The Montgomery advertiser., 1904-10-07
SPECIAL SESSION OR NOT?
 DILEMMA NOT YET SETTLED
WILL DECIDE TODAY
GOVERNOR TO ACT ON EXTRA LEG.
 ISLATURE.
gsstisexs Urge Chief Executive to Re- sseve Situation Caused by Inval- tdity of the Lusk Judi
 cfal Act.

tdity of the Lusk Judi ' eial Act.
 l Extra session or no extra session of the Legislature?
 That question will be answered fin- ally and decisively by Governor Cum ningham today.
 A dozen or more prominent citizens of Alabama mainly from the North less and anxious night in the hotels of Montgomery last night They had I waited about the Governors once i throughout the day and each of. them had an earnest interview with the Governor in which he was urged, to call the Legislature together, with all the eloquence that could be com manded. The distressing condition in which the failure of the Lusk act left thc courts in their section, the dis dressing condition into which party affairs were plunged were dilated up on. The Governor was urged to apply the only remedy that was to hand. The Governor received yesterday the opinion of Attorney General Massey Wilson, speaking as the States legal expert, on the situation of the courts and the power of the Governor to meet emergencies which might arise. The tenor of the opinion was that the Gov ernor would probably be able to meet all emergencies without special ses- sion. The Governor called into con- ference Chairman H. s. D. Mallory of the State Democratic Executive Committee. Supernumerary Judge A. H. Alston was also called into a con- ference with the Governor. A compar- ative statement was made out for the Governor showing the number Of weeks each judge held court during a year in his circuit.
 Court officers of the circuits which were destroyed by the decision of the Supreme Court in the decision of the Lusk act sat up with the Governor. Friends of the court officials and leading citizens in their section used their persusavive powers upon the Governor.
 The Governors dilemma was equal almost to that of the Northern Cir cults of the State and to that of the party authorities. The situation has given the Governor no little concern. He Is the only doctor in the case, the only one who has authority to pre- scribe and prepare the remedy that conditions demand.
 There was a we'll defined impress sion at the Capitol yesterday that the Governor was not favorably disposed to an extra session. His position has from the outset been. that he would not issue the call for the special session unless 1t was absolutely necessary. It was that he would have to be shown the necessity for the assembling of the Legislature, the absolute necessity. In view of the opinion of the Attor- ney General, which was handed the Governor yesterday afternoon, 1t was halieVaA m fhnaa n ing the necessity of an extra session had not entirely made out their case of the necessity for the extra session sufficiently strong to satisfy the Gov ernor.
 The Governor had not, however, final ly made up his mind. He may decide today that the assembling of the Legis- lature is necessary.
 The vital question at issue Is whether the congestion of the court dockets un- der the old Judicial system will be so great that 1t will clog the wheels of justice. In deciding this question the Governor wanted to know If 1t was possible for the two courts to be held at the same in the same circuit. The Attorney General was of the opinion that this could be done. under certain conditions. and he outlined the condi- tions under which 1t was possible.
 It Is said by attorneys. however. that the Supreme Court has not passed directly and definitely upon this ques- tion
 The Attorney General holds, too. that the decision of the Supreme Court would not deprive any county of all its courts of law and equity.
 The opinion it will be recalled was submitted by the Attorney General at the request of the Governor
 Writing to Governor Cunningham yesterday Attorney General Wilson said:
 T have your favor of the 4th inst. propounding the following question:
 'First-Does the invalidity of the act to amend Section S97, S9S. 906, 90s, oil. 912, 9l3, 914. 915, 916, 917, Article l, Chapter 19 of the Code of Alabama deprive any county in the State of Ala bama of common law or a court of equity?
 'Second-When a judge of a circuit couT\ calls a special term of court in any county of his circuit. can the super numerary judge hold the regular term of the court in another county of that circuit?
 'Third-Can a special judge be ap- pointed to hold court in a county when the circuit judge is engaged in holding a special term of the court in another county of that circuit?
 'Fourth-Is there any authority to provide a special solicitor to represent the State where the supernumerary judge or special judge. if lawful, Is holding regular term of the court and the solicitor of the circuit is engaged in representing the State in the special term called by the circuit judge?
 'Fifth-Can the legislature validate or in any way legallze acts performed by courts provided in the above in- validated act?'
 q proceed to answer the same seria- tim:
 "First-Strictly speaking the invali dity of the act mentioned in question one. does not deprive any county In the State of q common law court or a court of equity. It is invalid as whole. void, a nullity. and is IS impotent for the purpose of taking away courts that existed at the date of It's attempted en- actment as 1t is to create new ones. desire. however, in this connection to call your attention to the following consideration: Walker and Winston Counties under the Code. of 1s9s (Sec- tions s3o and 633J compose the second district of the Northwestern Chancery Division, and the court for said dis