The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1909-11-10
THOS. w. COLEMAN, OF
EUTAW, SUBMITS ONE OF MOST
CONVINCING ARTICLES YET
WRITTEN ON SUBJECT.

against the amendment to the constitu-
ton. Judge Coleman was for a long
time member of the supreme court OF
the state. He was a member of the con-
stitutional conventions of 1865 and 1901
and his words will have great weight
with large circle of friends and adj
mirers. Judge Coleman writes as fol-
lows:
Some confusion of ideas would be
avoided by the observance of a few ac-
cepted rules applicable to the proper
framing of constitutional provision and
the Interpretation when framed.
One of these, and one generally con-
coded. is that it is not the purpose and
should not be regarded as being within
the province Of a state constitution to
confer upon the legislature any power
| of any character whatever. AS all the
| people can not meet to frame laws the
| legislature representing all of the people,
is just as supreme and absolute as the
whole people would be in convention
sembled, except when the people by cove
nant with each other and for the protec-
ton of each other have agreed that
their representatives as a legislature,
shall not modest or interfere with certain
reserved rights, and this covenant of the
people with each other is evidenced by
the constitution. The constitution was
not adopted to confer power but to re-
strict power.
No provision which invests the legisla-
ture with authority at its discretion to
modify or restrict or invade the rights
and privileges reserved in the bill of
! rights should ever become a part of the
constitution. A discretion to act is in
consistent with the prohibition to act No
security or personal privilege in the bill
of rights can be relied upon as a con-
stitutional protection If the legislature is
vested with authority to trespass upon
1t at discretion. These propositions 1
| believe to be sound and arise in the pres
ent controversy.
| know sometimes there are constitu-
| tional provisions not self-executing af-
firmatively and require legislative action
to make the provision affirmatively avail
able. Such provisions exert only an exc
cutting force but are not in any respect in
conflict with the soundness of the prin-
| ciples stated.
The next rule is this-a rule perhaps
more often overlooked in analyzng a law
than any other of so much Importance,
and that is the proper test to apply to de-
termine whether a statute has been
framed with precision, and especially
should the rule be applied in framing a
constitutional provision, not only whether
much good may be accomplished under 1t
and wrong and injustice prevented, which
should be within the scope of any leg
islative enactment, but the legislature
should carefully scrutinize and analyze
the wording and determine whether
wrong act or an injustice may also be
done and yet not transgress the statutory
or constitutional provision.
I wish to be clearly understood on this
proposition. The test is not whether good
may be done by virtue of the law but
whether 1t is possible to execute the pro-
vision in any way as to work manifest
injustice and oppression. If the proposed
law can so enforced as to visit injustice
and oppression it should be amended. and
If it can not be so amended it should be
rejected by the legislature, or If 1t be
constitutional provision to be adopted by
the people it should be rejected by the
people. If this is not a sound rule never
to be dispensed within all matters per-
tanning to the secured privileges by the
bill of rights I am unable to detect the
fallacy, and 1 have been unable after
much thought and investigation to find
any reason statement In any recog-
nized authority to the contrary.
I have discussed the purpose of a state
constitution in a representative govern
ment like ours I think l have demon
strated that provision in the consti-
tuition which may be dispensed with or
avoided by the legislature at its discre-
ton is in no proper sense constitutional
provision as distinguished from q mere
legislative enactment. think 1t is equal
ly clear that no provision should be
made organic law which may be so en-
forced by legislative actions as to work
injustice or oppression to the right of
the citizen now secured to him in our
present Bill of Rights. I wish now to
apply these tests to the second section
of the proposed amendment. It reads
as follows: Section 2. Nothing in tho
constitution of Alabama shall be con-
strued to prevent the legislature, under
the police power. from designating places
where such liquors may not be stored
or kept"
This section should be thoroughly anal
yzed to grasp its full meaning. First. it
contains an absolute prohibition upon
the courts to the effect that nothing in
the constitution of Ala ALBANIA mot in the
amendmenD shall be construed as to
prohibit the legislature from designating
where such liquors may not be stored
or kept.
I see 1t claimed by DR.. Dickinson and
others that here is grant of authority
| to the legislature We have seen that
It lis not the province of constitutional
! provision to grant power or authority to
legislature, but to limit its authority
the legislature being absolute In all nat
tiers where there is no special limitati On
If, therefore 1t contains a grant OF
power, and the words so import 1t must
be, because somewhere in the constitu-
ton this absolute unqualified power tc
designate where such liquors may not
be stored or kept has been qualified. II
cannot be found In the amendment. II
says the constitution of the state shall
not be construed in such a way as &c
| limit the authority herein granted.
In theA Bill of Rights proper, alone
can be found the limitation upon ,ht
power of the legislature herein granted
1t conclusively follows that the care
fully selected language insidiously strike,
down the protection of the home ant
personal liberty to be found in the Bill
Of Rights. It is aimed at this protec
ton, it has this effect or the whole 'thins
is an absurdity or a nonenitity. Wher,
J else can 1t operate?
The Legislature needs no grant Of power
except when that power is fettered by
the constitution. The people are TOLD
to read section and that they will Sc,
nothing about search warrants ant