BAR SECTION

JUDGE ORMOND SOMERVILLE

By

C. B. VERNER, Tuscaloosa, Alabama

In the year 1868, in Tuscaloosa. there was born unto Henderson M. Somerville and Cornelia Banks Harris Somerville a son, who, in his infancy, was christened Ormond. He was a likely child, and grew up and was educated in the local schools of his native city, and at the University of Alabama, where he exhibited that high degree of mentality that was his through life. After graduating at the University he taught school for two years at Macon, Miss., and then returned to Tuscaloosa to take up the study of law at the University, where he was graduated with high honors. Upon the completion of his law course he settled down in Tuscaloosa and began the practice of his profession. Soon after opening his law office he was made solicitor of Tuscaloosa County, this being the only public office he ever held, except that of Justice of the Supreme Court of Alabama. Some time in the year 1895 he and C. B. Verner formed a partnership under the style of Somerville and Verner for the law practice and under the name of Verner and Somerville for the conduct of the Gazette, one of the first daily papers published in Tuscaloosa. This connection had continued for some years, when a new firm was organized, Van de Graaff, Somerville, and Verner. At this time Judge A. S. Van de Graaff was a law professor at the University of Alabama, and in a short while Judge Somerville was elected an instructor in the law school; and from then on he devoted the most of his time to the duties of that office, which he filled with signal success until the year 1910, when he was elected Associate Justice of the Supreme Court. Judge Somerville then moved to Montgomery where he resided until his death, which occurred recently. He was elected to succeed himself in 1916, in 1922, and in 1928.

Judge Somerville was a man of athletic build, strong in body as well as in mind. He took a great delight and pride in his work. His great ambition was to follow in his father's footsteps to the supreme bench of the State, and to have it said

of him that he was "The worthy son of a worthy sire." This ambition was fully realized. For nearly eighteen years he labored as a member of the State's highest court. His judgments and decrees were sound, based upon elemental principles, and couched in the plainest, simplest and most concise words of the English language. He was not swayed by fear, favoritism or expediency. He was not precipitate in his decisions or judgments, but rather they were the result of sound reasoning and true logic. This is attested by the many decisions written by him. When he could not agree with the majority of the court, in the decision of some new point of law, his dissenting opinions were written most forcibly, but always with due respect for the other members of the court, all of whom held him in the highest respect and deepest affection.

For eighteen years he had served his state so honorably that, in appreciation of the high character of his work, he was again given another six-year term without opposition.

Judge Somerville's work as an erudite lawyer and teacher was shown during his connection with the law school of the University, and is attested by hundreds of good lawyers all over Alabama who studied law under him, and who were thereby inspired for higher things. He was a lawyer of the old school who had no patience with the idea that the law should be commercialized or reduced to a business. On the contrary, to him the law was a profession whose ethics were based upon the golden rule, and he lived true to this conception.

Judge Somerville had the Judicial mind. He was only influenced and induced to action by the logical process of reason, and not by any thought of political influence or expediency.

The loss to our court of last resort is great. It seems a strange dispensation of Providence that a strong man should be cut down at the acme of his worth, when to all appearances he had many years of service left in him.

A good citizen, a just Judge and a Christian gentleman has been called to his reward. He has left to his family and his country a good name, more to be desired than great riches. May he rest in the full enjoyment of that peace, which comes only from a life spent in the performance of duty well done.

AMENDING THE FEDERAL CONSTITUTION

By

FREDERICK G. BROMBERG, Mobile, Alabama

In order to judge whether any proposed amendment to the Federal Constitution is within the provisions of Article V of that document, that article must be construed.

The sole provision therein relating to the nature of the amendments which can be made, consistently with the compact between the States, consists of the words: "The Congress whenever two thirds of both Houses shall deem it necessary shall propose amendments to this constitution, ***." The use of the word "necessary" shows that it is not the intent of that article to invest Congress with unlimited discretion as to the nature of the amendments it may propose to the States for adoption.

Were this the purport of the article, language appropriate to that end would have been used, and the word "necessary" would have been omitted, because a limitation in effect.

We know that every part of the Constitution was most carefully considered and entrusted to a committee on style, before it was adopted by the Convention for proposal to the respective states for ratification.

Had the Convention intended to give Congress unlimited discretion, it would have said in the fewest words only this: "Two thirds of both Houses of Congress shall propose amendments to this Constitution or on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, etc."

It is evident, under the rules of legal construction that Congress can only propose amendments when they deem it necessary.

"Necessary" for what?

The only legal answer that can be given is, "Amendments necessary for the better carrying out of the express provisions of the original Constitution" and not such as would be invasions

of the usages, customs, and common law of the peoples of the several states.

The original Constitution, and the present Amendments thereto, constitute the present unalterable compact between the several States. These usages, customs, and common law, cannot be infringed upon without the formation of a new Union.

The present Constitution and its Amendments embody all that the several sovereign States surrendered of their sovereignty to form the present union.

No further part of that sovereignty can be taken away from any individual state, except with the consent of that individual state, which means, that the Amendments now pending before the country would have to be ratified, not by three fourths of the several states, but by every one of the several states, none excepted.

There can be no valid Amendment to the Constitution which in the least trenches upon the internal life of the several states, as sovereign states, beyond the present provisions of the Constitution, until ratified by evey State of the Union.

But amendments which invade state rights are not contemplated by said Article V, for the reason that a number less than all the States can validly ratify such amendments as Article V provides for.

Amendments to the Union require the consent of all the

States.

What are the inherent rights of the peoples of the individual states not surrendered to form the present Union, and which form the boundary between the States and the Union; which cannot be constitutionally over-stepped by any Amendment to the Constitution, without the concurrence of every one of the individual states so invaded?

To over-step the boundaries of the present Union, to invade the present rights of the states as states, would be to force a new compact upon the individual states which might be called, by analogy, an Amended Union, in contradistinction to a Constitution amended according to the provision of Article V.

The European nations, by whom America was colonized, claimed absolute dominion over the whole territory afterwards acquired by them, not by right of conquest, or cession by the Indian natives, but by the right of discovery. Johnson vs. McIntosh, 8 Wheat., 543,576,595; 1st Story Const., (4th ed.) sec. 152, p. 102.

Englishmen removing thither, carried with them those rights and privileges which belonged to them in their native country. 1st Story, Const. (4th ed.) sec. 154, p. 103, and authorities cited in note 4. The colonists carried with them their birth rights-the laws of their country, "because the customs of a free people are a part of their liberty." 1st Story, Const. (4th ed.) sec. 155, p. 104, and note 2. In the charters under which all the American colonies composing the original Union with a single exception, that of Pennsylvania, were settled, there was an express declaration that all subjects and their children inhabiting therein, shall be deemed native born subjects, and shall enjoy all the privileges and immunities thereof. 1st Story, Const. (4th ed.) sec. 156, p. 105. The universal principle has been that the Common Law is our birthright and inheritance, and that our ancestors brought hither with them all which was applicable to their situation. 1st Story, Const. (4th ed.) sec. 157, p. 105.

Thomas Jefferson went beyond this, and maintained that the colonists brought with them the rights of men-expatriated men. 1st Story, Const. (4th ed.) sec. 157, note 4.

But the Congress in 1774, resolved that their ancestors, at the time of their emigration, were entitled to all the rights, liberties, and immunities of all free and natural born subjects within the realm of England. Journal of Congress, Declaration of Rights of the Colonies, October 14, 1774, pages 27 to 31; 1st Story Const. (4th ed.) sec. 157, note 4.

In Wheaton vs. Peters, 8 Pet. 658, Justice McLean, delivering the opinion of the Supreme Court of the United States, says, "The Federal Government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs, and common law." 1st Story, Const. (4th ed.) sec. 158, p. 107, note 2.

Citations from the decisions of the Supreme Court of the United States and the accompanying opinions might be multi