The Montgomery advertiser., 1904-09-10
THE LUSK ACT TO BE TESTED Appeal is Filed With
 Supreme Court. IT MAY CAUSE CHAOS Special Session of Legislature
 is Possible. Chief Justice Mcclellan Considers an Extra Session of His Court on
 September 2O-to Give
 .. An Opinion.

The Lusk Judiciary act is before the Supreme Court of Alabama for a final ruling upon its legality and con- stitutionality. The transcript of the case from the court of Chancellor J. c. Carmichael. of Birmingham was filed in the office of the Supreme Court yes terday.
 Judge Carmichael in passing upon the Lusk act held that there was no such law The journal of the House. he said, failed to show that the bill had passed the House. The decision of Judge Carmichael endorsed the opinion of many of the rtading law yers of the State who believed the Lusk act would never stand the test of the courts.
 Wide Field of Possibility.
 This case from the Jefferson Coun- ty Chancery Court opens 8 wide field of interesting possibilities. There is a probable special session of the Su- preme Court to pass upon the case. There is a second probable extra ses- sion of the Alabama legislature to re- store order out of chaos in the judi cial affairs of the State if the act bC uECiafco bicSdh ot stitutional. In other words if the Su- preme Court should take the same view of the act as Chancellor Carmichael. Governor Cunningham would have no other alternative than to call the leg islature together that new judicial system might be established.
 The Governor has discouraged the talk about an extra session. He said that the legislature would not be called together unless he was abso- lutely compelled to issue the call. It Is contended by lawyers that if the Lusk act fails to stand the test of the courts that the legislature will be compelled to meet and make provisions for the judiciary.
 The Supreme Court may be called together In special term on Septmber 20. Chief Justice Mcclellan has writ ten to his associate justices asking their views on @ special session and suggesting September 20 as the most convenient date. It is believed that the other justices will accept the sug- gestions and agree to the special term
 How Case Was Raised.
 The test case on the Lusk act was brought in the Chancery Court of Jef- ferson County upon the demand of the additional circuit Judge of Jefferson county TOT quarters Tn tne county court house. This additional judge was created by the Lusk act. The county officials contended that the Lusk bill had never passed the House and had therefore never became a law. It was further contended that as the bill had not bcorne Q law there was no such office as the additional judge. The court sustained this contention.
 It was established to the satisfac- ton of the court that the bill had nev- eer passed the House. It was proved that instead of the bill being passed in a constitutional way, only the report of a committee was adopted by the House.
 It Is interesting to recall that the first test case against the legality o1 the Lusk act was made by the attor- neys for Ralph Armstrong who was convicted of the murder of his cousin in Macon County. Armstrong was tried and convicted at a special term of the circuit court of Macon County which was held under the Lusk act His attorneys then held that the Lusk act was neither legal nor constitu. tional. They carried the case to the Supreme Court but before 1t came tc trial Armstrong hung himself in hii cell It is believed that he woult have secured new trial