The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1897-10-31

Probably the most instructive teaching
on constitutional limitations we have in
the literature of Alabama appears in the
argument and in the decree in the case
Dorman VS.. the State.
The act to incorporate the Southern
University of Greensboro forbid the sale
of intoxicants within five miles of that
town. Amasa M Dcrman then had a
saloon open at Greensboro and continued,
Notwithstanding the passage of the pro-
hibitory act. to sell liquor over his coun-
ter. He was indicted and tried before
William NJ. Brooks, circuit judge, at the
regular term of the court Brooks held
the law to be constitutional and that
the Indictment was not void on the de-
murrer of insufficieney. The supreme
court held the law was constitutional,
but the indictment was void on the
grounds of the demurrer and Derman
went free.
The argument of counsel and the de-
cree of the court show, infsrentially, the
soundness of the theoretical proposition
that in a popular government, it is nee
essafy that the voters shall keep their
power of amendment up with the reforms
which society requires in constitution.
The people can keep constitution
abreast of their own social development
alone by altering it to suit their own
will If they fail to alter, amend or re-
pair the constitution the legislative and
judicial functions of government and,
perhaps the executive also. are inevfta-
bly, if not necessarily bound to supply ar
bitrarily the change needed.
The people Interested seem to exact the
arbitrary action. Take, for example,
the OBrien school law, applicable alone
to Birmingham. Probably no one doubt
ed the court would extinguish the stat
ute at the first opportunity. But Bir-
minghams manifest interest demanded
the particular tax the bill imposed. TAX
ing the chance with the court, even if
the city was thrown, the city's protest
against the inadequacy of the organic
law of the state might not be wholly in
effeetual to secure final relief.
Being an eye witness to the desperation
of these conditions, when the constitu-
tional convention of South Carolina met,
about that time, | wrote brief letter
to United States S ma or Tillman, MEM
dicat,ons- that a state constitution g6hn-
orally required repairing of a radical
nature a.. least once in twenty years;
and citing decisive proof that the federal
constitution had needed repair so badly
in 1893, in 1865 and now, about this time
that usurpation of power by each an6
all the three coordinate powers of gov,
ernment had been the result of the ne
gleet.
The remedy that suggests itself, is q
proviso of the constitution itself requir-
ing a convention to revise the instru-
ment at stated periods. Mr.. Tillman
brought in a proylso requiring a con-
stitutional convention once in twenty
years. 1t failed of enactment, but II
got a good vote. The proposition was
new and had not been known before
hand to the press or the people. I an
convinced deliberate reflection on it viii
bring many friends to its support in
future conventions.
The decree in the Dorman case was
tantamount to an amendment to the con-
stitution Of Alabama. 1t was rendered
in 1866, at the exact time when the
democratic party was reformed, formally
purpose. The reformation was under.
taken for the purpose of incorporating
many individual wings, who were state
rights men. The convention had tho
desired effect. This state informal
convention met in the hall of the house
of representatives on the night of Jan
s, 1856.
The party then and there formed was
the dsmocratAc and anti-knownothing
party. The next May this party met ir
state convention, sent delegates to Gin
cinnati with the same resolutions thai
were sent to Charleston in 1860 and
placed Mr.. Yancey, their author in 1S4S
at the head of the electoral ticket, thus
virtually putting him into political life
again, after several years restraint, and
practically giving him the adsarshir
of the controlling party of the statel
If the people of Alabama ever have
learned to complain of the act of Sc
session in the state which IS not true
they have only themselves to censurt
that the decree in the Dorman case be
came the educator of all the young law
yers in the theory of state rights instead
of an amended constitution as the only
Alabama with great unanimity accepted
the decree in its liberal meaning.
e. w. Peck was Dormans counsel, the
best he could have retained, for Judge
Peck was what was then and may YET
be called consolidationist. Added to
his own conscientious convictions o.
right and truth in his side of the con-
troversy before the court, he was a law
yer of profound acument and rema rl1a-
BILE lucdity of argument. In the recon
struction times he was chief JUS ice and
his decisions We're in harmony with his
contention as counsel in the Dorman Csc
He spoke warmly of the correc ness OF
his constitutional view in that case when
ever occasion offered in forty years III
lived after the trial of 1t.
Dorman's counsel commended in this cas-
that the state legislature Is withou
power to withhold from any citizen
right of commerce allowed to anothe
citizen. If the legislature prescribe,
qualifications under which one either
may trade, no citizen shall trade lawful