a vote being taken the motion was carried.

MR. LOMAX– Now, Mr. President, I am not without authority in making that statement. I desire to say to this Convention that subsequently to the appointment of the commission to investigate the condition of affairs between the University and the State. Dr. Wyman, the President of the University, recently found among some old papers in a deserted building in Tuscaloosa a report of the President of the State Bank, and that report shows (and I have a copy of it here) that during one of the year that bank prospered, and during several years prior to its dissolution,


4393

CONSTITUTIONAL CONVENTION, 1901

while the funds of the University earned twelve per cent., only six per cent. of the amount was laid to the trustees thereof. Taking one hundred thousand dollars as the amount of the University fund invested in that bank, and calculating the interest on it at twelve per cent., and deducting one-half of that as the money paid to the University, and taking the balance that is left. the State of Alabama, on that item alone, from 1837 up to now, owes the University more, a great deal more, than it acknowledged in the statute which pays eight per cent., or $24,000.

Now the bank finally failed. The University funds were lost in the failure of that bank. A number of years elapsed, and they had what they were pleased to call a settlement with the University. In the acts of 1843, I believe it is, that settlement went into an act of the Legislature and the Legislature enacted that the State owed the University $250,000, and agreed to pay the University six per cent. interest on $250,000. This trustee which had sold the lands of the University of $17 per acre, aggregating more than $700,000; this trustee which by its own act had wiped out the debts of the people of this State to the University of more than one-half or at least $150,000; this Legislature said to the Board of Trustees of the University, by its act, you must accept this or nothing, and yet men stand here and talk about a settlement that you would make with a highwayman who at the point of a pistol had demanded your goods and your money. It was denounced at the time by that splendid man and patriot Isham W. Garrott, who gave up his life for the State in the great war for Southern independence. as the boldest and most unheard of robbery that had ever occurred. Was it a settlement? Let us see what subsequent legislation has done. In 1859 or 60 another act was passed.  There was still a controversy between the State and its University. The University still contended that the State owed it money, and in 1859 or 1860 (and I have the acts here) another act was passed in which the State of Alabama lay the solemn enactment of its Legislature decreed that it owed the University $300,000 and would pay eight per cent. per annum on that amount so long as the military discipline was maintained there. If the settlement of 1843 was fair, why did the State in 1859 raise its debt from $250,000 to $300,000?

Let us go further. In 1896, a lot of gentlemen interested in the University came to the Legislature. They came with the appeal of the alumni of that institution, which was proposed by that old Roman, James H. Fitts, and asked the Legislature of Alabama to right the wrongs of her great institution. Mr. Fitts, in that appeal, demonstrated the fact that the State of Alabama in all justice and all equity and all right, owed the University more than $2,000,000. A bill was passed by the House of Representatives, by 1 vote of 50 to 31, which acknowledged that debt and agreed to


4394                  

OFFICIAL PROCEEDINGS

pay the University three per cent. upon that amount. That bill was killed in the Legislature by executive interference, and the miserable pittance of ten thousand dollars a year was put in the appropriation bill by reason of the defeat of that measure. Then a commission was appointed. The legislature, the agent of the State, which had made two settlements already with the University, and which, by their own action, they acknowledged to be wrong, appointed a commission to investigate affairs. That commission met.  A majority and a minority report were made from it. I do not question the integrity or the purpose of the gentlemen who composed the majority of that commission. They believed they were right, but they acted upon the principle that the State of Alabama was not the trustee of this fund, but that the University was one arm of the government of the State, and that any losses that might have come by reason of the funds being deposited in the State treasury, could not be charged against the State, because she was not a trustee. And upon the theory that the University was an arm of the State government, the majority of that commission decided that no debt was due. Call an institution an arm of the State government when for seventy years the State government has crippled and injured and impaired the usefulness of that arm by strapping it down and holding it fast by meager appropriations?   But the majority of that Committee, a man who stands as high as any man that ever lived in Alabama, Dr. Eugene A. Smith of the University of Alabama, reported and demonstrated by his figures, that, taking the report of the majority of this commission as true, and upon their own figures, the State of Alabama then was indebted to the University in the sum of more than eight hundred thousand dollars. Those reports went to the legislature; they were printed and laid upon the desk of every member and were referred to the Committee on Education of the Senate and House, and those Committees reported to the Senate and House as follows:

"Your Committee on Education to which was referred the majority and minority reports of the Commissioners appointed in pursuance to the joint resolution of the two houses of the General Assembly approved Feb. 18th, 1897, beg to

"Report that they have had the same under consideration in connection with the reply to the majority report, which was filed with the Committee by the Executive Committee on the Board of Trustees of the University and representatives of the Society of the Alumni, which accompanies the report. And your Committee further

"Report, that owing to other duties it has not had time to investigate the matters of law and facts contained in said reports and reply sufficiently to come to any conclusion that is satisfactory to your Committee.


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CONSTITUTIONAL CONVENTION, 1901

"Your Committee (the Committee on Education of the Senate concurring) recommend that the said majority and minority reports and reply, be spread upon the journal of the house for the information and consideration of any future legislature."

So that legislature, following what had been done, admitted that the question of the indebtedness of the State to the University was still an open question. The friends of the University contend that the State owes that vast amount of money, but we do not ask you, gentlemen of this Convention, to acknowledge that debt.  We ask you simply to put us in a position where we will be removed from politics: where we will not have to come every two or four years to the legislature and beg for ten thousand dollars to prevent three chairs of the University from being overturned and destroyed. I know men have said that the University is nothing more than a high school. It is no more a high school now shall it was in the past. You must judge an institution by its results. Look at the men who have come from it, Clement C. Clay and Jerry Clemens and Governor Roberts of Texas, and Herbert, of the present day.  Look upon the floor of this Convention. and leaving myself out of the calculation, there sit upon the floor of this Convention thirty graduates of the University of Alabama, and I say to you, without fear of contradiction, that in all the elements that go to make up a perfect manhood, they measure man for man with any thirty delegates upon this floor. In all the walks of life, in Congress, at the bar, in the pulpit, in commercial and business and agricultural life, the sons of the University are the prominent men of their section and their counties. An institution that has done so much good work will do good work in the future.

Now, it has been said that it is under the influence of politics.  It has become a catch phrase in the politics of Alabama to say that the University is controlled by politics. When has it been so controlled? Was it controlled by politics when the distinguished gentleman from Wilcox was elected President of it, because of the high character that he had maintained in the State?  Was it controlled by politics when James K. Powers, who had all his life been devoted to normal education, was elected? Was it controlled by politics when that grand old man. William S. Wyman was selected for its President in June?

So far as I am concerned, I want to say that I have been on the Board of Trustees of the University since 1897, and so help me God, if I ever cast a vote there that was controlled by political influence, I did it without my knowledge and without my consent, and I want to say in addition to that, that, of the member of that Board, as I have seen theirs and as I have known them, every vote that they have taken have been for the best interest of the University as they saw it and without regard to politics or to the preferences or choice of any man on earth.


4396                  

OFFICIAL PROCEEDINGS

Now, I say, Mr. President that this University ought to be put beyond the pale of politics. On yesterday you did something which removes the possibility of politics in ones direction, because you adopted a proposition which prevents even a lobby upon the question of who shall be its trustee. Put it in that position where it does not have to come here every four years and beg for money, and you still further remove it from politics. Why, take the thing as it stands today: You have provided for quadrennial sessions of the legislature; therefore an appropriation bill covering the $10,000 that is due and ought to come to the University must have in it $40,000 for the State University. Take a demagogue upon the floor of the House of Representatives and let him get up here and talk about the barefoot boys and all that sort of stuff, and question the Legislature and say, are you going to give $40,000 to educate the sons of rich men? And the $40,000 appropriation falls to the ground and the University is crippled and destroyed. Now, what I ask of this Convention is to put the University upon such a plane that she will not have to come Here year after year and beg for that which belongs to her of right.

I have recently received a letter from Dr. Wyman, the President of the University, in which he reviews the income of the different colleges which are dependent upon land grants by Congress, and he states in that letter, and the figures show it, and I ask leave to have it read and printed as a part of my remarks, that the State of Alabama stands at the very foot, or almost at the very foot of the list in reference to her great institution of learning.  Now, Mr. President, that ought not to be so. I have not voted against any appropriation for the common schools. If I know my own heart, I would be willing to grant millions to the common schools, if we had it to grant.

I don't believe that this State ought to take one backward step in its appropriation for the benefit of its Confederate soldiers. They ought to be maintained in comfort, aye, in luxury, until they join the grand army up yonder where Lee is now in command.

But I appeal to this Convention to look to higher things. You need a capstone to your educational system ; you need a great institution where men can go and qualify themselves to occupy any, position in the world. Great educators have said to me in the recent past that there is one need of the South; that need is a great Central University, like Harvard and Yale and Princeton and the University of Chicago. They have said to me, in addition to that  that the University of Alabama is the ideal place for the founding of such an institution but can you hope to found‑ it; can you hope to lay even the bed rock of such an institution when, year after year, and day after day, the University is put to the necessity of coming to the Legislature and begging for the very staff of life? You cannot do it. The University is and should be


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CONSTITUTIONAL CONVENTION, 1901

the great central sun around which revolve the educational and intellectual life of the State, and I appeal to this Convention, not simply because I am a Trustee of that institution, but because I am an alumnus of it. The best influences that have ever come in my life, save those that came from my home, are those which came to me from her classic halls. I have done all that I could in the years that are gone for her prosperity and her advancement and her power, and I propose to do all that I can in the future years that are left to me to make her an institution that shall reflect credit upon the State of my birth and of my love. I ask this Convention for this small pittance. It does not amount to much. It will not take a dollar from the common schools. It won't take a cent from the Confederate veterans. It won't account to a row of pins in the payment of the State's debt, but it makes the University safe and sound, and if you do it, gentlemen of the Convention; if you put her upon high ground, where politics can not enter, and where the sole purpose will be her advancement and her progress, she will rally to her aid her sons from the Tennessee Valley and the Gulf, and they will do the rest.

I ask the reading clerk to read this letter from Dr. Wyman already referred to in my remarks.

Mr. Wilson (Clarke) took the chair.

The letter was read as follows:

University, Ala.., Aug. 12, 1901.

Hon. Tennent Lomax, Montgomery, Ala.:

Dear Mr. Lomax‑ I send you enclosed some statistics compiled from the "World Almanac" for 1901, showing (1) the amount of productive funds of all the land grant colleges in the United States (that is, endowment from sale of lands granted by Congress) ; (2) the amount of annual income of the same from all  sources, including interest on endowment, appropriations by the Legislatures and by Congress, special taxes, tuition fees, etc. In many of the Western States, there is a special tax levied on all personal and real property for the benefit of the State University.  The very large income of the Universities of the following States, viz.: Missouri, Iowa, Wisconsin, Kansas, Nebraska, and some others is derived from a very small special tax levied on all the real and personal property in the State for the benefit of the State University. In some there are perhaps regular appropriations by the Legislature also.

I send you these statistics, not with the hope or expectation that any taxation of this sort can be incorporated in our new Constitution, but only to show what royal benefactions these Universities receive from the people through their Legislature, by comparing them with the small sum that you are asking for from


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OFFICIAL PROCEEDINGS

the people for the University of Alabama; also to show, by comparison, what a small annual income we have.

In point of fact so far as State liberality is concerned. we are  at the foot of the list. We receive from the State only $24,000 interest on the endowment, and appropriation by the Legislature of $10,000; total, $34,000. Or, if you count our total income, including royalty on our coal lands, tuition and incidentals, we are still near the foot of the list. Idaho, $46,000; Mississippi, $42,696; Oregon, $42,000 ; Montana (lands unsold), $22,790 ; South Dakota. $45,000, are the only Universities that receive less, all told, than we get.

Large sums received by many of the universities and colleges are derived from the proceeds of the sales of the public lands given by Congress to the so-called land grand agricultural colleges. This accounts for the large incomes of the agricultural colleges of Alabama and Mississippi‑$67,000 and $66,000, by comparison with the income of the State Universities of these two States.

In many States the State University embraces the Agricultural College and gets the benefit of all these funds.

Yours truly,

(Signed)                                                          W. S. Wyman.

LAND GRANT UNIVERSITIES AND COLLEGES.

Total annual income, endowment and appropriation and State and National Product taxation, tuition, fees,

NAME                                STATE                         Fund.              etc.

*Clemson College________South Carolina_____                             $   80,000        $  87,000

*Cornell University_______New York ________                             6,756,370           810,562

Indiana University________Indiana___________        600,000          137,797

Iowa State University_____Iowa_____________         682,333          107,063

*Louisiana State University___Louisiana______             ______            47,333

Massachusetts Agricultural College_Massachusetts__ 360,575                49,157

*Alabama Polytechnic Institute ___Alabama____        250,000              67,245

*Michigan Agricultural College____ Michigan___      694,000             180,000

*Mississippi Agricultural College___ Mississippi__       98,575               66,115

Ohio State University ______Ohio____________       553,893           268,000

*Pennsylvania State College___Pennsylvania____      517,000            118,626

State University of Iowa _________Iowa_______      235,000           256,684

University of Alabama ________Alabama______       300,000              47,425

University of Arizona______Arizona__________       _______             50,000

*University of Arkansas_____Arkansas________       135,000             68,703

University of California_____California________    2,823,254            475,254


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CONSTITUTIONAL CONVENTION, 1901

*University of Colorado_____Colorado                                       80,000

University of Idaho_____ Idaho                           7,500,000        46,000

University of Illinois_____ Illinois                           501,902         483,148

University of North Dakota_____North Dakota                             51,139

University of South Dakota_____South Dakota                              45,000

*University of Tennessee_____ Tennessee               425,000         83,859

University of Texas_____ Texas                                                     169,145

University of Utah_____ Utah                                   185,000         53,000

*University of Vermont_____ Vermont                    317,682          75,243

State University of Washington_____ Washington                             55,000

University of Wisconsin_____Wisconsin                      500,000        400,874

University of Wyoming_____ Wyoming                                              50,000

University of Kansas_____ Kansas                           142,000        160,000

University of Maine_____ Maine                          1,044,091        103,681

University of Michigan_____ Michigan                        830,000        555,623

University of Minnesota_____ Minnesota                   1,307,219         428,678

University of Mississippi_____ Mississippi                     540,000           42,696

University of Missouri_____ Missouri                     1,185,000       230,000          

University of Montana_____ Montana                       **                      22,790

University of Nebraska_____ Nebraska                       175,000         248,000

University of Oregon_____ Oregon                           185,000           41,320

MR. SANFORD (Montgomery)‑The amendment which I hold in my hand has been accepted by my colleague from Montgomery.

The amendment was read as follows:

“Amend by striking out the words ‘the Trustees of the University,’ and insert in lieu thereof the words, ‘the Legislature shall have the power.’

MR. LOMAX‑ With the consent of the Convention I will accept that amendment.

MR. COFER‑ I desire to offer an amendment.

THE PRESIDENT‑ An amendment is not in order at this time.

MR. HEFLIN‑ I desire to have the amendment offered by the gentleman from Montgomery.

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

---------------

All those marked thus * received the moneys derived from the proceeds of the sale of public lands according to the Acts of Congress. Probably those also that I have not marked, because I am not sure.

‑ 2,000,000 acres in land and $579,000 in bonds.

Lands unsold.

**Seventy-two sections of land not yet sold.


4400                  

OFFICIAL PROCEEDINGS

MR. LOWE (Jefferson) ‑ I will state in reference to the amendment. The amendment simply strikes out the word "Trustees" where it applies to the abolishment of the military, and leaves it to the Legislature to abolish the military. It takes away from the Trustees the power to abolish the military and leaves that power with the Legislature.

MR. LOMAX‑I rise to move the previous question on the adoption of the amendment of the Section.

THE PRESIDENT PRO TEM.‑ The gentleman from Montgomery (Mr. Lomax) asks unanimous consent to accept the amendment proposed by the gentleman from Montgomery, (Mr. Sanford.)

MR. LONG (Walker) ‑‑I object.

MR. COFER– I rise to a point of order. This is introduced as an original Section to the Article. I received recognition from the Chair for the purpose of introducing an amendment‑‑

THE PRESIDENT PRO TEM.‑ The gentleman is in error. The Chair recognized the gentleman from Talladega, and the question was on unanimous consent.

The question is on the amendment.

The gentleman from Talladega has the floor.

MR. OATES‑I rise for the purpose of speaking to this matter. Some of the delegates here know something about it besides my colleague from Montgomery. and I would like to be heard on it.

THE PRESIDENT PRO TEM– The gentleman is not in order for that purpose at this time.

MR. GRAHAM (Talladega)‑I yield to the gentleman at his  urgent request. I am anxious I say, to get through, and I hope there will be no more extensions of time of any speaker in this matter.

MR. OATES‑ It is impossible, Mr. President and delegates of the Convention, to discuss this matter as I believe it ought to be, in ten minutes time. It is therefore with great reluctance that I enter upon it. There is much more in it than has been brought out by my colleague, who is one of the Trustees.

MR. KYLE– I move that the gentleman be allowed twenty minutes.

The time was extended ten minutes.

MR. OATES– Mr. President, I do not wish to bore any man or delegate by anything that I will say, and I am not chargeable,


4401

CONSTITUTIONAL CONVENTION, 1901

I believe, with useless consumption of time, with what I may undertake to utter. It is quite true, sir, that .the endowment of the University by the lands of the United States is very great. It is quite true that those lands were disposed of, and that the endowment treated as endowments of other institutions of the State, with perfect recklessness. But there was a settlement made several years ago by the authorities of the University of the State of Alabama by which they agreed to consider $300,000 the debt from the State, and the appropriation on that sure of 8 per cent, $24,000, I think is the way they got that amount.

MR. FITTS‑ Will you permit an inquiry?

MR. OATES‑I have not much time. What is it? Let me hear it ?

MR. FITTS‑ You do not mean to say that the University ever recognized that as the true amount of indebtedness due to it, do you?

MR. OATES‑I was informed by the representative of that institution that they agreed on that.

MR. FITTS‑ You were misinformed.

MR. OATES‑I did not say that they stood on that. They have been working on it ever since.

MR. FITTS‑ They never did accept the $300,000 as any true settlement.

MR. OATES‑ Those who represented it, I was informed, did agree to it. If you will let me alone I will go on. I thought myself when I was informed of it that it was too small a sum, and that the State ought to have acknowledged a greater one. Now, it is in keeping as said with the other actions of the State. You take the 50,000 acres of land script that were given to found the Agricultural and Mechanical College. It was a live question when I was a member of the House of Representatives in 1870 and 1871 as to what we would do with that, and it was practicable at that time to have located that script on the rich lands of Nebraska, but they declined to do it, and it was sold at $1.25 an acre, and covered into the Treasury and used for State purposes, and consequently the State owes that amount of money. That is the measure of the appropriation on the part of the Legislature for the support of the Auburn College.

MR. LOMAX‑ Is it not a fact that the State of Alabama pays to the Agricultural and Mechanical College 8 per cent. on every dollar that was received from the sale of the lands of the Agricultural and Mechanical College?


4402                  

OFFICIAL PROCEEDINGS

MR. OATES‑ No lands were sold‑ they sold the script at $1.25 an acre.

MR. LOMAX‑ Does not Auburn get $60,000 from various resources.

MR. OATES‑ Now, sir, while I never did believe that that was as large a sum as the State of Alabama ought to have acknowledged itself owing to the University, yet I stated that I understood that. It went on until in then winter of 1896 and 1897 about the time I went out of the Executive Office. I remember the agitation, which finally culminated in the acknowledgment of much larger sum, my colleague states about $2,000,000, and I am informed that measure was vetoed by the then Governor Johnston.

MR. LOMAX‑ It was not vetoed by the Governor. It did not pass‑

MR. OATES‑ Well, I do not know. I may have been incorrectly informed, but they passed a measure appropriating $10,000 a year to aid the University, and that has gone along ever since. Now, sir, this proposition of my colleague is to put it $36,000 a year. Now, sir, is it right and fair to appropriate out of the Treasury $36,000 a year to the University. Let's look a minute and see. The University was endowed as my colleague stated, but during the war, and at the time when the Federal troops came there some of the boys in the University, gallant young fellows, went out to meet their, and shot some of them, and they came in and took possession of the building and burned a good many of them, and occupied the others for a considerable time. In order to make that loss good our senior Senator, the able Morgan, conceived the idea of originating a bill, and passed it through the Senate, to give the University 46,080 acres of the mineral lands of the State of Alabama. It came to the House and I got it referred to the Judiciary Committee, of which I was a member. I engineered it through and it was passed through the House of Representatives on my statement out of its order. Now sir, of those lands remained a considerable number of acres not sold.  They have not been utilized in that way. If the sale that was made by Governor Johnston would stand it would leave the University with 30,000 acres of rich mineral lands still. That was over 4,000 acres. There is an attempt made, and I do not know anything about the negotiations, to return that land and to repay the money which would make nearly thirty-five thousand acres of mineral lands the State owns today. Now without attempting to go into that transaction at all, because it will take considerable time to do it, and I do not know that it is material to consider it here, yet the sale of that land, there was evidence to show that (whether there was fraud or not I do not undertake to say) there is plenty


4403

CONSTITUTIONAL CONVENTION, 1901

of evidence extant, to show that the sale of that land at $12.50 an acre was the market price. No lands could be sold, and Eugene Smith and his assistant in geology afterwards examined and so certified. Now, sir, $56,000 was laid into the treasury on that purchase and that money has been lying; there all the time, that tax‑payers have been paying $10,000 a year to run the University.  No man is a greater friend of the University than I am, although I never had the benefit of a college education, I delved by night and worked as a hireling and got all the education that I possess, which is limited. I am sorry to say, but I know a good thing, when I see it. The University has a future which it is not yet on the road to reach at all. It has a splendid location, a good climate, a beautiful situation, and it ought to rise to an equal footing with the very best universities in the United States and the road is open to it. if it will only pursue it. In the first place they ought to abolish the military system. There never was a genuine University that had it. That does for a second class college, and people send their boys there to leave them disciplined and to keep them out of mischief. Instead of doing this, there should be sent young men who are better qualified than those received now, elevate the standard of qualification, and put them on their honor, and there is no reason why. properly endowed and properly conducted, the University of Alabama cannot equal Yale or Harvard before many years roll by. That is one step in the right direction to abolish the military system and to elevate the qualifications of the young men who are matriculated there. Then to move on, money is necessary. Now you are going adopt this measure and drag out of the people more than ten thousand dollars a year than now.

MR. LOMAX‑ Not ten thousand-two thousand.

MR. OATES‑ Thirty-six thousand dollars is two thousand dollars a year more than the State is now giving them. Are you going to do that with the facilities it has for giving money?  Would any man acquainted with finances make this proposition The Convention could pass an ordinance providing for the issuance of bonds for a million dollars of bonds and with the security of all that land, that mineral land to back them. and get the friendship of men in financial circles to float them at 4 per cent and you can get all the money you want to elevate that University up and put it on a higher plane and you will go along without any drain on the treasury, and taxes of the people. It seems to me that the road is plain, and easy to it. I desire to say it, why gentlemen, we want a University equal to any State in the Union. Why not have it, with all of that rich mineral wealth belonging to the State for the benefit of the University. With this splendid location, with an excellent climate, why not utilize what is in our grasp? We can provide, or ask the legislature to provide for the issuance of any quantity of bonds that may be sold at a low


4404                  

OFFICIAL PROCEEDINGS

rate of interest. Some of the lands have been leased and other; can be leased, and have a sufficient income to pay the interest on the bonds. Let them run for fifty years, and I tell you fifty years hence the young men coming on and seeing that institution will bless the men of this age, the Convention, if it takes such action and the trustees of the University, and all connected with it, for establishing such an institution of learning as that, and instead of going away to the North to institutions there in which to seek a diploma, we will soon have men from those cold regions up there seeking the University of Alabama, in which a certificate of graduation will be as great an honor as it is in one of the old institutions of the North. There is nothing to prevent it. If we go to work right. I do not think this ought to become a part of the Constitution. I think that my friend in his enthusiasm or the University is making a wrong step. I wish he had prepared an ordinance and presented it here for authorizing the trustees to issue bonds for and in behalf of the University secured by the mineral lands. I would take great pleasure in aiding him for pass that, because it would have the force of law by a body here that makes all departments of the government and I believe that it would redound to the benefit of that institution, and make it one of the greatest, the greatest in the South. It would reach a greatness and elevation that it could never reach in any other way. You continue to draft on the treasury for little appropriations, and while lie says that is not much‑‑ it is not in a certain sense‑ but why do it when it is wholly unnecessary. My opinion was that they had better take the $56,000 lying up there, because thirty thousand acres of land is still left. It seems they are trying to do that and hold onto the lands. Is that good policy. I think it against the interest of the tax‑payers, against the interests of the people, and against the interest of the University, and the other course in my mind is better and by it we will build up an institution that our people will be proud of, and all those who succeed us for one hundred years, and as long as time endures. will grow prouder and prouder.

MR. FITTS‑ Mr. President and gentlemen of the Convention, the distinguished gentleman who has taken his seat, I have no doubt, is deeply interested in the University of Alabama and in the future usefulness of that institution. but this is a business matter that is before you, and in the ten minutes that is allotted me. I shall not go off on side issues about whether or not that $56,000 sale was good or bad. I probably know more about whether it was a good or bad sale than any living man, for I was at that time commissioner of endowment. I shall not discuss whether or not this great University should be made a bond-ridden institution as he would have you believe. I shall not discuss matters that are not before the Convention. Those propositions are not


4405

CONSTITUTIONAL CONVENTION, 1901

before the Convention. That $56,000 sale is over. The land is gone, the money is left; I hope it will be well spent, and that the interest on it will do good. On the other hand the proposition will never be seriously entertained in this State of making the University of Alabama a bond-ridden corporation to be weighted down with debt probably pass into the hands of a receiver, and that its lands and income held in constant jeopardy, and tinder the acts of the court. But the question before you is a simple one if you have time to go into it. There is no candid man. I make the statement without fear of any contradiction, there is no honest man who can add up figures and subtract them. who can take the history of the University of Alabama, and the history of its dealings with the State lank, and fail to be convinced that the State of Alabama is justly indebted to the University of Alabama in at least the sum of $900,000. I do not care to discuss at any length the various attempts by, which the State of Alabama when conscience-stricken. has endeavored to make a settlement with her child an institution of learning, but I do say that the Board of Trustees of the University of Alabama, and the friend, of the University have never accepted any one of the acts which have been passed as any final settlement of the indebtedness of this State to the University. This State saw fit to pass an act saving that she fixed that indebtedness arbitrarily at $250,000. The University did not accept that, but she kept on knocking at the floors here until this legislature said that it fixed it at $300.000 and the University did not accept that, but she continued to agitate her right and justice in the matter until it was raised to $300,000 and the act of 1896 was passed here and she continued to agitate it, and the House of Representatives here solemnly by a vote of more than fifty to thirty, passed an act showing that the Indebtedness was filed at two million dollars. and gentlemen, that was about true. These figures can be viewed by different men of different ideas, and you can arrange this indebtedness anywhere from $900,000 to $2,000,000, and that act, which was passed, fixing it at $2,000.000, was interfered with, compromised and adjusted, by which the income of the University was increased $10,000, so as to make it $34,000; but the friends of the University and Trustees never agreed to stop the agitation, and until right and justice is given, the agitation will go on until the crack of doom. In regard to the money that ,vas taken out of the hands of the trustees for the purpose of organizing a bank. The money of the University conducted the government of this State for eleven years, and the people went Scott free of all taxation during that time.

MR. OATES‑I would like to ask the gentleman a question. Don't you think that this Convention ought to settle permanently the amount due?

MR. FITTS‑I do, and I say you have put the income of the public schools permanently on a solid basis, to grow with the


4406                  

OFFICIAL PROCEEDINGS

State, so that the public schools will not have to come here and log‑roll with every Legislature, and we ask you, on behalf of the University to fix the annual income at the sum of $36,000, so that we, and that great institution, the child of the State, will not have to come to every Legislature and ask for its rights; and we say to you, if you will fix the annual income at the pitiful sum of $36,000  which will be less than 2 per cent annually, that you justly owe her, that would, with what Congress has done for her, and what her sons, by a voluntary contribution, are doing for her, more than sustain her, and she will be able to go on and accomplish the great object for which she was erected, and be able to fulfill the mission of instruction and education which is her just course and career, shedding, as she will, beautiful results and multiplied returns, for anything and everything that you can or will do for her; but I say, that after you have done this, you will only have done what an honest man should have done towards a fund that he appropriated. The fact does remain that the State took all her money because she had it in her hand and erected a bank with it, went into a business venture with it, lost all of it, and then turned around and said we will settle with you at our terms. Honorable men have looked at the history of this transaction from every standpoint, and these men have all arrived at the conclusion that this debt is anywhere from $2,000,000 down to $900,000. The man who rejected the debt and failed to fix the income and interest upon it did so upon the technical ground that the University was part of the State, and, therefore, the State had appropriated only what was its own. In view of the history of the debt, in view of the simple justice of the transaction, and, as the simple request that it he put upon a permanent basis, so as to be out of politics, I move for the previous question upon the amendment offered by the gentleman from Montgomery.

The President resumed the chair.

MR. LONG (Walker)‑ I hope the gentleman will withdraw that a moment. I ask the members on this floor to vote that down. It is unjust and unfair.

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

The call was not sustained.

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

By a vote of 48 ayes and 35 noes, the previous question was ordered.

THE PRESIDENT– The question will be upon the amendment offered by the gentleman from Montgomery (Mr. Sanford) to the amendment offered by the gentleman from Montgomery (Mr. Lomax).


4407

CONSTITUTIONAL CONVENTION, 1901

MR. LONG (Walker)‑I ask for the reading of the amendment.

The Secretary again read the amendment.

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

MR. LONG (Walker)‑I call for the ayes and noes on that proposition, that increases by $12,000—

THE PRESIDENT‑ The gentleman is out of order; the previous question has been ordered.

MR. LONG‑I demand the ayes and noes.

The call was not sustained.

Upon a vote being taken, the amendment to the amendment was adopted.

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

MR. WILLIAMS (Elmore)‑I call for the ayes and noes.

The call was not sustained.

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

MR. LONG (Walker)‑ I make the point of order that there is no quorum voting.

MR. LOMAX‑ The Chair can count a quorum.

MR. LONG‑I rise to another point of order.

THE PRESIDENT ‑Seventy—

MR. LONG (Walker)‑ Before announcing the result, I rise to a point of order; and respectfully ask the attention of the chair.  If this is to provide for an appropriation of $12.000, it requires an aye and no vote.

MR. LOMAX‑ I desire to say it does not increase the annual appropriation to the University $12,000, but $2,000. I am perfectly willing to have an aye and no vote.

MR. REESE‑ I make a point of order. This is an amendment to an Article which, when put on its final passage, will have to be an ayes and no vote.

MR. LOMAX‑ I demand an ayes and no vote.

MR. LOMAX‑ I withdraw the demand, with the consent of the Convention.


4408                  

OFFICIAL PROCEEDINGS

By a vote of 62 ayes and 15 noes, the amendment was declared adopted.

MR. LONG (Walker)‑I make the point of no quorum.

THE PRESIDENT ‑ The Chair is present. That make seventy-eight, which would show a quorum.

MR. LONG‑ The Chair has not voted.

THE PRESIDENT‑ The Chair is present, though. (Applause.)

MR. LOMAX— I do not care to have any question about this matter, and, for that reason, I ask for an aye and no vote.

The call was sustained.

MR. LONG‑‑‑I rise to a question of personal privilege. As one of the one hundred and fifty-five delegates that represent the State of Alabama, as the representative from the Fifth Congressional District. I ask that my protest be filed there, on record, against the previous question that has been ordered by the gentleman from Tuscaloosa in favor of the $12,000 increase in the annual appropriation to the State University.

THE PRESIDENT‑ The question will be upon the adoption of the amendment as amended.

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

AYES

Messrs. President,

Grayson,

Maxwell,

Almon,

Greer, of Calhoun,

Merrill,

Barefield,

Greer, of Perry,

Miller (Wilcox),

Beddow.

Handley,

Murphree,

Blackwell,

Heflin, of Chambers,

NeSmith,

Boone,

Heflin, of Randolph,

Norman,

Brooks,

Henderson,

Norwood,

Burnett,

Hodges,

O'Neal (Lauderdale),

Burns,

Hood,

O'Neill, of Jefferson,

Coleman, of Greene,

Howell,

Opp,

Cunningham,

Jenkins,

O'Rear,

Davis, of Etowah,

Jones, of Montgomery,

Palmer,

Eley,

Jones, of Wilcox,

Parker (Cullman),

Eyster,

Kirk,

Parker (Elmore),

Ferguson

. Knight,

Pettus

Fitts,

Lomax,

Pillans,

Fletcher,

Lowe, of Jefferson.

 Pitts

Foster,

Lowe, of Lawrence,

Reese,

Glover,

Macdonald.

Rogers (Lowndes),

Graham, of Montgomery,

McMillan, of Baldwin,

Samford,

Grant,

Malone,

Sanders,


4409

CONSTITUTIONAL CONVENTION, 1901

Sanford,

Stewart,

Weakley,

Searcy,

Stoddard,

White,

Selheimer,

Thompson,

Williams (Elmore),

Smith (Mobile),

Waddell,

Wilson (Clarke),

Spragins,

Watts,

TOTAL‑77

NOES

Altman,

Harrison ,

Phillips,

Bartlett,

Howze,

Smith, Mac. A.,

Bethune,

Inge,

Spears,

Byars,

Jones, of Bibb,

Walker,

Chapman,

Kyle,

Whiteside,

Cobb,

Locklin,

Williams (Barbour),

Cofer,

Long, of Walker,

Wilson (Washington).

Dent,

Moody,

Haley,

Oates,

TOTAL‑‑25

ABSENT OR NOT VOTING

Ashcraft,

Freeman,

Proctor,

Banks,

Gilmore,

Renfro,

Beavers,

Graham, of Talladega,

Reynolds (Chilton),

Browne,

Hinson,

Reynolds, of Henry,

Bulger,

Jackson,

Robinson,

Cardon,

Jones, of Hale,

Rogers (Sumter),

Carmichael, of Colbert,

King,

Sentell,

Carmichael, of Coffee,

Kirkland,

Sloan,

Carnathon,

Ledbetter,

Smith, Morgan M.,

Case,

Leigh,

Sollie,

Coleman, of Walker,

Long, of Butler,

Sorrell,

Cornwall,

Martin,

Tayloe,

Craig,

McMillan (Wilcox),

Vaughan,

Davis, of DeKalb,

Miller (Marengo),

Weatherly,

deGraffenreid,

Morrisette,

Willet,

Duke,

Mulkey,

Williams (Marengo)

Espy,

Pearce,

 Winn.

Foshee,

Porter,

And the section as amended was adopted.

Mr. Cofer, I have an amendment.

The amendment was read as follows, Section—.  Be it further enacted that all appropriations made by the State to the University, shall be credited in favor of the State upon the indebtedness of the State as heretofore fixed and ascertained by an act of the General Assembly of Alabama, and the interest now paid by the State upon said indebtedness shall be reduced in proportion to the amount paid upon said indebtedness.


4410                  

OFFICIAL PROCEEDINGS

MR. COFER– I regret to come in contact with the very distinguished gentlemen who are referred to here as being the offspring of the University of Alabama, and possibly I regret more to come in contact with the vote of the Convention just passed adopting this appropriation, but it strikes me, Mr. President, when we take into consideration the number of students that attended the University of Alabama last year and the amount of direct appropriations made by the State of Alabama that you will come to the conclusion that it is not because it is such a small and insignificant sum that they do not desire to have attention called to it at each meeting of the Legislature. There were at the University last year two hundred and fifty students and there was a direct appropriation—

MR. LOWE (Jefferson)‑Mr. President, I rise to a point of order.

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

MR. LOWE (Jefferson)– I think the gentleman's amendment and speech is directed to overthrowing what the Convention has just done.

THE PRESIDENT– The amendment may be somewhat inconsistent with the section just adopted, but the rule is, as the Chair understands it, that these matters, are to be submitted to the Convention, and the Chair would not rule out an amendment merely because __________________________________ already adopted. It is a matter for the Convention to decide whether they will accept or reject the amendment that is ordered. The Convention will proceed.

MR. COFER– The suggestion I desire to make is that if this amount is to be appropriated and paid to the University, it ought to be credited upon the indebtedness of the State to the University. There ought to be some time in the history of the State when the State could pay that indebtedness.

MR. FITTS– Will the gentleman permit a question—

MR. COFER– No, sir, the gentleman moved the previous question and refused to withdraw it, and I decline to yield.

MR. LONG (Walker)– Will the gentleman from Cullman answer one question?

MR. COFER– Yes, sir.

MR. LONG (Walker)– Did not the representatives of the University agree on a three hundred thousand dollar basis, and eight per cent., or twenty-four thousand dollars per annum, and did not they agree to that and has not it been agreed on as an hon-


4411

CONSTITUTIONAL CONVENTION, 1901

est and satisfactory settlement of the indebtedness, of the State of Alabama of the debt due by the State to the University?

MR. FITTS‑ No, they did not.          

MR. LONG (Walker)‑ Yes, they did.

MR. COFER– They did, Mr. President, and upon that agreement made by the State they have drawn out the immense sum of a million and eight thousand dollars in interest upon this agreed indebtedness. I heard four years ago the distinguished gentleman from Tuscaloosa (Mr. Fitts) in the Legislature—

MR. LONG (Walker)‑Is it not a fact that there are many men who were rich before the war, who lost their slaves and property and never got any pay for them, and is it not a fact that the State University for all of the funds that it surrendered to the State of Alabama agreed to an honest compromise after the war, upon a basis of three hundred thousand dollars, upon which was to be paid eight per cent.-------

MR. COFER‑ That is my understanding of the history of the affair. I know I was a member of the Legislature in 1896 when Mr. Fitts attempted to force this indebtedness up to two millions of dollars. It was then resisted and a commission was formed, and as has been stated a majority of that commission reported that the State was not indebted to the University a single cent ever and above the amount that they acknowledged.

But, Mr. President, to go back to this “small” amount of direct appropriation that they state they have to come here and receive year by year, and compare it with the number of students at that school, and then compare with the appropriation made for common schools and the number of children in Alabama, and you will find that there is a wide difference. There was appropriated, on the basis of two hundred and fifty students attending that school, each year since 1896, my recollection is, the first year, twenty thousand dollars, and since that time it has been ten thousand dollars, there was appropriated forty dollars to each student attending the school. Take that in connection with the twenty four thousand dollars appropriated, and it makes the immense sum of one hundred and forty-four dollars a year for each student attending that school. you come here and talk about its being so poor that three chairs in the University must not be filled if you cut down this appropriation, when in fact it is the richest concern in the State of Alabama. They have got lands so valuable that they will not sell them, and yet you are talking about putting a fixed appropriation in the fundamental law of Alabama, a gratuitous donation of thousands of dollars, without the State having an opportunity to receive any benefit from it in liquidation of the debt, because they say they are poverty stricken and the University must go down unless these appropriations are made.


4412                  

OFFICIAL PROCEEDINGS

MR. CUNNINGHAM (Jefferson)‑Does the gentleman from Cullman believe in a higher education for the poor boys of the State?

MR. COFER ‑ No. sir, I believe in giving the poor boys of the State an opportunity to go to the common schools of the State and obtain a good education and a poor boy that is worth anything with such an education will make a man of himself without going to the University of Alabama.

MR. REESE‑I rise to a point of order. The gentleman is making the children cry in the gallery. (Laughter.)

MR. LONG (Walker) ‑ I ask the gentleman to yield a minute.  My object in that is this, have not more people in Alabama children to send to the village and country schools than there are to send their children to the State University to wear brass buttons, the only brass buttons we have well in this country since the Yankees were here.

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

MR. GRAHAM (Talladega) ‑‑‑‑ I am very anxious to finish this article tonight and therefore I move to lay the amendment upon the table.

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

The call was not sustained, and upon a vote being taken the amendment was tabled.

MR. WHITE– I have an amendment. It is a separate section I wish to offer.

The amendment was read as follows: “Amend by adding Section 15. All funds derived from licensing the sale vinous, spirituous or malt liquor shall be applied exclusively to the support of the public school in the counties wherein the same are collected.

MR. WHITE– Now if it is right that one county should appropriate the funds arising from the licensing of the sale of vinous, spirituous and malt liquor, it is right in my judgment that every count should have the same privilege. I want to pay to the different counties, and my amendment appropriates to the several counties the moneys received in those counties from licensing the sale of vinous, spirituous and malt liquors. Now, if it is right for Mobile to retain this fund, then it is right that the other counties should do so. By this amendment I wish to put all the counties in Alabama upon terms of equality. I do not wish to discuss the question any further.


4413

CONSTITUTIONAL CONVENTION, 1901

MR. GRAHAM (Talladega)‑I move the previous question upon the amendment and on the article.

Upon a vote being taken the main question was ordered.

MR. LONG (Walker)‑I move to lay the amendment of the gentleman from Jefferson on the table.

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

The call was not sustained, and upon a vote being taken the amendment was tabled.

MR. GRAHAM (Talladega) ‑‑‑I now move the adoption of the Article‑ that the Article he ordered to a third reading and engrossment.

MR. SANFORD (Pike) ‑ I have an amendment.

THE PRESIDENT‑ The Chair does not understand that the previous question has been ordered upon the Article.

MR. GRAHAM (Talladega) ‑ The previous question was ordered on the amendment of the gentleman from Jefferson and the Article.

THE PRESIDENT ‑The Journal does not show it.

MR. GRAHAM (Talladega) ‑ I certainly made the motion. I moved the previous question on the Article and on the amendment.

MR. HARRISON– I rise to a point of order. Is it proper to adopt an Article before it is engrossed?

MR. GRAHAM (Talladega)– I am not going to make that motion.

MR. HARRISON- But you did make it.

MR. GRAHAM– I withdrew it.

THE PRESIDENT- It seems to the Chair that the previous question was only ordered on the amendment.

MR. GRAHAM (Talladega)-  If I made that motion, have I not a right to know it? I certainly made the motion.

THE PRESIDENT– The Chair would rule that the Chair understood the gentleman to move the previous question upon an amendment. If the gentleman had moved the previous question upon the Article the Chair would have been compelled to have ruled it out of order, as it has not been our custom to adopt the Article as a whole.


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OFFICIAL PROCEEDINGS

MR. GRAHAM (Talladega)‑It is not on the adoption of the Article, but on the adoption of the amendment, and on ordering the Article on a third reading and engrossment.

THE PRESIDENT‑ The Chair would have entertained the motion but it did not understand the motion for the previous question to be on the entire Article.

The amendment offered by Mr. Samford (Pike) is as follows:

Revenues, derived from the sale of fertilizer tags, in excess of 10 cents per ton, shall be appropriated to the maintenance of the public schools in the counties in which such fertilizers are used, in proportion to the amount of fertilizer used in such counties.

MR. SAMFORD (Pike)‑‑‑Mr. President, you have this afternoon provided for the maintenance of the public schools of the city of Mobile, by allowing that city to retain all license taxes which they collect for the sale of spirituous, vinous and malt liquors. You have also provided for the maintenance of the University of the State of Alabama, both of which measures I heartily approve, and I simply ask in behalf of the people who pay taxes unjustly taken from them by the laws of this State, that it be given back to them in the way of the education of their children. It is fairness that I ask for, I have no other object in view of offering this amendment. Upon other occasions I have requested this Convention to relieve the citizen; of this State from what I conceive to be unjust taxation, and as they have refused to do it, I now ask that the same courtesy and the same privilege be extended to the poor children of the State, and to these people in the agricultural districts that have been extended to others. I do not desire to discuss this matter further and I therefore move the previous question upon the amendment.

MR. LONG (Walker)– I move to lay the amendment on the table.

THE PRESIDENT—The question is on the motion for the previous question.

Upon a vote being taken the main question was ordered on the amendment.

MR. LONG (Walker)‑‑‑‑I move to lay the amendment on the table.

MR. SAMFORD (Pike)‑‑‑‑I demand the ayes and noes.

The call was not sustained, and upon a vote being taken the

motion to table prevailed.


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CONSTITUTIONAL CONVENTION, 1901

MR. GRAHAM (Talladega)‑I now move that the Article be engrossed and ordered to a third reading, and upon that I demand the previous question.

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

MR. GRAHAM (Talladega)‑I now move that we be adjourned.

MR. KIRK‑‑I ask permission to offer a short resolution.

The resolution was read as follows:

Whereas. Two of our colleagues, Messrs. A. H. Carmichael and M. S. Carmichael, are under serious affliction, by the loss of their brother, therefore be it

Resolved, That the sympathy of this Convention is hereby extended to our brother delegate, and to the family, of the deceased.

Be it further resolved, That a copy of these resolutions be furnished to each of these delegates and to their father, the Hon. J. M. Carmichael.

MR.  KIRK‑I move that the rules of the House be suspended, and that the resolution be put upon its passage.

MR. LONG (Walker)‑‑I move that the resolution be adopted by a rising vote.

Upon a rising vote being taken the resolution was unanimously adopted.

Leaves of absence were granted to Mr. Mulkey for this afternoon, tomorrow and Monday; Mr. Malone for tomorrow, Mr. Norwood for tomorrow.        

MR. GRAHAM (Talladega)‑ I move that we adjourn.

Upon a vote being taken the Convention adjourned.

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CORRECTION

In proceedings of seventy-second day, fourth page, sixth column, in remarks of Mr. Brooks, eighteenth line, omit word “of” before “education” in fifty-seventh line insert word “to” before the word “him”; on 153d line strike out word “that” before word “within”; on 163d line after word “immortalized” read, “The fight of a Tartar Tribe”; on 168th line, after the word “ours” read:  “No Moses will arise from among them to lead him to the promised land, this is his promised land.”