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charter under which totter days and
bettor tlmos would come to us, and re
tore the State to the proud eminence
he onco occupied among her sister
States of the Union.
Jamjcs II. Mai.ojie.
! April, 183T.
HON. W. B. SWANEY.
The President of the State Bur Association
States Why lie Favors a Constitu
To the Constitutional league:
Gentlemen After reading a synopsis
of the able and exhaustive argument of
jour President, lion. Jamos II. Malono,
J do not deem it necessary to do more
than to add a fow facts to illustrate and
make stronger, if possible, the urgent
need for a constitutional convention.
It will not be denied that many evils
exist today in our State government.
Indeed, Col. William II. Carroll, late
chairman of the State Democratic Ex
ecutive Committoe, recently made the
statement that Tennesseo is the worst
jrovernod State in tho Union. Compar
ing Tennessee with such States as
Georgia, the expenses of the State and
countios in Tennosseo would certainly
appear outragoously extravagant Let
me point out the difference in the costs
of two itoms between the States of Ton
nessee and Georgia for the year 1890.
Comptroller Harris shows in his last
report that the State and counties in
Tennessee paid out for insolvont crim
inal costs during 1850 tho enormous stun
of $1,253,000. Tho State of Georgia paid
'out for the same service during the
yoar 1896 los3 the sum of 5510,030. Ten
nessoe paid for judicial salaries dur
ing the year 1800 the sura of $133,-
'OOD. Georgia paid for judicial salaries
during tho year 189(5 only the sum
'of 355,000. Is there any sound reason
lor these glaring differences in the cost
ot those two itoms in the two States?
Georgia has more population and wealth
than Tennessee, according to the cen
sus of 1890, and it has undoubtedly out
stripped Tennessee since that time in
almost every particular. The same
political party has had control of both
States practically all tho tlmo during
the last quarter century, and tho poo
pie are relatively tue same. If any
difference exists Tennossoe has tho de
cidea advantage. lhe natural re
eources of Tennessee are much greater
than those of Georgia, and her popula
tion bottor on an average.
I Reason for Kxtravagance.
' The fundamental difference between
the State governments cf theso two
States is directly traceable to their Con
stitution. Tennessee's presont Const!
Itution is a makeshift, and was declared
to be such by its framers. The imraor-
'tal Toombs would not allow the constl
Jtutional convention of Georgia to ad
journ until it had adopted a constitu
tion fit for the Empire State of the
'South, and he pledged his fortune for
tho purpose of defraying the expenses
of the delegates after the appropriation
(or that purpose bad been exhausted.
The history of these two conventions is
well known, and I need but call atten
. tlon to the facts.
As a Democrat, I deny that ail the
evils of the Sttvto government ot Ten
nessee are due to party mismanage
ment. Many of these evils would neces
sarily exist under the administration of
any party with our present Constitu
tion. Numerous efforts have boen made
during the. past twenty-fivo years to
remedy noarly all ot these evils by
legislation without a constitutional
convention. During most of this time
we have had able Chief Executives, and
General Assemblies up to the average
(or honesty and intelligence, and theyl
bare uniformly passed laws attempting
to cure those Ills, but unfortunately the
fuii'omt Court has felt constrained to
declare these acts unconstitutional.
'The Supreme Court is not to blame in
most cases, for the reason that there are
- bo many prohibitory olauses in the Con
stitution ot 1870 as to render it well
nigh impossible to draft a bill upon any
of these important questions without
contravening some of its far-reaching
No less than five acts ot tho general
assembly of 1895 have already been de
clared unconstitutional by the supremo
court, to-wlt: Tho no-fence law, an act
In regard to the collection ot unclaimed
costs, the act attempting to reduce
criminal costs and changing tho grade
ot punishment for larceny, an act to es
tablish loveo districts to protect certain
lands lying in Reolfoot basin, and the
general assignment law.
Locking Unckwaril Instead of Forward.
The constitution of 1870 was made to
suit a cast condition of affairs and it
does not suit the present generation.
No better illustration ot this faot can
be found than the provisions concerning
tho governor. The governor, although
sworn to enforce the law, Is deprived of
all power to do so. Only a few years
asro this fact was fully demonstrated
y when the minors' riots occurred in East
Tennessee. It was discovered that tho
governor bad no powor to call out the
militia or otherwise deal with the riot
ers, and the result was that it cost the
people over $100,000 more than it shonld
have done to deal with these rioters,
and the acts of .the general assembly
establishing a National Guard to pro
vide for future contingencies is of ex
ceedingly doubtful constitutionality.
After the numerous constructions
given the tarlous provisions of the con
stitution of 1S70 it is idle to think of
getting permwwit roliof without a con
stitutional convention. The rule of
tare decisis would necessarily control
tho supreme court if nothing else were
Id tho way. But the constitution itself
Is too plain for argument Let me
pecify a few of the most important
changM In the laws which cannot be
toado without a change i Jie constitu
tion of 187a
ArVc'.e 5, ssction 23 of the constitu
tion provides that Uxes shall be equal
and uniform throughout the State and
that the legislature shall have the
power to tax morchants, peddlers and!
privileges in such manner as they shall
from tlmo to time direct, and exempts
81,000 worth of personal property from
taxation in the hands of each taxpayer.
Under this section it has been hold by
our supremo court that double tax
ation is not unconstitutional, also that
privilege tax is on whatever tbe legis
lature chooses to declare a privilege,
and there are only two instances on
"record where the supremo court has de
clared that such acts declaring privi
leges are unconstitutional, and theso are
what are known as tho dog law and the
act taxing lawyers.
It has also been held that tho legisla
ture has no power to grant a city the
right to assess a tax for publlo improve
ment on the basis of the frontage of the
lots on the street to be improved, as is
done in all the other States except Ten
nessee, and a recent decision of the su
premo court held that tho legislature
bad no authority to establish loveo dls'
tricts so as to reclaim what is known as
tho Reolfoot basin and build levees to
protoct that country from inundation
from the Mississippi river, notwith
standing tbe fact that such laws have
been in existence in the neighboring
States of Arkansas and Mississippi for
The thousand dollars exemption on
personalty practically relieves all per
sonal property from taxation. This
provision of the constitution might bo
enlarged upon IndeuiiHely, but o not
doom it necessary to call attention es
peclally to any other provisions except
thoso concerning double taxation and
tho privilege tax system.
Au Object I.essjn.
A fow years ago when the cotton man
ufacturors of tho East announcod that
they intended to invest several million
dollars In the erection of cotton facto
rios in tho South, the city of Cbatta
nooga, whore I live, appointed a com
mittoo to visit the New England States,
and appropriated money to defray their
expenses. This committee visitod
these manufacturers for the purposo of
endeavoring to have them erect a cotton
mill or mills at Chattanooga. This
committee was composed of distin
guisbed citizens of Guattanooia, who
wero personally acquainted with many
of the directors and officers of these
manufacturing concerns, but when this
committee reached Boston thoy were
promptly informed that these gentlo
men had a report showing the pro
visions ot our constitution and tbo
statutes and decisions of our supremo
aourt concerning tho taxing of manu
facturing establishments, and under no
circumstances would they invest money
in Tennessoe. The result was that a
largo cotton mill was erected at Gads
don, a small town in Alabama a short
distance from Chattanooga, and other
mills were established in other South
ern States and not a single dollar of
this money was invested in Tennessee.
The strangest anomoly, however, in
our whole system of taxation is the
privilege tax which is especially au
thorized by the constitution ot 1S70.
Prof. Ely, in his work on "Taxation in
American States and Cities," points out
tbe inconsistency of such a system of
privilege taxation prevailing among
people who are opposed to tariff taxa
tion. Privilege taxes operate as a prac
tical prohibition Upon a young man
especially quitting one business and
embarking in another, and tbey creato 1
and encourage monopolies. To remedy
these evils and procure needed improve
ments in our tax laws a change in our
constitution is absolutely . necessary.
No one who has 'ever studied this sub
ject will deny this.
Our judicial system, from the supreme
court to the county court, is ilxed in the
constitution. The constitution pro
vides that the supreme court shall sit
at three places in the State, viz.: Knox
ville, Nashville and Jackson, thereby
making it necessary for tho judges to
travel over tho State and preventing
them from having permanent homes
and having at all times the benefit of
the Slate library. This provision also
causes delays in tho trial of criminal
cases by the supreme court of nearly a
year, and thereby incurs" unnecessary
costs such as board and jail fees. With
the supremo court permanently fixed at
the State capital and the criminal
docket called as often as noed b'e the
saving alone in jail fcos and other
necessary costs would more than defray
tho expenses of a constitutional con
vention. Tho constitution of 1370
makes it necessary to maintain our dual
syBtem of law and chancery courts as
separate tribunals, and hence prevents
the blending of the two courts to bo
held by the same judge and officered by
the same clerk, as is done in thirty-nine
out of tho forty-five States of the Union.
The county court has also been held by
our supreme court to be a constitu tional
court, and an effort mado several years
ago to obtain county supervisors was
held unconstitutional. Tennesseo is
the only State in the Union which has
retained all the features of our present
county court system. Tennesseo has
the .most expensive as woll as tho
largest judiciary of any of the adjaoent
States. Wo have forty-six judges at an
annual cost of $123,000, as compared
with seventeen judgos in North Caro
lina at a cost OI &40,:u, ana twenty-six
judges in Georgia at a cost of ?55.000 a
year, notwithstanding the fact that
Georgia has a greater population and
more wealth than Tennessee, and North
Carolina has only a little less wealth
and population. The only reason why
it is nocessary for Tennessee to have a
larrrni indlclal establishment tnan
either of theso two States is owing ta
tbe fact that Tennessee has the dual
system of law and chancery courts.
Tennessee, with less than two million
population, has more judges than Eng
land, Ireland, Scotland and Wales with
tto thliftyfive million population.
Other Glaring Evil.
Time and space forbids that I should
enter into a discussion of all the pro
visions of the constitution and the
needed changes which cannot be effect
ed without a constitutional convention,
such as tho election of the Comptroller,
Secretary of State, Supremo Court
clerks ad Attorney-General, and also
the fee system of criminal costs, tho no-
fence law, municipal reform, guberna
torial succession and other matters of
equal importance. Suffice it to say that
with a new constitution and a new code
the expenses of the government of the
State, counties and municipalities of
Tennessoe would bo reduced at least 50
per cent, por annum. Tbe efforts to re
form our criminal costs by the presont
General Assembly has not yet passed
tho ordeal of tho Supreme Court, and
the most sanguine friends of those
measures promise that only something
like one-half of these enormous amounts
will be curtallod. It is well enough for
tho people ot Tennessoe to remember
that tho reform legislation which has
been enactod by the present General
Assembly did not originate with the
politicians and oHlce-holdcrs. If the
people ever expect o havo a new con
stitution it is time that they were study
ing these questions and perfecting or
ganizations in every voting precinct in
the State for the purposo of having the
voters pass Intelligently upon tho sub
ject at the election to be held tbe first
Thursday in August, 1897. Yours very
truly, "W. B. Swanky.
VIEWS OF UNITED STATE3
W. P. IIALLIDAY, Jn.. President.
J. V. C. WRIGHT, Vloe-presldent.
J. B. REDMOND, 2d Vice-President
R. G. MORROW, Soeretary and Treasurer.
GEO. W. HARRIS, Superintendent
r j t oil i i n ii
wtoriiis ml 11 w mil.
Furniture and Chairs
Oils and Mill Supplies.
Arnica Uelca at
Mr. James II. Mulono, Memphis, Tenn.:
Dkau Sin You ask rao to state six
reasons why, in my judgment, a constl'
tu tional convention is needed in Ten
nessoe. I have long believed that the
constitution or iennessee neoaed a
thorough overhauling. Within tho past
twenty years the public opinion of
America has made great advances in re
gard to the subjects properly Included
within a State constitution. Theso ad'
vances have been made most evident in
tbe constitutions of some ot tho North
western States, where the latest and
most profound thought upon tho subject
of constitutional limitation has found
Our convention of 1870 mot under so
many limitations that its work cannot
in any sense be regarded as a now pro
ject. The constitution of 1831 was sim
ply amended in certain limited partlcu
lars, and no effort was made to cover
tho field which would bo now open in
case we should be able to assemble a
Wo have outgrown the constitution of
1834 and have outgrown the amendments
oi 1(0, and tbere are so many reasons
why I think this, that It is a little dim
cult to limit myself to six propositions.
Without undertaking to select the
most important particulars in which I
would suggest amendments, I will name
six particulars in which I should be glad
to see changes brought about:
1. The present county court systom
should be abolished. It is cumber
some, expensive and unenlightened.
2. Our courts of law and equity should
be consolidated. The jurisprudence pe1
cullar to each should be preserved, but
tbe administration should bo in the
same court. This will enable a red u&
tion to be made in tho number of judges
and an increase in salary without
adding anything to present judicial ex
3. The prosent fee system as appli
cable to county officers, district at
torneys, sheriffs, etc., needs modifica'
tion. 'in ere suould be a maximum
placed upon the amount of foes retain
able as compensation for Bcrvices ren
dered and the balance should go into
the treasury of the State or county as
the caso may be.
4. The clause exempting $1,000 worth
of personal property from taxation
should be stricken out. Its operation
is to cover and protect millions of per
sonal property from taxation. This
chango alone would in itself pay the en;
tire cost of a constitutional convention
in one year.
5. We should have, a lientenant-gov-ernor,
a man elected with reference to
the possibility of his succeeding to the
office of governor. All state ofScors
now elected by tbe legislature should be
made clectlvo by the people.
6. The supreme court should be lo
cated at tho capital. Tbe salary of the
judgos should be incroased, and pro
vision should be made, after the expira
tion ot the terras of tbe present incum
bents, for tbe election ot one judge only
at a time. - Any system by which the
whole ot the court may go out atone
time operates badly.
Very truly yours,
IIOUACR II. LUKTON.
THE REASON IN THE CASE
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The people of Tennesseo tint out of the State
In the year 1S93 about $1,800,000.00 in fire Insur
ance premiums, and paid to domestic or Tennes
see companies only about 9175,000.00, being less
than 9 per cent. Of this amount $100,000.00 was
paid to tho Guardian Insurance Company of '
Tennessee, the only company which divides
profits with policy-holders, and the only home
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Set Forth by Judge Hammond of the
To the Editor of. the 8elmltar.
Having been asked by Mr. James II.
Malone and others to publicly express
my conviction in favor of a new consti
tution for Tennesseo, complianco with
that request may bo considered not med
dling in politics, unseemlngly, I hope.
Irreslstiblo progress has reduced our
States to be tho appliances of mere local
government, and whether we like It or
not, in the process of evolution constant
and oft-repeated changes in State consti
tutions have become a necessitv, wheth
er considered in rolation to tbe Stale
itself or to the subordinate municipali
ties, counties, cities and towns of each
and every grade. Tbe notion ot a uni
form government for all counties and
all cities and all towns, without regard
to grade, has come to be nonsense. It
would do when population everywhere
were sparse and small, and in respect of
that condition and others attendant on
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