ALABAMA. 



17 



(Peck) and an associate judge (Peters) coin- 

 cided in the opinion that the Assembly was a 

 legal body, and the election valid, but the 

 other associate judge (Saft'old) was of the opin- 

 ion that the Court-House assemblage was not 

 the General Assembly. 



The Chief-Justice, in his remarks, said : 

 The Senate and House of Representatives, each, 

 since their organization, under the proposal of the 

 Attorney-General of the United States, made for 

 that purpose, has declared that certain persons, who 

 had one certificate of election, were elected by the 

 people, and certain other persons, who had certifi- 

 cates of election, were not elected by the people : 

 and the first-named persons have been declared and 

 recognized as members of the respective Houses. 

 This is conclusive upon us, and we have no power 

 to review or revise what lias thus been done. These 

 persons, if elected by the qualified electors, were 

 members of the General Assembly from the day of 

 their election, and, being members, then the two 

 bodies who convened and organized at the Court- 

 House in Montgomery had a majority in both 

 Houses, and, having such majority, when recognized 

 by the Governor, were a constitutional General As- 

 aembly, and were competent to do any act, as a 

 General Assembly, except such acts as can only be 

 done by a majority of two-thirds of the members of 

 each House. They could elect a public printer, or a 

 Senator to the Congress of the United States. 



Judge Saffold, on the contrary, held as fol- 

 lows: 



Notwithstanding this inquest determined that the 

 Court-House assemblage had a mijority of each 

 Home, I insist it was not the General Assembly. 



A Legislature, to be such, must of course have all 

 ths powers which it may exercise. Some of tho 

 powers require to be exercised by two-thirds of each 

 House. Cjri a bare majority, in favor of such exer- 

 cise in a particular instance, oxpol the minority op- 

 pesed, or refuse to let them meet with them > May 

 the majority, wherever congregated in the city of 

 Montgomery, assume on the instant to be the Legis- 

 lature and pass a law I These extreme cases sug- 

 gest the right, both of the minority and of the peo- 

 ple, to have their voice in the passage of laws, or the 

 performance of other duties by the Legislature. 



The rule I deduce for determining tho right of 

 the majority to hold a session of the Legislature, 

 and the right of the minority to be present, without 

 which the majority cannot legislate, is this : tho 

 minority must be absent either necessarily or will- 

 fully, without fault on the part of the majority, to 

 enable the latter to hold such session. It they are 

 sick, or unable from any cause to come, or if they 

 are refractory and will not come, the majority may 

 proceed without them. But if their absence pro- 

 from a reasonable belief that the body claim- 

 ing their attendance has no right to do so, their ob- 

 jections ought to be removed through conference 

 with them, or they should be placed in fault by suoh 

 attempt, so that they may be brought in by com- 

 pulsion. When a l.ir^t; number are absent, their at- 

 tendance ought to be compelled, becausa the people 

 have a right to the influence they may exert, and 

 also to have all doubU about the validity of tho 

 Legislature removed. 



The two Houses of the Legislature assembled 

 on January 13th, and proceeded to examine the 

 contested seats, aivl to transact such business 

 as might he done without either recognizing 

 the existence of the other. These oases were 

 o concluded that the majority was thereby 

 s 'fired for the Republican side in each House, 

 that is, there was a tie in the Senate, where 



VOL. XIII. 2 A 



the Lieutenant-Governor had the casting vote, 

 and a majority of the House. On February 1st 

 the house sent a message to the Senate, inform- 

 ing that body that the House was duly organ- 

 ized, and ready to proceed to business, and 

 that a joint resolution had been adopted, to 

 appoint a committee to wait on the Governor, 

 and inform him of the organization of the 

 General Assembly. The Senate concurred in 

 tho message from the House, and appointed a 

 committee in accordance with the message. 



Among the acts passed at this session of the 

 Legislature was one restraining the counties, 

 except for certain special purposes, from levy- 

 ing more than one-half per cent, tax for any 

 county expenditures. Another act provided 

 for the acquisition by purchase of a portion 

 of West Florida, for. a million dollars. The 

 provisional contract of sale of the Alabama & 

 Chattanooga Railroad, its franchises and lands, 

 made by the Governor with the New Orleans 

 & Northeastern Company, was ratified. An- 

 other act authorized any railroad company, 

 incorporated under the laws of Alabama, and 

 which might be entitled to an indorsement by 

 the State upon its first-mortgage bonds, to re- 

 linquish its claims for any further indorsement 

 of its bonds, and to receive from the Governor, 

 in lieu of such further indorsements, bonds of 

 the State bearing seven per cent, interest in 

 gold-coin, and having thirty years to run, to 

 tho amount of $4,000 per mile upon the num- 

 ber of miles of its road, as completed from time 

 to time, in sections of not less than five miles. 

 For the first five years after tho issue of any 

 bonds to a company, it is required to pay into 

 the State Treasury three-fourths of one per 

 cent, of its gross earnings, and after five years 

 it is required to pay five per cent, upon tho 

 gro-w earnings upon the line of its road, for the 

 previous year. 



This payment is to be continued annually 

 thereafter until the bonds issued to that com- 

 pany shall be extinguished. At the time of 

 tho passage of this bill the State was indorser 

 for all the railroads to the extent of $17,028,- 

 327. It was stated at the time that this prop- 

 erty, on which the State held a first-mortgage 

 lien, wns worth, for purposes of taxation, 

 $18,051,042. The Governor, in his message, 

 previously estimated that the railroad property 

 on which the State held a Hrst-mortgage lien 

 would secure her against ultimate loss. He- 

 added : " Were the road* sold to-day, under 

 the mortgages and liens of the State, three- 

 fourths of them would realize the amount of~- 

 the indorsements, while the remaining one- 

 fourth, embracing only- about seventy-five 

 miles, would realize little less than the amount 

 of indorsement. This is the opinion, too, of 

 persons of experience and matured judgment 

 in rnilroad matters. The security being equal" 

 to her liability, it is false and injurious to in- 

 clude, in the estimate of the State Indebted- 

 ness, the amount of railroad indorsement." 



Under the act above mentioned, the railroad' 





