History of Alabama and dictionary of Alabama biography, Volume I, Part 71

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869-
Publication date: 1921
Publisher: Chicago, The S. J. Clarke publishing company
Number of Pages: 756

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Commissioner .- John H. Wallace, Jr., 1907 -.

PUBLICATIONS .- Biennial reports, 1908-1916, 5 vols .; Bird day books, 1908-1916, 9 vols .; Bul- letins, Nos. 1-4, 1907-1912; Laws in separate form (1907-1916), 10 vols.

See Bird Day; Conservation; Fishes; For- estry, State Commission of; Forests and For- estry.

REFERENCES .- Code, 1907, secs. 656-688, 6954- 6982; General Acts, 1907, pp. 81-95; 1911, pp. 315, 405; 1915, pp. 143, 946; Gov. Wm. D. Jelks, "Message," in Senate Journal, 1907, p. 44; Gov. Emmet O'Neal, Message (Leg. Doc. 1, 1915); Hyde v. State, 155 Ala., p. 133; Lock- hart v. State, 6 Ala. App., p. 61; and Depart- ment publications, passim.

CONSTITUTIONAL AMENDMENTS. Ala- bama's six constitutions of 1819, 1861, 1865, 1867, 1875 and 1901 have been amended but five times. Three of these amendments

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changed provisions of the constitution of 1819, and two of that of 1901. Twenty sep- arate amendments have been proposed hy the legislature. The first constitution remained in force just ten years before an effort was made to amend it.

The first amendment referred to the people was intended to reduce the tenure of the judges from life. or during good behavior, to seven years. A joint resolution, concurred in by two-thirds of the members of each house, approved January 9, 1828, proposed an amendment which should strike out "so much of the thirteenth section of fifth article, as refers to the election of the judges of the state, during good behavior," and substitute terms of seven years. This amendment was rejected at the regular election, on the first Monday in August, 1828. The record of the number of votes cast for and against it is not accessible. The sentiment favoring a change in the constitution so as to permit the limitation of the tenure of judges was the outgrowth of popular dissatisfaction with the courts' decisions in cases involving the collection of usurious charges for the use of money. In 1818 the territorial legislature provided that parties to a loan of money might stipulate, by contract in writing, for the payment of any rate of interest. This law opened the way for unlimited abuses and exorbitant charges by money lenders and oth- ers. In many cases 5 per cent a month and even more was contracted for, and it was necessary in such cases to enforce the con- tracts by suits. The validity of such ex- tortionate contracts eventually was tested in the supreme court. Decisions thought to be adverse to the interests of the borrowing classes caused the supreme court to be in- cluded in the popular clamor against the money lenders and capitalists. This agita- tion resulted in the attempt to amend the constitution, as outlined above, but public opinion had not grown sufficiently to sustain the attempt, and the amendment was re- jected.

After the failure of the first amendment, Hon. William Kelly, of Huntsville, preferred charges against three members of the su- preme court and petitioned the general as- sembly to make an address to the governor demanding their removal. The proceedings were conducted in the senate, which declined to order the removal of the judges, but the trial, aided by political agitation, probably was the means of crystallizing popular opin- ion against the principle of life tenure. The general assembly adopted, at the same ses- sion a joint resolution, approved January 26, 1829, proposing an amendment limiting the tenure of judges to six years, subject to re- moval at any time by the governor on ad- dress of two-thirds of both houses, etc. It further provided that the incumbents at the time of its adoption should continue in office until the session of the general assembly to be held in 1833. An act, approved the same day, provided for the holding of the elec- tion in the following August. This amend- ment was adopted by a considerable major-

ity, an especially large favorable vote being polled in the northern counties. Complete returns are not available, but the majority in 29 counties, as given by the Southern Advocate, Huntsville, in its issue of Octo- ber 2, 1829, was 13,153- 19,495 for, and 6,342 against its adoption. The amendment was ratified by joint resolution of the gen- eral assembly, approved January 16, 1830.

The same legislature which ratified this amendment adopted a resolution on Janu- ary 14, 1830, proposing to amend various other sections of the constitution so as to fix the terms of office of representatives at two years, instead of one; of senators at four, instead of three; of the state treasurer and the comptroller of public accounts at two, instead of one; and to provide for biennial instead of annual sessions of the general assembly. These changes were voted on at the general election in August, 1830, and all were rejected.

Thirteen years later, a joint resolution, approved January 2, 1843, proposed to ex- tend the jurisdiction of justices of the peace to all cases in which the amount in contro- versy did not exceed $100; and to make the judges of inferior courts elective by the qualified voters instead of by the general as- sembly. Under act of February 4, 1843, the election was held on the first Monday in August, 1843. The amendment was rejected.

In 1845 another attempt was made to se- cure biennial sessions of the legislature, this time successfully. A joint resolution, ap- proved January 24, proposed an amendment providing biennial sessions, two-year terms for legislators, and striking out the twenty- ninth section of the third article of the con- stitution, which established a permanent seat of government of the State, so that the capital might, if later found desirable, be moved from Tuscaloosa. A joint resolution, but without date, passed at the next session, ratified these amendments, which had both been adopted. An act approved February 4, 1846, gave effect to the amendments and fixed the first Monday in December, 1847, as the date for convening the next session of the general assembly, and thenceforward the first Monday in December of every alternate year. The vote in favor of the amendment permitting the removal of the capital was 33,798, and against it, 27,320; and on the question of biennial sessions, the vote was 55,819 for, 5,167 against.

On March 6, 1848, the general assembly adopted a joint resolution proposing an amendment providing for a census of the State's inhabitants in the year 1850 and an- other in 1855, and every 10 years thereafter, for the purpose of apportioning the repre- sentation of the counties in the legislature; and fixing the terms of State senators at 4 years .- Ibid, 1847-48, p. 443. Another joint resolution of the same datei proposed an amendment making judges elective. Both these questions were to be decided at the general election on the first Monday in August, 1849. They both were adopted, and a joint resolution, approved January 29, 1850, rati- fied them as a part of the organic law. As

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adopted, the amendments provided for decen- nial censuses; four-year terms for State sen- ators; one-half of them being chosen bien- nially; and popular election of judges (except chancellors), the circuit judges by the voters of their circuits, judges of probate and other inferior courts by the voters of their counties, cities, or districts.

There were no further amendments of the constitution of 1819 submitted to the people, but by joint resolution approved February 9, 1852, the question of holding a convention "to alter and reform the constitution" was proposed for the consideration of the voters at the general election to be held on the first Monday in August, 1852. The vote was ad- verse.

The next effort to amend the constitution was made in 1893, and the proposed altera- tion was purely local in character, relating alone to the city of Birmingham. An act was approved February 21, 1893, "To submit to the people of the State, at the general election to be held on the first Monday in August, 1894, for representatives, for their considera- tion, an amendment to section seven, article eleven of the constitution, providing a special tax of one-fourth of one per centum for the city of Birmingham, to be applied to the pay- ment of interest on the bonds of said city, and for a sinking fund to pay off said bonds at the maturity thereof." During the several years following the war the people of Alabama had suffered grievously from prodigal spending of the public funds, and the resultant high taxa- tion. When the Democratic Party gained con- trol of the State's affairs and undertook the framing of a new constitution in 1875, they were determined that neither the State, nor the counties, nor the towns should ever again be able to saddle the people with oppressive taxes. Hence section 7 of article xi provided that, "No city, town, or other municipal cor- poration, other than provided for in this ar- ticle, shall levy or collect a larger rate of taxation, in any one year, on the property thereof, than one-half of one per centum of the value of such property, as assessed for State taxation during the preceding year," with certain exceptions in regard to indebted- ness existing at the adoption of the constitu- tion. It was this prohibitive provision from which the city of Birmingham desired relief. However, the people were not yet ready to make an exception, and the proposed amend- ment was rejected.

In 1897 another attempt was made to amend the constitution in behalf of Birming- ham. An act approved February 16 proposed an amendment precisely the same as the pre- vious one with the exception that the maxi- mum limit of the tax rate to be permitted was one-half of one per centum instead of one-fourth. The question was voted on and the proposed amendment rejected on the first Monday in August, 1898.

At the session of the general assembly fol- lowing this election, an act was passed, ap- proved December 16, 1898, submitting the question of a convention to frame a new con- stitution. Delegates were elected; but a called

session of the same legislature, May 10, 1899, repealed the original act.

The result of the vote on the proposed constitutional convention was favorable, and a new constitution was adopted in 1901 which is still in effect. In 1907 the first attempt to amend the new instrument was made. Legislative Act No. 688 (without date) was passed and proposed "an amendment to the constitution of the State of. Alabama, for the purpose of providing for the formation and establishing of new counties out of portions of one, two or more counties as may be de- sired." The election resulted in the defeat of the proposed amendment by 4,902 votes. The result was-40,379 votes for, and 45,281, against it.

As a result of popular interest in Alabama in the subject of good roads, at that time being widely discussed throughout the coun- try, an act was passed by the same legislature (without approval date), "To submit to the qualified electors of the State at the general election to be held on the first Tuesday after the first Monday in November, 1908, for their consideration an amendment to section 93 of article iv of the constituion so as to provide that the State may under appropriate laws cause the net proceeds from the State con- vict fund to be applied to the construction, repair and maintenance of public roads for the State and the legislature may also make addi- tional appropriations for that purpose." This amendment was adopted by a majority of 19,988 votes-45,794 for and 25,806 against.

In the convention which framed the present constitution considerable opposition developed to frequent sessions of the legislature. There were many people who wished to minimize what was believed to be a business menace, as well as the trouble and annoyance occa- sioned by frequent changes in the laws gov- erning corporations and commercial interests. Their friends led the fight against biennial sessions and succeeded in having a provision for quadrennial sessions written into the new instrument. In 1907, under the leadership of Gov. B. B. Comer, an attempt was made to restore biennial sessions. Act No. 800 (without approval) was passed, "To submit to the qualified electors of the State, at the general election to be held on the first Tues- day after the first Monday in November, 1908, an amendment to sections 46 and 48 of article iv of the constitution so as to provide for biennial sessions of the legislature." This amendment was rejected by a majority of 9,436 votes; 27,915 for, and 37,351 against.

During the administration of Gov. Comer, the question of state-wide prohibition of the manufacture and sale of liquor was made a political issue. A fight was made in the special legislative session of 1909 for the submission of a constitutional amendment which should forever prevent the licensing of saloons. An act was approved August 18, whose caption read:

"An Act, To submit to the qualified electors of the State at a general election to be held on the first Monday after the expiration of three months from and after the final ad-

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journment of the present session of the Legis- lature for their consideration, an amendment to the constitution for the purpose of for- ever prohibiting the manufacture, sale and keeping for sale, of alcoholic and malt liquors and other intoxicating liquors and beverages, with the exception that alcohol may be sold for medical, scientific and mechanical pur- poses, and wine for sacramental purposes, under such regulations as the legislature may have prescribed, or may hereafter prescribe, and to declare that nothing in the constitu- tion of Alabama shall be construed to pre- vent the legislature under the police power from designating the places where such liquors may not be stored or kept."

A bitter fight followed in which both fac- tions put forth every effort to carry the elec- tion. The defeat of the proposed amendment was decisive, the majority against its adop- tion being 27,179; 49,093 for, 76,272 against; total vote, 125,365.

The question of compensation of State and county officers assumed prominence soon after the ratification of the constitution of 1901. It was discovered that certain officers of some of the larger counties were receiving yearly fees amounting to several times the salary of the governor of the State, and it was charged that in some cases the business of the offices was being administered with an eye to possible fees and not for the good of the county or to its people. As a result of the agitation of this question, steps were taken by the legislature of 1911 to have the con- stitution altered so as to change the compen- sation of certain officers of Jefferson County from the fee to the salary basis. An act was approved February 28, 1911, "To submit to the qualified voters of the State, at the general election to be held on the first Tuesday after the first Monday of November, 1912, for their consideration, an amendment to the Con- stitution of the State, so as to authorize and empower the Legislature from time to time alter the costs, charges of courts, fees, com- missions, allowances or salaries to be charged or received by any county officer of Jefferson county, including the method or basis of their compensation." The election was held on Nov. 5, 1912, and the amendment adopted by a majority of 46,531 votes; 62,417 for; 15,886 against; total 78,303.

The vexed question of providing for the indebtedness of the city of Birmingham was revived by the passage of an act, approved September 22, 1915, to authorize Birmingham to levy a tax not exceeding one and one-half per centum per annum on the value of the property situated therein. The amendment was defeated, December 27, 1915, by a ma- jority of 8,460-18,664 for, 27,124 against.

Since 1907 the financial condition of the State has constantly grown more straitened. The constitution forbids the creation of a new debt, "except to repel invasion or suppress insurrection," and increased appropriations have outrun the increase in returns from taxes. The deficit in the treasury has con- stantly increased up to the present time. When Gov. Charles Henderson took office, he

recommended as the only feasible plan for financial relief the adoption of an amend- ment providing the issuance of bonds in the amount of $1,500,000. The legislature of 1915 passed an act, approved July 27, "To amend the Constitution of Alabama so as to permit the issuance of bonds for the retire- ment of the floating debt of the State." The election was first set for December 20, 1915, but by act of September 17, was reset for January 18, 1916. An active campaign for its adoption was carried on, but the amend- ment was rejected by a majority of 21,937; 29,308 for, 51,245 against.

During the last few years public opinion in Alabama has been aroused over the ques- tion of illiteracy. A campaign of popular education on the subject has been conducted and legislative action obtained in the passage of an act, approved March 17, 1915, "To sub- mit to the qualified electors of the State, at the general election to be held in November, 1916, for their consideration, an amendment to the Constitution for the purpose of author- izing the several counties of the State and the several districts of any county to levy and collect a special tax, not exceeding thirty cents on each one hundred dollars worth of taxable property in such counties and in the several districts of any county, under such regulations as the Legislature may have prescribed or may hereafter prescribe." This amendment was intended to permit communities to tax themselves for the education of their own children. It was adopted by a majority of 21,798-69,341 for, 47,543 against.

The sentiment in favor of the abolishment of the fee system for public officials received further recognition by the passage of Act No. 20 (no date of approval shown) to submit the question of abolishing the fee system in Montgomery County and to place the judge of probate, sheriff, tax assessor, and tax collector on a salary basis. A majority of 11,796 in favor of its adoption was returned at the November, 1916, election-53,207 for, 41,411 against.

For the purpose of preventing discrimina- tion against savings banks in the State, an act was approved August 20, 1915, to submit an amendment striking out section 250 of article 13, which gives preference to holders of bank notes and depositors who have not stipulated for interest over other creditors of insolvent banks. A favorable majority of 7,962 was given at the November, 1916, elec- tion-51,996 for, 44,034 against.

An amendment, local in its application, was proposed by legislative act approved August 28, 1915, to submit an amendment authoriz- ing Selma to rearrange the levy of special taxes authorized by the constitution of 1915. At the November, 1916, election the amend- ment was adopted by a majority of 6,881- 50,373 for, 43,492 against.

Another attempt to secure biennial sessions of the legislature was made in 1915. An act was adopted by the senate September 8, and by the house September 20, proposing an amendment to section 48 of the constitution, so as to provide for biennial sessions. The

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amendment was lost by a majority of 8,338- 42,946 for, 51,284 against.

Another amendment was submitted to the electorate at the November, 1916, election, viz., "Shall the Constitution of Alabama be changed so that cities, towns and villages and other municipalities other than the cities of Birmingham, and Montgomery, Decatur, New Decatur and all municipalities located within the counties of Geneva, Pickens, Sumter, Baldwin, Dale, Escambia, Monroe, Henry, Houston, Marengo, Wilcox, Talladega, De- Kalb, Jackson and Marshall shall be author- ized to levy and collect annually a tax for gen- eral purposes not exceeding one-half of one per centum of the value of the property there- in assessed for State taxation during the cur- rent year in addition to the taxation per- mitted by section 216 of the Constitution of 1901 when authorized so to do by the quali- fied voters thereof; provided that the gov- erning board of any municipality may sub- mit the same to an election not more than once each fiscal year?" It was rejected by a majority of 3,094-41,686 for, 44,780 against. The act submitting this amendment was held on the governor's desk, and in con- sequence was not printed in the Acts, etc. This did not, however, invalidate the act, which under the constitution became oper- ative without executive approval.

REFERENCES .- Acts, 1827-28, pp. 157-158; 1828- 29, pp. 31-32, 94-95; 1829-30, pp. 78-79, 79-81; 1842-43, pp. 61, 224; 1844-45, pp. 208-209; 1845- 46, pp. 31-32, 243-244; 1847-48, pp. 443, 444-445; 1849-50, pp. 485-487; 1851-52, pp. 527-528; 1892- 93, pp. 882-885; 1896-97, pp. 1202-1205; 1898-99, pp. 90-97; General Acts, 1907, pp. 628-632, 740- 741, 909-911; 1909, Special sess., pp. 20-21; 1911, pp. 47-48; 1915, pp: 107-110, 211-214, 259-260, 289- 290, 337-339, 629-630, 674-677, 715-716; and Code, 1907, vol. 1, pp. 83-85, for copies of amendments to constitution of 1819; and secs. 390, 436-438, for special election provisions. The Alabama Official and Statistical Register, 1911, pp. 302- 320; 1913, pp. 278-282, contain proclamations and votes on the amendments proposed in 1907, 1909 and 1911. The Acts of the special session of May, 1899, contain the governor's message and the opinion of Judge R. C. Brickell, in which are set forth the reasons of the executive for the repeal of the act calling the convention.

CONSTITUTIONAL AMENDMENTS, UNIT- ED STATES. Of the 17 amendments to the United States Constitution, 12 had been adopted before Alabama entered the Union. The first to be proposed to the State for rati- fication was the thirteenth, which prohibited slavery and involuntary servitude in the United States. Alabama's people in common with all Southern people, having accepted the result of the War as final, offered no objec- tion to the prompt ratification of this amend- ment, which was done by joint resolution of the legislature, December 2, 1865.

The fourteenth, known as the civil rights amendment, was not so acceptable to the peo- ple of the State. Its adoption was proposed to the legislatures of the several States by concurrent resolution of Congress, June 16,

1866. With his message of November 13, 1866, Gov. R. M. Patton transmitted to the legislature a duly attested copy of the reso- lution of Congress, and stated at some length the various objections which he thought should prevent its ratification. The first sec- tion of the proposed amendment, which guar- anteed civil rights and forbade a State to "deprive any person of life, liberty, or prop- erty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," he considered super- fluous, since the Federal Constitution and that of every State of the Union already guaran- teed all of these things. The second section was especially repugnant because it would practically revolutionize the existing repre- sentative system of government, and would operate as an unjust discrimination against the Southern States. The third section, which established a test of eligibility for Fed- eral office, he regarded as still more objec- tionable. Among other arguments, he as- serted that "if the disabilities imposed by this third section be designated as a punish- ment for acts heretofore committed, the amendment would operate practically as an ex post facto law, which is contrary to the whole spirit of modern civilization. The creation of a penalty to be imposed as a punishment for an act, after that particular act has been committed, is a thing unknown in the history of enlightened liberty. Such a mode of dealing with citizens charged with offenses against government belongs only to despotic tyrants. It may accomplish revenge- ful purposes, but it is not the proper mode of administering justice." The legislature, act- ing upon the governor's suggestion, refused to ratify the amendment; and, partly for that reason, Congress refused to recognize the reconstructed government, or admit the State's representatives. Notwithstanding his strenuous objections so forcibly and fully stated in the message above referred to, Gov. Patton sent a special message to the legisla- ture, December 7, 1866, in which he advised its immediate ratification. The reason he gave for his change of mind was that recent events had shown the cardinal principle of restoration to the Union to be favorable action upon the fourteenth amendment. He was still opposed to its principle, he said, yet believed that necessity must rule. The amendment was ratified during the first day's session of the next legislature, July 13, 1868.

The fifteenth amendment, providing that the right of citizens of the United States to vote shall not be denied or abridged on ac- count of race, color, or previous condition of servitude, was proposed to the various States, February 27, 1869. It was promptly ratified by the Alabama Legislature at the first ses- sion after its submission by resolution of November 24, 1869.

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History of Alabama and dictionary of Alabama biography, Volume I, Part 71

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869- Publication date: 1921 Publisher: Chicago, The S. J. Clarke publishing company Number of Pages: 756

Author: Owen, Thomas McAdory, 1866-1920; Owen, Marie (Bankhead) Mrs. 1869-
Publication date: 1921
Publisher: Chicago, The S. J. Clarke publishing company
Number of Pages: 756