4416                  

OFFICIAL PROCEEDINGS

SEVENTY‑FOURTH DAY

________

MONTGOMERY, ALA.,

Saturday, August 17, 1901.

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

O, Lord, our Heavenly Father, we again thank Thee for Thy kindness to us. We thank Thee that Thou hast always watched over our every interest, and we ask Thee this morning, O Lord, for Thy presence. We pray Thy blessings upon us in the work that lies before us asking that our human weakness may be supplanted by divine wisdom and strength aiding that our own shortsightedness may be more than supplied by Thy divine and kind oversight, praying Thee, O Lord, that where we may make mistakes that Thou wouldst guard us against them, and where we may err in our judgment that God may so direct and so guide us that it may all work together for good. We feel dependent upon Thee, O Lord, we feel weak and helpless this morning. Realizing that in ourselves we can do nothing, and we look unto Thee from whence cometh all of  our help, praying that help divine may be given to us, and that we may be assisted in the work we have to do today. Especially do we pray Thy blessings upon this body, asking Thee, our gracious Heavenly Father, that the health and physical welfare of Thy servant; may be dear in Thy sight, praying Thy blessings upon their families and loved ones at home, praying Thee to especially bless them in the great work that has called them together, praying Thee, O Lord God Almighty. That they may be endued with wisdom from on high, so that the work they may have to do may be well done, and may serve to the advantage of the people whom they represent. May the Lord bless them in the deliberations of this day.  Give Thy servant, the presiding officer, wisdom and strength. And may the Lord help each one of the delegates, and bless them, and may today’s work, our Father, be such work as will be pleasing to the people, and that will redound to the glory of God and to the good of our commonwealth. We pray for the poor and distressed everywhere. Lead us by Thy spirit today and bless our people in all the walks of life. Give prosperity to the people of our beloved commonwealth. Bless all those who are in authority over us. Continue to smile upon us and bless us and prosper us, our Father, as long as we shall live, and when we die may we die in the faith of our fathers, and having served our day and generation, and sleep with the dead, grant us an abundant entrance into the home of the good, we pray, thorough Christ, our Lord and Redeemer. Amen.


4417

CONSTITUTIONAL CONVENTION, 1901

Mr. Parker of Cullman took the Chair.

Upon a call of the roll 106 delegates responded to their names.

MR. SAMFORD (Pike)‑I ask unanimous consent to make the report for the Committee on Engrossment.

The Clerk read Ordinance No. 390 as follows:

Ordinance 390.

An ordinance to provide for the establishment of a court house and jail at some point to be determined by an election by the people, in that portion of St. Clair county which lies south and southeast of Back Bone Mountain and which is embraced in precincts numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 in said county. And also to establish a court house and jail for Shelby County at some point on the Central of Georgia Railroad

in Shelby county to be determined by an election by the qualified  voters of that portion of Shelby county lying in precincts numbered 8, 9, 10, 11, 13, 14, 15, 16 and 18 in said county.

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

First ‑That it shall be the duty of the Probate Judge of St. Clair county to order an election to be held in precincts numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 in St. Clair county not later than sixty days after the ratification of the Constitution to be submitted by this Convention for a vote of the qualified electors in said precincts upon the selection of a place within the territory embraced in said precincts, at which a court house and jail shall be erected and maintained. Officers for such election shall be appointed, and the election, in all things in accordance with the law governing general elections. Upon the ballot to be used at such election, the names of all places to be voted on shall be printed and the choice of the elector shall be indicated by a cross mark before the place of his choice. The votes cast at such election shall be canvassed, tabulated, returns thereof made and counted, in the wine manner as is done in elections for Sheriff and other county officers. At the place receiving the highest number of votes at such election, there shall be erected and maintained a court house and jail for the trial of all cases and the transaction of all legal business originating in said precincts 9, 10, 11, 12, 13, 14, 15, 16, 17, 19. 20 and 21. The venue of all actions and suits (other than such as to be tried before Justices of the Peace) in which only residents of that portion of said St. Clair which lies south and southeast of Back Bone Mountain are defendants shall, except as otherwise provided by law, be at the court house herein provided for; provided, however, that Ashville in St. Clair county shall continue to be the county seat of said county until changed by a vote of the qualified electors residing in that part of St. Clair


4418                  

OFFICIAL PROCEEDINGS

County which lies north and northwest of said Back Bone Mountain. That it shall be the duty of the Judge of Shelby county to order an election to be held in precincts numbered 8, 9, 10, 11, 13, 14, 15, 16 and 18 in Shelby county, not later than sixty days after the ratification of the Constitution to be submitted by this Convention, for a vote of the qualified electors in said precincts for the selection of a place at which a court house and jail shall be erected and maintained. Officers of said election shall be appointed and the election conducted and the result ascertained in all things as provided by the laws governing general elections, so far as the same are applicable. Upon the ballots to be used at said election, the names of all places to be voted on shall be printed, and the choice of the elector shall be indicated by a cross mark before the place of his choice. At the place receiving the highest number of votes at such election there shall be erected and maintained a court house and jail for the trial of all causes and the transaction of all legal business originating in said precincts 8, 9, 10, 11, 13, 14, 15, 16 and 18 and the venue in all actions and suits (other than such as are tried before Justices of the Peace) in which only residents of that portion of Shelby county lying within precincts numbered 8, 9, 10, 11, 13, 14, 15, 16 and 18 are defendants, shall except as otherwise provided by law, be at the court house herein provided for;  provided that Columbiana in Shelby county shall continue to be the county seat until changed by a vote of the qualified electors residing in Shelby county.

Second ‑The Court of Count‑ Commissioners of St. Clair county and the Court of County Commissioners of Shelby county, respectively, shall at its first regular meeting after the election provided for in Section 1 of this ordinance, take all necessary steps and make all necessary orders to issue and sell bonds of St. Clair county and Shelby county, respectively, in the amount of $10,000, the proceeds to be used only for the erection and equipment of such court house and jail, or to provide by other means a sufficient amount of money to erect a suitable court house and jail at the place which shall have been selected in accordance with said Section 1, and to properly equip and furnish the same with record books and other necessary equipments. provided, however, that if said Court of County Commissioners shall levy a tax for such purpose, such tax shall be levied on all taxable property  in said County, but all of such tax shall not be levied and collected in one year.

And provided, further, that such Court House and Jail for St. Clair County shall be completed in every way and shall be ready for the holding of Court and the transaction of legal business on or before the first day of the spring term, 1903 of the Circuit Court of St. Clair County, and such Court House and Jail for Shelby County shall be completed in every way and ready for the hold‑


4419

CONSTITUTIONAL CONVENTION, 1901

ing of Courts and the transaction of legal business can or before the first day of September, 1903.

3d. The Sheriff, Probate judge, Circuit Clerk, Register in Chancery, Tax Assessor, Tax Collector and Superintendent of Education of St. Clair county shall keep offices in the court house which shall be built in accordance with the provisions of this ordinance, and said officers for Shelby county shall likewise keep offices in the additional court house, which shall be erected in accordance with the provisions of this ordinance in the county of Shelby.

Fourth‑-The General Assembly, at its first meeting, after the ratification of the Constitution to be submitted to the people by this Convention, shall enact laws regulating the holding of court at the court house or court houses provided for in this ordinance.

Fifth‑-This ordinance shall be valid and effective if the Constitution, which shall be framed by this Convention is ratified by the people, otherwise it shall be void.

The vote upon the passage of the ordinance a resulted as follows:

AYES

Messrs, President,

Fletcher,

Macdonald,

Almon,

Freeman,

McMillan (Baldwin),

Altman,

Glover,

Martin,

Ashcraft,

Graham, of Talladega,

Miller (Wilcox),

Banks,

Grant,

Moody,

Barefield,

Greer, of Calhoun,

Murphree,

Beavers,

Greer, of Perry,

O’Neal,

Beddow,

Haley,

Opp,

Bethune,

Harrison,

O’Rear,

Blackwell,

Heflin, of Chambers,

Parker (Cullman),

Boone,

Heflin, of Randolph,

Parker (Elmore),

Bulger,

Henderson,

Pettus,

Burns,

Hodges,

Pillans,

Byars,

Hood,

Pitts,

Chapman,

Howell,

Reese,

Cobb,

Howze,

Rogers (Lowndes),

Cofer,

Inge,

Sanders,

Coleman, of Greene,

Jackson,

Sloan,

Cunningham,

Jones, of Bibb,

Smith (Mobile),

Davis, of Etowah,

Jones, of Montgomery,

Smith, Mac. A.,

Dent,

Jones, of Wilcox,

Smith, Morgan M.,

Duke,

Knight,

Spears,

Eley,

Kyle,

Spragins,

Eyster,

Lomax,

Stewart,

Ferguson,

Lowe (Lawrence),

Vaughan,


4420                                          

OFFICIAL PROCEEDINGS

Waddell,

Weakley,

Wilson (Clarke),

Walker,

White,

Wilson (Washington),

Watts,

Williams (Elmore)

TOTAL-83

NOES

Grayson,

Merrill,

TOTAL-2

ABSENT OR NOT VOTING

Bartlett,

King,

Proctor,

Brooks,

Kirk,

Renfro,

Browne,

Kirkland,

Reynolds (Chilton),

Burnett,

Ledbetter,

Reynolds (Henry),

Cardon,

Leigh,

Robinson,

Carmichael, of Colbert,

Locklin,

Rogers (Sumter),

Carmichael, of Coffee,

Long (Butler),

Samford,

Carnathon,

Long (Walker),

Sanford,

Case,

Lowe (Jefferson),

Searcy,

Coleman, of Walker,

McMillan (Wilcox),

Selheimer,

Cornwall,

Malone,

Sentell,

Craig,

Maxwell,

Sollie,

Davis, of DeKalb,

Miller (Marengo)

Sorrell,

deGraffenreid,

Morrisette,

Studdard,

Espy,

Mulkey,

Tayloe,

Fitts,

NeSmith,

Thompson,

Foster,

Norman,

Weatherly,

Foshee,

Norwood,

Whiteside,

Gilmore,

Oates,

Willet,

Graham, of Montgomery,

O’Neill (Jefferson),

Williams (Barbour),

Handley,

Palmer,

Williams (Marengo),

Hinson,

Pearce,

Winn,

Jenkins,

Phillips,

Jones, of Hale,

Porter,

The ordinance was ordered printed and referred to the Committee on Order, Consistency and Harmony of the whole Constitution.

MR. KNIGHT–I have a resolution.

Resolution No. 310, by Mr. Knight, was read as follows:

“Be it resolved, that when this Convention adjourn today at 1 o’clock, that it adjourn until Monday morning at 12 o’clock.”

MR. WHITE–Before a vote is taken on that, I wish to send up a short resolution and ask for a suspension of the rules, and that it be put upon its immediate passage.  It is one that relates to the final adjournment of this Convention.


4421

CONSTITUTIONAL CONVENTION, 1901

Resolution No. 311 by Mr. White was read as follows:

Resolution 311, by Mr. White

Whereas, It appears that the final adjournment of this Convention is likely to be delayed by the failure of the printer to properly furnish for the use of the Committee on Harmony, printed copies of the Articles adopted by this Convention; and,

Whereas, It is to the interest of the people of this State that this Convention complete its labors as soon as possible, now therefore be it

Resolved, That the Chairman of the Committee on Printing be, and he is hereby instructed to interview the printer and ascertain the cause of the delay, and if, in his opinion, the printing can not be done promptly by said printer, then he is hereby authorized to cancel the contract for such printing and to have the same done elsewhere.

MR. WHITE‑I move that the rules be suspended and that the resolution be put upon its immediate passage.

Upon a vote being taken the rules were suspended.

MR. WHITE‑I move its adoption.

Upon a further vote being taken the resolution was adopted.

MR. COBB‑I rise to a question of personal privilege. Yesterday on the vote on the motion for the adoption of the substitute reported by the Committee on Rules to the resolution offered by the gentleman from Greene, I am reported as voting no. I voted on the other side and I ask that the Journal and the stenographic report be corrected.

MR. WILSON (Washington)‑I am reported in the stenographic report having voted against the University appropriation. If there is any question that has been before this Convention that I am in favor of, and decidedly in favor of, and want to go on record correctly in regard to, it is that debt that the State owes the University of Alabama, and I desire to be recorded as voting aye.

MR. DENT‑ I desire to have a correction made in the stenographic report. I and reported as being; absent and not voting on the final passage of the Article on Impeachments. I was present and voted aye, and if the journal floes not so show. I desire to have it corrected.

MR. SANDERS‑I am reported in the proceedings of yesterday as not voting on Ordinance 404. I was present and voted and desire that the correction be made.


4422                  

OFFICIAL PROCEEDINGS

MR. COFER‑ On the passage of the amendment offered by the gentleman from Montgomery (Mr. Lomax) to the article on education I was paired with Mr. Weatherly of Jefferson. At the time I did not state the pair because I forgot it, and I desire to state it this morning in order that it may be recorded on the journal in justice to Mr. Weatherly. He would vote aye and I would vote no.

MR. REESE‑ There is present here a distinguished private citizen of Alabama, the father of two distinguished delegates to this Convention. For the first time since this Convention met, I move to extend the privileges of the floor to a private sovereign citizen of Alabama, Dr. Heflin.

Upon a vote being taken, the privileges of the floor were extended to Dr. Heflin.

MR. GRAHAM (Talladega--I move that the rules be suspended and that the privileges of the floor be extended to the Hon. Carson Whitson, a member of the Legislature.

MR. WILSON (Clarke)‑I move to amend by extending the privileges of the floor to the Hon. Mr. Baldwin of Bullock and the Hon. H. S. Doster of Autauga.

Upon a vote being taken, the privileges of the floor were extended to the gentleman named.

MR. PETTUS‑I would like to add Mr. Greene of Morgan, a member of the House, and move that the privileges of the floor be also extended to him.

Upon a vote being taken, the privileges of the floor were extended to Mr. Greene of Morgan.

 MR. FOSTER ‑ There was referred to the Committee on Amending the Constitution, an  ordinance which properly goes to the Committee on County and County Boundaries. I ask that it be referred to that committee.

THE PRESIDENT‑ There is a resolution on the Secretary's desk which the Chair will request the Secretary to read again.

Resolution No. 310 by Mr. Knight was read as follows:

"Be it resolved that when the Convention adjourn today at 1 o'clock, that it adjourn until Monday morning at 12 o'clock."

MR. PILLANS‑ Before that is voted on, I hope the gentlemen present will remember that if we sit during a long session today, we will probably finish the articles and have everything ready for the Committee on Order, Consistency and Harmony to go forward with its work, and I move as an amendment, that this


4423

CONSTITUTIONAL CONVENTION, 1901

Convention adjourn at 1 o'clock and meet again at half past three and adjourn at 6 o'clock.

Upon a vote being taken the motion to amend resolution 310 was carried.

MR. FOSTER‑I ask that an ordinance referred to the Committee on Amending the Constitution be referred to the appropriate committee. It relates to County and County Boundaries.

MR. PARKER (Cullman)‑The article was asked to be referred to the Committee on Amending the Constitution when it was introduced.

THE PRESIDENT‑ Does the gentleman object to the reference?

MR. PARKER (Cullman)‑No, I do not object to it.

THE PRESIDENT‑ The ordinance will be referred to the Committee on State and County Boundaries, as one chairman seems anxious to let it go and another to take hold of it.

MR. FOSTER‑I ask unanimous consent to introduce a short resolution from my committee.

Resolution No. 246 by Mr. Samford of Pike was read as follows:

Resolution 246, by Mr. Samford:

Resolved, That the General Assembly of; this State is hereby instructed, at its next session, to reduce the tag tax on fertilizers to an amount not to exceed 10 cents per ton.

Referred to Committee on Amending Constitution and Miscellaneous Provisions.

Substitute for Resolution 246, by Mr. Samford. by Committee:

Be it resolved by the people of Alabama in convention assembled, That it is the sense of this Convention that the Legislature, at its next meeting, should reduce the tag tax on fertilizers to an amount not to exceed the reasonable cost for the inspection thereof.

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

MR. BEDDOW‑I make the point of order that under the rules of the House, that must be placed upon the calendar and called up in its regular order.

MR. JACKSON‑I ask that it be placed upon the calendar and be called up.


4424                                          

OFFICIAL PROCEEDINGS

THE PRESIDENT–The Chair will state that the ruling of the Chair heretofore upon resolutions is that the rule only applies to ordinances, and it is competent for the Convention—

MR. GRAHAM (Talladega)–I move to lay the resolution on the table.

The motion was withdrawn.

THE PRESIDENT–The motion is that the resolution be laidon the table.

MR. GREER (Calhoun)–It has been withdrawn.

MR. OPP–I renew it.

MR. GREER (Calhoun)–Upon that, I demand an aye and no vote.

The call was not sustained.

THE PRESIDENT–The question is upon the resolution relating to the tag tax, which has just been read in your hearing, and reported favorably by the committee on Amending the Constitution and Miscellaneous Provisions.  Thereupon it is moved to lay the resolution upon the table.

A vote being taken, a division was called for and by a vote of 44 ayes and 43 noes, the resolution was tabled.

MR. HEFLIN (Chambers)–I call for a verification of the vote.

THE PRESIDENT–A verification is asked for.  It is a practice of the Chair to accord a verification where it is demanded. Delegates are requested to vote on this question.  As many as favor the motion to table this resolution will please rise and remain standing until counted.

A vote being taken, there were 44 ayes and 44 noes.

MR. PETTUS–I rise to a point of order.  The delegate who did not vote before was not entitled to vote upon the verification –it appears from the casting up of the vote that some delegate has come in.

MR. HEFLIN–No record is kept of the vote–

MR. GRAHAM (Talladega)–There were the same number  of ayes, and the increase came to the noes.

THE PRESIDENT–The object of the verification of the vote was to correct any error, and the fact that the vote is not exactly the same as before would not be a ground of objection.

MR. WILSON (Clarke)–How does the Chair vote?


4425

CONSTITUTIONAL CONVENTION, 1911

THE PRESIDENT‑ The Chair will vote no. The result is the motion to table is lost.

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

MR. OPP‑I call for the ayes and noes.

The call was sustained.

THE PRESIDENT‑ The Secretary will read the substitute as reported by the committee.

The Secretary read as follows:

Substitute for resolution 246 by Mr. Samford of Pike:

Be it resolved by the people of Alabama in Convention assembled, that it is the sense of this Convention that the Legislature at its next meeting should reduce the tag tax on fertilizers to an amount not to exceed the reasonable cost for the inspection thereof.

MR. FOSTER‑I desire to call the attention of the Convention to the fact that the substitute which the committee instructed me to report not in the shape of all instruction to the Legislature as was the original resolution, but simply that it is the sense of this Convention that the Legislature should reduce it‑-something like the resolution passed with reference to the Governor's salary, as the committee conceived not binding upon the Legislature. but simply in the nature of a letter to the Legislature, that it is the sense of this Convention that it should be done.

THE PRESIDENT–The question is upon the passage of the resolution, the ayes and noes were demanded, and the call sustained.

MR. WILSON (Clarke) ‑There are only two remaining articles to be disposed of and the Convention is anxious to dispose of them. This matter has come up out of its regular order, many of the members were not paying attention. I had difficulty in hearing what it was either the original resolution or the substitute. I don't think it is right to take up this proposition at this time.

MR. FOSTER‑I rise to a point of order. The Convention has already taken it up, and the objection comes too late.

MR. WILSON‑ We should not consume the time of the Convention in preference to ordinances which have been on the calendar for weeks. These matters should be considered in the order in which they may appear, and I move that the consideration be postponed.

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


4426                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑ It seems to the Chair after the Convention took the matter up and proceeded to vote the ayes and noes called for and the call sustained, it is too late to make a motion.

MR. WILSON‑I refer the Chair to rule 25, a motion to postpone to a day certain has precedence to a motion for the main question.

MR. SAMFORD (Pike)‑Not after the vote has been ordered, and ayes and noes ordered on it.

THE PRESIDENT ‑‑‑The gentleman did not move the previous question.

MR. COLEMAN‑I have an amendment.

MR. HEFLIN–The gentleman from Chambers moves to table.

THE PRESIDENT‑ The question is to postpone to a day certain, which takes precedence of a motion to amend under rule 25. The question is that the consideration of this resolution he postponed until after the Convention has finished the consideration of the reports of Committees on Corporations and Militia.

MR. DUKE‑‑I move to table that motion.

Upon a vote being taken a division was called for, and a further vote being taken, by a vote of 54 ayes and 44 noes, the motion to table prevailed.

MR. COLEMAN‑I have an amendment.

The Secretary read the amendment as follows:

Amend the resolution by striking out ten and inserting in lieu thereof twenty-five.

MR. BURNS‑ There is no ten in there.

MR. COLEMAN‑ I have the floor, and I ask the reading of the resolution.

The Secretary read as follows:

Be it resolved by the people of Alabama, in Convention assembled, that it is the sense of this Convention that the Legislature at its next meeting should reduce the tag tax on fertilizers to an amount not to exceed the reasonable cost of inspection thereof.

MR. COLEMAN (Greene)‑I move to amend the amendment by striking out that and inserting 25 cents, not to exceed the reasonable cost thereof.


4427

CONSTITUTIONAL CONVENTION, 1901

MR. FOSTER‑I move the amendment be laid upon the table.

A vote being taken, the motion to table prevailed.

MR. HEFLIN (Chambers)– I move the previous question upon the adoption of the substitute and original resolution.

THE PRESIDENT‑ The question is on the demand for the previous question.

A vote being taken, the previous question was ordered.

THE PRESIDENT‑ The question will be upon the adoption of the substitute reported by the committee.

MR. PETTUS‑I call for the ayes and noes upon the final passage.

MR. GREER (Calhoun)‑‑‑The ayes and noes have been called and the call sustained.

MR. BURNS ‑Not upon the proposition.

THE PRESIDENT ‑‑The Chair has sustained that point of order. As many as favor the adoption of the substitute report by the committee for the original resolution introduced by the gentleman from Pike will say aye and those opposed no, as your names are called.

The roll call resulted as follows:

AYES

Messrs. President,

Davis, of DeKalb,

Lowe (Lawrence),

Almon,

Dent,

Macdonald,

Altman,

Duke,

McMillan (Baldwin),

Ashcraft,

Eley,

Martin,

Banks.

Foster,

Maxwell,

Barefield,

Freeman,

Merrill,

Bartlett,

Glover,

Miller (Wilcox),

Beavers,

Graham, of Montgomery,

Moody,

Bethune,

Grayson,

Murphree,

Blackwell,

Greer, of Calhoun,

NeSmith,

Brooks,

Haley,

Oates,

Bulger,

Handley,

O'Neal (Lauderdale),

Burns,

Heflin, of Chambers,

Opp,

Byars,

Heflin, of Randolph,

O'Rear,

Chapman,

Henderson,

Palmer,

Cobb,

Howell,

Pettus,

Cofer,

Jackson,

Phillips,

Coleman, of Greene,

Jones, of Bibb,

Pillans,

Craig,

Jones, of Montgomery,

Proctor,

Cunningham,

Knight,

Reese,


4428                                          

OFFICIAL PROCEEDINGS

Rogers (Lowndes)

Smith, Mac. A.,

Tayloe,

Samford,

Smith, Morgan M.,

Thompson,

Sanford,

Sorrell,

Weakley,

Searcy,

Spears,

White,

Sentell,

Spragins,

Whiteside,

Sloan,

Stewart,

Williams (Barbour),

Smith (Mobile),

Studdard,

Winn,

TOTAL‑‑81

NOES

Beddow,

Hodges,

Parker (Cullman),

Davis, of Etowah,

Hood,

Sanders,

Eyster,

Howze,

Selheimer,

Ferguson,

Inge,

Vaughan,

Fletcher,

Jones, of Wilcox,

Waddell,

Graham, of Talladega,

Kyle,

Walker,

Grant,

Ledbetter,

Williams (Elmore),

Greer, of Perry,

Lomax,

Wilson (Clarke),

Harrison,

Norman,

Wilson (Washington),

TOTAL‑27

ABSENT OR NOT VOTING

Boone,

Jenkins,

O’Neill (Jefferson),

Browne,

Jones, of Hale,

Parker (Elmore),

Burnett,

King,

Pearce,

Cardon,

Kirk.

Pitts,

Carmichael, of Colbert,

Kirkland,

Porter,

Carmichael, of Coffee,

Leigh,

Renfro,

Carnathon,

Locklin,

Reynolds (Chilton),

Case,

Long (Butler),

Reynolds (Henry),

Coleman, of Walker,

Long (Walker),

Robinson,

Cornwall,

Lowe (Jefferson),

Rogers (Sumter),

deGraffenreid,

McMillan (Wilcox),

Sollie,

Espy,

Malone,

Watts,

Fitts,

Miller (Marengo),

Weatherly,

Foshee,

Morrisette,

Willet,

Gilmore,

Mulkey,

Williams (Marengo),

Hinson,

Norwood,

MR. PETTUS (during roll call)‑I vote aye for the purpose of moving a reconsideration.

MR. JACKSON (Lee)‑I have consumed very little time of the Convention. I now ask unanimous consent to explain my vote.  I had an amendment reducing it to 25 cents, but as the gentleman from Greene offered the same amendment, and it was voted down, rather than have no relief given to the farmers, I vote aye.

And by a vote of 78 ayes and 27 noes, the substitute was adopted.


4429

CONSTITUTIONAL CONVENTION, 1901

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

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

MR. GRAHAM (Montgomery)‑I rise to a question of privilege. I notice the aye and no vote as shown in the stenographic report, on Section 13, of the Mobile school matter, in the report of the Committee on Education, shows that I voted in the negative. This was an error. I voted aye and desire to be so recorded.

THE PRESIDENT‑ The stenographer will take notice of the correction.

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

Leaves of absence were granted to Mr. Inge for Monday and Tuesday; to Mr. Foshee yesterday evening and today; to Mr. Hinson for today; to Mr. Coleman of Walker for yesterday and today.

THE PRESIDENT‑ The regular order at this hour will be the call of roll of delegates for the introduction of ordinances, unless there is some motion to dispense with it.

MR. WADDELL‑I move that the regular call of the roll of delegates be dispensed with.

The motion was carried.

MR. HEFLIN (Randolph)‑I desire to ask unanimous consent to be permitted to make a report from the Committee on Schedules some time during the morning session, when the Convention is ready.

THE PRESIDENT‑ When the gentleman is ready he may call it to the attention of the Convention.

MR. BURNS‑ I desire to offer a short resolution.

The Clerk read resolution No. 312 as follows:

Resolution 312, by Mr. Burns:

Whereas, Mixed bloods seldom inherit even the impaired virtues of their progenitors, and in every section of our country are always found among the most vicious and vindictive class of citizens; and, whereas, this Convention was called with the understanding and for the purpose that white boys of Alabama should not be forced to compete with any others, whose only qualification for suffrage lies in their ability to memorize.


4430                  

OFFICIAL PROCEEDINGS

Resolved, That the following, ordinance Be referred to the Committee on Harmony, and that said Committee be authorized to embrace it or any portion in the Article on Suffrage and elections:

ORDINANCE

Be it ordained by the people of Alabama, in convention assembled, That all bastards whose disabilities as such have not been removed by the Governor or some Chancellor, or Circuit or City Judge, shall not be allowed to register or vote in this State.

Referred to Committee on Harmony.

THE PRESIDENT‑‑ To what Committee does the gentleman desire that ordinance referred?

MR. BURNS— To the Committee on Harmony.

The resolution was so referred.

MR. MURPHREE (Pike)‑ I would like to send up a short ordinance and have it read and referred.

Unanimous consent was given.

Resolution No. 457 was read as follows:

Ordinance 457, by Mr. Murphree:

Be it ordained by the people of Alabama, in convention assembled, That the Legislature that shall be held after the ratification of the Constitution of 1901, shall, and they are hereby directed, to appropriate out of the State Treasury, for the benefit of indigent Confederate Soldiers and indigent widows of Confederate Soldiers, such amounts as they may deem just and proper, and that the sums appropriated shall have precedence of all other expenditures except for current expenses and for the maintenance of the State’s credit.

Referred to Committee on Legislation.

Referred to the Committee on Legislative Department.

MR. WILSON (Clarke)–I now call up the report of the Committee on Militia, which is the regular order for this hour.

THE PRESIDENT–Do you desire it taken up section by section?

MR. WILSON (Clarke)‑No sir. I will ask the Secretary to read the entire report, then I will ask the adoption of the entire report, and if any gentleman desires to offer an amendment, he can offer it to any section he chooses.

MR. JONES ‑That would require the suspension of the rule. It is bound to be taken up section by section.


4431

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT ‑ We have no rule requiring it to be so taken up.

MR. BEDDOW‑I rise to a point of inquiry. Is the report of the Committee on Militia the next order of business?

THE PRESIDENT‑ The Secretary informs me that there is a resolution on the desk reported prior to this, by the gentleman from Jefferson. Does the gentleman desire to call it up at this time?

MR. BEDDOW‑ Yes, sir.

Resolution No. 219 was read as follows:

Resolution No. 219, by Mr. Beddow of Jefferson:

Whereas, Various resolutions have been adopted throughout the State requesting that this Convention patronize union labor by having its printing done by members of the Typographical Union, and that the union label be printed thereon; and,

Whereas, The union of labor should be encouraged by the people of Alabama, in convention assembled, therefore be it

Resolved, That the Committee on Schedule, Printing and Incidental Expenses be, and they are hereby, instructed to patronize the printing establishments having in their employment union labor and have the union label printed thereon.

Referred to Committee on Schedule, Printing and Incidental Expenses.

MR. BEDDOW‑ On account of the fact that a large delegation of the International Typographical Union requested me to introduce this resolution, I did so. For some reason, this resolution, unlike other resolutions that have been offered in the Convention, was placed upon the calendar, and it is now taken up during the last days of the Convention, when, if the Convention should see fit to pass it, it would be of no particular benefit to those to whom it was intended to do good. But in all seriousness, I call upon this Convention to consider well before they turn down this resolution, although it may not be of much practical benefit to the people who desire its passage. A number of resolutions and amendments have been offered to this Convention in the interest of those of our voters who organize for the upbuilding of their labor organizations.  So far, everyone of them have been turned down almost unanimously by this Convention, so much so that The International American of about three weeks ago, in an article from some correspondent speaking of this Convention, remarked that, so far no leaders had developed in this Convention, and it seemed to be a Convention of independent thought. The correspondent went on to say that he was mistaken


4432                  

OFFICIAL PROCEEDINGS

in this, however, that there was one Beddow from Birmingham,  who did seem to be a leader of the labor forces, and continued by saying that he also constituted his own following. I hope

that this is not true. Dr. Talmage, in a sermon preached in the north, said that, in all great assemblages, nine out of ten of the people who composed them were those who came from this class of people, and it is strange to that when they ask for some recognition at our hands, we treat their request with contempt and with ridicule. This is a small favor to be asked by this large mass of voters of the State of Alabama. We have received petitions from nearly every organization of this character throughout the State of Alabama. We have received petitions from the United Mine Workers of America, constituting from 6,000 to 10,000 voters in this State. We have received petitions from Trades Councils, which represent every department of labor in the Union, the carpenter and all other classes of labor. We have received petitions from the International Typographical Union throughout the State, from Huntsville, Mobile, Montgomery, Birmingham, and every other place where they are organized. The people who are behind these petitions, represent, as I have said heretofore 25,000 or 30,000 voters of the State of Alabama. They should be recognized. Their petitions should be heard. Their petitions should be considered, and in my humble judgment, this resolution should be adopted.

Mr. President, there is at this time, at this moment, going forward the greatest battle ever known between capital and labor, with Morgan and his millions on the one side, and united labor on the other, each striving for the mastery. If one side succeed united labor will be for all time a recognized and established institution. Should they fail and success perch upon the banner of wealth and trusts. I predict that in the wake of their victory will follow more pain, poverty and squalor than has ever been witnessed in this country of ours, known as the "land of the free and the home of the brave." Would it not be well for the people of Alabama, in Convention assembled to perch our banner and draw our sword upon the side of those who are uniting for the purpose of fighting aggregate wealth? They get together for the purpose of making themselves stronger. Day by day the great institutions of our country are consolidating and they are becoming powerful. Unless labor get together and stand as one man, they will be crushed to earth. Their only hope of maintaining themselves, their wives and their families; their only hope of having homes of their own, is the hope of maintaining a wage scale upon which they can live like men and not like beasts.  Would it not be a gracious thing for us here, in the last days of this Convention, to say to them, we will give you the balance of the printing we have to do, we will place upon it the union label which shows that the Constitutional Convention of Alabama is in


4433

CONSTITUTIONAL CONVENTION, 1901

favor of united labor and that we indorse their efforts and stand up for them and for their families in this great fight. That is all I have to say. Take it for what it is worth. Consider well this proposition before you slap in the face 25,000 or 30,000 of the best white voters in the State of Alabama.

THE PRESIDENT‑ The Chair was about to state the question, but it occurs to the Chair that there is no motion before the Convention.

MR. BEDDOW‑I move the adoption of the resolution, and upon that I call for the ayes and noes.

A reading of the resolution was called for, and the resolution was again read.

MR. BANKS‑I did not expect to make any speech at all on this resolution. In fact, I did not anticipate that the Convention would have to consider it seriously this morning, nor did I think it would be made a question for consideration by this Convention. Personally, my sympathies are with organized labor. It occurs to me that organized capital has necessitated organized labor, and, just as my sympathies go out always to the weak, so my sympathies have gone out to organized labor in its great controversies and contests with capital. But, Mr. President and gentlemen of the Convention, we are not here as partisans; we are not here to give expression to partisan preferences; we are not here to frame a Constitution or to adopt measures or to express sentiments that are partisan in their nature or character. We are to set aside those influences when we come to consider the great questions before us, and we are not to do anything at all that would make the instrument we are framing partisan in its character and in its coloring. We are not here as Democrats; we are not here as Republicans; we are not here as capitalists ; we are not here as laborers ; we are not here as religionists of any particular faith or denomination. We are here as citizens of the great State of Alabama, for the purpose of framing an organic law that shall give protection to all classes, to all conditions, to all parties and to all organizations that are legitimate and right in the State of Alabama, and, however much we would like to see the printing of this Convention go into the hands of this great association, we cannot afford to say so, because here are other people who are engaged in this same kind of work and who, at the hands of this Convention, are entitled to just as much consideration as this branch of organized labor, and, for this reason. I cannot support the resolution.

MR. COLEMAN (Greene)‑I have no record to make nor any argument to present which I expect to look toward in the future as a source of commendation of me to the popular vote.


4434                  

OFFICIAL PROCEEDINGS

What I desire is to complete a Constitution here without showing any partisanship of that character, and I do not think it ought to enter into our deliberations whatever. We have appointed a committee in whom we have confidence, and who are acting for the very best interests of the people of Alabama, and I move that the resolution be laid upon the table.

MR. BEDDOW‑I demand the ayes and noes.

The call was not sustained.

Upon a vote being taken the motion to table the resolution was carried.

THE PRESIDENT‑ The next regular order will be the consideration of the report of the Committee on Militia.

MR. WILSON (Clarke)‑I desire to make a brief explanatory statement with reference to this report before the Convention take it up. The report is no change from the present Constitution except in Section 1. Otherwise than Section , this article is an exact copy of the Constitution of 1875. There are two changes in Section 1 of the article. The first is the restriction of those who may be enlisted in the militia, to white persons. The second change is a provision at the end of Section I authorizing the Legislature if it sees proper to establish a State Naval Militia. So far as the first change is concerned. the proposition restricting enlistment to white persons, in the committee, individually, I was opposed to that change, and the reason I was opposed to it was that I feared it might interfere with the appropriation which the Congress of the United States makes for the support of the militia. It was purely as an expedient. I was opposed to the use of negroes in the State militia. But under the system now in force, it is entirely discretionary with the Governor of the State as to what troops he shall receive and what troops he may not receive. I thought under that provision that there would never be any danger of negroes being enlisted in the State militia unless the Governor approved it, and that we were reasonably certain of always having a Governor who would not approve it. For that reason, individually, I opposed the change, but the majority of the committee, after considering that phase of the question, and all other phases of the question which were presented to the committee, decided in favor of making the change,  and I yielded my individual judgment to the judgment of the committee, and concurred in the report after a majority of the committee had voted for it.

The second amendment in the section, as it now is in the Constitution, which permits the Legislature if it sees proper to organize a State Naval Militia, does not confer any power on the Legislature which it does not now possess. The Legislature may as the matter now stands organize a State Naval Militia, but has never done it. The Legislature could organize a militia; there‑


4435

CONSTITUTIONAL CONVENTION, 1901

fore it might be said that there is no need of putting any article in the Constitution about militia at all. The Legislature could certainly do everything about it, as there is nothing here on the subject. But inasmuch as there is an article on that subject, I believe and the committee believed that it would be well for the State to have a State Naval Militia and the committee saw fit to engraft the second change named authorizing the State to establish a State Naval Militia. We examined the Constitutions and statutes of nearly the coast States, and we found in nearly all of them a provision was made for the establishment of State Naval Militia. The Federal Government has general statutes and regulations on that subject. It lends to each State which has organized a State Naval Militia a boat for the purpose of making cruises. It appropriates from the general government a considerable sum of money for the purpose of defraying the expenses of the State Naval Militia; so the committee thought that inasmuch as we could get an appropriation for this purpose from the government and a boat for this purpose from the government, that it would be well to say that the Legislature might provide for it if it saw proper.

Mr. President, I move the adoption of the report of the committee as a whole. The report of course, will be subject to amendment, if any gentleman desires to offer amendments, and I understand that there are some, but before that is done. I ask unanimous consent to offer an amendment. When I drew the report, we had not made the change in the Constitution from the words "General Assembly" to "Legislature." The words "(General Assembly" instead of "Legislature" are used in three sections of the report. I ask leave to strike out the words “General Assembly and insert in lien thereof "Legislature" in Sections 1, 2 and 7.

THE PRESIDENT–Unanimous consent is asked by the chairman of the committee to strike out the words "General Assembly and insert "Legislature" in Sections 1, 2 and 7. The Chair hears no objection. It is so ordered.

MR. JONES (Montgomery)‑ As I understand it, amendments are now in order to different sections?

THE PRESIDENT ‑ Yes. The Secretary will read the report, and then the amendment of the gentleman from Montgomery.

The Secretary read the ordinance as follows:

An ordinance on Militia:

1. All able bodied white male inhabitants of the State, between the ages of eighteen years and forty-five years, who are citizens of the United States, or have declared their intentions to become such citizens, shall be liable to military duty in the militia of the State; and the General Assembly may provide for the organization from among such citizens of a State Naval Militia.


4436      

OFFICIAL PROCEEDINGS

2. The General Assembly, in providing for the organization, equipment and discipline of the militia, shall conform as nearly as practicable to the regulations for the government of the armies of the United States.

3. Each company and regiment shall elect its own company and regimental officers; but if any company or regiment shall neglect to elect such officers within the time prescribed by law, they may be appointed by the Governor.

4. Volunteer organizations of infantry, cavalry and artillery may be formed in such manner, and under such restrictions and with such privileges as may be provided by law.

5. The militia and volunteer forces shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at musters, parade; and elections, and in going to and returning front the same.

6. The Governor shall, except as otherwise provided herein, be commander-in-chief of the militia and volunteer forces of the State; except when in the service of the United States, and shall, with the advice and consent of the Senate, appoint all general officers whose term of office shall be for four wars. The Governor, the Generals and Regimental and Battalion Commanders shall appoint their own staff, as may be provided by law.

7. The General Assembly shall provide for the safe keeping of the arms, ammunition and accoutrements, military records, banners and relics of the State.

8. The officers and men of the militia and Volunteer force shall not be entitled to or receive any pay, rations or emoluments when not in active service.

The Secretary read the amendment as follows : "Amend Section 1, by striking out the word 'white' where it occurs therein."

The Secretary also read a second amendment offered by the gentleman from Montgomery‑(Mr. Jones) as follows: "Amend Section 4 by inserting after the word 'artillery,' the words `naval militia.' "

MR. WILSON (Clarke)‑‑I suggest the second amendment relates to a different subject, and would not be in order until we dispense with the first one.

MR. JONES (Montgomery)‑‑‑I understood amendments could be sent up now to different parts of the ordinance, to be acted on at the proper time.

THE PRESIDENT‑‑‑ It will be taken up in the order of sections.


4437

CONSTITUTIONAL CONVENTION

MR. WILSON (Clarke)‑I ask unanimous consent to accept the second amendment proposed by the gentleman from Montgomery, which relates to the naval militia.

THE PRESIDENT‑ The Chairman of the Committee asks unanimous consent to accept the second amendment offered by the gentleman from Montgomery. The Chair hears no objection. It is so ordered. The question is on the other amendment of the gentleman from Montgomery, as read in your hearing.

MR. JONES (Montgomery)‑I am a member of the Committee which reported this Article, and without any fault on the part of the Committee or perhaps without any fault of my own, it passed upon this matter in my absence; otherwise, I would have made a minority report. My objection to the word "white," as contained in the Article reported by the Committee is this: The Constitution of the United States, in defining the powers of Congress, declares that it "shall have power to provide for organizing armies and disciplining the militia, and for organizing such of them as may be employed in the service of the United States, reserving to the States respectively the appointment of officers and the authority of training the militia according to the discipline prescribed by Congress."

Congress, in pursuance of that authority, has defined what the militia is. I read from Section 1625 of tile Revised Statutes:

"Every able‑bodied male citizen of tile respective States, resident therein, who is of the age of 18 years, and under the age of 45 years, shall be enrolled in the militia." At the time that act was passed, it included only white melt, because white men only were citizens of the State; but tinder the force of recent amendments and decisions of the Supreme Court of the United States.  The word `white,' even in a Constitution, would be stricken out. Thus, under the Act of Congress and the law of the land, every able-bodied male citizen of the State, between the ages of 18 and 45, is a member of the militia, and the State is powerless to change that. Congress, going further, has appropriated annually for a number of years, $200,000 to provide arms and equipment for the militia. Recently that has been increased, I believe, to $400,000, and that is divided out among the States, not according to the number of volunteers, or National Guards, as they are called, but in proportion to the number of able-bodied citizens, white and black, in the State, as compared with the whole number in the United States. If we put this provision in which I seek to strike out-admitting that the State can do it‑-we subtract about 40 per cent of the able-bodied male citizens, of this State from enumeration in the militia, and hence this Convention strikes down at once about 40 per cent of the appropriation made by the Federal Government for the Alabama National Guard, as they are now called. That appropriation, if I mistake not, is about $20,000 a


4438                                          

OFFICIAL PROCEEDINGS

year, and that provides for arms, ammunition, equipment and stores for the Alabama National Guard. If the Constitution provides that only able-bodied white men between 18 and 45 are members of the militia, the effect of it will be to cut down the appropriation about 40 cent.

Mr. President, there need be no fear of any harm form leaving this matter as it has been in the Constitution from 1819 down to the present time.  The day is past when we will have any more “musters,” as they used to be called, of the militia when they met with umbrellas, drilled once or twice a year, had a good time for a few days, and then went home.  We all know what the old “militia musters” were.  All that has passed, the militia keeping pace with the spirit of organization in every department in life, is now, save in a legal sense, confined to the organized volunteers, and those volunteers are organized under a provision in the Constitution under the name of “Volunteer Forces.”  It would be competent for the Legislature and competent for the Governor, under present Statutes, to determine what classes of men shall be organized.  I remember well, Mr. President, in the dark days, when the sun of the Confederacy was setting around us in darkness, while our own troops were in the trenches at Petersburg in 1865, that the Confederate Congress, under the inspiration of Robert E. Lee, passed an act authorizing the employment of negroes in the Confederate army.  The time may come in the future when we may desire to employ the negro in the defense of this State.  It might be that we might be invaded and desire them, and they might desire, to defend the land, where they are born, and of which they are still citizens.  We all remember, that in the Spanish war, when, for some reason, there seemed to be difficulty in getting the requisite quota from Alabama, 1,000 negroes volunteered, which saved 1,000 white men from going.  There is no harm in the State of Alabama reserving the power to use them, if it desires to do so.  We have now only one company of negroes in the Alabama State troops.  They were organized, I think, some twenty years ago. They have never been disbanded.  They have been remarkably obedient. I remember on one occasion, when a single policeman arrested a company of forty-five men, and brought them up to the Governor’s office, because he thought they had violated a city ordinance in firing a salute.  Why should we desire to say to every negro–and some of them are going to be citizens, we are going so you shall never be in the condition, even if the Legislature desired it, to bear arms in defense of Alabama.  For these reasons, and because I think it trenches somewhat upon the power of Congress under the Constitution, because it will interfere with our appropriation and strike a blow at the Alabama National Guard, and because I think it unwise, I offer that amendment.  I hope it will prevail.


4439

CONSTITUTIONAL CONVENTION, 1901

MR. SANDERS‑ Mr. President, the Committee on Militia held some four or five sessions, at which this matter alone was discussed. The distinguished gentleman from Montgomery, as he has stated, was never present on any of those occasions, and I do recall that the Committee adjourned without acting, perhaps, as often as three times in order that there might be a fall attendance of its members, and on one occasion, at least. I remember, that it was said that the gentleman from Montgomery would without doubt, he present and be heard, upon this question. He was not present at any session of the Committee, and after frequent and elaborate discussion, the majority of the Committee decided in favor of the insertion of the word "white" before the word "male" in the first line of the report. None of the Committee, Mr. Presihent, favored a negro soldier in this State, a majority of the Committee was opposed to the policy, to the expediency of enlisting the negro in the military system of this State. We thought it tended to promote an equality in which the people of the South do not believe. I think it both unwise and unpatriotic to arm all alien race with which there is always a latent possibility of trouble. We remembered, too, the severe criticism that followed the enlistment of the negroes in the military service during the Spanish War. We were not unmindful, either, of the outrages committed by negro troops stationed notably at Anniston and Huntsville in this State.  Owing to the limitation of the Federal Constitution, Mr. President, we have not been able to make as many clear cut race provisions as the majority of the Committee. I believe, would like to make, and as a majority of the white people in Alabama would like to see made. I have heard it suggested this morning for the first time that we are face to face with a provision of the Federal Constitution on this question which forbids the insertion of the word "white" in this report of the Committee. I had thought, Mr.  President, that military service was a burden and not an immunity or privilege. The very word, the very language of the report---

MR. JONES (Montgomery)‑Will the gentleman pardon me a moment?

MR. SANDERS‑ Yes, sir.

MR. JONES‑ My position was, not that it was a privilege or immunity, but that the Article of the Constitution giving Congress power to authorize and equip and arm the militia, left to Congress to determine what should constitute the militia. In the section of the act of Congress from which I read, it says: "Every able bodied male citizen between the ages of 18 and 45."

MR. SANDERS‑ The gentleman therefore does not think it is a violation of the fourteenth amendment, but merely in conflict with a provision of Congress?


4440                  

OFFICIAL PROCEEDINGS

MR. JONES‑I am not prepared to express any decided opinion as to that, without investigation.

MR. SANDERS‑ At any rate a majority of the Committee was in favor of a clear-cut, white military provision in this State. The suggestion is made also that we shall lose a part of the Congressional appropriation annually made to the militia of the several States. In Alabama, we are told that we would lose as much as eight thousand dollars. For my own part, Mr. President, I do not care a snap for that, and I don't believe the majority of the white people of Alabama care a snap for it, I believe the legislature would be upheld and applauded for supplying that deficiency, if the amount of money is needed for the support of the military in Alabama.

MR. OATES‑I have but a few words to add to this discussion. I approve in the main what my colleague from Montgomery has stated. My recollection is, sir, that there are two negro companies in the militia of the State, there were the last I knew of then‑‑

MR. JONES–Only one now.

MR. OATES‑‑‑ Here or at Mobile?

MR. JONES‑ Here ; the Mobile company disbanded.

MR. OATES‑ There were two companies at the close of my executive administration. I undertook under an act of the legislature to reorganize the State militia and I organized those two negro companies into a battalion, and there never was any interference or conflict with the white soldiers, not in the slightest with the white troops; because after the white commands had been in encampment of instruction and passed out the negro battalion was ordered in and they had it all  to themselves. There was no conflict, no trouble in the world about it, and however, negro troops may have deported themselves in the late war, and I have heard of several instances of bad conduct on their part in Alabama, and in Florida. I also heard that at the battle of San Juan Hill, one of the most remarkable fights of that war, they displayed much gallantry. It may be, sir, that there is no necessity for it, and I presume that do Governor will ever organize any considerable number of them in the State. Wherever any militia company is organized and attempts to get recognition, it depends upon the officers‑-the Governor and Adjutant General, whether it is received or not. This of itself leaves it all right, in an acceptable attitude. The innovation at this time of inserting the word "white" in regard to the militia may produce embarrassments and some complications in the future, for we do not know what is coming, we do not know what will occur, ten, twenty, thirty or forty years hence, if this Constitution is ratified, there should be no embarrass‑


4441

CONSTITUTIONAL CONSTITUTION, 1901

ment, as is expected to be of force for many years. It is most startling to me, remarkable under the change in public opinion in regard to the status of the negro in our State. Why, sir, thirty years ago, when I was a member of the House of Representatives here, right over there between those two columns, I witnessed a fight between a leading carpet‑bag member of the legislature from Montgomery‑-Strobach and Bob Arrington, a negro employee of the House, and I stood over them myself and kept anybody from interfering until the negro gave him a good beating which he deserved, and I never incurred the disapproval of a single one of the Democratic members of that House. Why, sir, the sentiment is altogether different now, when the negro is doing no harm, why people want to kill him and wipe him from the face of the earth‑-

MR. BURNS‑ Will the gentleman pardon me a minute?

MR. OATES‑I will yield.

MR. BURNS‑I want to ask the distinguished gentleman if he said the negro gave a white man a deserved thrashing?

MR. OATS‑ Yes, sir.

MR. BURNS‑ Do you take the position that there is any circumstance when a negro ought to whip a white man?

MR. OATES‑ Yes, and he did right. Stroback was in favor of social equality, and the negro was a long ways the better man of the two, and everybody will testify to that, who knew both of them.

MR. BURNS‑ That is Bostonian doctrine.

MR. OATES‑‑‑ Where were you making Bostonian doctrines during the war, when I was at the front, in twenty-seven battles, and have six scars on my body, made by Yankee bullets? I reckon my devotion to the South is as great as that of any other man.  No man has ever questioned my loyalty to my people, or my State and I am glad of what I did on that occasion. My conscience approves it. While I think the negro should remain in his place, and that place a subordinate one to the white people‑-for this is a white man's government and always will be and always ought to be‑ but for that reason is it right, when we have a subordinate race here, not responsible for their being among us, to proscribe them and trample them under foot? I do not want them to control the State government any more than any other man does. I have all my life stood up for the right toward all men, and I intend to do it for whatever time God Almighty allows me to breathe, and I don't care who disapproves my action, for my conscience is my guide. I say this is a wholly unnecessary innovation, an improper one that may be embarrassing some time in the future. I do not think it violates the Federal Constitution, but it is contrary to the


4442                  

OFFICIAL PROCEEDINGS

Federal Statutes and wholly unnecessary. Why we should make this innovation I cannot see, and I, therefore, think the amendment offered by my colleague ought to be adopted.

MR. SPRAGINS‑ In the discussion of this matter, in the Convention, there was no division among the members of the Committee as a matter of principle; the question was purely one of policy. We all agreed, as a matter of principle, that it would be better for the white man, and better for the negro, that the troops of the Alabama National Guard in this State should he entirely composed of white people. The only question which divided the Committee at all was a question of policy, whether or not the general government would give to the State of Alabama the appropriation which it is in the habit of giving if we inserted this word “white" in the section of the Constitution. After considering the matter, the majority of the Committee concluded that the appropriation was made upon the available strength in the State; in other words, upon the male inhabitants in tile State between the ages of 18 and 45 regardless of whether they were white or whether they were black. The majority of the Committee was of the opinion that that appropriation was based upon the available strength of the National Guard, regardless of the color. That being true, we agreed. as a matter of principle, that the Guard should be composed entirely of white people, otherwise we thought there was a possibility of numberless strikes and discords between the members of the Guard and the officers of the court.

MR. OATES-Will the gentleman allow me to ask a question?

MR. SPRAGINS–Yes.

MR. OATES–It has just been called to my attention by the Adjutant-General, who is our reading clerk here, that the probabilities are that of the $30,000 appropriated by Congress for the use of the militia in Alabama, one-half of it probably, or nearly so, will be withheld, in the event that we adopt the word white so as to exclude the negro, and there is but one negro company now in service. I would like to ask of the gentleman if that is the case?

MR. SPRAGINS‑‑I don't know whether that is true or not, but the judgment of  the Committee is that the appropriation was made upon the available strength in the State that was subject to duty in the Alabama National Guard, whether white or black.

MR. HARRISON‑ The language of the first section here reads, after specifying who shall be, that there shall be liable for militia duty in the State-‑doesn't that exclude any but white men from being liable?

MR. SPRAGINS‑ Yes.


4443

CONSTITUTIONAL CONVENTION, 1901

MR. HARRISON‑ Then wouldn't it be taken away from you on your statement? Under this appropriation from Congress, would not you be excluded?

MR. SPRAGINS‑ The appropriation is not made on who is liable to duty but upon the available strength of the State, that is, the number of male inhabitants in the State between the ages of 18 and 45. That is our judgment of what the law means. The majority of the Committee was of the opinion that even if we lost one-half of the appropriation of the general government, or nearly one-half, as the proportion of whites is more than the proportion of blacks in the State; but if we lost this appropriation, we thought it wise and prudent to lose it.

During the Spanish-American war, there were four negro companies in the Alabama National Guard out of the three regiment.  Three of those companies have been disbanded or mustered out under the State authorities, but there is clue still a existing. Now. the history of any troops, when there are some white and some black, you put regiment composed of eleven white companies and one negro company in camp at Mobile, and there is constant friction between the members of that regiment, between the white troops and the negro troops, and our judgment was that it would be wise even in the event that we lost one-half of the appropriation from the National Government, it would be for the best interests of the State of Alabama and the people of Alabama to lose it.

MR. OATES‑ In encampment, as you put it, they would necessarily be put and kept together, or near together. The Adjutant-General would never allow that. He would put them so there would be no friction. No such thing ever occurs of being encamped together.

MR. SPRAGINS‑ Well, you do that by authority of office, then, and not by authority of law. If there is a brigade encampment of all troops within the brigade at one place, then the negro troops must necessarily be a part of that brigade encampment.

MR. OATES‑ Not necessarily at all. I did not construe the law, and during my administration, I had a brigade encampment of all white troops in Mobile, and the next week after they dispersed the negro battalion was encamped on the same ground.

MR. SPRAGINS‑ Well, you might do it that way, but certainly if there were any trouble, if they do not brigade them together or do not encamp them together in regimental camps, if there were trouble at Birmingham as we once had among the strikers, a mob, then certainly if the troops were all necessary the negro troops would have to come up with the white troops, and they would be brigaded together and encamped together as a


4444                  

OFFICIAL PROCEEDINGS

regiment. It was done that way at Tampa, Fla., during the Spanish-American war.

MR. JONES (Montgomery)‑No Governor has ever ordered the State troops to come in contact with the negro troops.

MR. SPRAGINS‑ But some Governor might. We have heard enough on the floor this morning to suspect that the time may come when some Governor might do that. (Applause.) And if it is necessary for us to lose from the National Government that part of the national appropriation the majority of this Committee says that it is to the best interest of the people of Alabama that it should be lost. We had enough of that thing in Huntsville, and I suppose the gentleman front Anniston had enough of it in the winter after the Spanish-American war when the negro troops and the white troops were quartered in and around those respective towns, and I for one think that it is for the best interest of the people of Alabama that our National Guard should be composed exclusively of white people.

MR. ASHCRAFT‑‑ It is with great reluctance that I undertake to say anything upon this question because I know that our first sentiments are for the retention of this word "white" in this Section of the Constitution. But there are other matters of expediency than those of accidental or possible association of the white and the negro troops. We not only have to live among ourselves, but we have to live under the view of all the civilized world, and if it is the desire of this Convention to  wake up every sentiment agitator in the whole country outside of the State of Alabama, then let them keep this word "white" in this Constitution. Everywhere the agitators will be reminding the negro of the fact that he does not possess the right to enter the military, that he does not possess the right to volunteer to defend his country, that he does not possess the right to exercise any of the higher obligations enjoined upon him by any patriotic sentiment.  They would have the best of the sentimental argument. The negro at present does not demand any representation in the State troops. It is true, he has a company that has been here for twenty years and there are very few citizens in Alabama who know that there is such a company, I dare say.  He has not been obnoxious; he has not been in the way.  He can never get among the troops except in the discretion of the Governor.  The white people have kept all the places full, have kept enough there to spend all the appropriation, and so there is no danger if you let them alone, but if you undertake active repression, he will become active, he will be aided, guided and stimulated by people outside of our borders, as he has been in the past, and a state of unrest will set up in the negro as a body of citizens, and they then will be dissatisfied and unhappy and produce a situation which we can easily escape by taking this word “white” out.  We will not endanger the situation


4445

CONSTITUTIONAL CONVENTION, 1901

of the white people. It is a matter of great policy, so far as our situation relates to the whole country. The United States Government now does not insist on our accepting negroes in the National Guard. They pay no attention to it because there is no demand for it. But let us put this provision in the Constitution, and every agitating politician in the North that has solve sentiment about the negro, will be howling about it, stirring up discord, procuring, as far as he can, discrimination against our State.

MR. SANDERS‑I would like to ask the gentleman if he does not think we have made enough concessions to the North, to the sentiment of the North?

MR. ASHCRAFT‑I do not think, sir, we have made any concessions. We have gone as far as we could to secure our rights under the law, and so far as franchises are concerned, we have left nothing to sentiment. We have demanded all that we could get under the letter and the strict letter of the law, but we are here now undertaking to do something that will accomplish no good for us, it will simply stir up unrest against us and therefore I am in favor of the amendment.

MR. COLEMAN (Greene)‑I have a substitute.

The substitute was read as follows:

"The Legislature shall have power to declare who shall constitute the militia of the State and to provide for organizing, arming and disciplining the same."

MR. COLEMAN‑ Mr. President. I incline to the view that the Section of the Constitution of the United States which has been read would not restrict the State from making this discrimination. I do not wish to be understood as asserting that positively. but the wording of it indicates that who shall constitute the militia shall be left to the States, but we are safe in avoiding all trouble by adopting the substitute. I follow the precise language of the Constitution of the United States in conferring that power upon Congress, that Congress shall have power to provide for organizing, arming and disciplining the militia. So this is that the legislature shall have power to declare who shall constitute the militia to organize, arm and discipline it, and it is a safe solution of the whole trouble, in my mind, and will put its upon a good basis, impregnable, and will give rise to no reflection on account of discriminating one way or the other, and being largely with the legislature, if the emergency should arise such as some apprehend, but which, I hope, are far off, why the lower would be there to prevent the evil, unrestrained by organic law, but the law may be applied to the existing conditions and we would move safely on. We lose nothing of the appropriation by that provision. We show no discrimination in our organic law. We leave everything with the


4446                  

OFFICIAL PROCEEDINGS

legislature, just as the Constitution of the United States has left it with Congress.

MR. HANDLEY‑ It leaves the word "white" out.

MR. COLEMAN‑ The whole thing is out and we have got all we want. I move adoption of the amendment.

MR. BURNS‑As a member of the Committee, I desire to say that we had full meetings and that we had no contention, but we all did not agree to insert that word white. It was understood by the Committee that we would make the report, and then each member of the Committee, as each member of the Convention could fight it on the floor if they saw proper. Now I agree with the amendment offered by the gentleman from Montgomery. I think the word "white" should be stricken out. I do not think we need any more argument on that question. I think the arguments are unanswerable. As far as the negro amounted to anything, under that clause, we have proven since 1875 that they have amounted to nothing. As long as we have a good Democratic Governor, or a good any other kind of Governor, a gallant, true Adjutant General, as we have now, we need have no fears in regard to having a few negroes in the militia. Those that we have are all gone except the driblets of an old company stationed somewhere in the State, and this Convention does not know where they are, and I doubt if the Adjutant General knows where they are.

MR. JONES (Montgomery)‑Haven't you been on duty in many very big strikes and never saw anything of negroes in the National Guard in Alabama?

MR. BURNS‑ Yes, sir; we never had any complaint at all. I don't think we ought to endanger these appropriations. We have to run our hands in our pockets now to pay out a thousand or two dollars. Don't let us depend on the legislature to help the militia. Don't let us throw away these appropriations from Washington and depend on the legislature to help out the militia and encampments. We are behind now, and have to pay it out of our own pockets. Let the old Constitution stand. Do not tear it all to pieces. Let some of it stand. This Committee changed it very little, and the Chairman of the Committee is not satisfied with it himself. Some men prefer it for the sentiment about it and some of us do not prefer it. Give us the benefit of the doubt and let us have the old Constitution back. If everything worked well under the old Constitution, why should we change it?

MR. O'NEAL‑ You say that under this provision we would endanger our appropriation and that the appropriation is made according to the number of troops?

MR. BURNS‑ Yes, sir; endangers the Federal appropriation.


4447

CONSTITUTIONAL CONVENTION, 1901

MR. O'NEAL‑‑ Will the gentleman permit me to call attention to the language of the statute on the subject?

MR. BURNS‑I wasn't talking about the statute, I have just  heard the gentleman read enough.

MR. O'NEAL‑‑ This is the statute, just to the contrary. Here is the last act, Supplement to Revised Statutes, which says that the appropriation shall be apportioned among the several States and Territories under the direction of the Secretary of War according to the number of Senators and Representatives to which each State is entitled in Congress.

MR. BURNS‑ That is not the law we are working under now.

MR. O'NEAL‑ Yes, sir; that is the last law of Congress on the subject.

MR. BURNS‑I did think I would ask a moment on personal privilege, but I have such high regard and respect for the distinguished gentleman from Montgomery whose record as a soldier will shine long after I am forgotten, and although I am willing to stand on my record during the war, having killed as many of the Yankees as they did of me (laughter), having gone through more than three years and a half of that war, I am perfectly willing to stand on my record. I am sorry that I said what I did to the distinguished gentleman from Montgomery, because I did not know who he was referring to. I made a mistake. He was referring to old Stroback, who was not a white man.

MR. COBB‑I am in entire accord with the views of the gentleman from Greene upon this matter, and the only difference between him and myself is that I believe that this whole Section No. 1 should be stricken out from the Constitution. In 1819 when the first Constitution of the State of Alabama was adopted, there was no provision contained in that instrument defining the militia.  There was none put in the Constitution of 1861. There was none put in the Constitution of 1865. This matter of defining the militia of the State made its appearance in the Constitution of the State for the first time under the radical rule in 1868. Prior to that time there was not a word in the Constitution of the State of Alabama defining the militia and in 1875 as we all know, it was retained in the instrument simply for the reason that the Constitutional Convention of that year was timid, and did not intend or desire to go any further in making any change in the Constitution then existing than they could reasonably prevent. This is the history of this matter, and the question of who shall constitute the militia is purely legislative and should he stricken from the Constitution altogether. I have no doubt the distinguished gentleman from Greene will agree with me on that proposition. However, if it is insisted that something about the militia and something about defining who


4448                  

OFFICIAL PROCEEDINGS

shall constitute the militia should go into the Constitution then his amendment should be adopted. Of course so far as the Constitution of the United States is concerned my own opinion is that it is perfectly clear that we are not prohibited by that instrument from declaring who that is. The Constitution of the United States does not attempt to define the militia. The act of Congress does define the militia.

MR. JONES‑ Is that not constitutional?

MR. COBB‑ I think not.

MR. JONES‑ You think not?

MR. COBB‑I do not think so. I say that an act of Congress is not per se an interpretation of the Constitution of the United States. It is only an expression of opinion.

MR. JONES ‑Does not the gentleman remember. I think in the Houston case, in fifth Wheaton, that the Supreme Court of the United States decided that it was.

MR. COBB‑ I do not remember any such decision.

MR. O'NEAL‑ Fifth Weaton Houston against Moore.

MR. COBB ‑That an act of Congress is a declaration of what the Constitution is?

MR. JONES ‑No, but that it is the construction of that section of the Constitution, the supreme law of the land.

MR. COBB‑ About this particular instance?

MR. O'NEAL– About this particular instance.

MR. COBB‑ Well, if it is true, Mr. President, that the Supreme Court of the United States has by a solemn decision declared that that article of the Constitution does give the power to Congress to define the militia of tile States, then I bow to that decision of the court, but independent of it, I would have no sort of hesitation in believing that it was never the intention of the Constitution makers to confer upon Congress the power to say who shall constitute this militia.

If we adopt the amendment proposed by the gentleman from Greene we put this question just where it ought to rest, with the Legislature. I am in hearty accord with him, except that I believe we ought to say nothing about it. I do not believe that the Constitution of the State of Alabama ought to seek to confer power upon Legislatures. The Legislature of Alabama has all power except in matters wherein they are restrained either by the Constitution of the State of Alabama


4449

CONSTITUTIONAL CONVENTION, 1901

MR. JONES (Montgomery)‑Mr. President, I desire to withdraw the amendment offered by me, and accept in lieu of it the amendment offered by the gentleman from Greene.

Objection was made.

MR. O'NEAL‑As there seems to be some misapprehension of the law on the subject, I desire to briefly call attention of the Convention to a provision of the Constitution of the United States.  It is simply this, in defining the power of Congress, it says the Congress “has power to provide for the calling forth of the militia to execute the laws of the Union.”  Now, the first statute passed on this subject was the act passed in 1792, which is that “every able bodied male citizen of the respective States resident therein who is of the age of 18 and under the age of 45 shall be enrolled in the militia.”  We all know that meant every able bodied male citizen at that time and under the decision of the court it meant white citizens. The Supreme Court decided in the Dred-Scott case that negroes were not citizens of the United States, and hence the act of Congress carrying out the provision of Congress, confined the militia to white citizens of the United States.  Now by the 14th amendment the negro is made a citizen of the United States, and of course if the provision in our Constitution provided that all male citizens should be subject to military duties, it would mean that the negro was subject to military duties. Now another misapprehension arises as to the act of Congress making an appropriation to the States for the military. It has been stated here that Congress makes the appropriation according to the number of male citizens in the State liable for military duty. Mr. President, that is untrue, as far as my examination discloses. The last act on the subject, which is the act just read, is the act of February 12, 1887.  What does that provide? It amends Section 161, and provides the sum of $400,000 to be annually appropriated. It makes a permanent appropriation for the militia of the States. Section 2 says that appropriation shall be apportioned among the several States and Territories— how? According to the number of citizens? No. “Under the direction of the Secretary of War, according to the number of Senators and Representatives to which each State is respectively entitled in Congress of the United States, and to the Territories and the District of Columbia such proportion as the President may prescribe.”  Hence it makes no difference what action we take, for the Secretary of War, under the statute is forced to give Alabama the same proportion that she now has of this appropriation unless the number of our Congressmen is reduced in the Congress of the United States. Now, Mr. President, I also wish to call the attention of the Convention to the principles of law that govern this matter. In the case of Houston against Moore, 6 Wheaton, the Supreme Court of the United States decided that Congress did not have the power under the provision of the Constitution I have read to pass the act of 1792. Further it


4450                  

OFFICIAL PROCEEDINGS

says on the subject of the State militia the opinion being delivered by justice Washington, the power of the State government to legislate on the subject having existed prior to the formation of the Federal Union and not having been prohibited by that instrument, remains with the States. The State it says, except where the Constitution of the United States prohibits action, has absolute and sovereign control of this subject. Now, Mr. President, there is nothing in this provision which denies the State the power of calling upon the negroes to volunteer in times of war. Nothing in this section prohibits that. The provision in the section under consideration does not provide that they shall not constitute a part of the State troops. The gentleman from Montgomery called attention to the fact that in the Cuban War the negro troops displayed great gallantry. I do not deny the fact. We know the  negro can be made an efficient soldier in time of battle, but the testimony of every officer in Cuba and every newspaper correspondent shows that when the battle was over they went into camp, the negro troops were insubordinate; they had no sense of honor; no esprit de corps; they committed thefts and crimes which reflected disgrace upon the uniform they wore. That was the case at Huntsville, and it was the case at Anniston, so, Mr. President–

MR. GREER (Calhoun)‑It was the case multiplied in Anniston. I speak from personal knowledge.

MR. O'NEAL‑ The settled policy, of Alabama is to accord to the negro equal justice and protect him in all his rights of persons and property, and to give him that full measure of justice which the strong owe to the weak, but we never intend to share with him the responsibilities of government. and this is best for the negro and best for the white man. So. Mr. President. There are some misguided but sincere men in the North who say we must elevate the negro and put him in a position where, in the course of time, he can reach the same level, socially and politically, as the white man‑ Mr. President. I saw men who entertain those views are the enemies of the negro race. This race instinct which they are pleased to call race prejudice, is implanted into our bosoms by a higher power than man himself. It is this race instinct, this race prejudice, if you please, which has preserved the purity and integrity of each race and prevented that assimilation and debasement, the very contemplation of which fills our minds with horror and repugnance. Now, when you put the uniform of the State upon the soldier, you incite in his mind aspirations for social equality; you endeavor to elevate him to the position which God and the laws of man never intended he should occupy, viz., that of social equality with the white and superior race. I saw an illustration in Washington, where the negro officer of the day was in charge and the Southern soldier refused to doff his cap in reverence


4451

CONSTITUTIONAL CONVENTION, 1901

at the presence of the negro who wore the uniform of the Government, and he was court martialed for it, and the Southern man said: "All coons seem alike to me." Mr. President, the races of men are the markers of God's will. This race feeling was implanted in our bosoms by God himself. The white people have governed this country in times of peace. They have fought its battles and carried its banner in triumph in days of war, and they are still prepared to govern it in peace and defend it in war. We do not want to put the negro in a position he cannot occupy. We do not want to break down race barriers. We do not want to elevate him to a position which will degrade and humiliate that race which proposes forever to dominate and control in this State. Now, .Mr. President, why should we hesitate? They say we may offend the sentiments of the North, and that we may lose money by‑ it. I am willing to do what I think is right in this matter, "unawed by power and unbribed by gain." I care not what the sentiment of the North may be. We have this problem to deal with. We, ourselves, propose to deal with it justly so that the negro will be protected in his rights of person and property in the courts and before the law, but we do not propose to deal with it so the negro can wear the uniform of the proud Commonwealth of Alabama, and be put on social equality with the white soldiers of this State. Take the l0th regiment. They did brilliant service at the battle of Santiago, and get when they were retired and were brought back to the United States and were sent to Huntsville for encampment, what was the very first act? Before they disembarked from the cars, their first act was to fire into a guard around a saloon, and it cost seven or eight lives. This was an act of lawlessness and insubordination, and the result was that General Wheeler, who was in charge of the camp, sent them four miles into the country and never allowed them to come to Huntsville except by special permit.  That shows the character of the negro race. When you put the uniform on him, you say to him, you are as good as the white man; you wear the uniform of the Government and of the State; and I tell you, Mr. President, that the sentiment even of the great Republican party, and I have heard it stated, that even Mr. McKinley himself said he believed that a great mistake had been made in calling upon the negro troops to volunteer in the war with Spain. I move the previous question on the section and pending amendment.

:           MR. JONES‑I appeal to you to allow me to speak.

MR. O'NEAL‑I withdraw the motion that the gentleman from Montgomery be allowed to speak.

MR. PETTUS‑I object.

THE PRESIDENT‑‑ Does the gentleman from Lauderdale withdraw the motion?


4452                  

OFFICIAL PROCEEDINGS

MR. O'NEAL,‑I never decline to extend any courtesy to the, distinguished gentleman from Montgomery, and I withdraw it at his request.

MR. JONES ‑Some of the delegates, in discussing this question, seem to think that all the pride and all the devotion to the white race resides in the breasts of the gentlemen who object to the proposition embodied in the amendment and the substitute.

MR. GREER (Calhoun)‑I dislike to do it, but I make the point of order that gentleman has discussed this question once.

THE PRESIDENT‑ The gentleman is out of order. There has been another amendment offered.

MR. JONES‑I was proceeding to say, that some of our friends on this floor seem to imagine that they possess all the patriotism and pride of race represented on the floor of this Convention, and that those of us who advocate different views on this measure are unmindful of what we owe to our race. I may therefore be pardoned for saying that from the time I was a little over 16 years of age until Appomattox, where I surrendered, I was risking my life, and baring my body to wounds, suffering and disease, in defense of the white people of Alabama. I have risked my life as often as any man on this floor since the close of the war, in upholding law and white supremacy, and in battling against the hordes which at times threatened to overthrow our civilization. It is untrue and unjustified, lout I won't characterize it further‑ to intimate because some of us think it unwise and wrong to put in the fundamental law of the State of Alabama that it shall never call upon the negro, if the State desires it to uphold its laws, that we are unmindful of what is lest for the white race. I recall an instance when there was an insurrection among the black people in Lowndes and Crenshaw counties owing to the mobbing of a negro in jail at Hayneville, I was sent down there with the troops by Governor Seay. The reports of the magnitude of the uprising were alarming, and he did not know what number of troops we would need or how soon. While I was in the Governor's office, an officer of the negro company here came in, and told the Governor he came to report to him, as he had heard there ,vas trouble. Governor Seay asked him if he could be counted on to fight his own people if they continued to resist the law. The negro replied: "Yes, sir, there is not a man in my company who will not uphold the laws of Alabama. You have treated us as soldiers, we are under your orders, and if you send us down there we will do good service." I have never known an instance in the Alabama State troops, or National Guards, as afterwards called, where there was the slightest disturbance, impropriety or indecency on the part of the negro companies which formed part of the State Troops. These gentlemen seem to think some day in the future the tune will come when


4453

CONSTITUTIONAL CONVENTION, 1901

some Governor or Legislature will try to oppress the white people with the black. God forbid that that day shall ever come, but if we do have a Legislature that will do that, or a Governor who will do that, it will only be after our civilization is undermined, and the power that will do that will have the power to circumvent or repeal your Constitution. We must have some faith, some confidence, some hope in the future of the State and believe that the good God who has so long preserved it in all of its trails, will in His wisdom continue to give Alabama at least brave and faithful and honest men, in the future as in the past, who will so use the powers confided to them that one race shall not be a disturbing factor or an oppressor of the other.

What is the proposition about which some gentlemen have fanned themselves into a passion. It is simply this: The State of Alabama is providing in her Constitution for a militia. Some members say it ought to provide that no negro shall be called upon for military duty and others say that it ought to be left to the Legislature. That it is unwise to adopt the Article as reported. That is the proposition. And yet some of us are virtually assailed here as not being in favor of our civilization or of our race! Mr. President, on one occasion I had the honor to command the escort of President Jefferson Davis in his last tour through Alabama and Georgia. We came to the little town of Albany in Georgia. While we were there a negro captain of a negro company came up and asked to have the privilege of escorting the carriage of Mr. Davis.  I said to him that I would refer his request to Mr. Davis, and I did so. Mr. Davis said he would be glad to have him, "he was glad to see that spirit exhibited on their part towards him and the whites, and that he wanted to encourage it." If Jefferson Davis could take that position, surely it is not a matter of reproach to myself or William C. Oates that we are of the same opinion. I trust. therefore, Mr. President, that if this amendment which I ask to withdraw to accept the substitute offered by the gentleman from Greene is voted down, that the Convention will accept the substitute offered by the gentleman from Greene.

MR. HARRISON‑I desire to ask the delegate from Montgomery if it is not a fact that the Congress of the Confederate States itself provided for the enlistment of negro troops.

MR. JONES‑ Yes sir, I alluded to that in my first speech. It was done at the urging of no less a man than Robert E. Lee, and Gen. Pat Cleburne advocated it early in the war.

MR. PETTUS‑I think there has been enough discussion on the question and I move the previous question.

MR. WILSON (Clarke)‑Before the gentleman does that I ask unanimous consent to add an amendment to judge Coleman's amendment. The Committee agreed to it.


4454                  

OFFICIAL PROCEEDINGS

The amendment was read as follows:

Amend by adding the following: “The Legislature may provide for an organization of a State Naval Militia.”

There was no objection and the amendment was allowed.

MR. PETTUS-I now move the previous question on the adoption of the Article and pending amendments.

Upon a vote being taken the main question was ordered.

MR.  PETTUS-I move to table the pending amendments.

MR.  SANDERS-Upon that I call for the ayes and noes.

The call was sustained.

MR. DENT‑I call for a division of the question.

MR. WILSON-Is there but one amendment pending?  Did not the gentleman from Montgomery accept an amendment from the gentleman from Greene?

THE PRESIDENT-There was objection and both amendments are pending.

I           MR. JONES-Now I ask to withdraw my amendment to same time.

Leave was granted.

THE PRESIDENT-The question is upon the motion to table the amendment offered by the gentleman from Greene as amended by unanimous consent.

Upon a call of the roll the result of the vote was as follows:

AYES.

Bethune,

Merrill,

Sanders,

Blackwell,

Moody

Spragins,

Chapman,

O,Neal, of Lauderdale

Stewart,

Grayson,

O,Rear,

Tayloe,

Hodges,

Palmer,

Thompson,

Jones, of Bibb,

Pettus,

Vaughan,

Macdonald,

Reese,

Wilson, of Clarke,

Total‑21.

NOES.

Messrs. President,

Beddow

Byars,

Almon,

Boone,

Cofer,

Ashcraft,

Brooks,

Cobb,

Hanks,

Bulger,

Coleman, of Greene,

Barefield,

Burns,

Davis, of Etowah,


4455

CONSTITUTIONAL CONVENTION, 1901

Dent,

Inge,

Parker, of Elmore,

Duke,

Jackson,

Phillips,

Eley.

Jerkins,

Pillans,

Eyster,

Jones, of Wilcox.

Pitts,

Fletcher,

Jones, of Montgomery,

Proctor,

Glover,

Knight,

Rogers, of Lowndes,

Graham, of Montgomery,

Kyle,

Sentell,

Graham, of Talladega,

Ledbetter.,

Sloan,

Grant,

Lomax,

Smith, of Mobile.

Greer, of Calhoun,

Lowe, of Jefferson,

Smith, Mac. A.,

Greer, of Perry,

McMillan (Baldwin),

Smith, Morgan M .,

Haley,

Martin,

Spears,

Handley,

Maxwell,

Waddell,

Harrison,

Miller, of Wilcox,

Walker,

Heflin, of Chambers,

Murphree,

Watts,

Heflin, of Randolph,

NeSmith,

Whiteside,

Henderson,

Gates,

Williams, of Barbour,

Hood,

O’Neill (Jefferson),

Williams, of Elmore,

Howell,

Opp,

Wilson, of Washington,

Howze,

Parker, of Cullman.,

Winn.

Total‑75.

ABSENT OR NOT VOTING.

Altman,

Foster,

Pearce,

Bartlett,

Freeman,

Porter,

Beavers,

Gilmore,

Renfro,

Browne,

Hinson,

Reynolds, of Chilton,

Burnett,

Jones, of Hale,

Reynolds (Henry),

Cardon,

King

Robinson,

Carmichael. of Colbert,

Kirk,

Rogers, of Sumter,

Carmichael, of Coffee,

Kirkland,

Samford,

Carnathon,

Leigh,

Sanford.

Case,

Locklin,

Searcy.

Coleman, of Walker,

Long, of Butler,

Selheimer,

Cornwall,

Long, of Walker,

Sollie,

Craig,

Lowe, of Lawrence,

Sorrell,

Cunningham,

McMillan, of Wilcox,

Studdard.

Davis, of DeKalb,

Malone,

Weakley,

deGraffenreid,

Miller, of Marengo,

Weatherly,

Espy,

Morrissette,

White,

Ferguson,

Mulkey,

Willet.

Fitts,

Norman,

Williams, of Marengo.

Foshee,

Norwood,

And the motion to table was lost.

MR. WILSON (Clarke)‑The majority of the Committee ask unanimous consent to accept the Coleman proposition.

Objection was made.


4456                  

OFFICIAL PROCEEDINGS

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

Upon a vote being taken, the amendment was adopted.

MR. WILSON‑ The question recurs upon the adoption of the Article.

THE PRESIDENT-The question now will be upon the motion to adopt the Article as amended.

Upon a vote being taken, the Article was adopted.

MR.  WILSON-I move that the Article be ordered engrossed and to a third reading and upon that I call for the previous question.

The main question was ordered..

THE PRESIDENT-The question now is upon ordering this ordinance engrossed and to a third reading.

Upon a vote being, taken. the Article was ordered engrossed and to a third reading.

THE PRESIDENT-The next regular order will be the consideration of the report on Corporations.

MR.  HARRISON-Mr.  President, in behalf of the committee on corporations, I invite the attention of the Convention to the report of the Committee, which shows the changes made in the old Constitution and the reasons assigned therfor.  I desire to state further, Mr.  President, that this Committee, after giving a full and careful hearing to every ordinance presented to it, and a consideration to all petitions and in the hearing of a great many citizens as well as delegates, have in the report of this majority, consisting of nineteen sections, not only unanimously agreed upon those that were present, but in this agreement every member of the Committee was present, and while upon a few propositions there was a diversity of opinion, this Committee among themselves did what this Convention on yesterday, seemed to do on the matter of the report on the Judicial Department, and compromised these issue among themselves, and unanimously instructed me to make this report.  The only division of Committee consists of what is called a minority report, in which some members of the Committee desired to engraft a provision in which the majority did not concur, and which is something entirely new in the Constitution.  As this report will explain itself, and as the Committee will explain by some member each and every change made when the section is reached, for the dispatch of business, I shall be brief, and now I move that we proceed to consider this majority report section by section.


4457

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken, the motion was carried.

THE PRESIDENT‑ The Secretary will read Section 1.

The Secretary read Section 1 as follows:

Section 1. The legislature shall pass no special act conferring corporate powers, but they shall pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal at the will of the legislature, and shall pass general laws under which charters heretofore granted may be altered or amended. The legislature shall, by general law, provide for the payment to the State of Alabama of a franchise tax by corporations organized under the laws of this State, which shall be in proportion to the amount of capital stock.

MR.  HARRISON- Mr.  President, I desire to ask unanimous consent to adopt two amendments to that section in behalf of the Committee, one to correct a grammatical error and the other at the suggestion of some delegates of the Convention, to guard the language and confine it strictly to what the Committee meant.  I have the amendment prepared.

The amendments were read as follows: Amend Section 1 by striking out the word “they” where it first appears in the second line thereof, and insert in lieu thereof, the word “it.”  Further amend Section 1 by inserting between the words “to” and “repeal” on the third line thereof, the following words, to wit: “Amendment, alteration or” and amend Section 1 by striking out the words “of every nature,” on line three.

THE PRESIDENT-The gentleman from Lee, the Chairman of the Committee, asks unanimous consent to accept the amendments just read.  Is there objection?

There being none the amendments were allowed.

MR. MACDONALD-I would like to ask a question of the Chairman of the Committee.  As I understand this section, it authorizes the legislature to alter or amend charters of existing corporations by special act.  Isn’t that in conflict with the Article we have adopted on Local Legislation.

MR.  HARRISON-If the delegate from Montgomery will read further, he will see that it provides that the legislature shall pass general laws under which charters heretofore granted may be amended.  The other, as a matter of precaution, was put in there simply to overcome the exclusive rights held by the Courts under the Dartmouth College case.

MR. Ashcraft-I ask this question: if when a corporation has obtained a charter, cannot it then come to the legislature and get


4458                  

OFFICIAL PROCEEDINGS

it amended. The section says, "subject nevertheless to repeal at the will of the legislature; and shall pass general laws under which charters heretofore granted may be altered or amended."

MR. HARRISON‑I ask my friend from Lauderdale to allow the delegate from Mobile upon whose suggestion this amendment was incorporated to answer him.

MR.  BOONE‑I would say that the Committee has put this in, because if you will look at Article XIV', Section 1, of the old Constitution, you will find that after providing how corporations shall be organized, it was carefully put there.  “All laws under which corporations are organized may be altered, amended or repealed.." That is in every Constitution in the United States that has been made since the decision in the Dartmouth College case, in which Mr. Justice Story pointed out that unless the power was left with the legislature to alter, amend to repeal that a legislature grant was a contract, and could not be subject to alteration, amendment or repeal, and hence, if we do not pt this in here somewhere, if the legislature would grant a charter giving them certain rights, they would be unalterable.  It seems to me of vast importance and should appear in this Article.

MR. WALKER (Madison)-Under that amendment as proposed by the Committee, would it not have it in the power of the legislature to provide for such an amendment, not by general law but by special law?  What necessity is there for providing for special legislation to amend charters if it can be done by general laws.

MR.. BOONE-I take it that in many particulars there are corporations of a certain character, relating to certain subjects, which are not of uniform and general purpose, and the idea of the committee was to put it in for that purpose.

MR. WALKER-I would like you to specify some corporation that could not be provided for by general law.

MR.  BOONE-I would say there are many rights and privileges many ramifications in certain corporations, and it would do no harm to have this provision, especially when we have the sentence following, that the Legislature shall by general law provide for the organization of corporations and giving of charters, and not by special act.

MR. WALKER-But the exception now proposed would take this out of operation of general law, and make it subject of a special act by the Legislature.

MR. BOONE-I think that would be wise in certain cases.


4459

CONSTITUTIONAL CONVENTION, 1901

MR. PILLANS‑ Could there under the Dartmouth College decision be any amendment by general or special law unless the privilege to amend is retained.

MR.. BOONE‑I think not. Clearly not.

MR. ASHCRAFT‑ What is the parliamentary status of the matter ?

THE PRESIDENT-The question is on the motion to adopt the section as amended by unanimous consent.

MR. ASHCRAFT-I desire to call the attention of the Convention to the fact that if the word “amended” if left in there, it will make is possible for the Legislature to pass a special act in connection with every corporation that may be organized in this State, but if it is left as originally reported the Legislature will still have the power to control corporations, because if there is any reason why the charter of a corporation should be amended, and it refuses to do it, under general law, the Legislature retains the right to repeal its charter and thus retains its power of control over it.  If you put words “subject nevertheless to amendment or repeal” you open every charter in this State to amendment by a special act of the Legislature and open the doors for local legislation which we have undertaken to close.

MR. JENKINS-Wouldn’t the amendment have to apply generally to all charters.

MR. ASHCRAFT- No, because it says “subject nevertheless to amendment.

MR. JENKINS-Wouldn’t the law amending it be a general law itself?

MR. ASHCRAFT-No, that is not the purpose of the word “amendment.”  I move the reconsideration of the action of the Convention whereby the word “amendment” was inserted.

MR.  BOONE-Upon that it seems to me very briefly, as suggested to me by my colleague, Mr. Pillans, that unless we retain some right to amend or alter these charters, that it does not exist.  On that point any fair reading of this article, and it is construed by the courts according to well known canons of construction you construe it as a whole, and when you read it in that way, it is clear, as the gentleman from Wilcox stated that those amendments or alterations or the repeal of it, is to be by a general law.

MR.  COBB-Will the gentleman allow a question?

MR. BOONE‑ Certainly.

MR. COBB‑ If you put in this clause the power to amend will not the effect be to confer upon the Legislature the power to make a charter? Where would you draw the line or distinction?


4460                  

OFFICIAL PROCEEDINGS

MR. BOONE‑I draw the line here: That whether we give the power to the Legislature, or do not give the power to the Legislature, to amend, that it is much wiser as to corporations that have been heretofore granted charters, or that may be hereafter granted, to put a limitation upon the power to grant exclusive privileges, or to grant rights and franchises which cannot be repealed, and that will stand forever as contracts, such as is pointed out in the Birmingham Street Railway case in 79 Ala., where Mr. Justice Somerville shows that gas, light, water works, sewers, rights of navigation, railroads, and hundreds of such things, rights of exemption from taxation, and numbers and numbers of the sovereign powers, of the State have been given away, and that thereafter they could not be taken away, altered or changed by the Legislature, and it is better to have this power here as a limitation upon the Legislature, even if they could amend charters, than to put it in without the power of the people, and I ask that the Section as amended be read.

MR. COBB‑I understood you to take the position that where an act of incorporation has once been passed it can not thereafter be repealed, and is a contract.

MR. BOONE ‑It is, unless there is a reservation, either by general law, or in the charter, or in the Constitution, of the power of repeal or amendment.

MR. COBB‑ Now you have in this Section the power of repeal ?

MR. BOONE‑ Yes sir.

MR.  COBB ‑The point I make is, if you insert the power to amend, do you not thereby confer power upon the Legislature to absolutely charter a corporation.

MR.  BOONE‑I think not. I think it would have the power to amend the charter. The corporations of this State when, the power of the State is wisely used to govern and control them, are the great developers of this State, and it might be wise in many instances to take an amendment of the charter, without exercising the drastic power of repealing it, and without this amendment you could do nothing but repeal the charter.

MR. ASHCRAFT‑ Will you permit a suggestion?

MR. BOONE‑ Yes sir.

MR. ASHCRAFT‑ If these words were transposed, and placed immediately after the words "general laws" in the second line.  I think they would have the meaning you intend them to have.  It would read: "They shall pass general laws, subject, nevertheless, to amendment. alteration or repeal, under which corporations may be organized, and corporate powers of every  nature obtained."


4461

CONSTITUTIONAL CONVENTION, 1901

MR. BOONE‑I do not think that would do, and it does seem to me that it is of the utmost importance that what is called in the law "the visitorial power of the Legislature" in behalf of the people, should be exercisable by the Legislature. That is the only way in which it could be done, and I think that it would not be wise to strip the Legislature of the power to amend, alter or repeal the charters of corporations.

MR. O'NEAL ‑Do you favor giving the General Assembly power to pass general laws to amend the charters of the different corporations in the State?

MR. BOONE‑ No sir, I do not. I claim that this language does not have that effect, but if it did, it would be far better to do it than to leave it for corporations to get legislative acts through the General Assembly, and then have them operate as irrepealable contracts.

MR. PILLANS‑ Might not corporations be chartered under the general law, and be given the right to take 10 per cent. interest, which would become part of the charter contract and would not the clause as you propose it give the power to amend such charters thereafter, and might not the Legislature afterwards by general law amend all of the charters granted under general law and reduce the interest to 8 per cent.? Whereas if they didn't have the power to amend this charter, it would be in effect, a contract, and the Legislature would not have the power to compel them to reduce the rate of interest to 8 per cent.

MR. BOONE‑I think unquestionably so.

MR. PILLANS ‑Isn't that an illustration of how this does not necessarily permit local legislation, and conflict with what we have already done?

MR. BOONE‑I think so. That is the law of Ohio, as illustrated in the case of the city of Hamilton against the Hamilton Gas Light and Coke Company. There the matter is regulated by general law. Look at the opinion of justice Harlan, pointing out the power to amend or repeal a charter as is fixed by the general law, and you will find also under the laws of Ohio that corporations are formed by general laws and not by special acts.

MR. BLACKWELL‑ By the amendment proposed, couldn't you strike out everything in the charter except the heading of it?

MR. BOONE‑ Yes sir.

MR. BLACKWELL‑ And then if you amended it, wouldn't you have a new charter?

MR. BOONE‑I deny that would be a charter, it would be just the title of an act. A charter contemplates the power to do


4462                  

OFFICIAL PROCEEDINGS

something in a well defined way.  It is a statue giving you authority to do it in a certain manner, and according to certain methods.

MR.  COBB‑' There is a concensus of opinion upon one question, and that is that every provision in a State Constitution should be so plain that construction of it would not be necessary. Now, the amendment that is proposed here, even under the view taken by my friend from Mobile, would make this provision of the Constitution of Alabama subject to grave doubt as to what it means.  That should not be. The question that is really before this Convention is the question between allowing the Legislature of the State of Alabama to charter corporations, or to confer that power by general laws upon some other department of the State government. That is the vital question that is before this Convention, and before the people of Alabama. Now, then, if we have met here to do that and it is better to withdraw from the Legislature this power of chartering corporations, then we ought to do it effectively, and not in such a way as still will leave the power in the Legislature to do that which we are endeavoring to forbid.

MR. ASHCRAFT-I suggest to the gentleman from Macon that the Committee propose to transpose the sentence to a position immediately after the words “general laws,” in the second line, which will relieve it of any ambiguity.  It will read, “The Legislature shall pass no special act conferring corporate powers but they shall pass general laws, subject to amendment or repeal, under which corporations may be organized, and corporate powers conferred,” and that will be without objection.  Then it would be absolutely clear that no contract could be obtained under the general law that is not subject to amendment or repeal.

MR. COBB-Then the amendment is wholly unnecessary.  The power to amend will remain in the Legislature in the view taken by my friend from Lauderdale.  The power to amend or change a general law can never be taken from the Legislature of Alabama except by an express enactment in this Constitution.  That is not provided here at all; hence any amendment, such as he suggests, is wholly unnecessary.  I do not object to the power remaining in the Legislature, to amend these general laws under which corporations may be formed, if that is the object; the only objection to that is that it is wholly unnecessary, but I do protest against any amendment being put into this section whereby the Legislature can amend an Act of incorporation granted by other authority than itself, because it is perfectly patent to everybody that if that power to amend remains in the Legislature, the power to form corporations remain there.

THE PRESIDENT-The question will be upon the motion of the gentleman from Lauderdale to reconsider the vote whereby the amendment was added by unanimous consent.


4463

CONSTITUTIONAL CONVENTION, 1901

MR. REESE‑A motion to reconsider at this time is not in order.

THE PRESIDENT‑ The motion to reconsider the vote whereby the amendment was adopted is in order under the rules.  The Chair will refer the gentleman to Rule 37‑"A motion to reconsider a vote upon any incidental or subsidiary question shall not remove the main subject under consideration from the house, but shall lie considered at the time when it is made."

MR. WALKER (Madison)‑Under this provision, as it would be by the amendment suggested by the gentleman from Mobile, and I believe already incorporated, the result would be that the Legislature would be required to pass general laws under which corporations might be formed, but would retain the power to amend the charters of corporations formed under those general laws by a special law.  In other words, a corporation could get its charter under a general law, but if it wanted more powers than the general laws conferred, it would simply have to go to the Legislature for a special charter, so that the provision as to general laws would amount to nothing.   Anybody could get a charter under the general law, and then if he wanted more power he would go to the Legislature, and, by special law, get it amended.  That is just what it means.   That is what your language means.

MR. O'NEAL (Lauderdale)‑We have already adopted a provision which says that the Legislature shall pass no local law, authorizing, amending, extending charters of corporations. "Now, in your judgment, does not this section, in effect, repeal that provision and open the doors to local legislation in this regard?

MR. WALKER‑ That is what it does. It is utterly inconsistent with the provision already adopted.

MR. WHITE‑ I desire to ask the gentleman if it is not a fact now that corporations which have obtained charters under the general law have not very largely and generally had them extended by legislative enactment?

MR. WALKER‑ Yes, and this just means the perpetuation of that custom, and unless this Convention is ready to perpetuate the custom of people getting charters under the general law, and then going to the Legislature and getting everything they ask for, I think this motion to reconsider ought to prevail, and that the amendment ought to be stricken out.

MR. HARRISON‑As before stated, the amendment which it is moved to reconsider, was accepted by the committee on the suggestion of the gentleman from Mobile. Your committee understood it as he has explained it. This section as originally drawn by the committee clearly gives the right to the Legislature to repeal these general acts. I submit that it is even with the amend‑


4464                  

OFFICIAL PROCEEDINGS

ment not subject to the construction placed upon it by the delegate from Madison, and I ask the attention of the Convention to a careful reading of it. If it is subject to that construction, your committee does not desire it, and if it is not plain, we are perfectly willing to guard it, the object of the committee being in accepting this amendment, first, to require the Legislature to pass, general laws under which corporations may be organized and corporate powers obtained, but they provide that nevertheless these general laws by which they are incorporated may be altered, amended or repealed, and I submit that that is a fair construction of the meaning of this article. That is all that is meant by it. That is all we intended to put in there. If it does not mean that, without going into the trouble here of a reconsideration, and if he will suggest the phraseology, if there is any doubt about it in his mind, we will be glad to accept it and save time. We are not figuring on principle at all, it is merely on construction and there is no use for parliamentary delay when we are all agreed upon what we want.

MR.  WALKER-I suggest to relieve the matter of any question strike out all that clause after the word "obtained" down to the semi‑colon.

MR. HARRISON‑ How would it suit you to insert after the word "obtain" the word "which general laws may be subject."

MR. WALKER‑ 'That is all right.

THE PRESIDENT‑ Does the gentleman ask unanimous consent to so amend the article?

MR. PILLANS‑I object. I want to give my reasons why I do not think that meets the views of the committee.  The effect of that would be. as was shown by the gentleman from Macon, nothing more than to declare that the Legislature could repeal a law which it had missed, and we know that it can do that without it being so declared.  I  take it that what the committee wants to do is to retain somewhere in the Legislative powers of this State the right ,which this State has found it worthwhile to retain ever since the Constitution of 1875 ; that is, the power to declare a charter is not a contract and not irrepealable and unamendable.  There are scores and scores of charters existing in Alabama and hundreds of there, some under general and some under special laws, and every one that has been created since 1875, is under the control of the State of Alabama. as to amendment as well as repeal. That is plain. They cannot set up against it the doctrine that it is a contract and is inviolable. We need to preserve to the Legislature the power to amend or repeal charters. I grant that we cannot do that by local or special legislation, but we can do it in many instances by general law. and that power ought to be clearly preserved. I hope that the delegates will not forget that perhaps the greatest of the corporations are those existing under


4465

CONSTITUTIONAL CONVENTION, 1901

special legislative charters and not under the general laws, and if this article goes through with the amendment suggested, you reserve the power that you have had since 1875 to alter or amend any charter which any corporation of this State has today.

MR. REESE‑ Doesn't the word "revoke" or "restrict" suggest the idea you have in your mind.

MR. PILLANS‑ There is no difficulty about the words, I think—

MR. PROCTOR‑I think I have an amendment that will meet the views of both sides. Right after the word "laws" in the second line, I want to insert the words "subject nevertheless to amendment, alteration or repeal at the will of the Legislature," and then strike out the same words where they occur in the third line.

MR. PILLANS ‑That was the identical suggestion made by my friend from Lauderdale. That will not cover it, because, as the gentleman from Macon has demonstrated to you, you have got that power to amend your general laws without it being given in this Constitution. The point is this: You have a general law, and a corporation is organized under that law today, and tomorrow you have the right to amend that law, but your corporations have obtained under it before you amend it rights which you cannot take away by amending it. Let us suppose a general law is passed which gives to all banks under this general banking law in Alabama the right to take 8 per cent. interest. Each bank under that has got a twenty year contract with the State, unless there is something giving the State the right to interfere with it by general or special legislation. It has got a contract with the State whereby it can obtain 8 per cent. interest. Money is not worth 8 per cent interest in Alabama, and it is very possible that in a few years the Legislature will make the rate of interest 6 per cent. I doubt not they ought to do it today, and if I were in the Legislature today I should surely vote for it, but how I would vote in the Legislature does not concern you. Now if a bank is incorporated under this general law giving it the right to charge 8 per cent. interest, if the Legislature passes a law two days after that charter is granted fixing 6 per cent as the legal rate of interest every bank organized under that law prior to the time they amended it, by making it 6 per cent would be beyond the power of the legislature of Alabama or the courts to interfere with its charging 8 per cent.

MR. HARRISON‑ But if the right as suggested by the delegate from Madison is conferred of repealing that general lain doesn't that carry with it the right to repeal that particular charter, and although you say that the legislature has the right to repeal any general law, it wouldn't have the right, if the charter was obtained under that general law unless it was reserved. Doesn't it accomplish the whole thing. I want us to try to get together.


4666                    

OFFICIAL PROCEEDINGS

I think the proposed amendment of the delegate from Madison would still reserve the right to repeal that charter. When you reserve the right to repeal, alter or amend a general law, you reserve the right under that to change the charter.

MR. PILLANS‑ How does that protect us in regard to the special acts? Every special charter in Alabama, when you pass this, is getting out from under the control of the legislature, even by a general law if it is an amendment.

You don't want to release them, hence I will answer the gentleman and say while we do want to get to the same plane, I do not understand, and I have tried to make it clear why I did not understand, how the repeal of the law that is provided for the organization of banks for twenty years, after the bank is organized, changes the existing state of its incorporation. Five or more gentlemen, I have forgotten the number, may organize a banking concern now and under the general law existing today, you would have a contract with Alabama, which is irrepealably unless by the terms of the Constitution of 1875, that you are going to strike down. And what are you going to put in place of it? You are going to put a meager provision that you can change your general laws any time you please.

Does that repeal the charter of the bank organized yesterday under it? Certainly not.

That is the reason I object to what has been accepted by the Committee, as I take it unadvisedly.

MR. WATTS‑I do not see the difficulty in this section which my friend from Madison sees. The language in reference to an amendment or repeal evidently refers to the general law. I think the word "amendment" is necessary in there, because if there was nothing said about amendment or repeal, my friend from Mobile would be right. Notwithstanding the legislature has the right to repeal would it enact, but when the Constitution says that you may enact and you may repeal and does not say anything about your right to amend, a very serious question arises as to whether or not the Courts would construe the inclusion of the word "repeal" to exclude the power of amendment. Therefore I think it advisable to put in the amendment suggested by my friend, Mr. Boone, from Mobile.

MR. O'NEAL (Lauderdale)‑How would it answer your objection to strike out the words "subject nevertheless to amendment, alteration or repeal at the will of the legislature" where it occurs, and add at the end of the section the following: "Provided, however, that the legislature may at its will amend, alter or repeal any such general law."


4467

CONSTITUTIONAL CONVENTION, 1901

MR. WATTS ‑I think the sense would not be changed with that at all. I think it ought to be fixed so as to leave no question about its meaning, and I think that is the way it is now.

MR. COBB‑I want to ask this question: If you are right in your construction that the word "repeal" there refers to a repeal of the general law where have you got the right in the legislature to repeal a special charter.

MR. WATTS‑ You have not.

MR. COBB‑ That is, above all things, what you want in this law.

MR. WATTS‑I was about to address myself to that. Mr. Pillans is essentially right in the position he takes.

MR. WALKER (Madison)‑To meet the point suggested by the gentleman from Mobile, I would suggest to you the addition at the end of the section the following: "The charter of any corporation shall be subject to amendment or appeal under the general law."

MR. WATTS‑ Yes, I think so. I don't know whether that would fill the bill or not, but the gentleman from Mobile, Mr. Pillans. is eminently correct in the point which he makes that this law would not affect any charter which had been granted under the general lacy, although the general law was afterwards repealed, because the amendment of that general law by the legislature would simply say that a corporation thereafter would be governed by a law as it then existed, either by repeal or amendment. It would not affect the right of any corporation that had been chartered under the law as it then existed, and if the object is to retain in the legislature the power to amend a charter already granted, then you must use different words than those used in this section.

MR. REESE‑I call the attention of the gentleman from Montgomery to Section 23 of the report of the Article on Preamble and Bill of Rights. How does that affect the matter under discussion?

MR. WATTS ‑It does in a general way, but we had better be a little more particular than that, and there is another matter about this that I desire to all the attention of the Committee to, and that is this, that they had provided for by another Section for the organization of corporations and the conferring upon corporations powers by general law that has heretofore been done by a special act. They don't provide for amending charters by general law as is now done by a special act of the Legislature.

MR. HARRISON‑ Read Section 10.  We could not put it all in one Section.


4468                  

OFFICIAL PROCEEDINGS

MR. WATTS‑I am speaking of this Section. Of course you could not put it in one Section, but I am calling attention to it, so we may consider it as we go along. I do not think the amendment suggested by the gentleman from Madison meets the difficulty we are under. We want to retain in the Legislature the power to revoke, or to amend the charter of any corporation which is granted under general law, and I do not think the suggestion of the gentleman from Madison covers it.

MR. COBB‑ I desire to offer an amendment. I propose to amend by striking out all after the words "obtain" in the third line down to the first "and" in the fourth line.

THE PRESIDENT‑ The gentleman will reduce his amendment to writing.

MR. COBB‑ My contention is that the power to amend, change or repeal is already in the Legislature of Alabama, and will remain there unless taken away by some constitutional provision.  Now if it be true as a question of law, then these work, subject to amendment, etc., apply, as contended by the gentleman from Montgomery are wholly unnecessary, and I move to strike them out.

MR. ASHCRAFT‑I desire to ask leave to withdraw my motion for reconsideration, and to offer an amendment by inserting in line five, after the word amended the "by general." It would then read "shall pass laws under which charters heretofore granted may be altered or amended by general law." That would prevent any special act being made to repeal any special charge.

THE PRESIDENT‑ The Chair will state to the gentleman from Macon the pending question is on the motion to reconsider, and the amendment is not in order at this time.

MR. ASHCRAFT‑ I desire to withdraw my motion.

THE PRESIDENT–The gentleman asks unanimous consent for leave to withdraw his motion to reconsider. Is there objection?

MR. COBB‑I object.  Will the Chair indulge me just one moment ‑permit me to say, one word there. The reason I object is that I think until we do reconsider we cannot get this Section in proper shape, and when we reconsider it we can perhaps agree to it.

THE PRESIDENT‑Is the Convention ready for the question on the motion to reconsider?

Upon a vote being taken the previous question was ordered.

MR. MACDONALD— It seems to me a great deal of confusion has arisen, and the question I put when first raised, while


4469

CONSTITUTIONAL CONVENTION, 1901

I thought it was satisfactory, it was not satisfactory. It seems to me that it should be resubmitted to the Committee, so as to be drafted in a proper manner, and I therefore move that it he recommitted to the Committee.

THE PRESIDENT‑ It is moved that the Section be recommitted to the Committee. Is the Convention ready for the question?

MR. HARRISON‑ There seems to be a misunderstanding.  I have no objection to the will of the Convention if it were expressed. The Committee would like to know what the Convention desires. There is a difference of opinion between the delegates, some of them are evidently anxious that the Legislature shall have the power to repeal by special law any charter, and others are opposed to it, and there has been no test question of that.

MR. COBB‑I desire to ask a parliamentary question, whether it would be proper just at this time to recommend instructions.  If so I have a recommendation to make by way of instructing the Committee.

MR. HARRISON‑ The Committee has endeavored to accept what it thought its own construction clear. It seems that there is no one able to get the Section to suit the others. I would like an expression of the will of the Convention.

MR. COBB‑ That is what I propose to get, that is what I want to put to the Committee to bring in an ordinance here whereby they will give the Legislature the power to alter, amend or repeal any general law if they see proper to put that it. I don't think it is necessary.

MR. HARRISON ‑If the gentleman will read Section 10, it covers it and we cannot engraft the whole Article in one single Section, and I do not believe—

THE PRESIDENT‑ Does the gentleman from Lee make any motion for the Convention to take action?

MR. HARRISON‑I move the previous question.

MR. WALKER (Madison)‑I understood that there was a motion to recommit.

THE PRESIDENT ‑ Yes.

MR. WALKER ‑If it is to be recommitted, I would desire to have this matter—

MR. HARRISON‑I move to lay the motion to recommit on the table.

Upon a vote being taken the motion to table prevailed.


4470                  

OFFICIAL PROCEEDINGS

MR. HARRISON‑ Now I move the previous question. We will hear from the gentleman from Madison.

MR. COBB-Is my amendment pending?

THE PRESIDENT‑ It was not in order, because the pending question was a motion to reconsider.

MR. COBB- No sir, long before that the gentleman from Lauderdale wrote it for me.

THE PRESIDENT ‑It was out of order because the pending question was a motion to reconsider. It will be in order to offer it again when the gentleman from Lee has the floor.

MR. HARRISON-I yield to gentleman from Madison.

MR. WALKER-I have an amendment.

The Secretary read the amendment as follows:

“Add at the end of the Section the following, ‘the charter of any corporation shall be subject to amendment, alteration or repeal under general law.’”

MR. HARRISON-I desire to accept that amendment, and move the previous question on the subject and pending amendment.

MR. O’NEAL-I would like to have the pending amendment read.  It was reconsidered, was it not?

THE PRESIDENT-The Chair would call attention of the gentleman from Lee that there was an amendment authorized to be accepted by unanimous consent which was reconsidered by the action of the Convention.

MR. HARRISON- Yes, obviates it.  I ask unanimous consent to withdraw the first amendment which was reconsider.

Unanimous consent was given.

THE PRESIDENT‑ The question will be on the amendment of the gentleman from Madison.

MR. COBB-I move to amend that by my amendment sent up to the clerk’s desk by the gentleman from Lauderdale.

MR, HARRISON‑I demanded the previous question.

THE PRESIDENT-The gentleman from Lee moved the previous question on the amendment and section.

MR. VAUGHAN‑I ask for a reading of the section as amended.


4471

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑ It has been amended. There is an amendment pending.

MR. HARRISON‑ It was a grammatical amendment.

THE PRESIDENT‑ That was not reconsidered; it is already incorporated. The question will be upon ordering the previous question.

MR. WATTS‑I want to ask the Chairman of the Committee in the fourth line of your report the words "heretofore granted" ought to be stricken out; otherwise you do not allow corporations which already have their charters.

MR. HARRISON‑ It would but for the proviso offered by the delegate from Madison.

MR. WATTS‑ No, sir; "heretofore granted," and it applies to all corporations. Strike out in the fourth line "heretofore granted."

MR. HARRISON‑I will accept that.

MR. COLEMAN‑ If you strike out that what will you do then?

MR. WATTS‑ It will apply to all charters.

MR. PRESIDENT‑ The previous question has been ordered. The Chairman of Committee asks unanimous consent to accept the amendment offered by the gentleman from Madison. Is there objection? The Chair hears none, and it is so ordered. The Chairman asks unanimous consent to accept the amendment offered by the gentleman from Montgomery. Is there objection? The Chair hears none, and it is so ordered. The question will now lie upon the adoption of the section as amended.

MR. WATTS‑ Read it as amended.

The Secretary read as follows: "The Legislature shall pass no special act conferring corporate power, but they shall pass general laws under which corporations may be organized and corporate powers obtained, subject, nevertheless, to repeal at the will of the Legislature; and shall pass general laws under which charters may be altered or amended. The Legislature shall, by general law, provide for the payment to the State of Alabama of a franchise tax by corporations organized under the laws of this State, which shall be in proportion to the amount of capital stock. The charter of any corporation shall be subject to amendment, alteration or repeal under general laws."

MR. PROCTOR‑ The Clerk did not read the amendment which has been adopted in the second line, to strike out "them" and insert "it."


4472                  

OFFICIAL PROCEEDINGS

THE PRESIDENT ‑It was done by unanimous consent. The question is on the adoption of the section as amended.

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

The Secretary read Section 2, as follows:

Sec.2.  All existing charters or grants of special or exclusive privileges, under which a bona fide organization shall not have taken place and business been commenced in good faith, within twelve months form the time of the ratification of this Constitution, shall thereafter have no validity.

MR.  WALKER-I desire to offer an amendment.

The Secretary read the amendment a, follows: "All existing charters or grants of special or exclusive privileges, under which a bona fide organization shall not have taken place and business been commenced in good faith, at the time of the ratification of this Constitution, shall thereafter have no validity.

'THE PRESIDENT-The question is on the substitute offered by the gentleman from Madison.

MR. WALKER— The substitute as offered is a copy of Section 2 in the Constitution of 1875. Under this provision, as reported by the Committee, it seems to me that there would be an implied recognition that there were existing charters now under which an organization has not taken place, by which special and exclusive privileges have been legally conferred. I do not think any such charter purporting to have privileges of that kind is legal under the Constitution of 1875, and this would be all implied recognition of the legality of something that is not legal now.  Now, in 1875, when that provision was put in the Constitution there were in existence charters conferring special law exclusive privileges heretofore granted the Legislature, and that provision was simply the method adopted by the Constitution of protecting the previous acts of the Legislature. There is now no cause for extending a protection of that kind. Certainly, we are doing all that anybody could reasonably call for to protect charters of that kind which have already been organized. I conceive that there could be no such charters unless granted prior to 1875, and it strikes me the provision reported by the Committee would be an implied recognition of the validity of grants that now have no validity; in other words, would give life to something that now has no life.

MR. DENT‑Is there any field of operation for that section at all?

MR. WALKER‑ Yes, there is a field of operation for it that if there is in that charter now granting exclusive and special


4473

CONSTITUTIONAL CONVENTION, 1901

privileges, this would be an implied recognition of that class, which now has no validity.

MR. SMITH (Mobile)‑ But do you desire to withdraw, all because there is one?

MR. WALKER‑ It also applies to charters that do.

MR. SMITH‑ Would it destroy them all?

MR. WALKER ‑No, sir; I am for not giving life to those that do not exist.

MR. SMITH‑ Don't you nullify all charters, whether exclusive privileges or not?

MR. WALKER‑ No, sir, I put it as in the Constitution of 1875.

MR. PILLANS ‑Wouldn't your amendment destroy this sort of a corporation: Here is a corporation contemplating the operation of ship building and dry dock company. that contemplates putting about two million dollars into the plant, by the second section of which it is provided that the incorporator shall within twelve months from the date of the passage of the act, etc., which has not expired and may not expire by the time this Constitution is ratified. They provide that within a certain time after the books are opened they would commence to do business in the State.  Would not the amendment you suggest destroy that industrial corporation?

MR. WALKER‑I will state that my object was not to take away valid charters already granted, but those other charter grants of special or exclusive privileges, I do not want to have a section here to give such charters validity if they have not that validity now.

MR. PILLANS‑ Did not your section read "All existing charters or grants ‑in the disjunctive‑ "or" "under which a bona fide organization shall not have taken place, etc." If you strike out "charter" is it possible for a special act of the Legislature to incorporate any company that does not grant it special and exclusive privilege of being that corporation, the special privilege of doing business under that charter?

MR. WALKER-The objections urged by the gentleman from Mobile are equally applicable to the Constitution of 1875— it is a copy of that provision.

MR. GRAHAM (Montgomery)‑ I offer all amendment to the amendment to the section striking out the ,words in the first line "or grants of special or exclusive privileges." Would that meet the objection of the gentleman?


4474                                          

OFFICIAL PROCEEDINGS

MR. WALKER‑I think so.

MR. GRAHAM‑ Then I offer this amendment: Amend Section 2 in first line by striking out the words "or grants of special or exclusive privileges."

I move the adoption of the amendment.

THE PRESIDENT‑ The question is on the amendment of the gentleman from Montgomery.

MR. VAUGHAN‑I wish to ask the gentleman from Montgomery if that section even as amended by him would take a charter away from a railroad corporation ‑which has been incorporated and organized but which had not actually commenced to do business?

MR.  GRAHAM‑ Yes, sir, the section reads "under which a bona fide organization shall not have taken place and business been commenced.” There must not only be an organization, but a commencement of business.

MR. VAUGHAN-Then if the railroad has not been commenced work that is grading, laying tracks, etc.

MR.  GRAHAM‑ In my opinion it would go by the board within the twelve months.

MR. PILLANS‑I only wish to know this, the gentleman from Madison—

THE PRESIDENT‑ The Chair would call the attention of the gentleman from Montgomery that the amendment which he offers is not all amendment to the amendment, unless the gentleman from Madison withdraws his substitute.

Mr.  GRAHAM‑I understood that be withdrew it.

THE PRESIDENT ‑.The gentleman from Madison asks unanimous consent to withdraw his amendment. The Chair hears no objection. It is so ordered.

THE PRESIDENT‑I will ask the gentleman from Mobile to suspend a moment :

Leaves of absence were granted as follows: To Mr. Ely for this afternoon and until 12 O'clock Monday, to Mr. Merrill for this afternoon: to Mr. Palmer and Mr. Greer of Calhoun for Monday: to Mr. Freeman for this afternoon and Monday ; to Mr. Willliams of Elmore for next week: to Mr. Coleman of Greene indefinite leave on account of sickness; to Mr. Dent for this afternoon and until 12 o'clock Monday: to Mr. Opp for this afternoon to Mr. Kirk until Tuesday: to Mr. Smith (Mobile) for :Monday and Tuesday: to Mr. Sentell for this afternoon.


4475

CONSTITUTIONAL CONVENTION, 1901

MR. WILSON (Clarke)‑‑I had earnestly, hoped that we would finish this article today, but we cannot do so and we will gain nothing by remaining in session this evening, and I move that when this Convention adjourns at 1 o'clock that it adjourn until twelve o'clock on Monday.

THE PRESIDENT‑ The gentleman front Mobile has not yielded the floor.

MR. WILSON‑ The Chair has recognized me.

THE PRESIDENT‑ The Chair could not take the gentleman from Mobile off the floor. The Chair thought that the gentleman from Clarke rose to ask a question.

MR. PILLANS‑I cannot understand on what basis the gentleman from Madison has assumed that the Constitution of 1875 makes it valid to grant special privileges to a corporation; it simply provides that—

THE PRESIDENT ‑The gentleman will suspend. The Convention stands adjourned until 3:30 this afternoon.

_________

AFTERNOON SESSION

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

Leaves of absence were granted as follows: To Mr. Bethune until Monday at 12 o'clock; to Mr. Lomax for this afternoon.

MR. PARKER (Elmore)‑I desire to offer a short ordinance.

THE PRESIDENT‑ The gentleman asks unanimous consent to offer an ordinance.

MR. O'NEAL‑ I object.

THE PRESIDENT‑ Objection is made.

The regular order of the business will be consideration of report of Committee on Corporations.

MR. GRANT‑I move that the rules be suspended, and the gentleman have leave to introduce the ordinance to go to a Committee. We have but a day or two more here, and the ordinance ought to be considered.

The motion was carried.

The Secretary read the ordinance as follows:

Ordinance No. 458, by Mr. Parker of Elmore:


4476                                          

OFFICIAL PROCEEDINGS

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

That the license of a public school teacher shall not be cancelled or a contract with such teacher to teach in any public school in this State be annulled, except by due process of law, and from any order cancelling such license or annulling such contract. Such teacher shall have the right of appeal and a trial by jury, in some court or before some hoard of competent jurisdiction provided by law.

Referred to Committee on Education.

MR. HARRISON‑ I call for the regular order.

THE PRESIDENT‑ The regular order is consideration of the report of the Committee on Corporations of Section 2. The gentleman from Mobile had the floor before recess, and has one minute left.

MR. PILLANS‑ It is all the time that I require. I find on a further examination of the amendment offered that it entirely meets the objection; I was urging and ought to be adopted. I  therefore move the previous question upon the amendment and upon the section.

THE PRESIDENT— It is moved that the previous question be ordered upon the amendment and the original section. The question is shall the main question be now put?

A vote being taken the main question was ordered.

THE PRESIDENT-The question is upon the adoption of the amendment.

A vote being taken the amendment was adopted.

THE PRESIDENT- The question is upon the adoption of the section as amended.

The vote being taken the section as amended was adopted.

The Secretary read Section 3 as follows:

Sec. 3. The legislature shall not remit the forfeiture of the charter of any corporation now existing, nor alter or amend the same, nor pass any general or special law for the benefit of such corporation, other than in execution of a trust created by law o by contract, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution and every amendment of any charter of any corporation in this State, or any special law for its benefit, accepted thereby shall operate as a novation of said charter, and shall bring the


4477

CONSTITUTIONAL CONVENTION, 1901

same under the provisions of this Constitution: Provided, that this section shall not extend to any amendment for the purpose of allowing any existing road to take stock in or aid in building of any branch road.

MR. O’NEAL-I have an amendment.

The Secretary read the amendment as follows:

“Amend Section 3 by striking out in line two the word “or special” and also “any special law for its benefit.”  In line 6.

MR. O’NEAL-The purpose of offering this amendment is to prohibit the legislature to pass special local laws in reference to corporations.  This section seems to have been adopted from the language of the old Constitution.  We have passed an article prohibiting special legislation on the subject of corporations, and if this section passes as submitted by the Committee it will authorize the legislature to pass special laws for the benefit of private corporations.  If a corporation holds its charter subject to the provisions of this Constitution the legislature could pass a special law for its benefit.  If we adopt the section as the committee has reported it we simply destroy to a large extent the article which we have already adopted on a local legislation, and I am sure that was not the intention of the gentleman who compose the committee.

MR.  HARRISON-Will the gentleman allow me to call his attention to the very first Section adopted, where all that has been prohibited.  It must all be construed together.  You will find it prohibited again in Section 10.  The language used is simply [a] verbatim copy from the old Constitution, and we did not want to keep repeating all the time what we have in the first Section and also in Section 10.

MR. GRAHAM (Montgomery)-By striking out the word “special,” would it not be construed that the Legislature would have the right to enact a special law?

MR. O’NEAL-No sir, you did not read far enough.  It simply means that the Legislature cannot pass a general law for the benefit of a corporation unless the corporation agrees to hold its charter subject to this Constitution.

MR.  GRAHAM-The idea of the committee there was to prohibit the Legislature from passing any law, general or special, except in the execution of a trust which is now existing or existing at the time of the ratification of this Constitution, because—

MR. O’NEAL-And you go further and say “other than in execution of a trust created by law or by contract, except upon condition that such corporation shall thereafter hold its charter


4478                  

OFFICIAL PROCEEDINGS

subject to the provisions of this Constitution." I submit that that means, that the Legislature is authorized to pass a special law in behalf of a corporation if that corporation is willing to hold its charter subject to the provisions of this Constitution.

THE, PRESIDENT ‑The time of the gentleman has expired. The question will be upon the adoption of the amendment offered by the gentleman from Lauderdale.

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

Upon a vote being taken the motion to table the amendment prevailed.

THE PRESIDENT— The question recurs upon the Section.

MR. WALKER (Madison)‑ I desire to offer an amendment.

The amendment was read as follows:

Amend by striking out all after the word "Constitution'' in line five.

MR. WALKER‑ The amendment will leave the Section just as it stood in the old Constitution.  This Section is a copy of Section 2 in the old Constitution down to the word "Constitution" in line five, and the amendment strikes out all in that Section after that. Now the leaving of this additional provision in this Section it strikes me is entirely unnecessary.

MR. GRAHAM (Montgomery)‑Do you think that the adoption of an amendment, either under the general law or by act of the General Assembly, would validate a charter and give life to a  concern that was dead, or had never lived or was still‑born?

MR. WALKER‑I don't think it would unless this would have that effect. What is the meaning of it if it don't mean that If it is merely an amendment, why say it is a novation of the charter?

MR. O'NEAL‑I would like to have your construction of this Section.  Now this provides that the Legislature shall not alter or amend any charter of a corporation or pass any general or special law— .

MR. WALKER‑I have passed beyond that and do not care to discuss it, I am discussing another matter now.

MR. O'NEAL‑I am asking your opinion—

MR. WALKER‑I am not going to discuss that question because I want to discuss this other one.  That has been laid upon the table and I do not care to discuss something that is not before the Convention.


4479

CONSTITUTIONAL CONVENTION, 1901

In addition to the suggestion that I have already made the operation of the proviso in this Section is to permit a railroad corporation, some of which have charters of very long standing, and which contain exclusive privileges or powers, which they could not obtain either from the Legislature or under general laws, to allow them to retain those special privileges or exclusive benefits, although they seek an amendment under this Constitution, and deny to everybody else the right to retain such exclusive privileges, when they, by seeking an amendment, put themselves under the operations of this Constitution. Now I do not know and cannot imagine any justification for a discrimination of that kind, and it occurs to me that this Section 3 as contained in the old Constitution is ample and complete to cover the evil that was sought to be provided against.

MR. COBB‑ I desire to ask the gentleman a question. I want your construction of this: “And every amendment of any charter of any corporation in this State, or any special law for its benefit." Wouldn't that confer the power upon the Legislature of passing special laws?

MR. WALKER‑ Certainly. That is one objection to it.

MR. COBB‑ Wouldn't that be in conflict with what we are trying to do.

MR. WALKER‑ That is what I suggested a while ago. My motion is to strike out all in that Section after the word "Constitution" in line 5.

MR. BOONE‑I move the previous question on the Section and amendment.

The main question was ordered.

MR. O’NEAL‑ I move to lay the whole Section on the table.

MR. HARRISON ‑In support of the Committee and against this proposed amendment, I briefly desire to state that the delegate from Madison is correct in stating that the part he desires to remain is the present Constitution of Alabama, and the remainder is directly copied from a provision in the Georgia Constitution which your Committee agreed to accept in deference to the views of some members of the Committee and of the Convention who were anxious to put what they thought were some stringent provisions that existed in the Georgia Constitution in ours, and as a matter of compromise it was accepted, and in deference to that majority, while I was not one of them, we agreed to accept it because it is merely stating in other language, repeating, as it were, the provisions contained in our present Constitution.


4480                  

OFFICIAL PROCEEDINGS

MR. COBB– I am not opposed to it, you understand. I want to get this thing fairly understood, though, and I put the question to you that I did to the gentleman from Madison, and that is this: From the word “Constitution” on through line six“ and every amendment of any charter of any corporation in this State, or any special law for its benefit accepted thereby.” Now, this is the proposition: Whether or not these words remaining in this section would confer upon the Legislature power to do that which we are attempting to deprive it of, namely, to pass special laws for the benefit of corporations?

MR. HARRISON‑I think not.

MR. COBB‑ You may confer a power—

MR. HARRISON‑‑I want to answer the question but you are taking my time, and I will not have time to make my speech. I will we you one minute.

MR. COBB– One minute, then. The delegate is familiar with the legal principle that authority may be conferred indirectly as well as directly.  Now, then, the point I want to know is, whether this is not an indirect conferring of power upon the Legislature to pass special laws for corporations?

MR. HARRISON– I think if my good friend from Macon will read it all, he will not think so. I would not have consented to it if I had thought it materially changed the Article, and I hope it will be adopted as it is. If you will read it carefully– “every amendment of any charter of any corporation of this State, or any special law for its benefit, accepted thereby, shall operate as a novation of said charter.” What does it mean? That although it may have an old charter and had certain privileges, if it accepts anything, it then becomes a new charter and such a charter as would be covered by this Constitution. That is what it occurs to me it means, and I see no harm in that. It is but placing in different language what is already stated. I admit I thought there was no necessity for it, but thinking it meant the same thing expressed anew, in deference to the wishes of the minority, I accepted it and desire to see it carried out.

MR. BOONE– Do you not think the Constitution of 1875 down to the word “Constitution,” which is the same as the amendment of Judge Walker, covers practically everything that belongs here?

MR. HARRISON– I do.   I admit that.

MR. BOONE– And is not the amendment, after the word “Constitution,” taken from the Georgia Constitution?   In other


4481

CONSTITUTIONAL CONVENTION, 1901

words, you are trying to put two Constitutions together, and is there any use of it?

MR. HARRISON‑ Some gentlemen think it more clearly expresses it, and I do not think it hurts to say so twice.

MR. MURPHREE– As this portion of it was put in at my instance, and I not being a lawyer and not knowing the construction of language, I will not insist on its being in there if it will endanger the Constitution in the least.

MR. HARRISON‑ If the gentleman will consent, the Committee on Corporations will accept the amendment offered by the gentleman from Madison.

Unanimous consent was given and the amendment adopted.

MR. WATTS‑I would like to ask the Chairman of the Committee a question. Does not this section authorize the Legislature to pass a special law amending or altering a charter of a corporation or remitting its forfeiture?   Does not it say that they can do it on the condition that it will be subject to the Constitution?

MR. HARRISON‑ We have offered sections covering that.

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

The question is on the adoption of the section as amended.

MR. SMITH‑ I desire to get a report of the Committee on Rules.

The report was read as follows:

Amendment by Rules Committee:

Amend Rule 53 so as to read as follows:

Rule 53. The Committee on Order, Consistency and Harmony of the Constitution shall report the proposed Constitution to the Convention, or any part or parts thereof, from time to time as they may think proper, and the Constitution, or the parts thereof, so reported, shall be read and acted upon Article by Article, and submitted to a vote of the Contention ; if a majority of the members present shall vote therefor, the same shall be adopted, but if amended in any particular, it shall be re-referred with such amendments to the said Committee, who shall cause the Article or Articles amended, with such amendments so adopted, to be rewritten and report the salve to the Convention for its adoption. When the Constitution shall have finally been adopted by the Convention, it shall be enrolled, and when enrolled, it shall be again read, and attested by the President and Secretary, and each


4482                  

OFFICIAL PROCEEDINGS

delegate to the Convention shall personally sign his name thereto. The signature of the majority of the delegates present, or a majority of the Convention, shall constitute a sufficient attestation.

MR. SMITH– I ask whether or not it is necessary for that to lay over with notice?

THE PRESIDENT– It seems to the Chair that if there is no objection the rule may be considered now.

MR. SMITH– I move its adoption and desire to make an explanation.

THE PRESIDENT– The Chair thinks that the point, if made, it would go over, under the rule.

MR. SMITH– Then I will move to suspend the rules and put it upon its adoption. And I desire to state that under the rules as they now exist the Article would have to be passed upon section by section and the Committee thought it would be better to be passed on by Articles. The same amendments should be made, and it would save time and it would save the trouble and time of reading the section unless some amendment is offered to that particular section. Under the rules as now existing the Harmony Committee should not make a report at all until it had completed the consideration of every article in the Constitution. So that it would facilitate matters to allow them to report part of it in advance of the whole so that the Convention might be acting upon that while they are completing their labors on the other. Those are the only two changes in the rule.

MR. OATES– I arose for the purpose of enquiring what the objection would be to letting the report lie over until Monday morning. I do not know that I have any opposition to make to it at all, but would like for it to lie over and have time to examine

it before it is passed. We will lose no time.

THE PRESIDENT– The Chair knows of no objection why it should not lie over until Monday.

MR. OATES– I prefer for it to lie over until Monday morning.

The Secretary read resolution reported by Rules Committee as follows:

Substitute for resolutions 282 and 294, introduced by Mr. Williams of Elmore, reported by Committee on Rules.

In order that the records of this Convention may be complete, be it Resolved, That the President be and he is hereby authorized to arrange for the printing of one thousand copies of the daily


4483

CONSTITUTIONAL CONVENTION, 1901

stenographic proceedings of the first, second and third days of this Convention, and that the Secretary of this Convention be, and he is hereby authorized and instructed to furnish to the printer with whom the President shall so arrange a copy of the proceedings of the first, second and third days of the Convention.

Be it further resolved, That when said proceedings are printed, that the same be distributed among the members of this Convention as official stenographic reports have heretofore been distributed.

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

MR. SMITH (Mobile)‑I move the adoption of the report. I understand the work can be done for about one-half of what the daily reports cost. and we thought it best that the stenographic report should be completed.

THE PRESIDENT‑ The question is on the original resolution as amended.

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

MR PRESIDENT‑‑ The next business in order is report of Committee on Corporations.

Section 4 was read as follows:

Sec. 4 ‑No foreign corporation shall do any business in this State without having at least one known place of business and an authorized agent or agents therein, and without filing with the Secretary of State a certified copy of its articles of incorporation or association, and of the law and authority under which it is incorporated. Such corporation may be sued in any county where it does business, by service of process upon agent anywhere in the State. The legislature shall, by general law, provide for the payment to the State of Alabama of a franchise tax by such corporation, which shall be the same as that required of domestic corporations and in proportion to the amount of its capital stock, but strictly benevolent or religious corporations shall not be required to pay such a tax.

MR. HARRISON‑ I desire in behalf of the Committee to submit two amendments. Since the report was made by the Committee we have had a number of gentlemen connected with foreign corporations in the State to appear before the Committee and show to the Committee to it, satisfaction. especially that British companies and other foreign companies, it would be an extremely expensive matter for them to file in the office of the Secretary of State a copy of the law and authority under which they were incorporated. We find upon investigation that all we desire in our


4484                  

OFFICIAL PROCEEDINGS

report is to give the people of the State information as to their capital stock and their business and it could all be ascertained by filing simply their declaration and we simply desire to) avoid that difficulty and put no obstacle in the way of capital coming here, and accomplishing all we intended. My first amendment is for the purpose of striking out that first part which requires them to file the copy of law and authority. The amendment speaks for itself and the further amendment.

THE PRESIDENT– The Convention will act on them one at a time.

The following amendment was read:

"Amend Section 4 by striking out of line a the following word : to wit : "Law and authority" under which it is incorporated.

MR. HARRISON‑I ask unanimous consent for its adoption.

MR. MACDONALD—I would like to ask the Chairman of the committee whether it was the intention to relieve foreign corporations of making some showing to the people of this State as to the limit of their authority, their power.

MR. HARRISON‑ The articles of incorporation are required to be  filed.

MR. MACDONALD– The articles of incorporation and association.

MR. HARRISON‑ They are required to file them.

The amendment was allowed by unanimous consent.

The following amendment to Section 4 was read:

“By inserting in line nine after the word ‘benevolent’ the word ‘education.’”

MR. HARRISON– This simply excludes from the franchise tax strictly educational as well as benevolent and religious corporations and I ask unanimous consent that that amendment be adopted.

The amendment was allowed by unanimous consent.

MR. KYLE– I have an amendment to Section 4.

The amendment was read as follows:

“Amend Section 4 of the report by striking out all of the seventh line after the word corporation and all of the eighth except the word ‘but’ and insert the following: ‘Based on the actual amount of capital employed in this State.’”


4485

CONSTITUTIONAL CONVENTION, 1901

MR. KYLE‑ That makes it read this way : "The Legislature shall by general law provide for payment to the State of Alabama for franchise tax upon such corporations based upon the actual amount of capital employed in this State but strictly benevolent or religious corporations shall not be required to pay such tax.”

Now the object of that is to cut out corporation. State organizations, that have pledged in different States and that have headquarters or do their business in this State. For instance take the Tennessee Coal and Iron Company. They have a capitalization of thirty million dollars. They have large property in Tennessee as well as in Alabama. Therefore it should not be required of them or any other corporation of like character. To pay its franchise tax upon property they own in other States. Take the Southern Iron and Foundry Company.  They have a capitalization of six hundred thousand dollars and own a small plant in this State.  The main plant is in Tennessee. This amendment would reach all the capital they had in rise, in Alabama. But they would not have to pay upon the entire capital stock. The Western Union Telegraph Company with eighty million dollars capital would have to pay on the capital of eighty millions instead of what she has in this State. So this reaches the matter and makes it the property in possession of the State. The committee will accept that I hope.

MR. WILSON‑ The committee has examined the amendment and asks to adopt it.

Leave was granted and the amendment was adopted.

MR. WILSON‑ I do not care to cut off any one and unless some one desires to amend, I move the adoption of the section and upon that call for the previous question.

The main question was ordered and upon a further vote the section as amended was adopted.

Section 5 was read as follows:

Sec. 5. No corporation shall engage in any business other than that expressly specified in its declaration or application.

MR. BAREFIELD‑I have an amendment.

MR. HARRISON–I hope the gentleman will withhold that a moment. I offer an amendment to amend Section 5 by striking out the words "specify in its declaration or application‑ and inserting in lieu thereof "Authorized in its charter or article` of incorporation.

MR. BAREFIELD‑I ask to withdraw my amendment.


4486                  

OFFICIAL PROCEEDINGS

MR. HARRISON– I ask unanimous consent to make the amendment.

MR. SMITH (Mobile)– There are a great many corporations formed under the general law of the State of Alabama.

THE PRESIDENT– The Chair will inquire of the gentleman from Mobile whether he objects to the withdrawal of the amendment of the gentleman from Monroe.

MR. SMITH– No, sir; I do not.

MR. PRESIDENT– The question will be upon the adoption offered by the gentleman from Lee, the chairman of the committee. Does the gentleman object to that amendment?

MR. SMITH– Yes Sir. A great number of corporations in this State are formed under the general laws of the State, which laws do not require any particular statement of the purpose of the corporation. It is just the general business that is required to be stated, and then the particular powers, et cetera, are conferred by the general laws. The general law constitutes the charter and not the declaration.

The Secretary read the following amendment.

“Amend Section 5 by striking out the words “Specify in its declaration or application,” and inserting in lieu thereof the words, “authorized in its charter or articles of incorporation.”

MR. SMITH– It seems to me it ought to be expressly provided by law because its purpose and business is prescribed by a general act of incorporation and not by declaration or application.

MR. HARRISON– If it embodies all that, I do not object.  It is just a matter of choice of language.

Mr. Cunningham took the chair.

THE PRESIDENT PRO TEM.– The question is on the adoption of the amendment as proposed by the Committee.

On a vote being taken, the amendment was adopted.

MR. PETTUS– I have an amendment.

The Secretary read the amendment as follows: “By adding at the end of the section the following words: ‘Any corporation violating the provisions of this section, either by itself or by any agent, and all persons aiding in such violation, shall be liable in damages, approximate or remote, to any person or corporation who is injured by such violation in any manner whatever.”

MR. BOONE– I move to lay the amendment on the table.


4487

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT PRO TEM.– The gentleman from Limestone was recognized.

MR. PETTUS– It seems the gentleman from Mobile is impatient to railroad this section through.

THE PRESIDENT PRO TEM– The gentleman from Limestone is out of order. To what purpose does the gentleman from Mobile rise?

MR. BOONE– What did the gentleman say? I just want to know what he said. I want to hear his remark over there.

MR. PETTUS– I said, Mr. President, that I thought they were rather impatient to hurry through the section.

MR. BOONE– No, sir; I thought the amendment very vague and uncertain, and not proper for constitutional enactment.

THE PRESIDENT PRO TEM.– The gentleman from Mobile is out of order.

MR. PETTUS ‑ Section 5 provides that any corporation shall engage in any business other than that expressly specified in its declaration or application." The amendment that I have offered provides that when any corporation engages in some business outside of its charter than authorized in its charter in violation of Section 5. that it shall be liable in damages to any person or corporation who is injured by such violation. I think, Mr. President, that the adoption of the amendment that I have offered will do more to keep corporations within their charters and to keep them from going beyond their authority that is conferred upon them by law, than all the criminal statutes or other statutes of like character that can be piled upon your Code and books, because those statutes cannot be enforced. If you put this amendment in the Constitution, you have a simple, plain provision which can be enforced and which will be self-operative in keeping corporations within their charter.  No, I don't care to go into a lengthy discussion with the learned lawyer, who may, perhaps, take issue with me upon this amendment.  Mr. President, about the present law. It may be that a corporation now cannot take advantage of an ultra vires act, but if that be true, and if it is also true that there are certain acts of this character not authorized by the charter of corporations which only the State can call the corporation to account for, and if it be true that this is but a reiteration of the law, makes it only plainer, or the law on the subject more expressed or certain in its terms, I do not think it would do any harm to reiterate it in the organic law of the State. But will be in the interest of the people of the State and aid some to keep the corporations within their charters than anything that can be adopted.


4488                  

OFFICIAL PROCEEDINGS

MR. BOONE– The gentleman is correct in saying any ultra vires act of a corporation does not bind the corporation, except so far as to make it and other persons liable for damages. We are not here for the purpose of making a Code of laws; the Legislature has supreme power to do that, and there is no necessity for it. As to the reference that I was trying to railroad the report, through, I am not a member of the Committee, but I do think that we are not here for the purpose of putting unnecessary verbiage in the Constitution when it would be that without it under the law. I , therefore, move to lay the amendment upon the table.

THE PRESIDENT PRO TEM– The gentleman from Mobile moves to lay the amendment of the gentleman from Limestone on the table.

Upon a vote being taken the motion to table prevailed.

MR. SMITH (Mobile)– I desire to offer an amendment.

The Secretary read the amendment as follows:

“Amend Section 5 by striking out everything after the word ‘expressly,’ and inserting the words ‘authorized by law.’

MR. SMITH– The question came up as to what a declaration was under the general incorporation laws of Alabama. The word has a definite place and a definite meaning. So far as this discussion is concerned, all these general corporation laws are substantially the same. I now have before me Section 1252, providing for the organization of corporations, not specially provided for by law, and it provides that two or more persons associating themselves for the same work, for any industrial business or lawful enterprise, may form themselves into a private corporation in the mode and with the capacity and power in the Article expressed. It says: First, declaration to be filed in office of the Judge of Probate.” Now, that is what a declaration is; the persons associating must file in the office of the Judge of Probate in the county in which it is proposed the incorporators shall have its principal place of business, a declaration in writing, signed by each stating–

MR. HARRISON– I rise to a point of order that the Convention has adopted an amendment which the gentleman proposes to strike out. It is not in order.

PRESIDENT PRO TEM– The Chair cannot rule on that without consulting the journal.

MR. HARRISON– The Convention has already stricken out those words and added certain other words.

THE PRESIDENT PRO TEM– The amendment adopted

says “authorized by its charter or article of incorporation” the amendment offered by the gentleman from Mobile.


4489

CONSTITUTIONAL CONVENTION, 1901

MR. HARRISON‑ What does it say?

PRESIDENT PRO TEM– "Authorized by its charter or article of incorporation. That is the amendment proposed and accepted. The gentleman from Mobile moves to strike out that amendment and insert in lieu thereof “authorized by law.”

MR. COBB– Let us understand the Journal.

PRESIDENT PRO TEM— The Secretary will read the amendment.

The Secretary read as follows : "By striking out the words ‘specified in its declaration or application' and inserting, in lieu thereof the words 'authorized in its charter or articles of incorporation.’”

THE PRESIDENT PRO TEM– The gentleman from Mobile moves to strike out everything, after the word "expressly" and insert the words "authorized by law."

MR. HARRISON– Moves to strike out the amendment already adopted.

PRESIDENT PRO TEM– Yes, and insert another.

MR. HEFLIN (Chambers)‑The vote will have to be reconsidered by which the amendment was adopted.

PRESIDENT PRO TEM‑ The Chair understands an amendment which has been adopted could not be stricken out unless others were inserted‑ an amendment can be stricken out provided other words are inserted, or it can be stricken out provided other words were inserted in the main question. The Chair will therefore overrule the point of order.

MR. SMITH (Mobile)– What I was about to say is “the general purposes of the corporation, nature of the business intended, and the principal place of business or location of the corporation.” that declaration does not expressly specify the particular business carried on. Under subdivision 5 which authorizes a corporation to make by-laws in which the character of business and subject to be dealt with are authorized to be described– that is the way they are authorized.

The express declaration as to the particular powers are found in the by-laws of the various corporations and those by-laws are authorized by this general enactment. This says: “Authorized in its charter or articles of incorporation.” Now there being corporations having special charters and there being but one other class formed under articles of incorporation, it seems to me that the amendment might be construed authorizing under special charter where formed under special charters, or contained in the article


4490                  

OFFICIAL PROCEEDINGS

of incorporation when formed under the general law. And if it is susceptible of that meaning it would destroy every corporation in Alabama authorized under the general law and I do not think that should be allowed, or that danger incurred.

MR. PILLANS– May I ask the gentleman a question?

MR. SMITH– Certainly.

MR. PILLANS– Under the general incorporation laws, you alluded to one which provides for business corporations not specially provided for. Does not every corporation have to declare in its declaration what the scope of its business is. For instance, if for soap boiling say boiling soap, if for telegraph business, can it afterwards do soap-boiling?

MR. SMITH – No.

MR. PILLANS– Is not the application the boundary of its powers? Suppose it were to be authorized to do both, would it not have to be in the article of incorporation?

MR. SMITH– Yes.

MR. PILLANS– The by-laws being the domestic law for the arrangement of its domestic conduct?

MR. SMITH– That is true, and in the by-laws it can expressly state what can be done. In the general law it makes a statement of a general character of the business– the express statement of the things to be done is in the by-laws. This expressly states a corporation shall not engage in any business other than that expressly authorized in the charter or article of incorporation.

MR. HARRISON– I submit that the amendment already adopted is better than that proposed by the delegate from Mobile. I submit that the amendment already adopted it better than that submitted by the delegate from Mobile. I thought at first they were similar, but a moment’s reflection when we consider his amendment “authorized by law” it might authorize a corporation under some general law to engage in some other business, might engage in selling liquor– something “authorized by law.” What law? It does not confine it to the law of its application. I submit that really the word charter put back here as in the old Constitution would be sufficient anyhow, I think it would be sufficient because all of the writings on the question consider it that way, and it was only to meet the ideas of those who might be more particular. It was after consultation with the delegate from Madison and other lawyers in order to meet the supposed difficulty that the Committee agreed to put the proposed amendment in. I do not think the words of my friend from Mobile improve it. Now the Convention understands it, and this Committee has no pride of


4491

CONSTITUTIONAL CONVENTION, 1901

opinion, and if the Convention think the amendment better let them adopt it and I move the previous question upon the amendment and the section.

PRESIDENT PRO TEM– The previous question is called for. The question is shall the main question be now put?

A vote being taken the main question was ordered.

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

Upon a vote being‑ taken the amendment was lost.

PRESIDENT PRO TEM ‑The question recurs upon the adoption of the section as amended. As many as favor the adoption will say aye and those opposed no.

The vote being taken the section as amended was adopted.

The Secretary read Section 6 as follows:

Sec. 6.‑No corporation shall issue stock or bonds except for money, labor done, or money or property actually received and all fictitious increase of stock or indebtedness shall be void. The stock and bonded indebtedness of corporations shall not be increased except in pursuance of general laws, nor without the consent of the persons holding the larger amount in value of stock, first obtained at a meeting to be held after thirty days' notice given in pursuance of law.

MR. FERGUSON‑ The Section proposed by the Committee is identically the same as that in the Constitution of 1875. There has been numerous decisions constructing this section and the lawyers of the State are well acquainted with the law upon that subject. I therefore move its adoption and call for the previous question.

Upon a vote being taken the previous question was ordered, and a further vote being taken the Section was adopted.

The Secretary read Section 7 as follows:

Sec. 7. Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargement of its works, highways or improvements, which compensation shall be paid before such taking, injury or destruction. The Legislature is hereby prohibited from depriving any person of an appeal from any preliminary assessment or damages against any such corporations or individuals made by viewers or otherwise, but such appeal shall not deprive the person who has obtained the judgment of condemnation from a right of


4492                  

OFFICIAL PROCEEDINGS

entry, provided he shall have given bond with good and sufficient sureties to pay such damages as the property owner may sustain; and the amount of such damages in all cases of appeal shall on the demand of either party, be determined by a jury according to law.

MR. HARRISON– I rise to a question of inquiry. There seems to be a misprint in the eighth line between the word “judgment” and the word “condemnation,” the word is “or” and it should be “of.”

The President here resumed the Chair

THE PRESIDENT– The gentleman from Lee asks unanimous consent that the word “or” in the eighth line be changed to “of” Is there any objection?  The Chair hears none and it is so ordered.

MR. BEDDOW– I have an amendment to offer.

The Secretary read the amendment as follows:

Amend Section 7 by striking out all the words on line 7 after the word “otherwise” down to and including the word “sustained” in the tenth line.

THE PRESIDENT– The question is on the amendment of the gentleman from Jefferson.

THE SECRETARY–“Provided he shall have given bond with good and sufficient surety to pay such damages as the property owner may sustain.”

MR. BEDDOW– I think, Mr. President, that I see the object of the Committee in reporting this additional feature in this Article on Corporations, possibly to avoid long delays where one railroad seeks to cross another, I myself have seen the bad effect of their being unable to cross the roads of each other. But it seems to me from the reading of this Section it may affect those less able to defend their homes than are the corporations themselves. For instance, a railroad company desires to build a side track along its road at any point, and it should be necessary to run to the home of some individual and judgment of condemnation was rendered. Notwithstanding the fact that the person was aggrieved and believe that the condemnation proceeding deprived him of his property without just compensation, it would not restrain the company from proceedings to take the property and appropriate to their use notwithstanding the fact that appeal was taken to the Supreme Court. Now I would be willing to see that Section go in so far as it applies to corporations, when it comes to the value of crossing the tracks of each other, but I could not consent to give my vote to a proposition that would deprive the right of any individual in


4493

CONSTITUTIONAL CONVENTION, 1901

this State of retaining his home until the court of last resort passed upon the question. I wish to call the attention of the delegates to this question so that they may vote upon it intelligently.

MR. HARRISON– The amendment to the proposed Constitution which is made by the proposed Section offered by your Committee consists in adding after the word “compensation” in the second line, the following, “to be ascertained as may be provided by law,” and also by adding after the word “otherwise” in the seventh line, the following, "but such appeal shall not deprive the person who has obtained the judgment of condemnation from a right of entry," etc.

Your Committee, Mr. President, and delegates of the Convention, was moved to propose this amendment by a very recent case which occurred in Selma, the case of the Southern Railway and the C. S. and N., in which one road was prevented by an appeal for an almost indefinite time, and a public utility actually obstructed, by simply taking an appeal to the Supreme Court upon some question of law, and the whole matter was delayed although they were willing and really to give bond. I had the pleasure to consult with the attorney on both sides of the question, the one who succeeded as well as the one who failed under the present Constitution, and they both agreed, while those who were successful and availed themselves of the privilege, that they were satisfied it was wrong and the Constitution ought to be amended. If the right of condemnation is to be secured at all it must be under proper compensation. Here was a condemnation, one railroad attempting to cross another, we have tried to arrange so the parties will be secured by amendment, and I think it is ample with sufficient bond to indemnify it, and that the work may go on and not open some interlocutory order and not to await the decision of the Supreme Court.

MR. WALKER‑I agree with the purpose of the committee in the section, and I will ask the committee if it will not agree to an amendment in the 9th line by inserting “in double the amount.”

MR. HARRISON‑ I am perfectly willing to that, with that the court would fix it at all amount that would make it absolute and that would be the one purpose.

MR. SMITH (Mobile)‑ That has a little history too. The purpose of giving an indefinite bond was to secure the damages although they be three or four times the value of the property and it was held that an amount double the amount of property would not be sufficient.

MR. WALKER‑I will put it not less than double.

MR. HARRISON ‑That is right. Put it not less than double.

THE PRESIDENT ‑The gentleman from Lee, the chair‑


4494                  

OFFICIAL PROCEEDINGS

man of the committee. Mr. Harrison, asks unanimous consent to accept the amendment offered by the gentleman from Madison.

Objections were made.

THE PRESIDENT‑ The gentleman will offer his amendment as an amendment to the amendment?

MR. WALKER‑ Yes, sir.

THE PRESIDENT–The amendment of the gentleman from Jefferson is pending and you had better wait until that is disposed of.

MR. REESE‑ Will the gentleman allow me to make a suggestion?  In the case the gentleman has alluded to the damages assessed were only four dollars. Now a bond in double the amount—

MR. HARRISON‑ We put it not less than double. We see no objection to that.

MR. REESE– I have no objection to that.

THE PRESIDENT‑ The gentleman's objection is withdrawn but the pending amendment is offered by  the gentleman from Jefferson, Mr. Beddow, and it would probably simplify the record if the gentleman would withhold his amendment until the other is acted upon.

MR. HARRISON‑ Yes, sir, I think the matter is fully understood and unless solve gentleman desires to discuss it further—

MR. COBB –I desire to say something.

MR. HARRISON– All right, then, I will not make any motion.

MR. MACDONALD– I would like to know the parliamentary position.

THE PRESIDENT– There is an amendment offered by the gentlemen of Jefferson to strike out a certain portion of it.

MR. ALMON‑ I move to lay the amendment of the gentleman on the table.

MR. WHITE‑ I hope the gentleman will withdraw that.

THE PRESIDENT – The Chair recognizes the gentleman from Montgomery if he desires to proceed. Otherwise the Chair will recognize the gentleman from Macon.

MR. MACDONALD‑I was inquiring; whether the amendment here could be offered to the amendment offered by the gentleman from Jefferson.


4495

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT— It strikes out all after "said appeal."

MR. MACDONALD‑I offer this then as an amendment.

MR. WHITE‑I arise to a point of order. The gentleman from Lawrence who was recognized by the Chair and moved to table the amendment and then withdrew his motion in my favor.

THE PRESIDENT‑ The gentleman from Lawrence would hardly have the right to prescribe, when he withdrew his motion who the Chair would recognize and the gentleman from Montgomery had asked for recognition, before the gentleman from Jefferson. and therefore the Chair thought proper to recognize him before the gentleman from Jefferson.

MR. WHITE‑I thought he yielded to me.

MR. MACDONALD‑I offer this as a substitute.

THE PRESIDENT‑ The gentleman from Lawrence really was not recognized if the Chair recollects correctly.

MR. WHITE‑I wish to remind the Chair that the Chair stated that the motion was to table, and it was at that moment I asked him to withdraw it.

THE PRESIDENT‑ The gentleman made a motion to table and took his seat when the Chair was on the point of stating the question. That did not give the gentleman the right to the floor.

The substitute offered by the gentleman from Montgomery, Mr. Macdonald, was read as follows:

"Amend Section 7 by adding after the word `destruction' in the fifth line, the following words: `Whenever such taking, injury, or destruction is intentionally and forcibly accomplished without first resorting to legal proceedings. the owner of the property so taken, injured or destroyed shall be entitled to recover three times the value of the property so taken, injured or destroyed in addition to such other damages as may be recovered by law for the trespass."

THE PRESIDENT‑ It does not seem to the Chair that the amendment offered by the gentleman from Montgomery relates to the amendment offered by the gentleman from Jefferson.

MR. MACDONALD‑I think it does in this way, that it is on the same line and prevents the forcible taking of property. It prevents the taking of property if a bond was given. The original Section provides that the property may be taken possession of at any rate, and I propose to amend by substituting this in place of amendment offered by the gentleman from Jefferson.

THE PRESIDENT‑ It seems to the Chair that the amend‑


4496                  

OFFICIAL PROCEEDINGS

ment offered by the gentleman from Montgomery would be proper as an independent amendment to the Section, but not as an amendment to the amendment offered by the gentleman from Jefferson. The Chair will rule that the amendment is not in order at this time..

MR. COBB‑I have an amendment.

THE PRESIDENT‑ Does the gentleman desire to offer an amendment to the amendment offered by the gentleman from Jefferson.

MR. COBB‑‑ Yes sir.

The amendment was read as follows:

"Amend by striking out all words after the word ‘Provided’ in the ninth line, down to and including the word ‘sustained.’ and in lieu thereof by inserting "He shall pay into court the money which has been awarded to him as damages, and by giving bond for the payment of any additional amount which may be awarded to him on appeal and for costs."

THE PRESIDENT‑ It seems to the Chair that the gentleman from Macon is moving to amend the language which the gentleman from Jefferson was proposing to strike out.

MR COBB‑‑ He proposes to strike out and I want to strike out and insert.

THE PRESIDENT‑ You move to amend the same language and insert other language?

MR. COBB– Yes sir.

THE PRESIDENT– Proceed.

MR. COBB– The provision of this Section is that where an appeal is taken and a bond shall be given in double the amount of damages awarded, conditioned for payment on recovery, etc. All that seems to be very well, but you tie up the man, the claim of the party in whose behalf this award is given and remit him to an uncertain suit for damages on his bond, and it is not a very fair contest oftentimes between a corporation and an individual in a suit of this sort, as all know very well. The bond may become insolvent and various contingencies may arise whereby the man in whose favor th damages have been fairly awarded will lose his recovery. Now my amendment provides that where there has been an assessment of damages and an appeal by the party seeking to exercise the right of eminent domain he shall pay into court the amount of money, in money, which has been awarded against him and also give bond providing that any additional amount which he may recover upon appeal will be paid to him and for the payment of costs.


4497

CONSTITUTIONAL CONVENTION, 1901

Now such a provision as this puts the corporation and individual more nearly on an equality before the courts of the country.  It is not right. The distinguished gentleman from Montgomery has called my attention to the fact that the purpose of the law is, and the provisions of the law are, that you shall not take private property for public or private use except by first paying just compensation for it. The law intends that before you shall condemn a man's property in this way, you shall first pay him in money. In order to ascertain the fair compensation to be received by him, where they cannot agree by contract, it is very well to have these general provisions that you may have disinterested parties to award the amount of damages, but when that award has been made, the only element that has uncertain up to that time under the general law is the amount of the damage. Now that has been ascertained, and under the spirit of the general law the man has the right to demand the money before his property is taken from him. But these gentlemen say don't he give bond? Paying money and giving bond are two different thinks altogether. One is certain and the other contingent.

MR. SMITH (Mobile)‑‑The gentleman and Committee think they have provided for the same thing.  Have you examined the authorities as to whether or not under this very provision, just as you contend it should be done, it is required to be done?

MR. COBB‑ No. I have not, but this provision would do away with it if put in the Constitution.

MR. BOONE‑ The provision reads here: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use. shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargement of its works, highways or improvements, which compensation shall be paid before such taking, injury or destruction." As my colleague, Mr. Smith of Mobile has shown, is it not true that the Supreme Court has again and again decided that that money must be paid before he has a right of entry or can take that property,must be actually paid into court?

MR. COBB‑ The gentleman is occupying my time unnecesarily.  This is a Constitution we are making, and in the very provision from which he quotes is contained the other provision that if an appeal is taken then the money is not to be paid.   What is this bond for?   For the payment of damages assessed.   That is the language of the Constitution.  How can you give a bond for the payment of damages assessed after you have already paid it in money?  One provision is where there is no appeal and the other is where there is an appeal.  Now I say where there is an appeal. the party against whom the appeal is taken should be put as nearly


4498                  

OFFICIAL PROCEEDINGS

as possible on an equality with the man to whom the money may be paid without appeal, and remove it from this uncertainty of suit on bond.

MR. WHITE— It seems to me that we are making a wide departure.  Private property has always been regarded as a very sacred thing in Alabama; in fact it has been regarded as a sacred thing in every State in this Union.   Heretofore before private property could be taken that is, before one could be deprived of his property, just compensation had to be made and made in money. Now what are we doing?  We are providing for the taking of private property and remitting the owner to a lawsuit. We are telling the individual whose home is ruined and whose family have been deprived of that home that they must wait and wait indefinitely until an uncertain long drawn out lawsuit may be ended.  

MR. CUNNINGHAM— Is that not done in all attachment proceedings ?

MR. WHITE– That is true, but it is only true after it has been adjudged, under that attachment proceeding that the defendant owed the debt and then a judgment rendered, condemning his property upon a contract which he has made, and he thereby parted with his property.   Here you are taking it from him without his consent. You are taking it from him without his ever having contracted a debt which imposed an obligation upon him. You are taking it from him and turning it over to another in violation of a most sacred principle of our government, to which there is only one exception, and to which there has ever been only one exception, and that is when he has been paid for it in money.  What induces our Committee to do it? They mean well, of course.  They do it because, forsooth, in one instance one railroad company has delayed the operations of another railroad company. In other words, because one heartless corporation has taken another by the neck, all the rights of individuals in Alabama must be laid upon the altar and sacrificed.   I say it is not right.   It cannot be made right, and with some of us this is a live question. Mines are being opened in our section every day; rights of way are being acquired by condemnation; in our towns and cities, streets, avenues and alleys are being opened and homes are being destroyed and taken for the purpose of establishing these public utilities. Is it right to say to a man when you turn him and his wife and children loose penniless in the streets and take from him his property, that you will pay him with a lawsuit that may last for years and years?  You say that this appeal is to some kind of a court established by law, but you believe the appeal is necessary to secure his rights or else you would not have had it in here. Viewers are sometimes very partial. Those who are selected or may be selected in some unknown, uncertain way, to be provided by the legislature in future, will determine the price of the property and they may take


4499

CONSTITUTIONAL CONVENTION, 1901

it for a song. Then I say a bond given in double the amount of an insignificant sum which may have been assessed on account of partiality for the corporation exercising the right of eminent domain and turned over into the courts, and the individuals stripped of everything on earth and turned loose upon the highway of the street and he must stand and combat with the corporation. With this in their hands corporations can bring any individual who may be in their way to his knees, and make him settle upon their terms. I say it is dangerous to adopt any such provision as this; that it  is a wide departure from anything in the past that we have had, and the only reason on earth for it is that one railroad company  has delayed unnecessarily another in crossing its right of way where only four dollars and a half was involved. Now I say maybe it was that, and when you undertake to condemn your right of way over another right of way, then provide, if you wish, in a case like that, that if an appeal is taken and a bond given that you may go on with the proceedings.

MR. BOONE– How about in the case of a city where it applies to municipalities, having the power to build water works, and it is sought to take water from a stream, and speaking of the amendment offered by the gentleman from Jefferson, they compelled them to take it to the Supreme Court and delayed it for years. Don’t you think that the city ought to have the right to go ahead and take water from that stream for the people provided it pays the money into court?

MR. WHITE‑‑ That is a pretty long question. Suppose my friend, that you have a pitcher of water in your hand and you are very thirsty and your family are all thirsty, but a great crowd comes running up and say we are covered with dirt and are thirsty and we demand that pitcher of water in your hand.  Do you think they ought to give it up?

MR. BOONE– Do you think it is a fair illustration comparing a pitcher of water with a stream which would supply a large city of people?

MR. WHITE ‑But the principle is the same. If the stream was his you have no right to force him to take less than it is worth by telling him that if you don’t take it, I will give the bond and I will take you up in court and keep you there indefinitely; you are a poor man and you cannot litigate with me. How does that sound?  And you know, as a thoughtful man and a lawyer, that this is exactly the whip-handle tat will be used over a poor man, when his property is sought to be taken away from him.

MR. BOONE– Isn’t it your experience as a lawyer bringing cases against corporations that on matters of taking property that it is exceedingly rare that property is ever put below its value?


4500                  

OFFICIAL PROCEEDINGS

MR WHITE‑ That is true when you get before a jury, but when you are contending before your viewers, to which this appeal is to be taken, it is very rarely true. Then I may suggest that the man who is robbed of his home must go out and employ a lawyer and provide means to pay that expense, and he must provide some way for his witnesses to get up here, and he is a poor man, and rather than take these chances, he will say, give me anything.

MR. SMITH (Mobile)– This happens to be a question that I have had occasion to consider and study. It is one of the few questions that has come before this Convention that I have had occasion to consider fully, and I want to say in the start that my friend certainly has not been in the same position that I have in this matter for certainly their arguments are based upon conclusions that are not sustained by any court in the United States as to the operation of this section.

In the Constitution of 1819 the only provision in regard to this matter was this: “No person shall for the same offense be twice put in jeopardy of life or limb; nor shall any person’s property be taken or applied to public use, unless just compensation is made therefor.”

You will see it is not said that just compensation shall be “first” made therefor. Under that Constitution viewers were appointed, values were assessed, and the parties had the right of entry without paying the just compensation first. The evil that my friend has spoken of, and the gentleman from Macon has spoken of, the right of entering and taking the home, I believe, of the barefoot boy away from him without paying him the amount assessed, was brought before the public, but that did not occur until after the Constitution of 1861, and on account of these evils the gentleman has spoken of, the provisions were changed in the Constitution of 1868. In Section 25, Article I, of the Constitution of 1868, it was provided:

"That private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations, and for works of internal improvement, the right to establish depots, stations and turnouts, but just compensation shall in all cases be first made to the owner.”

Now that is the first time that the provision was made anywhere in the Constitutions of Alabama that the compensation should be first paid to the owner. Under that provision it was held that there could be no judgment of condemnation and no grant by a court of the right of entry upon property. until the


4501

CONSTITUTIONAL CONVENTION, 1901

amount of damages assessed was paid to the owner, or paid into court. But I want to say that the Constitution of Alabama is not the only Constitution in the United States in which these provisions are found. That provision that private property shall not be taken until just compensation is first paid to the owner, is found in nearly every Constitution of the United States, and there is no express provision in any of the other Constitutions for an appeal from that judgment; but in all of the other States there are statutory provisions providing that from such a condemnation there may be an appeal to a jury, and the question has arisen whether or not an entry can be made between the time of the first condemnation and the trial by that jury, and the courts throughout the breadth and length of this land have held that under that first provision, that the first viewers or body whether viewers or jury, determines the compensation. Then you have to pay that compensation, whereupon the judgment of condemnation is had. Then you take an appeal to a jury under the statute, and upon that appeal a bond is given. If the jury assesses damages at a great amount than the sum already paid into court, then an additional amount must be paid under that bond. If an appeal is taken to the Supreme Court, it stands as it did until reversed. So that in all the decisions over the entire United States the amount assessed by the viewers, or other body, must first be paid under this provision, that provides that the property must not be taken until just compensation is first paid to the owner.

MR .COBB– Can you find any decision of the character you speak of, made under a Constitution containing the provision that we have here in ours.

MR. SMITH– There is on such Constitution in the world, therefore I cannot find the decision in it.

MR. COBB– I reckon there can’t be found such a Constitution in the world except this one.

MR. SMITH– I can find a part of it in the Constitutions and the other part of it in the statutes, and I can find cases exactly of this character and the adjudications are just as I tell you and I have them in my hand.

MR. COBB– When there is a conflict between the Constitution and the statute which prevails?

THE PRESIDENT– Does the gentleman yield?

MR. SMITH– No, sir, because I don’t think the gentleman has studied the matter, and it would merely be discussing theories, and to answer him would carry me so far off the track that it would take me a week to get back.

Our own statutes provide that no judgment of condemna-


4502                  

OFFICIAL PROCEEDINGS

tion can be had, and it is in line with the decisions that have stood since the thirties in the United States, that no judgment of condemnation can be had, until the amount assessed by the viewers has been paid into court.

The statute reads as follows:

The commissioners must, within ten days from their appointment report in writing to the court the amount of the damages and compensation ascertained and assessed by them, and thereupon  the court must order the same to be recorded, and must make an order of condemnation in pursuance thereof upon payment of the damages and compensation so assessed and reported, or the deposit or the same in court."

So that no judgment of condemnation is ever rendered either under this statute or under the general decisions. The decisions rendered under provisions exactly like that provide for the paying of just compensation before the property is taken, and that it cannot be taken until after the amount assessed is paid in cash into court, and the decisions are that there can be do conditions put upon that payment. In one case a man paid it and told the clerk to hold it subject to the adjudication of the higher court, and the Supreme Court of Indiana decided that condition vitiated his right of entry. Now under this provision of the Constitution of 1875, which provides that no property can be taken until after just compensation has been first paid, all the lower courts of this country held, and the Supreme Court recognized, and also held, but without discussion, that the money must be first paid into court, this law was then operative. and the right of entry was not denied. That has been the practice since 1875 in Alabama; it has been recognized by the bar, and has been acted upon and even recognized by decisions of the Supreme Court, and it is only recently that they have given a different construction to these proceedings, and it is to meet that construction and only that that this amendment is had.

MR. HARRISON– And there was a dissenting opinion to that.

MR. SMITH– No. It is on a rehearing now, but there will be a dissenting opinion unless a rehearing is granted. The gentleman over here (Mr. White) said that we could get in there without even a judgment. He is mistaken, you cannot enter until after there is an appeal from the judgment of condemnation to the Supreme Court, and that is acted on. No final judgment is had until then, and then the matter is open to a question of damages.

MR .GRAHAM(Talladega)– I move that the time of the gentleman be extended ten minutes.


4503

CONSTITUTIONAL CONVENTION, 1901

The motion was carried.

MR. BEDDOW‑ Do I understand the gentleman to say they will not have the right of entry until appeal was taken.

MR. SMITH– Not until it is decided by the Supreme Court on judgment of condemnation.

MR. BEDDOW– Now will the gentleman read the part of the section I ask to strike out, "but such appeal shall not deprive the person who has obtained the judgment or condemnation from a right of entry."

MR. SMITH– I do. If you will wait awhile I will teach you why it is, but I cannot teach you by your questions, they are too far off.

MR. BEDDOW— I am not asking anybody to teach me anything.

MR. SMITH‑ You asked for information have you not, and I call that teaching. If the gentleman will allow me I will explain it to him. According to the decisions of the Supreme Court you file a petition for condemnation. The judge of the court tries the question whether or not you have the right of condemnation. If the judge of the court says vote have the right of condemnation then you take the appeal and of course when you take the appeal and have never had any judgment you cannot enter. If the judge of the court declares you have the right of condemnation then the other side takes the appeal, you cannot enter. It was decided in the case of the Southern Railroad Company vs. B. S. & N. O. and we were held out under an injunction for six months and the Supreme Court held we were rightly held out until after that judgment was rendered. Then, after that judgment was rendered you cone back and the remaining question was to assess the damages. Now when the damages are assessed you can get no judgment of condemnation until you pay those damages that are assessed. When you have already had your judgment of condemnation, had that confirmed by the Supreme Court, if it is desired or an appeal is taken, and after that has been fairly decided and you come back and get a judgment for damages then you can take an appeal to the Supreme Court.  Now from that appeal you have gotten your right of entry already adjudicated.  That appeal, this provision says, shall not suspend the right of entry provided their go further and give a bond to pay for such other damages as may be sustained.  So that your final right of paying for all that has been assessed, condemnation is thus finally adjudicated. You have paid the assessed damages and what was paid went upon the question between the land owner and the corporation, if it be a corporation, and that is whether that amount of damages you have paid has


4504                  

OFFICIAL PROCEEDINGS

been enough or has not been enough and it is that you give a bond for, and it is during that controversy that you are allowed to enter upon giving such bond. Now that being the case, there being no question about the barefooted boy and the cross-eyed woman having no right to him. It being adjudicated, the right to take the field belongs to the corporation, if it be a corporation, that corporation having paid the value of it and the only other question is whether or not they shall have the right to delay the advancement of progress. It may be incidental even to a common coal mine my friend refers to while he or some other able lawyer squeezes them into paying three or four times the value by saying you shall not cross or go over that patch that you have got to reach in order to meet your plans unless you pay me three or four or five times that amount. Now I say it is not right and there ought to be a provision after this condemnation had been charged after value assessed, after value paid and it is simply an effort of an attorney fighting for damages for their wages to squeeze too much out of them.  They ought to be allowed to give bond to pay such further damages as may be determined and make that entry and I say to the gentleman that is the law in every other State in the United States that I have been able to find and that has been recognized law in the State of Alabama until this recent decision. General Pettus and Mr. Jeffries, who were on the other side of the case, said to me, “Smith if we were to win this case, for God’s sake make them change the Constitution about it. It will be ruinous to our people to leave it as it is,” and after it was decided in his favor, he said, “Smith don’t you forget about that Constitution. We cannot stand it,” and I therefore suggested the matter to the Chairman of the Committee. I move the previous question on the Section and the amendment.

MR. MACDONALD– I trust the gentleman will withdraw that. I have an amendment I desire to offer.

MR. ALMON– I move to lay the amendment of the gentleman from Jefferson and the gentleman from Macon on the table.

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

MR. BEDDOW– I demand the ayes and noes.

Upon a vote being taken a division was called for and by a further vote of 46 ayes and 14 noes the motion to table prevailed.

THE PRESIDENT– The question recurs upon the motion to table the amendment offered by the gentleman from Jefferson, and on that the ayes and noes are demanded.

The call was not sustained.

Upon a vote being taken the amendment was tabled.

THE PRESIDENT– The question is upon the Section.


4505

CONSTITUTIONAL CONVENTION, 1901

MR. COBB‑Is an amendment in order?

THE PRESIDENT‑ The previous question has been ordered.

MR. COBB‑I hope it will be voted down.

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

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

There was objection.

MR. SAMFORD (Pike)‑It can lie over until Monday to be acted upon, but go ahead.

MR. WHITE‑I hope the gentleman will not object to that.

MR. HARRISON– We will take it up after this Section.

The Secretary read Section 8 as follows:

Sec. 8. Dues from private corporations shall be secured by such means as may be prescribed by law. but in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him.

MR. OPP‑ This is a literal reproduction of the Section of the old Constitution, and if no gentleman desires its amendment I move its adoption.

MR. WATTS‑I have an amendment.

MR. COBB‑I want to give notice that I shall move to reconsider the last vote on Monday.

The Secretary read the following amendment:

“Amend Section 8 of the report of the Committee on Corporations by adding at the end of the Section the following: ‘Provided, that where stock is paid for in property of labor at less than the fair value of said labor or property the person so paying for said stock shall be liable to the creditors of said corporation for the difference between the par value of said labor or property and the value at which it was used in paving for said stock.’”

THE PRESIDENT‑ The question is upon the adoption of the amendment offered by the gentleman from Montgomery.

MR. GRAHAM (Montgomery)‑ Is not that the law in Alabama now?

MR. WATTS‑ Let's put that in the Constitution so there will be no question about it. There are a great many questions on the subject, and some are very doubtful. Some say they are liable and some not. I want this fixed in the Constitution.  I move the


4506                  

OFFICIAL PROCEEDINGS

adoption of the amendment.

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

Upon a vote being taken the amendment was tabled.

MR. OPP.– I move the previous question on the Section.

The main question was ordered.

Upon a vote being taken Section 8 was adopted.

MR. SAMFORD (Pike)‑The gentlemen indicate they will grant unanimous consent.

MR. HARRISON– Mr. President, it is evident that we cannot complete this article. Many of the delegates are willing to stay here in order that they might finish, but they desire to leave on the 6:40 train, and in order to facilitate, under the circumstances, I move that further consideration of the report be postponed until 12 o’clock on Monday and that it be made a special order for that hour.

MR. O’NEAL– I move to amend by making it the special order for 12 o’clock Tuesday.

Upon a vote being taken the amendment was lost.

Upon a vote being taken the original motion was carried.

MR. O’NEAL– I move that we do now adjourn.

MR. SAMFORD (Pike)– I desire to say that the Committee on Harmony wants the report of the Committee on Judiciary that that may be taken up with their work, and it will not take us many minutes.

MR. WILSON (Clarke)‑I object to the consideration of the report. If we could stay here for that we could stay for the consideration of the report on corporations.

MR. REESE— I move that the rules be suspended and that the report be now considered.

Upon a vote being taken, a division was called for, and by a further vote of 43 ayes and 35 nays the motion was carried.

MR. SAMFORD— In view of the fact that this report has been read a third time, with the exception of Section 28, that was amended. I move that the rules be suspended and that the reading of it be dispensed with, with the exception of Section 28.

Upon a vote being taken the reading was dispensed with the exception of Section 28.

Section 28 was read as follows:


4507

CONSTITUTIONAL CONVENTION, 1901

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 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, of 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 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 the Legislature nay provide by law for the appointment by the Governor or the election by the qualified electors of a county of a Solicitor for any county.

Upon a vote being taken upon the adoption of the article, the roll was called with the following result:

AYES

Messrs. President,

Hood,

Parker (Cullman),

Almon,

Howell,

Pettus,

Altman,

Howze,

Pillans,

Ashcraft,

Inge,

Pitts,

Banks,

Jenkins,

Proctor,

Barefield,

Jones, of Bibb,

Reese,

Beddow,

Jones, of Montgomery,

Rogers (Lowndes),

Blackwell,

Jones, of Wilcox,

Samford,

Boone,

Knight,

Sanders,

Chapman,

Kyle,

Sanford,

Cobb,

Ledbetter,

Searcy,

Craig,

Lowe, of Jefferson,

Smith (Mobile),

Cunningham,

Lowe, of Lawrence,

Sorrell,

Davis, of Etowah,

Macdonald,

Spragins,

Eyster,

McMillan, of Baldwin,

Stewart,

Ferguson,

Martin,

Tayloe,

Fletcher,

Maxwell,

Thompson,

Foster,

Miller (Wilcox),

Vaughan,

Glover,

Moody,

Waddell,

Graham, of Montgomery,

Murphree,

Walker,

Grant,

NeSmith,

Watts,

Grayson,

Norman,

Weakley,

Green of Calhoun,

O'Neal (Lauderdale),

White,

Haley,

O'Neill, of Jefferson,

Whiteside,

Handley,

Opp,

Williams (Barbour),

Heflin, of Chambers,

O'Rear,

Wilson (Clarke),

Heflin, of Randolph,

Palmer,

TOTAL‑‑80


4508                  

OFFICIAL PROCEEDINGS

NOES

Byars,

Cofer,

TOTAL‑2

ABSENT OR NOT VOTING

Bartlett,

Freeman,

Oates,

Beavers,

Gilmore,

Parker (Elmore),

Bethune,

Graham, of Talladega,

Pearce,

Brooks,

Greer, of Perry,

Phillips,

Browne,

Harrison,

Porter,

Bulger,

Henderson,

Renfro,

Burnett,

Hinson,

Reynolds (Chilton),

Burns,

Hodges,

Reynolds, of Henry,

Burns,

Jackson,

Robinson,

Cardon,

Jones, of Hale,

Rogers (Sumter).

Carmichael, of Colbert,

King,

Selheimer,

Carmichael of Coffee,

Kirk,

Sentell,

Carnathon,

Kirkland,

Sloan,

Case,

Leigh,

Smith, Mac. A,

Coleman, of Greene,

Locklin,

Smith. Morgan M.,

Coleman, of Walker,

Lomax,

Sollie,

Cornwall,

Long, of Butler,

Spears,

Davis, of DeKalb,

Long, of Walker,

Stoddard,

Dent,

McMillan (Wilcox),

Weatherly,

deGraffenreid,

Malone,

Willet,

Duke,

Merrill,

Williams (Marengo),

Eley,

Miller (Marengo),

Williams (Elmore),

Espy,

Morrisette.

Wilson (Washington).

Fitts.

Mulkey,

Winn.

Foshee.

Norwood,

There were 79 ayes and 2 nays. The article was adopted.

The article was referred to the Committee on Order, Consistency and Harmony

Thereupon the Convention adjourned.

COMMITTEE ON EDUCATION

Editor The Advertiser:

In your Convention notes on the morning of the 16th you say:

"Section 12 was then read. It authorizes the levy of a special tax by counties for school purposes.

"A minority report, signed by Messrs. Ashcraft, Hodges, Pettus and Opp, provided for dividing the fund between the races in proportion to the taxes paid."


4509

CONSTITUTIONAL CONVENTION, 1901

You do not correctly state the purpose of the minority. They made no such proposition. The minority believed that something more than money is necessary to the development of an effective common school system. The chief point in their report was the organization of each race into school districts. They then proposed that for the purpose of building or improving, school houses or for supplementing the general school fund, such school corporation might make a special assessment of one-tenth of one per centum upon its members. It meant a new share of peace and progress for both races. The minority were defeated and so were the hopes of the great body of the white people of Alabama.    X.

Montgomery, Aug. 17, 1901.

______________