The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1898-12-28
Colonel benson Takes the Same
Side In an Interview.
CANNOT DISREGARD CONSTITUTION
Without Submitting Question to the
People For Ratifcation-Deleg
to theaConstitutional Conven-
ton is an Office of Profit.

The story in yesterdays AgeHerald re-
garding the qualifications of delegates TO
the constitutional convention has attracted
widespread attention
While a majority of the lawyers contend
that office-hoders are eligible as delegates,
it furnishes topic for conversation and
there are few who take an opposite view
Mr.. DuBose has another card this MORN
ing. maintaining that his position assumed
in the first card is correct. He has some
thing to say of the argument advanced by
a number of lawyers in the columns Of The
Age-Herald.
Colonel w. A. benson takes the position
that Mr. DuBose is correct and that office
holders cannot serve as delegates under the
present constitution.
mo one holding an office of profit under
the present state government is eligible to
seat in the proposed constitutional conven-
ton, save as excepted in Article XVI of
the constitution" said Colonel benson.
LET no be deluded with the idea
constitutional convention is over and
above the state government. constitu-
ton is not the beginning of law in this
state; wipe out the constitution and We
would still have state government, our
statutes and the common law principles
that prevail among us. a state constitution
is not a grant OF governmental power, but
limitation thereon, save as checked BY
the federal constitution.
1T is not a matter of dispute among jur-
lists that the restrictions contained in the
act, providing for the holding of the
stitutional convention, are a limitation upon
the power of that convention. disregard
n thOGa w ha nj n
nugatory, unless perhaps submitted back
to the people for their ratification, and even
about this there is some Dispute. When the
legislature passed the act calling into exist
ence the Constitutional convention 1t was
then exercising the sovereign power of the
people for that purpose under the present
constitution.
"A populr conception of the duties, the
oath, the duration and tennet of the trust,
and the fact the discharge of the duties
embrace the law-making power of the peo-
pie, and pertain to the administration of
sovereignty, constitute a member of the
constitutional convention an officer of the
state, and under the laws of the state, how
ever august the phrase and dignity that is
attached to the expression delegates to the
constitutional convention
ut is not to nomenclature we must look,
but to the duties, the oath and the tenure
of the incumbent, to determine whether one
filling a position is or not an officer.
Article XVI of the constitution, last
clause, reads: Nor shall any person hold
two offices of profit at one and the same
time under this state, except justices of the
peace constables, notaries public and
commissioners of Deeds
II take 1t for granted that no intelligent
mind, after consideration, will dispute the
fact that member of the proposed consti-
tutional convention will hold Office under
the state. Is such Office one of profit? The
compensation is the same as a member of
the general assembly, 81 per day.
Does Not Disqualify Him
at seems to me- said E. K. Campbell,
'that the fact of ones holding an office
will not disqualify him from being a dele
gate to the constitutional convention. The
office referred to in the previous constitu-
ton is evidently an office in one of the three
branches of government, executive, legisla-
tive or judicial, and the constitution in
hibits 'one person from holding wo
Offices That is to say, two offices which
may be classed as executive or judicial or
legislative.
but the office of a member of the con-
stitutional convention does not belong to
either of these classes. That convention Is
to frame scheme of government-which
must of course, be a republican form of
government and in that scheme will pro-
vide for the three different departments of
government, and may make radical
changes in the provisions of the present
constitution as to one or more of the present
departments. If Article XVI is limitation
upon the rights of an office-holder to be a
member of the new convention, why may
not 1t be said of equal force that other
provisions of the present constitution are
limitations upon the action of the new con-
vention?"