The Montgomery advertiser., 1905-02-18
Had No Authority For Dr.
 dinanceS. ACTION IS REVIEWED Could Not Legally Create New
 County Seats. Measures Establishing Courthouses ut Peu City and CaIcis Held to Be
 Void in Learned Opinion
 by Justice Anderson.

Champions of the absolute sover" eighty of Alabama Constitutional Con- ventions were yesterday impaled by the State Supreme Court which thrust a long and vigorous opinion at extremists of this class
 The highest reviewing power in Ala bama has been engaged for many weeks in bridling the Legislature: Yes terday, at one stroke, 1t overturned the common arguments that once the Con- stitution Convention of a State Is started 1t is all-supreme and every thing by it done Is immutable and as fixed as the stars In the Armament. The only authority that could undo the work. they insisted, would be another convention.
 St. Clair Courthouse Case.
 The case in which the Supreme Court found an opportunity to settle this mo- mentous question for the first time in the history of the State, was that of ex parte Birmingham and Atlantic Rail- road Company. This was a petition for a writ of prohibition aimed at the de- struction of the St. Clair County Court house and jail at Pell City.
 In granting the peremptory writ of prohibition. the Supreme Court nullified the ordinance of the Constitutional Convention of 1901. which authorized the second temple of justice and jail in St. Clair County. The effect of the | decision is not only to stop court In this courthouse and Imprisonment In this jail, but to prevent the construc' 1 tion of a branch courthouse and jail for Shelby County at Calcis, which was authorized by the same ordinance of the 1901 convention.
 Justice Anderson, who wrote the opinion, asked himself the question Gan a Constitutional Convention pass valid ordinance without referring it 1 to the people for ratiflcation?" In 'fourteen-page typewriter docu- ment Justice Anderson concluded that such action Is usurpation of power and put in the same category the proceed ing of the Constitution makers of 1901 who attempted local legislation in the St. Clair and Shelby County matters. Chief Justice Mcclellan and Justices Haralson, Simpson, and Denson con- cured in the opinion, Justices Tyson and Dowdell dissenting.
 The Constitutional Convention of 1901 was called by authority of the Legis- lature of the same year after a vote of the people had been taken on the issue, The act stated that the purpose of the convention was to revise and amend the constitution as 1t then stood. the in- strument that had ruled the State since the convention of 1875.
 UsurRatiOn of Power.
 ''The ordinance in question:" says Justice Anderson, pertains in no way to an amendment or revision of the Constitution, and 1t was beyond the power of the Convention (of 190D to pass this ordinance and 1t could not become binding or of legal force with ho aaIhu1itfad and f. fled by the people"
 It was pointed out by the assailants of the conventions supremacy that Ordinance No. 3S0 was passed in due form. It provided that branch court houses and jails should be built In Shelby and St. Clair Counties at towns to be determined by a vote of the peo- pie.
 It was shown that when Governor Jelks issued his proclamation and the pamphlets containing the body of the Constitution as framed, no mention waa made of Ordinance 390. Although the pamphlets were intended to familiarize the voters with the provisions of the Constitution previous to a poll on It's ratification or rejection, all reference to the ordinance in question was omit ted.
 It was clear that the framers of the Constitution thought themselves su- preme. They believed that 1t could or could not submit the ordinance to the people, and in either alternative the work of the body would stand.
 Just there the Supreme Court called a halt. And in calling the halt the Court aligns itself with such authori- ties as Cooley. Jameson, and the Su- preme Courts of Pennsylvania, Massa- chusetts, Texas South Carolina and Arkansas. Other State Su- preme Courts have, however, de- cided just the opposite, investing Constitutional Conventions with the sovereignty of the people.
 Tt is doubtless true" continues the opinion of Justice Anderson. that the county est. Clair) has expended a large sum for a courthouse and jail and that failure to hold a term of court al Pell City may put many of the people to no little inconvenience.
 Legislature May Remedy.
 These facts should be considered by the Legislature, which is the only de- partment of the Government with the authority to establish two courthouses in one county. and then only after com plying with the constitutional provl- slons,
 considerations of need and expedi- ency should not and will not deter the courts of the law from annulling an