SEVENTY‑EIGHTH DAY

_________

MONTGOMERY, ALA..

Thursday, Aug. 29, 1901.

The Convention was called to order by the President, and opened with prayer by the Rev. Mr. Marshall as follows:

O, Eternal God, Creator and Conserver of all mankind, giver of all spiritual grace, we most humbly beseech Thee to prepare


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our hearts and lives for this day's work. May our works, words and thoughts be well pleasing in Thy sight. Forgive us for all of our past offenses, blot out our transgressions, and may we have clean records before Thee this day. Guide us through this day by Thy spirit, keep us from danger and from sin. Hear us and answer us we beseech Thee through Christ our Lord, Amen.

Upon a call of the roll ninety‑four delegates responded to their names. 

THE PRESIDENT‑The regular order is the report of the Committee on the Journal.

MR. CARMICHAEL (Colbert)‑The Committee asks the indulgence of the Convention.

THE PRESIDENT‑The Chair would call attention to the fact that the Committee made no report on yesterday.

MR. CARMICHAEL‑I have the report for yesterday.

The report of the Committee on journal was read stating that the journal for the seventy‑sixth day had been examined and found correct and the same was adopted.

THE PRESIDENT‑The Chair will announce for the information of delegates that the proceedings of the first three days of this Convention have been printed, in order to complete the official report of the proceedings, and they will be distributed this morning to the delegates.

THE PRESIDENT‑The regular order of business will be the call of the roll of delegates for the introduction of ordinances, resolutions, etc.

Upon a motion of Mr. Samford of Pike the rules were suspended and upon a further vote the regular order was dispensed with.

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

There being no objection Ordinance No. 415 was submitted with a favorable report and was read as follows:

Ordinance No. 415 by Mr. Jones (Montgomery) for the relief of E. L. May:

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


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MR. JONES (Montgomery)‑Some young ladies did part of that work and have been out of their pay for some time. I move to suspend the rules in order that the ordinance may be adopted.

Upon a vote being taken the rules were suspended and upon a call of the roll the vote resulted as follows:

AYES.

Messrs. President.

Graham, of Talladega,

Norwood,

Altman,

Grant,

Oates,

Ashcraft,

Grayson,

O'Neal (Lauderdale),

Banks,

Greer, of Calhoun,

Opp.

Barefield,

Greer, of Perry,

O’Rear,

Bartlett,

Haley,

Pearce,

Beddow,

Handley,

Pettus,

Bethune,

Harrison,

Porter,

Blackwell,

Heflin, of Chambers,

Proctor,

Boone,

Heflin, of Randolph,

Reese,

Brooks,

Henderson,

Reynolds (Henry),

Burnett,

Hodges,

Rogers (Lowndes),

Byars,

Hood,

Rogers (Sumter),

Cardon,

Howell,

Samford.

Carmichael, of Colbert,

Howze,

Sanders,

Carnathon,

Inge,

Sanford,

Case,

Jackson,

Searcy,

Chapman,

Jones, of Bibb,

Sentell,

Cobb,

Jones, of Hale,

Smith, Mac. A.,

Coleman, of Greene,

Jones, of Montgomery,

Smith, Morgan M.,

Coleman, of Walker,

Jones, of Wilcox,

Sorrell,

Craig,

Knight,

Spears,

Cunningham,

Kyle,

Spragins,

Davis, of DeKalb,

Lowe (Lawrence),

Stewart,

Davis, of Etowah,

Macdonald,

Tayloe,

Dent,

McMillan (Baldwin),

Thompson,

deGraffenreid,

McMillan (Wilcox),

Vaughan,

Duke,

Malone,

Walker,

Eley,

Martin,

Watts,

Eyster,

Merrill,

White,

Ferguson,

Miller (Marengo),

Whiteside,

Fletcher,

Miller (Wilcox),

Williams (Barbour),

Foshee,

Moody,

Williams (Marengo),

Foster,

Mulkey,

Winn,

Freeman,

Murphree,

Glover,

Norman,

Total‑106.

ABSENT OR NOT VOTING.

Almon,

Browne,

Burns,

Beavers,

Bulger,

Carmichael, of Coffee,


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CONSTITUTIONAL CONVENTION, 1901

Cofer,

Long (Butler),

Reynolds (Chilton).

Cornwall,

Long (Walker),

Robinson,

Espy,

Lowe (Jefferson),

Selheimer,

Fitts,

Maxwell,

Sloan,

Gilmore,

Morrisette,

Smith (Mobile),

Graham, of Montgomery,

NeSmith,

Sollie.

Hinson,

O'Neill (Jefferson),

Studdard,

Jenkins,

Palmer,

Waddell,

King,

Parker (Cullman),

Weaklev.

Kirk,

Parker (Elmore),

Weatherly,

Kirkland,

Phillips,

Willet.

Ledbetter,

Pillans,

Williams (Elmore),

Leigh,

Pitts,

Wilson (Clarke),

Locklin,

Renfro,

Wilson (Wash'gton).

Lomax,

The ordinance was adopted.

MR. BAREFIELD‑I move that the rules be suspended and that the privileges of the floor be extended to Hon. John C. Anderson, Judge of the First Circuit.

Upon a vote being taken the motion prevailed.

THE PRESIDENT‑The next in order will be the report of Committee on Order, Consistency and Harmony. Does the Chairman of the Committee desire the entire report read?

MR. WHITE‑My idea is that it will be unnecessary to read the entire proposed Constitution. It will consume a great deal of time. It will have to be read section by section anyway, and I move that the reading of the proposed Constitution be dispensed with, but I would like to have the report read as it is corrected, there being a great many typographical errors in the printed report.

MR. JONES (Montgomery)‑I move that the rules be suspended and the suggestion of the gentleman be adopted.

Upon a further vote being taken, the motion was carried.

THE PRESIDENT‑The Sescretary will read the report.

The report was read as follows:

The report of the Committee on Order, Consistency and Harmony of the Constitution, to whom were referred the several articles of which the proposed Constitution is to consist, and also certain ordinances and resolutions not proposed to be incorporated in the Constitution, have requested me to make the following report :

We have carefully considered all of the articles, ordinances and resolutions submitted to us, and have made no changes in substance except such as were  rendered necessary by the pro‑


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visions of the articles referred to us, to which changes your attention will be specifically called further on in this report. We have made a number of changes in transposition of clauses, omissions of unnecessary or redundant clauses, and in phraseology, verbiage, punctuation and capitalization to which we deem it unnecessary to call your special attention.  We have preserved the article arrangement as in the present Constitution, but have changed the section number, so that the proposed constitution is numbered as a whole, without reference to articles, beginning with section one and ending with section two hundred and eighty‑five; such change, in our opinion, will greatly simplify and facilitate reference thereto.

We respectfully recommend to the Convention the adoption of the following provisions to be incorporated in the article on  corporations.

1. No city or town, haying a population of more than six thousand, shall have authority to grant to any person, firm, corporation or association, the right to use its streets, avenues, alleys or public places for the construction or operation of water works, gas works, telephone or telegraph lines, electric light or power plants, steam or other heating plants, street railroads, or any other public utility, except railroad` other than street railroads, for a longer period that thirty years.

2. Foreign corporations doing business in this State may be sued by resident citizens of this State, in any county where such corporations do business, whether the cause of action arose in this State or beyond the limits thereof.

We further recommend the adoption of an ordinance providing for the registration of electors ,who are to vote at the election to be held for the ratification of the proposed Constitution; also the adoption of an ordinance making subject to repeal, alteration or amendment by the Legislature all ordinances adopted by the Convention which are not included in the proposed Constitution, except the ordinance relating to the refunding of the bonded indebtedness of the State. The two ordinances referred to will be submitted to the Convention for its consideration.

Ordinance No. 414, relating to the succession of the present Governor is in proper form: no changes have been made therein, and we report it lack with the recommendation that it be enrolled and signed.

Ordinance No. 410. relating to the exclusion of persons from the court house during the trial of certain cases has been incorporated in the article on the Judiciary.

Ordinance No. 390. relating to the establishment of court houses in the counties of St. Clair and Shelby, has been amended


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in accordance with the provisions of ordinance No. 449, and we recommend that the same as amended be enrolled and signed. All articles, ordinances and resolutions, which were referred to the committee, are herewith returned.

In order that the Convention might not be compelled to wait for several days after the assembling, the committee have had the report and the proposed Constitution printed, and respectfully ask that their action in this particular be ratified.

The attention of the Convention is respectfully called to the following list of changes which embraces all the material alterations made by this committee:

Declaration of Rights.

1. The words "preamble and" have been dropped from the title of the article.

2. Section 36 of the engrossed article has been transferred to the article on distribution of powers of government, as appears in Section 43 of the Constitution herewith reported.

State and County Boundaries.

1. No changes have been made in the engrossed article.

Distribution of Powers of Government.

1. No ordinances were referred to the committee relating to this subject; but Article 3 of the Constitution of 1875 without change, except the incorporation thereunder of Section 36 of the engrossed article on Declaration of Rights, has been adopted by the committee as Article 3 of the proposed Constitution.

Executive Department.

1. Throughout this article the order of arrangement of the officers of the Executive Department is changed so as to correspond with the order of their succession to the office of Governor.

2. Section 5 is changed so as to provide that the executive officers named therein shall hold their respective offices for four years from the first Monday after the second Tuesday in January next succeeding their election.

3. The provision in Section 6 relating to the Lieutenant Governor's duties as President of the Senate, has been stricken out, because the same provision is contained in the article on the Legislative Department.

4. The last sentence of Section 7 has been rewritten so as to prevent the possible construction that the Governor is to receive no salary while the Lieutenant Governor is temporarily acting Governor.

5.  Section 16 was changed so as to provide that if both the Governor and Lieutenant Governor should die, resign, or be removed from office,


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more than 60 days prior to the next general election for any State  officers, successors to both such offices shall be elected at said election.

6. Section 17 was rewritten so as to read as it appears in Section 128 of the Constitution herewith reported.

Legislative Department.

1. Section 3 of the engrossed article has been rewritten and is made Section 46 of the Constitution herewith reported. It was necessary to recast this section because of the provisions requiring quadrennial elections, and the election of all Senators at the same time.

2. Section 5 of the engrossed article has been so written as to fix the time for the meeting of the Legislature on the first Tuesday after the second Monday in January. This alteration was made necessary by the change of the time of elections from August to November.

3. Section 62 has been included in section 5 as a part thereof.

4. Section 52 has been added to section 32 of the article on the Judicial Department.

5. Section 61 is stricken out, a similar provision being contained in the article on the oath of office.

Local Legislation.

1. The entire engrossed article has been transferred to the article on the Legislative Department.

2. Section 17 was rewritten so as to make clear the requirement that a vote of the people in favor of the issuance of municipal bonds shall precede the passage of a local or special act authorizing such issue.

3. Section 18 was so changed as to allow the passage of special acts permitting cities and towns to alter and rearrange the boundaries thereof.

Judicial Department.

1. In Section 1 the words "according to the next preceding federal census" were inserted in line seven after the words "twenty thousand."

2. I n Section 19 the words "justice; of the Supreme Court" were inserted before the word "judges," in line one, arid the words "for any State officer" after the word "election" in line three.

3. Section 20 was changed so as to provide that when a new circuit or chancery division is created, a judge or chancellor therefor shall be elected at the next general election for any State officer, instead of at the next election for representatives to the legislature.

4. In Section 21 the words "any part of" were inserted after the word "having" in line two, and the words "of general jurisdiction" after tile word "court" where it appears the second time in line two. In the same section the words "such incompetent chancellor or judge could have rendered" were


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inserted in the place of the words "a chancellor or a judge of the circuit court, or of a court having the jurisdiction of a circuit and chancery court or either, sitting as a court might do in such case.

5. Section 28 was changed so as to require that at any election for the circuit solicitors only those counties in the circuit in which the solicitors prosecute criminal cases can participate in the election.

6. Section 32 was transferred to the article on the Legislative Department, and constitutes the last sentence of Section 95 of the constitution herewith reported.

Impeachments.

1. To Section 2 was added the following provision: "The legislature may provide for the impeachment or removal of other officers than those named in this article."

Suffrage and Elections.

1. In Section 1 the word "adoption" was changed to "ratification." In the same section the provision relating to foreigners who have declared their intention to become citizens of the United States was changed so as to read as follows: "Provided, that all foreigners who have legally declared their intention to become citizens of the United States, shall, if they fail to become citizens thereof at the time they are entitled to become such, cease to have the right to vote until they become such citizens."

2. In Section 4 the proviso relating to persons of foreign birth was stricken out, and the following inserted in lieu thereof after the words United States in line three "except those who having had an opportunity to perfect their citizenship prior to the 20th day of December, 1902 have failed so to do."

3. In subdivision one of Section 5 the words "unless prevented by physical disability" in line one were stricken out and the proviso at the end changed so as to read: "Provided that inability to read and write shall not disqualify any elector if such disability is due to physical infirmity.

4. In division two of Section 10 in line twenty‑six the words "one thousand" were stricken out and "nine hundred" inserted in lieu thereof and in line thirty‑three the figures "900" were stricken out and the words "one thousand" inserted in lieu thereof.

5. In subdivision eight of Section 10 the word "person" was substituted for "elector" in lines one, two and three, and a penalty clause was added for the offenses mentioned therein, as appears in subdivision 8 of Section 188 of the Constitution herewith reported.

6. In Section 12 a penalty clause was added for the offense mentioned herein, as appears in Section 188 of the Constitution herewith reported.

7. Section 19 was made a part of Section 18, as appears in Section 194 of the Constitution herewith reported.


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8. To Section 20 a penalty clause was added, as appears in Section 195 of the Constitution herewith reported.

Representation.

1. No material change was made in the engrossed article.

Taxation.

1. In line six of Section 2, after the word "for" the words "shall be absolutely void" were inserted.

2. The section relating to municipal taxation in the article on municipal corporations was taken from said article and inserted as a section of this article, as will appear in Section 216 of the Constitution reported.

3. Section 8 was added to by the Committee, and as changed was transferred to the article oil municipal corporations, as will appear in Section 224 of the Constitution herewith reported.

4. Section 9 was transferred to the article on municipal corporations, as will appear in Section 225 of the Constitution herewith reported.

Corporations.

1. No material changes were made in the engrossed article on corporations.

2. The article on municipal corporations was made a subdivision of this article.

Municipal Corporations.

1. The first part of Section 3 was rewritten as will appear in Section 222 of the Constitution herewith reported.

2. Section 5 was rewritten, and as rewritten was transferred to the article on taxation, as will appear in Section 216 of the Constitution herewith reported.

Banks and Banking.

1. No material change was made in the engrossed article.

Education.

 

1. The word "school" before the word "children" was stricken out of line four of Section 1.

2. Section 9 was divided into two sections, that part relating to the University numbered 263, and that relating to the Alabama Polytechnic Institute numbered 265 in the Constitution herewith reported.

3. Changes were made in the terms of office of the trustees of each of these institutions, as will appear in the two sections above referred to.

4. To section 12 a proviso was added authorizing a one mill tax upon the property in the separate school district of  Tuscaloosa, for school purposes.


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CONSTITUTIONAL CONVENTION, 1901

Exemptions.

1. No material change was made in the engrossed article.

Militia.

1. No material change was made in the engrossed article.

Oath of Office.

1. This article teas copied from the Constitution of 1875, and was made a separate article in the Constitution herewith reported.

Miscellaneous Provisions.

1. No material change was made in the engrossed article.

Mode of Amending the Constitution.

1. No material change was made in the engrossed article.

Schedule.

1. Section 6 was stricken out, the matter therein provided for having been incorporated in the article on education as appears from Section 263 of the Constitution herewith reported.

Respectfully submitted,

Frank S. White, Chairman.

CONSTITUTION OF THE STATE OF ALABAMA

We, the people of the State of Alabama, in order to establish justice, insure domestic transquility and secure the blessings of liberty to ourselves and our posterity, invoking, the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama:

THE PRESIDENT‑‑The Clerk will read Article 1.

MR. WHITE–I think the rules require that we should adopt it section by section.

THE PRESIDENT–The rule was reported by the Committee on Rules and adopted that the Constitution should be taken up article by article.

MR. WHITE-Very well.

Article I was read as follows:

ARTICLE 1.

Declaration of Rights.

That the great, general and essential principles of liberty and free government may be recognized and established, we declare:


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1. That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.

2. That all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and that, therefore, they have at all times an inalienable and indefeasible right to change their form of government in such manner as they may deem expedient.

3. That no religion shall be established by law; that no preference shall be given by law to any religious sect or society, denomination or mode of worship; that no one shall be compelled by law to attend any place of worship or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this State; and that the civil rights, privileges and capacities of any citizen shall not be, in any manner, affected by his religious principles.

4. That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.

5. That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizures or searches; and that no warrant shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation.

6. That in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases in his own behalf, if he elects so to do; and in all prosecutions by indictment, a speedy public trial by an impartial jury of the county or district in which the offense was committed; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty or property, except by due process of law; but the Legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some other legal place of confinement.

7. That no person shall be accused, or arrested, or detained, except in cases ascertained by law, and according to the forms which the same has prescribed, and no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied.

8. That no person shall for an indictable offense be proceeded against criminally by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or by leave of the court, for misfeasance, misdemeanor, extor‑


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CONSTITUTIONAL CONVENTION, 1911

tion and oppression in office; otherwise than is provided in this Constitution; provided, that in cases of misdemeanor, the Legislature may by law dispense with a Grand Jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established.

 

9. That no person shall, for the same offense, be twice put in jeopardy of his life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain any advantage by reason of such discharge of the jury.

10. That no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

11. That the right of trial by jury shall remain inviolate.

12. That in all prosecutions for libel or for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel the jury shall have the right to determine the law and the facts under the direction of the court.

13. That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person or reputation, shall have a remedy by due process of law: and right and justice shall be administered without sale, denial or delay.

14. That the State of Alabama shall never be made a defendant in any court of law or equity.

15. That excessive fines shall not be imposed, nor cruel or unusual punishments inflicted.

16. That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident for the presumption great, and that excessive bail shall not in any case be required.

17. That the privilege of the writ of habeas corpus shall not be suspended by the authorities of this State.

18. That treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and that no person shall be convicted of treason, except on the testimony of two witnesses to the overt act, or his own confession in open court.

19. That no person shall be attained of treason by the Legislature; and no conviction shall work corruption of blood or forfeiture of estate.

20. No person shall be imprisoned for debt.

21. That no power of suspending law shall be exercised except by the Legislature.


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22. That no ex post facto law, nor any law impairing the obligation of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant of a franchise, privilege or immunity shall forever remain subject to revocation, alteration or amendment.

23. That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to, public use, unless just compensation be first 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, the legislature may by law, secure to persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the right herein reserved; but just compensation shall in all cases be first made to the owner; and, provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association.

24. That all navigable waters shall remain forever public highways, free to the citizens of the State and the United States, without tax, impost or toll; and that no tax, toll, import or wharfage shall be demanded or received from the owner of any merchandise or commodity for the use of the shores or any wharf erected on the shores, or in or over the waters. of any navigable stream, unless the same be expressly authorized by law.

25. That the citizens have a right, in a peaceable manner, to assemble together for the common good, and to apply to those invested with the power of government for redress of grievances or other purposes, by petition, address or remonstrance.

26. That every citizen has a right to bear arms in defense of himself and the State.

27. That no standing army shall be kept up without the consent of the legislature, and, in that case, no appropriation for its support shall be made for a longer term than one year; and the military shall, in all cases and at all times, be in strict subordination to the civil power.

28. That no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor, in time of war, but in manner to be prescribed by law.

29. That no title of nobility or hereditary distinction, privilege, honor or emolument, shall ever be granted or conferred in this State; and that no office shall be created, the appointment to which shall be for a longer time than during good behavior.

30. That immigration shall be encouraged; emigration shall not be prohibited, and no citizen shall be exiled.


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CONSTITUTIONAL CONVENTION, 1901

31. That temporary absence from the State shall not cause a forfeiture of residence once obtained.

32. That no form of slavery shall exist in this State; and there shall not be any involuntary servitude, otherwise than for the punishment of crime, of which the party shall have been duly convicted.

33. The privilege of suffrage shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult or other improper conduct.

34. Foreigners who are, or who may hereafter become, bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property as native born citizens.

35. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty and property, and when the government assumes other functions it is usurpation and oppression.

36. That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against, and encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate.

MR. WHITE‑As stated, in the report, the only change made in this article was dropping the words "preamble and," and in transferring Section 36 to another article, namely, that on the distribution of powers, which is 43 in this Constitution. I move the adoption of the article as read.

MR. EYSTER‑In order that Section 34 may conform to the other section, I move that the word "that" be put before the word "foreigners."

MR. WHITE‑I will state that this is precisely like the old Constitution, though the Committee have no objection if it is the sense of the Convention that the word "that" ought to be inserted.  We think, however, there is no necessity or occasion for it. It is an exact copy of the old Constitution.

The amendment was read as follows:

Amend Sections 33 and 34 by commencing the said sections with the word "that."

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

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

THE PRESIDENT‑When the gentleman from Jefferson, the chairman of the Committee, called attention to Rule 53. ----

MR. WHITE‑Will the President please state the rule. I have not the rule before me.


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OFFICIAL PROCEEDINGS

THE PRESIDENT‑It has reference to the adoption of the Constitution article by article and section by section. The Chair was then under the impression that a rule reported by the Committee on Rules had been adopted amending this rule. Upon investigation, the journal seems to show that it was laid upon the table, upon the motion of the gentleman from Jefferson.

MR. WHITE‑I move that the rules be suspended and that the article be adopted, or that we dispense with the reading and adoption of the articles section by section.

THE PRESIDENT‑Possibly the same point could be reached by taking the rule from the table.

MR. WHITE‑If that will accomplish the same purpose, I move to take that resolution establishing that rule from the table.

MR. O'NEAL (Lauderdale)‑The objection to that rule which was laid upon the table was that it provided that this Committee on Order, Consistency and Harmony should report this Constitution by articles as fast as it was completed, and that was objectionable to a great many members, and we would have to amend that rule if we take it from the table.

THE PRESIDENT–The motion is to take from the table the substitute for Rule 53.

MR. PETTUS‑I ask for a reading of the rule before the question is put.

The rule was read as follows:

Amendment by Rules Committee. Rule 53, amendment thereto.

“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 Convention. 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 same to the Convention for its action.

 

"When the Constitution shall have been finally 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 delegate to the Convention shall personally sign his name thereto.


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CONSTITUTIONAL CONVENTION, 1901

"The signatures of a majority of the delegates present or a majority of the Convention shall constitute a sufficient attestation."

MR. O'NEAL‑Is that before the Convention now for action.

THE PRESIDENT‑The question is upon the motion to take from the table this resolution reported by the Committee on Rule as a substitute for Rule 53.

Upon a vote being taken the motion to ,fake from the table the resolution reported by the Committee on Rules as a substitute for Rule 53 was carried.

MR. WILLIAMS (Marengo)‑I have a substitute for the rule now. The substitute to Mr. Williams of Marengo was read as follows:

"Amend Rule 53 by striking out the words `section by section.' "

MR. WILLIAMS‑Strike out the words "section by section," is the meaning of the amendment. It leaves Rule 53 then reading to be adopted "article by article." It is the effect, as I understand it that the Chairman of the Committee wants to establish.

THE PRESIDENT‑It seems that there is no such word in the substitute, and the substitute itself is an amendment and the amendment offered by the gentleman from Marengo would be an amendment to the amendment and should relate to the substitute.

MR. WILLIAMS‑Doesn't it relate to the substitute?

MR. O'NEAL (Lauderdale)‑I will offer as a substitute Rule 53 with the words "section by section" stricken out.

THE PRESIDENT‑The Chair cannot entertain an amendment unless it is in writing.

MR. COLEMAN‑'There was so much confusion during the reading of the rule we could not catch it over here.

THE PRESIDENT‑‑The Chair understands the substitute reported by the Rules Committee makes no change in Rule 53, except in two particulars, one was to authorize the Committee on Harmony to report from time to time, as they were completed, and the other was to strike out the words "section by section," so as to read "adopted article by article."

MR. COLEMAN‑The amendments can be made section by section as we pass along, and then the question will be on the article.


4680                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑The substitute offered by the committee was to strike out the words "section by section," and it is proposed to have a vote taken article by article.

MR. SANFORD (Montgomery)‑At what time can an amendment be made to any section if it is desired?

THE PRESIDENT‑After the article is read it is open to amendment in respect to any section.

MR. SMITH (Mobile)‑The amendment offered by the gentleman from Marengo would leave in there a provision whenever an amendment was made, the whole Constitution would have to be referred back to the Committee on Harmony, and rewritten, although there might be only one amendment to one section of one article. I think at the present time the amendment offered by the committee is the same in effect as that of the gentleman from Marengo with that exception. I think the amendment should not be adopted, as it would require the committee to rewrite the Constitution every time there was an amendment to some particular section.

MR. HOOD‑Is an amendment to the article in order?

THE PRESIDENT‑The question is on the substitute for Rule 53‑‑‑does the gentleman from Mobile make any motion'

MR. SMITH (Mobile)‑I move that the amendment of the gentleman from Marengo be laid upon the table.

MR. WILLIAMS (Marengo)‑I ask leave to withdraw my amendment. I understood the Chair to rule it was not in order because it is not germane.

Leave was granted and the amendment withdrawn.

THE PRESIDENT‑The Chair will call attention to another point, whether or not it would require an aye and no vote upon the passage of these articles at this time. Rule 49 says upon the final adoption of any article or section of the Constitution the vote shall be taken by yeas and nays and spread upon the journal and be referred to the Committee on Order, Consistency and Harmony of the Constitution."

MR. HARRISON‑They have been adopted by an aye and  no vote. It occurs to me that rule has exhausted itself. It has been complied with by the adoption of the articles and it would be unnecessary consumption of time to do it again, but if the Chair holds that, I would move to amend it so as to dispense with a call.

MR. BEDDOW‑I desire to offer a substitute.


4681

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑The pending question is a substitute reported by the Committee on Rules for Rule 53.

The Secretary read the substitute offered by Mr. Beddow as follows: "Resolved that the Constitution be considered article by article instead of section by section, that when the reading of any article is completed, any section thereof will be open to amendment."

 

MR. ASHCRAFT‑In response to the suggestion made by the Chair, I desire to call attention of the Chair to the latter part of Rule 53 which says: "When the Constitution shall have been finally 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 delegate to the Convention personally shall sign his name thereto." It does not say whether it is to be finally adopted by an aye and no vote, or a viva voce vote. Rule 49 precedes the action of the Committee on Harmony, Rule 53 provides for action afterwards.

THE PRESIDENT‑Rule 49 requires the vote to be taken by ayes and noes, the other rule does not, and in the absence of some express instruction upon that point express instruction upon that point the ordinary rule would prevail. The Chair calls attention to it to consult the pleasure of the Convention. If the Convention wishes to have an aye and no vote it can be demanded, or the rule can be so amended as to require it.

MR. ASHCRAFT‑It seems to me when we have made all the amendments we propose to make, the whole Constitution has been completed, and the passage of the whole Constitution by a call of the house would be the proper thing.

THE PRESIDENT‑The question now is whether the Convention shall re‑adopt these articles, article by article, upon an aye and nay vote. The question will be upon the substitute offered by the gentleman from Jefferson for the substitute offered by the Committee on Rules, to Rule 53.

Upon a vote being taken the substitute was lost.

MR. CUNNINGHAM‑I move the previous question on the committee's report.

THE PRESIDENT‑The gentleman from Jefferson moves the previous question. The question is shall the main question be now put?

MR. O’NEAL (Lauderdale)‑I was going to move that it be recommitted to the Committee on Rules.


4682                                          

OFFICIAL PROCEEDINGS

THE PRESIDENT‑‑A motion for the previous question has precedence of a motion to recommit. The question is shall the main question be now put?

MR. ASHCRAFT‑I rise to a question of inquiry. This is a matter that we want to get right. If the rule of the committee is adopted what will become of that part of Rule 53 which requires "when enrolled it shall he attested by the President and Secretary and each member of the Convention shall sign his name thereto?”

THE PRESIDENT‑The substitute covers that.

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

THE PRESIDENT‑The question is on the adoption of the substitute.

MR. SANFORD (Montgomery)‑‑‑On that I call for the ayes and noes.      

The call was not sustained.

Upon a vote being taken, the substitute was adopted, and a further vote being taken, the rule as amended was adopted.

THE PRESIDENT‑The question is on the adoption of the Article as read.

Upon a vote being taken, the Article was adopted.

MR. WHITE –I move that as the Articles as passed by the Convention, they be enrolled by the enrolling clerk, so as to keep up with the work of the Convention.

MR. CARMICHAEL (Colbert)–I ask unanimous consent to introduce a resolution along that line.

MR. OATES–I did understand.  I thought the vote taken just now was on the amendment.  I would like to make a suggestion to the Convention on one of the section; it is a novelty as it is.

THE PRESIDENT-The Chair submitted to question on the adoption of the Article.  There seemed to be no gentleman who had an amendment to the Article.

MR. OATES–I do not wish to offer an amendment, but I think a change ought to be make in Section 34.

THE PRESIDENT–The Chair would state that there were two amendments offered, one by the gentleman from Morgan, and voted down, and the other related simply to the supplying of a word, and that was by unanimous consent.

 

MR. OATES–I understand it was on another amendment.  I want to call the attention of the convention to Section 34, which


4683

CONSTITUTIONAL CONVENTION, 1901

is in the same language as in the present Constitution, but, to my judgment, it ought never to have been there. It reads: "Foreigners who are or who may hereafter become, bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property as native born citizens."  'That is of more consequence than would occur to most delegates. This is a favor to foreigners, which in many countries, is not granted to our own citizens at all. Now, sir, a citizen of Alabama, or even of the United States, in other countries cannot inherit real estate unless lay virtue of a treaty or some innate provision of a statute there, and many have no such provisions. Permit me to give an illustration to this Convention of its importance here. I think it wise, prudent and just for our laws to protect even a foreigner in the ownership of his property ; he ought to be protected, but when you go further than that and extend the right of inheritance to a foreigner who owes no allegiance to this country at all, but who sees proper to be domiciled here for the time being, it is a courtesy of the most extraordinary kind, which you will not find in any other Constitution in the United States or in any country, and it seems to me that this Convention ought not to go that far. A controversy arose in this State in 1895, while I was the Chief Executive. An Act was passed by the Legislature in regard to the A. G. S. Road. and as to who should become its officers, and the Act evidently gave that right to the resident stockholders, while there were many who were only temporary residents, under this provision in the Constitution, and our statute following it, who had the same right of property in all respects here as our citizens— even the native‑born citizens. Then it was not competent for the Legislature to change the statutes to affect the right of those not citizens here, though some of them were temporary residents here, and it required of the Executive a veto for that reason. That is one of the consequences and other consequences tray arise. While I do not offer any amendment, I think that section ought to he changed, and the language modified so as not to go as far as it does.

THE PRESIDENT‑The Chair will state to the Convention that the Article has been adopted, and that no motion in reference  to this Article would be in order without a motion to reconsider.

MR. COBB‑Mr. President—

THE PRESIDENT‑For what purpose does the gentleman  from Macon rise?

MR. COBB‑I want to offer an amendment.

THE PRESIDENT‑The Article has been adopted.

MR. COBB‑I will move to reconsider. I want to strike out line 22 "native‑born citizens." and insert in lieu thereof "as may be prescribed by the Legislature."


4684                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑The question will be upon the motion of the gentleman to reconsider, which will not be in order at this time, and will have to go over until tomorrow, unless the gentleman moves to suspend the rules.

MR. COBB‑Then I move to suspend the rules.

Upon a vote being taken, the motion to suspend the rules was  lost.

MR. CARMICHAEL (Colbert)‑I have a resolution.

The Secretary read the resolution as follows:

"Resolved, That the President of this Convention shall appoint a Committee on Enrollment, consisting of five members, whose duty shall be to appoint an expert penman to enroll the proposed Constitution, and it shall be the duty of said Committee to superintend said enrollment."

THE PRESIDENT‑Unless the gentleman desires to have it considered presently, it will go to the Committee on Rules.

MR. CARMICHAEL‑In line with the suggestion made by the Chairman of the Committee and for the purpose of allowing his motion to prevail, I move that the rules be suspended and that the resolution be immediately considered.

Upon a vote being taken, the rules were suspended, and a further vote being taken, the resolution was adopted.

MR. WHITE‑I move that the Articles as passed by the Convention be enrolled by the Enrolling Clerk hereafter to be selected without waiting for the entire Constitution to be adopted.

MR. JONES (Montgomery)‑I would like to inquire if we are not in danger of doing useless work. You send it to the Enrolling Clerk and it is enrolled, and a little later the Convention makes a change which may require a recasting of the whole thing.

MR. WHITE‑That may be true, but I think the waste of that much parchment will be inconsiderable compared with keeping the Convention in session four or five days after we have finished the Constitution.

MR. COBB— A parliamentary inquiry. What would become of my motion to amend, if it is reconsidered tomorrow?

THE PRESIDENT‑The gentleman will have to take care of his own motion. The Chair cannot do it for him.

MR. COBB‑I am going to take care of it, but I want to call your attention to the enrollment matter.

THE PRESIDENT‑The question is on the motion of the gentleman from Jefferson.


4685

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken, the motion was adopted.

The Secretary read Article II.

ARTICLE II.

State and County Boundaries.

37. The boundaries of this State arel established and declared to be as follows, that is to say: Beginning at the point where the thirty‑first degree of north latitude crosses the Perdido River; thence east to the western boundary line of the State of Georgia; thence along said line to the southern boundary line of the State of Tennessee; thence west along the southern boundary line of the State of Tennessee, crossing the Tennessee river, and on to the second intersection of said river by said line; thence up said river to the mouth of Big Bear Creek; thence by direct line to the northwest corner of Washington County, in this State, as originally formed; thence southwardly along the line of the State of Mississippi, to the Gulf of Mexico; thence eastwardly, including all islands within six leagues of the shore to the  Perdido  river; thence up the said river to the beginning; provided that the limits and jurisdiction of this State shall extend to and include any other land and territory hereafter acquired by contract or agreement with other States, or otherwise; although such land and territory are not included within the boundaries hereinbefore designated.

38. The boundaries of the several counties of this State, as they now exist, are hereby ratified and confirmed.

39. The Legislature may by a vote of two‑thirds of each house arrange and designate boundaries for the several counties of this State, which boundaries shall not, be altered except by a like vote; but no new county shall be formed hereafter of less extent than 600 square miles; and no existing county shall be reduced to less than 600 square miles; and no new county shall be formed unless it shall contain a sufficient number of inhabitants to entitle it to one representative under the ratio of representation existing at the time of its formation, and leave the county or counties, from which it is taken with the required number of inhabitants to entitle such county or counties each, to separate representation; provided, that out of the counties of Henry, Dale, and Geneva a new county of less than 600 square miles may be formed under the provisions of this article, so as to leave said counties of Henry, Dale and Geneva with not less than 500 square miles each.

40. No county line shall be altered or changed, or, in the event of the creation of new counties, shall be established, so as to run within seven miles of the county court house of any old county.

41. No court house or county site shall be removed except by a majority vote of the qualified electors of said county, voting at an election held for such purpose, and when an election has once been held no other election shall be held for such purpose until the expiration of four years; provided, that the county site of Shelby county shall remain at Columbiana, unless removed by a vote of the people as provided for in an act entitled


4686                  

OFFICIAL PROCEEDINGS

"An act to provide for the permanent location of the county, site of Shelby county, Alabama, by a vote of the qualified electors of said county," approved the 9th day of February, 1899, and the act amendatory, thereof, approved the 20th day of February, 1899, or by an election held under the provisions of this article.

MR. FOSTER‑I move the adoption of the article. There has been no change made in it.

MR. CORNWELL— I have an amendment.

The amendment was read as follows: Add to Section 39, after the word each, the following:  Provided further, that the provisions of this article shall not apply to the formation of a new county to be carved out of the southern portion of Jefferson County and the northern portions of Tuscaloosa and Bibb counties which new county may be formed by legislature and provided such new county shall not contain less than four hundred square miles.''

MR. CORNWELL‑At the beginning of this Convention I introduced an ordinance which provided for the formation of counties of four hundred square miles, which applied generally throughout the State. It became very evident that this Convention for good reasons. I presume, did not deem it to the interest of the State to form four hundred square mile counties. Since that was the case there is nothing else left for my people whom I represent in Jefferson, and I claim that my people have every right and every requisite to form a good and substantial county of four hundred square miles. In the territory that we have and propose to cut off we have between six and seven million dollars of taxable wealth ; we have between twenty‑five and thirty thousand inhabitants and you gentleman who know the counties of Alabama will readily see that it is greater in wealth and larger in population than one half of the counties of this State. Now is it right, gentlemen, that we should be denied the privilege of forming a county here for twenty, thirty or fifty years perhaps?  Do you want to deny to those people there the right of local self‑government?  Should you not treat us as you would like to be treated if you were situated as we are, gentlemen? Your people would want what we are asking for. We are asking for only what is right in the matter and we hope that this Convention will allow us that privilege and that the legislature will have the right to allow us to form this county. We do not ask the Convention to give it to us, we simply ask the right, as this Convention has already given to another section of the State to form this County out of these portions of Tuscaloosa, Bibb and Jefferson. I think that we are not asking anything unreasonable, and that we ought to be entitled to have this county, provided we can get the legislature to give it to us.  Even after we have this right from this Convention, it does not neessarily mean that we will get the county because the fight will come up in the legislature and I hope that this Con-


4687

CONSTITUTIONAL CONVENTION, 1901

vention will allow its at least the privilege of having this fight in the legislature.

MR. OPP‑I rise merely to suggest the impropriety of going into this question and I do not think at this stage this matter should be broached. As I understand it a majority of the members from those counties, at least from Jefferson County, are opposed to it, and so is Tuscaloosa County, if I am not in error and I therefore move to lay the amendment on the table.

MR. CORNWELL‑I call for the ayes and noes on that.

The call was sustained.

THE PRESIDENT‑The question is on the motion to table the amendment offered by the gentleman from Jefferson.

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

AYES

Messrs. President,

Hood,

Reese,

Altman,

Howze,

Reynolds (Henry),

Ashcraft,

Inge,

Samford,

Barefield,

Jones, of Bibb,

Selheimer,

Beddow,

Jones, of Montgomery,

Sloan,

Bethune,

Jones, of Wilcox,

Smith (Mobile),

Boone,

Knight,

Spears,

Cardon,

Kyle,

Spragins,

Carmichael, of Colbert,

Ledbetter,

Stewart,

Cunningham,

McMillan (Baldxvin),

Thompson,

Davis, of DeKalb,

Martin.

Waddell,

Davis, of Etowah.

Merrill,

Walker,

Dent,

Miller (Marengo),

Watts,

deGraffenreid,

Moody,

Weatherly,

Duke,

Murphree,

White,

Ferguson,

O'Neill (Jefferson),

Williams (Barbour),

Foster,

Opp,

Williams (Elmore),

Greer, of Perry,

O'Rear,

Wilson (Clarke),

Haley,

Parker (Elmore),

Winn,

Handley,

Phillips,

Heflin, of Randolph,

Pillans,

TOTAL‑61

NOES

Banks,

Byars,

Coleman, of Walker,

Beavers,

Carmichael, of Coffee.

Cornwall,

Blackwell,

Carnathon,

Eley,

Browne,

Case,

Eyster,

Burnett,

Chapman,

Fletcher,

Burns,

Cobb,

Foshee,


4688                                          

OFFICIAL PROCEEDINGS

Freeman,

Lowe (Lawrence),

Reynolds (Chilton),

Gilmore,

Macdonald,

Sanford,

Glover,

McMillan (Wilcox),

Searcy,

Graham, of Montgomery,

Miller (Wilcox),

Sentell,

Graham, of Talladega,

Mulkey,

Smith, Mac. A.,

Grant,

Norwood,

Smith, Morgan M.,

Grayson,

Oates,

Studdard,

Greer, of Calhoun,

O'Neal (Lauderdale),

Tayloe,

Harrison,

Palmer,

Vaughan,

Henderson,

Parker (Cullman),

Whiteside,

Hodges,

Pearce,

Williams (Marengo),

Howell,

Pettus,

Wilson (Washington),

Long (Butler),

Porter,

TOTAL-56

ABSENT OR NOT VOTING

Almon,

Jones, of Hale,

Norman,

Bartlett,

King,

Pitts,

Brooks,

Kirk,

Proctor,

Bulger,

Kirkland,

Renfro,

Cofer,

Leigh,

Robinson,

Coleman, of Greene,

Locklin,

Rogers (Lowndes),

Craig,

Lomax,

Rogers (Sumter),

Espy,

Long (Walker),

Sanders,

Fitts,

Lowe (Jefferson),

Sollie,

Heflin, of Chambers,

Malone,

Sorrell,

Hinson,

Maxwell,

Weakley,

Jackson,

Morrisette,

Willet,

Jenkins,

NeSmith,

By a vote of 61 ayes and 56 noes the amendment was tabled.

MR. MURPHREE‑I have an amendment.

"Strike out the word `majority' in the first line and insert the word `two‑thirds.' ''

MR. MURPHREE‑I offer this amendment because the people have invested their money, built court houses and jails, churches and school houses, and the county site ought not to be moved by a there majority vote. I think it should be two‑thirds.

MR. GREER (Calhoun)‑I dislike to do so, but a majority of the people own the court houses and have a right to move them.  The table is crowded, but there is room for one more and I move to table the amendment.

Mr. Oates took the Chair.

THE PRESIDENT PRO TEM.‑The question is on the motion to table the amendment.


4689

CONSTITUTIONAL CONVENTION, 1901

Upon a vote being taken a division was called for and by a vote of 75 ayes and 27 noes the amendment was tabled.

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

Article III was read as follows:

ARTICLE III

Distribution of  Powers of Government.

42. The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to‑wit: Those which are legislative, to one; those which are executive to another; and those which are judicial to another.

43. In the government of this State, except in the instances in this Constitution hereinafter expressly directed or permitted, the Legislative Department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them ; to the end that it may be a government of laws and not of men.

MR. SPRAGINS‑I ask unanimous consent to make a correction. In the 6th line of Section 43, at the end of the line to strike out "or" and substitute "and."

By unanimous consent the amendment was ordered.

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

MR. DAVIS (Etowah) ‑ The Convention referred to the Committee on Harmony no article on distribution of powers of government. We therefore took from the old Constitution the section therein under that title and in addition thereto we added the present Section 43, which was taken from the Preamble and Declaration of Rights, and I move the adoption of the article as read.

MR. COLEMAN‑As there has been no vote upon this at all, it seems to me it would require an aye and no vote.

THE PRESIDENT PRO TEM.— The Chair is of the opinion if the Convention adopts the article as read it would be sufficient.

Upon a vote being taken the article as read was adopted.

Article IV was read as follows:


4690                                          

OFFICIAL PROCEEDINGS

ARTICLE IV

Legislative Department

44. The legislative power of the State shall be vested in a Legislature, which shall consist of a Senate and a House of Representatives.

45. The style of the laws of this State shall be: "Be it enacted by the Legislature of Alabama," which need not be repeated, but the act shall be divided into sections for convenience, according to substance; and the sections designated merely by figures. Each law shall contain one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code digest or revision of statutes; and no law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re‑enacted and published at length.

46. Senators and Representatives shall be elected by the qualified electors on the first Tuesday after the first Monday in November, unless the Legislature shall change the time of holding elections, and in every fourth year thereafter. The terms of office of the Senators and Representatives shall commence on the day after the general election at which they are elected, and; expire on, the day after the general election held in the fourth year after their election, except as otherwise provided in this Constitution.  At the general election in the year nineteen hundred and two all the Representatives, together with the Senators for the even numbered districts and for the thirty‑fifth district, shall be elected. The terms, of those Senators who represent the odd numbered districts under the law in force prior to the ratification of this Constitution, are hereby extended until the day after the general election in the year nineteen hundred and six; and until the expiration of his term as hereinbefore extended, each Senator shall represent the district established by this Constitution, bearing the number corresponding with that for which he was elected. In the year nineteen hundred and six and in every fourth year thereafter, all the Senators and Representatives shall be elected. Whenever a vacancy shall occur in either House the Governor shall issue a writ of election to fill such vacanacy for the remainder of the term.

47. Senators shall be at least 25 years of age, and Representatives 21 years of age at the time of their election. They shall have been citizens and residents of this State for three years, and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken, and they shall reside in their respective counties or districts during their terms of office.

48. The Legislature shall meet quadrennially at the Capitol, in the Senate chamber, and in the hall of the House of Representatives on the second Tuesday in January next succeeding their election, or on such other day as may be prescribed by law; and shall not remain in session longer  than 60 days at the first session held under this Constitution, nor longer


4691

CONSTITUTIONAL CONVENTION, 1901

than 50 days at any subsequent session. If at any time it, should from any cause become impossible or dangerous for the Legislature to meet or remain at the Capitol, or for the Senate to meet or remain in the Senate chamber, or for the Representatives to met or remain in the hall of the House of Representatives, the Governor may convene the Legislature, or remove it, after it has convened, to some other place, or may designate some other place for the sitting of the respective houses, or either of them, as necessity may require.

49. The pay of the members of the Legislature shall be four dollars per day, and ten cents per mile in going to and returning from the seat of government, to be computed by the nearest usual route traveled.

50. The Legislature shall consist of not more than thirty‑five Senators, and not more than one hundred and five members of the House of Representatives, to be apportioned among the several districts and counties as prescribed in this Constitution; provided that in addition to the above number of Representatives, each new county hereafter created shall be entitled to one Representative.

51. The Senate, at the beginning of each regular session, and at such other times as may be necessary, shall elect one of its members President pro tem. thereof, to preside over its deliberations in the absence of the Lieutenant Governor; and the House of Representatives, at the beginning of each regular session, and at such other times as may be necessary, shall elect one of its members Speaker; and the President of the Senate and the Speaker of the House of Representatives shall hold their offices, respectively, until their successors are elected and qualified. In case of the temporary disability of said presiding officers, the house to which he belongs may elect one of its members to preside over that house, and to perform all the duties of such officer during the continuance of his disability; and such temporary officer, while performing duty as such, shall receive the same compensation to which the permanent officer is entitled by law, and no other. Each house shall choose its own officers, and shall judge of the election, returns and qualifications of its members.

52. A majority of each house shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and compel the attendance of absent members in such manner, and under such penalties, as each house may provide.

53. Each house shall have power to determine the rules of its proceedings, and to punish its members and other persons for contempt or disorderly behavior in its presence; to enforce obedience to its processes, to protect its members against violence, or offers of bribes or corrupt solicitation; and, with the concurrence of two‑thirds of the house, to expel a member, bud not a second time for the same offense; and the two houses shall have all the powers necessary for the Legislature of a free State.

54. A member of the Legislature expelled for corruption shall not thereafter be eligible to either house; and punishment for contempt or disorderly behavior shall not bar an indictment for the same offense.


4692                  

OFFICIAL PROCEEDINGS

55. Each house shall keep a journal of its proceedings, and cause the same to be published immediately after its adjournment, excepting such parts as, in its judgment, may require secrecy; and the yeas and nays of the, members of either house on any question shall, at the request of one tenth of the members present, be entered on the journal. Any member of either house shall have liberty to dissent from, or protest against any action or resolution which he may think injurious to the public or to an individual, and have the reason for his dissent entered on the journal.

 

56. Members of the Legislature shall in all cases, except treason, felony, violation of their oath of office and breach of the peace, be privileged from arrest during their attendance at the sessions of the respective houses, and in going to and returning from the same; and for any speech or debate, in either house, they shall not be questioned in any other place.

57. The doors of each house shall be open, except on such occasions as, in the opinion of the house, may require secrecy; but no person shall be admitted to the floor of either house while the same is in session, except members of the Legislature, the officers and employes of the two houses, the Governor and his secretaries, representatives of the press and other persons to whom either house, by unanimous vote, may extend the privileges of its floor.

58. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting, except as otherwise provided in this Constitution.

59. No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any office of profit under this State, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people.

60. No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the Legislature or capable of holding any office of trust or profit in this State.

61. No law shall be passed except by bill, and no bill shall be so altered or amended on its pass go through either house as to change its original purpose.

62. No bill shall become a law until it shall have been referred to a standing committee of each house, acted upon by such committee in session, and returned therefrom, which facts shall affirmatively appear upon the journal of each house.

63. Every bill shall be read on three different days in each house, and no bill shall become a law unless on its final passage it be read at length, and the vote be taken by! yeas and nays, the names of the members voting for and against the same be entered upon the journal, and a majority of each house be recorded thereon as voting in its favor, except as otherwise provided in this Constitution.


4693

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64. No amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment, with the names of those voting, for and against the same, shall be entered at length on the journal of the house is which the same is adopted; and no amendment to bills by one house shall be concurred in by the other, unless a vote  be taken by yeas and nays and the names of the members voting for and against the same be recorded at length on, the journal; and no report of a committee of conference shall be adopted in either house except upon a vote taken by yeas and nays and entered on the journal as herein provided for the adoption of amendments.

65. The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this State of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; and all acts or parts of acts heretofore passed by the legislature of this State authorizing a lottery or lotteries, and all acts amendatory thereof, or supplemental thereto, are hereby avoided.

66. The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislature after the same shall have been publicly read at length immediately before signing, and the fact of reading and signing shall be entered upon the journal; but the reading at length may be dispensed with by a two‑thirds vote of a quorum present; which fact shall be also entered on the journal.

67. The legislature shall prescribe by law the number, duties and compensation of the officers and employes of each house; and no payment shall be made from the State treasury, or be in any way authorized, to any person except to an acting officer or employe, elected or appointed in pursuance of law.

68. The legislature shall have no power to grant, or to authorize or require any county or municipal authority to grant, nor shall any county or municipal authority have power to grant, any extra compensation, fee or allowance to any public officer, servant or employe, agent or contractor, after service shall have been rendered or contract made; nor to increase or decrease the fees and compensation of such officers during their terms of office; nor shall any officer of the State bind the State to the payment of any sum of money, but by authority of law; provided, this section shall not apply to allowances made by commissioners' courts or boards of revenue to county officers for ex‑officio services.

69. All stationery, printing, paper and fuel used in the legislative and other departments of government, shall be furnished, and the printing, binding and distribution of laws, journals, department reports and all other printing, binding and repairing, and furnishing the halls and rooms used for the meeting of the legislature and its committees, shall be performed, under contract, to be given to the lowest responsible bidder below a maximum price, and under such regulations as shall be prescribed by law; no member or officer of any department of the government shall be in any way in‑


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terested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.

70. All bills for raising revenue shall originate in the House of Representatives. The Governor, Auditor and Attorney‑General shall before each regular session of  the legislature, prepare a general revenue bill to be submitted to the legislature for its information, and the Secretary of State shall have printed for the use of the legislature a sufficient number of copies of the bill so prepared, which the Governor shall transmit to the House of Representatives as soon as organized, to be used or dealt with as that house may elect. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the last five days of the session.

71. The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the Executive. Legislative and Judicial Departments of the State, for interest on the public debt, and for the public schools. The salary of no officer or employe shall be increased in such bill, nor shall any appropriation be made therein for any officer or employe, unless his employment and the amount of his salary have already been provided by law. All other appropriations shall be made by separate bills each embracing but one subject.

72. No money shall be paid out of the treasury, except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof: and a regular statement and account of receipts and expenditures of all public moneys shall be published annually in such manner as may be by law directed.

73. No appropriation shall be made to any charitable or educational institution not under the absolute control of the State, other than normal school, established by law for the professional training of teachers for the public schools of the State, except by a vote of two‑thirds of all, the members elected to each house.

74. No act of the legislature shall authorize the investment of any trust fund by executors, administrators, guardians or other trustees in the bonds or stock of any private corporation: and any such acts now existing are avoided, saving investments heretofore made.

75. The power to change the venue in civil and criminal causes is vested in the courts, to be exercised in such manner as shall be provided by law.

76. When the Legislature shall be convened  in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, except by a vote of twothirds of each house. Special sessions shall be limited to thirty days.

77. No State office shall be continued or created for the inspection or measuring of any merchandise. manufacture or commodity; but any county or municipality may appoint such officers when authorized by law.


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78. No act of the Legislature changing the seat of government of the State shall become a law until the same shall have been submitted to the qualified electors of the State, at a general election, and approved by a majority of such electors voting on the same; and such act shall specify the proposed new location.

79. A member of the Legislature who shall solicit, demand or receive or consent to receive, directly or indirectly, for himself or for another from any company corporation, association or person, any money, office, appointment, employment, reward, thing of value or enjoyment, or of personal advantage, or promise thereof, for his vote or official influence, or for withholding the same, or with an understanding, expressed or implied, that his vote or official action shall be in any way influenced thereby; or who shall solicit or demand any such money or other advantage, matter or thing aforesaid, for another, as a consideration for his vote or influence, in consideration of the payment or promise of such money, advantage, matter or thing, to another, shall be guilty of bribery within the meaning of this Constitution, and shall incur the disabilities and penalties provided thereby for such offense, and such additional punishment as is or shall be provided by law.

80. Any person who shall, directly or indirectly, offer, give or promise any money or thing of value, testimonial, privilege, or personal advantage to any executive or judicial officer, or member of the Legislature, to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and be punished in such manner as may be provided by law.

81. The offense of corrupt solicitation of members of the Legislature, or of public officers of this State, or of any municipal division thereof, and any occupation or practice of solicitation of such members or officers, to influence their official action, shall be defined by law, and shall be punished by fine and imprisonment in the penitentiary; and the Legislature shall provide for the trial and punishment of the offenses enumerated in the two preceding sections, and shall require the judges to give the same specially in charge to the grand juries in all the counties of this State.

82. A member of the Legislature who has a personal or private interest in any measure or bill proposed or pending before the Legislature, shall disclose tho fact to the house of which he is a member, and shall not vote thereon.

83. In all elections by the Legislature the members shall vote viva voce, and the votes shall be entered on the journal.

84. It shall be the duty of the Legislature to pass such laws as may be necessary and proper to decide differences, by arbitrators to be appointed by the parties who shall choose that mode of adjustment.

85. It shall be the duty of the Legislature, at its first session after the ratification of this Constitution, and within every subsequent period of twelve years, to make provision by law for revising, digesting and pro‑


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mulgating the public statutes of this State of a general nature, both civil and criminal.

86. The Legislature shall pass such penal laws as it may deem expedient to suppress the evil practice of dueling.

87. It shall be the duty of the Legislature to regulate by law the cases in which deduction shall be made from the salaries of compensation of public officers for neglect of duty in their official capacities, and the amount of such reduction.

88. It shall be the duty of the Legislature to require the several counties of this State to make adequate provision for the maintenance of the poor.

89. The Legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this State.

90. In the event of the annexation of any foreign territory to this State the Legislature shall enact laws extending to the inhabitants of the acquired territory all the rights and privileges which may be required by the terms of acquisition not inconsistent with this Constitution. Should the State purchase such foreign territory, the Legislature, with the approval of the Governor, shall be authorized to expend any money in the treasury not otherwise appropriated, and if necessary, to provide also for the issuance of State bonds, to pay for the purchase of such foreign territory.

91. The Legislature shall not tax the property, real or personal, of the State, counties, or other municipal corporations, or cemeteries; nor lots in incorporated cities or towns, or within one mile of any city or town to the extent of one acre, nor lots one mile or more distant from such cities or towns to the extent of five acres, with the buildings thereon, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable.

92. The Legislature shall by law prescribe such rules and regulations as may be necessary to ascertain the value of real and personal property exempted from sale under legal process by this Constitution, and to secure the same to the claimant thereof as selected.

93. The State shall not engage in works of internal improvement nor lend money or its credit in aid of such; nor shall the State be interested in any private or corporate enterprise, or lend money or its credit to any individual, association or corporation.

94. The Legislature shall not have power to authorize any county, city, town, or other subdivision of this State to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in any such corporation association or company. by issuing bonds or otherwise.

95. There can be no law of this State impairing the, obligation of contracts by destroying or impairing the remedy for their enforcement: and the


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Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or to destroy any existing defense to such suit.

96. The Leagislature shall not enact any law not applicable to all the counties in the State, regulating costs and charges of courts, or fees, commissions or allowances of public officers.

97. The Legislature shall not authorize payment to any person of the salary of a deceased officer beyond the date of his death.

98. The Legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.

99. Lands belonging to or under the control of the State shall never be donated directly or indirectly to private corporations, associations, or individuals or railroad companies; nor shall such lands be sold to corporations or associations for a less price than that for which they are subject to sale to individuals; provided, that nothing contained in this section shall prevent the Legislature from granting a right of way, not exceeding one hundred and twenty‑five feet in width, as a mere easement, to railroads or telegraph or telephone lines across State land, and the Legislature shall never dispose of the land covered by such right of way except subject to such easement.

100. N o obligation of liability or any person, association, or corporation held or owned by this State, or by any county or other municipality thereof, shall ever be remitted, released or postponed, or in any way diminished, by the legislature; nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value: provided, that this section shall not prevent the legislature from providing by general law for the compromise of doubtful claims.

101. No State or county official shall, at any time, during his term of office, accept either directly or indirectly any fee, money, office, appointment, employment, reward or thing of value, or of personal advantage, or the promise thereof, to lobby for or against any measure pending before the Legislature, or to give or withhold his influence to secure the passage or defeat of any such measure.

102. The Legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro or descendant of a negro.

103. The Legislature shall provide by law for the regulation, prohibition, or reasonable restraint of common carriers, partnerships, associations, trusts, monopolies, and combinations of capital, so as to prevent them or any of them from making scarce articles of necessity, trade or commerce, or from increasing unreasonably the cost thereof to the consumer, or preventing reasonable competition in any calling, trade or business.


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MR. WATTS‑I rise to a question of information. Will the Secretary tell me whether Section 27 of the Legislative Department was adopted by this Convention? The reason I ask is, it contains a very important provision, which I do not find in the report of the Committee on Order, Consistency and Harmony, and we ought to understand whether or not it has been adopted. The Section is that the aggregate appropriations made shall not exceed the amount of the incomes from the revenues of the State for the current fiscal year as estimated by the Governor and Auditor.  I do not recollect whether that was adopted or not.

MR. ROGERS (Sumter)‑I will state to the gentleman from Montgomery that it was not. It was adopted and reconsidered the next day and Judge Coleman offered an amendment and on reconsideration the whole matter was lost.

PRESIDENT PRO TEM‑Is the the delegate from Montgomery satisfied with the explanation?

MR. WATTS‑Yes, sir. The gentleman from Sumter assures me that he recollects it was not adopted.

PRESIDENT PRO TEM.‑The Chair will state that as local legislation, which is next, is not made a separate article, but is a subdivision, the Clerk will proceed to read it, so that at the end of the article, according to the ruling of the Chair, it will be subject to amendment.

The President here resumed the Chair.

The Clerk continued the reading as follows:

LOCAL LEGISLATION

104. The legislature shall not pass a special, private or local law in any of the following cases:

(1.) Granting a divorce;

(2.) Relieving any minor of the disabilities of non‑age;

(3.) Changing the name of any corporation, association or individual;

(4.) Providing for the adopting or legitimizing of any child;

(5.) Incorporating a city, town or village;

(6.) Granting a charter to any corporation. association or individual;

(7.) Establishing rules of descent or distribution;

(8.) Regulating the time within which a civil or criminal action may be begun;

(9.) Exempting any individual, private corporation or association from the operation of any general law.


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(10) Providing for the sale of, the property of any individual or estate;

(11.) Changing or locating a county seat;

(12.) Providing for a change of venue in any case;

(13.) Regulating the rate of interest;

(14.) Fixing the punishment of crime;

(15.) Regulating either the assessment or collection of taxes, except in connection with the re‑adjustment, renewal or extension of existing municipal indebtedness created prior to the adoption of the Constitution of eighteen hundred and seventy‑five;

(16.) Giving effect to an invalid will, deed or other instrument;

(17.) Authorizing any county, city, town, village, district or other poditical sub‑division of a county, to issue bonds or other securities unless the issuance of said bonds or other securities shall have been authorized before the enactment of such local or special law, by a vote of the duly qualified electors of such county, township, city, town, village, district or other political subdivision of a county, at an election held for such purpose, in the manner that may be prescribed by law; provided, the legislature may without such election, pass special laws to refund bonds issued before the date of the ratification of this Constitution;

(18.) Amending, confirming or extending the charter of any private or municipal corporation, or remitting the forfeiture thereof; provided, this shall not prohibit the legislature from altering or re‑arranging the boundaries of any city, town or village;

(19.) Creating, extending or impairing any lien;

(20.) Chartering or licensing any ferry, road or bridge;

(21.) Increasing the jurisdiction and fees of justices of the peace or the fees of constables;

(22.) Establishing separate school districts;

(23.) Establishing separate stock districts;

(24.) Creating, increasing or decreasing fees, per centages or allowances of public officers;

(25.) Exempting property from taxation or from levy or sale;

(26.) Exempting any person from jury, road or other civil duty;

(27.) Donating any lands owned by or under control of the State to any person or corporation;

(28.) Remitting fines, penalties or forfeitures;

(29.) Providing for the conduct of elections or designating places of voting, or changing places of voting, or changing the boundaries of wards,


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OFFICIAL PROCEEDINGS

precincts or districts, except in the event of the, organization of new counties, or the changing of the lines of old counties;

(30.) Restoring the right to vote to persons convicted of infamous crimes, or crimes involving moral turpitude;

(31.) Declaring who shall be liners between precincts or between counties. The legislature shall pass general laws for the cases enumerated in this section; provided, that nothing in this section or article shall effect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in Section 106 of this Constitution.

105. No special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this State; and the courts, and not the legislature, shall judge as to whether the relief sought can be given by any court; nor shall the Legislature indirectly enact and, such special, private or local law by the partial repeal of a general law.

106. No special, private or local law shall be passed on any subject not enumerated in Section 104 of this Constitution, except in reference to fixing the time of holding courts, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the county or counties where the matter or thing to be effected may be situated, which notice shall state the substance of the proposed law, and be published at least once a week for four consecutive weeks in some newspaper published in such county or counties, or if there is no  newspaper published therein, then by posting the said notice for four consecutive weeks at five different places in the county or counties prior to the introduction of the bill; and proof by affidavit that said notice has been given shall be exhibited to each house of the Legislature, and said proof spread upon the journal. The courts shall pronounce void every local law which the journals do not affirmatively show was passed in accordance with the provisions of this section.

107. The Legislature shall not, by a special, private or local law, repeal or modify any special, private or local law except upon notice being given and shown as provided in the last preceding section.

108. The operation of a general law shall not be suspended for the benefit of any individual, private corporation or association; nor shall any individual, private corporation or association be exempted from the operation of any general law except as in this Article otherwise provided.

109. The Legislature shall pass general laws under which local and private interests shall be provided for and protected.

110. A general law within the meaning of this Article is a law which applies to the whole State; a local law is a law which applies to any political subdivision or subdivisions of the State, less than the whole; a special or private law within the meaning of this Article is one which applies to an individual, association or corporation.


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CONSTITUTIONAL CONVENTION, 1901

111. No bill introduced as a general law in either house of the Legislature shall be so amended on its passage as to become a special, private or local law.

THE PRESIDENT‑The Chair will announce the Committee on Enrollment of the Constitution. It will consist of Messrs Carmichael (Colbert), Selheimer, Pillans, Foster and Samford of Pike.

MR. WATTS‑I have an amendment to Section 106.

The amendment was read as follows:

Amend Section 106 by inserting before "local" in line 13, the words "special, private or."

MR. WATTS‑The object of that amendment is simply to make the same language in that line as appears all the way through the article on Local Legislation, and I hope the committee will accept it.

MR. WHITE‑The committee will accept that.

THE PRESIDENT ‑ The gentleman from Jefferson, the chairman of the Committee on Order, Consistency and Harmony asks unanimous consent to accept the amendment offered by the gentleman from Montgomery.

The consent was given.

MR. ROGERS (Lowndes) ‑ I move to amend Section 24, line 6—

THE PRESIDENT‑The gentleman will have to reduce the amendment to writing.

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

The amendment was read as follows:

Amend the report of the committee by striking out the words "provided this shall not prohibit the Legislature from altering or re‑arranging the boundaries of any city, town or village," in line 24, page 23.

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

MR. SAMFORD (Pike)‑According to my recollection, the Convention had a very decided and very spirited contest over this particular clause, which I am sure has been inadvertently re-inserted by the Committee on Harmony. This Convention, after discussion the question decided that the question as to whether or not suburban towns should be taken into the cities, should first be submitted to a vote of the people in those suburban place. I


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simply desire to call the attention of the Convention to the fact, I am not a suburbanite myself, but it could be done by a general law covering the entire matter, and this question was fought over in this Convention, and the Convention voted down the identical idea that has been inserted here by the Committee on Order, Consistency and Harmony. I am sure the Committee did not have any such intention when it put it in there. I am sure its attention was not called to the fact that the Convention had voted it down, and a change like that is such a material change from the action of the Convention that it occurs to me that the committee would not he warranted in making the report. I therefore offer the amendment. I do not think it right now, as I did not as the time we discussed the question heretofere, that people outside of the corporate limits of a city should, nolens volens, be taken within the limits, whether they want to go in or not, without having a word to say about it, and I call attention to the fact that in the cities that are constantly reaching out for a larger territory, for the purpose of taxation and paying off the indebtedness that has already accrued within the bounds of the corporation, and not specially for the protection of the people on the outside, that the people on the outside ought to have the right to say by their votes whether they want the protection of the city and all those advantages the city propose to give to them.  This question, as I say, has been settled by the Convention, and it looks to me like questions of this sort ought to remain unsettled and not be brought in in this manner.

MR. PILLANS‑At the time that the article covering local legislation was under consideration by this body, some criticism was made of this clause as originally written, which forbade the amending, confirming or extending the charter of any private or municipal corporation, because it appeared upon the adoption of that, it `would be impossible ever after to change in any way, either by restriction car enlargement, the boundaries of any municipality of the State. The answer was that the article on municipal corporations would properly deal with that subject matter. The section of the article on municipal corporations which did contain that subject matter, contained a good many other subjects matter, and fell, and this committee brings it here and frankly avows to the Convention that it did insert this, because they believed it was the intent of the Convention that it should be inserted. The action of the committee was founded, I was about to say, upon the apparent necessity for some loop hope being left with regard to local legislation for the cities of the State, I would call the attention of the Convention to this fact: that when we adjourn and the Constitution which we frame shall be adopted, which I trust it will, and assume it will be, every city, town and village which is incorporated in the State of Alabama will be fixed within a mold inflexible, unyielding and unchanging, unless there is a pow‑


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CONSTITUTIONAL CONVENTION, 1901

er residing somewhere to change it. That is plain. The law that now exists under which any city, town or village in this State has been incorporated, remains beyond the power of the Legislature to change, if this section stands as originally written, by any local legislation.

Is there a power to change it tested anywhere else? Can a general law be passed under which a change can take place? It has been suggested that this is put in here to enable cities to grasp the suburban property about them. I call attention to the fact that there is no room for that, and that the history of legislation in regard to city boundaries in Alabama during the past does not point to any such probability, as that. As a matter of fact the cities; of Alabama have not ordinarily been extending their boundaries, but the chief city of the State, the city of Mobile, has not for a great many years asked the Legislature for legislation in regard to city boundaries, and has only twice asked for such legislation, and in each case it was for a restriction of the boundaries.

MR. SAMFORD (Pike)‑Do you remember the legislation in regard to the boundaries of the city of Montgomery?

MR. PILLANS‑I have not been able to find it. Before I came here I was never able to get  the acts of that fecund legislature and have never known what they did, and I am really ignorant as to what the last Legislature did, because I have not had time to read the act; since I got here.

Now the point is this: There was a necessity found for the city of Mobile to have more restricted boundaries, and the legislature limited the boundaries and restricted them. Again, it was found improper that the east side of the river should be put within the taxing limits of the city of Mobile, because it received no benefits of taxation and the legislature took it out of the city. That is an example of what the legislature can do for the outlying country. Part of the land which lies near Birmingham, Montgomery and Mobile and every other growing town in the State, is as much a part of the municipality, as much protected by its police, by its fire system, and improved by its railroad systems and the conveniences which belong to urban life as those parts which lie within the boundary lines, and from time to time every growing city has to have its boundaries enlarged. That goes without saying. There is no question about that and how are you going to enlarge them?

SANFORD (Montgomery) ‑You can do it by the consent of the people proposed to be annexed.

MR. PILLANS‑Very good. That brings us down to it. Are you going to pass a general law which will provide that the particular municipality shall declare what its new boundaries shall be? Your general law has got to give to some political body the


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power to declare boundaries, has it not? Are you going to give to the legislature the power only to pass a general law which will say that Birmingham, Montgomery or Huntsville may make their boundaries as large as they wish? Certainly not. Then are you going to say by a general law you may extend the boundaries provided the people within the affected territory vote for it?

MR. SANFORD (Montgomery)‑Yes.

MR. PILLANS‑The gentleman answers yes. Then no city that was ever organized, gentleman, will ever extend its boundaries beyond the first limits of organization, and I will give you a good reason why. They have got the benefit of everything in the world that belongs to city life without paying one penny for it. The city of Mobile has never extended its boundaries in my life. though it has restricted them, and you cannot point to the extension of city boundaries in Alabama where the people whose property was brought into the municipality for taxation were willing or anxious to have it done. If a man can have fire service and police protection, if he can have the benefit of street railroads, and all those advantages which belong to city life without paving one dollar of taxation, he will never pay it. And it is plain you cannot possibly change the boundaries of a city except by diminution, never by extension, unless you leave it to some supreme power in the State, or leave to some body the discretion to act upon the question of whether or not a case was presented which required the extension or diminution of the boundaries. Now, that being the case, you cannot otherwise possibly pass a law. Suppose a general law is passed, which leaves to city people the right to vote on these extensions, they will all vote to extend the limits just as soon as they get ready. You should not do that, it will not do. Any man who thoughtfully considered it, will see that if the people outside vote, they will always vote against it, and if the people inside the limits have a vote they will always vote for it, and you must have some third party to settle the dispute. Where can you repose that discretion letter than in the legislature of Alabama? The legislature can pass general laws, if you adopt this amendment, and at the same time fully protect the people by providing for elections by the people ratifying their action, if they see proper to do so. I believe if you strike this down you can never have any change. No change would be possible in the boundaries of any city in the State, and I trust that this section will be retained.

MR. SAMFORD (Montgomery)‑My friend from Mobile is mistaken when he mentions this city in reference to the people living outside of the corporate limits being entitled to the services of the fire department. By an ordinance or rule it is expressly prosided that outside of the city limits the fire department service need not go. He is mistaken in that. His whole argument is this,


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CONSTITUTIONAL CONVENTION, 1901

that whenever a corporation or municipality becomes involved in debt, and is hard pressed to meet its obligations, it shall then throw a line around the surrounding country, bringing in residences, bringing ill plantations, bringing in any property merely for the purpose of taxation. Government was not established merely for the purpose of snaking subjects of citizens. A government to protect the people should be upheld, but the people themselves should not be subordinated to the municipal authorities and forced within the city limits when they do not desire to come within its limits. He is mistaken when he says they have all the benefits of  the city without paving anything for them, for all men doing business in this city, if they be merchants, pay taxes upon their articles of merchandise, and if they be professional men, they pay professional licenses, if they rent establishments they pay the rent and the landlord pays the taxes. People who have sought to avoid city life for they benefit of their families, and for their health, should not be drawn into city life, which may lead to very grave consequences to them. They go out of the city. They do not wish to live in the city, and straightway for the purpose of imposing taxes upon them by some improvident or unsagacious aldermen, or some men perfectly reckless, who may have engaged in contracts and thereby the city became involved. They are brought into town life when they much prefer rural homes. It seems to me the, amendment of the gentleman from Pike is very wise. People should not be brought into towns who do not desire to live in towns, merely for the purpose of taxation, merely for the purpose of hearing a burden which the people of those towns have themselves put upon their own shoulders, and during the existence of which, until they get beyond a point where they can meet them, the people proposed for be taken in never have any benefit. There are debts contracted in Montgomery that never benefited a man outside of the corporate limits, and now when they are greatly pressed with debts, they say you must bring them in and tax them.

It is unjust. It is simply iniquitous. If those people desire to move to town, if their cannot sell their residences, by their consent you may make your corporate circle large enough to include  them, but do not do it without their consent. Do not bring them in to bear burdens against their will, when possibly they are loaded down to the guards already and you sink the little ships when you bring them into such a sea as this. I hope the amendment of the gentleman from Pike will be adopted.

MR. VAUGHAN‑I move to lay the amendment of the gentleman from Pike upon the table.

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

MR. O'NEAL— I have an amendment.


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OFFICIAL PROCEEDINGS

The Secretary read the amendment as follows:

"Amend Section 48, in line 7, by striking out the word "quadrennially' and inserting in lieu thereof `biennially,' and strike out the word `fifty' at the end of line 10, and insert in lieu thereof the word "forty.' "

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

MR. O'NEAL (Lauderdale)‑Mr. President: I realize that at this late day in our deliberations, the Convention is naturally impatient, anxious to complete its labors and little inclined to listen to argument in favor of a reconsideration of any action it has taken. It s only, therefore, from a solemn sense of the duty I owe to those whom I have the honor to represent in this Convention, and from an earnest conviction that a serious mistake was made by providing in the fundamental law that one of the greatest co‑ordinate departments of government should exercise its important functions only once in every four years, that I understand to present briefly in the time at my disposal some of the reasons which, in my judgment, would warrant us in refusing to sanction this radical change. I have heard it stated that this Convention had already subjected itself to just criticism or censure by the frequency with which it has reconsidered its action on important questions. It is Emerson who says "A foolish consistency is the hobgoblin of little minds, adored by little statesmen, and philosophers and divines. With consistency, a great soul has simply  nothing to do. He may as well concern himself with his shadow on the wall. If you would be a man, speak what you think today in words as hard as cannon balls, and tomorrow speak what tomorrow thinks in hard words again, though it contradict everything you said today." Mr. President, we should not be influenced in a matter of such vital moment to the people of Alabama by any fear of being misunderstood or criticised for an alleged want of consistency. The question which we are to determine is whether it is wise to embark on a novel and untried experiment in government, to overthrow a system which has existed in this State since its admission into the Union, adopt a change which I, not only radical, but without a single precedent in a State of this great Republic. That a quadrennial session of the Legislature is an innovation, almost revolutionary in its character, no one can denythat its advocates cannot prove its blessings or benefits by pointing to the experience of a State or government where representative Legislatures or Parliaments exist is conceded. Therefore, it follows that we are asked to support this new, untried system, not because its advantages can be established by the experience of other States or governments, but simply because its advocates assert it will be popular and will work advantageously. Mr. President. I do not belong to that school of conservatism which opposes


4707

CONSTITUTIONAL CONVENTION, 1901

every innovation. I admit that some of the wisest and most salutary provisions in our Constitution were innovations, yet they were innovations which had the support of experience or strong and convincing arguments. I can not give my consent at any time to write into our Constitution a provision which is so revolutionary as this, unless it has the quality of positive benefit to justify its enactment. Mr. President, the fundamental and distinguishing features of republican institutions is that government must consist of three separate and independent departments. the executive, legislative and judicial, each co‑ordinate, maintained separately, acting within its own sphere and not encroaching on the powers of either of the others. It follows, therefore, that any constitutional provision which weakens or impairs the powers and efficiency of any one of the three co‑ordinate departments of government must necessarily weaken and impair the efficiency and harmonious action of the whole. Mr. President, in the Bill of Rights, adopted by this Convention, we have carefully guarded against any encroachment by either of the great departments of government on the other, and yet it must be apparent to and, one who has studied and understands our system of government, that a blow struck at either of the great departments of government must affect all. Each of the three departments, to some extent, act as a check on the others, and if any department be struck down or its power impaired, you can not have a republican government with the strength and power which the framers of our system of republican government contemplated or intended.

Mr. President, government by representation is a principle derived from the oldest customs of the Anglo‑Saxon race. Students of English constitutional history can trace the existence of representative assemblies to every period of its history and national existence, even to remote antiquity. From the earliest tribal history down to the present day, there was some form of a legislative body, representing the people. framing their laws, and assisting in their government. With all its defects, our representative system is the best the wisdom and experience of man has yet devised. A lower house, whose membership is frequently changing, by frequent elections, secures closeness of touch and sympathy with the people. An upper house, with smaller membership, representing a larger constituency, and for a longer term, secures that deliberation, that calmness and conservatism which are essential to guard against sudden and unreasoning popular prejudice, to give stability to our laws, and in seasons of clamor, unrest, and disturbance, to save the people froth the folly of their own excitement and emotions. This has been the system which has always prevailed in this State. The lower house has always been elected every session of the Legislature, thus directly coming from the body of the people representing their wishes and aspirations, the upper house, or senate, smaller in number, represent‑


4708                  

OFFICIAL PROCEEDINGS

ing a larger constituency, holding for a longer term, acting as a check on hasty legislation, not so sensitive to popular clamor or excitement.  This system we have abandoned.  Under the provisions of the Constitution, as adopted, the Senate and House hold for the same term, and the system of balances and checks which our fathers so wisely and carefully devised we have destroyed without a single argument being advanced in its favor, except that the people were weary of frequent elections.

Not only have we ruthlessly departed from this system which has prevailed not only in Alabama but in every other State of the Union of electing the Senators for a longer term that the representatives, but we have provided that the people shall not be allowed to meet through their chosen representatives to legislate often than once in every four years.

Mr. President, the legislature of Alabama is simply the people of Alabama through their chosen representatives meeting in assembly to repeal, revise or make their own laws and the whole argument in favor of this innovation is based, after being stripped off all subterfuge, on a want of confidence in the capacity of the people to govern themselves.  Under our form of government the people could not meet en masse to legislate as they did in the days of the Grecian Republics, and hence they must select certain of their numbers to meet and represent them and frame such laws as may be required to maintain good government.  Hence the advocates of this change cannot deny that their whole case rests on the theory that the people are not to be trusted.  It is claimed that if the legislature meets it will pass bad laws, disturb and unsettle business, and should therefore meet as seldom as possible.  If this is true, is it not a pitiable confession for a self-governing democracy to make?  Is it not an admission that government by the people is a failure?  Mr. President, I for one, am not prepared to make such an admission.  I for one, am not willing to declare that because the last session of the General Assemble was not characterized by wise legislation, because it aroused popular discontent and criticism, to go to the extent and criticism, to go to the extent of assuming that a system which has prevailed in Alabama for nearly a century under which we have grown and prospered and become a mighty and powerful commonwealth, enjoying the blessings of good government should be overthrown simply because one session of the legislature was not popular, because it was extravagant and may have disregarded the best interests of the people.  The remedy is not to practically abolish the legislature as is now sought but to remedy the evil by removing the cause, electing men who are more conservative, more careful of the interests of the people and relegating those who may have proven unworthy or who may have abused the trust and confidence imposed in them to the shades of private life.


4709

CONSTITUTIONAL CONVENTION, 1901

The other arguments made in favor of this change are that if the legislature meets bi‑ennially it will pass too many laws, disturb business and entail unnecessary cost on the State, that it  takes four years to determine whether a law is a good or a bad law, and no law ought to be repealed until it has been tried four years. I will notice each one of these arguments. I readily concede that too much legislation is an evil. This Convention has already taken the most efficient means of restricting the volume of legislation by absolute prohibition of local and special laws on certain enumerated subjects. We all recognize that local legislation is the most prolific source of excessive, corrupt and vexations legislation and hence our action in restricting or prohibiting it in all cases where relief can be found in the courts or where the remedy can he secured by general laws. Yet he has studied the subject to little profit who does not recognize that that excessive legislative activity is one of the distinguishing features of recent years and is not due solely to local laws. Its development in the past few years has been enormous. An examination of the ever increasing size of the acts of the legislature of every State for the past twenty years demonstrates beyond all controversy that this excessive legislative activity is of recent origin. What then, it may he asked, is the cause of this ever‑growing volume of legislation in every State of the Union? While the volume of local and special laws have annually increased general laws have also grown apace. Not only have the statutes of the States increased but the press is pouring forth daily an ever increasing flood of legal works, reports and text books. Mr. President, this increase is to be attributed largely to the enormous business development of modern times, the rapid changes wrought in social conditions by scientific discoveries and mechanical inventions, which ramify and permeate every department of life. A distinguished lawyer recently said: "The common law afforded no principle which by judicial extension could be made to regulate justly the business of telegraphy, city charters contained no provisions under which electric or cable roads could be operated through the streets. To our ancestors came not even a dream that one day tile human voice could be heard across thousands of miles of distance."

Mr. President. while modern inventions and discovery have added largely to the sum of human comfort, they have also created novel and intricate legal questions, for the solution of which we may seek in vain the principles and rules of the common law. To adjust the relations of modern life to the conditions which they have created a vast body of statute law has necessarily grown up.

Statutes defining the duties, rights and liabilities of telephone and telegraph companies, motor card, bicycles, and various other inventions have themselves formed a large code of laws. Our ancestors, as has been truly said, punished witchcraft but they had no laws dealing with the theft of telegraph messages by tapping


4710                  

OFFICIAL PROCEEDINGS

the wires, or stealing electric lights by illicit connections with an electric wire. Vast aggregations of capital forming trusts and Combinations which control the markets of the country and increase the cost of all the necessities of life alone furnish the necessity for many laws. Hence modern activity in legislation is necessary that the laws may keep pace with business and material development. If we could go back to the days of the stage coach, transform this modern, busy, bustling world with all the rapid changes clue to discovery and invention into the quiet days of the past there might be fewer laws. There might then be no necessity, for frequent sessions of the law‑making body. But it has been urged that the legislature passes so many laws that only the trained lawyer can master them. This we all know, was large due to the ever increasing volume of local and special laws, which have poured from every legislative body. By checking if not controlling this evil we have tremendously lessened the number of local laws, yet in doing this, it was not our purpose to destroy the efficiency of the legislature. To pass general laws which will embrace the various subjects as to which the legislature is prohibited from passing local laws will require both time, care and deliberation.  The evils of local laws being removed the character of the legislature will be elevated and that bode will become what it was intended to be a deliberative assembly, engaged in the more important functions of general legislation. Subjects of general legislation will receive more attention. will provoke more debate and with the result that fewer laws will be enacted, and only those whose importance and utility are conceded. Mr. President, Alabama has more diversified interests than any other State in the South, and legislation will be necessary to enable her to maintain her present high position in the industrial world. Modern discovery has added enormously to the growth of medical science, new remedies and drugs are being constantly added to its pharmacopia, yet who would tolerate the claim that the progress of this science must be arrested because its remedies are so many that only by the labor of a life‑time can it be mastered. Yet this is the argument made against the progress of the law. We have increasing number of laws because we have an increasing field of subjects of legislation. Mr. President, it is urged that this measure will be popular. In answer that no provision of this Constitution will, in my judgment, meet more opposition. No man is so wise as to be able to predict that a measure will be popular, until it has been subjected to the test of public criticism and discussion. Be assured that this provision of the Constitution is unwise if it weakens and impairs the power and efficiency of one of the great co‑ordinate departments of government, if it deprives the people of the opportunity of controlling their own affairs, correcting public evils, reforming the laws, it will receive their stern condemnation. The legislature furnishes the only protection


4711

CONSTITUTIONAL CONVENTION, 1901

to the people against inefficient and corrupt administration. Under the system we have provided the legislature and the State officials are elected for four years. After days in the commencement of their term for the remainder of the four years these officials are free from any examination or control by the representatives of the people. The most corrupt rings could be organized, the grossest abuses could prevail and yet the people would be powerless for the legislature could only assemble at the call of a Governor who might be interested in preventing their assemblage. The legislature is a check upon the other departments of government. It can curtail or control to a certain extent the power of the Governor or other State officials, it can pass laws correcting any abuses that may exist, examine the books and accounts of public officials. But it is urged that it requires four years to determine whether a law is a good law or not. I deny the assertion. If there is a bad law the people must endure its oppression without relief for four long years. What would be thought of a physician who would tell his patient, you are suffering from the effects of poison, but I can only prescribe once every four years and you may die before I can administer the antidote? Yet the whole body politic may be permeated with the poison, of evil laws, its energy sapped, feeble and prostrate from its virus and no relief can be administered except after four years. Mr. President, a great writer says that one of the faults of a democracy is a love of novelty, a passion for changing customs and destroying old institutions.

Was this Convention actuated by this spirit in destroying a custom which has so long prevailed in Alabama, and in substituting a system which its own advocates admit is purely experimental, the beneficient results from which cannot be established by history or the experience of other States. No, the whole argument for quadrennial sessions of the Legislature rests on the assumption that the people are not to be trusted. There has been no public demand for this radical change. It was not trade a subject of discussion in the last canvass. Its advantages were never presented to the people either by debate or by the press. It increases the power of the Executive Department for in case of a vacancy in the Senate of the United States froth this State the Governor can appoint for almost four years. It is said it will save the people money by preventing biennial cost of a Legislature. The same argument might be made as to every other department of government. It is a foolish economy which would destroy the efficiency and strength of government in order to save dollars to the people. The evils which will result from unwise and vicious laws which the people are helpless to correct may cost the State thousands of dollars, it may prevent growth and development and then what becomes of our boasted economy secured at such a price? By some it is claimed that this change is due to an apprehension on the part of corporate interests that frequent sessions


4712                  

OFFICIAL PROCEEDINGS

of the Legislature jeopardize their growth and power. Mr. President, there is no disposition on the part of the people of Alabama to do injustice to these great interests. Their growth and prosperity is essential to our development and progress. All we demand is that they like individuals shall obey the law, and not use powers vested in them by the State for public purposes to oppress the people. I do not flatter myself that anything I can say will alter your determination to make this change. I only desire to let the country understand that I for one have used what power I may possess as an humble delegate on this floor, to utter my earnest and solemn protest against a measure which I believe to be unwise and which will tend to throttle the liberties of the people and weaken and impair our entire system of government by sapping the strength of one of its most important departments.

MR. ROGERS (Sumter)‑I regret very much to have to move to lay the amendment of the gentleman from Lauderdale on the table, but I do move to lay the amendment on the table.

THE PRESIDENT‑It is moved that the amendment offered by the gentleman from Lauderdale be laid upon the table.

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

The call was sustained.

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

AYES

Messrs. President,

Davis, of Etowah,

Jones, of Wilcox,

Altman,

Dent,

Knight,

Ashcraft,

deGraffenreid,

Kyle,

Barefield,

Eley,

Ledbetter,

Beavers,

Ferguson,

Long of Walker,

Beddow,

Fletcher,

Lowe, of Lawrence,

Bethtme,

Glover,

Macdonald,

Blackwell,

Graham, of Talladega,

McMillan, of Baldwin,

Boone,

Grant,

McMillan (Wilcox),

Burnett,

Greer, of Calhoun,

Martin,

Cardon,

Greer, of Perry,

Merrill,

Carmichael, of Colbert,

Haley,

Miller (Marengo),

Carmichael, of Coffee,

Handley,

Miller (Wilcox),

Carnathon,

Harrison,

Mulkey,

Case,

Heflin, of Chambers,

Norman,

Chapman,

Hodges,

O'Rear,

Coleman, of Greene,

Howell,

Palmer,

Coleman, of Walker,

Howze,

Parker (Cullman),

Cornwall,

Inge,

Parker (Elmore),

Craig,

Jackson,

Pearce,

Cunningham,

Jones, of Bibb,

Pettus,

Davis, of DeKalb,

Jones, of Hale,

Phillips,


4713

CONSTITUTIONAL CONVENTION, 1901

Pillans,

Smith (Mobile),

Walker,

Reese,

Smith, Mac. A.,

Weakley,

Reynolds, of Henry,

Smith, Morgan M.,

Weatherly,

Rogers (Sumter),

Sorrell,

White,

Samford,

Spragins,

Whiteside,

Sanders,

Stewart,

Williams (Marengo),

Searcy,

Tayloe,

Williams (Amore),

Sentell,

Vaughan,

Wilson (Clarke),

Sloan,

Waddell,

Wilson (Washington),

TOTAL‑93

NOES

Banks,

Graham, of Montgomery,

Opp,

Bartlett,

Grayson,

Porter,

Brooks,

Heflin, of Randolph,

Reynolds (Chilton),

Burns,

Henderson,

Sanford,

Byars,

Hood,

Spears,

Cobb,

Jones, of Montgomery,

Thompson,

Duke,

Lomax,

Watts,

Foshee,

Moody,

Williams (Barbour),

Foster,

Murphree,

Winn,

Freeman,

Oates,

Gilmore,

O'Neal (Lauderdale),

TOTAL‑31

ABSENT OR NOT VOTING

Almon,

Kirkland,

Pitts,

Browne,

Leigh,

Proctor,

Bulger,

Locklin,

Renfro,

Cofer,

Long, of Butler,

Robinson,

Eyster,

Lowe, of Jefferson,

Rogers (Lowndes),

Espy,

Malone,

Selheimer,

Fitts,

Maxwell,

Sollie,

Hinson,

Morrisette,

Stoddard,

Jenkins,

NeSmith,

Willet,

King,

Norwood,

Kirk,

O'Neill, of Jefferson,

So the motion to table prevailed.

M R. REYNOLDS (Chilton)‑‑‑I ask unanimous consent to introduce a resolution.

Consent was given.

The Secretary read the resolution as follows:

Resolution 324 by Mr. Reynolds of Chilton:


4714                  

OFFICIAL PROCEEDINGS

A resolution for taking steps to secure a fair election on the submission of the Constitution, and providing for a contest of the result:

Whereas, the main purpose of those who favored the holding of a Constitutional Convention vas to secure honest and fair elections and purify the ballot ; and,

Whereas, the fair name of Alabama would be forever stained should any considerable number of our people be of opinion a Constitution had been fraudulently imposed upon them; therefore, be it

Resolved, that the Committee on Suffrage and Elections be and they are hereby instructed to forthwith prepare and report to this Convention on ordinance providing that the county officials in each county shall appoint at each polling place in their respective counties county the election held on the ratification of the Constitution prepared by this Convention, at least one inspector and one clerk, each of whom shall be able to read and write and who are opposed to the ratification of the Constitution, if any there be in such precinct, and also providing that those in any county opposing ratification may in Convention or by petition nominate such inspector and clerk; and providing that the failure of any official to comply with such provision shall be guilty of a misdemeanor.

And said committee are further instructed to prepare an ordinance and report the same forthwith, providing that the result of the election may be contested before the Supreme Court upon the petition of 1,000 citizens upon their giving security for costs in such sum as the court may prescribe, and that such contest shall be made and evidence taken in such manner as said court may prescribe.

Referred to Committee on Rules.

MR. HOWELL‑I desire to offer an amendment.

The Secretary read the amendment as follows:

"Amend Section 48 in line ten by inserting the word `working' between the word 'sixty' and 'days. ' also in lines ten and eleven insert the word `working' between the words 'fifty' and `days.' "

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

MR. HOWELL,‑The section provides that the first session after the ratification of this Constitution shall be limited to sixty days and the second thereafter to fifty days. I apprehend that everybody will be in accord with me when I say that the organiclaw of the State should be as free from ambiguity as possible.


4715

CONSTITUTIONAL CONVENTION, 1901

While it is true that the courts have decided when it says fifty days, that it means fifty working days, yet I remember the first session after the adoption of the Constitution in 1876, there was some trouble in the Legislature as to whether the Constitution meant fifty consecutive or working days, and it provoked a lengthy discussion and finally the Legislature had to decide for itself.

In order that there might be no ambiguity, that the common people may understand what we mean, my amendment provides for inserting the word "working" between "sixty" and "days," and "fifty" and "days."

MR. FOSTER‑The provision in this Constitution in regard to sessions of the Legislature are exactly the same as in the old Constitution. It has been construed by the Supreme Court to mean working days, and I therefore move to lay the amendment on the table.

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

MR. GATES‑I have an amendment.

The Secretary read the amendment as follows:

Amend Section 102 by adding thereto the following words, "within the fourth degree, though one ancester of each generation should be a white person."

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

MR. OATES‑The section as it stands reads: "Section 102, The Legislature shall never pass any law to authorize or legalize any marriage between any white person an a negro or descendant of a negro." The section as reported by the Legislative Committee was drafted by myself. It was originally introduced by the gentleman from Limestone, and I remodeled it with his consent and offered practically the language in our Penal Code. It is amended so that it is left very indefinite. Now as it stands it would apply to a white person and a negro or a descendant of a negro to the fiftieth degree of relationship and would give rise to future trouble in legislation that is now unseen. I propose to make it definite and go one degree further than our criminal code goes. In order to avoid trouble that may arise out of it, we ought to add that to show the degree within which it is prohibited.

THE PRESIDENT‑The question will be on the amendment.

MR. GREER (Calhoun)‑I move to lay the amendment upon the table.


4716                  

OFFICIAL PROCEEDINGS

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

MR. JONES (Montgomery)‑I desire to offer an amendment.

THE PRESIDENT‑The adjourning hour has arrived. The gentleman from Montgomery will be recognized to offer his amendment when the Convention reconvenes.

Thereupon the Convention adjourned.

____________

AFTERNOON SESSION

The Convention met pursuant to adjournment, there being 94 delegates present upon the call of the roll.

THE PRESIDENT‑The question before the Convention is the consideration of the report of the Committee on Order, Consistencv and Harmony. The gentleman from Montgomery (Mr. Jones) had the floor when the Convention adjourned at noon.

MR. REESE‑‑I ask the gentleman to yield for a moment while I introduce a short resolution.

THE PRESIDENT‑The gentleman from Dallas asks unanimous consent to introduce a short resolution. The Chair hears no objection.

The Secretary read the resolution as follows:

Resolved. That when this Convention shall adjourn today at 7 o’clock p.m., it shall stand adjourned to meet at 8 :30 o'clock tonight.

MR. REESE‑-Mr. President--

THE PRESIDENT–A motion to suspend the rules is not debatable.

MR. REESE‑I rise to the point of order that a motion to suspend the rules is not necessary to fix a time for adjournment.

THE  PRESIDENT--The gentleman from Dallas is correct.

MR. REESE‑I Move the adoption of the resolution. and I call for the ayes and noes.

The call was not sustained.

THE PRESIDENT‑The question is on the adoption of the motion that when the Convention adjourns this afternoon it stand adjourned to meet at 8:30 o'clock tonight.

Upon a vote being taken, a division was called for, and a further vote being taken, there were ayes 33; noes 70; and the motion was lost.


4717

CONSTITUTIONAL CONVENTION, 1901

MR. WHITE‑If the gentleman from Montgomery will yield long enough, I will ask consent to introduce an ordinance to be referred. I am instructed to introduce it by the committee.

THE PRESIDENT ‑ The gentleman from Jefferson asks unanimous consent to introduce an ordinance. Is there objection?

Objection was made.

MR. deGRAFFENREID‑I move that the rules be suspended in order that the ordinance may be introduced.

On a vote being taken, the rules were suspended.

The Secretary read the ordinance as follows:

Ordinance No. ‑-, by Mr. White:

AN ORDINANCE

To appropriate $143.75 for the payment of C. B. Brown and the Alabama Printing Company for services performed for the State of Alabama for the use of the Constitutional Convention.

Section 1. Be it ordained by the people of Alabama, in convention assembled, That there be, and is hereby, appropriated out of any moneys in the State Treasury not otherwise appropriated, the sum of $143.75, to be paid the Alabama Printing Company and C. B. Brown for services performed for the State of Alabama for use of this Convention, as follows:

Sec. 2. The State Auditor is hereby directed to draw his warrant on the State Treasurer in favor of C. B. Brown for the sum of $30 for typewriting done by him for the Committee on Order, Consistency and Harmony of the Whole Constitution, and the said Auditor is also directed to draw his warrant on the State Treasurer in favor of the Alabama Printing Company for the sum of $113.75 for printing three hundred copies of the report of said Committee for the use of this Convention.

Referred to the Committee on Schedule, Printing and Incidental Expenses.

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

"Amend Section 68. on page 16 of the Article on Legislative Department, by striking out the period at the end of the section, and inserting in lieu thereof a semi‑colon, and inserting the followng words immediately after the semi-colon, to wit : "Nor prevent the Legislature from increasing or diminishing at any time the allowance to the sheriff or other officers for feeding or transporting and guarding prisoners."


4718                  

OFFICIAL PROCEEDINGS

MR. JONES (Montgomery)‑I shall be very brief in explaining the reasons for that amendment. Section 68, found on page 16, of the Committee's report, provides that the Legislature shall not have power, among other things, to increase or decrease the fees and compensation of such officers during their terms of Office. There is a proviso at the end, that "this section shall not apply to allowances made to Commissioners' Courts, or Boards of Revenue, or to county officers for ex officio services." Now, in the case of Dane v. Smith, 54 Ala.. Dane came into the office at a time when the fee for feeding prisoners was 50 cents. The Legislature reduced it to 40 cents. He asked for a mandamus to compel the payment of 50 cents, and contended it was decreasing his compensation, which was forbidden by the Constitution of 1868, he being an executive officer; and the Supreme Court denied that, and said that under the language of the Constitution of 1868, the compensation therein referred to meant salary, and that the fee for feeding prisoners was in the nature of an allowance or fee. Now the statutes all throughout, and in the last Code, Sec. 4565, refer to "sheriffs' fee and allowances for feeding each prisoner," etc.

It occurred to me if that section were adopted without the proviso, the Legislature would have no power to increase or diminish the compensation of the sheriff during the term for which he was elected. It may he that the cost of provisions might rise so that it would be a great hardship to compel him to feed the prisoners at a certain price. On the other hand, provisions might fall so that it would be to the interest of the State to decrease it.

MR. O’NEAL (Lauderdale)‑Read the present law on the subject.

MR. JONES‑1 haven't got the language of it, but it simply provides the fees for feeding prisoners, guards, etc. I will not take up any further time of the Convention. It seems to me that it ought to be adopted.

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

Upon a vote being taken, the amendment was adopted.

THE PRESIDENT‑The question will be upon the adoption of the Article reported by the Committee, as amended.

MR. HOWZE‑I have an amendment.

The amendment was read as follows:

"Amend Section 74, line 23, by striking out the word "heretofore.' and adding the words `prior to the ratification of the Constitution of 1875.' "

MR. HOWZE‑It sems to me that is necessary, to make this clause intelligible. The idea is just this, that this clause was


4719

CONSTITUTIONAL CONVENTION, 1901

in the Constitution of 1875, and any investment made at that time was excepted, by the use of the words "saving investment heretofore made." and the use of this word "heretofore" in this section applies to the time between the adoption of the Constitution of 1875 and this Constitution. In other words, it will ratify all investments made since that time, making illegal investments legal by using the phraseology that appears in this Constitution now, and it seems to me that it ought to be corrected. There are probably a number of cases in the courts, there have been some to my certain knowledge, and if this language is permitted to remain as it is, it will certainly validate illegal acts of trustees, in investing in these stocks since the Constitution of 1875. It ought to be "saving investments made since the adoption or ratification of the Constitution of 1875." Unless that is clone, it will certainly have the effect

MR. deGRAFFENREID‑Won't this mean the date of the ratification of the Constitution, as it is written?

MR. HOWZE‑It does not say so. It says "investments heretofore made."

MR. deGRAFFENREID‑Does this instrument have any effect whatever until its ratification?

MR. HOWZE‑Not at all; but supposing investments were made prior to this, between the ratification of the Constitution of 1875 and now ?

MR. deGRAFFENREID‑Would not that be governed by the present Constitution tinder which we now live?

MR. HOWZE‑It would, unless you validate it by the phraesology of this act.

THE PRESIDENT‑The question is on the amendment offered by the gentleman from Jefferson.

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

Upon a vote being taken, a division was called for, and, by a vote of fifty‑six ayes and thirty‑eight noes, the motion to table the amendment prevailed.

MR. O'NEAL (Lauderdale)‑I move the previous question on the Article as reported.

MR. COLEMAN (Greene)‑Will you withdraw that motion ? I have an amendment that is necessary.

MR. WEATHERLY‑I would like to ask the gentleman from Lauderdale to withdraw his motion.


4720                  

OFFICIAL PROCEEDINGS

MR. O'NEAL‑Certainly, I will withdraw it if there are any more amendments.

MR. WEATHERLY‑I simply want to make a suggestion to the chairman of the committee. I have conferred with him about it. It is as to one word in Section 74, and it is to strike out the word "other" in line 22, page 17. I think by striking that word out, it gives to the word "trustees" a larger meaning and a broader scope than otherwise, and will make the section much more effective, and by permission of the chairman I would like to ask unanimous consent to have that word stricken out. I would like to add if the committee consent to it, the words "of any character" after the word "trustees."

MR. PILLANS‑Are not executors, administrators and guardians trustees of express trusts?

MR. WEATHERLY‑They are not strictly trustees.

MR. PILLANS‑They have been so held by our Supreme Court.

MR. WEATHERLY‑It has been held they are not trustees.  It was for that reason I made this suggestion.

MR. PILLANS‑I think you are mistaken about that.

THE PRESIDENT‑There seems to be no response upon the part of the committee. The question will be upon the amendment offered by the gentleman from Jefferson to strike out the word "other."

Upon a vote being taken, the amendment offered by the gentleman from Jefferson was lost.

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

The amendment was read as follows:

"Move to strike out Section 110 on page 25 of the report of the Committee on Legislative Department."

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

MR. COLEMAN (Greene)‑Mr. President, it seems to me that Section 110 ought not to be put in there. It seems to me that Section 110 in the Constitution is wholly unnecessary. It might embarrass the courts hereafter. General laws, local laws and special laws have all beeen defined by our Supreme Court and they have a fixed definition without any arbitrary definition or standard fixed in the Constitution, and it seems to me it would be better to let the Constitution alone as to definitions which have lready been adjudicated. And I would call the attention of the


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CONSTITUTIONAL CONVENTION, 1901

committee to the fact that this is the first time the word "private" has been introduced into the Constitution of Alabama. Heretofore it has been "general, special and local." All these words have definitions fixed by the decisions of the courts. "Private" in some States has been held to mean the same thing as "local," but it is the introduction of a word that will have to be construed by our Supreme Court before we will know exactly what meaning will be given to it. If any one can show any reason why the Constitution should declare what is a general law, or a public law, or a private law, or a special law, of course, I would not have any objection to make. The fact is that the Constitution is so good and so well framed all the way through, that we ought to be very careful how we touch it, and it is only where you vote to fix laws that will run a plow share through the decisions of the court thatI care to make a statement at all.

MR. deGRAFFENRIII,D‑This is not the work of this cominittee. This is the work that came to the committee from the Convention.

MR. COLEMAN‑‑Of course, I presume that. I did not presume the committee put this in their. I do not know where I was when this was introduced. A man cannot be here all the time, and I was not here then, or I would have called attention to it, but that is no reason why if it should not be here it ought not to becorrected. I do not want any delegate in this Convention to think it is indispensable or would be any grievance to me. The decisions already declare what general, public and special laws are, and there are decisions in other courts where they have the word "private," to which reference can be made.

The word "private" cannot be found in our Constitution now,It is a new term, and all these terms have legal definitions. I remember in a case before me it took this court four months, not all the time, but we were four months coming to a decision as to how to save these cities from the effect of the local law, and the general law in the Constitution, the general law having the same provision that this Constitution has that the Legislature shall not grant to any municipality the power to impose a special privilege tax contrary to the general law of the State. I do not pretend to say what will arise or whether anything special will arise under it, but we need not embarrass the courts, and unless it is necessary why should it be here? If any man can say it is necessary to put it in the Constitution, I will resume my seat without a word. If any member who has investigated this question can show where it is necessary to be in there I have not a word to say. It is only out of great precaution, to prevent any embarrassing questions that I make the motion to strike it out of the section, and just let the court proceed as it has heretofore. I make that motion for your consideration.


4722                  

OFFICIAL PROCEEDINGS

MR. BOONE‑‑It seems to me that the language of Section 110 is very plain. There is no ambiguity about it. The courts could not be embarrassed in any way in considering it, and as this Convention adopted this whole section on Local Legislation after mature consideration, and three or four or five days' debate upon it, I move to lay the amendment on the table.

Upon a vote being taken, the amendment was tabled.

MR. O'NEAL,‑‑‑I renew my motion for the previous question on the adoption of the Article.

MR. JONES (Wilcox)‑Withdraw that motion.

MR. O'NEAL‑I withdraw it with the understanding that the gentleman will renew it.

MR. SPRAGINS–I wish to make a correction. In Section 15, page 23, we ash unanimous consent to change the word "adoption'" in the third line, to the word "ratification."

There being no objection, it was so ordered.

MR. SPRAGINS‑Can page 24, Section 31, the Committee desires to change the word "effect” to "affect," in the nineteenth line.

There was no objection and the amendment was ordered.

MR. SPRAGINS–On page 25, line 7, Section 106, change the word "effected" to "affected.”

There being no objection, the amendment was ordered.

MR. JONES (Wilcox)‑I have an amendment.

"Add at the end of Subdivision 21, line 3, page 24, `local legislation and laws heretofore passed by the Legislature increasing the jurisdiction of the justices of the Peace in Wilcox County, are hereby repealed.' “

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

Mr. Samford (Pike) sought recognition.

THE PRESIDENT‑‑‑The gentleman from Wilcox has the floor. Does the gentleman yield?

MR. JONES‑Certainly.

MR. SANFORD‑Won't you consent to strike out the word "Wilcox" and let it apply to the whole State?

MR. JONES (Wilcox)‑I will state I did not know but what there would be some objection to it on the part of other delegates on the floor.


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CONSTITUTIONAL CONVENTION, 1901

MR. SAMFORD (Pike)‑‑‑It would be a public benefaction.

MR. JONES (Wilcox)‑‑‑Mr. President, in Wilcox County, we have a county court that has jurisdiction of all misdemeanors committed in that county, and it has two jury terms of the court each year. About twenty years ago, a gentleman who was a justice of the peace represented Wilcox as a member of the Lower House of the General Assembly, and he had a bill passed giving justice:, of the peace in Wilcox County concurrent jurisdiction with the County Court in all cases of misdemeanor. The gentleman who had the law passed was a capable and efficient justice of the peace and if all the justices in the county had been his equal, it is possible there would have been no serious objection to the law, but it has not given satisfaction, and it should be repealed, and the justices of the peace have the carne fees that justices of the peace have in other counties of the State.

MR. WALKER‑I would like to ask the gentleman why he did not get it repealed by the Legislature, and not come to the Constitutional Convention?

MR. JONES‑I will say that I am aware it is a matter that could be attended to by the Legislature, but it has not been done.  A great many members of the Legislature think that the cat ought to be belted, but they are not willing to bell the cat. I am willing to bell the cat and take the responsibility, because I know the feeling of my people at home. If it took up any time, if it didanybody in the State any wrong, I would not ask it. But it is the wish of delegates on the floor of the Convention from my county to have this enacted, and it can do no other part of the State any harm. I have seen the Committee and they say they have no objection, and say they will leave it to the delegates on this floor, and I ask that it be passed, and I will take up no time in discussing it.

MR. WALKER‑I do not like to interfere with local desires. but it does not seem to me it ought to go into the Constitution and I move to lay the amendment on the table.

Upon a vote being taken, the motion prevailed.

MR O’NEAL‑I move the previous question on the Article.

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

MR. O'NEAL‑‑‑I will not yield.

Upon a vote being taken, the motion was called for, and, by a further vote of 57 ayes and 42 noes, the previous question was ordered.


4724                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑The question is on the adoption of the Article as reported by the Committee.

Upon a vote being taken, the Article was adopted.

THE PRESIDENT‑The next order will be the reading of Article V.

MR. WHITE‑Before reading that, I desire to submit a supplemental report.

The report was read as follows:

Mr. President, your Committee on Order and Harmony of the Constitution, for the reasons hereinbelow stated, have instructed me to make the following supplemental report: The provisions that sheriffs shall hold their office for a term of four years, together with the fact that the sheriffs who are elected in the year 1900, would without some amendments, put the election of sheriffs at a time other than that at which all other county officers are elected. The committee have accordingly inserted at the end of the first sentence of Section 138 the following proviso:

“Provided, that sheriffs elected in the near 1904 shall hold their offices for a term of six years unless sooner removed.

"Respectfully submitted,

(Signed.)                     Frank S. White,

Chairman of Committee."

THE PRESIDENT‑The regular order will be the reading of the report of the Committee on Harmony, Article V.

Mr. Reese took the chair.

The Secretary read Article V as follows:

ARTICLE V.

Executive Department.

112. The Executive Department shall consist of a Governor, Lieutenant Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, Commissioner of Agriculture and Industries and a sheriff for each county.

113. The supreme executive power of the State shall be vested in a chief magistrate, who shall be styled "The Governor of the State of Alabama."

114. The Governor, Lieutenant Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education and Commissioner of Agriculture and Industries, shall be elected by the qualified electors of the State at the same time and places appointed for


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CONSTITUTIONAL CONVENTION, 1901

the election of members of the legislature in the year nineteen hundred and two, and in every fourth year thereafter.

115. The returns of every election for Governor, Lieutenant Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education and Commissioner of Agriculture and Industries shall be sealed tip and transmitted by the returning officers to the seat of government, directed to the Speaker of the House of Representatives, who shall, during the first week of the session to which such returns shall be made, open and publish them in the presence of loth Houses of the legislature in joint convention; but the Speaker's duty and the duty of the joint convention shall be purely ministerial. The result of the election shall be ascertained and declared by the Speaker front the face of the return; without delay. The person having the highest number of votes for any time of said offices shall be declared duly elected; but if two or more persons shall have an equal and the highest number of votes for the same office, the legislature by joint vote, without delay, shall choose one of said persons for said office. contested elections for Governor, Lieutenant Governor, Attorney General. State Auditor, Secretary of State, State Treasurer, Superintendent of Education and Commissioner of Agriculture and Industries, shall be determined by both houses of the legislature in such manner as may he prescribed by law.

116. The Governor, Lieutenant Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education and Commissioner of Agriculture and Industries elected after the ratification of this Constitution, shall hold their respective offices for the term of four years from the first Monday after the second Tuesday in January next, succeeding their election, and until their successors shall be elected and qualified. After the first election under this Constitution no one of said officers shall be eligible as his own successor; and the Governor shall not be eligible to election or appointment to any office under this State or to the Senate of the United States, during his term and within one year after the expiration thereof.

117. The Governor and Lieutenant Governor shall each be at least thirty years of age when elected, and shall have been citizens of the United States ten years and resident citizens of this State at least seven years next before the date of their election. The Lieutenant Governor shall be ex‑officio President of the Senate, but shall have no right to vote except in the event of a tie.

118. The Governor, Lieutenant Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education and Commissioner of Agriculture and Industries shall receive compensation to be fixed by law, which shall not be increased or diminished during the term for which they shall have been elected, and shall except the Lieutenant Governor, reside at the State capital during the time they continue in office, except during epidemics. The compensation of the Lieutenant Governor shall be the same as that received by the Speaker of the House, except while


4726                  

OFFICIAL PROCEEDINGS

serving as Governor, during which time his compensation shall be the same as that allowed the Governor.

119. If the legislature, at the session next after the ratification of this Constitution, shall enact a law increasing the salary of the Governor, such increase shall become effective and apply to the first Governor elected after the ratification of this Constitution, if the legislature shall so determine.

120. The Governor shall take care that the laws be faithfully executed.

121. The Governor may require information in writing, under oath, from the officers of the Executive Department, named in this article, or created by statute, on any subject relating to the duties of their respective offices; and he may at any time require information in writing, under oath, from all officers and managers of State institutions, upon any subject relating to the condition. management and expenses of their respective offices and institutions. Any such officer or manager who makes a wilfully false report or fails without sufficient excuse to make the required report on demand, is guilty of an impeachable offense.

122. The Governor may, by proclamation, on extraordinary occasion convene the Legislature at the seat of government, or at a different place if, since their last adjournment, that shall have become dangerous from an enemy, insurrection, or other lawless outbreak, or from any infectious or contagious disease; and lie shall state specifically in such proclamation each natter concerning which the action of that body is deemed necessary.

123. The Governor shall, from time to time, give to the Legislature information of the state of the government, and recommend for its consideration such measures as he may deem expedient: and at the commencement of each regular session of the Legislature, and at the close of his term of office, he shall give information by written message of the condition of the State; and he shall account to the Legislature as may be prescribed by law, for all moneys received and paid out by him or by his order; and at the commencement of each regular session he shall present to the Legislature estimates of the amount of money required to be raised by taxation for all purposes.

124. The governor shall have power to remit fines and forfeiture under such rules and regulations as may be prescribed by law; and, after conviction. to grant reprives, paroles, commutations of sentence and pardons. except in cases of impeachment. The Attorney General, Secretary of State, and State Auditor shall constitute a Board of Pardons, who shall meet on the call of the Governor, and before whom shall be laid all recommendations or petitions for pardon. commutation or parole, in cases of felony: and the board shall hear them in open session and give their opinion thereon in writing to the Governor, after which, or on the failure of the board toadvise for more than sixty days, the Governor may grant or refuse the commutation, parole or pardon, as to him seems best for the public interest.  He shall communicate to the Legislature at each session every remission of


4727

CONSTITUTIONAL CONVENTION, 1901

fines and forfeitures, and every reprieve, commutation, parole or pardon, with his reasons therefor, and the opinion of the Board of Pardons in each case required to be referred, stating the name and crime of the convict, the sentence, its date, and the date of reprieve, commutation, parole or pardon.  Pardons in cases of felony and other offenses involving moral turpitude shall not relieve from civil and political disabilities, unless approved by the Board of Pardons and specifically expressed in the pardon.

125. Every bill which shall have passed both houses of the Legislature, except as otherwise provided in this Constitution, shall be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon the journal and proceed to reconsider it. If the Governor's message proposes no amendment which would remove his objections to the bill, the house in which the bill originated may proceed to reconsider, and if a majority of the whole number elected to that house vote for the passage of the bill, it shall be sent to the other House, which shall in like manner reconsider, and if a majority of the whole number elected to that house vote for the passage of the bill, the same shall become a law, notwithstanding the Governor's veto. If the Governor's message proposes amendment which would remove his objections, the house to which it is sent may so amend the bill, and send it with the Governor's message to the other house, which may adopt, but cannot amend, said amendment; and both houses concurring in the amendment, the bill shall again be sent to the Governor and acted on by him as other bills. If the house to which the bill is returned refuses to make such amendment, it shall proceed to reconsider; and if a majority of the whole number elected to that house shall vote for the passage of the bill, it shall be sent with the objections to the other house, by which it shall likewise be reconsidered, and if approved by a majority of the whole number elected to that house, it shall become a law. If the house to which the bill is returned makes the amendment and the other house declines to pass the same, the house shall proceed to reconsider, as though the bill had originated therein, and such proceedings shall be taken thereon as above provided. In every such case, the vote of both houses shall be determined by yeas and nays and the names of the members voting for or against the bill shall be entered upon the journals of each house respectively. If any bill shall not be returned by the Governor, within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent the return, in which case it shall not be a law, but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after reassembling, otherwise it shall become a law; but bills presented to the Governor within five days before the final adjournment of the Legislature may be approved by the Governor at any time within ten days after such adjournment, and if approved and deposited with the Secretary of State within that time shall become law. Every vote, order, or resolution to which concurrence of both houses may be necessary, except on questions of adjournment and the bringing on of elections by the


4728                  

OFFICIAL PROCEEDINGS

two houses, and amending this Constitution, shall be presented to the Governor; and, before the same shall take effect, be approved by him; or being disapproved, shall be repassed by both houses according to the rules and limitations prescribed in the case of a bill.

126. The Governor shall have power to approve or disapprove any item or items of any appropriation bill embracing distinct items, and the part or parts of the bill approved shall be the law, and the bill approved shall be the law, and the item or items disapproved shall be void, unless repassed ascording to the rules and limitations prescribed for the passage of bills over the executive veto; and he shall in writing state specifically the item or items he disapproves, setting the same out in full in fits message, but in such case the enrolled bill shall not be returned with the Governor's objection.

127. Its case of the Govertior's removal front office. death or resignation the  Lieutenant‑Governor shall become Governor. If both the Governor and Lieutenant Governor be removed front office, die, or reign, more than sixty days prior tot the next general election at which any State officers are to be elected, a Governor and Lieutenant‑Governor shall be elected at such election for the unexpired terms; and in the event of a vacancy in the office, caused by the removal from office, death or resignation of the Governor and the Lieutenant‑Governor, pending such vacancy and until their successors shall be elected and qualified, and office of Governor shall be held and administered by either the President pro tem. of the Senate, Speaker of the House of Representatives. Attorney‑General, State Auditor, Secretary of State, or State Treasurer, in the order herein named. In case of the impeachment of the Governor, his absence from the State for more than twenty days, it itsoundness of mind, or other disability, the power and authority of the office shall, until the Governor is acquitted, returns to the State, or is restored to his mind, or relieved from other disability, devolve in the order herein named upon the Lieutenant‑Governor, President pro tem, of the Senate, Speaker of the House of Representatives, Attorney‑General, State Auditor, Secretary of State and State Treasurer. If any of these officers be under any of the disabilities herein specified, the office of Governor shall be administered in the order named by such of these officers as may be free from such disability. If the Governor shall be absent from the State over twenty days, the Secretary of State shall notify the Lieutenant‑Governor who shall enter upon the duties of Governor; if both the Governor and Lieutenant‑Governor shall be absent from the State over twenty days. The Secretary of State shall notify the President pro tem. of the Senate, who shall enter upon the duties of Governor, and so on, in case of such absence he shall notify each of the other officers named in their order, who shall discharge the duties of the office: until the Governor or other officer entitled to administer the office in succession to the Governor returns. If the Governor‑elect fails or refuses from any cause to qualify, the Lieutenant-Governor‑elect shall qualify and exercise the duties of Governor until the Governor‑elect qualifies; and, its the event both the Governor‑elect and the Lieutenant‑Governor‑elect from any cause fail to qualify, the President pro tem. of the Senate, Speaker of the House of Representatives, the Attorney‑


4729

CONSTITUTIONAL CONVENTION, 1901

General, State Auditor, Secretary of State and State Treasurer shall in like manner, in the order named, administer the office, until the Governor‑elect or Lieutenant‑Governor‑elect qualifies.

128. If the Governor or other officer administering the office shall appear to be of unsound mind, it shall be the duty of the Supreme Court of Alabama, at any special term, which it is hereby authorized to call for that purpose, upon request in writing verified by their affidavits, of any two of the officers named in Section 127 of this Constitution, not next in succession to the office of Governor, to ascertain the mental condition of the Governor or other officer administering the office, and if he is adjudged to be of unsound mind, to so decree, a copy of which degree, duly certified, shall be filed in the office of the Secretary of State; and in the event of such adjudication, it shall be the duty of the officer next in succession to perform the duties of the office until the Governor or other officer administering tile office is restored to his mind. If the incumbent denies that the Governor or other person entitled to administer the office has been restored to his mind, the Supreme Court, at the instance of any officer named in Section 127 of this Constitution, shall ascertain the truth concerning the same, and if the officer has been restored to his mind, shall so adjudge and file a duly certified copy of its decree with the Secretary of State; and in the event of such adjudication, the office shall be restored to him. The Supreme Court shall prescribe the method of taking testimony and the rules of practice in such proceedings, which shall include a provision for the service of notice of such proceedings on the Governor or person acting as Govrenor.

129. The Lieutenant‑Governor, President pro tem. of the Senate, Speaker of the House. Attorney‑General, State Auditor, Secretary of State or State Treasurer, while administering the office of Governor, shall receive like compensation as that prescribed by law for the Governor, and no other.

130. No person shall at the same time hold the office of Governor and any other office, civil or military, under this State or the United States or any other State Government, except as otherwise provided in this Constitution.

131.     The Governor shall be commander‑in‑chief of the militia and volunteer forces of this State, except when they shall be called into the service of the United States, and he may call out the same to execute the laws, suppress insurrection and repel invasion, but need not command in person unless directed to do so by resolution of the legislature; and when acting in the service of the United States, he shall appoint his staff, and the legislature shall fix his rank.

132. No person shall be eligible to the office of Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education or Commissioner of Agriculture and industries unless he shall have been a citizen of the United States at least seven years, and shall have resided in this State at least five years next preceding his election, and shall be at least twenty‑five  years old when elected.


4730                  

OFFICIAL PROCEEDINGS

133. There shall be a seal of State which shall be used officially by the Governor, and the seal now in use shall continue to be used until another shall have been adopted by the legislature. The seal shall be called "The Great Seal of the State of Alabama."

134. The Secretary of State shall be the custodian of the Great Seal of the State, and shall authenticate therewith all official acts of the Governor, except his approval of laws, resolutions, appointments to office and administrative orders. He shall keep a register for the official acts of the Governor, and when necessary shall attest them and lay copies of the same, together with copies of all papers relative thereto, before either house of the legislature when required to do so, and shall perform such other duties as may be prescribed by law.

135. All grants and commissions shall be issued in the name and by the authority of the State of Alabama, sealed with tile Great Seal of the State, signed by the Governor and countersigned by the Secretary of State.

136. Should the office of Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, or Commissioner of Agriculture and Industries become vacant from any cause, the Governor shall fill such vacancy until the disability is removed or a successor elected and qualified. In case any of said officers shall become of unsound mind, such soundness shall be ascertained by the Supreme Court upon the suggestion of the Governor.

137. The Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, and Commissioner of Agriculture and Industries shall perform such duties as may be prescribed by law. The State Treasurer and State Auditor shall every year, at a time fixed by the legislature, make a full and complete report to the Governor, showing the receipts and disbursements of every character, all claims audited and paid out, by items and all taxes and revenues collected and paid into the treasury, and the sources thereof. They shall make reports oftener upon any matters pertaining to their offices if required by the Governor or the legislature. The Attorney General, State Auditor, Secretary of State, State Treasurer and Commissioner of Agriculture and Industries shall not receive to their use any fees, costs, perquisites of office or other compensation than the salaries prescribed by law, and all fees that may be payable for any services performed by such officers shall be at once paid into the State Treasury.

138. A sheriff shall be elected in each County by the qualified electors thereof who shall hold office for a terns of four years unless sooner removed, and he shall be ineligible to such office as his own successor: provided that the sheriffs elected in the year nineteen hundred and four shall hold office for a term of six years unless sooner removed. Whenever any prisoner is taken from jail or from the custody of the sheriff or his deputy, and put to death, or suffers grievous bodily harm, owing to the neglect, connivance, cowardice or other grave fault of the sheriff, such sheriff may be impeached under Section 174 of this Constitution. If the sheriff be impeached and


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CONSTITUTIONAL CONVENTION, 1901

thereupon convicted, he shall not be eligible to hold any office in this State during the time for which he had been elected to serve as sheriff.

Mr. Reese here took the chair.

MR. JONES (Montgomery)‑ I have an amendment.

THE PRESIDENT PRO TEM–The Secretary will read the amendment offered by the chairman of the Committee on the Executive Department.

The amendment was read as follows:

"Amend Section 138 of the article on the Executive Department, as reported by the Committee on the Order, Consistency and Harmony of the Constitution, as follows: strike out the words and he shall be ineligible to such office as his own successor,' in lines 18 and 19, and insert in lien thereof the following words, to wit. 'who may succeed himself, but shall not hold such office for more than two of any three consecutive terms.' Insert after the word `Constitution' in the 22nd line on page 35 of the printed report and before the word `if' therein, the words ‘and the Governor when satisfied, after hearing the Sheriff, that he should be impeached, may suspend him from office until the impeachment proceedings are terminated.'

"Amend further by striking out the period after the word 'Constitution' and inserting a semi‑colon in lieu of the period.' "

MR. JONES (Montgomery)‑That amendment is in substance the ordinance which was offered by the gentleman from Walker (Mr. Long) and reported favorably by the Committee on Executive Department, and which is now on the calendar. In short, it restores the status of the Sheriffs to what it was before the Convention reconsidered that matter. There were two propositions which seemingly were dove‑tailed one into the other, and one being reconsidered, the friends of that measure reconsidered the other.

I shall not take up the time of the Convention with any lengthy speech as to the merits of this measure. Many of us who support it believe that a great principle is gained when the executive is expowered in the specific case here to suspend the Sheriff if he thinks him guilty of such misconduct that he orders him impeached, and they also believe that in view of this stronger power and the extraordinary danger that the Sheriff sometimes incurs, that it would be wise and just to allow him to succeed himself, especially if he is subject to this power of suspension. I do not propose to take up the time of the Convention except to say that I have offered that in accordance with the report of the Committee on Executive Department, to which the ordinance was referred which contains the substance of that amendment, because after


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OFFICIAL PROCEEDINGS

consultation, a great many members of this Convention believe that would be the wisest and safest solution of the question.

MR. ROGERS (Sumter)–I move the adoption of the amendment offered by the gentleman from Montgomery.

THE PRESIDENT PRO TEM.–It is moved that the amendment offered by the gentleman from Montgomery be adopted.

MR. OATES–I am opposed to that amendment, and I propose to state briefly to this Convention why I am opposed to it.  In the first place, it is unprecedented in this State.  No constitution that Alabama has ever had in the eighty-two years of her existence allowed any sheriff to succeed himself, and none of them except that of 1875 allowed him even to be the deputy of his successor, and I believe that that was unwise.  Allowing the Sheriff to become the deputy enables them in some cases to keep the office in the family, to popularize one of the deputies and elect him Sheriff, and then he takes the ex-Sheriff as his deputy, and in that way the office has been practically in the same family, in some counties, term after term.  In this State where we have so many men well qualified to fill office, it is better that the office be passed around, as I have heard it said that the bottle be passed around, and let other men who are worthy have a showing at it once in a while

MR ROGERS (Sumter)–If that theory is good, why not apply it to the Probate Judge, the Clerk of court, the Tax Collector and Tax Assessor?

MR. OATES–I am not called on to pass on that question because my friend, the delegate from Sumter, has not offered such a proposition.  If you did, you would hear from me on that line.

The President here resumed the chair.

MR. RODGERS–You are passing on the Sheriff, why not pass on these others officers.

MR. OATES–That is not up.  Your are on a side issue now, one that you have not presented.. There is no officer in any county, unless possibly the Probate Judge, and I do not say it of him, who has such power to use partiality as the Sheriff.  The Sheriff is not only one of the three officials to draw the jury, but wherever additional jurors are to be summoned he is the sole man to do that under the order of the court.  He goes and selects them.

He can show favors to them in many, many ways.  He is the jailer, or can appoint whom he pleases as jailer.  He can show favors in the execution of processes.  Under our law, when an execution is placed in his hands against a defendant, so that he has the money in court by the succeeding term of the court, he cannot be said not to have sufficiently complied with his obligation


4733

CONSTITUTIONAL CONVENTION, 1901

so that he can be removed. He can go and levy an execution at once on the property of a defendant or hold it up and give him several months indulgence, and in that way show favors. He is an officer that can show favors all around and upon every hand, and, sir, those and others. For instance, he is even the chief officer in elections. He is the chief returning officer, and he has charge of the boxes, he and his deputies everywhere, and he can show favors so as to re‑elect himself in nearly every instance.

Were our forefathers fools, the men who made the Constitution of 1819 and every Constitution since? I think not. They certainly had good reason for making this officer ineligible to succeed himself. and they also put it in that he should not be the deputy of his successor. That part was left out in the Constitution of 1875 for the first time, the first departure from a rule well established.

Wise men made those Constitutions. They had good reasons for their action. Why should we make that departure now? It seems to me that we ought not. There has been complaint about the provision alluded to by my distinguished friend and colleague from Montgomery (Mr. Jones) and now they have gotten out of that the power of the Governor to suspend, but still the impeachment goes before the Supreme Court, which is an improvement and as it stands, while the sheriff can not succeed himself, he can be a deputy. Is that not enough for him? That is what he has under the present Constitution. It seems to me to be a departure without warrant ; it is a dangerous precedent. It may be said by some gentleman--in fact, I have heard it said by delegates, that in some States where the sheriff succeeds himself, it is all well, but it does not come from any gentleman who has had experience in those States where that is the practice. Some gentleman may have dropped down in a county car visited a court here and there where that happened to be the case: where the sheriff was all exceedingly popular man, but this would lead to abuses. It is an untried experiment in this State and I hope it will not be resorted to in this instance. Why, sir, I am informed (I have seen none of them) that the sheriffs, or a large number of them , are in session here in this city, looking after their interests.  It has got so organizations of officers are formed in order to dictate to the Legislature, and they are dictating to this Convention.  Remember, delegates, that your constituents are the people, and if you make this departure, and this innovation, when it comes home to the people and they have a sad experience, you and I are responsible for it.

MR. HEFLIN (Chambers)‑Does not the old Constitution guarantee the right to all citizens to be heard by petition?

MR. OATES‑I have not seen any petition. I would not deny anybody the right of petition.


4734                  

OFFICIAL PROCEEDINGS

MR. HEFLIN‑Don't you think that when they are being heard through their organization, by delegates on this floor, that they have a right to be heard?

MR. GATES‑I have not seen a petition, and I do not know what any other delegate has seen. Unless my friend represents them--

MR. HEFLIN‑I think I represent them in part.

MR. OATES‑I represent them just like I represent other citizens of the State. Because a man is an officer, in my estimation, he is not entitled to preference over anybody else in the making of the fundamental law. The people are all interested, and we are making offices and providing what they shall be and who shall fill them, and for what length of time. Why, sir, men have always been found very anxious to have these offices, and perfectly capable men. I believe, as a rule, the sheriffs are efficient. I have heard no complaint until recently of this thing of a successor. I canvassed the State in favor of this Convention, and I venture, made as many speeches as any delegate on this floor. I made seventeen in different parts of the State, and I never heard the question agitated of this change that the sheriffs were to be made their own successors, not at all. Other questions were discussed and discussed fully. I might go on and talk upon this and give reasons, but every man knows, and out of the large number of lawyers here, delegates who have had experience in the court house and seen the sheriff's work, know  what an influential man he is, especially if he is at all shrewd, and I think it a dangerous departure, and hope this Convention will not adopt this amendment.

MR. LONG (Walker)‑In reply to the distinguished gentleman from Montgomery (Mr. Oates), I wish to state that it is not an argument pro or con to say that it is not in the old Constitution. There is very little in the old Constitution that is contained in this new one. It is no argument to say that the State of Alabama has never recognized the right of the sheriff to be his own successor. A good reason cannot be given why the sheriff should not be his own successor.

A gentleman, possibly the oldest delegate upon this floor, told me that when before the war it was done, no doubt there was a cause for its being done, because the sheriffs used to handle hundreds and hundreds of thousands of dollars in some of the counties.  That is not true any longer. At that time, a man might run an account with his merchant and was only required to settle once a year. This provision was adopted so the sheriff could wind up his business every four years. Business has progressed to such an extent since that time that the sheriff, with an execution in his


4735

CONSTITUTIONAL CONVENTION, 1901

hands, is looked after, and the men interested in that execution look after the sheriff closer, and he is required to make settlements two or three times each year, and a man who trades with his merchant and does not pay for his good in less than thirty days----

MR. SANFORD (Montgomery)‑Why should sheriffs be the only executive officers allowed to succeed themselves?

MR. LONG‑I am not here to answer that, but I am here to state that the sheriffs in Alabama have never been allowed to succeed themselves, and the other executive officers of this State have up to this time‑-every one of them.

MR. OATES‑When you limit the Governor, the Chief Executive officer, to four years, why should you give the sheriff the right to succeed himself?

MR. LONG‑I am not here to atone for all the wrongs done.  I think every officer in the State of Alabama should be allowed to succeed himself. I have lived in Georgia, where one Sheriff, in the County of Carroll has been sheriff for over twenty years, and he has always been an efficient officer, and he has had a great deal to do. the gentleman from Montgomery to the contrary notwithstanding, and there is no encouragement for a, sheriff of that kind to be his own successor to do his duty.

Why should we say to the sheriff you shall not be eligible as your own successor no matter how well you perform your duty, no matter if every man in the county wants you to be sheriff again? No matter if vote put to flight a thousand mobs, yet sir, you have got to content yourself, as the gentleman from Montgomery says, with being a little deputy to another sheriff. There call be no good reason given why the sheriff should not be his own successor. I hope this amendment, introduced by the distinguished Chairman of the Committee on the Executive Department, will be adopted by this Convention. It is right. It will make the Constitution stronger, because it is a step in the right direction. The sheriff should be allowed to succeed himself. You must remember that we do not legislate him into office. If the sheriff should run again, the people are not bound to support him, and if he has not made a good officer they will not do it.

Now, as far as the sheriff showing favors is concerned, there is not a man in the State that can show as many favors to as many men as the tax collector, yet he is allowed to succeed himself as often as he pleases. The tax assessor can do the same thing, yet you deny the sheriff that very right. Why, the tax assessor and the tax collector and even the tax commissioners can show thousands of favors where the sheriff can show one. Let us look at this question right, and this is a question which is a compromise that comes up here.


4736      

OFFICIAL PROCEEDINGS

The Sheriffs of this State are not down here, while some of them are here, they are not here in executive session. They are here simply asking justice at the hands of this Convention, and I dare say that the sheriffs of this State would like to have the privilege of succeeding themselves, providing the people of their respective counties are in favor of re‑electing them, and I hope this Convention will adopt this amendment. It is a compromise, but satisfactory to the men on this floor who represent the sheriffs.  A man has to be a good man or he cannot he sheriff.

MR. WHITE —What was the compromise.

MR. SANFORD (Montgomery) ‑Who made the compromise?

MR. LONG--‑A great many gentlemen here. You distinguished gentlemen are not well enough posted to be informed may be. (Laughter). If gentlemen were familiar with the work and knew as much as you should, you would know a whole lot of us agreed to it. It is right and we agreed to it. We do not have to let you into every little caucus that goes on here on this floor. (Laughter.) We knew you were against us an did not invite you in.

MR. COLEMAN (Greene)‑‑‑‑Mr. President and delegates to the Convention, it is strange that at this stage of our proceedings, we should have this question up before us again, and stranger still, to have heard the speech of the gentleman who last addressed you, when only a week or ten days ago, when the proposition was made here to impeach the sheriffs and to suspend them during impeachment, he raised the hue and cry here that the sheriffs of this State, if that was put into the Constitution, would defeat it, that they would rise up en masse against it. Now we hear the same man advocate the adoption of the very identical resolution he denounced in such terms.

And, Mr. President, there has been a singular change of face here. When the Executive Committee first reported, they reported the suspension of the sheriff during the impeachment, but only gave him one term, and no one in this Convention raise an opposing voice to that proposition as to one terms, but only as to the impeachment.  Now it seems it has come to this, that the sheriffs are willing to be removed before impeachment if you allow them two terms, and that is the compromise to be made with the people of Alabama. The Chairman of the Committee stated the other day, in arguing this question that we should not be awed by the sheriffs; that we should do our duty to the people of Alabama  irrespective of the mutterings of the sheriffs, and I call upon him to carry out the same views, that he favored when he first announced the proposition here that the sheriff should not succeed himself. There is not a sheriff in Alabama, who when he was a candidate for office expected to succeed himself.  He


4737

CONSTITUTIONAL CONVENTION, 1901

knew when he was running for office that he would be allowed only one term, and this is an after‑thought to take advantage of the presence of this Convention here to engraft another terns on his present term.

But, if the sheriffs are elected in 1904, that is six years and he holds ten years, four now and six years later. I say it is wrong to the people of Alabama. I believe that ee have the best sheriff in Alabama in my county. He is not only a fine officer, but he is my friend personally, politically and all the way through, but he has been either sheriff of that county or chief deputy for over fifteen years, and at the last election he got more votes than all the balance of them put together in the primary election, and he will continue to do it if he wants the office. It is wrong in, principle, and it is an innovation that the people did not expect of us at the time of our election at this Convention. Who, upon the stump, canvassing for this Convention here, ever mooted the question that the sheriffs were to double their terms? What delegate here made such an announcement? And where are the men who assisted the sheriffs to run in order that they might be candidates themselves the next time?

Four or five men perhaps had other arrangements already made, to become candidates hereafter, and yet this Convention is expected to come in and cut their all our of their expectations and arrangements made under the existing laws. But what is more surprising than anything else is this vascillation at this period in our proceedings. This question was settled here, as I thought permanently, and we should not introduce into our Constitution anything that would give rise to such opposition as this, and certainly we should not do it under the force referred to by the delegate from Montgomery (Mr. Oates) who has just spoken. I think it is wrong in principle, and I hope it will not be adopted, and while I do not wish to cut off debate. I move to lay the amendment upon the table.

MR. HEFLIN (Chambers)‑I ask the gentleman front Greene to withdraw his motion to table the amendment.

There were loud expressions of dissent.

THE PRESIDENT‑‑‑The motion is that the amendment be laid upon the table.

MR. HEFLIN‑‑‑I ask the gentleman from Greene if he will withdraw it I will renew it at the conclusion of my speech if he will allow me.

THE PRESIDENT‑The gentleman declines to withdraw the motion.

MR. HEFLIN‑I appeal to the gentleman to withdraw it. I will renew it for him.


4738                  

OFFICIAL PROCEEDINGS

THE PRESIDENT‑The gentleman declines to withdraw it.

MR. HEFLIN‑I demand an aye and no vote.

The call was sustained.

THE PRESIDENT‑As many as favor the motion to table will say aye, and those opposed no, as your names are called.

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

AYES.

Messrs. President,

Freeman,

Phillips,

Altman,

Grant,

Porter,

Ashcraft,

Grayson,

Reynold (Henry),

Banks,

Handley,

Rogers, of Lowndes,

Beddow,

Harrison,

Sanford,

Bethune,

Hood,

Sloan,

Blackwell,

Howze,

Smith, Mac. A.,

Brooks,

Jackson,

Smith, Morgan M.,

Browne,

Jones, of Bibb,

Spears,

Carnathon,

Kyle,

Spragins,

Chapman,

Lowe, of Lawrence,

Stewart,

Cofer,

McMillan (Baldwin),

Thompson,

Coleman, of Greene,

McMillan, of Wilcox,

Walker,

Cunningham,

Martin,

Watts,

Davis, of DeKalb,

Merrill,

Weakley,

Davis, of Etowah,

Miller,of Wilcox,

White,

Dent,

Murphree,

Whiteside,

Fletcher,

Norman,

Williams, of Barbour,

Foster,

Oates,

Williams, of Elmore,

Foshee,

Parker, of Cullman,

Winn,

Total–60

NOES

Barefield,

Gilmore,

Knight,

Bartlett,

Glover,

Lomax,

Beavers,

Graham, of Montgomery,

Long, of Walker,

Boone,

Graham, of Talladega,

Macdonald,

Burns,

Greer, of Calhoun,

Miller, of Marengo,

Byars,

Greer, of Perry,

Moody,

Cardon,

Haley,

NeSmith,

Carmichael, of Colbert,

Heflin, of Chambers,

Norwood,

Case,

Heflin, of Randolph,

O’Neill (Jefferson),

Cobb,

Henderson,

O’Neal, of Lauderdale,

deGraffenreid,

Howell,

Opp,

Duke,

Inge,

O’Rear,

Eley,

Jones, of Hale,

Palmer,

Eyster,

Jones, of Montgomery,

Parker, of Elmore,

Ferguson,

Jones, of Wilcox,

Pearce,


4739

CONSTITUTIONAL CONVENTION, 1901

Pettus,

Searcy,

Vaughan,

Pillans,

Selheimer,

Waddell,

Reese,

Sentell,

Weatherly,

Rogers, of Sumter,

Sorrell,

Williams, of Marengo,

Samford,

Studdard.

Wilson, of Clarke,

Sanders,

Tayloe,

Total‑64

ABSENT OR NOT VOTING.

Almon,

Jenkins,

Morrisette,

Bulger,

King,

Mulkey,

Burnett,

Kirk,

Pitts,

Carmichael, of Coffee,

Kirkland,

Proctor,

Coleman, of Walker,

Ledbetter,

Renfro,

Cornwall,

Leigh.

Reynolds, of Chilton,

Craig,

Locklin,

Robinson,

Espy,

Long, of Butler,

Smith, of Mobile,

Fitts,

Lowe, of Jefferson,

Sollie,

Hinson,

Malone,

Willet,

Hodges,

Maxwell,

Wilson, of Washington.

So the motion to table was lost.

MR. HEFLIN (Chambers)— I do not desire to detain the Convention with a speech. I do not propose to speak over three minutes. I am sorry my distinguished friend declined to allow debate a few moments ago. He has consumed possible as much time as any other member on the floor of this Convention, and I for one have always been glad to hear him, but I do think, at that time, I, at least, ought to have had a moment or two to reply to the distinguished gentleman from Montgomery. We are reprsenting the entire body of the people of Alabama. The Sheriffs of the State has been honored by the people of their respective counties. They have got a right to come here and talk and I do not look upon them as trespassers when they come. They have not a right to come to us and say that you should allow us to run for office. You allow the Tax Collector, the Tax Assessor, and every one else to succeed themselves, but you do not allow us to succeed ourselves. I asked an old and distinguished member of this Convention why it was that the Convention of 1875 did not allow the Sheriff to succeed himself, and he said under the old law the Sheriff was practically the administrator of estates and he at times had more money in his hands than the Treasurer had, and for that reason they did not desire that he should succeed himself.

Nearly all matters of legislation are reached by compromise, and yet gentlemen hoot at the idea that somebody has agreed to a compromise. I for one opposed the idea of the Governor suspending the Sheriff. There were others who favored that idea


4740                  

OFFICIAL PROCEEDINGS

and opposed the Sheriffs succeeding themselves, and I favored that part of it.

MR. WALKER (Madison)‑I desire to ask the gentleman a question. How can the Sheriffs he justified in appealing to this Convention on one occasion, as a matter of principle, to strike down the provision allowing the Governor to suspend them, and to come here now and ask this Convention to incorporate that in the Constitution?

MR. HEFLIN–As I just said, and I thought possibly the distinguished gentleman, among others, would catch the trend of my argument, that all matters of this sort are reached by compromise.  The Sheriff says I do not want to be suspended by the Governor, yet I know that if I conduct myself as I should the Governor will not suspend me, and while I object to that feature, still, if the Convention is going that far, if they will allow me to succeed myself, then I am willing to swallow the other.  The distinguished gentleman from Montgomery says that we are departing from old time custom of State; that in the whole existence of Alabama as a State we have never allowed the Sheriff to succeed himself.  That is as absurd as for the man who had never taken a dose of medicine, when the doctor told him he must take it or die, to reply, I have never taken any medicine and my father before never took any, and I will die before I will take it.

These Sheriffs have a right to talk to delegates here, and nine-tenths of them are in favor, I believe, of this compromise.  You say we will “cuss” out the Sheriffs.  We hope to have the work in this convention ratified , and it will be, and they have made no threats, so far as I know, but, Mr. President, it is just as fair to say to the Sheriff that he can succeed himself as to allow him to use that office for four years to have himself elected Tax Collector, or Tax Assessor, or Probate Judge.  He has all the time during that four years to employ the powers of his office, if he is of a mind to prostitute them, to bring about this desired end.  That is not eh purpose of it.  Let him make a good officer, and if the people want to elect him again let them have the right to do it, and do not take it away from him.  All the Southern States do it.

MR. SANFORD (Montgomery)–May I ask the gentleman a question?

MR. HEFLIN–I decline to be interrupted.

MR. SANFORD (Montgomery)–All bargainers do.

MR. HEFLIN–As I am not acquainted at all with that subject , and I think my friend is master of the situation along that line, I do not care to enter into debate with him on that question.


4741

CONSTITUTIONAL CONVENTION, 1901

In conclusion, I simply want to say that I think that this provision is a wise one, and that this Convention will not have adopted a wiser provision in the fundamental law of this State. No harm can be done, and you will make glad the hearts of sixtysix sheriffs in the State, and, if no harm can come from it, when we go out on the stump and sound the bugle to ratify our work here, you will see springing up here and yonder opposition to the work of this Democratic Convention. Then you will see, instead of sixty‑six men with sad faces and dropping heads, sixty‑six  men armed and equipped for the battle, and they will march with us to glorious victory. I move the previous question upon the adoption of the amendment.

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

THE PRESIDENT‑The question is, shall the main question be now put?

MR. THOMPSON‑I demand a division of the question.

THE PRESIDENT‑The question is the motion for the previous question on the amendment.

MR. THOMPSON‑I simply ask for a division of the question on the adoption of the amendment.

The main question was ordered.

THE PRESIDENT‑The present occupant of the chair was not in the chair when the amendment was offered by the gentleman from Montgomery (Mr. Jones).

Mr. White sought recognition.

THE PRESIDENT‑‑The right to conclude where the previous question is not ordered on the Article, will remain with the gentleman from Montgomery, who offered the amendment, unless he yields to the gentleman from Jefferson.

MR. WHITE‑I thought the chairman of the Committee had that right.

THE PRESIDENT–Where the pending question is on the adoption of the amendment and the previous question is not ordered on the Article, the right to close, under the rule, would go to the chairman of the Committee. Will the gentleman from Montgomery yield to the gentleman from Jefferson?

MR. JONES (Montgomery)–No, sir; I am willing to pair with him and not speak at all.

MR. WHITE‑You have already spoken, and I am willing to do that if you will allow me to reply to your speech.


4742                  

OFFICIAL PROCEEDINGS

MR. OATS‑In this particular case, if the amendment be adopted, then there is no use for the Committee to be heard from.  The Committee has not been heard from, and it seems to me that it ought to be—

MR. JONES (Montgomery)‑‑I think the Chair has uniformly ruled that there the previous question was called on an amendment and on the section, then the Committee has the right to conclude. But if it is simply on the amendment, the Chair has ruled that the mover of the amendment has the right.

THE PRESIDENT‑There is no doubt about that.

MR. REESE–I desire to make the point that the question will arise when the gentleman claims the floor, and then it will be a matter for the Chair to decide.

THE PRESIDENT‑The gentleman is correct, but since the question is up, we had just as well settle it now. Rule 17 says:

"The previous question shall be in the following form: ‘Shall the main question be now put? If demanded by a vote of a majority of the delegates present, its effect shall be to cut off all debate and bring the Convention to a direct vote, but the mover of the question, or the chairman of the Committee having charge of the Ordinance or resolution, shall have the right to close the debate, after the call of the previous question has been sustained, for not more than thirty minutes." Under our rule, it is now ten minutes. The uniform ruling of the Chair has been that, where the previous question is ordered upon a section and the amendment, that the right to conclude could not rest in two-‑could not rest in the mover of the amendment and also in the chairman; and hence, the Chair has given the preference in those cases to the chairman of the Committee. Where the previous question is ordered only on the amendment, under the plain terms of the rule, the proposer of the amendment is the mover of the proposition.

MR. WHITE‑I would like to correct a statement which was inadvertently made, and that is, that no other State had this provision in it. The State of Mississippi has just such a provision as this.

MR. REESE‑I rise to a point of order. The question is not debatable. I demand that the vote be taken.

THE PRESIDENT‑The point of order is well taken.

MR. JONES (Montgomery)–I think this Convention has fully made up its mind, and I therefore conclude as the mover of it by expressing the hope that it will adopt the amendment.

MR. WHITE–We call for a division of the amendment and for the ayes and noes.


4743

CONSTITUTIONAL CONVENTION, 1901

THE PRESIDENT‑A division of the question is demanded and the question first will be upon the propositions striking out that part of the section which makes the sheriff ineligible to be his own successor and inserting the provision authorizing him to be eligible. The ayes and noes are demanded and the call is sustained.

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

AYES

Barefield,

Heflin, of Randolph,

Palmer,

Beavers,

Henderson,

Parker (Elmore),

Boone,

Howell,

Pearce,

Burns,

Inge,

Pettus,

Cardon,

Jones, of Hale,

Pillans,

Carmichael, of Colbert.

Jones, of Montgomery,

Reese,

Cobb,

Jones, of Wilcox,

Rogers (Sumter),

deGraffenreid,

Knight,

Sanders,

Duke,

Lomax,

Searcy,

Eley,

Long (Walker),

Selheimer.

Eyster,

Lowe (Lawrence),

Sentell,

Ferguson,

Macdonald,

Tayloe,

Glover,

Miller (Marengo),

Vaughan,

Graham, of Montgomery,

Moody,

Waddell,

Graham, of Talladega,

NeSmith,

Weatherly,

Greer, of Calhoun,

Norwood,

Williams (Marengo),

Greer, of Perry,

O'Neal (Lauderdale),

Wilson (Clarke),

Haley,

Opp,

Heflin, of Chambers,

O'Rear,

TOTAL‑55

NOES

Messrs. President,

Coleman, of Walker,

Jones, of Bibb,

Altman,

Cunningham,

Kyle,

Ashcraft,

Davis, of DeKalb,

McMillan (Baldwin),

Banks.

Dent,

McMillan (Wilcox),

Bartlett,

Fletcher,

Martin,

Beddow,

Foshee,

Merrill,

Bethune,

Foster,

Miller (Wilcox),

Blackwell,

Freeman,

Murphree,

Brooks,

Gilmore,

Norman,

Browne,

Grant,

Oates,

Byars,

Grayson,

Parker (Cullman),

Carnathon,

Handley,

Phillips,

Case,

Harrison,

Porter,

Chapman,

Hood,

Reynolds (Henry),

Cofer,

Howze,

Rogers (Lowndes),

Coleman, of Greene,

Jackson,

Sanford,


4744                  

OFFICIAL PROCEEDINGS

Sloan,

Stewart,

White,

Smith, Mac. A.,

Thompson,

Whiteside,

Smith, Morgan M.,

Walker,

Williams (Barbour),

Sorrell,

Watts,

Williams (Elmore),

Spears,

Weakley,

Winn,

Spragins,

TOTAL— 64

ABSENT OR NOT VOTING

Almon,

King,

O'Neill (Jefferson),

Bulger,

Kirk,

Pitts,

Burnett,

Kirkland,

Proctor,

Carmichael, of Coffee,

Ledbetter,

Renfro,

Cornwall,

Leigh,

Reynolds (Chilton),

Craig,

Locklin,

Robinson,

Davis, of  Etowah,

Long (Butler),

Samford,

Espy,

Lowe (Jefferson),

Smith (Mobile),

Fitts,

Malone,

Sollie,

Hinson,

Maxwell,

Studdard,

Hodges,

Morrisette,

Willet,

Jenkins,

Mulkey,

Wilson (Washington),

A verification of the vote was called for and had

There being 64 noes and 55 ayes, the amendment was lost.

MR. HEFLIN (Chambers)–I change my vote from aye to no and give notice that on tomorrow I will move a reconsideration.

MR. CUNNINGHAM–I make the point of order that on the verification of the vote, the gentleman cannot change his vote.

THE PRESIDENT–The point of order is well taken.

MR. HEFLIN–I give notice I will make a motion to reconsider the vote tomorrow.

THE PRESIDENT–The question is on the adoption of the amendment relating to the impeachment of sheriffs.  The ayes and noes have been demanded, and the call sustained.

MR. JONES (Montgomery)–(During roll call)–If I am in order I move to lay the balance of the amendment on the table.

THE PRESIDENT–The record seems to show that the Convention has voted down a motion to table.

MR. JONES–That was the whole thing, but it has been divided.

THE PRESIDENT–It seems to the Chair that the whole would include the part.


4745

CONSTITUTIONAL CONVENTION, 1901

MR. JONES ‑ Then I ask unanimous consent to make a statement of two minutes.

There was objection.

MR. CARMICHAEL (Colbert)‑I move that the rules be suspended in order that the gentleman may make a statement.

A vote being taken the rules were suspended.

MR. JONES‑I desire to state to the Convention it is well known that personally I was in favor, and in fact the author of the provision authorizing the Governor to suspend sheriffs, but I do not want to be put in the position, or have the Convention put in the position of trapping these gentlemen. We said to them that if they would agree to put through a proposition giving them power to succeed themselves and consenting to the removal, that we would pass it; that is, a number of gentlemen on this floor did . I was one of them. Therefore, I would feel compelled to vote against the balance of my amendment, and I hope the Convention will not read them.

MR. HEFLIN (Chambers)‑I move that the gentleman from Montgomery be allowed to withdraw the latter part of the amendment.

MR. PARKER (Cullman)‑I rise to a point of order. We have already ordered the previous question and the only thing to be done is to take the vote upon it.

THE PRESIDENT— The point of order is well taken unless the rules are suspended.

MR. REESE‑I move that the rules be suspended and that the gentleman be allowed to withdraw his amendment.

Upon a vote being taken a division was called for, and upon a further vote of 78 ayes and 44 noes, the Convention refused to suspend the rules.

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

MR. HEFLIN (Chambers)‑I demand the ayes and noes.

THE PRESIDENT‑The ayes and noes have been ordered:  the Secretary will call the roll. As many as favor the adoption of that part of the amendment relating to the impeachment of sheriffs will say aye, and those opposed no, as your names are called.

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


4746                                          

OFFICIAL PROCEEDINGS

AYES

Bartlett,

Foshee,

Porter,

Boone,

Freeman.

Reynolds (Henry),

Byars,

Howze,

S1oan,

Cofer,

Oates,

Waddell,

TOTAL— 12

NOES

Messrs. President.

Grant,

Opp,

Altman,

Grayson,

O'Rear,

Ashcraft,

Greer, of Calhoun,

Palmer,

Banks,

Greer, of Perry,

Parker (Cullman),

Barefield,

Haley,

Parker (Elmore),

Beavers,

Handley,

Pearce,

Beddow,

Harrison,

Pettus,

Bethune,

Heflin, of Chambers,

Pillans,

Blackwell,

Heflin, of Randolph,

Reese,

Brooks,

Henderson,

Rogers, (Lowndes),

Browne,

Hood,

Rogers (Sumter),

Burns,

Howell,

Samford,

Cardon,

Inge,

Sanders,

Carmichael, of Colbert,

Jackson,

Sanford,

Carmichael, of Coffee,

Jones, of Bibb,

Searcy,

Carnathon,

Jones, of Montgomery,

Sentell,

Case,

Jones, of Wilcox,

Smith, Mac. A.,

Chapman,

Knight,

Smith, Morgan M.,

Cobb,

Kyle,

Sorrell,

Coleman, of Greene,

Lomax,

Spears,

Coleman, of Walker,

Long (Walker),

Spragins,

Cunningham,

Lowe (Lawrence),

Stewart,

Davis, of DeKalb,

Macdonald,

Tayloe,

Davis, of Etowah,

McMillan (Baldwin),

Thompson,

Dent,

McMillan (Wilcox),

Vaughan,

deGraffenreid,

Martin,

Walker,

Duke,

Merrill,

Watts,

Eley,

Miller (Marengo),

Weakley,

Eyster,

Miller (Wilcox),

White,

Ferguson,

Moody,

Whiteside,

Fletcher,

Murphree,

Williams (Barbour),

Foster,

NeSmith,

Williams (Marengo),

Gilmore,

Norman,

Williams (Elmore),

Glover,

Norwood.

Wilson, (Clarke),

Graham, of  Montgomery,

O'Neal (Lauderdale),

Winn,

Graham, of Talladega,

O'Neill (Jefferson),

TOTAL— 107


4747

CONSTITUTIONAL CONVENTION, 1901

ABSENT OR NOT VOTING

Almon,

Kirk,

Pitts,

Bulger,

Kirkland

Proctor,

Burnett,

Ledbetter,

Renfro.

Cornwall,

Leigh,

Reynolds (Chilton),

Craig,

Locklin,

Robinson,

Espy,

Long (Butler),

Selheimer,

Fitts,

Lowe (Jefferson),

Smith (Mobile),

Hinson,

Malone,

Sollie,

Hodges,

Maxwell,

Studdard,

Jenkins,

Morrisette,

Weatherly,

Jones, of Hale,

Mulkey,

Willet,

King,

Phillips,

Wilson (Washington),

There being 107 noes and 12 ayes, the amendment was lost.

MR. JONES‑I suppose after the vote on the last amendment to the Executive Department, no one else desires to offer any other, and I therefore move the previous question upon the adoption of the Article.

MR. SPRAGINS‑Mr. President. I move the adoption of the Article, and on that I call for the previous question.

The main question was ordered, and, upon a further vote, the Article was adopted.

THE PRESIDENT‑The Secretary will read the next Article.

Mr. Heflin of Chambers took the chair.

The Secretary read Article 6 as follows:

ARTICLE VI

Judicial Department

139. The judicial power of the State shall be vested in the Senate sitting as a court of impeachment, a Supreme Court, Circuit Courts, Chancery Courts, Courts of Probate, such courts of law and equity inferior to the Supreme Court, and to consist of not more than five members, as the Legislature, from time to time, may establish, and such persons as may be by law invested with powers of a judicial nature; but no court of general jurisdiction, at law or in equity, or both, shall hereafter be established in and for any one county having a population of less than twenty thousand, according to the next preceding Federal census, and property assessed for taxation at a less valuation than three million five hundred thousand dollars.

140. Except in cases otherwise directed in this Constitution, the Supreme Court shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations, not repugnant


4748                  

OFFICIAL PROCEEDINGS

to this Constitution, as may from time to time be prescribed by law, except where jurisdiction over appeals is vested in some inferior court, and made final therein; provided, that the Supreme Court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdiction.

141. The Supreme Court shall be held at the seat of government, but, if that shall become dangerous from any cause, it may convene at or adjourn to another place.

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

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

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

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

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

147. Any county having a population of twenty thousand or more, according to the next preceding  Federal census, and also taxable property of three million five hundred thousand dollars or more in value, according to the next preceding assessment of property for State and county taxation, need not be included in any circuit or chancery division; but if the value of its taxable property shall be reduced below that limit, or its population shall be reduced below that number, the Legislature shall include such county in a circuit and a chancery division, or either embracing more than one


4749

CONSTITUTIONAL CONVENTION 1901,

county. No circuit or chancery division shall contain less than three counties, unless there be embraced therein a county having a population of twenty thousand or more and taxable property of three million five hundred thousand dollars or more in value.

148. The Legislature may confer upon the Circuit court or the Chancery Court the jurisdiction of both of said courts. In counties having two or more courts of record, the Legislature may provide for the consolidation of all or any of such courts of record, except the Probate Court, with or without separate divisions, and a sufficient number of judges for the transaction of the business of such consolidated court.

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

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

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

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

153. The Judges of such inferior courts of law and equity as may be by law established, shall be elected or appointed in such mode as the Legislature may prescribe.

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

155. Except as otherwise provided in this article, the Chief Justice and Associate Justices of the Supreme Court, Circuit Judges, Chancellors and Judges of Probate shall hold office for the term of six years, and until their successors are elected or appointed and qualified; and the right of such Judges and Chancellors to hold their office for the full term hereby pre‑


4750                  

OFFICIAL PROCEEDINGS

scribed shall not be affected by any change hereafter made by law in any circuit, division or county, or in the mode or time of election.

156. The Chief Justice and Associate Justices of the Supreme Court shall be chosen at an election to he held at the time and places fixed by law for the election of members of the House of Representatives of the Congress of the United States, until the Legislature shall by law change the time of holding such election. The term of office of the Chief Justice who shall be elected in the year nineteen hundred and four shall be as provided in the last preceding section. The successors of two of the Associate Justices elected in the year nineteen hundred and four shall be elected in the year nineteen hundred and six, and the successors of the other two Associate justices elected in the year nineteen hundred and four shall be elected in the year nineteen hundred and eight. The Associate Justices of said court elected in the year nineteen hundred and four shall draw or cast lots among themselves to determine which of them shall hold office for the terms ending, respectively, in the years nineteen hundred and six and nineteen hundred and eight, and until their respective successors are elected or appointed and qualified. The result of such determination shall be certified to the Governor, by such Associate Justices, or a majority of them, prior to the first day of January, nineteen hundred and five, and such certificate shall be entered upon the minutes of the court. In the event of the failure of said Associate justices to make and certify such determination, the Governor shall designate the terms for which they shall respectively hold office, as above provided, and shall issue his proclamation accordingly. In the event of an increase or reduction by law of the number of Associate Justices of the Supreme Court, the legislature shall, as nearly as may be, provide for the election, each second year, one‑third of the members of said court.

157. All judicial officers within their respective jurisdiction shall, by virtue of their offices, be conservators of the peace.

158. Vacancies in the office of any of the Justices of the Supreme Court or Judges who hold office by election, or chancellors of this State shall be filled by appointment by the Governor. The appointee shall hold his office until the next general election for any State officer held at least six months after the vacancy occurs, and until his successor is elected and qualified; the successor chosen at such election shall hold office for the unexpired term and until his successor is elected and qualified.

159. Whenever any new circuit or chancery division is created, the judge or chancellor therefor shall be elected at the next general election for any State officer for a term to expire at the next general election for circuit judges and chancellors; provided, that if said new circuit or chancery division is created more than six months before such general election for any State officer, the Governor shall appoint some one as judge or chancellor, as the case may be, to hold the office until such election.

160. If in any case, civil or criminal, pending in any circuit court, chancery court, or in any court of general jurisdiction having any part of the jurisdiction of a circuit and a chancery court, or either of them, in this


4751

CONSTITUTIONAL CONVENTION, 1901

State, the presiding judge or chancellor shall, for any legal cause, be incompetent to try, hear or render judgment in such case, the parties, or their attorneys of record, if it be a civil case, or the solicitor or prosecuting officer, and the defendant or defendants, if it be a criminal case, may agree upon some disinterested person, practicing in the court and learned in the law, to act as special judge or chancellor to sit as a court, and to hear, decide and render judgment in the same manner and to the same effect as such incompetent chancellor or judge could have rendered. If the case be a civil one, and the parties or their attorneys of record do not agree; or if it be a criminal one and the prosecuting officer and the defendant or defendants do not agree upon a special judge or chancellor, or if either party in a civil cause is not represented in court, the register in chancery or the clerk of such circuit or other court in which said cause is pending, shall appoint a special judge or chancellor, who shall preside, try and render judgment as in this section provided. The legislature may prescribe other methods for supplying special judges in such cases.

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

l62. No judge of any court of record in this State shall practice law in any of the courts of this State, or of the United States.

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

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

165. Clerks of the circuit court shall be elected by the qualified electors in each county for the term of six years, and inay, when appointed by the chancellor, also fill the office of register in chancery. Vacancies in such office of clerk shall be filled by the judge of the circuit court for the unexpired term.

166. The Clerk of the Supreme Court and registers in chancery may be removed from office by the justices of the Supreme Court, and by the chancellors, respectively, for cause, to be entered at length upon the minutes of the court.


4752                                          

OFFICIAL PROCEEDINGS

167. A solicitor for each judicial circuit or other territorial subdivision prescribed by the legislature, shall be elected by the qualified electors of those counties in such circuit or other territorial subdivision in which such solicitor prosecutes criminal cases, and such solicitor shall be learned in the law, and 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 case, or other territorial subdivision for which he is elected, and his term of office shall be four years, and he 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 nineteen hundred and four shall hold office for six years, and until their successors are elected and qualified; and provided further, that the legislature may provide by law for the appointment by the Governor or the election by the qualified electors of a county of a solicitor for any county.

168. In each precinct not lying within, or partly within, any city or incorporated town of more than fifteen hundred inhabitants, there shall be elected by the qualified electors of such precinct not exceeding two justices of the peace and one constable. Where one or more precincts lie within, or partly within, a city or incorporated town having more than fifteen hundred inhabitants, the legislature may provide by law for the election of not more than two justices of the peace and one constable, for each of such precincts, or all inferior court for such precinct or precincts in lieu of all justices of the peace therein. Justices of the peace and the inferior courts in this section provided for shall have jurisdiction in all civil cases where the amount in controversy does not exceed one hundred dollars, except in cases of libel, slander, assault and battery and ejectment. The legislature may provide by law what fees may be charged by justices of the peace and constables, which fees shall be uniform throughout the State. The right of appeal from any judgment of a justice of the peace, or from any inferior court authorized by this section, without the prepayment of costs, and also the term of office of such justices, and of the judges of such inferior courts, and of notaries public, shall be provided for by law. The Governor may appeal notaries public without the powers of a justice of the peace, and may, except where otherwise provided by an act of the legislature, appoint not more than one notary public with all of the powers and jurisdiction of a justice of the peace for each precinct in which the election of justices of the peace shall be authorized.

169. In all prosecutions for rate and assault with intent to ravish the court may, in its discretion, exclude from the court room all persons, except such as may be necessary in the conduct of the trial.

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


4753

CONSTITUTIONAL CONVENTION, 1901

171. The legislature shall have the power to abolish any court except the Supreme Court and the probate courts, whenever its jurisdiction and functions have been conferred upon some other court.

172. Nothing in this article shall be so construed as to abridge the term of office of any officer now in office.

MR. KNOX‑I desire to offer an amendment to Section 167.

The amendment was read as follows:

Amend Section 167 on Page 42 by inserting after the word "County" in the fifteenth line the following: "Or by the legislature."

MR. KNOX‑At the time this section was adopted, and the discussion that took place in reference to the election of solicitors.  I do not remember that any objection was urged to the election of the solicitor by the legislature where that officer was confined to a single county. I know when the propositon was offered and accepted on that subject, the friends of this movement were under the impression that this was embraced in the amendment offered by the gentleman from Madison (Mr. Walker). It seems to me that it might he found in the practical working of this section to be unwise to have a solicitor for a single county elected by the people, and the same objection might be made to the appointment of a solicitor by the Governor. It seems to me that it ought to be left to the legislature, so that the legislature could provide, if the public good required it, that the solicitor for a single county might either be elected by the people, appointed by the Governor, or elected by the Legislature, as in the judgment and wisdom of the Legislature might be deemed best. I do not care to discuss the question further, but merely desired to call attention to the amendment.

MR. HARRISON ‑ I would like to ask the gentleman one question. Do I understand correctly that the effect of the amendment, is simply to leave it to the Legislature as to how they will be elected ?

MR. KNOX‑It simply leaves it to the Legislature to determine how they shall be selected. This does not affect in the least the method of electing Circuit Solicitors. They are to be elected by the people, as also are the Solicitors for sub‑divisions or two or more counties. This relates simply to the selection of Solicitors for single counties.

MR. WALKER‑The contest in reference to this matter of the selection of Solicitors from the beginning was a question of their election by the people or election by the Legislature, and this provision which operates to take out of the hands of the Legislature in all instances, the election of Solicitors, was, I conceive,


4754                  

OFFICIAL PROCEEDINGS

fully understood at the time this provision was adopted. This provision has been in the hands of gentlemen on both sides of this controversy for several days, and there was no room for a misunderstanding as to that.  Now that was the controversy, as to whether or not the method heretofore prevailing for the election of Solicitors by the Legislature should be abolished, and this Convention, certainly with deliberation, adopted the policy of taking from the Legislature the election of Solicitors in this State. A concession was made to satisfy persons opposing this proposition as a whole, to allow, in the case of County Solicitors, the Legislature to determine whether they should be selected by appointment  by the Governor, or by election by the people but in all events to exclude from the Legislature the power of selecting these officers. Now, I conceive that there could have been no misunderstanding in reference to this provision, and I understand this amendment now to be in effect an attempt to overturn the provision that was adopted by this Convention in the way of a settlement of this controversy. Conceiving that to be the case, and that this provision fully met the conflicting views that had been developed by this long controversy, I move to lay the proposed amendment upon the table.

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

The call was sustained, and upon a call of the roll the vote resulted as follows:

AYES

Altman,

Graham, of Talladega,

Pettus,

Ashcraft,

Henderson,

Phillips,

Banks,

Hood,

Pillans,

Bartlett,

Howell,

Porter,

Beddow,

Jackson,

Reese,

Bethune.

Jones, of Bibb,

Reynolds, of Henry,

Blackwell,

Jones, of Hale,

Rogers (Sumter),

Boone,

Jones, of Wilcox,

Samford,

Byars,

Kyle,

Sanders,

Cardon,

Lowe, of Lawrence,

Selheimer,

Case,

McMillan, of Baldwin,

Sentell,

Chapman,

McMillan (Wilcox)

Smith, Mac. A.,

Cofer,

Merrill,

Spragins,

Cunningham,

Miller (Marengo),

Stewart,

Davis, of DeKalb,

Miller (Wilcox),

Walker,

Davis, of Etowah,

Moody,

Watts,

Dent,

Murphree,

Watts,

Fletcher,

Oates,

White,

Freeman,

Parker (Elmore),

Williams (Barbour),

Foshee,

Pearce,

Winn,

TOTAL‑60


4755

CONSTITUTIONAL CONVENTION, 1901

NOES

Messrs. President,

Grayson,

O'Neill, of Jefferson,

Barefield,

Greer, of Calhoun,

Opp,

Browne,

Greer, of Perry,

O'Rear,

Burns,

Haley,

Parker (Cullman),

Carmichael, of Colbert,

Handley,

Rogers (Lowndes),

Cobb,

Harrison,

Sanford,

Coleman, of Greene,

Heflin, of Chambers,

Searcy,

Coleman, of Walker,

Heflin. of Randolph,

Sorrell,

deGraffenreid.

Howze,

Spears,

Duke,

Inge,

Thompson,

Eley,

Jones, of Montgomery,

Weatherly,

Ferguson,

Knight,

Whiteside,

Foster,

Lomax,

Williams (Marengo),

Glover,

Macdonald,

Wilson (Clarke),

Graham, of Montgomery,

Martin,

Grant,

O'Neal (Lauderdale),

TOTAL‑46

ABSENT OR NOT VOTING

Almon,

Kirk,

Proctor,

Beavers,

Kirkland,

Renfro,

Brooks,

Ledbetter,

Reynolds (Chilton),

Bulger,

Leigh,

Robinson,

Burnett,

Locklin,

Sloan,

Carmichael, of Coffee,

Long, of Butler,

Smith (Mobile),

Carnathon,

Long, of tValker,

Smith, Morgan M.,

Cornwall,

Lowe, of Jefferson,

Sollie,

Craig,

Malone,

Stoddard,

Eyster,

Maxwell,

Tayloe,

Espy,

Morrisette,

Vaughan,

Fitts,

Mulkey,

Waddell,

Gilmore,

NeSmith,

Willet,

Hinson,

Norman,

Williams (Elmore),

Hodges,

Norwood,

Wilson (Washington),

Jenkins,

Palmer,

King,

Pitts,

And the amendment was tabled.

MR. BLACKWELL— I move we do now adjourn.

THE PRESIDENT PRO TEM— The gentleman from Morgan moves that this Convention do now adjourn.

MR. SPRAGINS— I was on my feet at the time the motion was made, and I thought I had the floor.

MR. BLACKWELL— I will withdraw the motion to adjourn.

MR. LOMAX— I object.


4756      

OFFICIAL PROCEEDINGS

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

MR. CUNNINGHAM— I rise to a point of order. The gentleman who made the motion to adjourn was sitting in his seat and did not rise to make the motion.

THE PRESIDENT PRO TEM.‑The Chair has ruled that point comes too late after the motion is stated to the house. As many as favor the motion to adjourn will rise and remain standing until they are counted.

And upon the vote being taken, there here 60 ayes and 35 noes, and the motion to adjourn was carried.

Leaves of absence were granted Mr. Bulger for today ; Mr. Cornwall indefinitely on account of sickness; and Mr. Ferguson for yesterday.

Thereupon the Convention adjourned.

_______________