The Louisiana Historical Quarterly
THE CONSTITUTIONS OF LOUISIANA WITH SOME OBSERVATIONS ON THE CONSTITUTIONAL CONVENTION OF 1921
Paper read before The Louisiana Historical Society by W. 0. Hart on January 25th, 1921
Louisiana has had eight Constitutions.
The Constitution of 1812, under which the State was admitted into the Union, was adopted in convention held at New Orleans, January 2, 1812, and was modeled after the Constitution of the United States, in that it was divided into articles and the articles into sections, numbered separately in each article instead of being numbered consecutively, as has been the case in all subsequent , Constitutions. This Constitution consisted of seven articles and a schedule, and a total of one hundred sections, and covers in its entirety, including the signatures of the members thereof, fourteen printed octavo pages. There is no special provision in this Constitution regarding taxation or the imposition of licenses, the members no doubt considering that the power to tax was inherent in the Government, and needed no constitutional warrant.
This Constitution remained in force for thirty-three years, the Constitution of 1845 having been adopted in convention on May 14th of that year. It is said that the convention which framed this Constitution was called in order to have a new set of officials throughout the State and it directed a new election soon after the Constitution had been adopted by the people. This Constitution contained 153 rrtides ?nd covers 22 printed octavo pages. The Convention which framed this Constitution met in accordance with the Act of the General Assembly in Jackson on August 5th, 1844, and on the 24th adjourned to meet in New Orleans on January 14th, 1845, remaining in session there until May 14th, when the Constitution was adopted.
This Constitution, however, was not satisfactory to the people, and another was adopted in convention assembled at Baton Rouge, then the capital of the State, on July 31st, 1852. Although this Constitution has 155 articles, two more than the Constitution of 1845, it occupies one printed page less, being contained in 21 pages of an octavo volume.
The next Constitution of the State was adopted in Convention at New Orleans on July 23rd, 1864, during the war between the States, and delegates were present in the convention only from that part of the State which was under the control of the Federal authorities. This Constitution also contained 155 articles and occupied nearly 23 printed pages of an octavo volume.
Owing to the unsettled affairs of the State, by reason of the war and reconstruction, not much attention was paid to this Constitution, and the Constitution of 1868 was adopted at convention held in the City of New Orleans, March 11th, 1868; in this Constitution the number of articles is 161 and it covers 26 printed pages of an octavo volume.
This Constitution remained in force until the people of the State again came into control of its governmental affairs, and the Constitution of 1879 was adopted by convention assembled in New Orleans, July 23rd, 1879, and so far as length and number of subjects treated of was concerned, was a great advance on former Constitutions. The Constitution proper contained 268 articles, covered 64 printed pages, and, in addition thereto, there were separate ordinances adopted, "For the relief of delinquent taxpayers," providing for the "Indebtedness of the State to its fiscal agent," "Loan by the fiscal agent," and the "State debt;" these covering six more printed pages. When this Constitution was adopted, in discussing its great length and the amount of detail therein, the New Orleans Times facetiously remarked: "The members of the Convention evidently do not know the difference between a Constitution and By-Laws."
This Constitution continued until the Constitution of 1898 was adopted in convention held in the city of New Orleans that year ending May 12th. This Constitution was not submitted to a vote of the people, but it was called under an act of the Legislature which was voted upon by the people, who, in so voting, agreed that the convention might declare the Constitution adopted without referring it back again to the people. Owing to the many conflicting interests represented in this convention, and the effort to satisfy all, the Constitution contains 326 articles and occupied 123 pages of a printed octavo volume. Besides this, there were three special ordinances: "Postponing the Session of the General Assembly," covering "Loan to defray tve expenses of the convention," and authorizing "Loan for mobilization of troops." These were adopted during the session .of the convention, respectively, on April 30, 1898, April 22, 1898 and April 27, 1898, and were required by the exigencies of the occasion. It was found necessary to extend the session of the convention, and this necessitated a postponing of the legislative session. Sufficient funds had not been appropriated to meet the expense of the convention, and the coming on of the Spanish-American war required immediate action to put the Governor in funds so that the State might give its aid to the United States in the struggle.
It is a curious coincidence that the Constitutional Conventions of 1879 and 1898 were of the same duration, each having been in session for a term of ninety-four days.
The Constitutional Convention of 1913 met on November 10th, and completed its labors on November 22nd, and it was called principally to provide for the refunding of the State debt.
The Constitution of 1913 contains 326 articles, the same number as the Constitution of 1898, and occupies 126 printed pages, three more than the Constitution of 1898, this being caused principally by four long and new articles relating, respectively, to Juvenile Courts, Board of Commissioners for the Port of New Orleans, New Orleans Belt Railroad Bonds and the State Debt, the judicial provisions alone embracing 75 articles and covering 37 pages, being longer than the first two Constitutions of the State combined.
What was equivalent to a Constitutional Convention was the Secession Convention cf 1861, called by Act of the General Assembly of Louisiana, adopted December 12, 1860, and which convened in the Hall of the House of Representatives in the State Capitol at Baton Rouge, on Wednesday, January 23, 1861, and on January 26, 1861, the ordinance of secession was adopted by a vote of 112 yeas to 17 nays, the yeas being increased after the vote had been announced by the vote of Alexander Mouton, the President, to 113. Upon the result of the vote being announced, the President of the Convention said:
"By virtue of the vote just announced, I now declare the connection between the State of Louisiana and the Federal Union dissolved, and that she is a free, sovereign and independent power." Thereupon the Convention adjourned to meet January 29th at the City Hall in New Orleans, where it continued in session until March 23rd, adopting as part of its work the Constitution of 1852, making such changes therein as were requisite and necessary to conform to the Constitution of the Confederate States of America.
On February 12, 1861, the flag of the independent State of Louisiana was adopted, and on the next day the Secession Convention proceeded in a body to Lafayette Square for the purpose of inaugurating and saluting the "National Flag of Louisiana." The militia of the city was there drawn up, the flag run up the flagstaff of the City Hall, and at the same moment a salute of twenty-one guns of artillery was fiied. The flag, (the ugliest ever made,) consisted of thirteen alternate stripes, four of blue, six of white and three of red, with a red field in the upper left-hand corner containing a single yellow-star—the idea being that the flag should represent the thirteen stripes of the Union dissolved, so far as Louisiana was concerned, the tri-color of France and the red and yellow of Spain, the two countries which in times past had exercised sovereignty over Louisiana.
So far as the records show, the only flag of this design was the one placed on the City Hall by the convention, and there it remained until Farragut entered the city. On April 29th,-1862, when, through some of his officers, he demanded the lowering of the flag, with which demand Mayor John T. Monroe refused to comply, he being represented in the negotiations by Mr. Pierre Soule, the eminent lawyer, orator and statesman. Finally, the Federal officer in command, with some of his own men, removed the flag and it was carried away by them, and the history of it ends at this point.
The act which called the Constitutional Convention of 1913 directed the Convention to frame a new Constitution for the State of Louisiana and in carrying out this mandate, the Convention made a few changes. Most of these changes, however, have been annulled by the Supreme Court. (State of Louisiana vs. American Sugar Refining Co. 137 La., 406; Foley vs. Parish Democratic Committee, 138th La., 220; Hayne vs. Assessor, 143rd La., 697; Wunderlich vs. New Orleans Railway and Light Co., 145th La., 21; In Re Perez, 83 Sou. Rep. 657.)
Since the adoption of the Constitution of 1913, amendments have been proposed at every session of the General Assembly, 1914, 1916,1918 and 1920, and most of these have been adopted, including seven on the 2nd of November last.
In a very interesting telegram from Oakdale, Louisiana, of date, November 1st, 1920, published in our newspapers, Mr. James A. Williams, in discussing the powers of Constitutional Conventions, is utterly at sea regarding the law of Louisiana as expounded by our Supreme Court.
While it is a general principle of law that a Constitutional Convention, when properly called, is not limited by the act of the Legislature calling it, there have been exceptions to this rule in various States, though in no State have the Courts gone as far as the Supreme Court of Louisiana in passing upon the Constitution of 1913. As far as other courts have gone, has been to hold that when a Constitution is adopted by a Convention under an act fixing certain limitations, such Constitution might be void if not accepted by the people, but it would not be void in one respect and valid in another, because the effect of such a holding would be to give a State two Constitutions, which is a legal absurdity.
The Constitution of 1913 before the Supreme Court passed upon it was recognized by the Governor and the General Assembly and was recognized by the Supreme Court in several cases, including the very well considered case of Bloomfield vs. Thompson, 133rd La. 209. The case of State vs. Favre, 51st Ann., quoted by Mr. Williams, in no wise helps his argument. The defendant in that case claimed that the Constitution of 1898 did not supersede the Constitution of 1879 because it was not a new Constitution, but simply an amendment to that of 1879, owing to the limitations in the act calling it. The Court in that case was very far from holding as stated in Corpus Juris Civilis: "Once assembled the convention is sovereign, is above the legislature and free from the control of the courts."
Writers of text books and digests, in quoting cases in support of the principles announced, do as often quote cases which have no applicaticn, as they quote cases which apply.
The Convention of 1913 was ordered to frame a new Constitution for the State of Louisiana and the members thereof thought, notwithstanding the limitations, they had a right in framing the Constitution to make it one harmonious whole, and no doubt certain changes and additions were necessary; the president of the Convention, former Justice Newton C. Blanchard, in one of his addresses gave it as his opinion that the Convention was sovereign.
The Supreme Court, however, thought differently, and in the cnres above cited reM that anything in the Constitution of 1913 which in the slightest degree infringed on the limitations of Act No. 1 of the extra session of 1913, was invalid.
The Supreme Court had previously, in a most elaborate opinion in the Bloomfield case above referred to, maintained that provision of the Constitution of 1913 giving to the Courts of Appeal jurisdiction on appeal of case^ of which the District Courts had exclusive original jurisdiction, where no money amount was involved, but in the Wunderlich case, the Court of Appeal was prohibited from entertaining jurisdiction of such a case though the Bloomfield case was not referred to nor overruled. I might also say that in three applications for certiorari the Supreme Court refused the relief asked, holding that the applicant had his remedy by appeal under the provision of the Constitution of 1913 held invalid in the Wunderlich case.
The effect of the decision in the Foley case and perhaps in some of the others is to give the State of Louisiana two Constitutions because the provision in the Constitution of 1913 providing when the assessors should be elected having been annulled, we must look to the Constitution of 1898 to find out when this must be done.
A new Constitution is an imperative necessity and the Convention which will meet on March 1st has the opportunity to write such a Constitution as will live for many years to come.
As Mr. M. J. Cunningham, a member of the Constitutional Convention of 1879, said in discussing the proposed convention of 1915, the call for which was defeated at the polls, "It is all very well to talk of a short Constitution, but wait until you come to write it." And so I am afraid it is going to be with the Convention of 1921. Most of the Constitutions recently adopted in this country have been rather long though none is equal in length to that of Louisiana. Too much detail appears in all Constitutions and even so conservative a body as the National Municipal League, of which Judge Charles R. Hughes, of New York, is now President, in preparing a paper for a model Constitution, has made the Legislative part thereof very verbose and complex when same could easily be provided for in one or two short articles, as I hope will be the case with our next Constitution.
Many recent Constitutional Conventions have submitted the result of their work to the people in the form of amendments so as not to expose- an entire Constitution to rejection. At a special election held in Nebraska on September 21st, 1920, forty-one amendments were voted for and all were adopted, but as showing how little interest was taken in the election, less than one-seventh of the total electorate voted thereon and one-third of these were women. The method of amendment in the present Constitution of Louisiana is too easy and future amendments should require, as in Mississippi, an affirmative vote of a majority of those voting for the first officer on the ticket or if not a majority, at least a considerable number. Nebraska has just adopted such a provision requiring thirty-five percent for such a vote. Since 1898 about one hundred and fifty Amendments to the Constitutions have been submitted to the people of this State and most of them have been adopted.
Whether the new constitution should be submitted to the people or not is a subject well worthy of careful consideration; but in any event the taxation Drovisions thereof should be so submitted. I do not agree with some eminent members of the Bar of Louisiana who think that taxation should be entirely in the hands of the General Assembly; as "the power to tax implies the power to destroy," the people should know exactly what taxes they are called upon to pay and they should have a voice when the taxes are increased and the power of taxation should never be given to irresponsible boards or commissions but should flow entirely from the people. Taxation in Louisiana, now particularly in New Orleans, with the increased assessments, is higher than ever before and as shown by an editorial in the States on November 23rd, last, the amount to be paid in 1922 and thereafter, unless the Constitutional Convention comes to the relief of the taxpayers, will be about four times as much as was paid forty years ago.
I trust the members will not burden the people of this State with an income tax for with the Federal Tax probably soon to be increased the strain is now greater than the people can well bear, and to add another income tax would be disastrous.
Some of the suggestions as to the income tax which might be placed in the Constitution would be ridiculous if the subject was not so serious. For instance: someone has suggested that the income tax on savings whether in property or otherwise, should be greater than those on earnings so that the humble citizen who by thrift and economy has purchased a double house, let us say, from which he gets a revenue from one side would be taxed on his income while the railroad or corporation official receiving a salary of $25,000.00, $50,000.00 or $100,000.00 would go free, but certainly, no such inequality as this would ever be upheld by the people of Louisiana.
Another suggestion has been made that in assessing real estate business property should be assessed at a greater rate than residence property and this too would be an inequality, un-American and unbusiness-like.
It is interesting to note the many divergent views as to what the coming Constitutional Convention should do as to taxation; some writers have gone so far as to say that the matter should be left entirely out of the Constitution as it was out of the Constitution of 1912 and left to the General Assembly to deal with as that body may from time to time think proper. I hope this may not be done, because taxation embracing as it does "the power to destroy" should be safeguarded in every way subject to the vote and should not be determined by their representatives and for this reason I believe that the tax provisions of the new Constitution whatever they may be should be submitted to the people whether the Constitution as a whole is or not.
The income tax whenever suggested in Louisiana has always been voted down by Legislature and when the assessors attempted to impose an income tax it was held illegal by the Supreme Court. See case of Forman vs. Board of Assessors, 35th Louisiana Annual, 825, decided in 1887. The income tax is a tax on thrift and is an inquisitorial tax and really has no place in America except as a war measure and any attempt to impose an income tax in Louisiana I am sure will meet with opposition and proper opposition from the people of the State.
The general trend in recent years has been for a long Constitution, though, according to a compilation of the Constitutions of all the States which is in the Law Library, it appears that the Constitution of Louisiana adopted in 1913 is the longest, and when we take into account the amendments adopted since, its length is very much increased.
Of course there is no doubt that the present Constitution will be greatly shortened, but with the many conflicting interests and ideas represented in the Convention, compromises will have to be made by which items of legislation will go in the Constitution. A great shortening of the Constitution can take place by limiting the provisions regarding the Judiciary to one article in the body of the Constitution and two in the Schedule, reading somewhat as follows:
1. "The judicial power of the State of Louisiana shall be vested in one Supreme Court, and in such inferior Courts as the General Assembly may from time to time ordain and establish. There shall be an appeal in every case, civil and criminal, and the right of the Supreme Court to issue writs of review, and writs of certiorari, mandamus and prohibition to all inferior Courts and the right of other appellate courts to issue writs of mandamus and prohibition in aid of their appellate jurisdiction shall never be abridged or limited, but may be enlarged and extended by the General Assembly. No powers other than judicial shall ever be conferred upon the Justices or Judges of any court of greater dignity than City Courts, Mayor's Courts, or Justices of the Peace."
2. "There is hereby created a Judicial Commission, consisting of nine members, one from the members of the Supreme Court, one from the members of the Courts of Appeal, and one from the District Judges, all to be selected by the Supreme Court; two to be chosen by the Senate, two by the House of Representatives and two appointed by the Governor to prepare and frame and submit to the General Assembly as soon as possible, a comprehensive Judicial Code, which Code when adopted by the General Assambly, shall be immediately placed in effect under rules to be adopted by the Supreme Court, if necessary; no amendment of said judicial code increasing the number of Courts created thereby, the number of Judges of the Courts created hereby, increasing, the salary of any Judge or Court official, or changing the jurisdiction of any Court, shall be adopted except by the affirmative vote of two-thirds of all members elected to each House of the General Assembly, and if vetoed by the Governor shall require the affirmative vote of four-fifths of the members elected to each House to become a law." 3. "In order that there may be no interruption in the administration of justice until the adoption of the Judicial Code herein provided for and the organization of the Courts thereunder, all the courts of the State as now existing, shall remain in existence and operation and all laws and Constitutional -provisions relating thereto shall remain in full force and effect, including the names, composition and jurisdiction of the courts, the compensation of the Justices and Judges, the clerical and executive officials of the courts, their deputies and their compensation, the fees of such officials and the rules of practice."
The various arguments published from time to time regarding what jurisdiction should be given to the Supreme Court of Louisiana by the new Constitution are in many instances inaccurate and misleading.
For instance, it was recently stated that the Supreme Court should have no jurisdiction to review the facts, but should be like the Federal Appellate Courts which in no case examine the facts; in at least half of the cases appealed in the Federal Courts the facts are reviewed, because this is done in all equity cases and in all admiralty cases; and in many law cases; where testimony is usually made part of the request for peremptory charges and of the Bills of Exceptions the court has to review the facts to see whether they are sufficient to sustain a verdict or not in order to determine whether the peremptory instruction should or should not have been given; many of the records on appeal in the Federal Courts exceed in volume, those in our State Supreme Court. As the courts of Louisiana are courts of law and equity, in order to take away from the Supreme Court the right to review the facts our whole system of trial would have to be changed and I do not believe our people are ready or desirous for such a revolution.
In passing I may say that every case appealed in the Federal Courts embraces a review of the facts. When the facts are not to be examined, the case goes up on writ of error and not by appeal.
Everyone endorses the statement of Governor Parker that the Convention should frame a Constitution that anyone may understand, but that is an impossibility. The Constitution of the United States, which to the ordinary reader apper.rs very simple, has been in existence for over one hundred and thirty-one years and nobody yet knows what it means. New interpretations are being placed upon some of the articles day by day, and even the Supreme Court of the United States, the greatest court in the world, has often interpreted parts of the Constitution by a vote of five to four. By a vote of four to three, when the court had but seven members, the Legal Tender Act adopted during the war between the States, by which paper money was issued, was declared unconstitutional in part, but soon thereafter, by a vote of five to four, two additional members of the court whose views were known in advance having been appointed, it was held constitutional in all its provisions.
While the Supreme Court had several times upheld a congressional income tax, the income tax law of 1894 by a vote of five to four was held not authorized by the Constitution, though the court had previously held four to four that it was.
The Fourteenth Amendment to the Constitution, which was proposed and adopted to confer greater rights upon the negroes and to punish the Southern whites who served in the Confederate Army and had no other object, has, by the decisions of the Federal Courts, become the "bulwark of the trusts," and under it has grown up the grasping jurisdiction of the Federal Courts in all cases where corporations are involved to the injury of the individuals.
So eminent an authority as Mr. F. G. Bromberg, of Mobile, one of the leading constitutional lawyers of the United States, (and many others agree with him) strenuously contends that the Congress of the United States which proposed the Eighteenth Amendment to the Constitution, the forty-five States which adopted it, and the Supreme Court of the United States which upheld and maintained it, have no correct conception of the meaning of Article Five of the Constitution which provides for the amendment thereof.
The admiralty jurisdiction of the Federal Courts under the Constitution has been enlarged by the courts from time to time, giving new meanings to the Constitution, and to an extent never dreamed of by its framers, and so regarding the jurisdiction over corporations; the articles of the Constitution as to citizenship have been given all kinds of meanings, in seme cases corporations are treated as citizens and in others they ?re rot. And row the qvestion is being agitated whether the power given to Congress by the Constitution of the United States "to regulate commerce among the several States," also includes the pewer to regulate commerce entirely within a State, when this power is necessary to secure and enforce uniformity of regulation; and what the final decision will be no man knoweth.
Even the Supreme Court of Louisiana had to change its decision in order to decide that sugar refining was manufacturing, having first decided that it was not in the meaning of the exemption of the Constitution from license taxation of all manufactories save certain ones, and the articles of the Constitution in regard to exemption from general taxation have been interpreted different ways at different time?. No or.e knows today what the graduation required by the Constitution for license taxes means because the Supreme Court has given so many different interpretations on the subject.
These illustrations might be multiplied indefinitely, but there is no Constitution and no law that can be passed that cannot be subject to different interpretations and the simplicity of the language often prerents the most complex of interpretations.
It is to be hoped that one of the first acts of the Constitutional Convention of 1921 will be to create a legislative reference bureau so that the work of the Convention as it progresses may be examined by a body of disinterested experts to prevent errors, contradictions and uncertainty of language in the Constitution and also that it will provide for a permanent legislative reference bureau for the General Assembly.
The members of the General Assembly seem too fond of their dignity that the probability is that no legislature will create such a body and it ought to be done by constitutional enactment so that it cannot be destroyed by the Legislature. When the Convention completes its labors it should take a recess of at least two weeks in order that the Constitution may be studied by the members of the Convention before the final vote which sends it to the people.
In the Convention of 1898 its labors were finished on the morning of May 12th. The Constitution was.hurriedly printed and placed on the desks of the members that night and was then adopted as a whole, and while the signing was going on it was discovered that a most important amendment regarding railroad taxation which had been defeated on the floor of the Convention had been incorporated in the Constitution and adopted, and when this was discovered about half the members had already signed, but a halt was called, an investigation was started and the error was corrected; someone intercepted the messenger who took the manuscript from the Committee on Style and Revision to the printer, and made the change and as the final proof was not read it was not discovered before the Constitution was adopted. The Constitution of 1898 is entirely contradictory as to whether or not the Governor shall be suspended pending his impeachment. The word "indicted" appears instead of "interdicted," referring to those not entitled to suffrage. The wards of New Orleans were called "Representative Districts," and many other errors of style will be found, and these can only be obviated by a careful examination of the Constitution after it is entirely completed and printed, with time for the study thereof before the vote for final adoption.
I have heard it suggested that the Constitutional Convention of 1921 will have no power to submit the constitution to the people because it cannot call an election or provide for the expense thereof. This has not been the practice of former Conventions.
The Convention of 1868 in Article 153 fixed "the election for the ratification of the constitution" on "Friday and Saturday, the 17th and 18th days of April, 1868."
The Convention of 1879 authorized the fiscal agent of the State to negotiate a loan of twenty-five thousand dollars to pay the expenses of that convention above the amount appropriated by the act which called it and the General Assembly was directed to make an appropriation to pay the debt.
The convention of 1898 authorized the President of the Convention to negotiate a loan of fifteen thousand dollars for the same purpose as was authorized the loan by the Convention of 1879 and also authorized the governor to borrow fifty thousand dollars for the mobilization of the State troops in the war with Spain, and the General Assembly was directed to make an appropriation to pay both of these loans, and all three of the loans above specified were paid.
The very moment the Constitutional Convention of 1921 concludes to submit its work to the people it then becomes unlimited in scope because the limitations are based upon the nonsubmission of the Constitution and disappear when the whole subject is referred back to the people.
The Constitution of 1812 was not submitted to the people but was called under an act of Congress. The secession ordinance and the readjustment of the Constitution of 1852 were not submitted, nor were the Constitutions of 1898 and 1913. The Constitutions of 1864 and 1868 were submitted but the election in each case was a farce; the only Constitutions wholly submitted to the people in a proper election were those in 1845 and 1852. The members of the Convention of 1879 were doubtful as to whether the Constitution framed by them would be adopted, particularly as it shortened the terms of many of the officers by one year and the Justices of the Supreme Court by five years so the State Debt settlement, which was the most important question of all, was separately submitted.
Of the many eminent men who have served in the Constitutional Conventions of this State, but three achieved the distinction of having served in three conventions, James G. Taliaferro, who presided over the Convention of 1868 and was a member of those of 1852 and 1861 and who afterwards was Justice of the Supreme Court from 1868 to 1876; Robert B. Todd, who was a member of the Conventions of 1852, 1861 and 1879 and was a Justice of the Supreme Court from 1880 to 1888; and Thomas J. Semmes, America's greatest lawyer, who was a member of the Conventions of 1861, 1879, and 1898, and who achieved distinction in many ways, having been Attorney-General of the State, a member of the Senate of the Confederate States and Professor of Civil Law in the University of Louisiana.
Mr. W. J. Burke, of New Iberia, and M. H. Carver, of Natchitoches, who were members of the Conventions of 1898 and 1913, will be members of the Convention of 1921, the former having been elected without opposition in his parish and the latter having been appointed by the Governor, and they will join the three above named as members of three Conventions.
Both took a prominent part in the two Constitutions of which they have been members. In 1898 Mr. Burke was Chairman of the Committee on the Executive Department and in 1913 was Chairman of the Law Committee and in that year Mr. Carver was Chairman of the Committee on State Debt and in 1898 was Chairman of the Committee on Impeachment and Removal from office.
There were ten members of the Convention of 1879 who were members of the convention of 1898 as follows: Henry Chiapella and Thomas J. Semmes, of New Orleans; S. P. Henry, of Cameron; B. F. Jenkins, of De Soto; C. C. Davenport, of Morehouse; G. W. Bolton, of Rapides; H. C. Stringfellow, then of Red River, but now living in Shreveport, Albert Estopinal, of St. Bernard; J. M. Thompson, of St. Tammany, and Judge I. D. Moore, who was the only member of both conventions elected from different constituencies; in 1879 he represented the Parish of Lafourche and in 1898 he represented the Eleventh Ward of New Orleans. He was nominated and elected from the 14th Ward to the Convention of 1915 though the call therefor, was, however, voted down by the people.
Honorable N. C. Blanchard, who was a member of the Convention of 1879 was the presiding officer of 1913 and five members of the Convention of 1913 were members of the Convention of 1898; besides the above named, E. B. Dubuisson, of St. Landry, W. O. Hart and James O'Connor, of New Orleans.
The only surviving members of the Convention of 1868 as far as I know are P. B. S. Pinchback, now living in Washington, and Judge Hiram R. Steele, a member of the bar of New York City, and both of these were members of the Convention of 1879. Both of these were prominent in the history of Louisiana; Pinchback was a member of the State Scnrte when Oscar J. Dunn, the colored LisutenantGovernor elected Li \ZIZ died, and at a special session of the Senate called by Governor Warmoth, he was elected President of the Senate which made him Lieutenant-Governor; after the elec ion of 1872 Governor Warmoth was impeached and Pirchback became Acting Governor of Louisiana and was at once recognized by President Grant and l^ter by the Supreme Court of Louisiana and by the Supreme Court of the United States.
He was a candidate5 fcr Congressman at large from Louisiana in
1872, his opponent being General George A. Sheridan on the LiberalRepublican-Eerr.ocratic Ticket. A contest which began at the opening of ConjTer: extended until the last day of the Congress, March 3rd, 1875, when Sheridan was admitted to the seat. In January,
1873, Pinchback was elected by the Kellogg legislature to the United States Senate but after a contest extending over many years he was refused admission and some time after that, James B. Eustis wl.o had been elected in the meantime, was admitted, becoming the first Democratic Senator after the withdrawal of Benjamin and Slidel! when Louisiana receded.
Steele was Assistant Attorney-General, Judge of the Superior Criminal Court, Attorney-General, and District Attorney for the Concordia District, his title thereto being upheld by the Supreme Court against an attack of the Attorney-General who claimed that Steele did not live in Louisiana, but in Natchez, Mississippi.
Of the ten above mentioned who served in the Conventions of 1879 and 1898 there are still living besides Judge Moore, Mr. Stringfellow and Mr. Bolton who still lives in Alexandria.
All of those who served both in the Conventions of 1898 and 1913 are still living and actively engaged in the practice of law, except Mr. O'Connor who is a member of Congress.
If Honorable Hewitt Bouanchaud, the present LieutenantGovernor is elected President of the coming Constitutional Convention as now suggested, this will be following the precedent of 1879 when Louis A. Wiltz, elected Lieutenant-Governor in 1876, was made President of the convention, and the first Governor elected thereunder and so "coming events may cast their shadows before."
The Presidents of all the Constitutional Conventions of Louisiana have been men who acquired eminence in other walks of life except one hereinafter mentioned.
Julien Poydras, President of the Convention of 1812, was a delegate in Congress from the Orleans Territory and a representative in the 11th Congress from the State of Louisiana.
Joseph Walker, the President of the Convention of 1845, was elected Governor in 1850, and after serving three years was legislated out of office by the Constitution of 1852 just as Francis T. Nicholls was by the Constitution of 1879.
Duncan F. Kenner, the President of the Convention of 1852, was a member of the Confederate Congress and afterwards a State Senator in Louisiana.
E. H. Durell, the President of the Convention of 186-4, was the notorious United States District Judge who signed the infamous mid-night order by which the United States Court organized the legislature of Louisiana after the election of 1872 with the result that Governor Warmoth was impeached and the Colored Acting-Lieutenant-Governor became Acting Governor of the State for several weeks.
The President of the Convention of 1861 was Alexander Mouton, who had served in the Senate of the United States and held other important positions in the State.
The President of the Convention of 1868 was James G. Taliaferro, who afterwards served as a member of the Supreme Court from 1868 to 1876.
The President of the Convention of 1918 was Ernest B. Kruttschnitt, one of the leading lawyers of Louisiana, but who held no political office except for many years he was President of the School Board of New Orleans.
The President of the Convention of 1913 was, as above stated, Newton C. Blanchard, of Shreveport, who was a member of the Convention of 1879, member of the House of Representatives and Senate of the United States, Justice of the Supreme Court and Governor of Louisiana.
Though the Attorney-General gave an opinion that women voters in Louisiana were not liable for poll taxes until the Constitution had been changed, in this I think he was in error, but whether he was or not the matter was of sufficient doubt and importance that it should be resolved in favor of the payment of the poll tax, and I am glad to state that through agitation in the press and otherwise, about twenty thousand women voters paid their poll taxes in New Orleans for 1920, so as to make themselves qualified electors for 1921 and 1922, and I understand that a larger proportion of the registered vote of women paid the poll tax than of registered men.
Besides, as women have been the most ardent supporters of the public schools, it was hardly to be supposed that they would refuse or neglect to pay the one dollar poll tax when such dollars go to the public schools, and when they had the right to pay the poll tax even though they might not have been obliged to do so.
Moreover, what was the use of women taking the chance of losing their votes in 1921 and 1922 because their poll tax for 1920 had not been paid? When the Fifteenth Amendment to the Constitution of the United States was adopted, the Supreme Court of the United States decided that in effect it struck the word "white" out of every constitutional and law provision of every State in relation to suffrage including the right to vote and the right to hold office; (Neal vs. Delaware, 103 United States Reports, 370-389; Watson on the Constitution, pages 1673, 1674;) and as the words of the Nineteenth Amendment are similar, the result is the same in effect and as women are now given the right to vote, and with the right must go the obligations thereof and one of the obligations is the payment of poll taxes.
It was stated that one reason why women voters need not have paid Poll Taxes last year in order to vote in 1921 and 1922 was that the coming Constitutional Convention may contain a provision that they may vote without paying such taxes; this, however, was a dangerous assumption to proceed on. The Convention may do nothing more than place women in the same category as men regarding poll taxes and again, if it does otherwise, the Constitution may be submitted to the voters for approval and if this be so, women who have not paid poll taxes in 1920 cannot vote thereon, and I am sure our new vcters would not like to he deprived of so important a duty as voting on that occacicn.
It is inconceivable that the frarrers of the Constitution of 1898 and 1913 ever intended there should be a privileged class of voters in this State which would be the case if women were not compelled to pay poll taxes the same Es men, and I do not believe the Convention cf 1921 will protect women in their voting rights when they have fr 'led to comply with one of the recessary requirements thereof, and that is, the payment of the poll tax of 1920, when they had ample opportunity to make the payment.
I trust the Convention will not adopt the suggestion that has been made from some quarter that in the future, the payment of poll taxes two years in advance .would not be necessary for the exercise of the right of suffrage; in my judgment, this provision of the Constitution cf 18[ 8 is the bulwark of white supremacy in Louisiana and it should be continued for that reason, if for no other.
Our Constitution in regard to Confederate pensions is two pages long and after being amended several times at large expense to the State is again the subject of an amendment voted on last year.
Mississippi also voted on a Confederate pension amendment last year and I commerd its simplicity and briefness to the members of the next Convention. It reads as follows:
"The legislature shall provide by law for pensions to Confederate soldiers and sailors who enlisted and honorably served in the late Civil War and who are now resident in this State. Pensions shall also be allowed to the widows of such soldiers or sailors now dead on conditions to be prescribed by law. Pensions shall be allowed to the wives of such soldiers and sailors now living upon the death of the husbands on conditions to be prescribed by law, but pensions granted to such widows shall cease upon their subsequent marriage."
Such an article is all that is necessary in our new Constitution except that there might be added thereto, the following:
"Provided, that the tax for Confederate pensions shall never be less than three-fourths of a mill."
When the time comes that there are very few pensioners left, the article regarding the tax could then be regulated by constitutional amendment, but in the meantime, the whole subject may be safely left in the hands of the General Assembly.
One of the reforms which should be in the next Constitution is the doing away with special elections which are a source of expense to the cities, towns and parishes of the State as well as of the State, keep political questions before the people constantly, to the injury of business and the orderly progress of affairs and interfere with sessions of the courts on account of the holding by the Civil District Court in New Orleans that special election days are legal holidays.
The filling of vacancies in the Supreme Court is not by special elections, but by the Court calling in one of the Judges of the Courts of Appeal until the ensuing Congressional election and so it should be as to all vacancies in judicial offices. They should be temporarily filled by the Supreme Court from other courts if necessary and the elections, when held, should be for the full term of the office as is the case with the Supreme Court and not for an unexpired term. This would give the candidate a certainty of at least four years, in some cases eight, and in others twelve, and besides, would have the effect of preventing all the judges being elected on the same day, which would be an advantage!
In the other offices: Clerk, sheriff, constable, marshal, coroner, recorder of mortgages and register of conveyance?, the chief deputy should continue as the head of the office until the next Congressional election, and where there are assistant district attorneys the chief assistant should so act, and where there are none, the court should be authorized to appoint a district attorney pro tem. There should he but one ger.eral election every four years when the Governor and other officers should be elected at the same time as the Presidential e'e:tci'3 r.:e voted for.
. It will, of course, be readily admitted by all that the suffrage question is one of the important ones to be discussed and considered by the coming Constitutional Convention, but no matter what plan 'may be adopted no one in this State should hereafter be allowed to vote unless he or she can read and write the English language.
The great unrest in this country is caused by the presence of foreigners, naturalized as well as unnaturalized who do not adopt American customs, do not speak the English language and are ignorant of the history, literature and traditions of the United States.
So conservative a newspaper as the Springfield Republican, in commenting upon the last election, finds from utterances of prominent Germans that the large majority given for the Republican electors in November was by the practically solid foreign vote.
A requirement that each voter must read and write the English language would be a great incentive to education, for as the wouldbe voters grow up and know that their right of suffrage depends upon their knowledge of English, they will take steps to acquire that knowledge.
Louisiana has been a State of the Union for nearly one hundred and nine years and it is the height of absurdity, to say the least of it, that Louisiana should protect those who in that time have not taken the trouble to learn English.
It is hoped that the Convention will safeguard public education throughout the State, not so much by incorporating in the Constitution provisions relating thereto, but authorizing the legislature so to do and abstaining from adopting provision's which might injuriously affect the schools.
A sufficient tax should be provided, not only for the City of New Orleans, but for all the schools in the State as to provide a living wage for the teachers and a surplus fund for repairs, upkeep and building of school houses and this tax should be beyond legislative control.
While perhaps it is not proper to provide for civil service in the Constitution there should be nothing therein to prevent civil service appointments where they now exist or to prevent other school boards from adopting same and a provision should be inserted in the Constitution providing that the school boards -shall never be under the control of municipal or parochial governments.
As next to the parent, the teacher is the closest to the child and as the proper development of the child is necessary for the future stability of the Republic, teachers should not only be paid a living wage, but should be protected against want and old age and therefore, the State should make an appropriation annually, either through the Constitution direct or by mandate to the General Assembly to supplement and add to the teachers' retirement fund in the Parish of Orleans and in the other parishes so that same would always be ample to provide for the teachers who retire.
There are in the State of Louisiana and in the city of New Orleans, nearly one hundred public boards and of course, very many more when all those in the parishes are counted, and the coming Constitutional Convention should take some action to prevent their rapid increase, as has been the case in the last few years, and perhaps many should be abolished by Constitutional provisions, including even some of those imbedded in the Constitution, such as the Pardon Board, for instance, the abolishment of which has been suggested by Secretary of State Bailey in a very forceful interview recently published.
The so-called "Bill of Rights," prepared by the women voters of Louisiana for incorporation in the Constitution, while in many respects praiseworthy and important, embrace strictly matters of legislation and have no place in the Constitution.
As prohibition is now the supreme law of the land by virtue of the Eighteenth Amendment to the Constitution of the United States, it is useless to provide for State prohibition in the Constitution though it is perhaps advisable for Louisiana to adopt, as should the other States, the Volstead law, so as to make the enforcement of the prohibition amendment the same throughout the United States.
I notice that Governor Pleasant, is, with reservations, in favor of a long Constitution, and I doubt very much from the discussion now going on throughout the State whether the Constitution of 1921 will be very much, if any, shorter than the Constitutions of 1879, 1898 and 1913, and it may be longer, especially when we consider the many new matters which it is sought to place therein, for instance: Protection to wage-earners, blue sky laws, anti-blue laws, and half street car-fare for children.
The letter "B" seems to be an important one regarding Constitutional Conventions in Louisiana in recent years.
For the Convention of 1921 there are three candidates for the office of President and the names of all begin with a "B": Phanor Breazeale, of Natchitoches, formerly a member of Congress, a member of the Criminal Code Commission of 1908 and a very active member of the Convention of 1898 but not a member of the convention of 1913 as recently stated in the press; Hewitt Bouanchaud, now Lieutenant-Governor, and formerly Speaker of the House; and T. C. Barret, formerly Lieutenant-Governor. For the Convention of 1915, the call for which was defeated by the people, there were two candidates for President, Mr. Breazeale and Martin Behrman, then Mayor of New Orleans and recently elected a member of the Convention of 1921, he having been also a member of the Convention of 1898, and the only member from New Orleans to that Convention elected or appointed to the Convention of 1921; in the Convention of 1913 the President was Newton C. Blanchard, and the temporary chairman was then Chief Justice Joseph A. Breaux.
We read in the papers almost every day about the shortage of dwelling houses in the city of New Orleans, which shortage, of course, is going to create endless confusion and some suffering unless speedily remedied; and while many remedies have been suggested for this condition, that by Mr. B. P. Sullivan, a director in the Union Homestead Association and thoroughly posted on real estate conditions, seems to me the most feasible and the one most likely to bring immediate results and the one that will be of most benefit to the public in general, because every home, built and occupied by the owner, represents one more contented family, and contentment among the people is what is most needed at this time.
In the Constitution of 1879 certain manufacturers were exempted from taxation for a period of ten years and this exemption was extended for ten years m:>re by Constitutional amendment and was carried in the Constitution of 1898 for ten years more from January 1st, 1900, as to municipal taxation. In both of these Constitutions all manufacturers with a few minor exceptions were exempt from license taxation and the Constitution of 1898 further exempted for ten years new railroads. All of these exemptions were put in the Constitution with the idea that development by manufacturers and railroads would be brought about in the State which might not take place if they were compelled to pay taxes from the beginning of their existence; all of these provisions worked well and were found to he for the benefit of the State.
Mr. Sullivan's suggestion is that new houses built and occupied by the owners be exempt from taxation for a limited period, say ten years, from January 1st, 1921. It is very easy to safeguard this exemption by providing that it shall o ly take place and exist when and as long as the owrer lives in the house which he built; if he should sell or rent the house the exemption to end, thus destroying the work of the speculator who might build houses in order to escape taxation.
We always hear it said that in this country the dollar is placed above the man, and here is a chance to reverse the order of things by recognizing the man who builds the house by exempting his house frDr.: trxE'.ion juct £3 heretofore manufacturing establishments and railroads have been exempted. The amount of revenue this city and State would be deprived of would be insignificant compared to the benefit derived. More houses would be built and greater demand for building materials and labor would follow, and as in the end, the last man pays the taxes, the taxes on this material and this work would more than balance the loss on the finished house. I hope the subject will be given serious attention by the coming Constitutional Convention.
For the last few months the newspapers of the State have devoted considerable space to the coming Convention and many of the suggestions made are well worthy of consideration and as showing their trend of thought, I herewith repeat a recent editorial in the Monroe News Star.:
"A State Constitution should be short, clear and confined to governmental frame-work, leaving all the filling to be done by the government in action. This policy has been so far departed from that all our State Constitutions are long, some very long and they consist very largely of statutory matter. The question has been asked 'Who can write a constitution of twenty lines?' That man has not yet been found. But the man can be found, we believe, who can write a State Constitution in twenty articles averaging less than twenty lines each. What State constitutional convention will be the first to adopt such a draft of its fundamental laws? The consensus of opinion seems to favor a constitution for Louisiana free from all ambiguity, consisting of carefully worded articles dealing entirely with such matters as are absolutely necessary for the guidance of the legislative branch of the government. It should be free from complex sentences, setting forth in terse terms the fundamentals of good government, giving to the Legislature the right to enact such laws as are deemed essential at the present time. Such a constitution will be responsive to the wishes of the people and will place Louisiana well up in the front rank of progressive States of the Union."
Now that the membership of the constitutional convention of 1921 is complete, it may be interesting to compare same with previous conventions.
As in 1898, both the Lieutenant-Governor, then R. H. Snyder of Tensas, who was afterwards elected Speaker of the House of Representatives, and the Speaker of the House of Representatives will be members of the convention in 1921, and for the first time a justice of the Supreme Court will be a member, in the person of Associate Justice B. C. Dawkins, of the parish of Ouachita.
Of the members of the convention of 1879, the president, Louis
A. Wiltz, was then Lieutenant-Governor, and four members became Justices of the Supreme Court. N. C. Blanchard of Caddo, Charles Parlange of Pointe Coupee, F. P. Poche of St. James and Robert
B. Todd of Morehouse. S. P. Henry of Cameron, who was a member of the conventions of 1879 and 1898, was twice elected Speaker of the State House of Representatives, and G. W. Bolton, also a member of both conventions, was once elected Speaker.
Of the members of the convention of 1898, three became members of the Supreme Court, the present Chief Justice, Frank A. Monroe of New Orleans, Associate Justice O. O. Provosty of Pointe Coupee and Judge Paul Leche of Ascension, who served about 16 months by appointment of the Court after the death of Justice Land, until the election of Justice Dawkins. M. J. Cunningham of Natchitoches, a member of the convention of 1879, was three times elected attorney general and A. V. Coco of Avoyelles, a member of the convention of 1898, is now serving his second time in that office.
Two ex-Governors, both Republicans, were members of the convention of 1879, H. C. Warmoth and P. B. S. Pinchback, and both are still living. Two members of that convention became Governors: Wiltz and Blanchard; and three became LieutenantGovernors, Parlange, Estopinal and H. R. Lott of West Carroll.
One member of the convention of 1898 became Governor, J. Y. Sanders, then of St. Mary, but now of Washington parish. He and R. G. Pleasant of Caddo, elected Governor in 1908, will be members of the convention of 1921, and T. E. Barret of Caddo, a former Lieutenant Governor, will be a member.
The political record of Mr. Sanders is most interesting. During the sessions of the Constitutional Convention of 1898 he was elected a member of the State House of Representatives, re-elected in 1900 and then elected Speaker; elected Lieutenant-Governor in 1904 and while serving as Governor in 1910, was elected United States Senator to serve the unexpired term of nearly five years of ex-Governor Samuel D. McEnery. Unfortunately for the State, in my judgment. Governor Sanders declined this election, following the course of J. N. Destrehan, the first Senator elected from Louisiana, who declined the office October 12th, 1812, and Charles Gayarre, the historian of Louisiana, who declined the election as Senator in 1835 though his declination was entirely on account of the condition of his health at that time.
Don Caffery, of St. Mary, and Mr. Blanchard, members of the Convention of 1879, became United States Senators, and Joseph E. Ransdell of East Carroll, and J. B. Thornton of Rapides, members of the Convention of 1898, became United States Senators. Of the present members of the United States House of Representatives, R. J. Wilson of Catahoula and Mr. Sanders were members of the Convention of 1898, and W. P. Martin of Lafourche and James O'Connor of New Orleans were members of the Convention of 1913.
Phanor Breazeale of Natchitoches, Albert Estopinal of St. Bernard, Geo. K. Favrot of East Baton Rouge, A. P. Pujo of Calcasieu, R. C. Wickliffe of West Feliciana, and Mr. Ransdell, members of the Convention of 18S8, also served in the United States House of Representatives, and Mr. Favrot was again elected last November.
P. M. Lambremont, of St. James, elected Lieutenant-Governor in 1908; Martin Behrman, who served as Mayor of New Orleans from 1904 to 1920, and I. D. Moore, who recently retired from the office of City Attorney of New Crleans, after ten years' service, were all members of the Convention of 1898, and Mr. Behrman will be the only member of that Convention from New Orleans in the Convention of 1921.
Of the members of the Convention of 1913 from New Orleans in the Convention of 1921 there will he two, Charles O'Connor from the Twelfth ward (he representing the Second ward in 1913) and John P. Sullivan of the Third Ward. Other members of the Convention of 1913 who will he in the Convention of 1921 are J. W. Joffrion of Avoyelles and W. C. Hodges of Bossiei; R. F. Walker of East Feliciana now Speaker of the House of Representatives; W. J. Burke, of Iberia; John A. Carville of Iberville; L. L. Judice of Lafayette; H. Flood Madison of Morehouse; M. H. Carver of Natchitoches; Simon Leopold of Plaquemines; Albin Provosty of Pointe Coupee; J. W. Alexander of Rapides; S. D. Ponder of Sabine; Joseph E. Doussan of St. James; D. C. Labbe of St. Martin; G. H. Clinton of Tensas and L. O. Broussard of Vermilion.
Memhers of the Convention of 1898, besides those before referred to, who will be in the Convention of 1921, will be S. McC. Lawrason cf West Feliciana; H. T. Liverman of De Soto; J. B. Snyder of Madison; H. H. White and W. D. Haas of Rapides; L. P. Caillouet of Lafourche and P. S. Pugh of Acadia.
In the Convention of 1879 there were 27 Republicans, many of them colored; in the Convention of 1898 there was one Republican, and there will be one in the Convention of 1921, Dr. Roy O. Young of Lafayette, one of the appointees of the Governor. In the Convention of 1913 all the members were Democrats.
Having said something about the flag of Louisiana of 1861, it may not be out of place to speak of the present official flag of our State.
In 1912 the Louisiana Historical Society appointed a committee, of which the late Mrs. W. J. Behan was chairman, to draft a bill for presentation to the General Assembly of Louisiana in the effort to have a law passed recognizing and legalizing the Pelican flag, so called, which though in use for nearly a century had never been officially adopted by the General Assembly. The bill was undertaken by Mr. W. F. Roy, Representative from St. Bernard parish, and was introduced by him in the House of Representatives as Bill No. 203; it duly passed and was approved by the Governor July 1, 1912.
In the session acts of that year, as a part of the law is a picture of the flag, though the coloring is defective, the blue being too light, as the proper blue of the flag is dark, and the character & is used instead of "and," between "Justice" and "Confidence." The law 'n part, reads as follows:
"The official flag of Louisiana shall be that flag now in general use, consisting of a solid blue field, with the coat-of-arms of the State, the Pelican feeding its young, in white in the center, with a ribbon beneath, also in white, containing in blue the motto of the State, 'Union, Justice and Confidence.'" The second section provides: "That the said Str.te flag shall be displayed on the State House whenever the General Assembly is in session and on public buildings throughout the State, on all legal holidays and whenever otherwise declared by the Governor or the General Assembly."
So far as New Orleans is concerned, the public officials obey this law, and the flag will be found on all holidays floating above the City Hall and on other public buildings.
NOTE:—Since this paper was prepared, the Constitutional Convention of 1921 has met, and while there were many curious ordinances introduced, one prepared by a citizen of New Orleans is so unique and extraordinary that I think it ought to be preserved for future generations. It reads as follows:
"It is hereby voted upon and passed by this Convention that the following Amendment to the State Constitution be made as follows, to become a part of the Organic Law and to take effect from date of its passage, to-wit:
"It is hereby declared lawful and commendable that, in cities and towns of two thousand or more in population, to construct and equip what may be herein described as Matrimonial Stations, the object of which would be to encourage and facilitate the natural and legitimate aspirations of the young people, especially in the direction of marriage. The funds for the establishment and maintainance of the stations shall be furnished by the State and Municipalities, aided by private contributions in cash, material or labor.
"The Institution shall be under the supervision of a detective and matron, appointed by the city, in order to secure propriety.
"In the way of further encouragement to those who obtain certificates of marriage, the State and City shall make effort to furnish a position or employment of some kind to the groom, supplemented as aforesaid by generous citizens, as far as possible. In the meantime the General Government might be appealed to, to lend assistance as to custodian of our vast landed areas, and the provisions of our National Homestead Law.
"It is evident that in communities of a miscellaneous character scores of young people might be brought together in an honorable relation and directed on the right way and good citizenship.
"If it is a function of Government to suppress crime, it is likewise a duty to encourage righteousness and virtue and promote the public and private morality of the community."