The Convention assembled at the appointed hour.
Prayer by Rev. R. L. Brooks, a member of the Convention.
In absence of the President, Mr. Hall of Marion occupied the chair.
Journal read and approved.
The Chair stated the question as being on the 5th section of the report of the Committee on County Organization.
MR. VAN WINKLE. It would be proper to explain to this Convention what these offices are intended to be so far as the committee intended. What the sheriff and prosecuting attorney are, everybody knows. The surveyor of lands is the regular surveyor of the county for the purpose of surveying lands and so on; and then there is a surveyor of roads, in a previous section. There is a recorder of deeds and wills: that also explains itself; one or more assessors. That name was preferred by the committee to "commissioner of the revenue," which consists of four words and is rather a description than a name. "Assessor" is well understood, not only abroad but in Virginia. We have the officers who make the assessment of real-estate called assessors. Superintendent of schools also explains itself. I would say it would be best to have the same understanding about these officers as about the township officers, that the Convention may adopt or reject any of these names, and put in others if in the progress on the report it should be found necessary; that the report should always be considered open for that purpose until it is finally disposed of.
THE PRESIDING OFFICER. Under the rule under which we are acting the report would be subject to amendment on final action.
MR. VAN WINKLE. Well, I mean previous to final action; that we should not be excluded from putting in another officer if necessary.
MR. DILLE. In looking over this first clause of this 5th section, it struck my mind that there is something in the 54th line probably unnecessary. It may be that I am under a misapprehension: "a recorder of deeds and wills." I am inclined to the impression, upon a little reflection on this subject, that it would be better to strike out the words "deeds and wills" and say "a recorder." It seems to designate a little too particularly the duties of the office; whereas, the provision here, the latter part of the clause would seem to indicate that the powers and duties of these officers is to be fixed or prescribed by the legislature. Now, in thinking upon this subject, I have thought probably it would be necessary for this officer to have charge of estates, the recording of estates and everything pertaining to them. If so this expression here would seem to exclude the idea. By using the simple expression "recorder", then the legislature in its action under this section may direct or authorize the duties of that officer and define them by general laws. I think it would be better, and I move to strike out in line 54 the words "deeds and wills."
MR. VAN WINKLE. I would state that those words were introduced by the committee rather for the benefit of the Convention in order that they might understand what the committee meant rather than to retain them as the permanent name of the officer. A recorder is an officer that is well know elsewhere by the simple title, and it would soon get to be so here. I have no objection, therefore, to strike out the words; and I think there is a good deal in the suggestion that the legislature go a little further than we propose in reference to the recording of deeds and wills. Something of that kind might be done. It would relieve the circuit court very much; and as it is not the intention to continue this limitation here, it will be left to the legislature to consider that suggestion.
Mr. Dille's amendment was agreed to.
MR. STEVENSON of Wood. I believe, sir, that there ought to be an amendment in the 58th line. At least I will offer one to elicit an opinion from the Convention. To insert after the word "defined" the words "as far as practicable." The section will then read: "the duties of all of whom shall be defined, as far as practicable, by general laws." I offer this amendment, sir, for this reason, that although I believe the practice to be a correct one, and I am decidedly in favor of it, of regulating the duties of these different officers by general laws, yet I think it is possible in the course of time - particularly as many of these are new offices - cases may arise where it will be, good and proper causes may arise, where it will be impossible to apply these general laws. Now, it is to meet such particular cases which may possibly arise that I think the words should be inserted. We do not know how these general laws will operate in every particular case; because it is impossible to see now, whatever foresight we may have, the different particular cases which may arise as we come to apply them to the duties of these officers in actual practice. If these words are not inserted, the duties of these officers must be prescribed only by general laws; and if a difficulty should arise in a particular case, or in a number of particular cases, where some special law would be needed, you would have no remedy. Now, sir, if you insert this provision, it seems to me it does no harm but it may do good if such cases should arise. Then you can have a special act for the purpose to meet the case or any number of cases. If such cases should not arise then it will be the duty of the legislature to apply the general law in all cases and you will have to apply it in all cases at all events if this is inserted unless some special contingency of this kind should arise - which is quite likely, I think.
MR. PARKER. I would suggest: "defined by law," whether that would not meet that suggestion.
MR. STEVENSON of Wood. I would like "general laws" to be in. I would like that to be the rule; the other the exception.
The motion on the amendment was put and it was found there was no quorum voting.
MR. BROWN of Kanawha. Mr. President, I would say to the Convention when the gentleman from Wood proposed this amendment it struck me as being objectionable; but after hearing his suggestion and that of the gentleman from Cabell, I have changed my mind and I think it is highly proper that it be inserted. It is very possible, it occurs to me that many cases might arise in which it would be very difficult perhaps by general law to provide for the case that might be required and that special legislation might cure, and that the power to give it ought to be had. Therefore, I would vote for it.
The vote was taken again and resulted: Ayes - 15; Noes - 11.
So the amendment was adopted; and the question recurring on the sentence as amended it was agreed to.
MR. LAMB. Mr. Chairman, I have a report to make from the Committee on the Legislative Department, which I move to have laid on the table and printed. Following is the report:
The committee having reconsidered so much of their report as relates to the number and apportionment of members of the legislature, recommend the adoption of the following provisions as part of the Constitution of the State, instead of the 2d, 3d, 4th, 5th, 6th, 7th, and 8th sections of the 2d report:
2. The senate shall be composed of eighteen, and the house of delegates of forty-seven members, subject to be increased according to the provisions hereinafter contained.
3. The term of office of senators shall be two years, and that of delegates one year - commencing, in each case, on the 4th day of July succeeding their election; except that the terms of the senators and delegates first elected shall commence twenty days after their election. The senators first elected shall divide themselves into two classes, one senator from every district being assigned to each class; and of these classes, the first to be designated by lot, in such manner as the senate may determine, shall hold their offices for one year, and the second for two years; so that, after the first election, one half of the senators shall be elected annually. Vacancies, in either branch shall be filled by election, for the unexpired term, in such manner as shall be prescribed by law.
4. For the election of senators, the State shall be divided into nine senatorial districts; which number shall not be diminished, but may be increased as hereinafter provided. Every district shall choose two senators. The districts shall be equal, as nearly as possible, in white population, according to the returns of the United States census. They shall be compact - formed of contiguous territory - and be bounded by county lines. After every census hereafter taken by authority of the United States, the legislature shall alter the senatorial districts, so far as may be necessary to make them conformable to the foregoing provisions.
5. The legislature may at any time, by law, divide any senatorial district, by county lines or otherwise, into two sections, which shall be equal, as nearly as possible, in white population. If such division be made, each of the sections shall elect one senator, instead of the district electing two; and the senators so to be elected shall be classified in such manner as the senate may determine.
6. Until the senatorial districts be altered by the legislature after the next census, the counties of Hancock, Brooke and Ohio shall constitute the 1st senatorial district; Marshall, Wetzel and Marion the 2d; Monongalia, Preston and Taylor the 3d; Pleasants, Tyier, Ritchie, Doddridge and Harrison the 4th; Wood, Jackson, Wirt, Roane, Calhoun and Gilmer the 5th; Barbour, Tucker, Lewis, Braxton, Upshur and Randolph the 6th; Mason, Putnam, Kanawha, Clay and Nicholas the 7th; Cabell, Wayne, Boone, Logan, Wyoming, Mercer and McDowell the 8th, and Webster, Pocahontas, Fayette, Raleigh, Greenbrier and Monroe the 9th.
7. For the election of delegates, every county containing a white population of less than half the ratio of representation for the house of delegates, shall, at each apportionment, be attached to some contiguous county or counties, to form a delegate district.
8. When two or more counties are formed into a delegate district by the legislature, they shall provide by law that the delegates to be chosen by the voters of the district shall be, in rotation, residents of each county, for a greater or less number of terms, proportioned, as nearly as can be conveniently done, according to the white population of the several counties in the district.
9. After every census hereafter taken by authority of the United States, the delegates shall be apportioned as follows:
The ratio of representation for the house of delegates shall be ascertained by dividing the whole white population Of the State by the number of which the house is to consist, and rejecting the fraction of a unit, if any, resulting from such division.
Dividing the white population of every delegate district, and of every county not included in a delegate district, by the ratio thus ascertained, there shall then be assigned to each a number of delegates equal to the quotient obtained by this division of its white population, excluding the fractional remainder.
The additional delegates which may be necessary to make up the number of which the house is to consist, shall then be assigned to those delegate districts, and counties not included in a delegate district, which would otherwise have the largest fractions unrepresented. But every delegate district, and county not included in a delegate district, shall be entitled to at least one delegate.
10. Until a new apportionment be declared, the counties of Pleasants and Wood shall form the 1st delegate district; Calhoun and Gilmer the 2d; Clay and Nicholas the 3d; Webster and Pocahontas the 4th; Tucker and Randolph the 5th; McDowell, Wyoming and Raleigh the 6th. The first delegate district shall choose two delegates, and the other five one each.
11. The delegates to be chosen by the 1st delegate district shall, for the first term be both residents of the county of Wood, and for the 2d term one shall be a resident of Wood and the other Pleasants county, and so in rotation. The delegate to be chosen by the 2d delegate district shall, for the first term be a resident of Gilmer, and for the second of Calhoun county. The delegate to be chosen by the 3d delegate district, shall, for the first two terms, be a resident of Nicholas, and for the third term of Clay county. The delegate to be chosen by the 4th delegate district shall, for the first two terms, be a resident of Pocahontas, and for the third term of Webster county. The delegate to be chosen by the 5th delegate district shall, for the first three terms be a resident of Randolph, and for the fourth term of Tucker county. And the delegate to be chosen by the 6th delegate diistrict, shall, for the first and second terms, be a resident of Raleigh, for the third term of McDowell, and for the fourth and fifth terms of Wyoming county - and so, in each case, in rotation.
12. Until a new apportionment be declared, the apportionment of delegates to the counties not included in delegate districts, shall be as follows:
To Barbour, Boone, Braxton, Brooke, Cabell, Doddridge, Fayette, Hancock, Jackson, Lewis, Logan, Mason, Mercer, Putnam, Ritchie, Roane, Taylor, Tyler, Upshur, Wayne, Wetzel and Wirt counties, one delegate each.
To Harrison, Kanawha, Marion, Marshall, Monongalia, and Preston counties, two delegates each.
To Ohio county, three delegates.
To Greenbrier and Monroe counties together, three delegates, of whom, for the first term, two shall be residents of Greenbrier, and one of Monroe county; and for the second term, two shall be residents of Monroe and one of Greenbrier county; and so in rotation.
13. If the counties of Pendleton, Hardy, Hampshire and Morgan become part of this State, they shall, until the next apportionment, constitute the tenth senatorial district, and choose two senators. And if the counties of Frederick, Berkeley and Jefferson become part of the State, they shall, until the next apportionment, constitute the eleventh senatorial district, and choose two senators. And the number of the senate shall be, in the first case, twenty, and in the last, twenty-two, instead of eighteen.
14. If the seven last named counties become part of this State, the apportionment of delegates to the same, shall, un- til the next apportionment, be as follows: To Pendleton and Hardy, one each; to Hampshire, Frederick and Jefferson, two each; and the counties of Morgan and Berkeley shall form the seventh delegate district, and choose two delegates; of whom for the first term, one shall be a resident of Berkeley and the other of Morgan county; and for the second term, both shall be residents of Berkeley county, and so on in rotation.
But if the counties of Pendleton, Hardy, Hampshire and Morgan become part of this State, and Frederick, Berkeley and Jefferson do not, then Pendleton, Hardy, and Morgan counties shall each choose one delegate, and Hampshire two, until the next apportionment.
The number of the house of delegates shall, instead of forty-seven, be in the first case, fifty-seven, and in the last case, fifty-two.
15. The arrangement of the senatorial and delegate districts, and apportionment of delegates, shall hereafter be declared by law, as soon as possible after each succeeding census taken by authority of the United States. When so declared, they shall apply to the first general election for members of the legislature to be thereafter held, and shall continue in force, unchanged, until such districts be altered, and delegates be apportioned under the succeeding census.
16. The regular elections for members of the legislature shall be held on the fourth Thursday of May.
By order of the committee. DANIEL LAMB, Chairman.
HOUSE OF 47 - Ratio, 1 Member to 6,477 Whites.
TABLE
By general consent the report was received, laid on the table and ordered printed.
The Secretary reported the second sentence of section 5 as follows:
"All the said county officers shall hold their offices for two years from the first day of October next succeeding their election, except the sheriff, whose term of office shall be three years."
MR. DILLE. In the 61st line I move to strike out the word "three" with the intention of proposing "two;" and when the next clause comes before the Convention, to propose that he may hold the position for two consecutive terms.
THE PRESIDING OFFICER. The gentleman's object would be accomplished by moving to strike out the exception, all after "election" in the 60th line.
MR. DILLE. That will accomplish the same object. I think really that a sheriff should hold his office at least two terms if the people choose to elect him. At least all my observation and experience in connection with the sheriff's office would induce me to vote in that way. It may be that others have more experience in reference to these officers and have had worse officers and desire a rotation in them; but still I am inclined to believe that a sheriff should at least hold that office for two years and be eligible for two terms.
MR. VAN WINKLE. I do not know whether I understood the gentleman from Preston correctly. I understood his object is to reduce the term to two years and then allow him to be elected for two consecutive terms, making his whole term four years. He will notice it is the next clause that forbids) the re-election for a second consecutive term. I have not on this as on many other subjects connected with these officers the practical knowledge to enable me to say except on general principles what I would think right about it. I believe, however, that in accordance with the practice that is contained in the constitution of 1850 it seems to have been indicated that the sheriffs should not have too long a term of service, but be obliged to give up the office at reasonable intervals in order that settlements may be made. I would call the attention of the Convention at this time to another clause of the next sentence: "but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall continue in force." There will be no handing over of business from one sheriff to another. He will go on and finish up the business; which will give him sufficient employment and profit after settling with those who have placed business in his hands. I am, so far as I can judge about it, I am rather indifferent to this amendment - whether the sheriff should serve altogether three years or four years. That is the only question involved. I should like to hear from those who have more practical experience. I think in my own county we never had one defaulting sheriff - that is, within the last four or five years. We have had a few defaulting constables; but we have not been subjected to the evils of which others complain.
MR. SMITH. In case the amendment shall prevail, what would be the effect of it as regards the second term?
MR. VAN WINKLE. It is with a view, as the gentleman who made the motion stated, to also strike out the provision in the next sentence which forbids the sheriff from serving more than one term at a time and allow him to serve two terms, making a service of four years.
MR. SMITH. I would concur in the motion to strike out if it were not that I think another plan is much better for the country. Instead of having two terms, I should prefer to have one term of four years. The sheriff for the first two years, so far as my observation has extended, devotes himself entirely to preparing the way for a new election, and the county and parish levies are neglected and the revenue is neglected, and he is a defaulter. Then he gets in for a second term and tries to make up for his default. I should like the term to be four years because a sheriff in two years only learns the duties of the office, and when he becomes an expert sheriff he is removed and we lose the benefit of his past experience. But give him four years and one term and you avoid this difficulty, this objection to it of electioneering the end of the first year for his re-election. He has no inducement then. Give him the four years. But to make a good sheriff, who will perform his duties, a rigid sheriff, is better for the country; but a loose sheriff is ruinous to the country, the tax-payers, because they are delayed from year to year until they become a heavy and onerous duty, and then it is perhaps lost and it becomes exceedingly onerous, three or fours years of taxes resting on an individual at once and all to be enforced at once. But if he is rigid, collects it in small sums, the party does not suffer. I think it would be greatly preferable to make his term four years, when all these causes which exist for inducing him to neglect his duty are disposed of and he has no other thing to occupy him but his duty to the country and to himself. I would object therefore to striking out for that reason, that the term should be four years instead of two - three certainly.
THE PRESIDING OFFICER. It would be competent to strike out "three" and insert "four."
MR. SMITH. I now make that motion, if it is proper.
MR. LAMB. I think we had better dispose of the first amendment first. The question will be more distinct.
MR. VAN WINKLE. The question is now: shall it be two years, three years or four years. Well, I believe in such cases it is usual always to take the vote on the longest term first, no matter in what order the amendments are offered. The Convention will, of course, understand that by voting one they exclude the other.
MR. BROWN of Kanawha. I think that past experience under the operation of the constitution of 1850-51, which gave us the election of sheriffs in two-year terms has demonstrated the wisdom of the proposition of the gentleman from Logan; and I think it is the experience of the country as the records of the office at Richmond manifestly show, that the sheriffs throughout the commonwealth, as a general thing, have appropriated the first term to secure an election to the second. When they cannot secure a re-election for the second term (or the third, whichever the prohibition is in the constitution), the same thing is attained by running a deputy for sheriff and the sheriff becomes the deputy in turn of the newly elected party. Now, that is the practice, and the result is that collections of taxes go neglected and everything is delayed, deferred, favoritism shown, in order to make friends for the second term. Now, as the gentleman remarked, it is manifest if you make it at once four years and forbid re-election for a consecutive term and forbid a sheriff from being a deputy for his successor, he has no inducement but to go forward and discharge his duty and save his securties from the penalties. Everywhere you find securities are being mulcted in heavy defaults. Well, now, the policy should be not only to secure the amounts that result from the liabilities of the sheriff but to secure people from being drawn into these. I hope it will be the wisdom of the Convention to adopt four years instead of three and make one term final, however, the sheriff at the end of his term shall be conducted and wound up by him thereafter.
MR. VAN WINKLE. I should like to say one word - to call the attention of the members - because my own mind is not entirely clear on this subject. The sheriff's, I suppose, is the most valuable county office proposed - the most valuable office we have. My experience - or speaking from recollection, of those I have known to go into office is that a man by taking the office either makes money or ruins himself. And also it may be said that there is no medium course. A man hardly ever comes out of the sheriff's office without having either made a lot of money or lost all he had. He either makes or he loses and breaks himself up. A delinquent case that I knew of in my county was a singular one: a man of property; he had collected very closely; and yet his securities have actually paid in cash up to this time some eight or nine thousand dollars and neither he nor any one else can tell what has become of the money. This and my experience particularly with the office of constable, where I have seen it more, has led me to the conclusion that the difficulty is that the temptation of the office is great to any man; but unless a man has peculiar business qualifications it is utterly impossible for him to manage it so as to make money.
We propose now to make the term four years and to continue till the business is wound up. The sheriff will unquestionably be compelled by the legislature to give security, and ample security, for the discharge of the duties of his office. Now, how, I want to know, is this long term going to operate in reference to the security? Will it induce the securities, who are frequently men as well qualified for the office as the sheriff himself - will it induce them to look at what they are about to do? If the person who asks for security is not a man of business habits, to refuse to give that security; or will we go on giving security and signing the bonds of anybody who asks it? If by fixing the term long it will induce these securities to see that they have got to trust to something more than luck in the matter; that during the long period the office is to continue a great many things may happen to induce them to be more particular whose bonds they sign, then it is an argument in favor of four years. The true remedy, sir, would be, of course, with the people who elect this sheriff; but a knowledge of a man's business qualifications relating to figures and finances are not usually very extensively disseminated among our agricultural population. They are not perhaps the best judges in reference to a man's qualifications for that particular office. They know him to be a good neighbor, an honest and upright man; they see him in the possession of property; they find perhaps he is even by means of his ordinary business operations accumulating property; but they are not, nor is every one, able to tell what a man can do in reference to things of this kind till he is tested, because it requires peculiar qualifications. It requires peculiar qualifications to make a good shoemaker as well as a fine statesman; and I don't believe Daniel Webster ever could have learned to make a pair of shoes. For this long term of four years unquestionable the sureties must run more risk than they would for the shorter term; but is it likely that with the best nominations, and the best intentions on the part of the candidates themselves, despite the greater risk of the longer term, there would be any greater caution on the part of those asked to go on the successful candidate's bond? My own impression is that in ordinary cases the longer term would make them more cautious. But then, on the other hand, if the term should be reduced to two years and the sheriff allowed to double it, making four years in all, would not this return to the people for confirmation be of some importance? Or would it have the effect such as, if I understood the gentleman from Logan, that the sheriff devotes his first term to secure the second? It is one of those exceedingly responsible offices, in which the people are so directly interested that the utmost caution should be used in everything that relates to it. And I state frankly that since what I have heard, my own impressions are in favor of four years. I should like if any gentlemen who know more about it would confirm me in it or tell me if I am wrong in that impression.
MR. DERING. I should not trouble the Convention on the present question did I not feel myself instructed to some extent by the people of my county on this subject. They are decidedly, sir, wherever I have heard an expression of the people, in favor of but one term for the sheriff; and it occurs to me that three years would be sufficiently long. A new broom sweeps clean, sir; but if you continue a sheriff in office too long, he becomes careless and negligent. You give any man or set of men power too long, and keep them in power and office, they become careless and negligent. Some gentlemen have proposed a term of four years. The committee themselves have recommended three years to be the term of the office. It seems to me three years would be sufficiently long for a sheriff to be compensated and that they might then very well retire. If you make it two years you will make the time too short to receive that compensation which he should have. If you make it four years you increase the liability to negligence and neglect of business. Our people, sir, are clearly in favor of a moderate one term for the sheriff.
Why, sir, in our county we have a signal illustration of the facts that where sheriffs are permitted to be elected and re-elected, as they were under the old constitution eligible to the same office for two terms, the whole business of the sheriff during the first term is to provide for his re-election to the second; and during the second, his whole business is to procure the election of one of his deputies; and in that way, sir, the office has been handed down from high sheriff to his deputy ever since we adopted the constitution of 1850-51. He makes it his business the first two years he is in office to electioneer for sheriff for the next two years; and then for the next two years the sheriff and his deputies make it their business to electioneer for the election of one of the deputies for the following four years. And so the sheriffs have been a self- perpetuating body. The sheriffs in our county have been handing down the office to either themselves or their deputies ever since the change in the constitution. It is important, sir, that we should so guard the office of the sheriffalty that they will be held properly amendable to the people and be confined to one term of office, themselves and their deputies both being made ineligible thereafter. I shall vote for the three years term.
MR. SMITH. I beg leave to withdraw my amendment for the present. It is put in the front of battle, and I have an army on either side striking at me. I am competing with two propositions instead of one. I would maybe let them have the first fight, and then I will come in with my amendment and compete with the other. I think it would be better for my little bantam to be out of the ring for the present and come in after one of them is disposed of. I therefore beg leave to withdraw my amendment for the present and let the two-year and three-year men have their struggle first. I concur entirely in what the gentleman from Monongalia has said; but that is provided for in the Constitution, that the deputy shall not be a substitute. That thing has been practised in our county to a very considerable extent and was the cause of a good deal of exception. I have seen the operation of electioneering for the second term. I am opposed to two terms and to the election of a deputy. My experience and observation in the various counties in which it has been my business to become informed is that it is mischievous. These amendments not only strike at the root of the evil; but I do think that after a sheriff has become competent to discharge the duties the public, who are then interested in the residue of the term ought to have his enlightened services. I therefore prefer four years. If I cannot get four, I would prefer three to two. But for the present, I will withdraw my amendment and ask that the question be put on the two and three years.
MR. SINSEL. I see nothing in this clause to prevent the retiring sheriff from being deputy to his successor.
THE PRESIDING OFFICER. The question will arise in the next sentence. The exclusion is not under consideration now.
MR. SINSEL. And then you will see, if you go on with this, that you are here prohibiting the deputy sheriff from being elected while the principal himself may be the deputy of his successor.
THE PRESIDING OFFICER. The gentleman from Taylor does not understand it. So far as the matter of exemption is necessary to be used as an argument it is proper; anything on that point would be proper when we arrive at the next sentence.
MR. SINSEL. Very well.
MR. BROWN of Kanawha. The gentleman from Logan having withdrawn his motion, I shall have a word to say. What I wish to say will be to the general question, whether the amendment is offered hereafter or now, the difficulties suggested by the gentleman from Wood in regard to these bonds. Now I have some experience in this matter, and I know that the difficulties on that score are very great. I alluded before to the general history of the state. Unless gentlemen are familiar with that, perhaps it would not strike them with force in this argument. But I believe it cannot be controverted by any gentleman that the defaults of the sheriffs to the commonwealth are three-fold what they were before this constitution which elected sheriffs by the people was adopted. It is the experience of the last ten years. I know in Wood, Jackson, Putnam, Kanawha and Cabell, and I have been informed in Boone and Logan - of the other I cannot say -
MR. SMITH. Raleigh.
MR. BROWN of Kanawha. In those counties, in every single instance, sir, have the sheriffs been sued and judgments recovered for their defaults against their securities to the amount of thousands upon thousands. Innocent men. are deprived of all that they have. Now, take these same counties under the old constitution and I doubt whether in the whole of them any such thing can be found from the date of the commonwealth to the inauguration of this constitution. There may have been a notice against an officer for some trifling default, but no such thing as a judgment against the sheriff and his securities was a rare occurrence. Now, why this mighty change but for the fact that this thing of electing your officer by the people prompts the incumbent to use his position to secure his continuance in it, and as a result the officer becomes a defaulter and his securities are liable. If he fails of a second election, then comes the judgments. If he succeeds, what then? It is the general understanding, and I believe it cannot be successfully questioned that all his collections are applied to supply the defaults of the first term. Every security of the defaulting sheriff of the first term is bound to aid in the success of this officer or deputy who is to step into his place in order that the funds and revenues that may come into the hands of the second officer may discharge the first liabilities, and the second men are drawn in unwarily into liabilities they have little understood to find themselves involved for more than they are worth at the end of the second term.
Now these are existing facts that have grown out of this very condition of things. The question is, will you perpetuate it? The matter is one of practical experience of ten years all over your state; for I doubt very much whether in one-half of the counties of the state there have not been judgments against sheriffs and their securities for defaults. With this experience and light before you, you will now learn wisdom by experience. The question is whether you will, in the light of this experience, lengthen this term to a time sufficient to allow this officer a full opportunity of fulfilling his duties; and when he has done it, we should permit neither him nof his deputies to become his successor, nor permit him to be the deputy of his successor, which will accomplish the same end. In most of the counties I know it is the rule that the deputy this year is to be the sheriff the next, and the outgoing sheriff then becomes his successor's deputy; and then at the end of that term the tables are to turn again; and thus it is kept up by turns as long as these men can effect the election of each other. Now, the object is to end that. The reason we desire to end it is the evils that grow out of it. That is to be accomplished by giving to your office four years. I concur in much that was said by the gentleman from Monongalia, but I differ from his opinion that three years is a long enough term. I think experience shows four years is barely long enough and that the termination of the office will have to continue on to wind up the business if that term is found insufficient. In this case you always understand when a man goes security for the sheriff he knows that officer never can subject him to any other law by any other change. He knows he has got to stand up to the liabilities to the end of the four years, and it will make him more chary about how he goes into the bond and more watchful to see how he discharges his duty; and the sheriff will not find it so easy to mulct the whole community. When you have accomplished these two ends you will have done much to secure the rights and property of the people. For this office is important. It comes in contact with the whole community, debtor and creditor. And here I beg to remark another thing. Under the old constitution the sheriffalty was always farmed out. The high sheriff never in any instances that I know of undertook to discharge the duties himself. The consequence was that he always selected his deputy with a view to his qualifications and cared nothing about the matter of popularity. He wanted the man who would save him harmless from all liabilities; and that is the reason the man was chosen by the high sheriff with a view to his qualifications - the reason why you never had judgments against the sheriffs; because they were so much better. Now, our object is to secure that very same qualification in the officer. Give him time to qualify himself and to carry out and execute the office and make his securities liable for all defaults, with no possibility of shifting that liability on the shoulders of some other securities who are not aware of what is transpiring.
MR. STUART of Doddridge. I believe that to be the greatest good to the greatest number of people. I have been sheriff and the surety of sheriffs for the last twenty years and I believe I know as much about it as most persons. I am for frequent recurrence to the people myself; and if I was addressing now the mass of the people before my friends of the township meeting, I know that I would have no difficulty in carrying my point, and that is adopt the shortest possible term for these sheriffs. I presume the reasons assigned here now to increase the number of years, is, that they will go on and execute the office without any regard to the sentiment or feelings of the people at large. If we elect a sheriff, my experience is, that one year would be the best term we could elect him for, because then he would be disposed to perform the duties of the office courteously and kindly towards citizens and be disposed, sir, to pay over in order to satisfy his sureties. If you give him four years it will be that much more latitude, and if he is disposed to be a rascal it will give him an opportunity of defrauding the sureties out of a greater amount of money. We want none but honest men as sheriffs; and the great difficulty the gentleman from Kanawha has now spoken of is the fact that after this election the sheriff - a majority of them - were totally unfit for the position. And my experience in the losses by these sheriffs is not that they did not clear, but that they cleared and squandered and spent - were reckless. If they had not collected it, the sureties would not have been hurt, because the debts would have been there and could have been called in and the claims could have been met with the taxes to have been collected. In nearly every instance in my knowledge it has been squandered and spent by the recklessness and dishonesty of the sheriffs in that he was holding out inducements to be elected again and used the money.
Now, sirs, if we have an officer of that kind, is it not better that he should return to the people in one year, than that he should be allowed three or four years? It would be much better. If a man proves himself to be a good sheriff, an honest, faithful man who looks to the interest and welfare of his constituents ought not the people have a right to elect that man again, if they choose to do so, instead of trying another experiment and picking up another man whose qualifications they are totally unacquainted with? Let them return at short periods. They will soon find out who is the man that should be sheriff, and who is the man that is not to be trusted; but they cannot do much wrong in one year, and if he proves himself to be an efficient and good officer in one year the people will elect him again. If he is a kind and well disposed man and looks to the interest of the people they will elect him; but if he is arbitrary, selfish, and does not care for the interests of his fellow men, as I have seen some do, of course they will not elect him. Is that the kind of a man you want to make out of your sheriff? Or is it the man who will look to the interests and feelings of his constituents and indulge them as much as possible? Should we seek to make out of the sheriff an unfeeling tyrant by saying to him that he is never to look to the people again for any continuance of his office? He may oppress and destroy the people as much as he pleases, still it makes no difference he has his office four years and need not look any further. Now that would be the result. When I acted as sheriff, I acted for one year and renewed the bond next year. I believe nobody ever lost any money by it; and if you had the same rule this day, there would be no defalcations. There are more defalcations at present than there were under the first constitution. A sheriff had to renew his bond every year; and if he had to do the same now we would have very few defalcations because the case would be scrutinized at the end of every year. I would be for fixing it at four years, and I believe the gentleman from Logan has withdrawn his amendment. I now move to amend by making it one year and I cannot see anything that would result unfavorably but everything that is right in my honest opinion - the safety of the people, the safety of the government, the safety of everybody. Now I have been a standing surety for twenty years as I remarked, and I do assure you I would be very unwilling to go on a bond for four years, or three or even two. In one year the sheriff would show what he was, whether capable and reliable. At the end of that time if he was not such, his surety would be out of the way and the people would understand the character of the man and they could re-elect him or let him alone.
MR. DERING. I am decidedly opposed to the amendment of the gentleman from Doddridge; and, sir, I think I fully appreciate his arguments - his last argument that the people should be favored. Why should the people be favored? Why, sir, in the election of a sheriff above every other officer in the commonwealth, qualifications and promptness should be required at his hands. What is the object of electing a sheriff? It is that he may collect your taxes and the debts that are sued for and that he may be prompt in a discharge of the obligations he takes on himself. And shall he be elected, sir, with a view to please the people? Shall he be elected for his qualifications and the promptness with which he discharges his duty, or shall he be elected every year to electioneer for the succeeding term to favor the people at the expense of the State, the counties and the creditors? Sir, I am not in favor of this doctrine. The sheriff above every other officer should be elected with a view to the full and prompt discharge of his duties; and if you will make him returnable to the people for his election a second year, he will perpetuate his office. In our county some of our sheriffs have let their old taxes lay over and accumulate until there are thousands of dollars that cannot be collected. They have let their old debts run on until you cannot get a cent out of them. Why, sir, I was the security of a sheriff some six or eight years ago and he has got into the ring of deputies until he has perpetuated himself in his office ever since. His old business is not closed up to this day. I do not know what liability I am liable for. I am in favor of favoring the people wherever it can be done. The State requires that these taxes shall be paid promptly; and I am of the opinion that the sheriff when a trust is put into his hands has nothing to do with favoring the people; that he is traveling out of his road when he gives them indulgence at the expense of the creditors. The law lays down his duty and it is his duty to fulfill the obligations of his oath and the law. He has no discretion left him, he is to go on and fulfill the law and the oath he has taken on himself to discharge his duties faithfully and promptly. I would be in favor of three years; but, sir, if I cannot get three I will accommodate myself to four years. I am not in favor of these short terms for offices, giving them time and leisure to operate on the people and get their favor so as to be re-elected again. I trust that it will be the pleasure of this Convention not to adopt the amendment of the gentleman from Doddridge.
MR. HAGAR. It seems to me we are getting too much linked together. To strike out and insert is two amendments. I understand the first thing is to strike out before anything can be inserted. I am in favor of striking out, and then will hear the amendment by insertion.
MR. VAN WINKLE. I perhaps misled the Chair in slating the manner of voting on time and numbers. The motion of the gentleman from Preston was to strike out the exception, leaving the term of sheriff two years. Well, now either it is competent for the gentleman to move to amend the sentence proposed to be stricken out by inserting one instead of three and then the question be taken on the motion of the gentleman from Preston.
MR. DERING. I ask for a division of the question.
The vote was taken on the motion of the member from Preston to strike out three and insert one, but before it was announced -
MR. HAYMOND. I am decidedly with the gentleman from Doddridge, for the shortest term. The sheriff is a very important office, and if we happen to get a bad one the sooner we dispose of him the better. If he is elected for three or four years and he is a bad one, it becomes ruinous to the whole people. The gentleman from Monongalia appears to think that a sheriff should be everybody. I will say to the gentleman from Monongalia that a sheriff is not the people; I will say to him that the people are the sovereigns of this country and the people need not be ruled, and they do not intend to be rode over by any sheriff. I am in favor of the shortest term, and if we get a good one we can re-elect him; and if we get a bad one we can turn him out.
MR. VAN WINKLE. I would call the attention of the gentleman from Marion to a subsequent section which provides for the removal of the sheriff for neglect of duty and various other things. I think this may obviate the objections of the gentleman from Marion to the longer term and perhaps the objections of the gentleman from Doddridge also.
MR. BATTELLE. Have we created any other office the term of which is three years?
THE PRESIDING OFFICER. I am not able to answer as to any.
MR. STUART of Doddridge. There is none.
The motion to strike out "three" was put and decided in the affirmative.
The question recurring on the motion to insert "one" it was lost.
MR. SMITH. I now move to insert "four."
MR. STUART of Doddridge. I move to amend by adding "two."
THE PRESIDING OFFICER. The amendment is not in order, because the proposition of the gentleman from Preston is the same.
MR. VAN WINKLE. If the "four" is voted in, then the question will recur on striking out the whole and leaving it "two"; so he will still have a chance at "two."
MR. STUART of Doddridge. I thought the amendment of the gentleman from Logan was subject to amendment.
THE PRESIDING OFFICER. It is an amendment to an amendment. He offered it as an amendment to the motion of the gentleman from Preston, which is to strike out after the word "election" in the 60th line, which would leave the term two years. The gentleman from Logan proposed to amend by filling the blank with "four" years.
MR. WILLEY. I da not know, sir, whether it is very becoming in me even to express an opinion - just popping in by accident, as it were just now, and not very able to think or even express an opinion. But I have a very strong wish that this blank shall be filled with four years. Almost all my active life, sir, has been spent more or less with business in connection with this office of sheriff. I have had occasion to observe its operations. I have occasion to form a very decided opinion in regard to this matter, and I simply desire now to express that opinion without being able at all to give any particular reasons for it. But this Convention will do well for the people if they insert four years. As to the objection of my friend from Doddridge as to having an oppressive sheriff, to making the officer frequently responsible to the people, that may do in regard to your representative officers, but I think it can have very little reference to executive officers, especially of this character. The law prescribes the duties, it marks out and defines his duty, and he has got nothing to do but to perform his duty. He has but to walk where the law directs that he shall go and do what the law directs him to do; and if the laws be good, such as will promote the interests of the people then the interests of the people will be promoted, not by departing from them, not by bending the laws to suit the imaginary emergencies of the people, but it will be by executing those laws devised by the people's agents in the legislature for their own good and for the promotion of their own interests. That sheriff best promotes the interests of the people who is prompt and efficient, exact in the discharge of his duties as those duties are laid down by law; and if you are to hold out the necessity on the part of the sheriff to be elective every year, year by year, or be frequently elected, I know, sir, by 25 years practice at the bar, that you will have little done in these short elective periods but juggling and management on the part of the sheriff with a view of currying favor that will secure his re-election. Let the law lay down the duties of the sheriff as they ought to be performed; let it be required that he shall perform them as they are laid down; prescribe the necessary penalties to compel him to do it and the necessary punishment if he varies from it. That will promote the interest of the people much better than this frequent recurrence of elections. I have executions that I paid off six years ago that I cannot get out of the hands of the sheriffs of Monongalia county. Rather than press the sheriffs I have executions in their hands now six years old. The sheriffs have told me that they favored individuals with a view of propitiating favor for a re-election. I know it is the case. All the difficulties of the gentleman from Doddridge ought to be provided against by the laws defining the duties of the sheriff and punishing him for malfeasance if he be guilty. I hope the longest period possible will be inserted. I speak but from experience, sir.
MR. RUFFNER. I rise to inquire, sir, whether it would be competent to move an addition to this sentence after the period for which the sheriff shall be elected? To add a clause requiring his bonds to be renewed annually, if that, sir, would be lawful ?
MR. VAN WINKLE. It will come in the next section.
MR. RUFFNER. It would do away, very greatly with the objection to these long terms.
MR. VAN WINKLE. When we come to the next section, it will be the proper place. It provides there the legislature may require security. If the gentleman chooses to offer the amendment, it will be proper there.
MR. RUFFNER. Under a requirement for the renewal of these bonds, I should decidedly favor the long term and deprecate a frequent recurrence to a vote of the people where so much juggling and unfairness is practised by the sheriffs to secure re-election.
MR. HAYMOND. I am at a loss to know what kind of laws they have down in Monongalia. One of the gentlemen told us on Saturday that they could not collect a single dime from any officer, and we have been told today by the other member from that county that he has claims out six years and cannot get a dime. Well, now, in other counties there is some way to force officers to pay. I do not know whether this law is limited to Monongalia or not.
MR. DERING. Did the gentleman from Monongalia say sheriffs.
MR. HAYMOND. From constables.
MR. STUART of Doddridge. The gentleman from Monongalia seems to think the sheriff was a life-long officer perhaps my objection would be good, but as he is simply an officer who is to execute the law, it is not well taken. I would like to make the inquiry whether it is the officer the people elect, or the officer of the government, or the officer of the party, who are collecting these debts?
MR. WILLEY. It is pretty hard to tell in our county whose officer he is.
MR. STUART of Doddridge. I suppose he is the officer of the people - the servant of the people; and the people certainly ought to have a reasonable power over their own officers. They ought not to be made these unmitigated tyrants, who I know meet the views of all the blood-suckers in our country. I do not mean the gentlemen from Monongalia and Logan; but that is a fact, travel through our country wherever you will. I have been through it a great deal in the last four or five years and this question has often been discussed; and wherever you find one of these blood-suckers - one of these unfeeling tyrants - one of these, men who are not disposed to consider the interests of the people - you will always find that man saying that this sheriff ought to be a life-time office and he ought never to be amenable to the people at all, because if he is he is disposed to favor the people. Now, that is the argument; that is the true position of this class. If it was left to the majority of the people of this State to say, they would want to have the control over these officers they are called on to elect. And I will venture to say that if this amendment is adopted, inserting four years, there will be a greater clamor against that in less than three or four years than against any other provision of this Constitution. Now mark what I say. This will convert these officers into unmitigated tyrants; and what is the operation of our present constitution on these officers? Every one present will answer, it authorizes the sheriff to pay in the revenue against a certain period of time - so much against March, and such a time. Well, now, it will be the interest of these sheriffs when the books are placed in their hands in June or July, to collect immediately - collect at once; make one trip, call upon a man and if he does not pay his taxes, here's your horse, sir. Under our present law, the sheriff having to pay in the revenue at a certain time, I have known fifty instances where the sheriff rather than distress his people, the citizens of the county whom he knew to be good and honest men, drew up a bond and went to the bank and paid the required sum necessary to pay in to meet his obligations and keep his sureties from being notified. Now, sir, if we left the thing to the people, that thing would never occur. The sureties would be the best kind of men. But instead of seeking to accommodate the people, he will expose their property to sale, and no good could possibly result to any party. The government would only get their money while the poor man's cow and horse would be sacrificed on the streets for the want of a few days or months indulgence. That will be the experience and practice under this provision. I want the sheriff to be elected and to have no provisions inserted here disqualifying him for re-election provided the people choose to elect him and he can give the security. Well, the gentleman says the law exempts a poor man's cow and exempts a bed from taxes. I, do not know how our law may do, but a man cannot live on one cow, and of course his second cow would be just as good to him as the one cow. I would be disposed to hold out inducements to these sheriffs to accommodate this poor man who he knew was honest and would pay him. But if you adopt the long term, the blood-suckers will be benefited and the mass of the people will be distressed. Now, that is the truth of it, mark what I tell you.
MR. HAGAR. One of the arguments introduced for four years seems to be the qualification of the sheriff - learns how to do the business. From what I have learned from observation, it is hard to get a man with a good heart and a good head. Perhaps there will not be a county in this new State that will not have a man competent to discharge the duties of sheriff. Give them four years and then time sufficient for them to settle up the business in their hands, and we might just as well say five or six years. In the county where I live we had one sheriff over two years; and then when he could be no longer elected his. son was elected. One of our good friends came out against him; and we thought these life-long office-holders were not altogether right and we voted the other man in and beat his son. Hence they had it only six years. As soon as the term was up, his son must have it. I have never seen any advantage accruing to the public, so far as my observation goes by men holding office too long. Now, if we could always get just the right men in, and nobody else was fit for it, I would go in for a long time, but the object of this Convention is to frame a Constitution to give every man an equal chance. Well, now, there must be some one man in every county who is qualified to do this sheriff business. Then when this man had had it two years, if there was another provision in the Constitution to wind up his business - about three - that would be the shortest time anyhow. I am opposed to the amendment. I am opposed to these life-long office-holders. This has ruined, to some extent, our state and nation. We are here to frame a Constitution to give all an equal chance. The sheriffalty, if it is worth anything, will pay a man for discharging the duties two years, or three, because he will have a year's work to do after his term is ended. I am against the amendment.
MR. WARDER. I would like to ask the yeas and nays on this subject.
On the motion to make the term four years the vote was taken and resulted:
YEAS - Messrs. Brown of Preston, Brown of Kanawha, Battelle. Chapman, Dering, Dille, Hall of Marion, Harrison, Irvine, Lamb, Montague, Mahon, Parker, Robinson, Ruffner, Sinsel, Stephenson of Clay, Stewart of Wirt, Smith, Taylor, Van Winkle, Willey, Warder - 23.
NAYS - Messrs. Brooks, Brumfield, Hansley, Raymond, Hagar, McCutchen, O'Brien, Parsons, Powell, Simmons, Stevenson of Wood, Stuart of Doddridge, Soper, Wilson - 14.
So the motion was agreed to.
THE PRESIDING OFFICER. The question recurs on the amendment of the gentleman from Preston, to strike out the exception, which will leave it two years.
MR. DILLE. Mr. President, I have, I believe, by the amendment probably obtained what I desire; if not, I can do so and I will now withdraw my amendment. When I proposed it with a view of making it four years by an additional term.
MR. STUART of Doddridge. It may be, Mr. President, that some person voted with an understanding that they had another chance to strike out. I do not make any objection myself.
There being no objection the amendment was withdrawn, and the question recurred on the sentence as amended.
MR. VAN WINKLE. I move to strike out( "the 1st day of October" and insert the day we fixed for the commencement of the term of State officers, the 4th of July, in the 59th line. I think there was a general understanding to have all these terms commence, as nearly as possible, at the same time. The fourth of July was inserted in the report of the legislative committee as the commencement of the terms - with perhaps an exception - and I simply wish to conform this to that.
The amendment was agreed to.
MR. STUART of Doddridge. I move to amend by striking out, in the 36th and 37th line, all after the, word -
THE PRESIDENT. We have not yet reached that section.
The second sentence, as amended, was then adopted, and the Secretary reported the third sentence:
"The same person shall not be elected sheriff for two consecutive full terms, nor shall the deputy of any sheriff be elected his successor; but the retiring sheriff shall finish all business remaining in his hands at the expiration of his term, for which purpose his commission and official bond shall remain in force."
MR. VAN WINKLE. The gentleman from Doddridge will pardon me, to perfect this sentence. After the sheriff has been out four years he can be elected again, but it is suggested to me that a deputy might resign one week before the election and thereby evade the operation of this clause. I would therefore ask to amend it by adding after the words: "The same person shall not be elected sheriff for two consecutive full terms," these words: "And no person who has acted as his deputy within one year shall be elected as his successor." If the deputy wants to be his successor, he will have to go out one year preceding the time. Strike out the words: "Nor shall the deputy of any sheriff" and insert those other words.
MR. BROWN of Preston. What is the necessity of inserting the words: "within one year?" "Nor shall any person who has acted as his deputy," I think would cover the whole ground.
MR. VAN WINKLE. My view was this, that a deputy who had abandoned the office a year previously was so disconnected with it -
MR. DILLE. Better embrace the full term: "Nor shall any person who has acted as his deputy during his term be elected his successor."
MR. BROWN of Kanawha. I confess that if the motion of the gentleman from Wood were confined to one year, I should have no objection. But if it is made to apply to the whole four years, then it operates to the exclusion of all the men perhaps who by their official acts have, to some extent, qualified themselves for the office. The only object in excluding is to avoid the evil of a party preparing himself by virtue of his office, using it for the purpose of re-election. The withholding that from a party who has acted as deputy within a year next preceding the election attains the end sought, I think. I can understand that in the office of the sheriff those gentlemen who have acted as deputy will generally be the best qualified for the next office, and if their official duties ever shall place them in a position to have a tendency to put them to electioneering for the office and prostituting the office for the purposes of the succeeding election, they ought to be free and the people free to choose from that class of men; and I think this unnecessary restriction is liable to that objection. I will offer that as an amendment.
MR. VAN WINKLE. I accepted the modification without much reflection.
MR. BROWN of Kanawha. Then I will renew the motion to fix the time at one year for his exclusion.
MR. STEVENSON of Wood. I only wish to say, sir, that I prefer the modification of the amendment if it is to apply to a person who had acted as deputy any time during the term, and for this reason: that a deputy, in many places at least, in many populous towns, where there is a large tax collected, can very well afford to resign one year before the expiration of the term in order to be elected sheriff, and would do it in many cases. That is an objection to this last amendment. I am in favor of the other; but I think, from my present view of the matter, I am opposed to this for that reason simply.
The Secretary reported Mr. Van Winkle's motion as being: strike out "Nor shall the deputy of any sheriff" be elected his successor, and substitute: "Nor shall any person who has acted as deputy of any sheriff" be elected his successor. Mr. Brown's motion was to qualify this by inserting after "sheriff" the words "within one year."
The vote was taken on Mr. Brown's amendment, and it was rejected.
MR. SINSEL. I move to insert "within two years."
The motion was not agreed to.
Mr. Stuart of Doddridge asked for a division of the question on Mr. Van Winkle's motion.
The question was first taken on striking out and it was agreed to.
The question recurred on inserting the language proposed by Mr. Van Winkle.
MR. STUART of Doddridge. The object of inserting this - it indicates that even the deputy sheriff shall not favor the people or look to a promotion of his office by acting kindly and generously towards the people.
MR. DERING. I am opposed to the motion of the gentleman from Wood. I think to make your sheriff ineligible for one term, it is highly important we should so make his deputy.
MR. WILLEY. That is precisely the motion.
MR. DERING. I misunderstood the motion.
The question was taken on the amendment of Mr. Van Winkle, and it was agreed to.
MR. WILLEY. I propose the following amendment: I do not know whether it ought to come in in the 63rd line, after "successor," or in the 62nd, line after the words "full terms."
MR. VAN WINKLE. The Committee on Revision will attend to that.
MR. WILLEY. I propose to amend by the insertion of the words: "Nor shall said sheriff act as the deputy of his successor."
The amendment was agreed to.
And the question recurring on the sentence as amended, it was adopted.
The Secretary reported the next sentence: "The duties of all the said officers shall be discharged by the incumbents thereof in person or under their personal superintendence."
MR. VAN WINKLE. The effect of this clause, Mr. President, in the conception of the committee at least, is to make the principals in all cases the responsible officer, and also to compel them in person to discharge those parts of the duties of their office which they can so discharge. If the law fixes that the sheriff, and as is already implied, his deputies, they will, of course, have certain duties to perform and the sheriff certain duties; but nevertheless, the high sheriff must be held accountable for their acts because they are to be done under his personal superintendence. He cannot afterwards plead any excuse of himself for what his deputy has done wrong. So also in the case of deputy clerks. The clerk in many offices will have to have assistants; but he must be responsible personally for the acts of his assistants. I suppose it is not necessary to say anything more to show what is the intention of the clause, and which I think it will effect.
MR. BROWN of Preston. I would inquire of the gentleman from Wood the effect of this sentence that we now propose to adopt - whether it is intended that the prosecuting attorney may act by deputy?
MR. VAN WINKLE. Not unless the law authorizes it. It is for the legislature to say. The gentleman will observe the committee have been cautious in that respect. They have not put anything more in this in the nature of legislation than they could avoid. Some things were rendered necessary by the very fact of a change; but they have left to the legislature entirely to prescribe the duties and so on in reference to these officers, as appears in the next section. Whether a prosecuting attorney may so act or not will be for the legislature to decide. He may have assistants, of course. But it is not precisely one of those cases that would be reached here because he acts as deputy. Well, there is no use speculating about what the legislature may do respecting it. It will be in the hands of the legislature.
MR. WILLEY. I am entirely favorable to the purposes designed to be accomplished by this clause; very much in favor of it especially in regard to the sheriff. I have seen its practical operation in the county of Preston where the sheriff required his deputies to report to him and he settled all the business himself, and I never saw business better done. But I would suggest to the gentleman from Wood whether difficulties might not grow out of this with some of these offices. Suppose, for instance, some of these principal officers should be sick for a while, entirely incapable of attending to his business - would not there be a constitutional rule that would suspend the operation of his office entirely during that casualty? It seems to me there may be a thousand circumstances when many of these officers could not be present to superintend. It might lead to difficulty. I do not know; I merely throw out the idea.
MR. VAN WINKLE. The case of inability to act, of course, excuses performance. No constitutional provision could be strong enough to force a man to do what he is unable to do. There are discharge clauses in the next section, as, for instance: "The legislature shall, at their first session, by general laws, provide for carrying into effect the foregoing provisions of this article." The gentleman might add -
MR. WILLEY. A somewhat qualifying term: "Whenever practicable," "possible," or something of that kind.
MR. VAN WINKLE. Might add at the end of the sentence I have just read: "And for the discharge of the duties of said office in case of the inability of the incumbent." But it would come in more properly in the next section than here, I think, in authorizing the legislature to provide for what are to some extent exceptional cases. This sentence now under consideration might stand. If the gentleman will defer it, I will make the amendment at the proper place.
MR. WILLEY. Yes, sir.
MR. BROWN of Kanawha. The gentleman from Monongalia gives more importance to the personal superintendence than it warrants. If that is to be carried to the extent indicated, then I must oppose the whole sentence. But I confess I do not so understand it. I understand all the acts of the deputy are the acts of his superior. His very office is at the will and pleasure of his superior and he can be discharged whenever the principal chooses, who assumes all the liabilities and responsibilities of his conduct, whether he does right or wrong. Without that it would not do; never have any deputy at all. But to avoid any difficulty about it, I will move to strike out the word "personal." Now I do not understand that if a deputy goes out in the far edge of the county and serves a writ that the principal must be there and see that it is rightly done; that if a deputy settles an execution with a creditor and settles up and disposes of the whole matter and returns the execution satisfied, that that must be examined by the principal to see that it is all right. But I understand superintendence of the principal is the general superintendence of the deputies' conduct, for which he is responsible. The word "personal" seems to imply that he is to be present superintending everything that is to be done.
MR. VAN WINKLE. I think the gentleman has very truly stated what actuated the committee. I do not see that there is any objection to striking out that word.
The amendment offered by Mr. Brown of Kanawha was adopted; and the question recurring on the adoption of the amended sentence, it was agreed to, as was also the section as a whole.
MR. WALKER. I hold in my hand a petition from several citizens of McDowell appointing John P. Hoback a delegate from McDowell.
The petitions, signed with thirty-five names, were sent to the Secretary's desk and read by him.
MR. VAN WINKLE. I will move to make that matter the order of the day for half-past three.
MR. BROWN of Kanawha. I desire to vote for the admission of that gentleman; would be very highly pleased that McDowell has sought to be represented in this Convention, but at the hour indicated I cannot be here.
MR. VAN WINKLE. Well, sir, I will withdraw it.
MR. STUART of Doddridge. I would like to know whether those petitioners are citizens of McDowell?
THE PRESIDING OFFICER. The opinion of the Chair is it would be irregular to take up this without a motion.
MR. BROWN of Kanawha. I move, therefore, Mr. President, to suspend the business under consideration and take up the petition.
MR. STEVENSON of Wood. I think, sir, it would be better to refer that petition and all such others to the Committee on Credentials. The way we are proceeding in reference to adding members here is rather irregular. The committee can report, and we can act immediately.
MR. WILLEY. I concur most heartily in the suggestion. I rejoice that these counties are seeking representation; but I think it is a matter of importance enough to require at least the forms of law. We ourselves, regularly elected, had to submit to the scrutiny of the Committee on Privileges and Elections, and I think this should go there. I shall rejoice in being able to vote for the admission of that member.
MR. STUART of Doddridge. We have adopted the precedent here, and I am not in favor of making fish of one and flesh of another. Treat this gentleman as we have treated other gentlemen who come here with petitions. Consider it now and dispose of it.
MR. VAN WINKLE. The precedent was set in the case of the gentleman from Calhoun. I made the motion; but the Convention will remember that that was a very plain case. It stated in the petition all the facts, that they had been prevented from holding an election; that the whole Union vote given on the question of the secession ordinance was about fifty and they produced signatures to the number of seventy, with the intimation that they were very nearly all the Union men in the county. But, sir, it had more than that. On the back of it was the affidavit of several respectable gentlemen who were known to persons here testifying that the facts set forth in the petition were true on their oaths. I asked in that case to dispense with sending it to the committee, because we could have no more facts before us than were presented by the petition. I think it was a remarkably strong case. The Convention concurred with me, and the gentleman was admitted. A few days afterwards a gentleman was admitted from another county, very properly, I dare say, but on a bare fifteen signatures; so that I think the precedent set in the case I had the honor to present to the Convention has not been followed in the subsequent case. In this case we are referred, for the truth of the statements to Mr. Walker, a member of this Convention, and it would be very proper, I think that the committee should take it in hand and ascertain that the thing is what it purports to be, when I have no doubt the gentleman will be admitted. Merely that we may have some evidence before us that the facts as set forth are the facts and that the document is a genuine one.
MR. WALKER. In regard to the credentials here offered, I am very well acquainted with the gentleman that is here asking for a seat and tolerably well acquainted with the most of the citizens of McDowell and with a portion of the signatures here that are those of Umon men. The county voted for the secession party strongly; but in that county I am apprised there are a good many strong Union men who desire to come with us and wish to be represented as such. This gentleman who is asking a seat here is, I think, of sound principles in regard to the Union and a very respectable citizen of the county.
MR. STEVENSON of Wood. The motion is to suspend the order, I believe. I offer that amendment, if it is in order, to refer to the committee.
MR. BROWN of Kanawha. I do not see that anything is to be obtained by the reference. When the report of the committee comes back, the house has got to act right, precisely in the same way, that is on the recommendation of the Committee on Credentials. I understand there is a gentleman near me who is conversant as to the citizenship of the signers there - one of the members of this body. It seems to me it is only making bites at a cherry and changing a rule that we have adopted as to others. I hail with pleasure the voice from McDowell, one of the first counties that have been induced by our action within the limits of the new State. I hope we will meet them at the threshold with a warm welcome and the right-hand of fellowship.
MR. STEVENSON of Wood. I hope it will not be understood that I have any objections whatever to receiving this gentleman to represent that county if the Committee on Credentials can be satisfied that he ought to represent that county; but it does seem to me that if we are to set a precedent of this kind we may have yet quite a number of these petitions and a great deal of the time of the Convention will be occupied in considering them when the same thing could be considered by the committee of some three or five persons who could easily ascertain the merits of each case and report their conclusions to the Convention, and the Convention could act on their report without much discussion. These may give rise to discussion and consume a great deal more time than if referred. Besides, it is more regular and I think far better in the end. I hope, sir, if the facts are such as they ought to be this gentleman will be admitted. But I wish myself that hereafter, and shall undertake to enforce this view on the Convention, that every such petition of an irregular character coming in shall pass through the regular Committee on Credentials. The Convention owes this much to its own dignity.
MR. WILLEY. I beg to repeat that I shall exceedingly rejoice to admit the gentleman from this county to a seat on this floor. These precedents to which I am referred have happened since I left. In regard to the members admitted on certificate before I left, they were referred to the committee and received very rigid scrutiny and the facts reported back, and then they were admitted. I rose principally to ask my friend who presented this petition, whether he is acquainted with the signatures to it. I understood him to say he was acquainted with several of the parties; whether the petition, from his personal inspection appears to be a genuine paper? It is more especially with reference to this fact that I think it ought to go to the committee.
MR. WALKER. In regard to that, I am not so personally acquainted with the signatures as the citizens. I have not had business sufficient to do with those gentlemen to know their handwriting when I see it.
MR. WILLEY. It occurred to me that perhaps the body of these signatures are in the same hand-writing. I do not know that fact.
Mr. Hagar rose.
THE PRESIDING OFFICER. The question is on the substitute of the gentleman from Wood for the motion of the gentleman from Kanawha. The substitute is to refer to the Committee on Credentials.
MR. HAGAR. My impression is the thing may be settled in a few minutes. I have considerable acquaintance with McDowell. I taught school three months and preached at the school house. So far as this applicant is concerned, he is "sound on the goose" question. I think I would know some of the names there. I would like to see the petition.
MR. DERING. I would much prefer that the petition be referred to the Committee on Credentials. I should have to vote against the delegate until we have it examined and reported on. It will be only a couple of hours, at any rate, until we shall act upon it, and that is but a short time to defer the matter. The Convention can certainly wait that long, until we examine it regularly, and then I suppose we shall all, with pleasure, vote for the admission.
MR. BROWN of Kanawha. I will withdraw the motion and let the case go to the committee.
Mr. Stevenson's motion to refer was then agreed to.
The Convention resumed consideration of the report of the Committee on County Organization. The Secretary reported the first sentence of the 6th section:
"The legislature shall, at their first session, by general laws, provide for carrying into effect the foregoing provisions of this article."
MR. VAN WINKLE. I will simply state that there will be, no doubt, some general provision carrying the Constitution generally into effect; and if so, why this clause would be transposed by the Committee on Revision. If a general one is passed, the Committee on Revision will leave this out.
The sentence was adopted, and the second sentence reported:
"They shall also provide for commissioning such of the officers therein mentioned as they may deem proper, and may require any class of them to give bond with security for the faithful discharge of the duties of their respective offices, and for accounting for and paying over, as required by law, all money which may come to their hands by virtue thereof."
The sentence was adopted and the third reported as follows:
"They shall further provide for the compensation of said officers by fees or from the county treasury; for their removal in case of misconduct or neglect of duty; for filling vacancies not herein provided for, and for the appointment when necessary of deputies and assistants, whose duties and responsibilities shall be prescribed and 'defined by general laws."
MR. WILLEY. I confess I do not understand that exactly: "They shall further provide for the compensation of the said officers by fees or from the county treasury." How is that?
MR. VAN WINKLE. Compensation from the county treasury.
MR. LAMB. Mr. President, I would suggest to insert the word "incompetency" after the word "misconduct," in the 79th line. It was inserted in another clause. Probably it had better be inserted here.
By general consent the word was inserted.
MR. DILLE. I would like, in the 73rd line, to have the word -
THE PRESIDING OFFICER. That sentence was adopted.
MR. STEVENSON of Wood. I only wish to suggest that the Convention this morning adopted an amendment in reference to these general laws and inserted the words "as far as practicable." Would it not be well enough to insert the same phraseology after "defined" in the 82nd line? I simply suggest that.
MR. VAN WINKLE. This clause only refers to the duties and responsibilities of deputies, and it strikes me that if we are going to insert the clause generally with reference to "general laws" occurs, we shall needlessly encumber our work. The idea that was adopted somewhat extensively in the present state constitution is that all these things shall be equal and uniform throughout the commonwealth; that they shall not be prescribed by special law, to make a deputy in any one county do one thing, and another thing in another county, but that they shall be uniform; and that thereby this constant application to the legislature to grind an axe will be rendered unnecessary or of no avail. As I have also stated before, if these general laws are found to operate hardly or imperfectly, they are always within the power of the legislature; and when a question comes up for amending a general law of this kind it is not only the parties who are seeking that amendment that are to be heard or whose views are to be considered on that subject but the representatives of all the counties in the State; and in that way, as it is to be only a general provision, you get, as it were, the united wisdom of the State and your chance for a good provision is much greater.
Now, sir, I do not think that in this there is anything to prevent the legislature passing laws of relief in certain cases. There is nothing to prevent the legislature making a special law for a special occurrence - for that which cannot be the duty and responsibility of every officer in every county, for instance, in the State. They cannot, of course, provide by general law; but if any such cases arise - and I cannot conceive of any - why, the legislature has it in its power to reach them; but it is that general duties shall be prescribed by general laws. I am afraid the conditional clause already inserted may defeat a good object; and I shall therefore be opposed, for the reasons I have stated, to introducing it here. I do not think the reason can be as strong in this case as they were in the other - the duties and responsibilities of deputies merely. Certainly this can be effected by general laws. Now, if a deputy in any case has made himself liable in some way that seems to be unjust, I do not conceive that there is anything here to prevent the legislature from affording him relief. Therefore, I am unable to see any mischief to be apprehended from leaving the clause as it is; and then there is no necessity for a remedy.
MR. STEVENSON of Wood. I do not offer it as an amendment, Mr. President. I merely suggested that as we had introduced a phrase of that kind in reference to general laws, it might be well enough to introduce it here.
THE PRESIDING OFFICER. The Chair understood the amendment was offered; otherwise, the discussion was out of order.
The Secretary reported the last sentence:
"When the compensation of an officer is paid from the county treasury the amount shall be fixed by the board of supervisors, within limits to be ascertained by law; but no reduction of the compensation of any officer shall take effect during the term for which he was elected."
MR. VAN WINKLE. It is the intention of this that where an officer is paid from the county treasury, it will be a salary, in all probability, ascertained by law, as, for instance to say that it shall not be less than $300 but not more than $1,000, or any other amount - the legislature shall fix the limits, the minimum and maximum; and then, as the duties of these officers will be unequal in the different counties it is left to the board of supervisors to fix the precise salary somewhere within those limits. It was analogous to the case of the legislature providing that imprisonment, for instance, shall be not less than one nor more than five years, and the jury strike somewhere between those limits. The population of the counties is very diverse and consequently the duties of the county officers will be different in different counties, so it is necessary to leave the discretion somewhere to fix these salaries at greater or less sums. Well, now, the facts on which these things depend cannot be made known as well to the legislature. It is troubling them, also, with business which would occupy them much more time than it would the board of supervisors on the spot who know all about it; and as these supervisors are themselves the direct representatives of the people, it is I think safely confided to them. In the case of a prosecuting attorney for instance, where an allowance has been made, they may say the prosecuting attorney shall receive not less than fifty nor more than three hundred dollars, if you please, and the board, knowing what duties are required of him - how much of his time is likely to be occupied in it - will fix the compensation somewhere within these limits. The limits being fixed will prevent extravagant salaries on the one hand, and, what is equally to be avoided, too diminutive salaries, on the other.
The concluding sentence, and the section, were in turn adopted.
The Secretary reported the first sentence of the next section:
"7. The civil jurisdiction of a justice of the peace shall embrace all actions of assumpsit, debt, detinue, trespass and trover, where the defendant resides, or, being a new resident of the State, is found, within his township, or where the cause of action arose therein, and when the value in controversy, exclusive of interest, does not exceed fifty dollars, subject to an appeal to the circuit court of the county; but a justice of any other township of the same county may issue a summons to the defendant to appear before the justice of the proper township, which may be served by a constable of either township."
MR. SOPER. I am requested to present a petition to admit Richard M. Cook to a seat in this Convention from the county of Mercer.
The paper was received and referred to the Committee on Credentials.
MR. LAMB. I move the insertion of the following as an additional section:
"The preceding provisions of this article shall not extend or be applied to any county, town or city, nor shall they be deemed to restrict the power of the legislature to correct and regulate muni- cipal incorporations."
MR. LAMB. To come in just after the section as adopted. I have no particular anxiety to insert it just here, though as it applies to the preceding provisions of the article this might be a proper place. It may, however, be deferred until the 7th Section is considered. Perhaps it would be as well. I will not offer it now but after the next section.
MR. DERING. I move to strike out "fifty" in the ninety-third line, and insert "one hundred" as the limit of amount of which justice shall have jurisdiction.
MR. IRVINE. I am opposed to this amendment. I would greatly prefer twenty to a hundred. I see no reason for extending the jurisdiction of justices of the peace. The cases that are tried before justices of the peace are tried, Mr. Speaker, without any pleadings in the case; there is no issue joined in the case. In consequence of it, in a majority of litigated cases the cost is greater before a justice of the peace than when the case is tried in court. There is more danger of surprise. It is a more difficult matter to ascertain the facts on which the controversy turns. It is a more difficult matter to decide the questions of law arising out of the events. The pleadings, Mr. President, have the effect to simplify the grounds of the controversy, by keeping separate and distinct the questions of law and the questions of fact, and by reducing the whole controversy to an issue either in law or fact, thus narrowing down the controversy to some matters of law or fact that are affirmed on one side and denied on the other. In order to establish the truth of the propositions I have stated, I will first lay the foundation for the argument I intend making. (I would like to have a glass of water.)
(The sergeant-at-arms brought him one.)
Suppose suit is instituted, Mr. Speaker. We will suppose suit to be instituted in court. The plaintiff must state in his declaration the facts that constitute his cause of action. And we will suppose that the defendant undertakes to defend the suit upon its merits. He must do one of three things. He must either deny that the facts constitute a good and sufficient cause of action, which is done by a demurrer to the declaration. That raises the question of law, which is referred to the court, keeping the question of law separate from the question of facts. But suppose the facts do constitute a cause of action. If controverted by the defendant, then he must do one of two things: he must either join issue on the facts stated in the declaration, or, if not, the legal conclusion follows, unless that conclusion is repelled by alleging new matter. Well, we will suppose that he cannot controvert the facts stated by the plaintiff in his declaration. Then he must put in a plea alleging other facts. By so doing he admits the declaration - the truth of everything contained in the declaration; because if he denies the facts stated in the declaration he must take issue on them. If not, he is considered as admitting them, and if he puts in the plea, the facts in the declaration are admitted in the eye of the law. That dispenses with all proof of the facts stated in the declaration. Well, when the same questions again recur on the plea, he must do one of three things. He must either demur to the plea or take issue on the plea or he must allege new matter for the purpose of repelling the legal conclusion that would follow. Well, suppose that the plea constitutes a good cause of action and the facts are true and that the plaintiff is under the necessity of alleging new matter for the purpose of avoiding the effect of the plea. Well, pursue this process as far as the replication to the defendant's plea for the purpose of laying the foundation for an argument. The plaintiff then comes in and in his replication he states the facts in his replication for the purpose of rebutting the facts stated in the deduction; and we will suppose that the defendant takes issue on those facts. We will suppose that we have constituted good cause of action and the defendant takes issue on these facts. There is no necessity then for any evidence establishing the facts stated in the plea, for the plaintiff by putting in his replication admits the truth of the plea. Then the greater part of the evidence is excluded from the case. The whole controversy is narrowed down to a single issue, to the facts stated by the plaintiff and denied by the defendant. Then all that is necessary is to introduce evidence for the purpose of proving or disproving the facts stated by the plaintiff in his replication. This excludes most of the evidence from the case. But then it avoids one effect of submitting the whole question without any issue to a justice of the peace. There is no danger of surprise, for the parties can with unerring certainty ascertain from the issue joined in the case the points of the controversy. The issue gives the facts upon which the whole controversy turns. There is no danger of surprise. But suppose that the whole controversy is referred to a justice of the peace without any issue in the case. The questions of a law and fact are all blended together. The party is more liable to be surprised at the trial. He has no means of knowing what are the facts upon which the controversy turns. And, in addition to that, there is not the whole history of the matter to ascertain the facts of the case, when the whole controversy is narrowed down to the facts affirmed by the plaintiff on the one side, and denied by the defendant, on the other.
This issue serves to guide the parties in summoning their witnesses. The whole attention of the tribunal that decides the case is concentrated on the particular facts that are affirmed on the one side and denied by the other. But if it was a trial before a justice of the peace, they would have nothing to guide them; no means of ascertaining the facts upon which the controversy turned until they had first heard all the evidence in the case.
Now these pleadings do not at all change the character of the cases. It neither increases nor diminishes the number of the facts in the case. But it simplifies the grounds of controversy and greatly facilitates the administration of justice by keeping sepa- rate and distinct the questions of law and fact and by resolving the questions of fact into successive alternate statements, until the whole controversy is reduced to a single issue which serves to guide the parties not only in summoning their witnesses, but every question that is propounded to the witnesses is propounded in reference to the particular facts that are put in issue by the pleadings.
I am very much opposed to making war on our system of pleadings. This is entirely dispensing with our system of pleading in all cases between twenty and one hundred dollars. You would still dispense with it altogether, because a majority of cases do not exceed a hundred dollars. I remark that the amount of cost is greater; that it is not necessary when you have the issue joined in the case and the facts stated in the declaration are considered as admitted. The facts stated in the plea are considered as admitted. All the legal questions - the whole controversy - turns on the issue joined in the case. The jury is sworn to try that issue, and that is the only question to be decided.
Now, Mr. Speaker, this disposition to make war on our system of jurisprudence has proceeded, I think, from gentlemen who did not fully appreciate the system. It is a system of principles. They have a deep foundation in reason and in the nature of things. The process by which you are conducted to an issue is a beautiful, logical process. And when I speak of its being a logical process I do not use the word "logical" in a loose sense, but I use it in its strict and limited sense. For every pleading is a syllogism. The declaration shows the cause of action; the facts stated in the declaration are to constitute a good cause of action; the declaration constitutes a perfect syllogism of a major premise, or in other words the major premise, which is the rule of law, is understood or implied the facts stated in the declaration constitute the minor premise, and the conclusion is the third term. The same remark might be made in relation to the plea. The plea constitutes a perfect syllogism, with a major premise implied, which is the rule of law; and the facts would amount to nothing if the rule of law was not implied. The facts stated in the plea constitute the minor premise and the conclusion the third term. Now you by adopting the amendment will entirely dispense with our system of pleading in all cases between twenty dollars and a hundred dollars. The justice of the peace, when you commence the investigation of a case, has nothing to guide him at all. There is no issue in the case. There is nothing to point to the facts on which the whole controversy turns. There is nothing to point to the legal questions on which the whole controversy turns; but all questions of law and fact are blended together and a complete state of chaos and confusion prevails.
Our system of pleading, Mr. Speaker, I regard as the most valuable part of our system of jurisprudence. It has been regarded in that light by the sagest founders of our system from the very commencement of it. Gentlemen ought to be cautious, as we are now about to embark in a great enterprise, how they strike a blow at this system, because we cannot tell where it will stop. If there are any sufficient reasons for dispensing with our system of pleading in cases between twenty and one hundred dollars, the same reasons would apply with equal force to all cases. I can see no reason for it. Our system of pleading is not the product of the wisdom and experience of one generation of men; but is composed of the accumulated wisdom of many generations. Mr. Speaker, I am very much attached to this branch of the law. It is the one that I took more delight in than any other branch, because I have never seen anything better adapted to any purpose than our system of pleading is to the purpose it was intended to answer. It is admirably adapted to the purpose of facilitating the administration of justice. But without this system, the parties would be always liable to be surprised; not only liable to be surprised, but it would be much more difficult to ascertain the facts when they did not know the facts upon which the whole controversy turns.
And I made another remark in my preliminary remarks, that it would be much easier matter to decide the legal questions growing out of the events when the evidence is offered and to know to what purpose it is to be applied. It is an easy matter to decide whether it is admissible, whether it is relevant or not, but if you have nothing to guide you no issue to test the question whether or not the evidence is admissible, without knowing for what purpose it is introduced, it is impossible for a justice of the peace in trying a case where there is no issue in many cases to tell for what purpose the evidence is introduced.
With these few remarks and for these reasons and many others I might assign, I am opposed to this amendment.
The hour having arrived, the Convention took a recess.
The Convention reassembled at the appointed hour and the President took the chair.
THE PRESIDENT. When the Convention took a recess it had under consideration the report of the Committee on County Organization the immediate question under consideration being the 7th section, and the amendment offered by the gentleman from Monongalia, to strike.out "fifty" and insert "one hundred."
MR. DERING. It was with great diffidence that I could bring my mind to the conclusion to offer any amendment whatever to the able report of the Committee on County Organization; and more particularly, sir, was I diffident about offering any amendment to the section under consideration from the fact that that section pertains to the profession of the law; and as a majority of that committee, sir, is constituted of lawyers, it was with great diffidence that I offered the amendment to the section under consideration. But, sir, believing it to be my duty as one of the representatives from Monongalia county, I screwed myself up to the sticking point. And permit me here to say that I read the report of that committee with great pleasure; and although it will produce an entire revolution in the whole affairs of the State, in every county of the State, in reference to our mode of doing business, yet sir, I could wish that the very able and instructive explanatory remarks of the chairman of that committee could go with this report, if it is incorporated in our organic law, to the people. It would be of value - of great service - to them, sir, in carrying out, and in the practical working of this report should we adopt it. I listened, sir, with pleasure to the remarks of the gentleman from Lewis on this amendment. I was not surprised when he opposed it. I gave him all the attention I was capable of, sir. I cannot follow him through his elaborated legal course of argument. I make no pretension to be any part of a lawyer; but, sir, there were one or two items in his remarks that I may be permitted to advert to as I pass along. He took the position, sir, that if offering this amendment we were making war on the system of jurisprudence. Not so, sir, so far as I am concerned; for I consider a well regulated system of jurisprudence one of the greatest safeguards of the citizen.
MR. IRVINE. System of pleading, was my argument.
MR. DERING. I say, though, that I regard a well regulated system of jurisprudence as one of the greatest safeguards of the citizen for the protection of life, property and character. He furthermore said, sir, that a magistrate - and it is an argument I can appreciate and understand, having no particular legal lore about it in the trial of a cause, could not have any guide before him. Now, I trust the gentleman will permit me to differ with him. In Virginia and in many of the states, magistrates have judicial jurisdiction as well as law jurisdiction. He has this before him, the great principles of justice to subserve and mete out to the parties. That after all is the great law that should control all magistrates as well as judges. He has the great principles of justice to mete out, sir. If he adheres toi that, if he makes justice his polar star, if he is a man of ordinary intelligence, he will arrive at proper conclusions in most things that affect his adjudication. Now, I owe a man a hundred dollars and give him my plain note of hand payable after date. If he fails to prove any payment whatever and appears before the magistrate to defeat me from the collection of my just and honest due, what plea can he make, what guide does the magistrate need; what law to prevent him from giving justice in his decision? The plain matters of fact have been placed before him, and his only object should be to do justice to the plaintiff; and if he finds no plea of payment put in whatever, or if he fails to make good his plea of payment by proof, the plaintiff is entitled to a judgment. Sir, he needs nothing but the plain principles of justice to guide him there. So in many transactions that will be brought before him, even if the jurisdiction should be extended to one hundred dollars. Why, sir, the principle will apply to a case of fifty or twenty. The same arguments will apply to them that apply to a jurisdiction of a hundred dollars. And, sir, if the defendant feels himself aggrieved, that he has not had justice done him by the magistrate, he has an appeal to the circuit court. He has his remedy there so that there can be no injustice done him on account of the tribunal that tries him. In several of the states, when justices have jurisdiction, varying from twenty to one hundred dollars -
MR. WILLEY. I would ask the chairman whether that jurisdiction applies to cases of trespass?
MR. VAN WINKLE. That word "trespass" got in accidentally and was not intended by the committee.
MR. STUART of Doddridge. I rise to a question of order. This is a question that was specially referred to the Committee on the Judiciary, and it is made one business of that committee to inquire into the jurisdiction of justices. It seems to me we have taken it out of its proper place in considering it in this report.
MR. DERING. I presume I am in order as the section and report has been acted upon until we are nearly through it and it may as well be met in this connection as any other. In Michigan, sir, a single justice of the peace has jurisdiction to the amount of one hundred dollars, and has concurrent jurisdiction to the amount of three hundred and up as far as five hundred. I admit, sir, there are other states in like condition but in many of the states the jurisdiction is left by their constitutions to be prescribed by their legislatures. But in some of the states they have limited and in others extended it, varying the jurisdiction from twenty up to one hundred dollars. In our state, Virginia, our legislature has been increasing the same from twenty dollars up to fifty and from fifty to one hundred dollars. It is now one hundred dollars. The jurisdiction of a single magistrate is made to go as far as one hundred dollars. Now, sir, I have never heard any complaint of injustice on account of the jurisdiction of a magistrate reaching one hundred dollars; not a word. I have never heard in all my experience and observation and knowledge of anybody that complained of any injustice on this account. There are quarters where I might have heard complaint if I had sought for it, but I have never heard a single word. The people, then having enjoyed this right in Virginia, the legislature in their wisdom having enacted that the jurisdiction of a single magistrate should amount to one hundred dollars, we should let it be where the legislature has fixed it and incorporate a clause in the Constitution of the State of West Virginia placing it at that amount. Now, sir, I hold we ought to be very careful how we rob people of rights that they have enjoyed. They have enjoyed this right; and having enjoyed it for so long a time, will you deprive them of that right - take it from them? It seems to me if you do you will have the maledictions of an incensed community on you and the country would not justify any such robbery of their rights.
Again, sir, I am in favor of making justice as cheap as possible. I am in favor of throwing off all the guards that the lawyers may throw around it, of preventing them arguing before their courts, of putting in pleas, staving off and all that sort of thing. Why, sir, if a man goes into court and his client is disposed to be a little unruly he may have it slaved off for an indefinite length of time and men thus deprived of their property and almost destroyed. I hold it is the duty of this Convention, so far as they can consistently, to strengthen the great principles of justice, to promote justice by all means possible; to give to the people all the rights they have enjoyed and as many more as they are entitled to. I trust, sir, that this Convention will see the thing in the proper light and that they will give to the people the right to bring this up to as high as one hundred dollars. Then the defendant, if he considers himself the aggrieved party, if he thinks he has not had justice done him, can appeal to the circuit court, and there perhaps he may think he will have a better chance to obtain it. But, sir, there are very few cases of appeal on plain business transactions. Yet it seems to me it would defeat the ends of justice almost entirely if you take this jurisdiction out of the hands of the magistrates. There are many plain transactions between neighbors that amount to one hundred dollars. Indeed, most of the small litigation of the country is under that amount. Will you deprive the people of the right of seeking a magistrate and there obtaining justice? Or will you put them under the necessity of going to a lawyer and feeing him to get what is their just and honest due? Prevent them from a speedy collection of their debts? Throw it into court, where they would be kept out of it an almost interminable length of time? I trust, sir, that the sense of justice to the people, rich and poor, will bring this Convention to the conclusion that the amendment should pass.
MR. STUART of Doddridge. I desire to know whether if this passes whether the word "trespass" is to be stricken out. If the word is to be stricken out, I am for extending the jurisdiction in civil cases.
MR. VAN WINKLE. No, sir, the word "trespass" is there by mistake.
MR. STUART of Doddridge. Is it to be stricken out?
MR. VAN WINKLE. It ought to be.
MR. SOPER. I apprehend not; the gentleman is mistaken.
MR. VAN WINKLE. Thinking it would be better, I changed the language and accidentally left "trespass" in.
MR. STUART of Doddridge. I do not know whether it would be proper to offer such an amendment.
MR. VAN WINKLE. It being an accidental error, like my friend, I suppose by general consent the committee will be allowed to strike it out.
MR. SOPER. I think the chairman of the committee is under a misapprehension. In the draft he will find we had actions for assumpsit, debt, detinue and trover. I suggested to him the pro- priety of adding trespass. I am serious in it, sir, and will give my views at the proper time why I think it ought to be retained.
MR. STUART of Doddridge. Is it in order, then, to move to amend by striking out "trespass"?
MR. VAN WINKLE. Not now, I suppose. I will move to strike it out at the proper time.
MR. STUART of Doddridge. Yes, sir, but it might not be stricken out and you want to get me to vote on another amendment.
MR. DERING. I withdraw my motion, for the present, then.
MR. STUART of Doddridge. I move, then, Mr. President, to strike out the word "trespass," in the 2nd line.
MR. SOPER. That word was added, I think at my suggestion, and I will state to the Convention my object in having it placed there. I would have been satisfied myself if the report had generally authorized the legislature to confer on magistrates such civil jurisdiction as they saw fit; but when I found that actions were to be designated in the report I caused this word "trespass" to be inserted. I see gentlemen here apprehend that by introducing that word that they include all actions of trespass. I do not mean any such thing, sir, and before we get through with this section I will introduce such power of restriction, or giving the legislature such power, of restricting the exercise of the jurisdiction of magistrates under this section as I think will be safe and proper. Now, sir, I do not mean that a justice of the peace shall try an action of trespass where the title of land shall in any wise come in question. I exclude it entirely, and that power will be given if not named in this section to the legislature in order to secure it. I do not mean, sir, by giving them jurisdiction in actions of trespass that they shall try cases of assault and battery or false imprisonment or anything of that kind; but I do mean this, sir. If my neighbors' hogs come in and destroy my garden, I want to have a remedy. Or if my neighbors' cattle got over into my field and destroyed my grain, I want to have a remedy without going into the circuit court.
MR. VAN WINKLE. This is only the civil jurisdiction of a magistrate. He would still have jurisdiction of trespass as a criminal offense.
MR. SOPER. I know, sir, but I am not seeking to get a remedy for a criminal act. It is a civil act of trespass. Now, sir, a man who is on my land, if you please, takes off anything without my consent. True, I waive the tort and bring an action of trover: I can only recover the actual value of the property. But if a trespass is committed on my land, my action against him is a civil remedy, to recover damages, and it will be discretionary with the court and jury to make him pay what we usually call summary money. Whereas, in the other, I could only get the value of my property and interest on it. Now, why should not justices of the peace have jurisdiction of this kind? We hear almost constantly of neighborhood controversies, and what is the result? Why, one neighbor is injuring the cattle and hogs of another; trespassing upon him; killing them; quarreling about it and making a great deal of disturbance, and probably getting into assaults and batteries and various other difficulties. Now, sir, a man takes your property, if you please, without your consent, or he goes on your premises without your consent, or he runs against you when you are on the public highway and breaks your wagon or whatever you are riding in; commits any action of tort of this kind by which you sustain damages, why should you not bring the case before a justice of the peace and recover your five or ten dollars for it? Can any gentleman tell me ? So that when gentlemen suppose that in putting the word "trespass" there is to drag before magistrates the various actions I before named - assaults and batteries, false imprisonment - all that will be excluded; the legislature will take that away. Power will be given here to permit the legislature to do so. If I understand our present law on this subject, if I go into the court about it, if I do not recover ten dollars damages, why, I cannot maintain my action; I have got no remedy. But if I go there, then it requires the certificate from the judge in certain instances to entitle me to cost - a certificate that this breach or act was done, and something of that kind.
But, sir, I will repeat again, and then leave it for the consideration of the Convention: it is to give a remedy for these damages that I have named by going before a magistrate to have him assist in recovering the debt or claim I might have. I would have no objection to restricting the magistrate here as to the amount; restrict it to $20 if you please in these small cases. But I hope we shall not say that when a man has suffered an injury he shall not have a remedy for it.
MR. STUART of Doddridge. I must take things as I find them. Whether the gentleman from Tyler might be able to modify it to suit his views, I do not know; but if this section is modified as it stands, it may be modified, and it may not. If he has any amendment to offer I should like to see him introduce it.
MR. SOPER. I will tell you what amendment I propose.
MR. STUART of Doddridge. I will withdraw the amendment.
MR. SOPER. I wish to add at the end of "trover," "and such other matters, with such restrictions as may be prescribed by law." I will explain what I mean by "such other matters" besides those actions which will be named. If this is not broad enough -
THE PRESIDENT. Does the gentleman from Doddridge withdraw his amendment?
MR. STUART of Doddridge. I was very anxious for the gentleman to indicate what he proposed; but he only makes it worse. He gives additional power to the justices of the peace. I will insist on my motion to strike out the word "trespass." The section now stands that a justice of the peace has jurisdiction in all matters not exceeding a hundred dollars. As the gentleman from Monongalia remarks, on actions of trespass a great many legal questions arise; and I think justices are totally unprepared to decide questions of that kind. Besides, sir, men having cases litigated to that amount and cases of trespass would always want a jury. I see no provision here for giving justices of the peace a jury; and I would be opposed to that anyhow. Therefore, I think we had better strike out this word and consider what further jurisdiction we would give to justices of the peace. I cannot vote for it at all in its present form.
MR. VAN WINKLE. I certainly misunderstood the wishes of the gentleman from Tyler in regard to the insertion of this word. I may be incorrect in my recollection of how it got there, or I may have been overruled in inserting it; but certainly it was not my wish or intention that actions of jurisprudence on which bounds or titles of land come in question should be tried by a justice of the peace. I am therefore in favor of the motion of the gentleman from Doddridge to strike it out. Then I apprehend, sir, that what is left as the jurisdiction of a justice of the peace in the country will be perhaps as far as we ought to go. These actions are all plain - those that will be left here and enumerated and can all be tried in a summary way without any difficulty, and will not, I think, in any case, require those proceedings of which the gentleman from Lewis spoke. I think his argument was rather unfortunate in this, that for the last twenty years - I may say for 40 or 50 years - the tendency of the legislation of Virginia has been to simplify this matter of pleading. The tendency everywhere has been to simplify it. The old system of pleading was abolished several years ago in Massachusetts and in New York. Several western states have followed suit; and the reform party in England - that is, the party that are in favor of reforming their law, at the head of which is Lord Brougham, who has been indefatiguable, are in favor of the same thing. It is not worth while, I am aware, to address to other than legal gentlemen here any particular remarks about pleading. It is a matter too indirect, that is, what is technically called pleading; I mean in bringing the case, of course, to an issue. That is all that pleading does. It may consist of syllogisms, sir, but I apprehend that one end of them is a fiction, somehow or another. Now, sir, in the cases here that are presented for adjudication of justices of the peace in the country, there is scarcely possible but one issue, at any rate in 99 cases out of every 100. An action of assumpsit; the technical reply is, non-assumpsit. Is the charge one of promise? He says he did not promise. That is all that is to be tried. A promise to pay a certain sum of money; the question is whether he promised or not. In debt: there is very seldom anything can come up there before a justice of the peace except the question of payment. I apprehend that any person who held a note or execution which was likely to be disputed would not go before a justice of the peace. Well, so with the other actions of detinue and trover. They may almost be considered money actions. One party has come into the possession of the property of another. A suit is brought for the value of it, or in detinue to recover the identical property back. Now, these are all summary actions that require, as I think, no pleadings. It strikes me, therefore, sir, that if there is no advantage in this technical pleading nothing is to be lost in these cases that are confided to the justice of the peace, because they are not cases in which this technical pleading is of value in any case. I was reminded at the recess of what has been omitted from this report - ought to come before the committee, I believe, but it certainly was my intention to have said something on the subject. I was reminded that by the Constitution of the United States every case at common law where the value in controversy