The Montgomery advertiser., 1901-06-22


 joint convention should superxIss and control him, then we hafnessed him up, and put him in the power and con troi of the Convention. and we thought tt wise not to use the word "ministe- riaf--as ? was proceeding to explain to my friends when he asked his ques- ton.
 Now. there is decision of the su- preme Court of Alabama, made some twenty-five years ago. and which is still the law, in which Chief Justice Brickeil says: "It may not always be easy to ascertain the real character of the power entrusted to a judicial or ministerial ofic~r. When the power is clearly defined and en5oined, does not involve the exercise of the discretion or judgment, and no alternative fs left to the officer charged with its execu- ton: vixen he must act without tn- quiry, without evidence. and the mode of the action is expr essly declared, the power Is purely ministerial When, however. tho power involves the exer- else of judgment and discretion. when 1t has to be exel cised only in an ascer- tained event, and on the occurrence and existence of particular facts, and the officer charged with the execution of the power must determine whether the event has arisen, or the fact ex- ists, requiring its exercise, then the power Is judicial, or in It's nature judi cial."
 Bearing this definition in m.nd, the Committee did not wish to use the word rmiristerial," and deliberately rejected the suggestion that the Joint Conven- ton of Alabama could be put in a straight jacket. bound to count any returns that came up here, no matter what questions arose. after the result was deciai ed in the counties below.
 Let Us see, Mir. President. what might arise before this Joint Convention. A gentleman sends up the returns and says this is the returns from my coun- ty. the one you have Is a forgery. The Joint Convention must decide that auestion. They must decide which is the true return. They exercise and must exercise judicial power in that regard.
 Then, again. Mir. President. suppose some member of the Joint Convention says. MT. Speaker, when the result was declared in my county. John Brown had only a thousand majority: that ts an admitted fact, but these returns have been tempered with. and. in order to change the result of the election in Alabama. 1t Is now stated that Brown had two thousand majority" We did not wish to have the representative of the people of Alabama in joint conven- tion made so impotent that by the very letter of the Constitution that they are bound. in the first instance. to bow to . fraud, be cause 1t was in the form of return. The committee considered some other matters in this connection. There is Q penalty, 1 believe, or $Seo on the officers for not making the re- uYa v,auef 0nnstAAT and NrnVf6A for all contingencies that may arise. Suppose there is close election In Alabama, and a partisan board, of either party, declines to send up the papers. There Is no return before the Joint Convention from that county. Is the Convention to be bound and shack led like a slave, and compelled to de- clare the result on the face of the re- turns they have. though by that act they reverse the will of the majority of voters in the State?
 I rt>nember seeing Governors pri- vate $icrstary, some ten or fifteen years ago, in great distress, and ask ,d him what was the matter. He said. T am afraid I have lost the Government" :" These returns came in here, some in August, and along at different times. I have filled up one pigeon-hole with the first batch of them. There were eight or ten other returns sent here. which cannot find. I do not know what to do; the count comes off in q day or two. have not time to write and get new returns" If the Joint Convention is put in a straight jacket. after the plan of my friend from Sum- ter, this Convention, representing the sovereign people of Alabama, which also decides a contest when one is waged, would, in a case like that, If the missing returns had not been found, have to sit here like a set of dummies. They could only say. Yes, Mir. Speak CT. the Constitution fixes your duty to be that merely of announcing the result on the face of these returns" although some are missing. The VIII Of the people might be defAAtAd by compelling this joint convention to go ahead, when it did not have all of the returns.
 MT. Walker-WiIl the gentleman al- low me tc ask question?
 MT. Jones (Montgomery)-Cert Mir. Walker--Ia not the effect of the provision. as reported by the commit tee, to put 1t within the power ot the joint convention to make itself the CanvassInR Board. to count the .'e- turns from every County in Alabama, and ignoring the returns as sent up here?
 MT. Jones (Montgomery)-No sir. The rrovision Is that their functions are confined in that particular matter. to ascertaining that the returns sent up here werG the returns declared below. No matter how fraudulently It may have been made. the joint convention cannot so beyond that. They can see. however, that the returns sent them tr,,iv dAcIuara the -eturna aR made bv the Supervisors in the several Coun- ties. It Is specially provided that the Convention Is confined to tts particu- lar powers specifically defined in the section, and shall not question a re- turn in any other respect or in any other matter. think if my friend will look at that he will see it is not sus- ceptible to the construction he places on 1t.
 MrGi walker-Under one q the clauses which l see here the conven- ton can correct any errors in the re- turns, and If they can do that, they change the result.
 Mir. Jones (Montgomery)-They can correct an error and change the result if 1t was based in error. That Is right and is only carryingout the will of the people as declared in 1872, when what was called the Capitol Legislature had the returns. By the oversight of the clerk who made out the returns, they gave in one County a large majority that the Republican Treasurer and Au- ditor had received to the Democrat candidates who had not received those votes. It was a notorious fact that that was not the result that had been declared below. The Capitol Legislature respecting the known win